Chapter One
A History of Civil Liberties During Wartime

History shows that curtailment of civil liberties—including the right to free speech, the right to a fair trial, and the right to equal protection under the law—has often followed national crises, particularly the outbreak of war. "Since the nation's founding, Americans have relied on basic legal protections spelled out by the Bill of Rights," writes reporter Angie Cannon, "but during past wartimes, civil liberties have been curbed dramatically."¹⁶ From the Sedition Act of 1798—which made it a crime to criticize the government—to the internment of Japanese Americans during World War II, during times of crisis the United States has often curtailed civil liberties in ways that Americans later regretted. In waging the war on terrorism, one of the many challenges facing the United States is to avoid the civil liberties mistakes of the past.

The nation's founders, well aware of the tension between security and freedom, were concerned that Americans would be tempted to curtail civil liberties in times of war. In 1787, during the debates over the framing of the Constitution, Alexander Hamilton predicted that when faced with war or other threats, America would "resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free."¹⁷ In 1798, little more than a decade after the framing of the Constitution and only seven years after the Bill of Rights was ratified, Hamilton's fears were proved correct.

Free Speech and Sedition

In 1798 the French Revolution was still raging, and hostile French diplomatic actions had many Americans convinced that war with France was imminent. In addition, many French refugees had immigrated to the United States, and most of them supported the Republican Party, led by Thomas Jefferson. John Adams, a Federalist, was president at the time. The Federalists also controlled Congress and—partly because of hysteria over possible war with France, and partly to secure Federalist power against the Republicans—the legislature passed four laws. Known as the Alien and Sedition Acts, they targeted immigrants and made it a crime to criticize the government.

One of the four laws was the Naturalization Act, which postponed citizenship and voting privileges for immigrants from five years to fourteen years. Because many immigrants tended to vote Republican, this law greatly undermined the Republican Party. The Alien Act gave the president the power to deport aliens thought to present a danger to the government, and the Alien Enemies Act authorized the imprisonment and deportation of immigrants during wartime. Together, the alien acts foreshadowed the government's tendency to enact anti-immigrant measures in times of war.

The most controversial of the four laws, however, was the Sedition Act. The term sedition refers to the incitement of rebellion against a government, but the 1798 Sedition Act broadly prohibited all criticism of the government, outlawing "any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States." The broad terms of the law basically nullified the First Amendment's protection of free speech and freedom of the press. Prominent supporters of the Republican Party, many of them journalists, were arrested for criticizing the Federalists in power.

The Alien and Sedition Acts stand out as blotches on John Adams's presidency. As Ira Glasser, former executive director of theAmerican Civil Liberties Union (ACLU), writes,

The Alien and Sedition Acts identified no traitors and made no Americans safer. To the contrary, American citizens and their rights were the only casualties. The war with France never came, and the fear of the French subsided. No alien was ever deported or incarcerated, and a few years later the … residence requirement for citizenship reverted to five years. But the Sedition Act was widely enforced against American citizens, all of them … political opponents of President Adams and his administration's policies.¹⁸

All four of the laws were repealed or allowed to expire by 1802, and President Thomas Jefferson, elected in 1800, pardoned those imprisoned under the Sedition Act.

The Sedition Act of World War I

Passed on May 16, 1918, the Sedition Act made it a crime to criticize the government or the war effort. An excerpt follows.

"Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies,… and whoever, when the United States is at war, shall willfully cause or attempt to cause, or incite or attempt to incite, insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States, and whoever, when the United States is at war, shall willfully utter, print, write, or publish 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 military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States into contempt, scorn, contumely, or disrepute, or shall willfully utter, print, write, or publish any language intended to incite, provoke, or encourage resistance to the United States, or to promote the cause of its enemies,… and whoever shall willfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated, and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both."

Yet more than a century later, the United States passed another Sedition Act, this time to suppress dissent against America's involvement in World War I. The Sedition Act of 1918 made it a crime to "utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States" or to "encourage resistance to the United States." The act also authorized the postmaster general to seize mail that contained criticism of the government. U.S. leaders, concerned about the 1917 Bolshevik Revolution in Russia, a revolt of the working class, became particularly suspicious of Socialists and other left-wing groups. Eugene V. Debs, a labor leader, anti-war activist, and former Socialist Party candidate for president, was among the more than one thousand individuals imprisoned for violating the Sedition Act.

