The nation struggles to balance civil liberties and police power in the aftermath of the terrorist attacks of September 11, 2001.
At the dawn of a new century, America is on the verge of a difficult war. Congress follows the president's lead by enacting expansive legislation aimed at protecting the nation from potentially dangerous foreign residents by strengthening federal law enforcement authority. The president is even given the power to deport foreigners he considers dangerous.
The genesis of this legislation is a looming foreign war — not the war against terrorism being waged in the aftermath of the Sept. 11 attacks, but a war with France in 1798.
But just as our nation passed draconian laws restricting civil liberties at the end of the 18th century, so too has Congress today responded to the latest international crises by passing a legislative package granting federal authorities sweeping enforcement powers.
More than 200 years ago, Thomas Jefferson blasted the government's actions in the face of the French threat as an "unconstitutional reign of terror." Today, critics are raising similar objections to the new legislation.
To Save the Union
History shows that civil liberties are often the first casualties of war. One of the most infamous episodes occurred in 1861, shortly after the start of the Civil War.
Fearful of Confederate sympathizers in border and northern states, President Abraham Lincoln suspended the writ of habeas corpus — the constitutional guarantee giving prisoners the right to challenge their detention through independent judicial review — and ordered military authorities to arrest and detain those of questionable loyalties.
One of those arrested was John Merryman, a farmer, militia member and Confederate sympathizer who lived outside Baltimore. Merryman was suspected in a conspiracy to sabotage railroads, but never charged. Almost immediately after his arrest, Merryman petitioned the federal courts for relief.
United States Supreme Court Justice Roger Taney, a Maryland native sitting temporarily on a lower federal appeals court, ruled that Merryman should be released. Merryman's detention was illegal because, in Taney's view, only Congress had the authority to suspend the writ of habeas corpus. Ex parte Merryman, 17 Fed. Cas. No.9, 487, p. 144 (1861).
But Taney was powerless to enforce his order. While the justice may have had the law on his side, Lincoln commanded the troops. Military commanders simply ignored Taney's command that Merryman be released.
On Independence Day, 1861, Lincoln called together a special session of Congress to defend his actions.
"Must [the laws] be allowed to finally fail of execution even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated?" the President asked.
"To state the question more directly, are all the laws but one to go unexecuted, and the government itself go to pieces lest that one be violated?"
Eventually, Congress ratified Lincoln's suspension of habeas corpus, but not before military commanders had detained many people like Merryman in the name of national security.
'Reds,' Labor Organizers and the Japanese
During the World War I era, the country's commitment to civil liberties was challenged again. The war itself, post-war isolationism, a flood of new immigrants, and the emergence of the Soviet Union heightened security concerns.
Beginning in 1919, Attorney General A. Mitchell Palmer launched an infamous series of politically motivated raids and prosecutions against those who dissented from government policy.
The prosecutions were frequently used as a pretext to deport recent southern and eastern European immigrants who expressed unpopular, typically socialist, views, but they were upheld by the courts nevertheless.
Constitutional guarantees were compromised in an even starker fashion in World War II. Following the attack on Pearl Harbor, President Franklin D. Roosevelt signed an executive order that permitted military leaders to designate areas "from which any or all persons may be excluded."
Citizens or not, and without proof of individualized suspicion, over 110,000 persons of Japanese ancestry who lived on the Pacific coast were eventually imprisoned in internment camps.
Citing wartime exigencies, the Supreme Court upheld the imprisonments by a 6-3 vote — a decision that dissenting Justice Murphy termed "one of the most sweeping and complete deprivations of constitutional rights in the history of this nation." Korematsu v. United States, 323 U.S. 214 (1944).
Future Supreme Court Justice Tom Clark represented the government in the wartime relocations cases. But he later wrote:
The truth is — as this deplorable experience proves — that constitutions and laws are not sufficient of themselves... . Despite the unequivocal language of the Constitution of the United States that the writ of habeas corpus shall not be suspended, and despite the Fifth Amendment's command that no person shall be deprived of life, liberty or property without due process of law, both of these constitutional safeguards were denied by military action... .
Abuses Lead to a New Climate
Cold War era fears following World War II led to another set of politically motivated government abuses. Congressional investigations running from the late 1940s through the mid-1950s, including the infamous hearings chaired by Wisconsin Sen. Joseph McCarthy, sought to uncover allegedly influential Communists in American society.
The lies and abuses that characterized McCarthy's crusade in particular were eventually exposed, his career ruined and his name forever associated with political smears and witch hunts. But that did not help those whose lives were destroyed by innuendo, anonymous accusations and blatant lies.
In the 1960s and 1970s, Vietnam War protests and the civil rights struggle led the FBI to develop its Counter-Intelligence Program, better known as COINTELPRO. The program targeted not only violent left-wing groups and the Ku Klux Klan, but also peaceful dissenters.
