Historically, Laws Bend in Time of War, Rehnquist Says

Chief Justice William H. Rehnquist, reviewing the history of civil liberties during wartime, said Friday that the courts are inclined to bend the law in the government’s favor during a time of hostilities.

“One is reminded of the Latin maxim, inter arma silent leges. In time of war, the laws are silent,” Rehnquist said in a speech to federal judges meeting in Williamsburg, Va.

He cited as examples President Lincoln’s suspension of the right to habeas corpus during the Civil War and the Supreme Court’s willingness to uphold the internment of Japanese Americans and the secret military trial of eight Nazi saboteurs during World War II.

After the Civil War, the Supreme Court unanimously overruled the Union’s use of a military trial to condemn several Confederate sympathizers in Indiana. And Congress later apologized for the Japanese internment, but long after the war was over.

“These cases suggest that, while the laws are surely not silent in time of war, courts may interpret them differently then than in time of peace,” Rehnquist said.

He stressed he was offering “only a historical perspective,” not a prediction on how the high court will handle civil liberties complaints that arise from the Bush administration’s war on terrorism, which has not formally been declared.

Nonetheless, the chief justice has made it clear he believes it is unrealistic to expect judges to boldly challenge the government’s action at a time when a threat to the nation’s security is real.

This is not a new topic for Rehnquist. A history buff, he wrote a 1998 book on civil liberties in wartime, titled “All the Laws but One.”

He recounted the infringements on civil liberties during the Civil War and the two world wars, and concluded that the nation’s respect for civil liberties has grown steadily. Still, it is true that the demands of war have outweighed the commitment to civil liberties, at least while the conflict is underway, he wrote.

On Friday, Rehnquist cited Hawaii’s imposition of martial law after the attack on Pearl Harbor. Even though the bars and restaurants reopened shortly afterward, the civilian courts remained closed by military order through most of the war, he said.

Lloyd Duncan, a civilian shipyard worker, was arrested and tried before a military court after getting into a fight with two guards at the Pearl Harbor base. Harry White, a stockbroker, was also convicted in a military court for embezzling funds from a client.

Both men filed writs of habeas corpus challenging their convictions. The Supreme Court took up their appeals, and in the case of Duncan vs. Kahanamoku, ruled that Hawaii’s military trials for civilians were unconstitutional.

“The good news for the defendants, and perhaps for the people of Hawaii, was that martial law was illegal there at the time these defendants were tried in 1943,” Rehnquist said. “The bad news was that they did not find out about it until February 1946, a half year after the end of the war with Japan.”

A lawyer for Jose Padilla, the accused “dirty” bomb plotter, is expected to file a writ of habeas corpus challenging his detention in a military brig in Charleston, S.C.

The writ claims that Padilla, a U.S. citizen, is being held unconstitutionally, and it asks a federal judge to grant the writ and release the detainee.

Such a writ can be acted upon immediately by a judge. If the writ is rejected, lawyers for Padilla could send an appeal up through the court system. Similarly, if the writ is granted, Bush administration lawyers would appeal immediately.