Background
The government's mandate to protect individual civil liberties and provide homeland security is certainly tested during times of war. This dilemma has roots in our history. To help students determine similarities and/or ramifications of civil liberties violations, I am providing a brief description of key cases. These can be used as introductory scripts, key points for a power point presentation, or material for a timeline.
Civil Rights and Civil Liberties
Although these terms have overlapping meanings and interpretations, there is a distinction that can be made. Civil liberties refer to the restrictions placed on the government, leaving the individual the freedom to enjoy constitutional protections. Civil rights refer to the protections that government owes to individuals as citizens or participants of societal groups. Civil rights require that the government protect citizens' rights from interference from others such as racial or gender discrimination. Protection of civil rights requires that the government act on our behalf. Protection of civil liberties usually requires that the government do nothing.2
Civil War
Prior to the Civil War the Constitution with its subsequent amendments governed the people peacefully, for the most part, and kept a check on government control. During the Civil War President Lincoln ordered that suspected political criminals be tried before military tribunals. Lincoln wanted to preserve the railroads, capture spies, discourage men from resisting the draft, and punish those who were disloyal.3
President Lincoln made a decision to suspend the writ of habeas corpus. Habeas corpus says that authorities must bring a person they arrest before a judge who orders the court appearance. The authorities must show the court that there is a legal basis for the person's detention. The U.S. Constitution says: "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." The Constitution does not say who can suspend the writ; but this clause appears in Article I, largely devoted to the powers of Congress. Nonetheless, Lincoln suspended habeas corpus without waiting for Congress to authorize it. Because of this, the government was able to arrest many people, put them in jail, and deny them their right to appear in court to determine if their arrest was lawful. Those arrested were also denied the right to be tried by a jury of their peers. Instead they were prosecuted under martial law, even though they were not members of the military.4
Freedom of speech and freedom of the press were also civil liberties that were not guaranteed during the time of the Civil War. The Lincoln administration seized telegraph lines, shut down newspapers that printed articles in favor of secession, prohibited the printing of war news about military movements without approval, and censored private mail and telegrams. People were also arrested for wearing Confederate buttons and singing Confederate songs.5
World War 1
In the midst of World War I, the Russian affairs initiated a Red Scare in America. The Russian revolution and the establishment of a Communist Soviet Union terrified Americans. Communism didn't appeal to a county committed to life, liberty and concern for property rights. This fear led to obsession. A. Mitchell Palmer, the Attorney General under President Woodrow Wilson worried about radicalism in the United States. After someone threw a bomb at Palmer's house, he appointed J. Edgar Hoover to oversee the Radical Division of the Justice Department. Hoover's reports, that radicals in the United States posed a serious danger to the country, intensified the pressure on Palmer to take action. Subsequently, Congress passed the Espionage Act authorizing raids on suspected communists. These "Palmer Raids" allowed agents to round up thousands of people, hold them in jail, and deny them their constitutional rights.6
The Espionage and Sedition Acts (1917-1918) allowed the US government to impose fines and put people in jail for interfering with recruitment of troops, punish people who refused their military duty, and impose penalties on anyone convicted of using disloyal language about the Constitution, the government, the military, or the flag. Those convicted could be charged with a federal crime and sent to prison based on very little evidence. Furthermore, a stipulation in the Espionage Act authorized the postmaster general to prohibit a variety of materials from being sent through the mail if these materials were suspected of being radical or dissenting.7
World War II
Another period of hysteria occurred in our history in the aftermath of the bombing of Pear Harbor. All persons of Japanese descent in designated areas were ordered to leave their homes. They were taken to internment camps for the duration of the war for fear of their possible loyalty to the Japanese Empire. More than half of those taken were American-born citizens. President Roosevelt in February of 1942 gave an executive order allowing the secretary of war and military commanders to prescribe areas from which people could be excluded.8 Clearly, fear led to racism.
