The Federal Balancing Act - Protecting our civil liberties and maintaining national security

1798 - Congress passed the Sedition Act to quiet Pro-French, anti-federalist dissenters who disapproved of a possible war between the U.S. and France.  The Act required criminal penalties for persons who said or published anything “false, scandalous, or malicious” against the federal government, Congress, or the president.  Sixteen indictments resulted from the Sedition Act, and five out of six of the leading Republican papers were tried for libel. The Act expired in 1801 and President Jefferson pardoned those convicted under its powers.

1861 - President Lincoln signed the Executive Order, “Writ of Habeas Corpus Relating to the Events in Baltimore” Political Cartoon of Abraham Lincoln talking to John Ashcroft about suspension of habeas corpuswhich suspended the constitutional guarantee giving prisoners the right to be brought to court to determine if they were being legally held as well as the right to challenge their detention through independent judicial review. 

Lincoln suspended habeas corpus without waiting for Congress to authorize it. He then ordered military authorities to arrest and detain without trial those in the northern and border states who aided the rebel cause, were believed to be Confederate spies, and who resisted the draft - and detained them until the war’s conclusion.  He also ordered that all arrested under this law could be tried and punished by military courts as regular courts were deemed to be inadequate during a rebellion and all those who opposed the Union endangered “the public safety.”  Over 4,000 military trials were held throughout the war.

1863 - Congress passed the Habeas Corpus Act endorsing Lincoln's decision to deny habeas corpus in 1861 by authorizing suspensions throughout the war and enabling the government to detain persons suspected of disloyalty to the Union.

1908 - The U.S. Attorney General created a corps of Special Agents within the Department of Justice. The establishment of this kind of agency at a national level was highly controversial as Americans usually looked to cities, counties, and states to fulfill most law enforcement responsibilities. However, by the 20th century, easier transportation and communications had created a favorable climate for the federal government establishing a strong investigative tradition. The following year, 34 Agents became part of the new Bureau of Investigation to investigate federal crimes. This was the predecessor to the FBI.

1917 - Congress passed the Espionage Act that outlawed statements “obstructing the war effort” and “aiding the enemy;” forbade “false statements” designed to “obstruct” enlistment into the armed services and conspiracies designed to cause “disloyalty” or “insubordination;” and banned from the mail materials considered to be treasonable.  Those found guilty were subject to heavy fines and imprisonment of up to 20 years. Over 450 conscientious objectors were jailed under the provisions of the act for refusing military service and federal prosecutors used the act to bring over 2,000 cases to trial and secured at least 1,055 convictions - mostly members of the American Socialist Party and left-wing labor leaders.

1918 - Congress amended the Espionage Act with the Sedition Act which prohibited the utterance or publication of anything “disloyal, profane, scurrilous, or abusive” about the U.S. government or the American flag.  Those found guilty could face up to a 21-year prison sentence. The Act was theoretically created to deal with "anarchists," who had killed hundreds of American citizens. But it ultimately was enforced against immigrants, communists, liberals, and antiwar activists.

Eugene V. Debs gave his "Socialism is the Answer" speech Photo of Eugene Debs campaigning 1918in Ohio for which he was sentenced in to ten years in prison via the Sedition Act. President Harding commuted his sentence and freed him in 1921

1919 - U.S. Supreme Court in Schenck v. United States upheld the Sedition Act. In 1918, Charles Schenck, general secretary of the American Socialist Party, was arrested and convicted for sending 15,000 anti-draft circulars through the mail to men scheduled to enter the military. The circular called the draft law a violation of the 13th Amendment's prohibition of slavery and urged draftees to "petition for repeal." The government accused Schenck of illegally interfering with military recruitment under the Espionage Act. Schenck admitted that he had sent the circulars, but argued he was exercising his 1st Amendment right to freedom of speech.  The Court ruled that freedom of speech could be limited by the government - but only when there was a "clear and present danger" such as during war.  Chief Justice Holmes wrote the opinion for the unanimous court, declaring that, “Free speech would not protect a man falsely shouting fire in a theater and causing panic.” 

Abrams v. U.S.  Jacob Abrams and others were convicted of distributing pamphlets criticizing the Wilson administration for sending troops to Russia. While the government was unable to prove that the pamphlets actually hindered the operation of the military, a lower court judge found that they might have done so and, in turn, found Abrams and his co-defendants guilty. On appeal, seven members of the Supreme Court used Holmes's "clear and present danger" test from Schenck to sustain the conviction.  Justices Holmes and Brandeis dissented in what soon became widely recognized as the starting point in modern judicial concern for free expression.

