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VIOLATING CIVIL LIBERTIES IN TIMES OF WAR
by Bryan Gunderson

The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.1
—Louis Brandeis, 1928

The outright violation of civil liberties during wartime is by no means a new phenomenon; rather, as Brandeis suggests, it is a sad history of good men making bad decisions. Like much of the literature that has surfaced since the September 11 terrorist attacks, let us try to add to what B randeis sees as missing—our und erstanding of what is at stake, and the challenges our ci vil liberties face. To understand where our civil liberties stand today, we must see them in comparison to some of our country’s darkest days. Disheartened, we find we have not progressed, and our country’s most shameful moments linger over the startling ly similar events of the day.

Background

During America’s quasi war with France in the late 1790s, President John Adams’s Federalist Party passed the Alien and Sedition Acts, which criminalized criticism of the government. While the acts were seemingly in the interest of national security, all legal action, prosecutions,and convictions were targeted at members of Adams’s rival Republican Party. The Acts, which were largely overturned by Adams’s Republican successor Thomas Jefferson, cast a dark sha dow on Adams and on the recently ratified Constitution through their utter neglect for constitutional principles. This challenge would be the first in a series of black marks on our nation’s history, all of which were seen as expedient measures at the height of war-time tension, and later widely acknowledged to be dramatic setbacks for personal liberty.

The next serious challenge to constitutional principles emerged during America’s Civil War when, on April 27, 1861, President Abraham Lincoln issued a p roclamation suspending habeas corpus, which thereby denied the right of prisoners to bring independent review over confinement. This measure, which sought to curtail the unpopular beliefs of Confederates through illegal detention and confinement, eventually extended its suppression of liberties to sacrosanct First Amendment privileges when Lincoln banned papers unsupportive of the Union cause, including the New York Times. Current Chief Justice William Rehnquist notes in his b ook All the Laws But One: “Remarkably, other New York papers did not rally around the sheets that were being suppressed…. Instead of crying out about an ab ridgement of First Amendment rights—as they would surely do today—their rivals simply gloated.”2 This political gesture, though permitted under the Constitution during wartime, has been widely, and almost uniformly, criticized as one of the most egregious abridgements of civil liberties in American history.

The First World War brought yet another vicious erosion of civil liberties . In March of 1917 , the Espionage Act made it a crime to “ willfully utter, print , write , or publish any dis-loyal , profane , scurrilous , or abusive language” about the United States , or “to cause or attempt to cause, or incite or attem t to incite , insubordination , disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States .”3 The Sedition Act , passed in May of 1918 , reaffirmed this governmental posture of suspicion and suppression by making essentially all criticism of the war effort illegal . In addition , President Woodrow Wilson organized the American Protective League , which soon ventured beyond its duties and quickly becoming “a largely out - of - control , quasi - governmental , quasi - vigilante agency which established a massive spy network across the land.”4 This climate precipitated the notorious Palmer Raids , when Attorney General A . Mitchell Palmer sought to dismantle all organizations that appeared to have an affinity toward communism and deport all aliens associated with those groups. On January 2, 1920 , the raids reached their peak , when some 5,000 to 10,000 alien citizens were arrested in some 30 cities .5

It is out of this same political atmosphere that the famous First Amendment case, Schenck v. United States, emerged in 1919. Charles Schenck, a Socialist Party leader, was accused and convicted of writing, printing, and distributing leaflets condemning the war and urging men to oppose the draft. The Court’s unanimous decision, written by Chief Justice Oliver Wendell Holmes, held that:
The most stringent protection of free speech would not protect a man in falsely yelling fire in a crowded theatre and causing a panic .. . . The question in every
case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.6

Michael J. Klarman, a professor of law at the University of Virginia, said of such detriments to civil liberties, “Sometimes we try to delude ourselves into thinking that the courts will protect us from our worst inclinations,” but in fact “the justices are part o f the same culture that is willing , in times of war, to trade civil liberties for security.”7 This unfortunate reality that frust rated civil liberties in Schenck was reaffirmed again during World War II when the U.S. government interned thousands of Americans of Japanese decent all along the West Coast.

