Before moving on to the Civil War, it may be useful to say a few words about the special problems posed by dissent in wartime. Criticism of the effectiveness of the military, the preparedness of our troops, the morality of the war, the brutality of casulaties inflicted on noncombatants, the number of American casualties, the wisdom of our generals, and so on can easily be seen as the highest form of patriotism. Indeed, the basic premise of democracy is that criticism of the government improves the quality of decisionmaking. On the other hand, such criticism can readily be cast as disloyal.
Civil libertarians are often puzzled by this, but they shouldn’t be. Dissent in wartime may improve the quality of decisionmaking, but it may also and at the same time strengthen the enemy’s resolve. An enemy that knows we are divided and uncertain will fight harder than it we are united and resolute. It knows that even if it cannot win militarily, it might win (or at least obtain a more favorable settlement) because of domestic American politics. Thus, for those Americans who are firmly committed to the war, dissenters are acting treasonably because they are encouraging the enemy and arguably putting American lives at risk. Their response to dissenters is essentially, “Can’t you see what you’re doing? You’re jeopardizing American soldiers! Just shut up!”
Moreover, war unleashes profound passions. Thousands of lives are stake. No one whose child or spouse or friend is in combat wants to hear that he or she is risking life and limb for an immoral purpose. And even less are people willing to hear that when the child or spouse or friend is already dead or grievously wounded. There is a powerful need to rally around the troops and to promise that those who have died have not “died in vain.” In such an atmosphere, it is inevitable that dissent will be equated with disloyalty and that the line between the two will be blurred. We have seen some of this even in the current period.
It’s also important to point out a critical feature of free speech. Few people rationally believe that their decision to sign a petition, send an email, or march in a demonstration will have any effect on national policy. Thus, the benefit to them of speaking out is very small. If they have any reason to fear that doing so will land them in jail, or subject them to government questioning or harassment, or threaten their current or future employment, they will quickly decide that it’s not worth the risk to sign the petition, send the email, or march in the demonstration. This is what we mean by “chilling effect.” The danger, of course, is not just that a lone individual will be silenced, but that an entire segment of the population that would otherwise be critical of the government will be stifled, thus mutilating the thinking process of the community.
Has any of this actually happened since 9/11?