Jewish World Review August 25, 2004 / 8 Elul 5764

Paul Greenberg

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Still for the Union | Old Friend!

It was wholly a pleasure to hear from you after all these years, even if you only wanted to know what I-"a true conservative"-thought of pundit Anthony Lewis' excoriation of the Patriot Act in the New York Review of Books. I am happy to answer your question: I try not to think about Anthony Lewis.

I gave up on Mr. Lewis about 30 years ago, when he was still a columnist for the New York Times. That's when he completely misconstrued Thomas Jefferson's attitude toward a subpoena John Marshall had issued for Jefferson's presidential correspondence about Aaron Burr. (At the time, Mr. Burr was being tried for treason in Chief Justice Marshall's court.)

Anthony Lewis painted Thomas Jefferson as the soul of cooperation with the court-in order to lambaste Richard Nixon for trying to keep control of his own presidential papers during the Watergate affair.

The two presidents' positions were actually much the same. As you might expect, both were concerned with protecting executive privilege, being chief executives.

But Anthony Lewis tried to make it appear that his hero, Thomas Jefferson, was willing to share his secrets, while Tricky Dick, his Bête noire wasn't. His political agenda in the present had warped his version of the past.

I wasn't crazy about Mr. Nixon at the time, either, but I remain even less fond of those who think of history as one of the plastic arts.

As for whether the Bush administration's actions in the name of national security are constitutional, the test for me is whether they are necessary to protect the nation.

If it became necessary, I'd support imposing martial law, suspending the writ of habeas corpus, conscripting Americans into the armed forces, and even shutting down newspapers. All of which Abraham Lincoln did for no better reason than to save the Union.

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I don't know whether that makes me a "true conservative," but I like to think it makes me a Lincoln Republican-a posture not calculated to win friends in these Southern latitudes.

The measure by which any or all of these actions should be judged is whether the threat justifies it. The answer to that question depends on how serious you think the danger is. I think it is quite serious. Others don't. And so they don't see much need for the Patriot Act.

I understand. It's been almost three years since the horrific attack on the Twin Towers, and there hasn't been a similar catastrophe since. The shock has faded. Memories dim. In short, the Patriot Act, among many other actions, has worked. So far.

And so we begin to think of the whole, cumbersome machine that protects our security, with all its inevitable hang-ups and injustices, as an unnecesary imposition. Even while our enemy, who knows us far better than we know him, is busy thinking of ways he can take advantage of our freedoms to strike another devastating blow.

In Mr. Lincoln's era, the Supreme Court handled such questions with admirable prudence. See its decision in Ex Parte Milligan, handed down in 1866. That's when the high court ruled that civilians could generally not be tried by military commissions when civil courts were available.

But the court took the precaution of waiting almost two years after the war was safely concluded-and the Union intact-before handing down its decision. Only after its jurisdiction had been preserved over the whole, reunited states of America did the Supreme Court restrict the authority of the military. During the war, it had upheld the authority of military tribunals (Ex Parte Vallandigham, 1864). Timing, as the justices well knew, can be all in these matters.

The court was well aware that it was changing with the times. To quote its decision in Milligan: "During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment."

In short, different times call for different decisions.

I fear this is not the response you were looking for when you asked my opinion of the Patriot Act-but do write again if and when this current War on Terror is successfully concluded.

By then, surely my views will have moderated, much like the Supreme Court's in the 1860s. There is nothing like the passing of danger to make one value safety less, civil liberties more. Which may be the way it ought to be. Circumstances not only alter cases but should.

Just sign me-

Still for the Union

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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