Just a few months after the Japanese bombed Pearl Harbor, Franklin Roosevelt signed Executive Order 9066, which authorized the removal of Japanese from the West Coast, and resulted in the internment of 120,000 Japanese Americans throughout the course of the war.8 Despite compromising constitutional principles,the decision was seen as an appropriate wartime measure and understandable in light of the public’s fear of further attacks. In a recent article in the New York Review of Books, Ronald Dworkin notes, “People’s respect for human and civil rights is very often fragile when they are fright-ened.”9 While it is the Court that ought to be responsible for ensuring that socie ty does not succumb to the fragility that Dworkin points out, in 1944 the Court upheld the internment of Japanese Americans in Korematsu v. United States. In the majority opinion, Justice Black wrote:
.…hardships are a part o f war, and war is an ag gregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser meas
ure. Citizenship has its responsibilities as well as its p rivileges, and in time of war the burden is always heavier.10

While civil libertarians hoped that after World War II the most heinous violations were behind them,they had yet to witness the intolerance of Senator Joseph R. McCarthy and his Red Hunts that tarnished the li ves of many Americans for harboring unpopular political opinions. The Cold War with the S oviet Union renewed very real fears of espi-onage,and created a climate accepting of political persecution. The Cold War was an ideological battle in which p eople believed there were clearly definable right and w rong sides, and consequentially public opinion was easily persuaded to favor eradicating communist sentiment in the United States. In response to these fears,the House Un-American Activities Committee (HUAC) was created. Moreover, Truman enacted his famous Loyalty Oaths, whereby members of the government were asked to vouch for their own loyalty to the American government. On this platform of fear, McCarthy promoted investigations of members of the U.S. government and entertainers in Hollywood suspected to be communists,and almost systematically ruined the careers and lives of those whom he suspected to be too far to the Left.

Noting this brief history of civil liberties in wartime , it should be stressed that the fight over the “balance” between civil liberties and security is a sad but durable tradition in American history. Further, the near universal censure that has surfaced in the wake of these crises of liberty from both sides of the political spectrum suggests what Brandeis saw to be an honest , but nonetheless evident , lack of understanding. We should consider how the current state of our liberties will be seen by our successors , and we should consult our history to see that previous encroachments on liberty by well-meaning men of zeal have almost categorically resulted in the disgrace of the core principles of the Constitution .

The Argument for Civil Liberties Over Security
Despite the above examples and the extent to which past violations ha ve been criticized, some conservative arguments have been increasingly popular since the September 11 attacks. The first claim, which is a commonly employed argument and has some d egree of truth, is that these well-meaning men had no way of accurately judging the threat posed during war time, and thus their push toward autocratic instead of democratic values was justified in the name of security. Those who use this argument claim that students and academics are wrong to criticize the a ctions of yesterday with the vantag e point of hindsight and through the mo ral and political lens o f today. While it is certainly an error to try to explain political decisions using information that was unavailable at the time, I suggest that in all o f these cases, our best scholars and hist orians have managed to avoid this pitfall and rightly view these decisions as embarrassing political mistakes. Acclaimed legal scholar Ronald Dworkin notes, “We are ashamed now of what we did then: we count the Court’s past tolerance of anti-sedition laws,internments, and McCarthyism as among the worst stains on its record.”11 It is this fervor and deep sense of shame from the nation’s leading academics that should lead us to believe that the lessons of history give ample reason to believe that the cur rent curtailing of political and individual liberties is no less foolish than like-minded actions of the past.

