By Peter E. Mayeux
Prepared for the History News Service, an independent syndicated American history news service
When outside forces seriously threaten essential U.S. interests and safety, restrictions are often placed on basic democratic freedoms and civil liberties. A delicate balance has to be struck in times of crisis: American lives have to be protected, but essential Constitutional freedoms and guarantees must also be maintained. The current war on terrorism has generated legislation and concern about this delicate, tenuous balance of protection and safety vs. restraint and restriction.
Can this balance be established and maintained in the current war on terrorism? What compromises must be made? Is there common ground between these two often opposing objectives?
Certainly, legal considerations must be examined. However, historical lessons from America's twentieth century also may help guide us to find the balance needed to make what appears to be opposite actions evolve into a coherent and consistent policy to help ensure fair and equitable treatment of terrorist actions while maintaining the safety and freedom of Americans.
This essay will examine current and proposed legislation in this area, review incidents that have caused serious conflicts, provide historical parallels that can offer useful perspectives and then form conclusions that can help assess the situation for the immediate future.
The Patriot Act, signed into law in October 2001, gives the government new powers to obtain personal information about U.S. citizens and allows the government to detain aliens deemed threats to national security and hold them without public acknowledgment. Federal law enforcement agencies also have greater wiretap authority, access to student and library records and Internet wiretap powers and broad powers to seize bookstore sales records to determine what people have been reading. Such court orders cannot be challenged like a traditional subpoena. In fact, bookstores and libraries are barred from telling anyone if they receive an order.
The Patriot Act expands the class of immigrants who are subject to removal on terrorist grounds and expands the Attorney General's authority to place immigrants he suspects are engaged in terrorist activities in detention while their removal proceedings are pending.
The term "engage in terrorist activity" has been expanded in the Patriot Act to include soliciting funds or membership for a "terrorist organization," even when that organization has legitimate political and humanitarian ends. The term "terrorist organization" now includes groups that had never been designated as terrorist if they fall under the loose criterion of "two or more individuals, whether organized or not," who engage in specified terrorist activities.
Critics assert that the Patriot Act delegates more power to the executive branch while undermining the Bill of Rights.
The Act does not require judicial or Congressional oversight, so it is almost impossible to determine how provisions have been implemented or whether they should be extended beyond 2005.
Only a few of the Patriot Act's provisions expire on Dec. 31, 2005, unless renewed by Congress. One provision set to expire allows the FBI to resume domestic spying on government "enemies" - a program that reached an ugly apex under J. Edgar Hoover's directorship.
One provision not scheduled to expire in 2005 allows the government to install a formidable tracking device capable of intercepting all forms of Internet activity, including e-mail messages, Web page activity and Internet telephone communications.
Provisions in a second act, The Domestic Security Enhancement Act (dubbed "Patriot II"), are likely to be attached piecemeal to other legislation, making it more difficult to identify and oppose. As of this writing (November 2003), this new legislation sits on the Senate Judiciary Committee hearing docket.
Patriot Act II would radically expand law enforcement and intelligence gathering authorities' power without judicial review, reduce or eliminate judicial oversight over surveillance, authorize secret arrests, create a DNA database based on unchecked executive orders, create new death penalties and take away American citizenship from persons who belong to or support disfavored political groups. Provisions presume that those accused of terrorism should not be released on bail.
U.S.-based Muslim leaders have charged that the USA Patriot Act, passed in response to the Sept. 11 terrorist attacks, is the biggest threat to essential U.S. democratic principles. The criticism came at a Muslim-American convention after hundreds of Middle Eastern immigrants were detained when they voluntarily registered with the Immigration and Naturalization Service under new federal guidelines.
Families are now suing the United States in hopes of obtaining freedom for family members held for questioning for over a year at Guantanamo Naval Base in Cuba.
Several Muslim-Americans were detained recently after donating money to U.S.-based Muslim charities later identified as possible terrorist group supporters.
Restrictions such as these bear startling resemblances to several events in American history in which the need for domestic security had to be balanced with the need to protect constitutionally guaranteed civil liberties. U.S. history is replete with examples of excessive government restrictions on constitutional freedoms in times of crisis.
The 1798 Alien and Sedition Acts made it illegal to criticize then-President John Adams. The president could deport any alien whom he considered dangerous to America's safety. Supporters believed impending war with France justified strong measures to promote national harmony and remove internal threats to domestic security. Opponents countered that these laws could be used to punish and stifle all criticism of government and its officers.
At the onset of the Civil War, Abraham Lincoln suspended the writ of habeas corpus, allowing protestors and rioters to be arrested and held without formal charges.
