Civil Liberties in Wartime: Lessons from the Past/Concerns for the
Presentation as Part of Chippewa Valley Civil Liberties Board of Directors'
at the April 15, 2003 Iraq War Teach-In
Sponsored and Conducted by
Eau Claire Staff and Faculty for Peace and Justice
The collapse of Saddam Hussein’s regime in Baghdad does
not bring to the end either the War in Iraq or the greater ongoing war of
the U.S. state against what it chooses to designate as worldwide “terrorism”
and global forces of “evil.” Civil libertarians argue that these represent
extremely dangerous times, in which imperialism and state terrorism threaten
to erode and potentially even eliminate fundamental freedoms that supposedly
distinguish living in the United States from living under a fascist or totalitarian
regime in a police state. Yet by examining the history of suppression
of civil liberties during wartime in this nation’s past we can better recognize
and respond to dangers present today.
During every major war America has fought throughout its
history our government has imposed restrictions on the civil liberties of
our citizens. Specific motivations have varied, but always with the
common aim, as Declan McCullah puts it, of "quelling dissent, silencing criticism
of political decisions and preserving the national security."
The writ of habeas corpus is Latin for "produce the body."
It is employed to bring an arrested suspect before a court to ascertain whether
or not this detention is legally justified, and it provides the occasion
at which decision on such matters as extradition, bail, and prosecutorial
jurisdiction are made. The United States Constitution, Article I, Section
9, paragraph 2, declares, "The privilege of the writ of habeas corpus shall
not be suspended, unless when in cases of rebellion or invasion the public
safety may require it." During the American Civil War President Abraham
Lincoln suspended the writ of habeas corpus by executive order, without seeking
approval from Congress. This suspension enabled the U.S. military to detain
thousands of people and put them in prison under martial law, without needing
officially to prosecute, even to charge, many of them. Lincoln suspended
the writ of habeas corpus ostensibly to target Confederate spies or others
who aided the rebel cause, interfered with the process of military enlistment,
and refused the draft. At the same time, however, those targeted included
potentially anyone judged to be guilty of disloyalty to the state.
All arrested were denied their sixth and seventh amendment rights to a speedy
trial and to a trial by a jury of their peers. Instead of jury trial
they were in fact adjudicated, if at all, according to the special powers
granted under emergency conditions to an ad hoc military court.
In addition to suspending the writ of habeas corpus, Lincoln
also abrogated these Americans’ supposed fundamental right of free press
and freedom of speech during the War. Again, the first amendment to
the U.S. Constitution grants citizens and residents of this country the right
to free speech, freedom of religion, a free press, and free, peaceful assembly.
Yet Lincoln went so far as to close down post offices to stop anti-war publications
and their distribution, again without seeking consent of Congress.
All of this was quite ironic given Lincoln’s own personal history as a fiercely
outspoken public critic of President James K. Polk and the Mexican-American
war of ‘manifest destiny’ fought during Polk’s term in office, while Lincoln
was himself an Illinois representative to the U.S. House of Representatives.
Of course, some might well argue that Lincoln’s declaration
of martial law and his seizure of super-constitutional powers was justified–that
it was necessary during the time of the Civil War– yet this kind of argument
can easily lead us down a slippery slope, especially when used as a precedent
for wars that in no way threaten the stability of the nation to the extent
the Civil War did. When “war” is interpreted as loosely as it
often has been in contemporary times, and when perceived threats to “national
security” seemingly constantly lurk everywhere about, we run the risk of
surrendering war powers to the executive in situations where this is entirely
unnecessary, and unjustified. For instance, the Seattle city administration
declared martial law by the end of the first day of protests against the
World Trade Organization in late November-early December of 1999, thereby
converting into a police riot a massive peaceful gathering of marches and
rallies as well as limited acts of non-violent civil disobedience–all of
which had been announced to authorities far ahead of the protest. As
the ACLU and other human rights and civil liberties organizations have extensively
documented, and as Seattle and Washington state officials have subsequently
admitted, this imposition of martial law proceeded without any reasonable
justification, fomented a crisis that it was ostensibly designed to prevent,
and in fact did little more than bluntly illustrate how often the state continues
to side with the interests of the rich and the powerful against the mass
of the people seeking to exercise their constitutional rights, and to take
seriously the idea that we in the United States live in a democracy of the
people, by the people, and for the people.
