Balkinization  

Tuesday, August 31, 2004

Civil Liberties in "Wartime" I

Mark Graber

Most critics of the Patriot Act accept that some restrictions on civil liberties are the norm in wartime. But American history offers numerous counterexamples. Wartimes have as often provided occasions for expanding as restricting civil liberties. The Patriot Act is more about George W. Bush and John Ashcroft than about an American norm of behavior in times of national danger.

From the very beginning of the republic, military conflicts inspired increased protection for civil rights and liberties. Members of Revolutionary War militias refused to fight until they were granted voting rights in their communities. Lincoln justified the Emancipation Proclamation as a military necessity. Woodrow Wilson in 1917 insisted that the threat of war justified extending the eight-hour day for workers and in 1918 declared that women's service during the war provided crucial grounds for passing the Nineteenth Amendment. The Supreme Court in 1943 ruled that government could not compel students to salute the flag, overruling its prewar decision just three years earlier. Both Justice Jackson's opinion for the Court and Roosevelt administration officials made clear that mandatory flag salutes too much resembled policy of the hated Nazi regime.

Free speech rights, restricted in some wars, are protected in others. Political dissenters during the Spanish-American War failed miserably in their self-conscious efforts to provoke government repression. The postmaster general permitted powerful anti-war pamphlets to be mailed. American Nazis won six of seven speech related cases adjudicated by the Supreme Court from 1941 to 1946. Most remarkably, given constant claims that only an independent judiciary can prevent elected officials from curtailing rights, President James Madison during the War of 1812 repeatedly ignored Justice Joseph Story's pleas for a national sedition bill.

Brown v. Board of Education is the most famous instance of how military tensions inspire efforts to expand civil rights and liberties. Such scholars as Derrick Bell, Mary Dudziak, Philip Klinkner and Rogers Smith have detailed the ways in which the Cold War was responsible for numerous racially liberal policies. Government officials regarded measures aimed at expanding African-American freedom as crucial to American struggles against the Soviet Union. The Justice Department in Brown informed the justices that "racial discrimination in the United States remains a source of constant embarrassment to this Government in the day-to-day conduct of its foreign relations," and that it "jeopardizes the effective maintenance of [American] moral leadership of the free and democratic nations of the world."

What administration officials do during a war depends largely on their predispositions before the War. Members of the Wilson administration had exhibited no solicitude for speech rights before the war, and restricted those rights sharply during the war. Members of the Roosevelt administration, by comparison, were supportive of civil liberties before the war, and regarded World War Two as a vehicle for advancing more libertarian and egalitarian policies.

Civil liberties during the present war against terrorism fit this historical pattern. The Bush administration is restricting primarily those rights that the administration sought to limit before September 11. The Patriot Act and related administration actions are consistent with previous Bush administration efforts to increase the power of government agencies to investigate criminal activities, to limit the procedural rights of criminal suspects, and to favor management over labor unions. The Patriot Act contains several provisions whose impact is limited to ordinary domestic crime. The mass detention of foreign nationals merely carries to an extreme previous policies that vested aliens with fewer and fewer legal rights. When, as is the case with gun control, the Bush administration before the war aggressively supported the right in question, it has steadfastly declared that present military conditions do not justify any intrusion into the constitutional rights of Americans.

Coming attractions: Gays in the Military or why not offending social conservatives seems a higher political priority than gaining edges in the war on terrorism.


Comments:

Of course every word of this is correct, but you realize they named it the "Patriot" act...needless to say we're all decidedly unpatriotic americans to look crosseyed at anything bearing that title, or even suggest we wouldn't support a u.s. president sitting even during a wartime he himself brought about with no assistance from those with the power to declare it...
 

Not a very convincing analysis. I don't think your paeans to the Roosevelt administration's dedication to free speech would impress Fr. Coughlin (or Moses Annenberg).
 

I must disagree, anon., granted I went to U.M. and there's a high concentration of legal realism left over from the Llewellyn and Mentschikoff days, but I just think the brand of civil libertarianism the Frankfurter court was wont to practice still bore the color of extreme partisanism. Have to remember Fr. Coughlin, especially, took an awful change of mood towards FDR, Felix's oldest buddy, in the later years, and made an enemy of Frankfurter as well.

But that doesn't interfere with the hypothesis that our Court vies for power, the direction only changing with the particular agenda of the Court in question. In fact, I see it as no different from the constant attempts at expansion of the executive powers during the same moment. Until recently, when Congress played doormat and granted the executive all but unlimited war powers, I would've laid the blame for that greed at all three doorsteps.

And to some degree, I think that's how its supposed to work. Isn't the idea of checks and balances reliant on competing greed from the branches? Its just a matter of luck when the branch that wins the fight has social justice on the brain.
 