Others who subscribe to the conservative side of the argument suggest that the basic mistake of vehemently protecting civil liberties during wartime is, as Judge Richard Posner suggests, “the prioritizing of liberty.”12 This certainly has some credibility, in that the primary role of states is to protect its citizens from external attack. But this argument seems to rule out the notion that by prioritizing security the state may make unnecessary and possibly dangerous encroachments into personal freedom. The left-leaning liberty argument is not blind to the requirements of security. After all if we were all dead, liberty would be of no use. Instead, it sees the need to supply checks on the pursuit of security. By prioritizing liberty we will still take the necessary steps for security, but our solutions will be of the least cost to our lib erties, rather than operating in a framework of security without sufficient consideration of our liberties.

The USA PATRIOT Act

After visiting Ground Zero, the former site of the World Trade Center, Supreme Court Justice Sandra Day O’Connor remarked, “We’re likely to experience more restrictions on personal freedom than has ever been the case in this country.”13 O’Connor’s disheartening prophecy was borne out by the USA PATRIOT Act, short for the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. The 342-page piece of legislation passed into law Oc tober 26, 2001,and with little public debate won an overwhelming majority in the House, where the vote was 356 to 66, and a near unanimous vote in the Senate at 98 to Russ Feingold. Drafted almost as quickly as it was passed, the USA PATRIOT Act allows abridgements of civil liberties commonly associated with the ugliest hours in our country’s history. Attorney General John Ashcroft asked for new and less restrained authority to limit information, conduct searches,and detain suspects. The discussion below will examine some of the more vicious infringements within the USA PATRIOT Act, and explore the ways that these changes have already begun to affect our lives.

The act places free speech,the right to associate, and the right to g eneral political dissent in jeopardy by creating a dang erously broad definition of “domestic terrorism.” This federal crime extends to “acts dangerous to human life that are a violation of the criminal laws” if they “appear to be intended . . . to influence the policy of a government by intimidation or coercion” and if they “occur primarily within the t erritorial jurisdiction of the United States.”14 The breadth of this definition makes it susceptible to rashly conservative readings by federal law enforcement, which could begin to create an environment where political protest is synonymous with “domestic terrorism.”

In addition to the potentially heavy checks on the First Amendment , Section 213 of the act authorizes sweeping changes to the acceptable way of collecting evidence . Investigators can conduct secret searches , so long as the potential exists for the search to be more successful . To justify this delay of notice the court only needs to find a “reasonable necessity ”15 for the search . This scaling back of Fourth Amendment privileges is compounded by the fact that the court may decide when to issue the notification of the search , so long as it is within a “reasonable period .”16 Under the old, stronger standards , the courts were responsible for some sort of judicial review; under these new dramatically relaxed standards , where only reasonability need be established , the courts lose much of their power of judicial review, and have become , in essence , a rubber stamp. While this lower standard might be justified in the short term and in very specific circumstances , Nancy Chang, from the Center For Constitutional Rights , points out that “Section 213 is not limited to terrorism investigations , but extends to all criminal investigations , and is not scheduled to expire .The drastic reduction in the level of evidence needed to conduct searches , the wide span of the law, and the lack of a “sunset clause” should all give reason for worry.

Under Section 215, the FBI is allowed to apply for court orders mandating the production of “any tangible things (including book s , records , papers , documents , and other item s ) ,” so long as those items are sought “to protect against international terrorism or clandestine intelligence activities .”1 8 As Chang notes quite aptly, “The FBI need not suspect the person whose records are sought of any wrongdoing. Furthermore , the class of persons whose records are obtainable under Section 215 is no longer limited to foreign powers and their agents , but may include United States persons .”19 Book sellers and librarians have also expressed fears because Section 215 “allows the FBI to demand from book stores and libraries the names of books bought or borrowed by anyone suspected of ‘ involvement in internal terrorism or clandestine intelligence activities .’ ”20 This stresses the real extent to which the USA PATRIOT Act can disturb the daily lives of lawful citizens : in the case of Section 215, probable cause and reasonable suspicion can be disregarded by the courts and the FBI, and the scope of an investigation can go virtually unchecked .

