If the FBI kicks down your door tonight and whisks you off to a military Gulag, you can’t be sure you’ll ever again be permitted to see the inside of a courtroom or the outside of your cell.
Of one thing, however, you can be all but certain: Tomorrow, the whole dirty business will be condoned by some flatulent "expert" in the name of the late U.S. Supreme Court Justice Robert Jackson.
Since September 11, pundits have routinely excused every escalation in Bush’s war against the American people with some variation on the following sentence: "As Supreme Court Justice Robert Jackson said, ‘The Bill of Rights is not a suicide pact.’" It’s been used to justify, among other things, racial profiling (Floyd Abrams), concentration camps (Richard Posner), and torture (Jonathan Alter).
Most recently, when U.S. citizen Jose Padilla was summarily imprisoned without charge, time limit, or the right to counsel-a wholesale and unprecedented trashing of both Article III and the Sixth Amendment-the New York Times asked Harvard law professor Lawrence Tribe for comment.
Dithered the eminent scholar, who appears to be suffering from a terminal case of the post-9/11 whim-whams: "It is a source of concern, but the constitutional question it presents is deeply perplexing, given that the Constitution is not a suicide pact." (A regular Solon, this Tribe.)
Considering the offhandedness with which Justice Jackson’s phrase gets tossed around these days, you might think it has some kind of legal force (it doesn’t), or that Jackson was arguing in favor of suspending civil liberties in time of emergency (he wasn’t).
In fact, the suicide-pact quote is not law at all, but a rhetorical flourish lifted from Jackson’s dissenting opinion-he was on the losing side, you’ll note-in Terminiello v. City of Chicago (1949), a free speech case involving a fascist orator who was busted for inciting a riot. The court ruled that the police had exceeded their authority; Jackson, remembering Nazi mob-rule tactics, argued that the state had a right to intervene in order to prevent a punch-up. Here’s the quote in full: "There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."
What we have here is a somewhat sententious expression of an unexceptional position-that a sensible balance needs to be struck between civil liberties and public order. In no conceivable sense is this a blanket endorsement of Bush’s nascent police state.
On the contrary, Jackson wanted local authorities to handle this kind of problem precisely because he feared the creation of a Federal Gestapo. Here’s the section of Jackson’s Terminiello dissent that you won’t see quoted in the dailies:
"The Federal Bureau of Investigation is, and should remain, not a police but an investigative service. … In my opinion, locally established and controlled police can never develop into the menace to general civil liberties that is inherent in a federal police."
In the same passage, Jackson warns against "arbitrary exercises of military power" of the sort sustained in Korematsu v. United States (1944), one of several notorious decisions by which the Supreme Court permitted the detention of thousands of Japanese-American citizens in concentration camps. Despite tremendous pressure from the experts of his day, Robert Jackson was one of three justices courageous enough to dissent from a landmark betrayal of American values.
I suspect you won’t be hearing much about Korematsu during the dark days to come. Although it’s probably the strongest legal precedent for mass preventive detention, it’s also the textbook example of bad law created in an atmosphere of wartime hysteria, so it’s just too embarrassing to cite. (Instead, Ashcroft and his pet pundits will continue to rely on Ex Parte Quirn (1942), which is off-point but less overtly malign).
Nor are you likely to encounter Jackson’s true opinion of imprisonment by Presidential fiat, as memorably expressed in Shaughnessy v. Mezei (1953): "Fortunately it still is startling, in this country, to find a person held indefinitely in executive custody without accusation of crime or judicial trial. Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land."
Clearly, Justice Jackson would have seen the current assault on the Constitution as disgraceful and dangerous. Tribe, Abrams, Posner, and the rest of the suicide-pact crowd know this very well-they’ve read the cases-just as they know that the Terminiello quote does not mean what they want you to think it means. So why are they blowing smoke?
Apart from sheer intellectual laziness, there’s only one explanation that makes sense: the World Trade Center attacks have scared our leading jurists out of their sheltered, overprivileged wits. In their panic, they stand ready to jettison major sections of the Bill of Rights-and if there’s no sound legal precedent for doing so, they’ll happily invent one. Odds are they’ll live to regret their cowardice, but by then it may be too late.
By contrast, Robert Jackson never deviated from his commitment to habeas corpus and, more generally, the rule of law. That’s probably because, as chief prosecutor of the Nuremberg tribunal, he came to understand what happens when a government of laws collapses under pressure from a popular and ill-intentioned strongman.
In his magisterial opening statement at Nuremberg, Jackson pinpointed the historical moment at which German democracy gave way to the Nazi lawlessness. On February 28, 1933, he recounted, Adolph Hitler seized upon an act of terror-the burning of the Reichstag-as the pretext for an arbitrary suspension of habeas corpus, the right to a public trial by jury, and other guarantees of individual liberty contained in the Constitution of the Weimar Republic.
From that point onward, "secret arrest and indefinite detention, without charges, without evidence, without hearing, without counsel, became the method of inflicting inhuman punishment on any whom the Nazi police suspected or disliked."
In Germany, mind you, it took a gang of ruthless thugs to murder constitutional government. Here, with the genteel acquiescence of the legal punditry, constitutional government is about to commit suicide.
Jacob Levich is a writer and editor living in Queens, N.Y. He can be reached at: firstname.lastname@example.org