Civil rights leader Martin Luther King, for instance, was the victim of government leaks about his personal life. Peace activist and resident foreigner John Lennon endured an expensive deportation battle after the Nixon administration targeted him because of his pacifism.
The Watergate scandal and the revelations of illegal government snooping it brought to light changed the political landscape. Public hearings spearheaded by Sen. Frank Church (D-Idaho) in 1975 exposed additional law enforcement abuses and helped fuel the movement to rein in the government.
The upshot was a raft of reforms, including new legislation, executive guidelines, and permanent Congressional oversight of intelligence gathering activities.
A key aspect of these reforms were guidelines implemented by President Gerald Ford's attorney general, Edward Levi, in 1976 that put strict limits on domestic security investigations. By the late 1970s, a series of laws were also passed that established standards for intelligence-gathering aimed at American residents and citizens suspected of links to foreign terrorists.
The Pendulum Swings Back
Terrorist attacks in the 1980s and the 1990s helped to swing the legislative pendulum the other way. In 1983, the Reagan Administration relaxed the Levi guidelines amid criticism that they were too restrictive and cumbersome. In 1986, the Omnibus Diplomatic Security and Antiterrorism Act expanded jurisdiction to cover terrorist acts committed outside the United States where Americans are targeted.
In 1996, the Antiterrorism and Effective Death Penalty Act was enacted a year after 168 people were killed in the Oklahoma City bombing. Passed over the protests of many civil rights groups, the law sharply restricted appeals in death penalty cases. It also expanded the authority of federal officials to:
- Proscribe domestic fund raising by terrorist groups;
- Ban suspected terrorists from entering the United States; and
- Expel foreigners linked to terrorism.
The terrorist murders of Sept. 11 — and the national anthrax scare that has followed them — have once again exacerbated the tension between civil liberties and police power in American life.
In the six weeks that followed the terrorist attacks, authorities arrested or detained more than 1,000 people on immigration violations, various criminal charges, and as material witnesses.
While the public generally has applauded these steps, there have been vocal critics. Harvard Professor Alan Dershowitz, for example, described the detention of material witnesses as a "medieval" tool giving officials far too much power.
As to the immigration-related detentions, Dershowitz complained that, "Right now, it's simply the word of an administrative agent and FBI agents. They may be acting completely honorably, but we the citizens are not in a situation where we can appraise it and see whether it is subject to the rule of law."
A Precarious Balance
Civil libertarians have been further alarmed by the anti-terrorism legislative package enacted in October.
The key parts of the package — subject to a "sunset" requirement that requires reauthorization in four years if the law is to be extended — streamline and relax warrant, investigative, and detention requirements.
The new law gives federal agents expanded authority to track the flow of Internet and telephone communications. It allows information exchange between various law enforcement and intelligence agencies and the limited transfer of information from traditionally secret grand jury proceedings.
It speeds deportation procedures. And it increases the time that the Immigration and Naturalization Service may detain non-citizens, from 48 hours to a week. In some circumstances, the period of detention could be extended even longer.
Most importantly, perhaps, the package bill allows one federal court to have nationwide authority to approve roving wiretaps, phone record searches, and retrieval of electronic evidence. Roving wiretaps follow a particular targeted person, allowing phone intercepts of multiple phones across numerous jurisdictions.
"We need speed in identifying and tracking down terrorists," Attorney General John Ashcroft said while defending this last measure during recent Congressional testimony. "Time is of the essence. The ability of law enforcement to trace communications into jurisdictions without obtaining an additional court order can be the difference between life and death for American citizens."
Others see the package in starkly different terms. "These new and unchecked powers," said Gregory Nojeim, the associate director of the ACLU's Washington office, "could be used against American citizens who are not under criminal investigation, immigrants who are here within our border legally and also against those whose First Amendment activities are deemed to be threats to national security by the attorney general."
The organization has pledged to monitor the implementation of the new law for potential abuses.
In many ways, the attorney general's defense of the anti-terrorism package was reminiscent of Lincoln's justification of the suspension of habeas corpus.
"[T]he American people," Ashcroft argued, "do not have the luxury of unlimited time in erecting the necessary defenses to future terrorist acts. ... They require that we provide law enforcement with the tools necessary to identify, dismantle, disrupt and punish terrorist organizations before they strike again."
In the end, history will determine whether the new legislation represents an unwarranted deprivation of American liberties or a measured and proportionate response to an unprecedented and deadly threat.
Attorney Brian Levin is a professor of criminal justice at California State University, San Bernardino, where he directs the Center for the Study of Hate & Extremism (www.fighthate.org). He has testified before Congress on civil liberties and terrorism and is the co-author of a book on the subject.