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In each generation, for different reasons, America witnesses a tug of war between the instinct to suppress and the instinct for openness. Today, with the perception of a mortal threat from terrorists, the instinct to suppress is in the ascendancy. Part of the reason for this is the trauma that our country experienced on September 11, 2001, and part of the reason is that the people who are in charge of our government are inclined to use the suppression of information as a management strategy.
Rather than waiting ten or fifteen years to point out what's wrong with the current rush to limit civil liberties in the name of "national security," these essays by top thinkers, scholars, journalists, and historians lift the veil on what is happening and why the implications are dangerous and disturbing and ultimately destructive of American values and ideals. Without our even being aware, the judiciary is being undermined, the press is being intimidated, racial profiling is rampant, and our privacy is being invaded. The "war on our freedoms " is just as real as the "war on terror "-and, in the end, just as dangerous.
The history of civil liberties in America, like the history of civil rights, is a story of struggle. Even in peacetime, Americans have engaged in an ever-changing negotiation between the demands of liberty and the demands of order and security. But in times of national emergency, the conflict between these two demands has become intense-and the relative claims of order and security naturally become stronger. As we enter a new period of apparently open-ended crisis, the lessons of these past experiences with war and emergency are clear. We cannot reasonably expect the highly robust view of civil liberties that we have embraced in recent decades to survive unaltered. Every major crisis in our history has led to abridgements of personal liberty, some of them inevitable and justified. But in most such crises, governments have also used the seriousness of their mission to seize powers far in excess of what the emergency requires. At such moments, it has been particularly important that vigilant citizens make the case that the defense of our liberties is not an indulgence but rather an essential part of our democratic life.
Put simply, civil liberties are not a gift from the state that can be withdrawn when they become inconvenient. They are the product of continuous effort, which has extended over two centuries and must continue into a third-in dangerous times as well as in tranquil ones-if personal freedom is to remain a vital part of our national life.
"140 years of silence"
It is part of our national mythology that the Framers of the U.S. Constitution guaranteed civil liberties to all Americans through the Bill of Rights and that we are simply the beneficiaries of their wisdom. But not even the Framers were confident that the Bill of Rights provided sufficient protections of liberties. James Madison opposed the Bill of Rights altogether, arguing that any effort to enumerate rights would serve to limit them-one reason for the largely forgotten (until recently) Tenth Amendment, which states that "powers not delegated to the United States by the Constitution" are "reserved to the States ... or the people." Proponents of the Bill of Rights feared that the amendments alone would not be sufficient to protect individual liberties-and they were well justified in those fears.
During most of the first century of the history of the United States, the Bill of Rights had relatively little impact on the lives of most American citizens. There were widespread violations of civil liberties that by modern standards would seem exceptionally oppressive, inspiring one scholar, remarking on the early history of the Bill of Rights, to describe it as "140 years of silence." Even ignoring the egregious violations of rights and liberties inflicted on both enslaved and free African Americans, Native Americans, Mexicans, Chinese, and many other groups of immigrants, and the routine limitations of the rights of women, the abridgements of civil liberties were severe and routine. Local governments routinely banned books, censored newspapers, and otherwise policed "heretical" or "blasphemous" speech. Standards of public decorum and behavior were rigidly enforced, and unconventional conduct was often criminalized. The legal rights of the accused in criminal trials had few effective protections, and obedience to the Fourth, Fifth, and Sixth Amendments was often token or nonexistent. Freedom of religion did not always extend to Catholics, Jews, free thinkers, agnostics, or atheists; and such people had no protection against discrimination in education, jobs, and even place of residence. Perhaps more important, popular support for an expansive view of civil liberties was thin and, in some places, nonexistent. As a result, there was little pressure on any level of government to work vigorously to defend them. The only exception was the vigorous use of the Bill of Rights to defend property rights.
The Alien and Sedition Acts of 1798-prompted by the quasi-war with France and designed to strengthen the government's authority to deal arbitrarily with aliens and dissenters-produced widespread popular hostility and led to the defeat of President John Adams in 1800. But this powerful reaction should not obscure the degree to which similar abuses of constitutionally protected freedoms occurred routinely, without legislative support, even in more normal times. Similarly, Abraham Lincoln's controversial suspension of the writ of habeas corpus during the Civil War only increased a vulnerability of citizens to arbitrary arrest and imprisonment that was already widespread.
