Swift enough, powerful enough, but do we remember enough?

It's been about a month and a half since Richard Posner -- academic, public intellectual and appellate judge extraordinaire -- published an article in The Atlantic Monthly establishing the boundaries of the immigrant detention and military tribunal debates that have followed in the media.

Not surprisingly, Posner created an economic prism to view the history of law in this country as a tradeoff between liberty and security, because, as he wrote, the Framers "left most of the constitutional provisions that confer rights pretty vague." He poses that liberty is a more malleable right in wartime than many commentators understand it to be. He also, rather typically, claims history as his ally without giving many examples.

But there are examples, even of presidents implementing questionable executive orders -- questionable insofar as some would argue that they usurp legislative authority.

Abraham Lincoln suspended the writ of habeas corpus during the Civil War. Eugene Debs, perhaps the most famous socialist in American history, ran for president from prison due to his opposition to our entry into World War I.

During the Red Scare, it wasn't just Sen. Joseph McCarthy and his cronies on the House Un-American Activities Committee that pilloried communists. The witch hunt took place everywhere, even within many of the country's most liberal organizations. The American Federation of Labor and the Congress of Industrial Organizations ruthlessly rid themselves of Communist members. Our great champion of personal freedom, the American Civil Liberties Union, joined the crusade as well, firing communist employees.

Historically speaking, rights are embedded in a political reality. They do not exist in a vacuum.

But simply proving that civil liberties have been curtailed in the past cannot justify it today. The problem with supporting an argument using history is that whichever forebears you collect to supplement an argument may have made a mistake, one which should not be repeated. Lately, the ACLU has made this point, citing Japanese internment in World War II. Posner addresses this as well: "In hindsight we know that interning Japanese-Americans did not shorten World War II. But was this known at the time? If not, shouldn't the Army have erred on the side of caution, as it did?"

On this point, of course, it is anything but certain that Posner is right. If anything, we should approach precedent with a little more caution, because there is no precedent for the horror of Sept. 11.

But it is also futile to accuse President Bush and Attorney General John Ashcroft of assuming dictatorial power as The New York Times has. Such outlandish accusations are irrelevant. His order, like those of other presidents, will stand -- immigrants will be detained, and terrorists will be tried in military tribunals. The real question is whether or not they should be.

As for immigrants, it is alarming that some foreigners, guilty only of violating their visa obligations, are being detained indefinitely. Certainly all of them are not guilty of terrorism or abetting terrorism, but some of them may be. Zacharias Moussaoui certainly seems to be. And, how can we know that this detention did not save many more thousands of lives?

Now that the lurking, ambiguous attack warnings have dissipated, we are facing the situation with a little more confidence. But there was a reason for every warning. Ashcroft did not warn millions of fearful Americans of a possible attack because of a few crank calls. What if those attacks never happened because those who would have perpetrated them have been in jail for three months?

If that's the price of safety, it is worth it to me. After Sept. 11, safety is a liberty and a right, too.

All in all, it is important to face the present with a wariness of the past, but to remember that the past is not the present. There has never been anything like this, and hopefully, if we are swift enough, powerful enough, careful enough and everything enough, there never will be again. In this struggle, what will be most important is not only freedom, but safety -- not only a preservation of liberty, but also of justice.

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