Civil Liberties in "Wartime" I

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.