My allusion to Lincoln in this last phrase is, moreover,
intentional, as what I have previously described about Lincoln’s willingness
to suspend and violate Americans’ civil rights indicates that the citizens
of this nation must remain ever vigilant in working to protect and secure
these rights, not simply trusting our government to take care of this for
us, not even those in government who previously or otherwise represent seemingly
highly enlightened positions. If we surrender the right to govern ourselves
entirely to those actually serving in official governments positions, and
we remain ignorant or indifferent to what these people are doing with the
power we have delegated to and invested in them, then we are not actually
exercising our rights, or our responsibilities, as citizens of a genuine
democracy, where we, the people, are the ones who, at least supposedly, are
the ones who rule.
Returning, however, for the moment to U.S. history, the
period after World War I was a time of considerable political and economic
upheaval across the globe. The old world order was collapsing and new
social and revolutionary movements were underway throughout much of Europe
– and beyond. Millions were uprooted, disoriented, and frightened.
Here in the U.S., cities were bursting with new immigrants poorly housed
and working under dangerous industrial conditions. Labor strikes led
to violent demonstrations and riots. In 1919, bombs exploded in eight
cities, including one on the doorstep of U.S. Attorney General A. Mitchell
Palmer’s Washington townhouse.
Palmer responded swiftly, creating a new General Intelligence
Division within the Justice Department to hunt down radicals, left-wing groups
and aliens. He put 24-year-old lawyer J. Edgar Hoover in charge.
Over a two-month period in 1920, agents swooped down on suspected Bolsheviks
in union halls, bowling alleys and private homes in 33 cities, arresting
6,000 people, most of them, conveniently, recent, and especially non-English-speaking
The Palmer Raids trampled the Bill of Rights, making arrests
without warrants, conducting unreasonable searches and seizures, wantonly
destroying property, exercising physical brutality against suspects, and
detaining suspects without charges for prolonged periods. Palmer’s
men also invoked the wartime Espionage and Sedition Acts of 1917 and 1918
to deport noncitizens without trials, shipping 249 to the Soviet Union.
The people who sent the bombs that instigated the Palmer Raids in fact were
never discovered, never arrested, never charged, and never punished.
Immigrants frequently make tempting scapegoats in time
of real or perceived national crisis. Bomb blasts, labor strikes, crime,
war, and social unrest have at many points in U.S. history caused some Americans
to look askance at relative newcomers in their midst. Set apart by
accent, mannerism, or physical appearance, these immigrants are usually easy
to spot and to suspect, particularly if they live in immigrant communities.
Suspicion has greeted every wave of immigrants since the
late eighteenth century, including the Irish who fled their homeland during
the Great Potato Famine to the Southern Europeans, Eastern Europeans, and
Chinese refugees who arrived soon afterward. Cries for the registration,
detention and deportation of aliens have followed nearly every war in the
last century. Mandatory finger-pointing, loyalty oaths and denials
of due process have been put forward with numbing frequency as responses
to the distrust that has periodically gripped the country.
The Palmer Raids, the McCarthyite Red Hunts, and the recent
Ashcroft power grab notwithstanding (the last represented by the Bush administration’s
devising and passage of the U.S. Patriot Act, with its potential successor,
the so-called ‘Patriot Act II’ already in the works), there has not been
a more harrowing abuse of power since the end of slavery than the government's
response to the Dec. 7,1941 bombing of Pearl Harbor. At that time Lt.
