Prometheus 6

We like to think all citizens of the United States of America are guaranteed certain civil and human rights. Unfortunately, that guarantee is subject to the vagaries of human judgment. At times of national crisis this nation has always reduced the protections we are "guaranteed" by law. In fact Justice Scalia has said in wartime, "the protections will be ratcheted right down to the constitutional minimum. I won't let it go beyond the constitutional minimum."

It is expected. There is historical precedent for it. Unfortunately, in every case the historic precedent has been that the impositions were deemed unnecessary and, in most cases, unconstitutional after the fact. The first such case was the Alien and Sedition Acts which passed in 1798. The threat was a French-backed navy of privateers operating in the area around the West Indies which was threatening the expanding U.S. merchant shipping force. The Act allowed the President to order

…all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.

One month later an addendum was added to the law. Section two is worth quoting in its entirety:

SEC. 2. And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

Under the Act the reigning Federalists party arranged for at least 25 arrests, 15 indictments, and 10 convictions—all against the minority Republicans. Among the defendants were the four leading Republican newspapers and three Republican officeholders. And when the Republicans took power in the 1800 elections, Jefferson pardoned most of them and Congress paid their fines.

It is fortunate the Act had a sunset provision, specifically expiring March 3, 1801 or there would be no need for the P.A.T.R.I.O.T. Act…and before you dismiss that remark as partisan hyperbole, remember that John Ashcroft's Justice Department charged Greenpeace a full fifteen months after one of their standard protest under an 1872 law:

The group is charged with violating an obscure 1872 law intended for proprietors of boarding houses who preyed on sailors returning to port. It forbids the unauthorized boarding of "any vessel about to arrive at the place of her destination."

The last court decision concerning the law, from 1890, said it was meant to prevent "sailor-mongers" from luring crews to boarding houses "by the help of intoxicants and the use of other means, often savoring of violence."

The next such instance was President Lincoln's suspension of habeas corpus during the Civil War…an event I've seen Conservative commentators use to support the idea of a Presidential perogative to cut into civil rights at times of war. Unfortunately, this one actually made it to the Supreme Court…also unfortunately, after the Civil War ended. And Mr. Ashcroft should heed the last paragraph of the decision:

It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.(emphasis added)

The next major breech of civil rights took place during World War I. According to a speech given by Justice William J. Brennan, Jr.[pdf],

…during World War I the Senate considered a bill that would have made the entire United States a military zone within which anyone who published any material that might endanger the success of U.S. military operations could be tried as a spy by a military tribunal and put to death.11 Unwilling to go this far, President Wilson instead convinced Congress to enact the Espionage Act of 1917, which made it a crime, during a time of war, to make false statements with the intent to interfere with the success of U.S. military forces or military recruiting. This Act provided the predicate for confiscating antiwar films and raiding the offices of antiwar organizations. In 1918 the Act was amended to make it a crime also to "willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about" the U.S. form of government, Constitution, flag, or its military forces or uniform "or any language intended to bring the [same] into contempt, scorn, contumely, or disrepute

All in all, over two thousand individuals were prosecuted under the Espionage Act. Very few individuals were convicted for actually urging men not to enlist or submit to the draft—purportedly the main object of the Act. Rather, the vast majority of the convictions were for stating opinions about the war that the courts treated as false statements of fact because they conflicted with speeches by President Wilson or with the resolution of Congress declaring war. Among the supposed "threats to national security" that were prosecuted under the Act were statements of religious objections to the war, advocacy of heavier taxation instead of the issuance of war bonds, suggestions that the draft was unconstitutional, and criticisms of the Red Cross or the Y.M.C.A.13 Moreover, such "subversive" statements were criminalized even if they were never directly communicated to soldiers or to men about to enlist or be drafted—it was thought enough that the statements might conceivably reach such men and undermine the war effort.

And of course there was the infamous interning of Japanese Americans during World War II, a case so egregious that reparations, symbolic though they may have been, were paid to survivors.

Now we find ourselves "at war" with a concept. Once again we're told we're in a situation where the "suspension" of our rights is "necessary" for national security, for the duration…of a "war" with an undefined and undefinable end. Will we as a nation allow our rights to be suspended when the odds of being struck by lightning are greater than that of being involved in a terrorist attack?