In times of war or grave threat, the United States has not always lived up to its highest ideals. But the American people and their government do act to restore their civil rights and liberties and those of others. The author, Geoffrey R. Stone, is the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School.
An important lesson of American history is that the United States tends to restrict civil liberties excessively in time of war. In some sense, this is understandable, because war breeds fear and fear breeds repression. But as a self-governing society that aspires to respect the liberties of all people, the United States must strive to discipline itself and to respect individual freedom even in time of war. A critical question is whether we can learn the lessons of our own history.
In this essay, I will briefly review the American experience in 1798, the Civil War, World War I and World War II, and then offer some observations.
In 1798, less than a decade after the adoption of the Bill of Rights, the United States found itself embroiled in a European war that then raged between France and England. A bitter political 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 a 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 noncitizen he judged to be dangerous to the peace and safety of the United States. The act accorded the noncitizen no right to a hearing, no right to present evidence and no right to judicial review.
The Sedition Act effectively prohibited any 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 major Republican newspaper and against the most vocal Republican critics of the Adams administration.
The Sedition Act expired on the last day of Adams’ term of office. The new president, Thomas Jefferson, the leader of the Republican Party, pardoned all those who had been convicted under the Act, and 40 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 consistently reiterated that the Sedition Act of 1798 was 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 Abraham 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 writ of habeas corpus enables a court to decide whether an individual is being detained by the government unlawfully. The Constitution allows the writ to be suspended only “when in cases of rebellion or invasion the public safety” requires it. ) The most extreme of these suspensions, which applied throughout the entire United States, authorized the military to arrest “all persons … guilty of any disloyal practice.” Under this authority, military officers arrested and imprisoned as many as 38,000 civilians, with no judicial proceedings and no judicial review of the legality of the detentions.
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 argued that the goal of the United States was not to “make the world safe for democracy,” but to protect the investments of the wealthy. President Woodrow 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 quickly 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 Thomas Watt 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.”
While the American people have accepted restrictions of civil liberties during wartime, some criticize, and even parody, what they view as excessive measures.
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 of all genuine debate about the merits, the morality and the progress of the war.
The story of the Supreme Court in this era is one of failure. In a series of decisions in 1919 and 1920, the court consistently upheld the convictions of individuals who had agitated against the war and the draft — individuals as obscure as Mollie Steimer, a 20-year-old Russian-Jewish émigré who had thrown anti-war leaflets 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.
Between 1919 and 1923, the government released from prison every individual who had been convicted of seditious expression during the war. 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 had been imprisoned 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 Franklin 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 percent 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 10 internment camps, which were located in isolated areas in wind-swept deserts or vast swamplands. 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 6–3 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 Ronald 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.
What can we learn from this history? I would like to offer four observations.
First, the United States has a long and unfortunate history of overreacting to the perceived dangers of wartime. In each instance, we allowed our fears to get the better of us.
Second, it is often argued that in light of 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 noncitizens. In those circumstances, “we” are making a decision to sacrifice “their” rights — not a very prudent way to balance the competing interests.
Third, 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 the World War I cases on free speech and Korematsu. In fact, however, there are many counter-examples. During the Korean War, the court rejected President Truman’s effort to seize the steel industry.
During the Vietnam War, the court repeatedly rejected national security claims by the executive, including its effort to restrain the publication of the Pentagon Papers. And in recent years, the court consistently rebuffed the positions of the Bush administration in the period since 9/11. 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.
Fourth, 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.
The U.S. Constitution’s guarantee of free speech protects music and other forms of popular entertainment that criticize government policies, including, as above, prosecution of the Vietnam War.
There is no easy prescription to protect against these dangers. To strike the right balance in wartime, a nation needs judges who will stand fast against the furies of the age; members of the press and the academy who will help citizens see the issues clearly; public officials with the wisdom to know excess when it exists and the courage to preserve liberty when it is imperiled; and most important of all an informed and tolerant public who will value not only their own liberties, but the liberties of others.