[Congressional Record Volume 149, Number 158 (Tuesday, November 4, 2003)]
[Senate]
[Pages S13904-S13906]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page S13904]]
   PROFESSOR GEOFFREY STONE'S SPEECH, ``CIVIL LIBERTIES IN WARTIME''

  Mr. DURBIN. Mr. President, I ask unanimous consent to print in the 
Record a speech by University of Chicago Law Professor Geoffrey Stone 
on ``Civil Liberties in Wartime,'' delivered at the annual luncheon of 
the Chicago Council of Lawyers on July 23. Professor Stone thoughtfully 
reviews America's history of restricting civil liberties during times 
of war and our subsequent regret for those decisions. His speech 
invites reflection by the Members of this Senate as we debate important 
issues of national security and civil rights, and counsels us to 
``value not only [our] own liberties but the liberties of others . . . 
and to have the wisdom to know excess when it exists and the courage to 
preserve liberty when it is imperiled.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                       Civil Liberties in Wartime

                         (By Geoffrey R. Stone)

       We live in perilous times. This is true along several 
     dimensions, but I focus this afternoon on only one of them: 
     Civil Liberties in Wartime. Or, more precisely, how are we, 
     as a nation, responding to the threat of terrorism?
       Since September 11th, our government, in our name, has 
     secretly arrested and detained more than a thousand non-
     citizens; it has deported hundreds of non-citizens in secret 
     proceedings; it has eviscerated long-standing Justice 
     Department restrictions on FBI surveillance of political and 
     religious activities; it has vastly expanded the power of 
     federal officials to invade the privacy of our libraries and 
     our e-mails; it has incarcerated an American citizen, 
     arrested on American soil, for almost a year--incommunicado, 
     with no access to a lawyer, and with no effective judicial 
     review; it has sharply restricted the protections of the 
     Freedom of Information Act; it has proposed a TIPS program to 
     encourage American citizens to spy on one another; it has 
     laid the groundwork for a Department of Defense Total 
     Information Awareness program to enable the government to 
     engage in massive and unprecedented data collection on 
     American citizens; it has detained a thousand prisoners of 
     war in Guantanamo Bay in cynical disregard of the laws of 
     war; and it has established military tribunals without due 
     process protections. We live in perilous times.
       Of course, we have lived in perilous times before. What I 
     want to discuss this afternoon is how we have responded to 
     such peril in the past, what we can learn from those 
     experiences, and what our responsibilities are as lawyers.
       I have a simple thesis: In time of war, we respond too 
     harshly in our restriction of civil liberties, and then, 
     later, regret our behavior. To test this thesis, I will 
     review, very briefly, our experiences in 1798, the Civil War, 
     World War I, World War II, the Cold War and the Viet Nam War. 
     I will then offer some observations.
       To begin, at the beginning. In 1798, the United States 
     found itself embroiled in a European war that then raged 
     between France and England. A bitter political and 
     philosophical debate divided the Federalists, who favored the 
     English, and the Republicans, who favored the French. The 
     Federalists were then in power, and the administration of 
     President John Adams initiated thus a dramatic series of 
     defense measures that brought the United States into a state 
     of undeclared war with France.
       The Republicans fiercely opposed these measures, leading 
     the Federalists to accuse them of disloyalty. President 
     Adams, for example, declared that the Republicans ``would 
     sink the glory of our country and prostrate her liberties at 
     the feet of France.'' Against this backdrop, the Federalists 
     enacted the Alien and Sedition Acts of 1798. The Alien Act 
     empowered the President to deport any non-citizen he judged 
     to be dangerous to the peace and safety of the United States. 
     The Act accorded the non-citizen no right to a hearing, no 
     right to present evidence and no right to judicial review.
       The Sedition Act prohibited criticism of the government, 
     the Congress or the President, with the intent to bring them 
     into contempt or disrepute. The Act was vigorously enforced, 
     but only against supporters of the Republican Party. 
