Who cares about civil liberties?

THE CONSERVATIVE COMMENTATOR and editor William Kristol described it as ‘‘the trap.’’ On Sept. 6, President Bush announced that he was transferring the remaining ‘‘high-value’’ terrorism suspects from secret CIA prisons abroad—admitting, for the first time, that such prisons existed—to the detention center at Guantanamo Bay, Cuba. In the same speech, he asked Congress to approve his proposal for a new legal regime, to govern the treatment and trial of detainees.

Most Democratic Party leaders objected to major provisions in Bush’s plan. They argued that the United States should not be denying detainees so many of the fundamental constitutional rights guaranteed to suspects in civilian and military courts. Nor should Congress, they argued, give the president the latitude to classify people, including US citizens, as ‘‘enemy combatants’’—and to determine what methods short of actual torture could be used in their interrogation. ‘‘This is not just a bad bill,’’ said Senator Patrick Leahy of Vermont, ‘‘this is a dangerous bill.’’

And yet, as Kristol noted in a Sept. 25 editorial in his magazine, The Weekly Standard, the Democrats faced a vexing political dilemma. Resistance to the bill could be portrayed by the president and his party as weakness in the war on terror. Acquiescence would give the president a major legislative victory on the eve of the midterm elections.

In the end, the congressional Democrats left most of the debating to the Republicans, who themselves were notably divided. While Democratic legislators by and large voted against the bill at the end of last month, a significant minority—12 in the Senate and 41 in the House—voted for it. And there was little serious talk of a filibuster.

As a result, the opposition party rendered itself, in large part, a bystander in what legal scholars on both sides of the debate characterize as a fundamental conversation about the power of the president and the rights of the accused. As Jack Balkin, a Yale Law School professor and fierce critic of the new law, wrote on his Web log, ‘‘I am puzzled by and ashamed of the Democrats’ moral cowardice on this bill.’’

This week President Bush will sign the Military Commissions Act of 2006, as the detainee bill is officially called, into law. And yet, despite its significance, politically the legislation seems barely to have registered. ‘‘I haven’t seen the slightest evidence that it’s had the slightest impact on any race in America,’’ says Charlie Cook, publisher of The Cook Political Report and a widely respected political analyst. ‘‘I don’t think it’s cutting for or against either party in the slightest degree.’’

But history shows that civil liberties haven’t always inspired profound political indifference—do they have to today?

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Throughout American history, those in power have shown that they are willing to make serious compromises on civil liberties when they feel national security is at stake. From the Alien and Sedition Acts signed by John Adams, to Abraham Lincoln’s suspension of habeas corpus during the Civil War, to the Red Scare following World War I, to the internment of Japanese-Americans during World War II, and Cold War McCarthyism, the right to free speech and a fair trial have been anything but sacred.

‘‘The historical pattern is extremely clear, it does not require some microscopic assessment,’’ argues the historian Joseph Ellis, a professor at Mount Holyoke College. ‘‘And if you look up any of those incidents in a standard college history textbook they will all be described as embarrassments, as regretted moments.’’

It’s also true, however, that the popular reaction to these incidents has been far from uniform.

For example, the Alien and Sedition Acts of 1798, passed by the ruling Federalist Party in the face of the looming threat of war with Napoleon’s France, were enormously unpopular at the time, and historians generally agree that they were a significant political blunder. The laws helped propel Thomas Jefferson, leader of the opposition Republican Party, to the presidency in 1800, and John Adams would later claim that signing them was the biggest mistake of his life.

Similarly, one of the greatest controversies of Abraham Lincoln’s presidency was his refusal to overturn the conviction of Clement Vallandigham, an antiwar Democrat who had been convicted by a military commission in Ohio of having declared sympathy for the Confederacy and making ‘‘disloyal sentiments and opinions.’’ Lincoln’s personal secretaries, John Nicolay and John Hay, wrote that no other act of Lincoln’s ‘‘was so strongly criticized’’ or created ‘‘so deep and so wide-spread’’ an outcry of opposition. Even Republican newspapers normally loyal to Lincoln chastised him for his disloyalty to the Constitution.

