Review: All the Laws but One - Civil Liberties in Wartime

The central idea of this book is that laws, in time of war, are not silent, but that they speak with a somewhat muted voice. The book tells the story of decisions made by wartime presidents and questions whether those decisions were appropriate. It is also a primer regarding the expected decisions of future presidents during time of war, and also on the future decisions of wartime courts. It is neither likely, nor is it desirable that civil liberties occupy as favored a position in times of war as in times of peace.

The power of the government to restrict civil liberty is greatest during times of declared war. The power of the president to act is greatest when he is acting pursuant to an authorization from congress-as he is wielding all the authority that he possesses in his own right plus all the authority that congress can delegate to him. Therefore, after a declaration of war by congress, the president is acting with much greater authority than at anytime when he is acting on his own or when he is exercising the powers delegated him by a peacetime congress. This authority exercised by a wartime president is unlikely to be tempered by Constitutional concerns, nor by the courts.

There is reluctance on behalf of the wartime courts to decide a case against the government when there are national security concerns at issue. This reluctance has been expressed in different ways. A court may avoid deciding a constitutional question by limiting its decisions to issues not requiring constitutional analysis. Another option would be to delay a decision until after hostilities have ended. A third expression of this reluctance is the tendency to decide issues in the favor of the government during wartime, when such issues would have been decided in the other direction during peacetime. If this reluctance really exists, then might it not be better to wait until after the war to press theses wartime claims? While case law may benefit from such a delay, the individuals deprived of their liberties would certainly benefit from a prompt hearing.

One of the most important tasks of a civilized society is preserving the proper balance between freedom and order. This might also be expressed as a balance between liberties and security. During times of war, both reason and history suggest that the pendulum must swing towards the side of order and security. The government must be allowed to deal with issues that threaten the well-being of the society. In times of peace this pendulum will swing towards the side of freedom and liberty. This is as it should be. Should Lincoln, when he suspended the writ of Habeas Corpus, been willing to risk losing the Union because the Constitution did not give him the authority necessary to preserve the Union?

When governments begin to curtail liberties they are, and should be, subject to close scrutiny. While the government needs the ability to preserve the Union, it is easy to move from military necessity to merely convenience. It cases of necessity, the power that is sought is at least debatable. Where the threat is not critical, the same power may not exist, or at best be highly suspect.

The Roman legal maxim, inter arma silent leges, in war laws are silent, has several different levels of meaning in today's debate. First of all, it is speaking as a truism-in times of war the government enjoys a greater authority to restrict civil liberties. The Schenk and Hirabayashi decisions bear out this truism. Secondly, the maxim explains the attitude of the wartime presidents, which was summed up in the quote from Biddle "the Constitution has not greatly bothered any wartime president." In addition to any designated power or delegated power, wartime presidents may simply push their legal authority to or beyond the limits. On a third level, the maxim speaks to the judicial reluctance to rule against the government regarding civil liberties in times of war.

There is little reason to expect that future war presidents will behave differently than have those in the past. There is also little reason to expect that future courts will decide issues differently than their predecessors. There is reason to believe, however, that the courts will halt any unjustified infringements of civil liberties. It is desirable and likely that future courts will pay careful attention to the basis of government's necessity claim. The laws then, will not be silent in war, but will speak with a different voice. [752 words]

CONTENTS
Illustrations xi
Acknowledgements xiii
Mr. Lincoln Goes to Washington 3
Lincoln Suspends Habeas Corpus 11
Taney Rebukes Lincoln 26
Seward and Stanton 40
Burnside and Vallandigham 59
Copperheads in the Heartland 75
The Indianapolis Treason Trials 89
David Davis and the Supreme Court 105
The Arguments in the Milligan Case 118
The Milligan Decision 128
Lincoln is Assassinated 138
Confederates in Canada 144
Booth's Accomplices 155
World War I 170
World War II: Japanese Internments 184
Postwar Criticism 203
Hawaii Under Martial Law 212
Inter Arma Silent Leges 218
Notes 227
Bibliography 235
Index 241
Illustrations, following p. 112
President Abraham Lincoln, 1863
Chief Justice Roger B. Taney
Secretary of State William Henry Seward
Secretary of War Edwin M. Stanton
General Ambrose Burnside
Justice David Davis
John Wilkes Booth
Mary Suratt
President Woodrow Wilson
Justice Oliver Wendell Holmes
Judge Learned Hand
President Franklin Delano Roosevelt
Secretary of War Henry Stimson
Chief Justice Harlan F. Stone
Justice Hugo Black
Lieutenant General Robert Richardson
Judge Delbert Metzger

REVIEWS
Captain Robert G. Bracknell, USMC, Book Review, 47 Naval L. Rev. 208 (2000).
Major James M. Langham, Book Review, 168 Mil. L. Rev. 241 (2001).
Margaret A. Garvin, Civil Liberties in Wartime: History's Institutional Lessons, 16 Const. Comment. 691 (1999) (book review).