     Prosecutions were brought against every Republican newspaper 
     and against the most vocal critics of the Adams 
     administration.
       The Sedition Act expired on the last day of Adams's term of 
     office. The new President, Thomas Jefferson, promptly 
     pardoned all those who had been convicted under the Act, and 
     forty years later Congress repaid all the fines. The Sedition 
     Act was a critical factor in the demise of the Federalist 
     Party, and the Supreme Court has never missed an opportunity 
     in the years since to remind us that the Sedition Act of 1798 
     has been judged unconstitutional in the ``court of history.''
       During the Civil War, the nation faced its most serious 
     challenge. There were sharply divided loyalties, fluid 
     military and political boundaries, easy opportunities for 
     espionage and sabotage, and more than 600,000 combat 
     fatalities. In such circumstances, and in the face of 
     widespread and often bitter opposition to the war, the draft 
     and the Emancipation Proclamation, President Lincoln had to 
     balance the conflicting interests of military necessity and 
     individual liberty.
       During the course of the Civil War, Lincoln suspended the 
     writ of habeas corpus on eight separate occasions. The most 
     extreme of these suspensions, which applied throughout the 
     entire nation, declared that ``all persons . . . guilty of 
     any disloyal practice . . . shall be subject to court 
     martial.'' Under this authority, military officers arrested 
     and imprisoned 38,000 civilians, with no judicial proceedings 
     and no judicial review.
       In 1866, a year after the war ended, the Supreme Court 
     ruled in Ex parte Milligan that Lincoln had exceeded his 
     constitutional authority, holding that the President could 
     not constitutionally suspend the writ of habeas corpus, even 
     in time of war, if the ordinary civil courts were open and 
     functioning.
       The story of civil liberties during World War I is, in many 
     ways, even more disturbing. When the United States entered 
     the war in April 1917, there was strong opposition to both 
     the war and the draft. Many citizens vehemently argued that 
     our goal was not to ``make the world safe for democracy,'' 
     but to protect the investments of the wealthy, and that this 
     cause was not worth the life of one American soldier, let 
     alone ten or hundreds of thousands.
       President Wilson had little patience for such dissent. He 
     warned that disloyalty ``must be crushed out'' of existence 
     and that disloyalty ``was . . . not a subject on which there 
     was room for . . . debate.'' Disloyal individuals, he 
     explained, ``had sacrificed their right to civil 
     liberties.''
       Shortly after the United States entered the war, Congress 
     enacted the Espionage Act of 1917. Although the Act was not 
     directed at dissent generally, aggressive federal prosecutors 
     and compliant Federal judges soon transformed it into a 
     blanket prohibition of seditious utterance. The 
     administration's intent in this regard was made evident in 
     November 1917 when Attorney General Charles Gregory, 
     referring to war dissenters, declared: ``May God have mercy 
     on them, for they need expect none from an outraged people 
     and an avenging government.''
       In fact, the government worked hard to create an ``outraged 
     people.'' Because there had been no direct attack on the 
     United States, and no direct threat to our national security, 
     the Wilson administration had to generate a sense of urgency 
     and anger in order to exhort Americans to enlist, to 
     contribute money and to make the many sacrifices that war 
     demands. To this end, Wilson established the Committee for 
     Public Information, which produced a flood of inflammatory 
     and often misleading pamphlets, news releases, speeches, 
     editorials and motion pictures, all designed to instill a 
     hatred of all things German and of all persons whose 
     ``loyalty'' might be open to doubt.
       During World War I, the government prosecuted more than 
     2,000 dissenters for opposing the war or the draft, and in an 
     atmosphere of fear, hysteria and clamor, most judges were 
     quick to mete out severe punishment--often 10 to 20 years in 
     prison--to those deemed disloyal. The result was the 
     suppression all genuine debate about the merits, the morality 
     and the progress of the war.