During World War I, about 75 Socialist and German-American and a few pacifist or anti-Ally publications lost mailing privileges. Translations of foreign language publications could be ordered. Censorship of all communications moving in or out of the United States was authorized. This parallels the Patriot Act provisions allowing liberal access to wiretaps, student and library records and bookstore purchases.
The Supreme Court upheld President Roosevelt's Executive Order 9066 mandating the World War II internment of more than 100,000 Japanese-Americans and Japanese immigrants based solely on their ancestry, refusing to recognize their preventive detention as a violation of the Equal Protection Clause. Public reaction was mild, and few Americans saw the full implications of such a scheme. Some feared that Japanese living along the West Coast would help the Japanese military with invasion plans. The fear that gripped the country just after the bombing of Pearl Harbor was used to justify this treatment of Japanese-Americans.
It is certainly easier to identify errors in hindsight. In a February 1992, front page editorial, the San Francisco Examiner wrote:
"This newspaper, along with others, advocated internment [of Japanese Americans]. Newspapers are products of human beings - reflecting all their shortcomings as well as their talents, their myopia as well as their broader vision. ... The lesson from this chapter in American history is to remind ourselves every day that the Constitution applies to all. We must make sure it always does. The Examiner apologizes!
Civil liberties were restricted in the 1950s when the House Un-American Activities Committee and Wisconsin Sen. Joseph McCarthy accused American citizens of Communist Party affiliation. McCarthy bullied his way to national prominence by exploiting fear of Communism at the depth of the Cold War, ruined unjustly many reputations with half-truths, innuendo, guilt by association or outright lies. Americans generally applauded efforts to rid the U.S. of Communist influences they thought would endanger national security and upset the democratic values that define the nation.
The FBI and CIA investigated more than half a million Americans during the McCarthy era and afterwards. The government conducted pervasive surveillance of Martin Luther King in the 1960s during the Civil Rights Movement. Section 312 of the Patriot Act II would effectively re-authorize the CIA and FBI to engage in domestic surveillance of U.S. citizens, regardless of any tangible evidence of criminal activity.
The Patriot Act is forcing people to start discussing their rights and liberties under the Constitution and what they can do to preserve them. Vermont, Hawaii and Alaska, along with more than 125 cities, have already passed resolutions against the Patriot Act. Other governmental entities may join them. Librarians and civil liberties groups have asked Congress to scale back a federal anti-terror provision that allows the FBI to confiscate library records.
Under what circumstances should guaranteed civil liberties be suspended or even changed by law? How severe should the apparent outside threat be before the greater good of citizen safety outweighs concerns for individual liberties? How long should such restrictions remain in place?
"The irony is that we claim to be fighting for freedom," said Charles Haynes, senior scholar at the First Amendment Center in Arlington, Va. "The reality is that at home, we often show how sometimes superficial our commitment is to the very principles we're defending."
Most of us acknowledge that some temporary limits on freedom may be necessary to pursue and destroy terrorist networks and to prevent future attacks. However, many of the provisions in Patriot II would authorize new government powers without adequate safeguards - and, in some cases, without limiting the powers to terrorism investigations. History teaches us that once given, sweeping powers of search and surveillance will be difficult to take back. And once employed to combat an immediate threat, such powers may be subsequently used in unanticipated ways to suppress legitimate dissent.
Law enforcement and intelligence agencies must use their new powers carefully and limit their use to bona fide investigations into terrorist acts. Several provisions in the Act are aimed at curbing nonviolent, domestic computer crimes and have no apparent direct connection to preventing terrorism.
Former FBI Director William Sessions is quoted as saying, "The balance between civil liberties and sufficient intelligence gathering [is] a difficult one. ... We need to be sure that we provide an effective means to deal with criminality. ... At the same time, we need to be sure that we are mindful of the Constitution, mindful of privacy considerations, but also meet the technological needs we have" to gather intelligence.
If laws are misused to spy on innocent people, courts should punish those who misuse their powers and Congress should reexamine its decision to grant such broad, unchecked powers.
Even though a 2003 Freedom Forum study indicated that more than 50 percent of Americans surveyed think we have too much freedom of speech, as citizens, we too must be watchful to protect our essential civil liberties. As in past times in U.S. history, it would be too easy to trample civil liberties again in hopes of somehow ensuring domestic security. Such a situation would be a serious loss to hard-fought American freedoms.
Can we win the battle against terrorism without dismantling the Constitution? For the sake of democratic freedom at home and abroad, we must.
Peter E. Mayeux is the Harold A. and Ethel Bash Soderlund Professor of Broadcasting at UNL.