1920 - Attorney General A. Mitchell Palmer, using the full power of the Espionage Act, began the Red Scare, a series of politically motivated raids and prosecutions of those who dissented from government policy - especially Socialists, anarchists, and immigrants suspected of “un-American” beliefs.  Agents in over 30 cities arrested between 6,000-10,000 people often without arrest warrants and seized political literature, membership cards and lists, organization records, and other documents.  The judgment to deport or not to deport most individuals was made by an immigration inspector in a secret hearing.  Most of the prisoners sentenced during the Red Scare were eventually freed.

Executive Order 90661941 - President Roosevelt signed Executive Order 9066 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 120,000 persons of Japanese ancestry who lived on the Pacific coast were eventually imprisoned in internment camps. 

1942 - U.S. Supreme Court in ex parte Quirin unanimously upheld the right of the President to try before military tribunals enemy belligerents - and even a U.S. citizen - who violated the rules of war.  The decision created the first definition for what would later become known as "enemy combatants" or “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.”

The decision defined two categories: lawful and unlawful combatants. Lawful combatants were to receive prisoner of war (POW) status and the protections of the Third Geneva Convention while unlawful combatants would not receive POW status or the full protections of the Third Geneva Convention.

1943 – U.S. Supreme Court in Hirabayashi v. United States ruled that the military order Gordon Hirabayashi ignored was constitutional. The Supreme Court upheld the 8pm to 6am curfew - the restriction of all persons of Japanese ancestry within military-designated areas - was a legitimate exercise of government’s power and was necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

U.S. Supreme Court in Yasui v. U.S. unanimously ruled that the federal government could restrict the lives of civilian citizens during wartime. In late 1942, Minoru Yasui, an Oregon lawyer, was arrested for violating curfew orders.  His lawyers argued to no avail that the government's restrictions were unconstitutional because they were based upon racial prejudice, not military necessity.  

1944 - U.S. Supreme Court in Korematsu v. United States upheld the imprisonments of Japanese Americans by a 6-3 vote.  The court found that the imprisonment of Fred Korematsu and other Japanese Americans in relocation camps during WWII was constitutional given the wartime emergency and need to protect the public.  Dissenting Justice Murphy termed the decision "one of the most sweeping and complete deprivations of constitutional rights in the history of this nation."

U.S. Supreme Court in Ex Parte Mitsuye Endo ruled on behalf of the case for Mitsuye Endo Photo of Mitsuye Endothat President Roosevelt’s executive order and the enforcement law passed by Congress only authorized the removal of the Issei and Nisei from military areas, not their imprisonment. They thus declared the camps unconstitutional.  Writing for the majority, Justice Murphy wrote, "“I am of the view that detention in Relocation Centers of persons of Japanese ancestry regardless of loyalty is not only unauthorized by Congress or the Executive, but is another example of the unconstitutional resort to racism inherent in the entire evacuation program...racial discrimination of this nature bears no reasonable relation to military necessity and is utterly foreign to the ideals and traditions of the American people.” 

1960s - COINTELPRO, the FBI's Counter-Intelligence Program, began out of frustration with US Supreme Court rulings that limited the government's power to proceed overtly against groups who challenged the status quo – Communists, Communist sympathizers, Black Nationalists, anti-war activists -  and ended with public exposure of their unconstitutional activities.  COINTELPRO, according to the report of the US Senate's Select Committee to Study Governmental Operations, allowed the FBI to conduct "... a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association, on the theory that preventing the growth of dangerous groups and the propagation of dangerous ideas would protect the national security and deter violence."   COINTELPRO targeted the Black Panthers, various violent left-wing groups, and the Ku Klux Klan, as well as peaceful dissenters.  Public hearings in 1975 exposed additional law enforcement abuses and resulted in reform, including new legislation, executive guidelines, and permanent Congressional oversight of intelligence-gathering activities.

1975 - The report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities investigated alleged abuses of power by the Central Intelligence Agency and the Federal Bureau of Intelligence. The Committee concluded: "Domestic intelligence activity has threatened and undermined the Constitutional rights of Americans to free speech, association and privacy. It has done so primarily because the Constitutional system for checking abuse of power has not been applied."

1978 - Congress passed the Foreign Intelligence Surveillance Act (FISA) to provide specific standards for investigations relating to national security and allowing warrants to be issued for electronic surveillance by a secret court order at the request of the Attorney general who only has to show that the main purpose of the investigation relates to intelligence gathering about a foreign entity such as a government or terrorist group.

1988 - Congress passed the Civil Liberties Act - Redress for Japanese Americans in which the U.S. apologized to Japanese Americans for the grave civil rights violations during WWII and authorized the payments of $20,000 to each person who had been placed in relocation/concentration camps.

1996 - Congress passed the Anti-terrorism and Effective Death Penalty Act that attempted to curb the number of habeas petitions by death row inmates; expanded the authority of federal officials to proscribe domestic fundraising by terrorist groups; banned suspected terrorists from entering the U.S.;  expelled foreigners linked to terrorism; and punished those who intentionally provide “material support” to terrorists.