Gen. John L. DeWitt, military commander of the Pacific Coast area,
set up a military zone running from the Canadian to the Mexican borders,
covering portions of eight states, from which 120,000 Japanese American citizens
as well as aliens would be evacuated to internment camps. To justify
such harsh measures, General DeWitt cited the threat of Japanese-American
espionage and the danger of an attack on the West Coast. However, according
to the Justice Department's own files–opened four decades later through the
Freedom of Information Act– the military report on which DeWitt relied was
riddled with "lies" and "intentional falsehoods."
On Feb. 19,1942, President Roosevelt issued Executive
Order 9066 authorizing the internment. Soon afterward, the ACLU denounced
it –sending letters of protest to the president and the secretary of war.
Arthur Garfield Hays, general counsel for the ACLU, cited the "injustice
and hardship to American citizens of Japanese ancestry who are loyally serving
by the thousands in our armed forces but whose citizen relatives are not
permitted to occupy their homes."
Still, in the panic sweeping the country, the administration
was unmoved. And, after much internal controversy, the ACLU National
Board adopted a resolution on June 22,1942, outlining four grounds for legal
challenges to the internments: the absence of clear military necessity, racial
discrimination, the lack of individual hearings, and detention.
In the pressure of wartime, people tended to rally around
the president, and even the ACLU board was divided on internment. But
the ACLU's West Coast affiliates and staff in northern and southern California
had already committed themselves to representing individuals who stood in
defiance of the evacuation and internment. The ACLU of Northern California
directly represented Fred Korematsu, a 23-year-old draftsman who defied the
evacuation order; and the ACLU of Washington state came to the defense of
Gordon Hirabayashi, a Quaker college student who refused to register for
The cases went all the way to the U.S. Supreme Court.
On June 21, 1943, in a decision written by Associate Justice Harlan Fisk
Stone, the Court upheld the conviction of Korematsu. "We cannot close
our eyes to the fact that in a time of war residents having ethnic affiliations
with an invading enemy may be a greater source of danger than those of a
different ancestry," it said. In a larger question on the limits of
war power, the High Court voted 6 to 3 on Dec. 18,1944 to accept the government's
argument that mass evacuation was necessary because "it was impossible to
bring about an immediate segregation of the loyal and disloyal."
Forty years later, Korematsu's conviction was overturned
by a federal judge in San Francisco on a petition filed by the sons and daughters
of Japanese-American internees. But it took 45 years for the government
to acknowledge its wrongful actions and authorize $20,000 in reparations
to each surviving victim.
In fact, it is worthy of note that for more than half
its history the United States got along without a general-purpose investigative
agency. Many people do not realize that the Federal Bureau of Investigation
did not come into being (as an investigative force within the Justice Department)
until 1908. Or that it was established not by an act of Congress but
by executive order of a long-forgotten attorney general. Its history
provides a vivid example of how bureaucracies are created and how, once entrenched,
they can become rife with abuse.
From its inception, the Bureau of Investigation (as it
was called until 1935, when it acquired its present name) abused its investigative
authority. With America's entry into World War I, it rounded up thousands
of young men as suspected draft dodgers–only to conclude that most were not
draft dodgers after all. J. Edgar Hoover worked to build its reputation
with the highly publicized capture of a handful of gangsters–but was most
involved in leading politically inspired spying.
At his instigation, the bureau set up a series of secret
police operations within the Justice Department that investigated people
because of their ethnic or racial backgrounds or political views, used its
intelligence apparatus to disrupt and discredit anti-war and civil-rights
activists, and harassed people like the Rev. Martin Luther King Jr., who
posed no threat of violence or illegal activity. It not only spied
on law-abiding Americans, it also used burglary, blacklisting and agents-provocateurs
to entrap them. The bureau even mailed letters with compromising information
to people's spouses in attempts to destroy their marriages. Covert
activity became such an obsession of Hoover’s that he reportedly kept voluminous
files not only on alleged subversives but also on political opponents, celebrities
and colleagues–because of their political views or their lifestyles.
The worst of those abuses came to light in a series of
high-profile congressional hearings convened by U.S. Senator Frank Church
in 1976. Spy operations included COINTELPRO, created to harass and
spy on peaceful social protest groups; STOP INDEX, which tracked and monitored
the activities of anti-war activists; CONUS, which collected more than 100,000
files on political activists during the Cold War; and "Operation Chaos,"
which spied on peace activists during the 1960s.
