Jewish World Review Oct. 8, 2002 / 2 Mar-Cheshvan, 5763

Terry Eastland

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Debating the clear and present danger | You don't have to follow the debate over war against Iraq for long without noticing the recurrence of a certain term: "clear and present danger." In fact, if you do a Nexis search for the past six months for "clear and present danger" and "Iraq," you'll find more than 6,000 mentions. Do the same search on Google and you'll get more than 66,000.

This week, as the congressional debate over a resolution authorizing war goes full throttle, it will feature multiple references to "clear and present danger." Iraq is a clear and present danger, the argument in broad terms will go, and something must be done to counter it, with war a possibility. In opposition, it will be said that Iraq is not a clear and present danger. And so there is no need to go to war.

Neither side objects to the term "clear and present danger," and indeed it suffices as a way of framing the debate.

The term, however, isn't one whose first applications can be traced to some previous war debate. In fact, "clear and present danger" entered our political vocabulary long ago through Supreme Court cases on free speech. The initial case was Schenck vs. United States, decided in 1919, and its backdrop was World War I.

Charles Schenck, a leader in the Socialist Party, mailed circulars to potential draftees urging them to assert their rights in opposition to the war and sign an anti-draft petition. The government prosecuted him under the 1917 Espionage Act, which prohibited attempts to obstruct military recruitment. Schenck contended that the law violated his free speech rights.

The court previously had decided few speech cases and its doctrine (such as it was) presumed the constitutionality of laws affecting speech. In Schenck, the court seemed to announce a new and more stringent test. "The question in every case," wrote Justice Oliver Wendell Holmes Jr., "is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

Holmes's new "clear-and-present-danger test" was little consolation for Schenck, whose words were judged by a unanimous court to have failed it. But in time the court used the test to protect free speech rights. In 1969, the court gave still more security to those rights when it said that subversive speech could be punished only if it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." You'll see in that formulation concerns for intentionality and the imminence and likelihood of the action in question. The same issues are at hand in the war debate.

In his speech at the United Nations, President Bush used a new formulation to state the nature of the Iraqi threat when he said, "Saddam Hussein's regime is a grave and gathering danger." Not incidentally, the court's First Amendment decisions also emphasize the "gravity" of dangerous speech in assessing whether it may be punished. The alliterative "grave and gathering" suggests that the danger posed by Saddam Hussein is very bad and getting worse by the day.

The war debate is proceeding on terms that reflect the nation's character. We are reluctant to punish dissident speech or to use force without first having very good reasons. We reserve action for the exceptional case, but Iraq is that kind of case: Saddam Hussein is the only leader in the world with weapons of mass destruction who has shown that he can use them (against Kurds, against Iranians). He is a sworn enemy of the United States, and, having long coveted nuclear weapons, may have them soon.

Why should anyone think he would not use them against neighboring countries or somehow against us? Why, having experienced terrible vulnerability on Sept. 11 last year, would we not act first?

The case against Iraq will prevail in Congress. But the congressional resolution authorizing war won't be like a court decision sustaining punishment against someone in Schenck's position. Punishment in that sort of case is carried out, but war against Iraq may not be. War will still be the president's decision to make. And likely it will come down to his judgment about the imminence of the threat and the risk of not acting now.

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JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

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08/28/02: So then let the president declare war
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07/31/02: With each war, civil liberties are curtailed less

© 2002, Terry Eastland