The Supreme Court in Times of Hot and Cold War: Learning from the Sounds of Silence for a War on Terrorism

Abstract

The Supreme Court in Times of Hot and Cold War: Learning from the Sounds of Silence for a War on Terrorism DOUGLAS W. KMIEC Introduction Justice William J. Brennan once remarked that the Court has never fully developed a jurispru­ dence of national security. It is simply too episodic, he said.1 Our present Chief Justice would, it would seem, largely agree, though his own research shows some greater willingness for the Court to superintend—at least after the fact2—the actions of the executive in times of war or similar crisis. My assignment in this essay was to ask the question slightly differently; namely, has the posture ofthe Court differed in times of hot or cold war, and if so, how has it differed? As will be evident momentarily, that question is less helpful to our present circumstance than it might seem. Why? Because, frankly, we are in neither a hot nor cold war, but something quite different3—something that has the potential to be not only hot, but blistering, and something which will likely never be fully appreciated as having gone truly cold. It has been said often that the war on terrorism is not like a conventional hot war. It does not always involve a nation state or sovereign claimant, though it can, as the war in Afghanistan and Iraq suggests. Ourenemies do notuniformly aim at military or diplomatic tar­ gets, though, as we know from the U.S.S. Cole and embassy bombings, they may. The present waris also likelyto be long-lastingwithno def­ inite end date—no V-E or V-J Day—because, frankly, we know neither the E nor the J, nor how to define V So, too, the circumstancewe now confront is not like the Cold War: there is no sinister communistic ideology seeking to undermine democratic thought. Americans generally have only the vaguest notion about the fanatical Is­ lamic beliefs that underlie the hatred of our THE SUPREME COURT IN TIMES OF HOT AND COLD WAR 271 Since the attack on the World Trade Center in 2001, the author argues, the United States has entered a new kind of war—one that can be characterized as neither cold nor hot. al-Qaeda enemies. Our President has repeat­ edly emphasized that those who attacked us do not represent mainstream Muslim belief, and we hardly fear that the fundamentalists who have declaredjihad or war against us will sur­ reptitiously win over the hearts and minds of our youth. Joe McCarthy and the like might have thought a Communist takeover imminent in the 1950s, but in the American home ofthe twenty-first century, the philosophical influ­ ence of radical Islam is more annoying than worrisome. Yet, living today when it may not be safe to work in an office tower or even open the day’s mail is unnerving. Surely not a violent overthrow ofthe republic, but just as surely a more pervasive, deeply troubling, and insidious constraint on American freedom. In this time of coldly calculated terrorist hatred that can boil over anywhere, any time, national security and its reconciliation with civil lib­ erty may be less informed by the Court’s past wartime history than even Justice Brennan be­ moaned. In times of terrorist war, history cannot repeat itself, since the nation has not previ­ ously been threatened by a fully analogous war-like hatred. The present war is sustained internationally and delivered domestically. It is as likely to result in harm to military per­ sonnel as to average citizens. Perhaps the clos­ est analogue to the modern terrorist is the pi­ rate and brigand ofold. While the lawlessness of both makes them cousins, the analogy ulti­ mately fails, since the modern cousin can com­ mandeer technological resources that threaten a far broader scope ofcivilization than a frigate upon the high seas ever could. With these qualifications, let us briefly ex­ amine some ofthe past decisions of the Court in times of hot or cold war for the information or guidance they do yield. The examination focuses on the competing roles of the politi­ cal branches and the Court in selected prece­ dents from the Civil War, World Wars I and II...