Everyone is entitled to his own opinion, but not to his own facts.
--Daniel Patrick Moynihan

July 8, 2011

Constitutional Detours

By David K. Shipler
(adapted from The Rights of the People: How Our Search for Safety Invades Our Liberties, published in the Dartmouth Alumni Magazine, July-August 2011)

The glass through which Americans could see their Constitution was gradually losing clarity. Small, superficial cracks and microscopic crystals, discovered by National Archives technicians in 1995, would eventually bring opaqueness, and the hand-written codes of freedom would disappear from view.

Behind the cloudiness, moreover, the huge pages were endangered by the slightest of threats: an incremental rise in humidity inside the massive cases, which had been constructed in 1952 to house the Declaration of Independence as well as the Constitution and its Bill of Rights.

So, with the most advanced technology applied to preserving the nation’s most venerable treasures, new encasements were designed and tested against extremes. Sealed with materials developed for space flight, prototypes were submerged in ice and subjected to heat. Bases were fabricated of aluminum, and frames of titanium were plated with nickel and gold. When the modern containers were ready in 2003, the founding documents were carefully placed under thick, tempered glass. The cases were filled with the inert gas argon and fitted with ports and sensors for constant monitoring to keep the humidity at 40 percent, the temperature at 67 degrees Fahrenheit.

The seals, designed to last longer than a century, admit no outside air and no tiny insects that might gradually eat away at the precious sheets of parchment. If sheer science is sufficient, the Constitution will survive even the subtlest assault.
The faded words on the parchment’s surface have reached deeply into the human experience, yet Americans have struggled to live up to the principles they enshrine. Spasms of fear about national security have pushed us away from constitutional protections six times by my count, including the period that began September 11, 2001. If earlier patterns are repeated, today’s detour will end as the system proves self-correcting, and the country will look back on the violations with shame. So it was in five previous episodes.

A Bright Constellation Dims

Americans had scarcely gained their constitutional footing before they slid off course the first time, in 1798, seven years after ratifying the Bill of Rights. The French Revolution of 1789 triggered declarations of war on France by a coalition of European monarchies threatened by a domino effect. The United States sought neutrality to protect its fledgling trade by sea, but Britain and France seized hundreds of American ships.

A conciliatory peace spared the United States a war with Britain, and a virtual war with France arose, stoking exaggerated fears of French subversion and invasion at home. Congress passed and President John Adams signed three laws curtailing liberties. Under the Alien Enemies Act, whose powers remain in the U.S. Code today, citizens of a country in a declared war with the United States could be detained and deported. Under the Alien Friends Act, the president could seize and remove any foreign citizen, even of a friendly nation, without anything resembling due process. Many French were driven from the United States by a poisonous mood of suspicion and the threat of arrest.

The third measure, the Sedition Act, made it a crime “to write, print, utter or publish…any false, scan- dalous, and malicious writing or writings against the government of the United States, or either House of Congress, or the President, with intent to defame…or to bring them…into contempt or disrepute, or to excite against…the hatred of the good people of the United States….” Several influential American editors were imprisoned for acerbic criticism of President Adams. So was a Republican congressman from Vermont, Matthew Lyon, who had voted against the act and became its first victim after accusing Adams of “a continual grasp for power” and Alexander Hamilton of “screwing the hard-earnings out of the poor people’s pockets.”

The young democracy corrected itself. The Sedition Act contributed to public resentment, which helped the Republicans drive the Federalists out of power; it expired with the Alien Friends Act at the end of Adams’ term. Everyone convicted under the Sedition Act was pardoned by Thomas Jefferson, the new president, who in his inaugural address called the rights guaranteed by the Constitution “the bright constellation which has gone before us and guided our steps through an age of revolution and reformation.” He urged that “should we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety.”

