Terror's painful legalities.

• Author: Bresler, Robert J.
• Position: STATE OF THE NATION

THE WAR ON TERROR has forced Americans to examine a painful legal issue. When do the imperatives of national security and war fighting require a restriction on constitutional liberties and an alteration of due process?

We have to get out a balancing scale: The imperatives of war and the values of democracy inevitably are in tension with each other. It can be no other way. War requires discipline, sacrifice, secrecy, mobilization, and restrictions. Only the commander in chief, his top civilian advisors, the military, and much of the executive branch can run a war and run it successfully. War requires that the government be able to move with dispatch whenever there is a perceived threat to the national security and safety. A democracy requires that decisions be made with deliberation, in openness, and with due respect to individual rights. In a peacetime democracy, the legislative branch that is characterized by deliberation and openness often is the centerpiece of the government. In wartime, the executive branch and the president dominate. Our most assertive presidents--Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt, Harry Truman, Lyndon Johnson, and now George W. Bush--were wartime presidents.

None of these men faced a greater threat to this country and its very existence than did Lincoln. In the early months of the Civil War, the Union Army largely consisted of untested state militias. The fires of the Confederate Army camped in Virginia could be seen from the windows of the White House. Maryland was a hotbed of pro-slavery and pro-Confederacy sentiments. Chief Justice Roger Taney, who had authored the notorious Dred Scott decision, clearly was a Southern sympathizer: Lincoln took a number of decisive and far-reaching steps, all on his own authority: blockading the Southern coast, calling up state militias, expanding the military, borrowing funds from the Treasury to pay for it and, even more dramatically, suspending the writ of habeas corpus in the area between Philadelphia and Washington.

Article I, Section 9 of the Constitution states that the writ of habeas corpus only can only be suspended in cases of rebellion or invasion. Since Article I deals primarily with the powers of Congress, many have argued that a suspension of the writ must come from that body. Lincoln's defenders responded that the location of the habeas corpus provision in the Constitution was irrelevant. The suspension was an emergency power to be exercised in case...