In the 1970s, with Congress and the public reeling from
the shock of these disclosures, the ACLU proposed eliminating the bureau's
domestic intelligence role altogether. It also proposed: drastic curtailment
of the government’s power to classify information as secret, a ban on retaliation
against whistle blowers, a ban on lying by intelligence officers about prohibited
activities, and remedies for those whose rights had been violated.
Under intense pressure from lawmakers, the public and groups such as the
ACLU, the FBI finally agreed in 1976 to rein itself in. The bureau
refused to get out of the spy business altogether, but it did voluntarily
limit its spying to situations in which criminal conduct was suspected –
until 2002, when our present U.S. Attorney General, John Ashcroft, rewrote
Long before Sept. 11, The Alien and Sedition Acts of 1798,
criminal restrictions on speech during World War I, the internment
of Japanese Americans after Pearl Harbor, and the Cold War spying and blacklists
all represented seizures of power in times of crisis that later generations
would regret. And anti-terrorism laws passed by Congress in 1996 and
2001, after the Oklahoma City bombing, further weakened the Judiciary's ability
to curb excesses.
Congress in fact moved quite precipitously after Oklahoma
City to block access to the courts for immigrants facing deportation, prisoners
and inmates on death row. That legislation, though enacted to provide
"swift punishment of terrorists," could readily be used to limit the rights
of many far less narrowly defined groups as well. Indeed, its
provisions have already added to the chaos and sloppiness of a capital punishment
system so fraught with error that at least 100 innocent men and women have
been sentenced to death since 1972. It has shattered lives and families
of undocumented immigrants by speeding deportations and blocking asylum for
those fleeing persecution, and thwarted attempts to improve prison conditions
with especially dire consequences for women, children and the mentally ill.
No one could have guessed how quickly and easily those
excesses would be eclipsed by even more blatant denials of due process.
But The USA PATRIOT Act greatly further impairs the courts' traditional roles.
Under many of its provisions judges exercise no review whatsoever, reflecting
the current administration's distrust of the judiciary as an independent
safeguard against abuse of its authority.
The independence of the federal courts has been under
siege almost since their creation. At various times in America's
history, partisans have tried to limit the courts’ ability to intervene in
labor disputes, have opposed court rulings invalidating loyalty oaths, and
have tried to strip courts of their jurisdiction over draft issues.
Court-shackling efforts mushroomed in the 1970s and ‘80s. As members
of Congress sought to overturn busing, school prayer and abortion decisions.
In the 1990s. Congress tried to legislate the constitutionality of
posting the Ten Commandments on government property, rather than leaving
that to the courts. But few administrations have been as openly
contemptuous of the courts as that of George W. Bush which, by its
outright defiance and circumvention of judges and juries, has treated them
as an encumbrance.
Crises tend to encourage violations of due process.
But as U.S. Supreme Court Justice Robert Jackson said in 1943: "The very
purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes
of political controversy, to place them beyond the reach of majorities and
officials, and to establish them as legal principles to be applied by courts."
Long-term vigilance is essential, because the war on terrorism,
unlike conventional past wars, seems unlikely to come to a visible, decisive
end any time soon. Any civil-liberties restrictions imposed may be
with us for a very long time. So long, in fact, they may change the
very notion of freedom in America and the character of our democratic systems
in ways that few Americans actually desire.
Our democracy is, at least supposedly, built on principles
of free speech and due process of law. These principles encourage each
and every one of us to speak up in our firm conviction that by so doing we
strengthen what is best about our nation, and the values to which our political
leaders so often pay lip service. When Americans question whether the
new anti-terrorism laws are upsetting the system of checks and balances that
are fundamental to our democracy, we are fulfilling a basic civic responsibility.
And when we decry the detention of hundreds of immigrants for reasons that
have nothing to do with the Sept. 11 terrorist attacks, we are performing
a necessary task. True patriotism requires that we question and
challenge our government, defending the rights and freedoms of all.
