(Excerpted from Criminal Procedure: Constitution and Society 5e by Marvin Zalman, Copyright 2007 Pearson Education, Inc. Upper Saddle River, NJ.)
Historically, Americans Risk Losing Civil Liberties in Wartime
Two risks to civil liberties arise out of war situations, first that under the guise of emergency, powers concentrated into the hands of government agents are misused, and second, that when the emergency ends, liberties formerly enjoyed are permanently eroded. A brief survey of American history indicates that virtually every war has been accompanied not only by necessary restrictions on individual freedoms, but on overreactions, often hysterical, that have unnecessarily curtailed the liberty of Americans.
- The undeclared naval war by Britain and France on the fledgling United States in the 1790s led President Adams’ Federalist controlled Congress to pass the “Alien and Sedition Laws”—clear violations of the First Amendment. Prosecutions under the law, son after repealed, were politically motivated.6
- President Lincoln suspended the writ of habeas corpus in thousands of cases during the Civil War. Although historians have granted the necessity and even the restraint of these acts, the Supreme Court repudiated this unilateral presidential power after the War ended.7
- A World War I sedition law made criticism of the military draft a crime. Sedition prosecutions stifled free speech. In reaction, the ACLU (American Civil Liberties Union) was formed and in a series of landmark cases, the Supreme Court strengthened First Amendment freedoms, limiting the ability of government to stifle unpopular political expression.8
- Fear of bolsheviks in post-World War I turmoil, a deadly Wall Street bombing, and assassination threats in 1919 led to the “Palmer Raids”—round-ups of thousands of people around the country, mostly leftist or pro-labor, organized by J. Edgar Hoover under the authority of Attorney General A Mitchell Palmer.9
- More than a hundred-thousand Japanese-Americans were interned for the duration of World War II in a tragic overreaction to the Pearl Harbor attack , a move upheld by the Supreme Court.10
- President Roosevelt authorized national security wiretapping and eavesdropping on his authority, a necessary action that led to later abuses that were curbed by the Foreign Intelligence Surveillance Act (FISA).11
- During the Korean War, President Truman nationalized the steel industry in order to break a strike that threatened war production. The Supreme Court swiftly ruled that this was an unconstitutional extension of the president’s war powers.12
- The longest and most severe threat to civil liberty was the rise of the “national security state” for at least half of the twentieth century in an effort to thwart the real threats of fascism, Naziism, and expansionist Soviet communism under Stalin. Fascism and the Axis Powers were defeated both by military victories in World War II and by post-war assistance that painstakingly built constructed democratic regimes in Japan, Germany and Italy. The long struggle to contain communist global expansion, warped American politics and justice in the 1950s, with political trials, loyalty oaths, Sen. Joseph McCarthy witchhunts (which missed real Soviet spies), artists’ blacklisting, local police department “red squad” snooping, CIA spying on Americans within the country, FBI wiretapping Martin Luther King, Jr. And civil rights leaders, and a climate of political fear that equated a belief in racial equality or other liberal opinions with communism by the FBI.13
- The anti-Vietnam War protests of the 1960s produced repressive political crimes and political trials, that carried over into the wiretapping abuses of the Nixon Administration resulting in the president’s resignation under threat of impeachment.14
After these emergency periods passed, repressive laws were typically repealed or declared unconstitutional, and excessive law enforcement behavior was curbed.
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