On the other hand, limits on civil liberties that have focused primarily on immigrants and noncitizens have tended to run into less opposition. In the Red Scare that followed on the heels of World War I, citizens were prosecuted for seditious activities, but the bulk of the arrests were of aliens, 3,000 of whom were deported on the orders of Attorney General A. Mitchell Palmer. As Geoffrey Stone, a University of Chicago law professor, writes in ‘‘Perilous Times,’’ his 2004 history of free speech in wartime, the so-called ‘‘Palmer Raids’’ were hugely popular.

By the same token, the internment of Japanese-Americans during World War II, while decried by a few figures within the Roosevelt administration, was widely approved of—Earl Warren, who would go on to become one of the Supreme Court’s most influential liberal justices, was California’s attorney general at the time and one of the policy’s leading proponents.

How today’s debate fits into this historical context remains contentious among scholars of civil liberties. Eric Posner, a professor at the University of Chicago Law School and coauthor of the forthcoming book ‘‘Terror in the Balance: Security, Liberty and the Courts,’’ believes today’s antiterror measures actually display a newfound measure of restraint, and the public’s lack of outrage at the law reflects that. He sees it as a legacy of the Civil Rights movement that, even in the face a grave threat, ‘‘today nobody would think of interning an entire racial group the way Roosevelt did.’’

Mark Tushnet, a professor at Harvard Law School, also sees the new legislation as more sensitive than its predecessors. ‘‘As a matter of formal constitutional law the threats to civil liberties posed by the military tribunal statute are either small or around the margins,’’ he argues. While language in the law that might apply its provisions to US citizens, he believes, might run into trouble with the Supreme Court, he thinks the rest of it might very well not. For example, it’s a matter of ‘‘real, serious constitutional debate,’’ he argues, whether to admit hearsay evidence in military trials of non-US citizens—as the new statute does—or to extend rights to non-US citizens held by US forces outside the country.

To Bruce Ackerman, a professor of law and political science at Yale University, such arguments set the bar too low. The Military Commissions Act, Ackerman contends, is a far greater overreaction than its closest historical analogues because the threat facing the country isn’t nearly as great. The threat that Al Qaeda poses to the United States pales in comparison to that posed by the Confederate Army or the Axis powers during World War II, Ackerman argues.

Ackerman compares the prosecution of the convicted Cold War spies Ethel and Julius Rosenberg with that of Jose Padilla, a suspected terrorist and American citizen who was for three years held in a military prison without charge.

‘‘The Rosenbergs,’’ Ackerman points out, ‘‘were tried in American courts, without being treated in the way that Jose Padilla was, and that was at a time when the threat to American institutions was much greater than at the present time.’’

Ackerman believes that we may be due for a popular reconsideration of our detainee policies. If it’s happening, though, few political analysts are seeing it.

‘‘That doesn’t mean that some people don’t feel strongly about it,’’ says Charlie Cook. ‘‘But in general they’re not swing voters. People who are offended by the treatment of detainees and very sensitive on civil liberties issues were lost by the Republicans years ago, and people that think you do what you have to do in a time of war, no matter what, aren’t going to vote for Democrats.’’

The best electoral approach, suggests Jeremy Rosner of the Democratic polling firm Greenberg Quinlan Rosner, is to say, ‘‘We’re grounded not just in abstract ideas, we’re concerned that these policies are hurting our own ability to wage the war on terror: by putting our own troops in danger if they’re captured, or by undermining our own moral legitimacy.’’

In other words, some Democratic strategists are busy figuring out ways to talk about traditional civil liberties issues without using the words ‘‘civil’’ or ‘‘liberties.’’

Drake Bennett is the staff writer for Ideas. E-mail drbennett@globe.com