2001 -  One week after the terrorist attacks of September 11, Congress passed the Authorization of the Use of Military Force Act (AUMF) that authorized the president "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." The act clearly resembled a declaration of war - and its primary purpose was the legal authorization of the U.S. invasion of Afghanistan.

On September 20th, President George W. Bush formally declared in a joint session of Congress a "war on terror" Photo of President Bush's address to Congress declaring a war on terrorismwhen he said, "Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated." This was the beginning of the Bush administration's policy that treated the 9/11 attacks as acts of war rather than violations of criminal law.

On October 1, President Bush authorized Operation Enduring Freedom, the invasion of Afghanistan with the goal of capturing al-Qaeda's leader, Osama bin Laden.

Congress passed the PATRIOT Act in the wake of September 11th. The key parts of the Act - subject to a "sunset" requirement that requires reauthorization in four years if the law is to be extended - streamlined and relaxed warrant, investigative, and detention requirements.  The new law gave federal agents expanded authority to track the flow of Internet and telephone communication.  It also allowed the limited transfer of information from traditionally secret grand jury proceedings; law enforcement ability to access library records of citizens; increased time that the Immigration and Naturalization Service can detain non-citizens; and widespread authority to approve phone record searches, retrieval of electronic evidence, and roving wiretaps that follow a particular targeted person and allows phone intercepts of multiple phones across numerous jurisdictions. 

On November 13th , the president issued a military order on the "Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism" which was designed to deal with the problem of what to do with suspected terrorists and their supporters who fell into American hands during the War on Terrorism. The order gave the Secretary of Defense authority to detain anyone who planned or facilitated terrorist acts against the United States. In practice, the order meant that suspected terrorists captured in Afghanistan or elsewhere were not criminals worthy of trial but "enemy combatants" who could be detained for the limitless duration of the war on terror. Because they were "illegal" enemy combatants, the order also meant that the prisoners did not merit the high treatment standards for prisoners of war mandated at the Geneva Convention. Eventually, over 700 persons would be detained, most at Guantanamo. This presidential order was the first step in the process of establishing indefinite detention without trial as a mainstay of the US approach to fighting terrorism

2002 - United States' Guantanamo Bay Naval Base in Cuba opened Camp X-Ray. Political Cartoon of habeas "corpses" at GuantanamoThe Bush administration asserted that because the Naval Base was not technically on US soil, the captives held there were not subject to US law and did not have access to the rights guaranteed by the US Constitution or to protection through the United States Justice System. President Bush ordered that certain detainees imprisoned at Guantanamo were to be tried by military tribunals.

2004 - The U.S. Supreme Court in Rasul v. Bush ruled in the first habeas corpus submission after 9/11 to reach the Court. The Court found that the Naval Base at Guantanamo was not beyond the reach of US law, that the Executive Branch lacked the authority to deny captives access to the US justice system, that the captives had the right to initiate habeas corpus submissions, and that the Executive Branch was obliged to provide the captives with an opportunity to hear and attempt to refute whatever evidence had caused them to have been classified as "enemy combatants."

The Department of Defense created the Combatant Status Review Tribunals which established non-public hearings to determine if detainees held at Guantanamo Bay had been correctly designated as "enemy combatants."

2005 - Congress passed the first reauthorization of the USA PATRIOT and Terrorism Prevention Reauthorization Act Cartoon of sacrificing civil liberties for national security in July. This bill reauthorized provisions of the USA PATRIOT Act and created new provisions relating to the death penalty for terrorists, enhancing security at seaports, providing new measures to combat the financing of terrorism and new powers for the Secret Service.

Congress passed the Detainee Treatment Act which prohibited the “cruel, inhuman, or degrading treatment or punishment” of detainees and provides for “uniform standards” for interrogation.

2006 –  Congress passed second reauthorization act, the USA PATRIOT Act Additional Reauthorizing Amendments Act in February, making permanent 14 provisions set to expire at the end of 2005.  Three other measures were extended for seven years – one allowing law enforcement agents access to bookstore and public library records, another allowing roving wiretaps that follow an individual who may use multiple means of communication rather than targeting a single phone, and the last allowing federal investigators to track an individual not connected to a foreign government but suspected of operating as a “lone wolf” terrorist.

The U.S. Supreme Court ruled in Hamdan v. Rumsfeld, the second post-9/11 habeas corpus submission, that the Executive Branch lacked the Constitutional authority to set up military commissions to try captives taken in the war on terror and that instead, this authority properly resided in Congress.

Congress passed the Military Commissions Act of 2006 which says in part, “"No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."  Thus, in the eyes of the United States, aliens are not to be granted the rights of a free people.

