Civil Liberties: Surprisingly Strong?

Geoffrey Stone offers some worthwhile perspective on the state of civil liberties today:

The fact is that fear-mongering has played a critical role in every major wartime episode in American history. In 1798, the Federalists used a largely trumped-up threat of French invasion to enact the Sedition Act of 1798, which made it a crime for any person to criticise the president, the Congress, or the government. During the civil war, President Lincoln suspended the writ of habeas corpus on eight separate occasions and Congress rushed headlong to approved his actions.

During the first world war, President Wilson stampeded Congress into enacting the Sedition Act of1918, which made it a crime for any person to criticise the war, the draft, the military, the flag, the uniform, or the government. During the second world war, Congress blithely ratified President Roosevelt’s internment of almost 120,000 individuals of Japanese descent, two-thirds of whom were American citizens. And at the height of the McCarthy era during the cold war, a frantic Congress hastily enacted the McCarran Act of 1950, one of the most grievous assaults on freedom of speech and association in American history.

So, we should consider recent events in context. The legislation amending FISA is unwarranted, reckless and possibly unconstitutional. Nonetheless, the overall state of civil liberties in the US, viewed in historical perspective, is surprisingly strong.

There’s certainly something to this, and Stone is certainly right to credit civil liberties groups for keeping public attention on these issues and discouraging elected officials from proposing truly egregious restrictions on civil liberties like those of past eras. However, I think there are a couple of crucial differences between the encroachments of civil liberties we see today and the problems we saw in past eras.

First, although there is a war going on, this is not “wartime” in the sense that 1863 or 1943 were “wartime.” With the exception of World War I, our country faced grave threats to its territorial integrity and perhaps even its survival during all of the conflicts Stone mentions. And with the exception of the Cold War, those wars had clearly defined beginnings and ends, and during wartime, essentially the entire nation mobilized to defeat the enemy.

The threat we face today just isn’t on the same level as past threats. We’re not facing a technological advanced nation like Nazi Germany or the Soviet Union. Prior to the Iraq war, at least, we were only facing a few hundred murderous religious fanatics living in tents in the mountains of Pakistan. If the existence of a few fanatics somewhere in the world constitutes “wartime,” then its going to be “wartime” for the foreseeable future.

And that should concern us, because the historical pattern was that the government would enact constitutionally dubious wartime measures, and then those measures would be repealed at the end of hostilities. But we’re now at war with “terror,” and nobody knows how you tell when “terror” has been defeated. There isn’t going to be a V-T day when we finally triumph over “terror” and can repeal our constitutionally dubious laws. If we allow the definition of “wartime” to be stretched that much, we’re going to be on a perpetual “wartime” footing, with permanent curbs on civil liberties.

Another important difference between previous “wartime” measures and this year’s FISA amendment is that past infringements tended to be in plain view and easy for people to understand. You can’t covertly imprison tens of thousands of Japanese citizens. A law against criticizing the president isn’t likely to be a secret. And it’s easy for citizens to learn about, understand, and mobilize for the end to those sorts of policies.

In contrast, the NSA appears to be building a vast, shadowy, and permanent surveillance system. And it is doggedly refusing to reveal even the broad outlines of that program. Which means that unless Congress develops a backbone, there will never be an opportunity for a broad public debate about the program.

Finally, I think we’re on a kind of slippery slope that hasn’t been seen previously. As Andrew Napolitano wrote in an excellent 2005 book, the executive branch has been relentlessly chipping away at the Fourth Amendment since long before the Patriot Act, with laws like CALEA and roving wiretaps. I don’t know the history of pre-Watergate civil liberties that well, so maybe there are parallels in earlier periods of American history, but at a very minimum, I think it’s a mistake to view the current situation as just the result of wartime hysteria. Civil liberties have been declining since long before the 9/11 attacks, and unless there’s serious grassroots pressure in the other direction, they’re likely to continue declining for the foreseeable future.

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