Reviewing Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism, by Geoffrey R. Stone
Geoffrey Stone’s most recent contribution to our understanding of the First Amendment is at once important, current, and fatalistic. It is important in that it meticulously chronicles the ways in which wartime American governments have trampled free speech rights. For instance, when dealing with the Sedition Act of 1798, Stone deftly introduces the complicated politics and personalities of the time, explaining the developing system of political parties, the expanding feud between John Adams (leading the Federalists) and Thomas Jefferson (leading the Republicans), and the myriad influences on the young United States generated by the French Revolution and the associated war between England and France.
Several years ago, I began work on a project that I fancied to be both hypothetical and academic. In the aftermath of September 11, a number of commentators, including one prominent member of the legal academy, advanced the proposition that interrogation by torture in pursuit of terrorists should be viewed as permissible under the United States Constitution when undertaken with procedural safeguards. In an article published in 2003, I argued that these commentators were legally sloppy and morally obtuse: no matter what procedures accompany it, interrogation by torture is both at odds with settled constitutional law as it is and profoundly inconsistent with the legal system as it should be.
The issues provoked by the topic of torture are the subject of ongoing debate, not least because new disclosures, sometimes with accompanying leaked government documents, seem to be published almost every day. The year 2004 almost literally ended with the December 30, 2004, publication by the Justice Department’s Office of Legal Counsel (OLC) of a brand new memorandum on the subject, designed to supplant the now notorious August 1, 2002, mem-orandum to White House Counsel Alberto Gonzales. The New Year began, not altogether coincidentally, with the consideration by the Senate Judiciary Committee of President Bush’s nomination of Gonzales to succeed John Ashcroft as the Attorney General of the United States. Not surprisingly, the issue of torture dominated the testimony.