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Habeas Corpus in Swim Trunks

December 28, 2007, 10:49 am

I’m in Florida right now, on vacation, staying in an apartment on the beach. The complex has a nice pool, so I can go back and forth from fresh to salt water with my son, who thinks he’s a fish. The problem is, the other day I got into an argument with someone, another dad, I’d just met at the pool. I don’t usually do that, pick fights with folks I hardly know. I prefer to wait an appropriate interval before making people hate me. But in this case I made an exception. I had no choice. The guy had it coming: after hearing that I’m a history professor, and that I teach the Civil War, he insisted that President Bush’s approach to disregard for habeas corpus is no different than Lincoln’s was. Right, he said? Right? And if I like the one (Lincoln), why don’t I support the other (Bush)?

So I tried, as politely as I could — while also doing my best to keep my son from drowning (he’s a fish in his love for the water, not necessarily in his abilities, okay?) — to explain that, actually, I’ve got misgivings about Lincoln’s suspension of habeas corpus. In fact, I said, when I teach the Civil War to undergraduates, I devote parts of several lectures to the myriad ways in which civil liberties were besieged during the conflict. This is one among many cautionary tales I offer students who are often looking for a heroic narrative when they take my class.

But this wasn’t good enough for my new friend antagonist, who insisted that President Bush’s scorn for the Consitution is fired by the threat of Islamic extremism. Which threat, he insisted, “will destroy this country, destroy freedom EVERYWHERE, if we don’t do something about it NOW.” That’s a direct quote, by the way. I know for sure, because I still bear the mark on my chest where he poked me while shouting those memorable words. Ouch.

After kindly noting that President Bush seems to be destroying freedom in order to save it, I went on to try to explain that Lincoln actually faced a real threat to the republic. Whereas, in my view, President Bush does not (Unless you count Vice President Cheney. But I don’t think that’s what Pool Deck Guy (PDG) had in mind.). At least not from “Islamic extremism.” Which isn’t to say that extremism, in all of its guises, isn’t a very serious threat, perhaps even the serious threat of our time. Just not the same kind of threat that the Confederacy was to the Union — which is to say, existential. So I started to walk PDG through the meaning of inter arma enim silent leges, the key differences between Ex parte Merryman and Ex parte Milligan, and the finer points of the impact that the Copperheads and Clement Vallandigham (citing this excellent new book) had on Lincoln’s perception of the rule of law. But now I was splitting hairs. Or so it seemed to the by-then VERY angry PDG. We were arguing, I have to admit. Loudly. (At least in his case. I, by contrast, was calm, genteel even, and quite persuasive. You can ask anyone who was there.) In a pool. In Florida. Surrounded by swimming children. And scores of snowbirds trying not to notice the scary professor sporting the shaved head and his aggressive friend with the Long Island accent. So I walked away.

In part, I’m writing about this because the case above is another instance that has me thinking a lot about the uses of history in political arguments. The past, it seems, is most interesting when deployed as an instrument of persuasion. But nobody ever seems to be persuaded, no matter how compelling the evidence. What to do? I honestly don’t know. Blog, I guess, at least for the moment.

Also, returning to the recurring theme of the lattice of coincidence that weaves together the disparate threads of our lives: I’ve been reading the manuscript for my colleague Kathy Olmsted’s new book on the history of American conspiracy theories. It’s both a brilliant and unsettling work of scholarship, part of which has been discussed on this blog (here and here). Particularly troubling are the long sections on the many actual conspiracies perpetrated by J. Edgard Hoover against the American people. So this Times article comes as little surprise.

Here’s the lede paragraph for the story you’ll find behind the link:

A newly declassified document shows that J. Edgar Hoover, the longtime director of the Federal Bureau of Investigation, had a plan to suspend habeas corpus and imprison some 12,000 Americans he suspected of disloyalty.

Hoover hoped to round up and jail all of the people whose names appeared on his “suspct index,” a master list, compiled over the course of decades, of the many individuals he suspected of disloyalty. So, it appears that in 1950, President Harry Truman was one of the only things standing between this nation and an updated version of the nightmarish Palmer Raids of 1919-1921. Which begs the burning question, who will keep something like this from happening again? I wonder what PDG thinks. Maybe I’ll ask him later today. Or maybe not.

Editor’s Note: If you really want to know something about the Palmer Raids, go here and here and here and here. The eminent Professor Olmsted warns me that the above link is, perhaps, not entirely accurate. Stickler.

Update: I’ve just embedded a link above to a piece that Eric wrote some time ago on the substance of this glib post. But, given all the links I’ve arrayed before you, Eric’s essay might get lost. And that would be a shame. Because it’s good. So here’s that link again. As ever: Ari for glib, Eric for substance. Sigh.

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