The argument against internment was brought before the Supreme Court. Korematsu v. United States was the second of three cases testing the government's right to evacuate citizens. Justice Black believed that internment was necessary because it was impossible to separate the loyal from the disloyal Japanese. Consequently, the whole group had to be evacuated from military ground. He claimed that Korematsu was not subject to internment because of racism but because a threat of invasion on the west coast made it necessary to evacuate all citizens of Japanese ancestry. According to Justice Black, Congress and the President should indeed have the power to carry out their duties in time of war.9
Cold War
As mentioned above, Communist ideas were deemed dangerous to our country. However, during World War II, when Russia and the United States were allies against Germany, a more tolerant attitude prevailed. At the close of the World War II, tensions mounted and our relations with Russia became know as the Cold War. President Truman, in dealing with the spread of Soviet Communism, committed the United States to ridding its territory of communism, and pledged to prevent the spread of communism abroad. National security was a major concern. Any person suspected of being a communist was sought after as a disloyal citizen and as an enemy of the county. 10
Joseph McCarthy, a senator from Wisconsin, was known for his shocking assertions that the United States was full of Communists, even in the nation's Capitol. The term, McCarthyism, refers to his tactics of discrediting his opponents with slanderous remarks and practices even when no justification was found. 11 Cameras, microphones and the new medium, television, make McCarthy a celebrity whose lies ruined the lives of hundreds of people. He had no proof of his allegations but, due to the fear of the times, many people believed him.12
Another abuse of civil liberties during this time was blacklisting. Blacklisting was a tactic used by the House Un-American Activities Committee that prevented those listed as Communist from certain jobs especially in the movie industry. Writers or actors who were suspected of communist connections were deprived of their jobs unless they gave information about themselves or pointed fingers to others who attended meetings of communist or liberal organizations. These interrogations and trials were a violation of civil liberties. However, most of the American people were loyal to the government at this time because they truly feared that our country could be taken over by communism. Thirty-nine states passed anticommunist laws. In Texas a person could get twenty years in prison for being a member of a Communist Party. In Connecticut it became illegal to voice criticism of the United States government or flag. Government workers, including teachers were required to take loyalty oaths.13
As result of our country's Cold War agenda, politics took on public piety. In 1954 Congress voted to add the words "under God" to the Pledge of Allegiance. Those who supported the additional words believed it would distinguish our country from those with godless communism. 14
Vietnam
Beginning in the 1950's the United States funded civil war in Vietnam. When Lyndon Johnson became president, his military chiefs pressured him to enter the war with direct force. Johnson did not want to appear soft on communism. In August 1964 Congress authorized the means to repel armed attacks against the armed forces of the United States and to prevent further aggression. There never was a declaration of war, but Vietnam was our longest war with many casualties.
For the first time in our history, the war was seen on TV. Many Americans became angry and protested the ongoing war. One method was wearing black armbands. Students' rights to wear them became the case of Tinker v. Des Moines Independent School District. (1969) The Court ruled in favor of the students. Their constitutional rights of free speech and free expression protected wearing the armbands. 15
War on Terrorism
The events of 9/11 have heightened our need for homeland security and likewise raised concerns about civil liberties. Congress passed the Patriot Act (United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) in October 2001 to help the government catch terrorists and track down their movement across our country. This makes it easier for different government agencies to share information. Unfortunately, they can also invade individuals' privacy with secret searches. Many people believe this a violation of the 4th Amendment, which states that no individual shall be subject to unreasonable or illegal searches and seizures.
The USA-Patriot Act gives the government additional rights to gather information about people. The government can find out the books people buy or borrow from the library, the things they do on the Internet, their phone conversations as well as medical and financial records. Today's advanced technology makes this information gathering and sharing very easy. President Bush said that the Patriot Act would give the government new tools to fight the new dangers brought on by the terrorists while continuing to respect the civil liberties guaranteed by our Constitution.16 However, the following provisions of the Patriot Act stand out as constitutional violations:
- First Amendment: Freedom of speech and press
- Patriot Act: Prohibits the recipients of search orders from telling others about those orders even when there is no need for secrecy.
- Fourth Amendment: Freedom from unreasonable searches and seizures
- Patriot Act: Authorities can search homes and personal property without search warrants
- Fifth Amendment: Due process
- Patriot Act: Allows indefinite imprisonment of persons without judicial review, which denies due process and equal protection under the law.
Dilemma of a Democracy
Today's political atmosphere challenges us to study the dilemma. Consider a pendulum. On one side is liberty with the Bill of Rights guarantying freedom of speech and press, protection of unreasonable search and seizure, and due process. On the opposite side is security with the government's resolve to protect our country and its citizens against terrorism. In what direction will the pendulum swing with the enforcement of the Patriot Act? Most Americans would agree that an appropriate balance must occur between national security and individual rights and they would be willing to make concessions. The airport routine is now an integral part of travelers' to-do list. However, violations of civil liberties during wartime seem more like the norm than the exception.17
We want to be safe. We want our children to be safe. We need to learn the lessons of history and work out the details to strike the balance. Part of the present problem stems from terms of the Patriot Act that are broadly written. According to David Cole, a professor at the Georgetown Law Center in Washington, D.C., what is needed is "fixing some of the broader and more sweeping provisions, and restoring some notion of checks and balances in the fight against terrorism."18
The US Patriot Act will "sunset" or expire on December 31 of this year. Critics have urged Congress to be attentive to the "tools" that have negatively impacted on civil liberties as they debate the terms and duration of its renewal. Rep. Rick Boucher (D, Virginia) said that because of 9/11, he supported the Patriot Act in 2001. However, he admonished that once the emergency was over, "the government would again return to a level consistent with a free society… Emergency powers of investigation should not become the standard once the crisis has passed."19
According to an editorial in the Philadelphia Inquirer (7-30/05), Senator Arlen Specter's (R, PA) committee has proposed a measure to strike a balance between security and civil liberties. It involves a check on secret searches, relevancy for library searches and better reporting to citizen's on how government is using its antiterrorism powers.20
When we look back at past practices of civil liberties during wartime, we see evidence of laws becoming fragile and reduced to a whisper. We see suppression of dissent and overreaction of government and overreaching of its powers. The dilemma of a democracy will undoubtedly continue to challenge our county, our courts and our citizens as daily life absorbs inconveniences, invasions of privacy and inconsistencies of guarantying civil liberties during this war on terrorism. We must decide if Ben Franklin was correct in saying, "They that give up essential liberty to obtain a little temporary safety deserve neither liberty or safety."
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