Lincoln Oversteps
Speech was suppressed on both sides of the Civil War. Southern states outlawed abolitionist campaigning out of fear that it might stir slaves to rebel; Confederate President Jefferson Davis suspended the writ of habeas corpus and declared martial law. In the North several hundred newspapers were closed for various periods, at least eight major papers were banned from the U.S. mail for criticizing the war policies, and the Union Army under martial law seized men as suspected secessionists. A few were Northern editors who opposed the draft and the war and advocated negotiation with the Confederacy; one was a prominent politician. President Abraham Lincoln, who tolerated considerable vitriolic dissent, nonetheless suspended habeas corpus to evade due process for alleged Confederate sympathizers, thereby denying prisoners the basic right to challenge their incarceration before a neutral magistrate.

Chief Justice Roger Taney, sitting as a circuit judge, ruled that only Congress—not the president—could suspend habeas. Since civilian courts were operating, Taney added, they had jurisdiction, not the military. Again after the war, the Supreme Court found that if civilian courts were functioning, they could not be replaced by military tribunals.

Strife During Wartime

Against a groundswell of protest about the United States’ entry into World War I, President Woodrow Wilson warned that infiltrating German spies had “set criminal intrigues everywhere afoot against our national unity” and argued for “a firm hand of repression” against the “disloyal,” who “had sacrificed their right to civil liberties.”

The remedy, the 1917 Espionage Act, facilitated the prosecution of 2,000 German-Americans, labor union leaders, socialists and anarchists. Socialist newspapers were effectively barred from the mail, sometimes by removing their second-class postage privileges. In 1918 Congress added the Sedition Act—an echo of the 1798 version—which criminalized “any disloyal, profane, scurrilous or abusive language” about the American form of government, the Constitution, the flag, the military or its uniforms. The law penalized those who “by word or act oppose the cause of the United States” during wartime.

Convictions that reached the Supreme Court were upheld, most of them unanimously. It was a period of acute intolerance. The suppression of speech was endorsed by the American Federation of Labor, the American Association of Universities (urging that professors be fired for antiwar statements) and the American Bar Association (which condemned attempts “to hinder and embarrass the government” as “giving aid and comfort to the enemy”). The scope of permissible debate narrowed on other issues as colleges came under pressure from donors, religious leaders and government to dismiss faculty who were on the “wrong” side of Prohibition, immigration and Darwinism. In reaction after the war, universities adopted tenure to protect faculties against intrusions into academic freedom. The Espionage Act remains, but its most draconian provisions were eliminated in later legislation.

The Stain of Internment

Individual rights succumbed to national fear during World War II. Leftists and rightists were prosecuted under both the Espionage Act of 1917 and a new measure, the Smith Act of 1940, whose prohibition against advocating the overthrow of the government “by force or violence” was stretched to cover mere membership in communist or fascist organizations. (It is still on the books.) President Franklin D. Roosevelt, a civil liberties supporter in the abstract, repeatedly pressed his reluctant attorneys general to arrest his isolationist critics.

More than two dozen leaders of the Socialist Workers Party in Minneapolis, Minnesota, were indicted for opposing entry into World War II and organizing work stoppages in the defense industry; about the same number of fascist leaders were prosecuted in the Great Sedition Trial of 1944, which ended without convictions but effectively curbed speech on the extreme right. German-born Americans who expressed sympathy for Germany were stripped of their U.S. citizenship in 146 cases. State laws outlawed the uniforms of the pro-Nazi German-American Bund and the employment of communists, whose candidates were also barred from the ballot in 15 states.

After Pearl Harbor was attacked on December 7, 1941, Roosevelt invoked the 1798 Alien Enemies Act to designate 900,000 Japanese, Italians and Germans as enemy aliens required to register, to stay within five miles of their homes and to observe a nighttime curfew. They could be searched without warrants and were prohibited from owning guns, cameras and shortwave radios. Some 120,000 ethnic Japanese, about 80,000 of them American citizens, were expelled from their homes and locked up in 10 camps from California to Arkansas out of suspicion that they might aid Japan. They were implicated by their race and national origin alone, not by anything they had done. Their internment, upheld by the Supreme Court, is now almost universally regarded as a stain on American honor.

