September 30, 2020

The Freedom to Limit Freedom

The Freedom to Limit Freedom
by Michael Spencer

Readers of this journal are no doubt aware of the editor’s claim to be a moderate libertarian. The encroachment and enlargement of the federal government and judiciary is a frequent subject of sincere warnings from this pen. For that reason, I feel I must make a reasonable defense of my support of the President’s call for military tribunals in the face of criticism from the left, right and center.

Freedom, according to many of these critics, consists of constitutional guarantees to due process. They feel it consists of principles, laws and legal protections. The President’s call to try terrorists outside of these guarantees and protections seems to be an encroachment of the Federal government, particularly the Presidency, into sacred territory. To whom are such tribunals accountable? How are they limited and controlled? How do we know they will not be used in the future for the unjust persecution of “enemies of the state” who are, in fact, simply political enemies of the current administration?

Citing Lincoln and Roosevelt does not impress these critics. The Civil War and World War II presented uniformed opposition and a formally declared state of war. The executive was accountable to the other branches of government. The current situation presents non-uniformed opposition and it is highly likely that persons residing in the United States under the protections of our government may be prosecuted under such tribunals. Those who vehemently oppose the military actions of an “undeclared” war on terrorism are rightly nervous about how their opposition might be cast in a highly charged atmosphere.

The rule of law, and not the rule of men, is a fundamental principle of our society. The thought of nameless generals in unknown locations presiding over secret trials and even executions is not a thought to warm the heart of any person who loves liberty. We have put terrorists on trial before and given them all the advantages and protections of our legal system. While no one liked seeing those responsible for the 1992 bombing of the WTC sneering in the courtroom, it showed the greatness and superiority of our system to put even that kind of scum on trial before a jury of the very people they sought to kill. Do we really want to step away from that back towards a practice that more resembles some third-world dictatorship?

All of these arguments appeal to me greatly. They are noble, clear and well-founded. My reason for supporting the president in what appears to be a deliberate step away from the primacy of liberty is not inconsequential. It is the larger picture, a picture that includes not only the principles of liberty, but the results of liberty. I am for a potential limitation of liberty, and a potential expansion of the power of government for the purpose of the health, practice and increase of liberty itself. It is not liberty as a principle, but liberty as a reality in the lives of Americans, that moves me to support the President. I believe we must potentially limit certain freedoms in order to more effectively guarantee all freedoms, even the survival of freedom itself.

I could reason this out slowly, but I will be blunt. If terrorists explode nuclear weapons in America’s cities, the discussion of freedom and civil liberties will hardly matter. If our free society produces the result of allowing our enemies to attack us on a massive and apocalyptic scale, then our principled defense of freedom will be a mute point for the next generation to discuss. I would like for my children to be able to enjoy all the freedoms that make America special in the world. At this point, it appears to me that military tribunals are the best way to guarantee that our children have the same chance at experiencing and perpetuating those freedoms that you and I have enjoyed.

Neither Lincoln nor Roosevelt nor any other President has faced a domestic threat such as President Bush faces. The fact that the enemy is a loosely constructed network of saboteurs is no reason to take them any less seriously than uniformed forces. The fact that there is, at present, no entity against which we can declare war is no excuse either. This enemy is virtually invisible, but deadly in an unprecedented fashion. The possibility of using small nuclear weapons, hijacked aircraft, sabotaged nuclear plants, biological and chemical weapons makes military tribunals almost mandatory. Such enemies cannot be given freedom on principle. The threat is simply too great. The threat is great enough that all the risks mentioned by the critics can be agreed to, and tribunals still chosen as necessary.

The President has said he will not allow the enemies of freedom to use freedom against us. I think that is fabulously clear thinking. The success of these terrorists will not be simply acquiring property or making an ideological point. Their success will be the destruction of entire populations and the end of our civilization. How can the critics of tribunals sleep at night with these people given lawyers and allowed the opportunity to present their case? If no one is left to read about your noble dedication to the principles of freedom, what is the point?

There is a time to limit freedom for freedom’s sake. Anyone who has lived through an emergency knows that freedom is worth protecting by limitation. Surviving to the day that freedom can once again be debated as a principle may depend on our willingness to compromise some of those precious principles.

Roosevelt closed the banks to save the nation from economic ruin. President Bush may have to close a few courtrooms and allow a few firing squads to save the nation from an evil that has no respect for the rules or results of war.