Centralize even more power and curtail even more civil liberties
Friends,
One of my goals in writing this letter to you every day is to alert you to dangers to our democracy so you can alert others, who then alert others, and by this means we enlarge and strengthen our bulwark against the tide of fascism.
Wars pose particular challenges to democracy because nations
at war often become more xenophobic and willing to give those in power extra
leeway to protect the homeland. That’s an underlying danger in Trump’s war with
Iran.
Trump has already tried to use three pretexts to usurp power
— terrorism, national emergency, and war itself — to justify his mass
deportations, universal tariffs, and consolidations of power. And he has tried
to use these to gain legal legitimacy under laws that give presidents
additional power when the nation is threatened.
Federal courts and public opinion haven’t allowed him to go
as far as he wished. But if Trump’s war with Iran escalates — which it’s almost
certain to do if Iran retaliates — courts may be reluctant to impede a
commander-in-chief and the public may be willing to go along.
I fear that Trump’s war with Iran will enable him to use
these three pretexts — terrorism, national emergency, and war — to further
suppress dissent at home, narrow freedom of speech and expression, make
warrantless searches and arrests of Americans, imprison opponents, and put more
military onto our streets.
Terrorism
The use of terrorism has already begun. A bulletin issued
just yesterday by the National Terrorism Advisory System within the Department
of Homeland Security warns of a "heightened threat environment in the
United States" following the U.S. military strikes on Iran’s nuclear
sites.
The bulletin notes that U.S. law enforcement "has
disrupted multiple potentially lethal Iranian-backed plots in the United States
since 2020," and goes on to warn of Iranian retaliation for Sunday
morning’s attack.
Surely Iran is planning retaliation. During a Sunday phone
call with French President Emmanuel Macron, Iranian President Masoud Pezeshkian
insisted that the U.S. "receive a response to their aggression,"
according to Iran's official news agency, IRNA, as reported by The
Times of Israel.
Any retaliation by Iran will be used by Trump to justify an
intensifying crackdown on “terrorism.”
Even before Trump’s attack on Iran, he appropriated the term
“terrorist” to describe various groups he deemed threats to the United States —
including drug cartels and migrants.
Trump framed the rendition of Venezuelans to El Salvador as
necessary to protect the U.S. from the scourge of “terrorism.” And he described
fentanyl as a weapon of mass destruction.
Now that we are at war with Iran, expect Trump to use the
rhetoric of terrorism far more often, and the Department of Homeland Security
to lead the charge against such threats.
National emergency
In his first hundred days in office this term, Trump
declared eight “national emergencies” — far more than any other modern
president in that same period of time. By comparison, Biden declared 11
national emergencies over his whole four-year term. Obama declared 12 in his
eight years. George W. Bush declared 14 in his two terms.
The declaration of a national emergency automatically allows
a president to use “emergency” powers in laws intended by Congress to be
utilized rarely, when the nation is seriously imperiled.
Trump has been using such so-called “emergencies” to achieve
domestic priorities more quickly than he’d be able to if he tried to pass laws
through Congress.
The pattern began in his first term when he declared a
“national emergency” to help fund the southern border wall after Congress
didn't approve the full amount. His declaration of an invasion on the southern
border paved the way for intensified deportations.
Trump’s declaration of an “economic emergency” in April,
based on the nation’s trade deficit (which has existed for decades), enabled
him to impose unprecedented global tariffs.
An “energy emergency” made it easier for him to ease
environmental regulations. His pronouncement that fentanyl entering from Canada
was an emergency provided legal justification for sanctions, as did a similar
finding on the International Criminal Court’s approach to Israel.
Trump invoked a “national emergency” to justify sending the
National Guard to Los Angeles at a time when state and local officials said
they had the protests there under control. Had he not federalized the National
Guard, Trump said,
“Los Angeles would have been completely obliterated.”
Trump’s stream of emergency declarations has also
contributed to a sense that America is facing perpetual crises, under threat
from foreign nations and domestic enemies. Trump thrives in this atmosphere,
adopting the role of fighter and savior.
His war with Iran will fuel even more “national emergencies”
and the legal authority that accompanies them.
War
Trump has tried to use the 1798 Alien Enemies Act to justify
his mass deportations without due process, but unsuccessfully in the courts
because the Act allows a president to detain and remove nationals of an enemy
nation only during a “declared war,” “invasion,” or “predatory incursion”
against the United States.
The law was invoked only three times before Trump, each
during a war declared by Congress: the War of 1812 (with the United Kingdom),
World War I and World War II. Each gave the U.S. government heightened powers
to remove from the U.S. nationals of the party it was fighting. It was used
during World War II to justify the internment of Japanese Americans and has
since become synonymous with some of the nation’s most shameful civil liberties
violations.
Trump’s attempt to use this centuries-old statute to conduct
mass removals—outside of immigration law, with no hearings or judicial
review—has been another authoritarian power grab posing grave threats to civil
liberties and the rule of law.
On April 7, the Supreme Court reaffirmed that people
targeted by Trump under the Alien Enemies Act must be given notice and an
opportunity to challenge their removal, including arguments over the law’s
constitutionality and application.
Yet a war with Iran may be enough to seemingly legitimize
his use of the Act.
In addition, Trump has not ruled out invoking the
Insurrection Act, which allows the deployment of active-duty U.S. military
personnel within the United States in cases of unrest or rebellion — a prospect
also made more likely when the nation is at war.
Trump wants to be a war president. Everything he has done to
date has been aimed at concentrating power in his hands and undermining
democratic institutions, which are far easier to do as a war president.
I write this not to worry or depress you. My purpose is to
encourage you to be extra vigilant in guarding against Trump’s further use of
these three pretexts to erode democracy and attack our freedoms.
Wars almost always challenge civil liberties. Given Trump’s
record, that challenge could be enormous.
Be safe. Be strong.
