In fog of war on terror, some rules set

War is rarely kind to civil liberties. From the Alien and Sedition Acts of 1798 to the suspension of habeas corpus during the Civil War to the forced internment of some 120,000 Japanese in the US during World War II, the nation has repeatedly grappled with how to balance security and rights.

Now – in the middle of a war on terror and nearing critical midterm elections – Congress has taken another stab at achieving that balance. In historic votes last week, lawmakers banned torture, rape, and murder in the interrogation of terrorist suspects. But they left to the president to determine what techniques short of "serious" physical or mental pain or suffering are still allowed.

They also voted to give immunity to those involved in secret interrogations before last year's torture ban and to allow evidence obtained by "cruel and inhuman treatment" before that date to be used in military trials.

And in the most tightly contested decision of the week, lawmakers denied detainees in the war on the terror the right to challenge their detention in US courts. That means that anyone that the president or the secretary of Defense determines to be an enemy combatant – including noncitizens living legally in the United States – can be held indefinitely without trial.

In a wrap-up of the week's votes – including $448 billion for defense spending and $35 billion for homeland security in fiscal year 2007, as well as a mandate to build 700 miles of fence along the southern border – Republican leaders said the US will be "safer, stronger, and more prosperous" because of these laws.

"The specificity that the bill provides to the War Crimes Act – and its retroactive effect – will actually make prosecuting war criminals a realistic goal. None of my colleagues should object to that goal," said Sen. John McCain (R) of Arizona, who led the drive to ban torture in 2005, in a statement after the vote.

But critics say that, unlike the torture ban, the Military Commissions Act of 2006 is one that the nation will come to regret, just as it has regretted other lapses of civil liberties during times deemed national emergencies.

"This is a debate about whether we are willing to preserve the fundamental protections our nation has fought for centuries to maintain," said Rep. Doris Matsui (D) of California, who cited her family's personal experience in the Japanese detentions in the US during World War II.

The debate is hardly new.

In July 1798, President John Adams signed into law the Alien and Sedition Acts, allowing him to deport any foreigner he deemed dangerous and to ban any spoken or written criticism of the president.

The four laws aimed to protect the nation from security threats from France, but the votes in Congress broke along party lines. The Federalist-controlled Congress aimed to mute criticism from Jefferson's Republicans.

"Wartime is traditionally a period of infringement of civil liberties. The Alien and Sedition Acts took place in a quasi-war with France, but the incoming [Republican] administration allowed the law to expire when the crisis was over," says Donald Ritchie, a Senate historian.

When President Lincoln suspended the writ of habeas corpus in 1862, rioters in Baltimore were threatening to destroy train tracks to block Union troops from reaching the capital and the Maryland legislature was threatening secession. The Constitution allowed suspension of the writ "in cases of rebellion or invasion," he said.

But critics of last week's vote say the decision to suspend a right as fundamental to Western law as habeas corpus was not justified by the facts on the ground. There is no rebellion or imminent invasion, they say.

"I'm not going to support a bill that's blatantly unconstitutional ... that suspends a right that goes back to [Magna Carta in] 1215," said Sen. Arlen Specter (R) of Pennsylvania, chairman of the Senate Judiciary Committee. He sponsored an amendment to delete the ban on habeas corpus from last week's bill that narrowly failed on a near party-line vote.

"I'd be willing, in the interest of party loyalty, to turn the clock back 500 years, but 800 years goes too far," he added, although he did vote for the final version of the bill.

In the end, all but one Democrat voted to preserve habeas corpus for military detainees and all but four Republicans – Sens. Specter, Lincoln Chafee of Rhode Island, Gordon Smith of Oregon, and John Sununu of New Hampshire – voted to suspend that right for those deemed enemy combatants.

"People deeply interested in the issue are the exception rather than the rule," says Sen. Ben Nelson of Nebraska, the lone Democrat to vote with Republicans to approve the suspension of habeas corpus for military detainees. "People respect Senator McCain on the issue, and he's reflecting a lot of views in Nebraska," he adds.

In final votes on the Military Commissions Act of 2006, the House passed the bill by a vote of 250-170, with seven Republicans voting against the bill and 32 Democrats voting for it. In the Senate, where the bill passed by a vote of 65 to 34, one Republican and 12 Democrats broke with their party. Many of the Democrats voting for the bill face tight midterm elections this fall, as does Senator Chafee, the lone GOP dissenter.

"The Constitution is not a suicide pact," says Senator Sununu, who also voted for the final bill after opposing suspension of the writ of habeas corpus.

"We're trying to strike a balance between those rights and processes we should afford everyone, even if they're suspected of grievous acts, with need given the scope of the threat to have very robust tools and very efficient procedures for detention and prosecution," he adds.