       But even this was not enough. A year later, Congress 
     enacted the Sedition Act of 1918, which expressly prohibited 
     any disloyal, scurrilous, or abusive language about the form 
     of government, the Constitution, the flag, the uniform, or 
     the military forces of the United States. Even the Armistice 
     didn't bring this era to a close, for the Russian Revolution 
     triggered a period of intense public paranoia in the United 
     States, known to us today as the ``Red Scare'' of 1919-1920. 
     Attorney General A. Mitchell Palmer unleashed a horde of 
     undercover agents to infiltrate so-called radical 
     organizations, and in a period of only two months the 
     government arrested more than 5,000 American citizens and 
     summarily deported more than a thousand aliens on 
     ``suspicion'' of radicalism.
       The story of the Supreme Court in this era is too familiar, 
     and too painful, to bear repeating in detail. In a series of 
     decisions in 1919 and 1920--most notably Schenck, Debs, and 
     Abrams--the Court consistently upheld the convictions of 
     individuals who had agitated against the war and the draft--
     individuals as obscure as Mollie Steimer, a twenty-year-old 
     Russian-Jewish emigre who had thrown anti-war leaftlets in 
     Yiddish from a rooftop on the lower East Side of New York, 
     and as prominent as Eugene Debs, who had received almost a 
     million votes in 1912 as the Socialist Party candidate for 
     President.
       As Harry Kalven has observed, these decisions left no doubt 
     of the Court's position: ``While the nation is at war, 
     serious, abrasive criticism . . . is beyond constitutional 
     protection.'' These decisions, he added, ``are dismal 
     evidence of the degree to which the mood of society can 
     penetrate judicial chambers.'' The Court's performance was 
     ``simply wretched.''
       In December 1920, after all the dust had settled, Congress 
     quietly repealed the Sedition Act of 1918. Between 1919 and 
     1923, the government released from prison every individual 
     who had been convicted under the Espionage and Sedition Acts. 
     A decade later, President Roosevelt granted amnesty to all of 
     these individuals, restoring their full political and civil 
     rights. Over the next half-century, the Supreme Court 
     overruled every one of its World War I decisions, holding in 
     effect that every one of the individuals who

[[Page S13905]]

     had been imprisoned or deported in this era for his or her 
     dissent had been punished for speech that should have been 
     protected by the First Amendment.
       On December 7, 1941, Japan attacked Pearl Harbor. Two 
     months later, on February 19, 1942, President Roosevelt 
     signed Executive Order 9066, which authorized the Army to 
     ``designate military areas'' from which ``any persons may be 
     excluded.'' Although the words ``Japanese'' or ``Japanese 
     American'' never appeared in the Order, it was understood to 
     apply only to persons of Japanese ancestry.
       Over the next eight months, 120,000 individuals of Japanese 
     descent were forced to leave their homes in California, 
     Washington, Oregon and Arizona. Two-thirds of these 
     individuals were American citizens, representing almost 90% 
     of all Japanese-Americans. No charges were brought against 
     these individuals; there were no hearings; they did not know 
     where they were going, how long they would be detained, what 
     conditions they would face, or what fate would await them. 
     Many families lost everything.
       On the orders of military police, these individuals were 
     transported to one of ten internment camps, which were 
     located in isolated areas in wind-swept deserts or vast swamp 
     lands. Men, women and children were placed in overcrowded 
     rooms with no furniture other than cots. They found 
     themselves surrounded by barbed wire and military police, and 
     there they remained for three years.
       In Korematsu v. United States, decided in 1944, the Supreme 
     Court, in a six-to- three decision, upheld the President's 
     action. The Court offered the following explanation:
       We are not unmindful of the hardships imposed upon a large 
     group of American citizens. But hardships are part of war, 
     and war is an aggregation of hardships. Korematsu was not 
     excluded from the West Coast because of hostility to his 
     race, but because the military authorities decided that the 
     urgency of the situation demanded that all citizens of 
     Japanese ancestry be segregated from the area. We cannot--by 
     availing ourselves of the calm perspective of hindsight--say 
     that these actions were unjustified.
