Civil Liberties: How the Courts Will Respond

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Mr. Klarman is Visiting Professor in Law at Stanford University.

America is at"war" with international terrorism. Civil liberties and war have tended to coexist uneasily in American history. Many of the Bush administration's recent anti-terrorism proposals suggest that the historical pattern of civil liberties contracting during wartime is in the process of repeating itself. Among other things, the President has claimed the power to try foreign citizens accused of terrorism before military tribunals that lack the due process trappings of ordinary criminal court proceedings-for example, the unanimity requirement for conviction, the requirement of proof beyond a reasonable doubt, a defendant's right to choose his own lawyer, the right to appeal a conviction. The administration also has engaged in race profiling of recent immigrants whom it wishes to interrogate, eavesdropped on conversations between criminal suspects and their lawyers, and secured broader authority from Congress to conduct secret searches, to wiretap, and to detain suspects for extended periods of time without filing charges against them.

All of these anti-terrorism measures raise serious constitutional questions. And the one point that is crystal clear is that the law governing these questions is uncertain. The text of the Constitution is notoriously open-ended and indeterminate. Precedents on issues like the constitutionality of military trials for civilians are few and far between, and in any event, always subject to overruling. Terrorist incidents of the proportions of September 11 are unprecedented in this nation's history, and the law nearly always contains sufficient flexibility to accommodate itself to changed circumstances. In light of such considerations, how are the courts likely to respond when the inevitable legal challenges are brought against the administration's anti-terrorism measures?

While the law itself may not be sufficiently clear to provide certain answers, the consistent course of American constitutional history allows for a confident prediction as to how courts will respond: They will defer to dominant public opinion, as they always have. Civil liberties almost invariably have come under fire during previous American wars. During the"quasi-war" with France in 1798, the Adams administration secured passage of the Alien and Sedition Acts, which expanded the President's authority to incarcerate and deport aliens and criminalized speech that was perceived to be overly critical of the President or Congress. During the Civil War, the Lincoln administration employed military tribunals to try civilians, some of whom were charged with offenses no more serious than expressing solicitude for the Confederacy. During World War I, a couple of thousand Wilson administration critics -- ranging from anarchists and communists to pacifists and civil libertarians -- went to jail under the Espionage and Sedition Acts, often for behavior no more dangerous than questioning the administration's war aims. During World War II, roughly 120,000 Japanese-Americans, most of whom were full-fledged American citizens, were forcibly removed from their West Coast homes, given a week to sell off their belongings, and incarcerated in internment camps for the war's duration. In the 1950s, at the peak of McCarthyism, thousands of Americans lost their jobs, were subjected to harassing legislative investigations, and sometimes even went to jail for their alleged complicity with Communists.


How did the courts respond to these various war-time invasions of civil liberties? Every federal judge to hear a first amendment challenge to the 1798 Sedition Act rejected it. The Supreme Court during the Civil War denied that it had jurisdiction over a case challenging the constitutionality of military trials of civilians. The Supreme Court in 1919 rejected several First Amendment challenges to criminal convictions under the Espionage and Sedition Acts for criticizing the Wilson administration's war policies. In Korematsu v. United States (1944), the High Court denied that Japanese-American internment violated the Equal Protection Clause of the Fourteenth Amendment. In a series of early 1950s decisions, the Supreme Court rejected the due process and free speech claims of alleged communists who were challenging criminal prosecutions, legislative investigations, and job dismissals. On all these occasions, the Supreme Court vindicated the old maxim that" courts love liberty most when it is under pressure least." One might wonder why the courts have proven so supine in the face of what seem, at least from a later historical perspective, to have been glaring constitutional violations. The answer is that the judges were part of the same culture and historical moment that had proven willing, indeed eager, to trade off civil liberties for greater security.