Not quite sure what Mr. Chopin is agreeing or disagreeing with. Certainly the Supreme Court during WWII was more solicitous of civil liberties than the Roosevelt administration (a low bar!), but the original post attempts (disingenuously) to spin the Roosevelt administration as more solicitous of civil liberties than the Bush administration.

As to the Supreme Court, it is interesting that the Court had in fact much more power during the WWII era than it had during the Civil War. Taney et al. issued a number of opinions objecting to the Lincoln administration's abridgements of civil liberties, but the administration ignored those opinions in a way that neither Roosevelt nor Bush could hope to get away with politically. Why the Supreme Court's power had grown so during the years from 1860 to 1940 is an interesting question, really more interesting than the original post, but I don't have a good answer.
 

I don't know if the post is trying to say that FDR (internment, anyone?) is better than Bush ... he's saying that war doesn't necessarily only compress civil liberties. I think he oversells his point, but he does provide some interesting examples.

Japanese internment doesn't quite have an applicable comparison these days, and free speech law was of a different caliber in that era, so making comparisions is somewhat hard. Still, the amount of protections given to even sabatouers (and the acclerated hearing was deemed troubling and not used again in future cases) compares well to the treatment our own citizens have received by the Bush Administration.

Also, several Supreme Court cases of the era promoted civil liberties growing from wartime conflicts, a few quite enthusiastic. Don't know how well our current Court compares.
 

Joe's got the idea. I don't think the spin of any particular administration is the idea. The point isn't FDR good, Bush bad, or anyone else in the middle, at least IMHO. The point is that politicians, regardless of the direction of their personal motivation, take advantage of wartime to advance their particular agenda. I think if anything, the resulting principle is that Americans pay less attention to the restrictions in place on political systems the moment you mention there's a war and impune their patriotism the moment they don't defer entirely to the government's power....
 

Perhaps this analysis would be more useful if it mentioned the specific provisions of the Patriot Act that restrict freedom. The fact of the matter is that freedom has been increased and decreased often by the same entity during a war. You cite Lincoln, but there are numerous examples of his administration taking freedom away at some times from some groups and increasing it to others. In fact the Emancipation Procclamation removed freedom from the states and individuals but at the same time granted it to others. You cite the Supreme Court in 1943, but its decision was a response to the other branches of the government trying to restrict freedoms.

You cite Supreme Court cases reversing policies of the executive and legislative branches. The same may yet happen with the Patriot Act, in which case this might not be a time of restriction of civil liberties.

"The Patriot Act is more about George W. Bush and John Ashcroft than about an American norm of behavior in times of national danger."

If this were true then how did the Patriot Act pass Congress, certainly a majority of Congressmen must have thought the Patriot Act worthwhile, which means that a majority or at least a significant minority of people that they represent thought the Patriot Act to be acceptable. This is about the executive and legislative branches trying to do what they can to increase their effectiveness in fighting a war. While it is the Constitution which protects us from the tyranny of the majority, it is often the case that Supreme Court rulings remind the populace and the government of this.
 

The idea that the majority of congress had to think the Patriot Act was worthwhile, I'm afraid, leaves me behind. You can't discount the flagwaving involved. Any democrat who didn't vote for the bill, or the war, would've had to answer to accusations of unpatriotic behavior, and couldn't rely on anyone having read the bill...just the title.
 

Clearly, talking past each other. The original post challenged the alleged truism that war just tends to reduce civil liberties. It does so by citing cases where the opposite occurred. This does not mean that other cases during said wars reduced civil liberties.

I can understand saying the Patriot Act is necessary, but it is not exactly complicated to find cases where it threatens constitutional liberty. For instance, it reduces the proof needed to get certain kinds of warrants, in some cases making the Fourth Amendment an empty vessel. This includes the library provision getting all the grief -- barring searches isn't the point, it is supplying special judicial safeguards that the 1st and 4th Amendment arguably demands.

Also, rushing it into law with little discussion within a month of 9/11 is just not the way to pass major pieces of legislation. The provisions were dreams of some sorts for years. They weren't put into place for various reasons.
 

At my age (74), I do not have the time to read everything I perhaps should or want to read. But it sticks in my craw that Congressmen can vote for a bill that they have not read or had at a very minimum properly vetted to them by a responsible person. The same applies to a President. But this is good for my legal profession as we look, as W.C. Fields said, for "Loopholes, Loopholes!" The Founding Fathers did not create a perfect document with the Constitution but they spent plenty of time working it out. Perhaps Congressmen should be required in voting on a bill to disclose whether or not they have read it as it is surely clear that there is currently no presumption that they have.
 

Forget disclosure. I want random pop quizzes with reading comprehension questions.
 

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