Criticism of critics of military tribunals

[Robert Justin Lipkin]

In a message dated 12/7/2001 4:54:07 PM Eastern Standard Time,
Parry at LAW.PITT.EDU writes:


> In other words, he
> didn't have to allege that the critics are aiding the enemy.
>

       I think John Parry is right about this issue. Government officials and
their apologists typically, and unfairly, use the ruse of calling poignant
criticism disloyal--as if to say war automatically and legitimately justifies
stifling legitimate dissent and requires critics to engage in
self-censorship.  Whether this is a 'First Amendment' issue depends on
whether one sees the First Amendment exclusively in doctrinal terms, that is,
in this view a government official can be criticized for speech incompatible
with the First Amendment only if his or her action could possibly be
litigated to a successful conclusion.  For those of us who believe in First
Amendment theory--a coherent explanatory (and perhaps justificatory) account
of the values underlying the doctrine--it is not unreasonable to characterize
an official's castigation of critics as incompatible with the First Amendment
because for us the Amendment includes theory.  For example, the importance of
robust, thorough, and fair debate might be one central value in any
acceptable theory of the First Amendment.  If so, and if a governmental
official unfairly characterizes a critic as disloyal or as aiding the enemy,
then this action might be criticized as intending to stifle the appropriate
kind of debate. It then seems perfectly plausible to criticize the official
for engaging in speech incompatible with our theory of the First Amendment.
One attractive feature of such a theory is that it explains and justifies
doctrine in such a way as help formulate conceptions of institutional design
as well as an informal moral theory of how individuals might act if their
goal is to exemplify constitutional values, even when, or perhaps especially
when, no cause of action exists. Indeed, this might be what the Founders had
in mind when speaking of civic virtue. Consequently, the theory of the First
Amendment might provide a great deal of insight into political conflicts and
therefore even provide informal constraints on executive action without even
the possibility of litigation.

Bobby Lipkin
Widener University
Delaware
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