For example, with regard to Japanese-American internment, it is worth recalling that in the wake of Pearl Harbor, most Americans expected a Japanese invasion of the West Coast, and indeed some newspapers actually reported soon after December 7, 1941 that such an invasion was underway. Fuel was added to the fire by a special government commission report in January 1942, which found that Japanese espionage in Hawaii had contributed to the debacle at Pearl Harbor. A string of sweeping Japanese military victories in the South Pacific further inflamed public opinion in the United States against Japanese-Americans. By early 1942, most West Coast politicians and national opinion-molders were endorsing exclusion and internment. Congress passed the bill criminalizing defiance of a military exclusion order by voice vote after the most perfunctory debate. Even the American Civil Liberties Union was bitterly divided over the constitutionality of the military exclusion order, ultimately concluding that national security during wartime could justify exclusion of citizens from a military zone. This was the historical context within which the Supreme Court decided Korematsu, rejecting constitutional challenges to the government's evacuation and internment policy.

Similarly, the Court's 1950s decisions failing to protect the civil liberties of political radicals were issued during the heyday of McCarthyism. Within the space of just a couple of years (1949-1951), mainland China fell to the Communists, the Soviets detonated their first atomic bomb, North Korea invaded the South, Klaus Fuchs and the Rosenbergs were convicted of transferring nuclear secrets to the Soviets, and Senator Joe McCarthy announced pervasive communist infiltration of the State Department. The Red Scare swept the nation. As late as the mid-1950s, the American Civil Liberties Union remained bitterly divided over whether to regard Communist Party affiliation as protected by the First Amendment. Politically liberal organizations such as the CIO, the NAACP, and the American Jewish Committee conducted internal investigations and expelled members alleged to be communists. It was the liberal cofounder of Americans for Democratic Action, Senator Hubert Humphrey, who in 1954 proposed legislation to outlaw the Communist Party. Against this backdrop, it is hardly surprising that the Supreme Court would uphold the constitutionality of loyalty oaths, legislative anticommunist investigations, or criminal prosecutions for subversion.

While judicial acquiescence in wartime invasions of civil liberties thus seems completely understandable, it remains cause for regret, given that each of the judicial failures to intervene noted above has been condemned by the judgment of history. Within a few decades, the conventional wisdom held that the Sedition Act of 1798 was a paradigmatic First Amendment violation. Most Civil War historians have criticized the Lincoln administration's use of military tribunals for trying civilians, many of whom were accused of little more than making disloyal statements. Within a decade or two, the Court's refusal to overturn World War I prosecutions under the Sedition Act was widely judged a lamentable failure to vindicate the First Amendment. Recent scholarship has judged the Korematsu decision upholding internment of Japanese-Americans to be"infamous,""a disgrace," and"one of the Court's most heinous decisions." Similarly, late twentieth century scholars have regarded the Court's failure to stand up for freedom of speech and association during the excesses of the McCarthy era as a"judicial abdication of responsibility," and have labeled these decisions"disastrous,""shameful," and"infamous."


One lesson that might be drawn from these scathing retrospective critiques of the Court's wartime failures to safeguard civil liberties is that people not living through the same historic moment that produced the repressive policies should not be too quick to criticize judges who felt the same exigencies that produced the policies in the first place. Another, quite different lesson one might draw, however, is that the American government frequently has exaggerated security threats during wartime and has adopted repressive measures that, in retrospect, seem difficult to justify. The problem, of course, is that the tradeoff between security and civil liberty must be made without the aid of historical hindsight. In addition, the cost of erroneously minimizing security risks is potentially enormous, which translates into a willingness to err on the side of greater security, especially when the civil liberties being traded off are those of an unpopular minority group (political radicals, Japanese-Americans, recent Middle Eastern immigrants).

The main lesson I would draw from this brief excursion through our nation's constitutional history is that the American people should be cautious about the civil liberties policies they embrace, because once the political branches have adopted them, courts almost certainly will not interfere. Ultimately, we choose our own fate, and we should not delude ourselves into thinking that courts will save us from our own mistakes.

Rather than ending on this sobering note, though, I want to mention a different, more optimistic, lesson one might draw from this nation's constitutional history. Several prior episodes of civil liberties repression have generated backlashes in public opinion that ultimately produced even broader civil liberties protection. Prosecutions under the Sedition Act of 1798 ultimately produced a backlash in favor of a broader conception of free speech. Widespread mob violence against abolitionist speakers and newspaper editors in Northern states during the 1830s ultimately generated a similar backlash in favor of the free speech rights of these antislavery agitators. Criminal prosecutions under the Espionage and Sedition Acts during World War I inspired the creation of the American Civil Liberties Union and probably contributed to the Supreme Court's inauguration of modern First Amendment doctrine just a decade later.

