Interviewer: Since 9/11 and during the war in Iraq, the threat of terrorism has put a premium on public security, and this has produced friction with the boundaries of civil liberties. How would you assess the situation in light of the persisting tensions between security and freedom in American history?
Eric Foner: Well, the terrorist attacks of September 11th, 2001 put this issue again on our national agenda—the balance of liberty and security. Certainly, history shows that when people are afraid, they become willing to see liberty sacrificed in the name of security. This has happened at many times in our history, and in the history of several other countries, and certainly in the aftermath of September 11th and for several years afterward, the government, in the name of security, promulgated some fairly serious restrictions on traditional civil liberties in this country, first for Muslims and people of Muslim origin. Thousands of them were rounded up, without a charge or anything, after September 11th, and interrogated, often held in jail for weeks or months, without even notification to their family. Then the government announced that foreigners who were captured or seized who were deemed to be—or said to be, by the President—enemy combatants or enemies of the United States could be held without charge, without a lawyer, without access to charges against them, indefinitely, and if eventually charged, would be charged before a military tribunal, not a regular court.
The government also said we no longer have to abide by international standards in the treatment of prisoners, the so-called Geneva Conventions, which regulate that you can't torture people, etc. The government basically said these are obsolete in a war like this. Then the government eventually said we can do all this to citizens of the United States, too. We can actually seize American citizens and strip them of the Bill of Rights if the President declares them to be an unlawful combatant, and at least two, Homidy and Padilla, both of them citizens, were arrested, thrown in jail—no charge, no right to a lawyer, no trial by a civilian court. These are retreats from the protection of civil liberties, no doubt about it. They have raised a great deal of controversy.
What is unusual in the last couple of years is that, during wartime, the Supreme Court has begun to reign in the federal government; that usually happened after the war was over, like in World War I, World War II. During the war, the Supreme Court says, look, we're not on the battlefield, we're not making policy; we've got to give the government the leeway in a war. After the war, they begin to say, wait a minute, I think the government went too far, and we've got to start restoring our liberties again. But now, in a series of cases—2004, 2005, 2006—the court actually said the government is going too far, even now, because the rights being violated are so deeply rooted. Habeus corpus goes back hundreds of years in Anglo-American jurisprudence. The right to trial by a real court, not just some fly-by-night military operation, that's a deeply, deeply rooted right. The right to have a lawyer, the right to talk to your lawyer. So the court has begun to restrict the federal government's right to just set up its own whole judicial system without any interference by the regular courts. What the upshot of this will be, nobody knows. How long the war on terror will last, nobody knows. But certainly, I think one thing that I think we can say for sure is that this question of the fate of civil liberties in a time of crisis is one of the major ones on our national agenda, right now, and for the foreseeable future.