Under Section 216 of the USA PATRIOT Act, government attorneys are now authorized to conduct more widespread e-mail surveillance and wiretapping. These relaxed standards with regard to surveillance allow monitoring of computers and phone lines not based on content but simply on “dialing, routing, addressing and signaling informa-tion.”21 Since content does not merit mention within the act, surveillance has the potential to span far b eyond its legitimate bounds. As Chang explains, Section 216 also authorizes the installation of the new tracking system colloquially called Carnivore. She writes: “Once installed on an Internet Service Provider (ISP), Carnivore devours all of the communications flowing through the ISP network—not just those of the target of surveillance but those of all users—and not just tracking information but content as well.”22 Though the FBI claims that Carnivore limits surveillance to only those items specified in the court order, the truth of this claim has yet to be tested.
Perhaps the most discussed challenge that the USA PATRIOT Act poses to civil liberties is its t reatment of immigrants. Section 412 dramatically increases the power of Attorney General John Ashcroft. He is now allowed to detain non-citizens for up to seven days. After the seven days,he can either choose to bring charges or enter the suspect into deportation proceedings. In the event that the deportation proceedings cannot be carried out, he can detain the suspect for as long as he likes, so long as he has “reasonable grounds to believe” that the suspect is related to or engaged in terrorist activities.23 The fear among civil libertarians is that this practice will soon encroach on the lives of immigrants who have nothing to do with terrorist organizations. As we have already seen with the massive and secretive detentions in which suspects have been held without charge in substandard conditions for months without attorney privileges,the implementation of the USA PATRIOT Act may be even more restrictive than anticipated.

The overarching secrecy that pervades almost every aspect of the USA PATRIOT Act ought to incite worry in all o f us. George Bush always says “Justice must be done.” The question we might now ask ourselves is—if everything is secret, how will we know?

Where We Stand Now
On October 23, 6 0 - ye a r-old Ba rry Rei n gold com p l a i n ed at his local gym , “This war is not just abo ut get ting terrori s t s , [ i ] t’s also abo ut mon ey and corpora te oil prof i t s .”2 4 S h ort ly t h ere a f ter, FBI agents arrived at Mr. Rei n go l d ’s San Fra n c i s co home to qu e s ti on his po l i tical bel i efs . On October 26, the FBI vi s i ted the home of co ll ege freshman A . J. Brown to i nve s ti ga te an “u n - Am erican po s ter.”2 5 While the po s ter tu rn ed out to be of little intere s t to the FBI, the agents alerted Brown that they knew her mother had served in the U. S . m i l i t a ry, and then inqu i red as to wh et h er she had any pro - Taliban materi a l s .2 6

In December, a researcher from the University of California at San Francisco asked that two local AIDS protesters, who were “accused of making harassing and obscene telephone calls to newspaper reporters and public health officials,” be investigated under the new domestic terrorism law.27 Though the FBI d eclined to conduct the investigation, the already internalized idea that there is a new and broad definition of domestic terrorism, and that it could be used to try activists,fundamentally puts into question how much w e value political dissent. In a similar vein, police in Denver were found keeping hundreds of files on peaceful protesters. The files, which represented an attempt to keep a watchful eye on local dissenters, list groups and individuals as “criminal extremists,” despite no compelling evidence that would suggest such a harsh moniker.28 The policy of keeping files on activists was met with widespread disgust, and the mayor has called for an examination of police policy.
The expansion of executive power authorized by the USA PATRIOT Act is emerging and the fear that pushes democracies toward autocracy is beginning to manifest itself. We should see these distur bing examples as clear warnings o f the possible.

Some Sensible Conclusions

The notion that the way we ought to stop terrorism by curtailing the rights we hold dear is misguided. Rather than invading personal privacy in hopes of collecting potentially helpful information, we should question and r eform the factors that fuel terrorism. There is simply no way to stop terrorism. It may never be completely eradicated from our lives. What we can do is carefully evaluate which approaches are both most eff ective and most durable. Rather than degrading the status o f our constitutional principles, we need a response that seeks to e radicate the actual motivation to commit terrorist acts.

