Civil Liberties Sometimes Become First Casualty of War

Given a free hand after the Sept. 11 attacks, President Bush followed the uncertain footsteps of Abraham Lincoln, Franklin Roosevelt, John Adams and other past presidents who made civil liberties the first casualty of war.

Eavesdropping without warrants, redefining torture, building loopholes into the Geneva Conventions and the USA Patriot Act will be parts of Bush's legacy and a cautionary tale for the next president who struggles with the balance between safety and civil liberties.

Congress is raising its voice. Emboldened by Bush's political woes, lawmakers seem determined after four years of acquiescence to play their role as a check on presidential powers.

On Friday alone:

Senate Judiciary Committee chairman Arlen Specter, R-Pa., said it was inappropriate for the super-secret National Security Agency to eavesdrop without warrants on people inside the United States. He promised hearings on Bush's NSA directive.

Senate Democrats blocked extension of the Patriot Act, which expanded legal eavesdropping and allowed secret warrants for books, records and other items from businesses and libraries.

The House called on the administration to give Congress details of secret detention facilities overseas.

On Thursday, Bush reversed course and accepted Sen. John McCain's call for a law banning cruel, inhuman and degrading treatment of foreign suspects in the war on terror. While the White House's stance on torture did not affect civil liberties of U.S. citizens, it raised questions about the nation's values at home and abroad.

In a related debate, the president has long insisted that hundreds of prisoners held in the war on terrorism are enemy combatants, not prisoners of war, and are not entitled to the same rights afforded under the Geneva Conventions.

Have we gone too far to defend the nation?

What happens if we don't go far enough?

Those are the questions that haunted Lincoln, Roosevelt, Adams and others who stretched the U.S. Constitution in the nation's defense.

"Civil liberties are always most endangered during wartime and there does seem to be a greater tendency to look for and find domestic and internal enemies during wartime," said Marc Kruman, chairman of history and director of the Center for the Study of Citizenship at Wayne State University in Detroit.

Lincoln suspended the right of habeas corpus the guarantee against being held indefinitely without being charged with a crime during the Civil War, arousing opposition throughout the country. In one case, he ignored the order of Chief Justice Roger Taney to grant a writ to a Southern agitator who had been jailed by military authorities in Maryland.

Fearing war with the French, Adams approved the Alien and Sedition Acts, which, among other things, prohibited people from speaking against the government.

Franklin Roosevelt ordered the internment of Japanese-Americans in camps during World War II.

"There has to be a balance when we're at war between national security and what I call core American values," said Tom Newcomb, assistant professor of criminal justice and security studies at Tiffin University in Tiffin, Ohio.

Newcomb has observed the balancing act at several levels of government: He has been a CIA station chief, counterterrorism expert at the White House, legislative aide to the House Intelligence Committee and legal adviser to the Foreign Intelligence Surveillance Court, the secret Washington court that handles national security issues like NSA eavesdropping.

"The best overt example of this is ... the so-called libraries provision of the Patriot Act. There's no doubt in my mind that it is constitutional, but it seems offensive to the sensibilities of a lot of Americans and may be an example of how protecting our national security can go too far into the core American values," Newcomb said.

In the debate over torture, Newcomb said the White House may be fighting to protect executive-branch prerogatives that are not needed by the intelligence community.

"I do think that any interrogators need some broad guidelines to enable them to do their jobs," he said. "However, it's axiomatic among spooks like me former spooks like me that the more duress the less reliable the information is that you get."

Harvard lecturer Juliette Kayyem, author of "Protecting Liberty in an Age of Terror, said it's "as traditional as apple pie to recalibrate the balance between security and civil liberties in times of crises. The question we're starting to ask here with the torture debate, the NSA eavesdropping and the Patriot Act is how do we calibrate that balance after September 11?"

Lincoln, Roosevelt and Adams struggled with the balancing act. Congress and history will judge how well Bush handled it.

This story is by Ron Fournier of the Associated Press.