Why War Can Be Good For Civil Liberties

This op-ed by Nathaniel Frank points out that our shortage of troops in crucial specialized positions in Iraq has been caused in part by the discharge of gay and lesbian soldiers who could have staffed positions as translators and other specialists. He argues that it is time for the Clinton era don't-ask-don't-tell policy to be overturned.

Frank's argument suggests an important point about constitutional change. Although we often think of war as a time when civil liberties are compromised, war can sometimes promote the recognition of new civil liberties. For example, Harry Truman's desegregation of the armed forces was spurred on by the U.S.'s victory against a racist regime in Nazi Germany, and the Supreme Court's decision in Brown v. Board of Education was influenced both by the World War II experience and by imperatives of the Cold War as American discovered that it had to win the hearts and minds of developing nations in the struggle against Communism. The movement for woman suffrage that led to the Nineteenth Amendment was spurred on by American's quest to make the world safe for democracy in World War I. Suffragettes chained themselves to the White House gates and pointedly asked President Wilson why he didn't make America safe for democracy as well. And of course, the most terrible war in our nation's history, the Civil War, brought three constitutional amendments, the end of slavery, and what Lincoln aptly called a New Birth of Freedom.

When Americans go to war, they often attempt to explain and justify their actions in terms of their proudest aspirations toward democracy, liberty and equality. But these very same explanations and justifications open the door to criticism that America is not living up to its own ideals. And often what comes from this criticism, made more salient by the fact of war, is increased protection for civil rights and civil liberties.

There is certainly no guarantee that war will help the cause of civil liberties. The Cold War brought us not only Brown v. Board but also McCarthyism. World War I brought not only woman suffrage but also the Palmer Raids. As Mark Graber has pointed out, much depends on whether political leaders in power are generally hospitable or inhospitable to civil liberties before the war begins. But events have a way of forcing the hands of politicians, and my suspicion is that the War on Terror will not be remembered solely for the Patriot Act and the detention of unlawful combatants. Having to tell the world that we are in this struggle in order to bring democracy and human rights to the world will raise, all the more clearly, our own failings in the promotion of democracy and human rights in our own country. It is possible that this will take some time, for the President has not shown himself to be a great friend of civil liberties on any number of dimensions. But if America commits itself to the course that President Bush has sent us on-- the promotion of democracy and human rights, we will discover an almost irresistible pressure to reform our own institutions. Allowing gays to serve openly in the military would be a good start.