Fritz
02-21-2003, 07:42 AM
some light reading for your Friday morning.
Freedoms Under Siege
As America copes with increased security measures in the wake of 9/11, a look at our past reveals that U.S. civil liberties have been impinged upon more than is commonly realized.
By Ira Meistrich for Military History Quarterly Magazine
With the smoke still rising from Ground Zero, and the halls of the Capitol shuttered by anthrax-tainted mail, an anxious Congress passed HR3162, the U.S.A. Patriot Act, “uniting and strengthening America by providing appropriate tools to intercept and obstruct terrorism.” The “appropriate tools” included broad powers for electronic surveillance and eavesdropping, for warrantless searches, and for open-ended detention or expulsion of aliens who may “threaten the national security of the United States or the safety of the community or any person.” President George W. Bush gave orders for al Qaeda terrorists to be summarily tried by military tribunals. New federal entities such as the Office of Homeland Security and the Transportation Security Agency were jump-started.
A strident cacophony of voices challenged each other. While President Bush declared that on September 11, 2001, “night fell on a different world, a world where freedom itself is under attack,” various groups such the American Civil Liberties Union and the Center for Constitutional Rights mourned the bypassing of the Bill of Rights. And Supreme Court Justice Sandra Day O’Connor, visiting Ground Zero in late September, opined, “We’re likely to experience more restrictions on personal freedom than has ever been the case in this country before.”
The fact is, none of this is exactly terra incognita for America. The United States has had a long on-again, off-again flirtation with the dark side of civil liberties, usually most intense at times of great crisis. Government lashes out self-protectively at enemies real or imagined, and often the actions taken seem at odds with our constitutionally guaranteed rights. Since 9/11, laws and security measures have sprung up like mushrooms, and as with mushrooms, caution is required in choosing which ones to swallow. The real question is, are these new laws the wholesale assault on our way of life that many believe them to be?
The debate started with the American Revolution. No sooner was the shot heard ’round the world than controversy arose about how much freedom our war for independence could stand. There was little tolerance for differences of political opinion, especially on the question of independence, and restraints were placed on the free speech of soldiers in the Continental Army. As early as 1776, the Continental Congress urged state legislatures to enact laws to prevent people from being “deceived and drawn into erroneous opinions.”
The great apostle of “life, liberty, and the pursuit of happiness,” Thomas Jefferson, was himself unsure of where the boundary lay between civil liberties and suppression, or even if one existed at all. As governor of Virginia during the Revolution, Jefferson supported a number of acts that one would hardly assume would pass muster with the author of the Declaration of Independence, such as the establishment of internment camps for the politically suspect. The statute was proposed (and passed) during a particularly dark period in the conflict in Virginia—a British fleet was at large in Chesapeake Bay—and was intended as a short-term security measure, its duration limited to the “imminence of danger.”
Another of liberty’s passionate voices, Patrick “Give-Me-Liberty-or-Give-Me-Death” Henry, also stumbled during his term as Virginia’s governor. In his case, the issue revolved around a bill of attainder and a Tory terrorist.
Bills of attainder were particularly odious to the rebellious colonists. When the king of England found someone offensive without necessarily being criminal, he could ask Parliament for a bill of attainder, outlawing him by fiat. Indictments, trials, witnesses, juries—all those cumbersome rituals—were rendered irrelevant by this convenient legislation. The offensive individual was declared outside the protection of the law and could be killed by anybody, official or not, not only without adverse consequences but also quite possibly with the thanks of the monarch. So noxious were these acts that the brand-new United States of America specifically banned them in the first article of the Constitution.
During the Revolution, however, the ends were considered to justify the means, and in May 1778 Patrick Henry asked the Virginia legislature for, and received, a bill of attainder against a notorious Tory partisan fighter, Josiah Philips. Ultimately he was apprehended, tried, and executed without recourse to the bill, but the mere fact of its passage and what it represented plagued Patrick Henry through the years ahead.
In 1788, during the debate over the ratification of the Constitution, Henry vehemently objected to its lack of a specific Bill of Rights. Edmund Randolph, who had been Virginia’s attorney general during the Philips affair, offered it as an example that “parchment guarantees” were no protection from legislative misbehavior. An offended Henry insisted that Philips had been properly served; not only was he “no Socrates,” Henry said, “He was a fugitive murderer and an outlaw....Those who declare war against the human race may be struck out of existence as soon as they are apprehended. He was not executed according to those beautiful ceremonies which are pointed out by the law in criminal cases. The enormity of his crimes did not entitle him to it....The occasion warranted the measure.” Nor, years later, did President Thomas Jefferson, who had supported Henry’s actions, show any compunction about what happened: “No one doubted that society had a right to erase from the roll of its members any one who had rendered his existence inconsistent with theirs; to withdraw from him the protection of their laws, and to remove him from among them by exile, or even by death if necessary.”
