Throughout American history, whenever the United States has felt threatened, our response has been repression. In hindsight we come to realize that the nation was not made any safer from the loss of civil liberties. This is a crucial lesson to be remembered as the country deals with the terrible tragedy of Monday’s bombings in Boston. The impulse to take away constitutional rights to gain security must be resisted because, in reality, complying with the Constitution is not an impediment to safety.
If history repeats itself, there are likely to be calls to make it easier for police to search people and their possessions without warrants or probable cause or even reasonable suspicion. Once more, there will be proposals to allow the authorities to detain individuals, even indefinitely, on suspicion of their supporting terrorism. There are sure to be calls to allow law enforcement to more easily intercept electronic communications, even of those conducted entirely within the United States.
The pattern of responding to threats by curtailing rights began early in American history. In 1798, when the future of the country was in doubt, Congress passed the Alien and Sedition Act, which made it a crime to falsely criticize the government or government officials—men were sent to prison for speaking ill of certain individuals and decisions. Thomas Jefferson ran for president in 1800 on a platform that stressed the need to repeal the Alien and Sedition Act, and when elected, he pardoned those who had been convicted. A century and a half later, the Supreme Court decided that the ”court of history” had declared the act unconstitutional
During the Civil War, President Abraham Lincoln suspended the writ of habeas corpus, even though the president has no authority to do so under the Constitution. Habeas corpus allows federal courts to give relief to those who are held in violation of the Constitution and laws of the United States. Hundreds of people were imprisoned, with no recourse, just for their speech criticizing the war.
During World War I, Congress passed two laws, in 1917 and 1918, which among other things, made it a crime to speak out against the draft. The Supreme Court upheld the conviction and a ten-year sentence for a man who did no more than circulate a leaflet that argued that conscription was involuntary servitude in violation of the Thirteenth Amendment. Socialist leader Eugene Debs was imprisoned for telling an audience that they were good for more than "cannon fodder."
In World War II, 110,000 Japanese-Americans were uprooted from their homes and placed in what President Franklin Roosevelt called "concentration camps." Race alone determined who would be free and who would be placed behind barbed wire. This did nothing to make the nation safer; not one Japanese-American was indicted or convicted of a crime against national security.
The McCarthy era was the age of suspicion; the mere suspicion of communist sympathies was enough for people to lose their jobs and sometimes their freedom. In the midst of this era, the Supreme Court held that people could be imprisoned for "conspiracy to advocate the overthrow of the government" without any need for evidence that their speech was likely to have any effect.
On April 19, 1995, a bombing of the federal building in Oklahoma City took 168 lives. Congress responded with the Antiterrorism and Effective Death Penalty Act of 1996, which substantially increased law enforcement power to gather information about individuals without warrants and which imposed unprecedented restrictions on the ability of federal courts to grant habeas corpus, even to those who are innocent.
Most recently, the events of September 11, 2001, led to a series of restrictions on civil liberties, none of which likely have done anything to make the country safer. The Bush administration claimed the authority to indefinitely detain individuals, even American citizens apprehended in the United States, without any due process. Jose Padilla, an American citizen arrested in Chicago, was held as an enemy combatant and the Bush administration said that it could imprison him without judicial review. A total of 779 individuals who are not American citizens have been imprisoned in Guantanamo and 166 are still there, some now for over 11 years, even though virtually none have been tried or had any meaningful form of due process. Those at Guantanamo and those held at rendition camps were subjected to torture, which for the first time in American history was systematically implemented by the government.
The tragedy of September 11 led to the quick passage of the Patriot Act, which greatly expanded law enforcement’s power to gather information without meaningful judicial checks. Section 215 of the Patriot Act, for example, allows the government to gather information about individuals, ranging from credit card records to library transactions, just on a request from the special agent in charge of an FBI office. Pursuant to President Bush’s executive order, the National Security Agency engaged in massive electronic eavesdropping of American citizens without warrants and in violation of the Constitution and federal laws.
The litany America’s civil liberties failings throughout history should serve as a reminder that we must respond with skepticism to proposals that aim to take away liberties for the sake of security after the bombings in Boston. There are sure to be such proposals; there always are in the fear that follows such an attack. But at times like these, we would do well to remember the words of the late Justice Louis Brandeis:
"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
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