During wartime the responsibility of true patriots is
to defend the freedoms guaranteed by the Bill of Rights to American citizens–and
to all people living and working in the United States. Unpopular and
minority positions must be protected, and the right of dissent not only respected
but also in fact treasured, if we are not to collapse into the kind of society
we are, at least supposedly, fighting against. Americans should not
forget the massive damage and the extreme fear caused by the anti-Communist
witch-hunts of the 1950s conducted by the House Un-American Activities Committee,
Wisconsin Senator Joseph McCarthy, and allied groups, including the imposition
of loyalty oaths as conditions of employment (such as those required by the
Taft-Hartley Act of all union officials), and the deportation, blacklisting,
firing, and literal persecution of thousands never legally arrested, arraigned,
prosecuted, and convicted of committing an actual criminal offense.
At the same time, the Alien Registration, or Smith, Act, together with the
Internal Security, or McCarran, Act, effectively waived all right of due
process for communists and other left-wing radicals the Federal government
chose to designate as actual or potential security threats; opposition to
the capitalist organization of American society, including in the form of
peaceful, non-violent efforts to build mass movements for social transformation
in the direction of socialism constituted “anti-American behavior” potentially
sufficient in and of itself to lead to imprisonment without adjudication
and to deportation without trial.
At present, Attorney General Ashcroft seeks to close courts
to the public and the media in deportation hearings, violating not only sixth
amendment rights to a fair trial but also first amendment rights to freedom
of speech and the press. The latter violation becomes yet greater with
the Ashcroft administration’s pressure to enact the explicit requirement
that court reporters seal all court records as confidential and never speak
with anyone about what did transpire during these hearings.
Today, fourth amendment protections against unreasonable
search and seizure have been even more severely compromised, as law enforcement
authorities no longer need go through the court process to obtain a warrant
in relation to any government-designated actual or potential threat to national
security. Once apprehended, those accused of terrorist-related crimes,
or of other threats to national security, can also now be detained for lengthy
periods of time without charge, without access to the evidence used against
them, and without the right to seek help from a lawyer–all violations of
fifth amendment rights to due process.
Detaining these people for such lengthy periods without
charge, and trying them before military tribunals as opposed to civil courts,
further violates sixth amendment rights to fair and speedy trial, as well
as seventh amendment rights to trial by jury. Increasingly widespread,
and well-documented, reports that the U.S. government now accepts torture
as constituting a legitimate method of interrogation for those considered
“terrorists,” or for those accused of in any way potentially aiding and abetting
terrorism, leads beyond this to violation of eighth amendment rights to protection
from cruel and unusual punishment, and so does the routine detention of these
suspects in conditions of severe deprivation at the most primitive and backward
of prison camps and facilities.
What’s more, federal seizure of the power to determine
and adjudicate over what does and does not constitute threats to national
security represents a violation of states’ rights to relatively autonomous
self-governance under the tenth amendment, while the use of ethnic and racial
profiling to target suspected terrorists, as well as suspected “supporters
of terrorists,” violates fourteenth amendment rights of equal protection
under the law.
Today, the U.S. Attorney General has ordered those working
under his authority to refuse Freedom of Information Act requests for citizens
to examine the records federal agencies maintain in all “suspicious”cases,
and it is now legal as well for federal agents to electronically eavesdrop
on previously guaranteed confidential attorney-client conversations so as
to gather now perfectly admissible evidence for civil as well as criminal
charges in any and all cases deemed suspect of constituting a potential “terrorist”
threat, or another kind of serious threat to national security.
At the same time, although the Justice Department has
bowed to criticism and temporarily scaled back its proposed “Terrorist Information
and Prevention System” encouraging citizens to spy on their neighbors and
service workers to spy on their customers, by reporting any and all “suspicious
activity” to federal authorities, the Justice Department has, by its own
admission, not abandoned its plan to create a civilian anti-terrorist, private
vigilante, police and spy network.