The Wisdom of Hindsight

In the second half of the twentieth century, the Supreme Court, over the course of several rulings, made it clear that both of the Sedition Acts had been unconstitutional. Today, the idea that Congress would pass a law abridging freedom of speech or freedom of the press is unthinkable to most Americans. In fact, defenders of the USA PATRIOT Act point out that although it expands the power of the FBI to search an individual's belongings and financial records, it only allows such searches if they are "not conducted solely upon the basis of activities protected by the first amendment to the Constitution."

However, the First Amendment only achieved its vaunted status after being so severely curtailed at two different points in U.S. history. As wrong as they may seem to modern Americans, the two sedition acts seemed justified to the leaders who enacted them and to many of the Americans who lived under them. As journalist Geoffrey R. Stone explains, "It is much easier to look back on past crises and find our predecessors wanting than it is to make wise judgments when we ourselves are in the eye of the storm. But that challenge now falls to us."¹⁹

Having been curtailed twice before, the right to criticize the government is now one of Americans' most cherished liberties. However, civil libertarians caution, the curtailment of other liberties that Americans take for granted—such as freedom from unwarranted search and seizure—may seem justified "in the eye of the storm," just as the Sedition Acts seemed justified to past generations. In addition, the war on terrorism is unlike conventional wars of the past: The security measures to combat terrorism are different than the measures used to fight traditional wars, and therefore the threats to civil liberties may be different as well.

Terrorist Bombings and the Palmer Raids

Compared to other countries, the United States does not have a great deal of experience in dealing with terrorist attacks on U.S. soil, but one incident stands out: the Palmer Raids of 1919 to 1921. In June 1919, the fighting in World War I had recently ended, but the United States was in political and economic turmoil. Workers had led the 1917 Bolshevik Revolution in Russia, and many Americans were caught up in the "Red Scare," worrying that Russia's communism and political instability would take hold in the United States.

Amid this climate of social conflict, writes historian Bruce Watson, "the threat of terrorism sent Americans into a frenzy of fear."²⁰ A series of bombings and attempted bombings had begun on April 28, when a package of sulfuric acid and dynamite was mailed to Seattle's mayor. Then on the evening of June 2, bombs exploded in eight cities—in Washington, D.C., an Italian anarchist blew himself up outside the home of A. Mitchell Palmer, President Woodrow Wilson's attorney general. Palmer reacted to the bombings by ordering mass arrests of suspected Communists, Socialists, and anarchists. From June 1919 to early 1921, between six thousand and ten thousand people were arrested—five thousand of them in sweeping raids of thirty-three cities on January 2, 1920. Most of those arrested were noncitizen immigrants. Many were arrested solely because of their affiliation with a radical group, without warrants or evidence. More than two hundred immigrants were deported.

"Not for at least half a century," writes historian William Leuchtenberg, "had there been such a wholesale violation of civil liberties."²¹ Palmer justified the raids by claiming that there was a terrorist conspiracy afoot. He predicted that there would be mass bombings on May 1, 1920. When none occurred, the Red Scare began to die down and a public backlash against the Palmer Raids began. The American Civil Liberties Union was founded in 1920 largely as a result of the civil liberties violations that occurred during the Palmer Raids. "The Palmer Raids trampled the Bill of Rights," states an ACLU pamphlet, "making arrests without warrants, conducting unreasonable searches and seizures, wantonly destroying property, using 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."²²

Targeting Immigrants

For civil libertarians, Attorney General John Ashcroft's ordering of mass arrests of immigrants after September 11 seemed like a frightening echo of the Palmer Raids. In the first few days after September 11, more than seven hundred foreigners were arrested and detained on immigration charges. Most were later released, but about one hundred were still being detained more than a year later. Civil libertarians argue that, as in the Palmer Raids, immigrants have become the primary targets of investigation, only now being Arab or Muslim has replaced being a Socialist or a Communist. The detainment of immigrants after September 11 also recalls the internment of Japanese Americans during World War II.