It would be too much to say that the Bill of Rights was an empty shell during the nineteenth century. Things would surely have been worse without it. But to a significant degree, it remained contentless in the absence of popular, legislative, and judicial support-all of which were intermittent and often grudging for over a hundred years.
The Nation Unravels
Our modern notion of civil liberties was, in fact, not born with the creation of the Bill of Rights. A more important turning point may have been the U.S. involvement in World War I, which created some of the most egregious violations of civil liberties in our history-and, indirectly, some of the first vigorous defenses of them.
When the United States entered the war in April 1917, the administration of Woodrow Wilson was acutely aware of how much of the public remained hostile to the nation's intervention. It responded much like the Adams and Lincoln administrations had in earlier conflicts-with an aggressive campaign of intimidation and coercion designed to silence critics and root out opposition.
At the center of this effort were two pieces of wartime legislation: the Espionage Act of 1917, and the Sedition Act of 1918, which empowered the government to suppress and punish "disloyalty and subversion." The Espionage Act, among other things, permitted Postmaster General Albert Sidney Burleson to ban all "seditious" materials from the mails, a task that Burleson approached with great relish, announcing that "seditious" materials included anything that might "impugn the motives of the government and thus encourage insubordination"; anything that suggested "that the government is controlled by Wall Street or munitions manufacturers, or any other special interests"; anything, in other words, that Burleson considered somehow radical. All publications of the Socialist party were banned by definition.
The Sedition Act, passed the next year to strengthen the provisions of the Espionage Act, made it a criminal offense to use "any disloyal, profane, scurrilous, or abusive language about the form of government of the United States or the Constitution of the United States, or the flag of the United States, or the uniform of the Army or Navy," or any language that might bring those institutions "into contempt, scorn, ... or disrepute." This second law was particularly useful to the government as an instrument for suppressing radicals and labor unionists. The greatest number of prosecutions under the law were directed against members of the Socialist party and its radical offshoot, the Industrial Workers of the World (IWW). Eugene V. Debs, the Socialists' leader, was convicted and imprisoned for questioning American involvement. Bill Haywood, head of the IWW, fled to the Soviet Union during the war to avoid imprisonment. Others were imprisoned for casual remarks about the president or the conduct of the war effort. Hiram Johnson, the progressive senator from California, caustically described the provisions of the law: "You shall not criticize anything or anybody in the government any longer or you shall go to jail."
This state-sponsored repression did not occur in a vacuum. It both encouraged and reflected a widespread popular intolerance of dissent that very quickly became coercive and occasionally violent. In 1917, private volunteers formed the American Protective League (APL) to assist the government in the task of maintaining loyalty. The APL received the open endorsement of the U.S. attorney general, who called it a "patriotic organization ... assisting the heavily overworked federal authorities in keeping an eye on disloyal individuals and making reports on disloyal utterances." It received $275,000 in government funds to finance its activities. Its members wore silver badges, as if they were official law enforcement authorities (although there was no screening process for entry); ordinary citizens were generally unaware of the distinction between them and legitimate authorities. By the end of the war, the organization had 250,000 members-men and women who defined their mission as spying on their neighbors, eavesdropping on suspicious conversations in bars and restaurants, intercepting and opening the mail and telegrams of people suspected of disloyalty, and reporting to the authorities any evidence of disenchantment with the war effort. They made extralegal arrests. They organized "slacker raids" against perceived draft resisters. The APL constituted only the largest of a number of such organizations. There was also the National Security League, the American Defense Society, even one modeled on the Boy Scouts-the Boy Spies of America.
Much of this repression was directed at labor leaders, radicals, and other dissidents. But its greatest impact fell on immigrants. Both Woodrow Wilson and Theodore Roosevelt denounced "hyphenated Americans" in 1916, and neither discouraged assaults on them once they began. Popular passions against dissidents and immigrants soon ran amok. The primary target, although not the only one, was German Americans. The California Board of Education, for example, banned the teaching of German in public schools, calling it "a language that disseminates the ideals of autocracy, brutality, and hatred." Libraries removed German books from shelves. Merchants and others dropped German words from the language. ("Sauerkraut" became "liberty cabbage"; "hamburger" became "liberty sausage.") German faculty members were fired from universities. German musicians were fired from orchestras. There were widespread rumors of plots by German Americans to put ground glass in bandages sent to the front, and so people with German names were barred from the Red Cross. In Minnesota, a minister was tarred and feathered because he was overheard praying with a dying woman in German. In southern Illinois, a man was lynched in 1918 for no apparent reason except that he happened to be of German descent; the organizers of the lynch mob were acquitted by a jury, which insisted that what they had done had been a patriotic act.
