Different rules apply when winds of war blow

TED LAPKIN

It's an impassioned tirade against executive tyranny of the sort heard at protest rallies from Sydney to Cincinnati: "The men in power are attempting to establish a despotism in this country," declares the Speaker, "more cruel and more oppressive than ever existed before!"

But this harsh denunciation is not being uttered against the policies of George Bush. Nor are these sentiments below expressed by supporters of Guantanamo detainee Mamdouh Habib. In fact, this incendiary pronouncement was made neither during the current century nor during the one that preceded it.

This rancorous jeremiad was delivered during the American Civil War by a former congressman from Ohio named Clement Vallandringham. Vallandringham was a staunch opponent of the Union war effort. But the particular focus of his wrath that night in April 1863 was the wholesale manner in which Abraham Lincoln had infringed upon fundamental civil liberties.

In pursuit of victory over the South, Lincoln didn't mess around. With the outbreak of hostilities, Lincoln invoked an obscure clause of the US constitution to suspend habeas corpus and imprison 13,000 Confederate sympathisers. And when a member of the US Supreme Court lodged a protest against those extrajudicial detentions, the president threatened to lock up the chief justice, Roger Taney, as well.

Clement Vallandringham paid dearly for his opinions. Two months after his provocative speech he was arrested and tried before a military commission for making "treasonable utterances". He was found guilty and deported at bayonet-point to Confederate territory.

Lest there should he too much sympathy for Vallandringham's predicament, it's worthwhile noting the reasons why he sought conciliation over conflict with the South. Vallandringham considered the war to be an unnecessary enterprise because he had no objection to the "peculiar institution", as slavery was euphemistically known. In fact, he considered blacks to be an irredeemably inferior race suited only to servitude.

Clement Vallandringham was hardly the poster boy for aggrieved civil libertarians that he might have seemed.

And what are we to make of Abraham Lincoln? He was the author of the Gettysburg Address, which extolled the virtues of government of the people, by the people, for the people". Moreover, Lincoln issued the Emancipation Proclamation and prosecuted the war that eradicated slavery in the United States.

But Lincoln was also enough of a real-world statesman to realise that an ill-defended democracy would be a short-lived democracy. He understood that, in times of dire crisis, severity is needed to preserve self-determination. And when the unity of the United States was in peril, Lincoln demonstrated the will to do what was necessary to win the war.

The Confederacy never menaced the physical security of the United States in the manner of al-Qaeda. The Confederates merely wanted to withdraw from the Union, and southern general Robert E. Lee never deliberately slaughtered northern civilians to advance that cause.

The wartime security measures adopted by Lincoln were far harsher than any actions adopted following the September 11, 2001 attacks. The policies of George Bush and John Howard are a pale imitation of Lincoln's decree that anyone "in any way giving aid and comfort to the enemy" would be "subject to arrest and trial before a military commission".

If George W. Bush had implemented anything even remotely approaching the severity of Lincoln's edicts, half of Hollywood would be in military detention right now.

The much-maligned USA Patriot Act, for example, does little more than harmonise law enforcement tools to reflect current threats and technologies.

US law enforcement agencies have long enjoyed the ability to employ "roving wire taps" that follow criminal suspects from location to location and from telephone to telephone. The Patriot Act simply extends that capability to foreign intelligence cases, provided investigators can obtain the appropriate warrant. And while the act allows for the detention of non-US citizen terrorist suspects, it explicitly recognises that such incarceration is subject to habeas corpus review by the courts.

Yet these procedural safeguards have not dissuaded critics of the Bush administration from issuing forth with lamentations of truly Chicken Little proportions. Here in Australia, the passage of the ASIO hill was greeted with a similar spate of hysterical hyperbole.

Writing in The Age, Melbourne lawyers Claire Mahon and Karyn Palmer complained that the ASIO legislation altered "some of the core elements of our criminal justice system".

But the justice system to which Mahon and Palmer refer is designed to accommodate a society at peace. War, by its very nature, constitutes a different, and far harsher environment. And as Lincoln taught us, in times of armed conflict the defence of democratic principles requires play by a rougher set of rules.

Last year's US Supreme Court decision in the case of Hamdi v Rumsfeld reaffirmed the age-old distinction drawn by the law of war between lawful and unlawful combatants. Not only did the court uphold the detention of illegal enemy combatants who were American citizens, it also reversed the burden of proof that operates in conventional criminal prosecutions. Rather than the usual presumption of innocence, the Supreme Court recognised that the winds of war demand a rebuttable presumption of guilt that must be disproved by the detainee.

September 11, the Bali attacks and the Madrid railway bombing were acts of armed aggression by a movement of retrograde religious fanatics whose idea of modernity dates from the 7th century.

We are engaged in a conflict in which no compromise is possible because the world for which these jihadist holy warriors are fighting looks a lot like Afghanistan under the Taliban.

Two months after the collapse of the World Trade Centre, Bush issued a military order that reflected this altered state of global reality. The terrorist attacks against America, he declared, were "on a scale that has created a state of armed conflict that requires the use of the United States armed forces".

But there are those who still insist on applying the rules of the solicitor to what is in reality the realm of the soldier.

US Supreme Court judge Robert Jackson once wrote that the constitution and bill of rights were not a "suicide pact". Jackson would know. He served as the chief Allied prosecutor at the Nazi war crimes trial at Nuremburg.

If a temporary infringement upon peacetime civil liberties is necessary to prevent the next mass-casualty terrorist attack, is that a greater offence against morality than allowing the slaughter of innocents to proceed unhindered?

The sooner we accept the unpleasant fact that this is a war, the sooner we can get on with the task of winning it.

Despite the apocalyptic prognostications of civil libertarians, the sky has not fallen in on American or Australian democracy. The ASIO legislation and the USA Patriot Act are quite moderate by comparison with the wartime regime of Abraham Lincoln.

Lincoln is hailed as a hero of democracy by many of the same people who revile Bush as a tyrant. But if Lincoln's example teaches us anything, it is that freedom is never free, and that liberty must sometimes be protected by less than liberal means.

Ted Lapkin is associate editor of The Review, a journal of analysis and opinion published by the Australia/Israel and Jewish Affairs Council.