Cold War Fervor

After the Allied victory the Cold War against Soviet-led communism sowed fear into fertile ground. Legitimate criticism was confused with subversion. Communists and non-communists who campaigned for workers’ rights and against corporate power were denounced as tools in the Soviet Union’s designs on American security. Where earlier anxieties had been focused mainly on foreigners, Americans now stood condemned.The House Un-American Activities Committee, which compiled dossiers on 1 million suspected communists, ruined many loyal Americans’ professional lives. Senator Joseph McCarthy waged a cunning campaign of character assassination against supposed communists in government and the Army. And President Harry Truman’s loyalty program permitted the FBI to collect unchallenged rumors and innuendo about millions; an estimated 6,300 employees of private firms and 11,000 of federal, state and local governments were dismissed for allegations of disloyalty that they were never allowed to see or rebut.

Beginning in this postwar era and stretching through the Vietnam War into the 1970s, government actions descended underground, with targets spread exponentially beyond suspected communists to political, labor, civil rights and antiwar organizations that dared to push against the status quo.

Not only the FBI—through its counterintelligence program called COINTELPRO—but also the CIA, the National Security Agency (NSA), the Internal Revenue Service and Army intelligence were secretly mobilized against dissident groups and individuals. The FBI routinely requested tax files on activists, and the IRS audited and investigated about 8,000 people and 3,000 groups “of predominantly dissident or extremist nature,” according to an internal 1969 memo. The targets included the American Library Association, the American Civil Liberties Union, the National Association for the Advancement of Colored People and the National Urban League.

From 1947 to 1975 the NSA intercepted millions of private telegrams going into and out of the United States, just as it has done with emails and phone calls since 9/11. Nearly 250,000 first-class letters were secretly opened and photographed by the CIA from 1953 to 1973, and the FBI did the same with at least 130,000 letters from 1940 to 1966. The FBI compiled a list of 26,000 suspicious Americans to be rounded up in case of a “national emergency.” Dossiers were assembled on student activists in case they someday applied for government jobs. Once a congressional investigation exposed the surveillance, Congress responded with a series of privacy laws, including the Foreign Intelligence Surveillance Act (FISA) of 1978, which were then weakened after 9/11.

The Age of Terrorism

The Patriot Act, amending those privacy statutes, passed overwhelmingly with little debate six weeks after the attacks. It broadened FISA, which regulates domestic intelligence gathering through a secret court that issues clandestine warrants that don’t require probable cause and particularity, as the Fourth Amendment demands. The law originally authorized this shadow system exclusively to collect intelligence, but the Patriot Act frees investigators to use it for criminal cases as well.

Even that permissive FISA system wasn’t permissive enough for President Bush, who secretly ordered the NSA to intercept Americans’ communications by phone and Internet. The suspicionless sweeps, effectively legalized by Congress in 2008, continue.

Further, by expanding administrative subpoenas known as national security letters (NSLs), the Patriot Act shot holes through three laws that had guarded the privacy of Americans’ credit, banking and communications records. Without suspicion of a crime and with no judicial oversight, NSLs can now be issued by the head of any FBI field office to librarians, Internet providers and financial institutions, among others. Each of the 50,000 NSLs being served annually comes with a lifetime gag order.

One measure that could change the country if fully implemented is the executive branch’s power to subject civilians to military trial. Under the Military Commissions Act, passed in 2006 and revised in 2009, the president may unilaterally designate anyone an enemy combatant—even inside the United States—and try non-citizens before military officers, with no judicial involvement except on appeal. Applied only to Guantanamo detainees so far, this mechanism has no geographical restrictions. Nothing in the law prevents its employment in Alabama as well as Afghanistan.

These six deviations show that rights cannot rely on officials’ benevolence. They rely on an ingenious constitutional system that has pulled us back from our periodic wanderings. Let’s hope it does this time, and soon, before counterterrorism’s shortcuts through our rights become the new normal.

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