This overwrought nativism-generated, even if inadvertently, by government policy and rhetoric-extended to other ethnic groups as well: to the Irish (because of their hostility to the English), to the Jews (because many were hostile to an American alliance with the anti-Semitic Russian government), and to others simply because their ethnic distinctiveness came to seem a threat to the idea of "One-Hundred Percent Americanism," a phrase widely used at the time to describe national unity. Immigrant ghettoes in major cities were strictly policed and became frequent targets of vigilante groups. Even many settlement-house workers came to feel it their duty to impose a new and more coercive conformity on the immigrants they served. A settlement worker in Chicago said in 1918 that the war had made her realize that "we were a nation only in a very imperfect sense. We were stirred to a new sense of responsibility for a more coherent loyalty, a vital Americanism."
Woodrow Wilson reputedly predicted in early 1917, "Once lead this people into war, and they'll forget there ever was such a thing as tolerance. To fight, you must be brutal and ruthless, and the spirit of ruthless brutality will enter into the very fibre of our national life, infecting Congress, the courts, the policeman on the beat, the man on the street." It proved in large measure to be a self-fulfilling prophecy-and not just for the war. The behavior Wilson predicted, and helped to create, continued well after the Armistice of November 1918. In some ways, it intensified, most notably during what has become known as the Red Scare.
The great Red Scare was in part a response to the Bolshevik Revolution in Russia and the tremendous fear that it created throughout the capitalist world. It was also a product of the great instability of postwar America, something that many middle-class people believed to be orchestrated by revolutionaries. There was widespread labor unrest, racial conflict in cities, economic turbulence, and a small but frightening wave of terrorist acts by radicals. But the Red Scare was above all a result of the deliberate strategies of ambitious politicians, who saw a campaign against Bolshevism in America as a useful spur to their careers.
The U.S. Justice Department, under Attorney General A. Mitchell Palmer (who had presidential hopes for 1920), was the leading actor in inflaming the Red Scare. An attempted bombing of Palmer's house helped legitimize the major campaign against radicals that he was already planning and that he launched in 1920. On New Year's Day, he ordered simultaneous federal raids (orchestrated by the young J. Edgar Hoover) on suspected radical centers all over the country. There were 6,000 arrests, amid enormous publicity. They have become known to history as the Palmer Raids.
This crackdown was supposed to reveal and destroy what Palmer claimed was a national, revolutionary conspiracy. In fact, the raids netted three pistols, no explosives, and only a small smattering of radical literature. Most of the people arrested were not radicals at all, and even the relatively few genuine radicals rounded up could not be shown to have violated any laws. Most were eventually released, although many remained in custody for weeks and even months without facing formal charges. While detained, they were denied access to attorneys or even to their own families. Several hundred foreign radicals and presumed radicals were deported to Russia, where they arrived-many of them speaking no Russian and knowing nothing of the country-in the middle of a civil war. Palmer himself looked back on this sorry episode a year later without repentance. "Like a prairie fire," he said,
the blaze of revolution was sweeping over every American institution of law and order a year ago.
Excerpted from The WAR on OUR FREEDOMS Copyright © 2003 by The Century Foundation. Excerpted by permission.
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|Introduction: The Quiet Republic: The Missing Debate About Civil Liberties After 9/11||1|
|1||A Familiar Story: Lessons from Past Assaults on Freedoms||23|
|2||Security and Liberty: Preserving the Values of Freedom||47|
|3||No Checks, No Balances: Discarding Bedrock Constitutional Principles||74|
|4||"The Least Worst Place": Life in Guantanamo||100|
|5||Under a Watchful Eye: Incursions on Personal Privacy||128|
|6||Who Are "We" Now? The Collateral Damage to Immigration||147|
|7||The New American Dilemma: Racial Profiling Post-9/11||170|
|8||From Saviors to Suspects: New Threats to Infectious Disease Research||193|
|9||Need to Know: Governing in Secret||220|
|10||Watchdogs on a Leash: Closing Doors on the Media||237|
|11||The Fog of War: Covering the War on Terrorism||256|
|12||The Go-for-Broke Presidency: Can National Unity and Partisanship Coexist?||276|
|13||On the Home Front: A Lawyer's Struggle to Defend Rights After 9/11||295|