Following the Japanese surprise attack on Pearl Harbor, Hawaii, on December 7, 1941, millions of Americans feared that a Japanese invasion of the West Coast was imminent, and some members of the public and the military feared that the large numbers of Japanese immigrants and U.S.-born Japanese Americans living in California, Oregon, and Washington might aid such an invasion. President Franklin D. Roosevelt—who a few years earlier had declared, "If the fires of freedom and civil liberties burn low in other lands they must be made brighter in our own"²³—gave in to the pressure to relocate Japanese Americans and immigrants away from the West Coast. In February 1942 Roosevelt signed an executive order authorizing the military to round up people of Japanese ancestry and forcibly relocate them to internment camps in eastern California and the Southwest. These people were forced to sell their homes, businesses, and farms at great losses and become prisoners for the duration of the war.

More than two-thirds of those relocated were American citizens, who were denied their constitutional rights to due process under the law and to equal treatment under the law. Yet, as Glasser of the ACLU notes, "Nearly all Americans accepted this, looked the other way, and felt safer because they were afraid."²⁴ Of course, the Japanese invasion of the West Coast never happened, and decades later, in 1988, Congress authorized monetary compensation for those who had been relocated and President Ronald Reagan issued a formal apology for the government's actions. During the actual crisis, though, the United States chose to try to increase safety at the expense of civil liberties.

Treatment of Persons Suspected of Criminal Activity

The sedition acts, the Palmer Raids, and the internment of Japanese Americans are just three of the most infamous violations of civil liberties during times of crises, in which the First Amendment and the rights of immigrants and minorities were clearly violated. At other points in history, the government has infringed on the right of individuals to be free from unwarranted searches and the right of those suspected of a crime to defend themselves in a court of law.

During the Civil War, President Abraham Lincoln suspended the writ of habeus corpus, a constitutional provision that prohibits the government from detaining citizens without charge. The U.S. government's detention of thousands of terrorism suspects since September 11 has again raised questions about the suspension of the writ, and the Sixth Amendment's guarantee of a speedy and public trial, in times of crisis.

At the beginning of America's Cold War with the Soviet Union in the 1950s, Senator Joseph McCarthy and the House Un-American Activities Committee (HUAC) launched a hunt for Communist sympathizers and subversives. McCarthy's Senate committee and HUAC made sweeping accusations against individuals and organizations, often only on the evidence of unidentified informants. In show business, academia, and labor unions, many people's careers were ruined once they were labeled as Communist sympathizers by McCarthy or HUAC. Often people were identified as such based only on their ties to a left-wing organization. Some civil libertarians worry that the USA PATRIOT Act's harsh penalties for those with ties to terrorist organizations, and the way the USA PATRIOT Act defines the term "terrorist organization," could lead to charges of guilt by association as in the McCarthy era.

Finally, beginning in 1971, journalists and congressional investigation revealed that the U.S. government, through the Federal Bureau of Investigation (FBI), theCentral Intelligence Agency (CIA), and other agencies, had been spying on, and, in some cases, sabotaging the efforts of, civil rights and antiwar groups since the 1950s. The FBI and other law enforcement organizations used illegal wiretaps and other measures to monitor civil rights leaders such as Martin Luther King Jr., black-power groups such as the Black Panther Party, and a variety of organizations, including several independent newspapers, that opposed the war in Vietnam. In the 1970s several steps were taken to limit intelligence organizations' authority to spy on U.S. citizens. As journalist Stuart Taylor Jr. explains,

Overcoming Fear

The following excerpts are from a speech that Secretary of Transportation Norman Y. Mineta gave at the University of Rochester in 2001, in which he discussed his experience as a Japanese American during World War II and his hope that Americans will not react to the September 11 attacks with fear of and discrimination against minorities.

"As you know, more than a few journalists and historians have taken to describing September 11th as the new Pearl Harbor. The analogy is a good one—once again, the United States has been attacked without warning and without mercy. The attack has awakened us to a danger our Nation sometimes felt we would not have to face. And it has strengthened our resolve to face that danger—and remove it.

I think that all of you will understand that, as an American of Japanese ancestry, I find the analogy of Pearl Harbor to be particularly important. It highlights one of the greatest dangers that we will face as a country during this crisis—-and that is, the danger that in looking for the enemy we may strike out against our own friends and neighbors.…

The internment of Japanese Americans during the Second World War has rightly been called the greatest mass abrogation of civil liberties in our Nation's history—and I believe that it stands as a warning to all of us of how dangerous misguided fear can be.…

We can resolve today, as Americans, that the tremendous progress we have made toward our goal of equal justice and equal opportunity for all Americans will not be sacrificed to fear.

