On Dec. 22, Justice William Brennan spoke at the Hebrew University Law School in Jerusalem on a subject that could not have been more timely -- although the lecture had been scheduled months before. The visiting constitutionalist focused on "The Quest to Develop a Jurisprudence of Civil Liberties in Times of Security Crises."
Brennan spoke only briefly of Israel, and omitted any reference to the fatal confrontations in the Occupied Territories that were providing an obligato to his lecture. Mostly, he explored the acute tensions in American history between civil liberties and national security in times of war and in times of fear that enemies of the nation were planning its destruction -- from within.
Brennan's lucid and dramatic history lesson made me wish the speech had been made in America as well. Not many citizens here are aware that only seven years after the Bill of Rights was ratified, opponents of the Federalist administration, including a congressman, were jailed simply for criticizing the government. They were prosecuted under the brand-new Sedition Act of 1798.
Nor is it generally known that the lonely, thoughtful, courageous Abe Lincoln suspended the Writ of Habeas Corpus during the Civil War and, as Brennan notes, "caused 20,000 to 30,000 persons to be arrested and detained in military custody without charges, simply because those persons were suspected of being disloyal, dangerous or disaffected."
Students should certainly know the tensions between what the Constitution says and what is nonetheless sometimes approved by the Supreme Court in times of fear. It is unlikely that most of them get to learn such things, however, because their textbooks are carefully designed not to offend those who believe that in our schools, America must be spoken of only with pride and reverence. One widely used history textbook in Texas, for instance, has no mention at all of the Vietnam War. Too divisive still.
In his Jerusalem speech, Brennan's thesis was that our civil liberties record is careeningly episodic. "After each perceived security crisis ended," he said, "the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. But it has proven unable to prevent itself from repeating the error when the next crisis came along."
True, up to a point. But one of the greatest dangers to the First Amendment in many years is the case of Samuel Loring Morison. Now before the Fourth Circuit Court of Appeals, it has been brought by the Justice Department in a period when there is little perceived danger from foreign or even domestic enemies.
Morison is the first American convicted of leaking classified information to the press -- not to spies of a hostile foreign power.
In providing a British journal, Jane's Defence Weekly, with American spy satellite images of Russia's first nuclear-powered aircraft carrier, Morison was trying to get public support for more funds for America's Navy. The Justice Department has made it clear that if Morison is convicted, it will eventually also go after the receivers of leaks -- the press -- thereby greatly restricting information and providing the judicial equivalent of an Official Secrets Act. So the Bill of Rights is hardly safe in peacetime either when national security is invoked.
As for Israel, Justice Brennan predicted in his Jerusalem talk that "it may be Israel, not the United States, that provides the best hope for building a jurisprudence that can protect civil liberties against the demands of national security." The security of Israel, after all, is under perpetual threat. Accordingly, seasoned by that experience, Israel may show the world that it has learned how to preserve civil liberties "without detriment to its security."
But Justice Brennan omitted any reference to the fact that Israel has no written constitution and cannot agree on one because of the intractable differences between the religious and secular forces in the nation. There have been a number of judges in the spirit of William Brennan on the Israeli Supreme Court, but without a constitution, that court does not have the final say on civil liberties. The Knesset does.
In America, deep wounds to the Bill of Rights are repaired from time to time by the non-majoritarian Supreme Court. As when finally in 1964 the court for the first time directly declared the Sedition Act of 1798 unconstitutional -- the declaration being part of an opinion written by William Brennan. An invincible optimist, Brennan even believes that eventually a Supreme Court will declare the death penalty a violation of the Eighth Amendment. But how will the present court -- in a nation without the pressures on Israel -- weigh national security against the civil liberties of Samuel Loring Morison?