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Violations of Civil Liberties are an American Tradition

June 18, 2005
By Gene C. Gerard

President Bush is currently lobbying Congress to reauthorize portions of the Patriot Act that are scheduled to expire. While the Patriot Act contains provisions much needed in the war on terrorism, it also has elements that are in conflict with the civil liberties enshrined in the Constitution. Many of the provisions are violations of the Fourth Amendment right against unreasonable searches and seizures.

The Patriot Act allows the government to search someone’s home or office without informing them. It allows the government to obtain an individual’s library records, medical history, and financial documents, among many other items, without any probable cause of a crime. It requires judges to approve of wiretaps without knowing whom the suspect is. Immigrants and non-citizens can be jailed for an indefinite period of time, without any requirement that the government demonstrate that they are a threat to national security.

It’s not surprising that the federal government is attempting to strip people of their fundamental rights and freedoms. During the last two centuries, this has been a common occurrence in America during a time of war.

In the Vietnam War, the Nixon administration used the Federal Bureau of Investigation so spy on anti-war activists. And it directed the Internal Revenue Service to harass members of the anti-war movement. After former intelligence officer Daniel Ellsberg gave top-secret files concerning U.S. involvement in Vietnam to the press, President Nixon ordered his secret White House agents to break into the office of Ellsberg’s psychiatrist and obtain documents that could be used to embarrass him.

Congress became obsessed with the specter of communism during the Korean War. Consequently, it passed the McCarran Internal Security Act of 1950. The act required organizations regarded to be communist to register with the Department of Justice, to identify their members, and to furnish their financial records. It also excluded communists from employment in defense factories. Communists were barred from immigrating to the U.S., and any alien suspected of being a “subversive” could be deported.

In 1952, Congress became more fearful of communist and subversive elements, so it passed the McCarran-Walter Immigration and Nationality Act. It barred immigration to anyone who advocated “communism, anarchism, or opposition to organized government – or persons who have associated with Marxists or subversives.” All “subversive and undesirable aliens” were prohibited from entering America. It also prevented aliens who were gay from entering, which the act defined as immigrants “afflicted with psychopathic personality.”

After the U.S. entered World War II following the attack on Pearl Harbor, the Roosevelt administration became fearful that spies and saboteurs were living among Japanese-Americans. In March 1942 President Roosevelt issued Executive Order 9102, which mandated the internment of Japanese-Americans on the West coast. Between 1942 and 1944, approximately 120,000 Japanese-Americans were held in internment camps for some period of time. More than two-thirds were native-born American citizens of Japanese ancestry. The government gave families only a few days to dispose of their homes and businesses and prepare for internment. A Congressional study in 1982 estimated their total financial loss at $400 million.

The federal courts twice upheld the constitutionality of the internment policy. In 1943, the Supreme Court ruled in Hirabayashi v. United States, “residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of different ancestry.” A year later, the Supreme Court ruled in Korematsu v. United States that internment was a necessity of war.

During World War I, there was intense opposition to America’s involvement in its first international conflict. President Wilson and Congress responded with a series of Draconian laws designed to squash dissent. In 1917, Congress passed the Trading with the Enemy Act, which prohibited the mailing of magazines and newspapers that were characterized as offensive to the government. “The Masses” magazine was barred because of an article that asserted, “This is Woodrow Wilson’s and Wall Street’s war.”

This was followed by the Espionage Act, which was created to prevent spying and sabotage, but also carried penalties of a twenty-year prison sentence and a $10,000 fine for merely criticizing the war. In 1918, Congress passed the Sedition Act, which made it illegal to use “disloyal, profane, scurrilous, or abusive language” about the war, the federal government, the Constitution, the flag, and the armed services. Approximately 2,100 people were prosecuted under this act. One individual received a jail sentence for remarking, “This is a rich man’s war.”

Anti-war activist Kate Richards O’Hare served a year in prison for telling a small crowd in North Dakota, “The women of the United States are nothing more than brood sows, to raise children to get into the army and be made into fertilizer.” Socialist politician Eugene V. Debs was imprisoned for three years after giving a speech on the economic causes of the war. The Supreme Court upheld the constitutionality of the Sedition Act in Abrams v. United States, when it ruled that a pamphlet printed by Russian immigrant Jacob Abrams, which criticized the war, was an attempt to discourage the war effort.

President Lincoln was also concerned with dissent and criticism during the Civil War. In 1862 he suspended the writ of habeas corpus, which protects against unlawful imprisonment, throughout the North and announced that it applied to “all persons discouraging volunteer enlistments…or guilty of any disloyal practice.” Approximately 20,000 people were arrested for disloyalty of other offenses, most of who were never charged with a crime or brought to trial. Additionally, a number of newspapers were banned for criticizing the war.

Clearly, the government’s efforts to limit civil liberties during wartime are a long-standing tradition. But so is the willingness of the American people to allow it. Hopefully, current discussions regarding the Patriot Act will encourage the public to respond differently this time.

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