At the Pentagon, the development of the so-called Total
Information Awareness system allows vast amounts of personal data gathered
on potentially all American citizens, and all residents in the United States,
to be collected in a single, central location – including credit card records,
medical records, passports, driver’s and motor vehicle registration licenses,
police citations and jail records, even library and video rental records,
records of postal subscriptions, along with a host of other materials – all
so that “patterns” of “suspicious activity” highlighting potential terrorist
and security threats can be immediately turned over to intelligence and law
enforcement agents. No warrant need be granted to obtain access to
any of these records. These composite records, moreover, to which citizens
on which they are collected are barred access, have received additional official
endorsement with the passage of the Homeland Security Act while they are
now being gathered and administered by the Department of Homeland Security.
Carnivore, and other, similar kinds of internet snooping
tools, allow the FBI to read through e-mails and web searches to look, once
again, for patterns of suspicious activity, while the Patriot Act makes it
entirely legal for the FBI do this, and severely restricts citizens’ right
to know whether this is or not happening, in what ways, and to what ends,
as well as likewise severely limiting their right of grievance against its
abuse. Likewise, the Patriot Act and the Homeland Security Act both
greatly increase the ease and the legality of our government’s right to spy
on American citizens and others living in the U.S. by means of cameras, videocameras,
audio recordings, and electronic bugs. Satellites used for broadcasting,
long distance calls, cellular phones, and many everyday technological conveniences
also now becomes increasingly legally viable sources for extensive domestic
spying, at the same time as various federal agencies are working together
to institute a national id and even, prospectively, biometric photoprinting
devices capable of keeping visual equivalents of fingerprints for all of
us, and not just for those officially charged with the commission of a crime.
And finally, the Immigration and Naturalization Service has now instituted
profiling requiring all non-immigrant men over the age of 16 from 18 Muslim
countries, Eritrea, and North Korea to submit to special registration and
report-back practices not required of peers from any other foreign countries,
while the new Computer-Assisted Passenger Pre-Screening System will ultimately
enable airlines to make use of secret government data bases on every passenger
so as to determine whether the passenger constitutes a red, yellow, or green
level risk, and this can quite easily lead to those targeted as risks facing
additional special scrutiny, even referral to law enforcement authorities,
followed by detention – all without legal right of grievance for cases where
erroneous charges are made.
A serious problem with most of these new measures, for
even those who tend to trust the government as our great protector, is that
they sweepingly target a potentially extremely broad mass of people, the
vast majority of whom in no way constitute any serious terrorist or national
security threat whatsoever, and they do so in highly indiscriminate and inefficient
ways, without working seriously to focus on rooting out those who are actually
committed to perpetrating these crimes. As a result, these measures
prove far more effective at scapegoating specific so-called “suspect populations”
as whole groups, targeting those who dissent from dominant popular opinion
no matter what the nature or direction of their dissent, and spreading fear
concerning the dangerous consequences that might follow from exercising democratic
rights. This in turn causes people to retreat from civic engagement
and from the intellectually as well as ethically responsible questioning
of our social and political authorities in the interest of contributing to
social and political progress. In effect, this lead us to the position
where, in order to make sure that we are safe from our government, we must
accept that the way things are is they way they have to be – that they simply
cannot be changed, at least not by us. We thereby end up with an ever-more
fearful, fractured, inwardly focused, ignorant, disaffected, disconnected,
disengaged, and easily manipulated American populace and American popular
culture: a prime recipe for fascism. The ACLU and other civil liberties
organizations fight on vigilantly in attempting to prevent this tragedy from
fully overtaking our nation and from undermining the best values and principles
we as a nation have stood for – and we believe still should and must stand
* This speech incorporates material from the American Civil Liberties Union
publication Civil Liberties After 9/11: the ACLU Defends Freedom.
For more information on this text, other relevant materials, and the issues
addressed in this speech, check out the ACLU’s website: http://www.aclu.org
This material is copyrighted (©)
Professor Bob Nowlan
Last Update: April 24, 2003