2007 – The President signed executive order – “Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq."  This order allows the President to confiscate assets of those opposed to the U.S. led war.  On July 17th, the President announced, “I have issued ad Executive Order blocking property of persons determined to have committed or to pose a significant risk of committing, an act or acts of violence that have the purpose or effect of threatening the peace or stability of Iraq or the Government of Iraq or undermining efforts to promote economic reconstruction and political reform in Iraq or to provide humanitarian assistance to the Iraqi people.” The Justice Department decides what constitutes “threatening stabilization efforts” and the order does not permit a challenge to the information upon which the seizure is based.

The House passed the Violent Radicalization and Homegrown Terrorism Prevention Act by a vote of 405 to 6 in October. The Act failed to win approval in the Senate. The act would have created a congressional commission empowered to hold hearings, conduct investigations, and designate various groups as "homegrown terrorists”; empowered the commission to propose new legislation enabling the government to take punitive action against both the groups and the individuals who are affiliated with them; and empowered all the members on the commission to arrange hearings, obtain testimony, and even to administer oaths to witnesses in various parts of the country. Language in the act partially defines "homegrown terrorism" as "planning" or "threatening" to use force to promote a political objective and it describes "violent radicalization" as the promotion of an "extremist belief system" without defining "extremist."  After doing its work within 18 months, a Center of Excellence for the Prevention of Violent Radicalization and Homegrown Terrorism would have been established to study the lessons learned. The center would have been tasked with continuing power to monitor the homegrown terrorism problem and propose legislation and other measures to counter it.

The Protect America Act of 2007 was enacted as an amendment to the Foreign Intelligence Surveillance Act (FISA). It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside of the United States. The FISA Amendments Act of 2008 repealed the Protect America Act, but replaced it with similar provisions in Title VII of FISA.

2008 - U.S. Supreme Court ruled in Boumediene v. Bush that the Bush administration’s withholding of habeas corpus at Guantanamo Bay - the practice of holding terrorism suspects in indefinite detention - is unconstitutional. The case challenged the legality of Boumediene’s detention in Guantanamo as well as the constitutionality of the Military Commissions Act of 2006. The Court’s 5-4 decision, written by Justice Anthony Kennedy, rejected the Bush administration’s argument that prisoners can be held for years without a fair process for assessing the evidence against them. Thus, the federal courts will now be able to examine the basis for detainees’ claims that they are wrongly held. President Bush as well as Democratic nominee Barack Obama and Republican nominee John McCain state that they all support closing Guantanamo. Obama pledged that if elected president, he would close the facility.

2009 - On January 22, newly inaugurated President Obama proudly issued his first three executive orders, one of them, a directive requiring Guantanamo to be closed within one year. In March, the Obama administration submitted a file to a federal district court in regard to litigation over indefinite detention at Guantanamo. In this filing, the Obama administration adopted the Bush administration's position that persons allegedly involved in terrorism were participating in a war and could be held indefinitely without trial. This was the second step in the process of establishing indefinite detention without trial as a mainstay of the US approach to fighting terrorism.

NDAA Political Cartoon2011 - In March, President Obama issued an executive order authorizing the use of indefinite detention. This was the third step in the process of establishing indefinite detention without trial as a mainstay of the US approach to fighting terrorism. Then, on December 31, President Obama signed the National Defence Authorization Act (NDAA) which included a provision allowing indefinite military detention without trial. This was the fourth step in the process of establishing indefinite detention without trial as a mainstay of the US approach to fighting terrorism. The law is especially troubling to civil rights advocates on several levels:

2012 - January 11th marked the 10th anniversary of the detention of prisoners at Guantanamo. At that time, 171 prisoners remained at the site: 36 await trial on war crimes charges, including the alleged mastermind of the Sept. 11 attacks; 46 are in indefinite detention and the U.S. considers them dangerous but they cannot be charged for lack of evidence or other reasons; 32 are considered eligible for release which had not occurred largely because of congressional restrictions; and 57 men from Yemen have not been charged but the government won't let them go because their country is unstable.

Five major points in regard to our discussion on civil liberties versus national security

  1. Throughout American history during times of national crisis, our civil liberties have been violated in order to protect Americans from potential dangers.
  2. During most of these times, American citizens have rarely protested the deprivation of our civil liberties, reacting, instead, with fear and believing that we will be safer without them.
  3. The PATRIOT Act, the most current legislation that deprives us of some of our civil liberties, is not a revolutionary attempt to curtail our civil liberties, but in fact is just the last in a long list of such violations.
  4. The Obama administration's decision to back the new provisions of the NDAA is a landmark decision that not only shifts the responsibility for dealing with suspected terrorists anywhere in the world to the military, but also makes the suspension of the right of habeas corpus in suspected cases of terrorism a permanent part of American law.
  5. The American people are responsible for maintaining and protecting our freedom – the civil liberties guaranteed in our Constitution.