At the present time, because of the revelation that our government is monitoring email and phone lines, Americans are once again debating the issue of personal freedom versus personal safety. One side cites the Constitution, saying that the government cannot spy on its citizens. The other side argues that in wartime, the needs of safety are paramount.
This issue was discussed extensively by the government during the Bush Administration after America came under attack on 9-11. Surveillance was set up, not only of foreigners but also of Americans who were suspected of planning terrorist activities. Bush’s attorneys referred back to a Civil War decision made by Abraham Lincoln. A Southern sympathizer named Lambdin P. Milligan in Indiana had been accused of leading a Sons of Liberty armed uprising. He was caught and, though an American citizen, tried by a military court and sentenced to death by hanging. That decision was overturned by the Supreme Court.
But then they referred back to a decision made by Franklin D. Roosevelt during World War II, when saboteurs, in the employ of the Nazi government, were taken across the Atlantic Ocean in a submarine and, with boxes of high explosives, were then rowed ashore in a rubber boat in the middle of the night on June 12, 1942 to the beach near Atlantic Avenue in Amagansett. There were eight saboteurs all together, one an American citizen. The ones in Amagansett buried boxes of explosives on the beach and took a train to New York City. Another group landed at Ponte Vedra Beach, Florida, left high explosives and subsequently boarded trains headed for Chicago and Cincinnati. Within a couple weeks, they were all arrested before they’d had a chance to blow anything up.
When he learned of it, President Roosevelt told aides he wanted the men tried and put to death as soon as possible. Lawyers argued that at least the American would need to be tried by a jury of his peers. Roosevelt refused to permit that. It took several days for Roosevelt’s lawyers to find the legal framework to carry out an order to have them quickly tried, convicted and put to death. The Lincoln assassination was brought up, the first time the U.S. had used a military tribunal for justice. Roosevelt said if a military tribunal wouldn’t work, perhaps he could set up a Presidential Tribunal that would. Roosevelt created what he called a “Military Commission.” This had never been done. It was composed of seven U.S. Army officers—four major generals and three brigadier generals; Roosevelt appointed Attorney General Frances Biddle as prosecutor.
The trial is quite famous. A military lawyer named Ken Royall was ordered by Roosevelt to defend the saboteurs and do his best. When he felt it appropriate, Royall appealed to the Supreme Court, asking them to review the case. But the Supreme Court was on its summer break. The next day, Royall was at the vacation home of Supreme Court Justice Owen J. Roberts, which was a farm in Morgantown, PA. Justices Hugo Black and Felix Frankfurter were also there. The three agreed to call the Supreme Court into a special session. This took place on July 23 and the next day, with a decision upholding the legality of the Commission.
The Commission went back into session on July 29, guilty sentences were announced on August 1, and the saboteurs had their sentences carried out on August 8, just 59 days after they came ashore. Swift justice. Six of the eight were put to death in the electric chair. The final two, neither American, instead of death, received long prison sentences at hard labor for having turned over important evidence about Nazi activities to the American government.
Personally, I hold to the view that the safety of our citizens trumps personal freedom in wartime, or in what sure looks like wartime, provided it is done delicately and carefully.
I have held this view since 1982. This was a long time ago, and it was the result of an incident I read about that happened back then, not in America but in Egypt. That year, Muslim fanatics, late at night, broke into the homes of Egyptian families and slit everyone’s throats. The President of Egypt was Hosni Mubarak, and he ordered his police to track these people down and shoot them. They did this, and almost no further incidents of this sort took place there for a generation. I felt he had done the right thing. When random shootings and murders soon took place elsewhere in the world, I felt this was also an appropriate response.
I will say that in Egypt, which did not then and does not now have a strong constitutional government, things soon spiraled down into dictatorship. Then 9-11 happened. I felt America, with its peerless Constitution and checks and balances, could create surveillance without going out of bounds with it. Homeland Security oversaw the FBI and the CIA. It is now 12 years since 9-11. And I must say that the protection of our people has been carried out effectively during this time without any apparent compromise to our way of life. It’s been a remarkable achievement.
I would like to point out that I personally had an encounter with anti-terrorist agents, here in America. I was taken off an aircraft and interrogated. We were at the gate, awaiting take- off. The cabin door had closed. It reopened and two men in suits and ties and with earpieces came on board, stood in the aisle and asked if someone with my name was on board. I raised my hand, and they took me off and into a small room at the gate, where there was a table with some of my possessions on it. As I looked at them, I realized these men were perfectly justified in doing what they were doing.
“Explain these,” one of the men said.
And so I did. On this table were copies of articles that had been in Dan’s Papers several years earlier and appeared inflammatory. These papers had been in an envelope together with that day’s New York Times I had been carrying through security, so that once on the plane I could review them. This was in 2004. The invasion of Iraq had begun. I intended to write a new article from four earlier articles I had written opposing President Bush’s decision before it had been carried out. Invade Afghanistan, not Iraq. I had used a yellow highlighter to mark passages where I had mentioned Osama bin Laden and Saddam Hussein. I told the men I was the editor of a weekly newspaper and I was writing against Radical Islam.
“Have you actually read these pieces?” I asked. “These articles are AGAINST invading Iraq but IN FAVOR of invading Afghanistan. Just read it.”
One of the men did. “He’s right,” he said.
The pilot appeared.
“How much longer will this be?” the pilot asked.
“He’s okay,” one of the men said. “We’re done.”
I gathered up my stuff and together with the pilot walked back to the plane. The passengers looked at me wide-eyed when we entered the cabin. Just before the pilot went into the cockpit, he turned to a stewardess and told her to give my wife and me free drinks for the trip. She did.