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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