Moreover, while American wars generally have produced short-term contractions of civil liberties, they often have generated longer-term expansions in civil rights, by enlarging the pool of freedom's beneficiaries. The Revolutionary War led directly to the abolition of slavery in many northern states. The Civil War not only emancipated Southern slaves, but also expanded the civil and political rights of African-Americans. World War I accelerated the culmination of the women's suffrage movement, leading directly to passage of the Nineteenth Amendment in 1920. World War II was the proximate cause of the modern civil rights movement, as well as an important factor in the mid-twentieth century expansion of free speech concepts.

There are several reasons why wars may expand particular freedoms, while contracting others. First, Americans tend to define their war aims in democratic terms. World War I was the war"to make the world safe for democracy." World War II was fought against fascism and the multitude of unfreedoms it represented. Many, though by no means, all Americans were unable to escape the cognitive dissonance inherent in fighting against Nazi doctrines of Aryan supremacy with a racially segregated army. The Supreme Court, unable to reconcile the war's democratic ideology with the continued disfranchisement of Southern blacks, finally invalidated the white primary in 1944. The Court likewise invalidated sterilization of recidivist criminals with a disapproving, thinly veiled reference to the eugenics experiments of Nazi scientists. Another Court ruling in 1940 expanded the due process ban on coerced confessions with a disparaging allusion to the law enforcement tactics of totalitarian nations.

Wars, especially total ones like the Civil War and World War II, undermine traditional patterns of status and behavior. President Lincoln was driven to emancipate and then arm the slaves only after a year's effort to suppress disunionism without disrupting traditional racial patterns had proved unavailing. The women's suffrage movement, which for nearly three quarters of a century had failed to secure a constitutional amendment enfranchising women, finally triumphed during World War I, when military conscription and industrial preparedness reduced the male labor supply sufficiently to force popular acceptance of women assuming nontraditional economic and social roles. The extraordinary manpower demands created by World War II opened unprecedented civil and military opportunities for African-Americans and thus accelerated the breakdown of traditional patterns of racial subordination.

Finally, war usually involves common sacrifice for the general good and thus has inescapably egalitarian implications. The sacrifices of the freedmen on Civil War battlefields helped secure post-war constitutional amendments guaranteeing basic civil and political rights to African-Americans. The battlefield sacrifices of American Catholics during World War I paved the way for their accelerated assimilation into the nation's cultural mainstream during the 1920s and 1930s, as America's unofficial Protestant establishment began slowly to crumble. If African-Americans were good enough to fight and die for their country during World War II, surely they were good enough to vote and to deserve federal government protection against lynching and other racially-motivated violence.

Whatever the precise causal mechanism, American wars often have advanced the cause of particular freedoms, especially by expanding the pool of beneficiaries. Thus, while the nation's current war against international terrorism certainly will produce a short-term contraction of civil liberties -- one which courts are very unlikely to resist -- it is possible to retain some optimism about the future. Repression of civil liberties often generates its own backlash, and past American wars frequently have advanced the cause of human equality in indirect ways.

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Jerome L. Sternstein - 12/8/2001