The necessary response that can pot entially facilitate an environment where motivation to commit acts of terrorism diminishes can be viewed through two different lenses. The first,and clearly the easier answer to a foreign attack is to respond to terror attacks with aggressive military force. The alternative would require leaders to see past this kind of revenge mentality and look instead into a much more subtle, productive, and challenging arena. The complex response requires visionary and long-sight ed political leadership, the likes of which have historically been rare. Rather than respond to attack with guns, we should respond with food, education, diplomacy, and aid.
The rights and civil liberties that are being violated are those same rights that we are fighting to ensure. This paradoxical posture on behalf of the Bush administration—both waging war in defense of American values and simultaneously distur bing those same values—is perhaps the fundamental problem with the war on terrorism. Certainly, the “evil”that we face must be eradicated. However, if we choose to abandon our liberties, then what are we fighting for?

Bryan Gunderson is a student at Bard College and attended the Bard Globalization and International Affairs program in spring 2002. He interned at the Center for Constitutional Rights.

1 Olmstead v. United States, 277 U.S. 438 (1928).
2 William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime (New York: Vintage Books, 1998), p.
47.
3 65 Cong. 75, 40 Stat. 533 (1918).
4 Robert Justin Goldstein, Political Repression in Modern America: From 1870 to 1976 (1978), p. 111.
5 David Masci and Patrick Marshall, “Civil Liberties in Wartime,” CQ Researcher 11, no. 43, (2001), p. 1030.
6 Schenck v. United States, 249 U.S. 47 (1919).
7 Robin To n e r, “Civil Liberties vs. Security: Finding a Wa rtime Balance,” New York Ti m e s , November 18, 2001, p. A 1 .
8 Ibid.
9 Ronald Dworkin, “The Threat to Patriotism,” The New York Review of Books, February 28, 2002.
10 Korematsu v. United States, 323 U.S. 214 (1944).
11 Dworkin, Op. cit.
12 Richard A. Posner, “Security Versus Civil Liberties,” The Atlantic, December 2001, p. 46.
13 Linda Greenhouse, “In New York Visit, O’Connor Foresees Limits on Freedom, “ New York Times,
September 29, 2001, p. B5.
14 USA PATRIOT Act § 802, amending 18 U.S.C. § 2331.
15 USA PATRIOT Act § 213, amending 18 U.S.C. §3103a.
16 Ibid.
17 Nancy Chang, “The Silencing of Political Dissent: How the USA PATRIOT Act Undermines the Constitution,”
Center For Constitutional Rights, (New York: Open Media Pamphlet Series, 2001), p. 5.
18 USA PATRIOT Act § 215, amending 50 U.S.C. 1862(a)(1). 19 Chang, p. 6; FISA defines the term “United States persons” to include United States citizens and lawful per
manent residents. See 50 U.S.C. §1801(i).
20 USA PATRIOT Act § 215, amending 50 U.S.C. 1862(a)(1); Nat Hentoff, “The FBI Among the Bookshelves,”
The San Diego Union-Tribune, February 25, 2002, p. B6.
21 USA PATRIOT Act § 216(c)(3) amending 18 U.S.C. §3127(4).
22 Chang, p. 7.
23 USA PATRIOT Act § 412(a), adding 8 U.S.C. §1226A.
24 Kris Axtman, “Political Dissent Can Bring Federal Agents to Door,” Christian Science Monitor, J a n u a ry 8, 2002.
25 Ibid.
26 Matthew Rothschild, “The New McCarthyism,” The Progressive, January 2002, p. 18.
27 “FBI Declines to Investigate Activists,” Los Angeles Ti m e s , December 11, 2002, California section, part 2, p.
7 ; Metro Desk.
28 “Denver Police Files Raise Rights Concerns,” New York Times, March 14, 2002, p. A25.