       In 1980, a congressional commission declared that the 
     Japanese internment had been based, not on considerations of 
     military necessity, but on crass racial prejudice and 
     political expediency. Eight years later, President Reagan 
     signed the Civil Liberties Restoration Act of 1988, which 
     offered an official Presidential apology and reparations to 
     each of the Japanese-American internees who had suffered 
     discrimination, loss of liberty, loss of property and 
     personal humiliation because of the actions of the United 
     States government.
       As World War II drew to a close, the nation moved almost 
     seamlessly into the Cold War. As the glow of our wartime 
     alliance with the Soviet Union evaporated, President Truman 
     came under increasing attack from a coalition of Southern 
     Democrats and anti-New Deal Republicans who sought to exploit 
     fears of Communist aggression. As House Republican leader Joe 
     Martin declared on the eve of the 1946 election, ``the people 
     will choose tomorrow `between communism and the preservation 
     of our American life.' '' The next day, the Democrats lost 56 
     seats in the House.
       Thereafter, the issue of loyalty became a shuttlecock of 
     party politics. By 1948, President Truman was boasting on the 
     stump that he had imposed on the federal civil service the 
     most extreme loyalty program in the entire ``Free World,'' 
     and he had. But there were limits to Truman's anti-communism. 
     In 1950, he vetoed the McCarren Act, which required the 
     registration of all Communists. Truman explained that the Act 
     was the product of ``public hysteria'' and would lead to 
     ``witch hunts.'' Congress passed the Act over Truman's veto.
       In 1954, Congress enacted the Communist Control Act, which 
     stripped the Communist Party of ``all rights, privileges, and 
     immunities.'' Only one Senator, Estes Kefauver, dared to vote 
     against it. Irving Howe lamented ``this Congressional 
     stampede to . . . trample . . . liberty in the name of 
     destroying its enemy.''
       Hysteria over the Red Menace swept the nation and produced 
     a wide-range of federal, state and local restrictions on free 
     expression and free association, including extensive loyalty 
     programs for government employees; emergency detention plans 
     for alleged ``subversives''; abusive legislative 
     investigations designed to punish by exposure; public and 
     private blacklists of those alleged ``pinkos'' who had been 
     ``exposed''; and criminal prosecution of the leaders and 
     members of the Communist Party of the United States.
       The Supreme Court's response was mixed. The key decision, 
     however, was Dennis v. United States, which involved the 
     direct prosecution under the Smith Act of the leaders of the 
     American Communist Party. In a six-to-two decision, the Court 
     held in 1951 that the defendants could constitutionally be 
     punished for their speech under the clear and present danger 
     test even though the Court readily conceded that the danger 
     was neither clear nor present. It was a memorable stroke of 
     judicial legerdemain.
       Over the next several years, the Court upheld far-reaching 
     legislative investigations of ``subversive'' organizations 
     and individuals and the exclusion of members of the Communist 
     Party from the bar, the ballot and public employment. In so 
     doing, the Court clearly put its stamp of approval on an 
     array of actions we look back on today as models of 
     McCarthyism.
       In the Vietnam War, as in the Civil War and World War I, 
     there was substantial opposition both to the war and the 
     draft. Lest we forget the stresses of those years, let me 
     quote briefly from Theodore White's eyewitness account of the 
     1968 Democratic Convention:
       The demonstrators chant ``Peace Now'' as they approach the 
     Chicago police picket-lines. Then, like a fist, comes a 
     hurtling column of police. It is a scene from the Russian 
     revolution. Gas grenades explode. Demonstrators kneel and 
     begin singing America the Beautiful. Clubs come down. ``The 
     Whole World is Watching.''