Let's be precise about what Ashcroft said in his testimony before becoming hysterical. As he put it: "We need honest, reasoned debate, and not fear-mongering. To those who pit Americans against immigrants and citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of good will to remain silent in the face of evil." I find nothing offensive in these remarks. What is wrong with calling for reasoned debate instead of fear-mongering, which some critics of the present policy are clearly engaged in? What civil liberties, if any, have been abridged. Yes, recent immigrants on temporary visas, like 21 Iraqi citizens who illegally obtained permits in Pennsylvania and Michigan to drive trucks with hazardous materials, are now in custody. Yes, we don't know the names of hundreds of immigrants who have violated their visas and are awaiting deportation. But the fact is they all have access to lawyers. Should those names be published? Perhaps or perhaps not. The courts will eventually decide this issue. But is this a massive assault on the Bill of Rights or other sacred constitutional protections, as the hysterics are claiming? And what about military courts for the bin Ladens and Mullah Omars of this world? Again, there is room for "reasoned debate," not "fear-mongering", about their utility and legality in the present circumstances. Who can argue that some are trying to demonize Ashcroft for political reasons? What would they say, for example, if Ashcroft was quoted as arguing "A free nation has the right to expect full cooperation from all groups. . . The best way of dealing with the few slackers or troublemakers in our midst is, first, to shame them by patriotic example, and, if that fails, to use the sovereignty of Government to save Government." They would denounce him as a potential Hitler. These words, however, were uttered not by Ashcroft after almost 4,000 innocents were murdered by Islamic terrorists on American soil but by the icon of modern liberals, FDR, in his famous "Four Freedoms" speech in Jan. 1941, twelve months before Pearl Harbor. It is clear from this that Ashcroft is more in tune with Roosevelt than the professional "fear-mongers" on the left. It is also clear that he is more in tune with the American people.

By the way, it was Patrick Henry who said, "If this be treason. . . "

Jerry Sternstein

Sondra Cosgrove - 12/8/2001

Here is the problem that I have with historical analysis that identifies an egregious error in human action-so egregious that lives are destroyed both literally and figuratively-and then instead of raging against the injustice, aquiesces to it claiming the ignorance of the masses and their leaders cannot be remedied, yet holds out hope because in the end society will eventually gain from its errors. While this type of silver lining conclusion confirms that the end of civilization is not upon us, ulitmately it only serves to perpetuate the ugly view that the destruction of human life and justice is an acceptable price to pay for social evolution. I only wish that each person clammoring for the open curtailment of civil liberties and cheering the formation of witch hunts could for one moment feel the anguish of those people who are the subject of those curtailments and hunts. Maybe then we could really evlove.

Sondra Cosgrove

Sondra Cosgrove - 12/8/2001

I wish there was a geographic realm for people who say that they don't mind trading ultimate security for the inconvenience of having some innocent people's rights infringed upon where it is only they who are having their rights denied and lives destroyed. How long do you think those people would wish to stay in a world that resembles Nazi Germany more than the United States?

Protection also means not destroying our society's history of equitable social justice.

Sondra Cosgrove

Comment - 12/7/2001

Today's Times reports that Ashcroft claims opponents of his policies "only aid terrorists." This is tanatamount to accusing them of treason, which is typically defined as "giving aid and comfort" to the nation's enemies. Mr. Ashcroft is clealry living in some kind of neo-Stalinist dreamworld, precisely like that he invokes for those who think there will be no more 911's. He demonstraates a fatal misunderstanding of democracy and its workings.

It is time to bring home to him the fundamental truth of the way of life he pretends to support. It is time for a new Un-American Activities Committe, this one fielded by citizens. Its aim must be to protest and prevent this kind of autocratic bullying on the part of those who pretend to serve us. Let us re-educate our government by every available peaceful means.

I'm not sure who it is I quote in saying "if this be treason, make the most of it," but it's a sentiment I must adopt.

Tristan Traviolia - 12/7/2001

The bottom line is that our elected officials are required to protect us. Can they completely protect us while perfectly respecting civil liberties? NO. Do the American people demand complete protection? Absolutely. The American people are willing to sacrifice an enormous amount of civil liberties in times of conflict to obtain as complete a protection from foreign aggression as possible. I wish there was a geographic realm where we could put those more interested in civil liberties than bodily safety. I wonder how long they would choose freedom for terrorists in their midst over the safety of their children going to school in the morning? Unless you believe there were only nineteen terrorists in America on September 11 then there are terrorists in our midst. I demand that the government protect my family from these terrorists at "virtually" any cost. I would like to know how I will receive the best possible protection without infringing the rights of some innocent people. I am not willing to sacrifice the lives of my family or loved ones in the cause of respecting civil liberties completely during a time of conflict with an enemy as insidious as Bin Laden's suicide bombers.