The terrorists who committed the atrocities of September 11th … believe they can use the forces of terror and fear to make us fail our most basic principles, and to break our most sacred promises to each other. It is my greatest hope that, in the months and years ahead, all of us will join together as Americans to make sure they do not succeed."

The Supreme Court, Congress, and the Ford and Carter administrations placed tight limits on law enforcement and intelligence agencies. The Court [restricted] government powers to search, seize, wiretap, interrogate, and detain suspected criminals (and terrorists). It also barred warrantless wiretaps and searches of domestic radicals. Congress barred warrantless wiretaps and searches of suspected foreign spies and terrorists—a previously untrammeled presidential power—in the 1978 Foreign Intelligence Surveillance Act.²⁵

The USA PATRIOT Act, which removes some of these restrictions, has revived the debate about domestic intelligence programs and their potential for abuse.

Avoiding the Mistakes of the Past

Some proponents of the war on terrorism have downplayed America's history of curtailing civil liberties during wartime. Historian Jay Winik, for example, points out that although the United States has repeatedly curtailed civil liberties in times of crisis, it has also restored them once the crisis was past:

Faced with the choice between security and civil liberties in times of crisis, previous presidents—John Adams, Abraham Lincoln, Woodrow Wilson and Franklin Roosevelt—to a man (and with little hesitation) chose to drastically curtail civil liberties. It is also worth noting that despite these previous and numerous extreme measures, there was little long-term or corrosive effect on society after the security threat subsided. When the crisis ended, normalcy returned, and so too did civil liberties, invariably stronger than before.²⁶

In addition, defenders of the USA PATRIOT Act and other measures in the war on terrorism argue that they are not nearly as drastic as civil liberties curtailments of the past.

Moreover, they argue that Americans will not repeat past mistakes. For example, Harvard law professor Laurence H. Tribe has applauded President Bush and other leaders for condemning discrimination against Muslims and Arab Americans. Discussing the anti-Japanese hysteria that followed the attack on Pearl Harbor, Tribe remarked, "How different was the sight of New York's Mayor Rudolph Giuliani, soon followed by President Bush, appealing eloquently to Americans not to seek revenge on their fellow citizens who happened to be Muslims."²⁷

Civil libertarians insist, however, that upholding civil liberties in times of crisis requires constant vigilance. Again and again, they point out, when faced with a choice between security and civil liberties, Americans have chosen security. Although the nation as a whole has survived curtailments of civil liberties, countless individuals had constitutional rights violated by repressive laws and security measures. And often civil liberties have been curtailed unnecessarily, in the face of exaggerated threats. As journalist Daniel Hellinger writes, "Rather than defend the 'homeland' from terrorist attacks, abridgement of civil liberties has more often been aimed at suppressing

Lincoln's Suspension of the Writ of Habeus Corpus

One of the most well-known examples of the restriction of civil liberties during wartime is President Abraham Lincoln's suspension of the writ of habeus corpus during the Civil War. Habeus corpus is a Latin term which means "you should have the body," capturing the idea that the government should not detain people against their will without just cause. The Constitution guarantees that any person being held by the government has the right to request a writ of habeus corpus from the courts. If a court agrees to the request, then the government must demonstrate that it is holding the person in question for a compelling reason or else set the person free. The right to a writ of habeus corpus—essentially a guarantee against indefinite detention—is the only individual right to be included in the text of the original Constitution.

The Constitution states in Article 1, Section 9 that the writ may be suspended during national emergencies: "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." Lincoln assumed this power to authorize the arrests and indefinite detention of thousands of Southern sympathizers. For generations, Civil War historians have argued over whether Lincoln's actions were justified and whether they were constitutional.

dissent, advancing some other agenda, or boosting the careers of unscrupulous politicians."²⁸

In general, Americans are more willing to curtail civil liberties during times of crisis than during times of peace; civil libertarians argue that, given the wartime abuses of the past, it is during wartime that Americans should be most cautious about sacrificing their freedoms. Both sides, however, have plenty of hope that in the war on terrorism, the United States will learn from, rather than repeat, its past mistakes. As journalist Geoffrey Stone observes, "To strike the right balance in our time, our nation needs citizens who have the wisdom to know excess when they see it and the courage to stand for liberty when it is imperiled."²⁹