       Over the next several years, the nation entered a period of 
     intense and often violent struggle. After President Nixon 
     announced the American ``incursion'' into Cambodia, student 
     strikes closed a hundred campuses. Governor Ronald Reagan, 
     asked about campus militants, replied: ``If it takes a 
     bloodbath, let's get it over with.'' On May 4, National 
     Guardsmen at Kent State University responded to taunts and 
     rocks by firing their M-1 rifles into a crowd of students, 
     killing four and wounding nine others. Protests and strikes 
     exploded at more than twelve hundred of the nation's colleges 
     and universities. Thirty ROTC buildings were burned or bombed 
     in the first week of May. The National Guard was mobilized in 
     sixteen states. As Henry Kissinger put it later, ``The very 
     fabric of government was falling apart.''
       Despite all this, there was no systematic effort during the 
     Vietnam War to prosecute individuals for their opposition to 
     the war. As Todd Gitlin has rightly observed, in comparison 
     to World War I, ``the repression of the late sixties and 
     early seventies was mild.'' There are many reasons for this, 
     including, of course, the rather compelling fact that most of 
     the dissenters in this era were the sons and daughters of the 
     middle class, and thus could not so easily be targeted as the 
     ``other.'' But the courts, and especially the Supreme Court, 
     played a key role in this period. In 1969, the Court, in 
     Brandenburg, overruled Dennis and held that even advocacy of 
     unlawful conduct cannot be punished unless it is likely to 
     incite ``imminent lawless action.'' The Court had come a long 
     way in the fifty years since World War I.
       But the Court did not rest there. In other decisions it 
     held that the Georgia House of Representatives could not deny 
     Julian Bond his seat because of his express opposition to the 
     draft; that a public university could not deny recognition to 
     the SDS because it advocated a philosophy of violence; that 
     the government could not conduct national security wiretaps 
     without prior judicial approval; and, of course, that the 
     government could not constitutionally enjoin the publication 
     of the Pentagon Papers, even though the Defense Department 
     claimed that publication would endanger national security.
       This is not to say that the government did not find other 
     ways to impede dissent. The most significant of these was the 
     FBI's extensive effort to ``expose, disrupt and otherwise 
     neutralize'' allegedly ``subversive'' organizations, ranging 
     from civil rights groups to the various factions of the anti-
     war movement. In this COINTELPRO operation, the FBI compiled 
     political dossiers on more than half-a-million Americans.
       When these activities came to light they were sharply 
     condemned by congressional committees, and Attorney General 
     Edward Levi declared such practices incompatible with our 
     national values. In 1976, he instituted a series of 
     guidelines designed to restrict the political surveillance 
     activities of the Federal Bureau of Investigation.
       What can we learn from this history? I would like to offer 
     at least a dozen observations. But time limits me to only 
     six.
       First, we have a long and unfortunate history of 
     overreacting to the perceived dangers of wartime. Time after 
     time, we have allowed our fears to get the better of us.
       Second, it is often argued that given the sacrifices we ask 
     citizens (especially soldiers) to make in time of war, it is 
     small price to ask others to surrender some of their 
     peacetime freedoms to help the war effort. As the Supreme 
     Court argued in Korematsu, ``hardships are part of war, and 
     war is an aggregation of hardships.''
       This is a seductive, but dangerous argument. To fight a war 
     successfully, it is necessary for soldiers to risk their 
     lives. But it is not necessarily ``necessary'' for others to 
     surrender their freedoms. That necessity must be convincingly 
     demonstrated, not merely presumed. And this is especially 
     true when, as is usually the case, the individuals whose 
     rights are sacrificed are not those who make the laws, but 
     minorities, dissidents and non-citizens. In those 
     circumstances, ``we'' are making a decision to sacrifice 
     ``their'' rights--not a very prudent way to balance the 
     competing interests.
       Third, the Supreme Court matters. It's often said that 
     presidents do what they please in wartime. Attorney General 
     Biddle once observed that ``the Constitution has not greatly 
     bothered any wartime President,'' and Chief Justice Rehnquist 
     recently argued that ``there is no reason to think that 
     future wartime presidents will act differently from Lincoln, 
     Wilson, or Roosevelt.''
