Sunday, November 19, 2006
Give me Liberty...
Today’s topic, “Freedom of Speech during War Time”, is one of the great Constitutional debates of our history. Inevitably, most people will assert that free speech is sacrosanct barring a serious emergency. At issue are the two distinct and, at times, contradictory roles of the Executive: The prime law enforcer and the vanguard of national security. What if defending our country requires abrogation of the law? Who’s to say one of the Executive’s Constitutional duties takes precedence? (For a fuller discussion, watch a 2005 debate on the topic at Harvard Law School.)
Perhaps the roles of the President are not as distinct as we had suggested. Granted, the Constitution allows the Executive significant latitude to protect the nation. Yet how can we be sure that the power is being used responsibly? Is he/she tapping our phone conversations or jailing Americans without a trial behind our backs? That’s why even national security needs to be governed by law: to provide Congressional oversight and public accountability. FISA, FOIA, and other legislation were created for this very purpose.
Our beloved former President, Richard M. Nixon, brought these issues into sharper focus when The New York Times leaked the ultra-classified “Pentagon Papers”, detailing much of the blatant lies propagated by successive administrations about Vietnam. As punishment, Nixon ordered his staff to decline interviews from all Times reporters: “Under absolutely no circumstances is anyone on the White House staff on any subject to respond to an inquiry from The New York Times unless and until I give express permission (and I do not intend to give such permission in the foreseeable future).” The decision was taken “because of national interest” and “is not subject to appeal or further discussion unless I bring it up myself (Marilyn B. Young, The Vietnam Wars 1945 – 1990).”
To this inexhaustible debate I offer but one contribution: Those who advocate unbridled executive power must consider the lessons of the past. Freedom of Speech made the First Amendment for a reason: It’s the first line of defense protecting our other liberties. When liberty is discarded, we may never regain it.
Today’s topic, “Freedom of Speech during War Time”, is one of the great Constitutional debates of our history. Inevitably, most people will assert that free speech is sacrosanct barring a serious emergency. At issue are the two distinct and, at times, contradictory roles of the Executive: The prime law enforcer and the vanguard of national security. What if defending our country requires abrogation of the law? Who’s to say one of the Executive’s Constitutional duties takes precedence? (For a fuller discussion, watch a 2005 debate on the topic at Harvard Law School.)
Perhaps the roles of the President are not as distinct as we had suggested. Granted, the Constitution allows the Executive significant latitude to protect the nation. Yet how can we be sure that the power is being used responsibly? Is he/she tapping our phone conversations or jailing Americans without a trial behind our backs? That’s why even national security needs to be governed by law: to provide Congressional oversight and public accountability. FISA, FOIA, and other legislation were created for this very purpose.
Our beloved former President, Richard M. Nixon, brought these issues into sharper focus when The New York Times leaked the ultra-classified “Pentagon Papers”, detailing much of the blatant lies propagated by successive administrations about Vietnam. As punishment, Nixon ordered his staff to decline interviews from all Times reporters: “Under absolutely no circumstances is anyone on the White House staff on any subject to respond to an inquiry from The New York Times unless and until I give express permission (and I do not intend to give such permission in the foreseeable future).” The decision was taken “because of national interest” and “is not subject to appeal or further discussion unless I bring it up myself (Marilyn B. Young, The Vietnam Wars 1945 – 1990).”
To this inexhaustible debate I offer but one contribution: Those who advocate unbridled executive power must consider the lessons of the past. Freedom of Speech made the First Amendment for a reason: It’s the first line of defense protecting our other liberties. When liberty is discarded, we may never regain it.
# posted by Jonathan Noble @ 10:02 PM 
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You imply, I think, that it is not difficult to reconcile these two Executive obligations at all (this is related to what Jeffrey Tulis calls the "Two Constitutional Presidencies"), and that Executive power must be restrained -- that the balance must always tip toward free speech. Or do I misunderstand?
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