       In fact, however, the record is more complex than this 
     suggests. Although presidents may think of themselves as 
     bound more by political than by constitutional constraints in 
     time of war, the two are linked. Lincoln did not propose a 
     Sedition Act, Wilson rejected calls to suspend the writ of 
     habeas

[[Page S13906]]

     corpus and Bush has not advocated loyalty oaths. The fact is 
     that even during wartime, presidents have not attempted to 
     restrict civil liberties in the face of settled Supreme Court 
     precedent. Although presidents often will push the envelope 
     where the law is unclear, they do not defy established 
     constitutional doctrine.
       Fourth, it is often said that the Supreme Court will not 
     decide a case against the government on an issue of military 
     security during a period of national emergency. The decisions 
     most often cited in support of this proposition are, of 
     course, Korematsu and Dennis. In fact, however, there are 
     many counter-examples.
       During World War II, the Court upheld the constitutional 
     rights of American fascists in a series of criminal 
     prosecutions and denaturalization proceedings, effectively 
     putting a halt to government efforts to punish such 
     individuals. During the Cold War, the Court rejected 
     President Truman's effort to seize the steel industry and 
     eventually helped put an end to the era of McCarthyism. And 
     during Vietnam, the Court repeatedly rejected national 
     security claims by the Executive. So, although it is true 
     that the Court tends to be wary not to ``hinder'' an ongoing 
     war unnecessarily, it is also true that the Court has a 
     significant record of fulfilling its constitutional 
     responsibility to protect individual liberties--even in time 
     of war.
       Fifth, it is useful to note the circumstances that have 
     tended to produce these abuses. They invariably arise out of 
     the combination of a national perception of peril and a 
     concerted campaign by government to promote a sense of 
     national hysteria by exaggeration, manipulation and 
     distortion. The goal of the government in fostering such 
     public anxiety may be either to make it easier for it to gain 
     public acceptance of the measures it seeks to impose or to 
     gain partisan political advantage, or, of course, both. If 
     all that sounds familiar, it should.
       Finally, I want to say a word about our responsibilities as 
     lawyers. In each of these episodes, lawyers played an 
     important role, both in imposing the restrictions on civil 
     liberties, and in opposing them. At the moment, I'm more 
     interested in the latter. Albert Gallatin offered brilliant 
     arguments in opposition to the Alien and Sedition Acts. 
     Gilbert Roe defended the free speech rights of dissenters in 
     World War I. Professors Ernst Freund and Felix Frankfurter, 
     of the Chicago and Harvard law schools, played a critical 
     role in illuminating the civil rights violations of the Red 
     Scare and bringing that era to a close. Francis Biddle played 
     a courageous role within the Roosevelt administration during 
     World War II in opposing both the Japanese internment and the 
     prosecution of American fascists. Joseph Welsch, a Boston 
     lawyer, publicly humiliated Senator Joseph McCarthy hearings 
     with his blistering questions ``Have you no sense of decency, 
     sir, at long last? Have you left no sense of decency?'' And a 
     group of lawyers here in Chicago from such organizations as 
     BPI, the ACLU, the Better Government Association and the 
     Alliance to End Repression helped put an end to end 
     COINTELPRO and to the City of Chicago's Red Squad during the 
     Vietnam War.
       Now, to return to our own perilous time. The threat of 
     terrorism is real, and we expect our government to protect 
     us. But we have seen disturbing, and all-too-familiar, 
     patterns in our government's activities. To strike the right 
     balance in our time, we need judges who will stand fast 
     against the furies of the age; members of the academy who 
     will help us see ourselves clearly; an informed and tolerant 
     public who will value not only their own liberties, but the 
     liberties of others; and, perhaps most of all, lawyers with 
     the wisdom to know excess when it exists and the courage to 
     preserve liberty when it is imperiled.
       Thank you.

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