The first big test of the boundary between civil authority and civil liberty came in 1798. Tensions between France and the United States boiled to a state of quasi-war, during which Congress passed a series of emergency acts known as the Alien and Sedition Acts. The Alien Acts resulted from the fear that, in the event of war, foreign nationals would act as a fifth column. The acts gave the president the power to expel “dangerous” foreigners or, in time of declared war, to imprison or expel enemy aliens. But other acts, especially the Naturalization Act and the Sedition Act, had a much more direct impact on civil liberties.
For one thing, it was the perception of the ruling Federalists that most immigrants, upon becoming naturalized, joined not them but the opposing Republican Party. This they took as evidence of disloyalty. The Naturalization Act of 1798 lengthened the time it took for an immigrant to become a citizen. The result: The Federalists knowingly deprived their political rivals of votes and diminished their political power.
Even more treacherous was the Sedition Act, which forbade the writing, the publishing, or the speaking of anything “false, scandalous, malicious…against the government of the United States, either house of Congress, or the President.” The law had a sunset provision, and was scheduled to expire on March 3, 1801. That this was after the presidential election of 1800 was lost on no one. Outspoken proponents of free speech like Thomas Jefferson and James Madison flew to their pens. In the Virginia Resolves, Madison wrote that the act “ought to produce universal alarm, because it is leveled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.”
The Republican charge that the act was designed to stifle political opposition was proven by the results. The indictments that followed, although not many, were predominantly of Republicans, including the editors of four of five leading Republican newspapers, but not a single Federalist editor. Representative Matthew Lyon, a Vermont Republican, criticized President John Adams; he was fined one thousand dollars and spent four months in prison. Perhaps most ludicrous was the case of Newark garbage scow pilot Luther Baldwin. While in a tavern, he heard cannons firing in salute of Adams, and said that he did not “care if they fired through [the president’s] arse”—two months in jail for criminal sedition.
The Quasi-War never became declared war. Instead, because of abhorrence of the Alien and Sedition Acts, freedom of speech became an important issue in the 1800 presidential election, and John Adams was defeated. Thomas Jefferson’s first act as president was to pardon everyone convicted under the Sedition Act, including, presumably, Luther Baldwin. There would not be another federal sedition prosecution until Woodrow Wilson’s presidency.
More severe tests were to come. In 1806, former Vice President Aaron Burr was a politician whose best days were behind him. Under indictment for the murder of Alexander Hamilton, he was hiding in the Western territories. There he intrigued with a motley assortment of conspirators that included British agents, Spanish double agents, and, for good measure, the commanding general of the army of the United States, James Wilkinson, who was himself probably a double agent for Spain. Together they concocted a scheme to carve a new empire out of the United States’ Western lands. Betrayed by Wilkinson (who wrote to Jefferson of a “deep, dark, wicked and widespread conspiracy…to seize New Orleans, revolutionize the territory, and carry an expedition against Mexico”), Burr tried to flee to Spanish Florida but was intercepted and arrested.
In New Orleans, Wilkinson exaggerated the danger of Burr’s pending invasion. To New Orleans Governor William C. Claiborne, he wrote: “Under circumstances so imperious extraordinary measures must be resorted to and the ordinary form of civil institutions must for a short period yield to the strong arm of military law.” He demanded Claiborne authorize him to “repair the sedition and arrest the disaffected,” as well as impose martial law. Claiborne demurred, and Wilkinson acted unilaterally. He arrested several of Burr’s comrades without the benefit of warrants, held them incommunicado, denied them counsel, and confiscated their papers.
When the courts issued writs of habeas corpus, they were told that the prisoners had already been shipped to Washington, D.C., to stand trial. Wilkinson declared, “The commander of the army of the United States takes on himself all responsibility,” and continued, “I shall arrest without respect to class or station all those against whom I have positive proof of being accomplices in the machinations against the state.” On the strength of the writ he did release the one conspirator he had not shipped off in chains, Peter Ogden, but twenty-four hours later arrested him again, along with the attorney who had applied for the writ. Assailed by the judge for his high-handed behavior, Wilkinson arrested the jurist, a friend of the judge, and the editor of the Orleans Gazette and then ransacked the post office in search of further evidence. By January 1807, more than sixty people had been arrested. To the protests of Claiborne and the territorial legislature, Jefferson wrote: “On great occasions every good officer must be ready to risk himself in going beyond the strict line of the law when the public preservation requires it.”
The Senate quickly tried to slap a veneer of legitimacy on the actions of Jefferson and Wilkinson by passing a bill suspending habeas corpus for three months in the cases of individuals charged with treason or other high crimes. Although only a single senator opposed the bill, a bipartisan majority in the House crushed it, 113 to 19. Protested Representative James Elliot of Vermont: “We are told that the salus populi may have required and may justify the lex suprema of military despotism. This doctrine is unknown to the Constitution. That sacred record of our rights proclaims itself and itself alone…the lex suprema, the ‘supreme law of the land.’ It acknowledges no superior. It contemplates no case in which the law of arms can erect a throne on its ruins.” Jefferson responded that “self-preservation is paramount to all law,” and said, “There are extreme cases when the laws become inadequate to their own preservation, and where the universal resource is a dictator, or martial law.”
The courts, and especially Supreme Court Chief Justice John Marshall, disagreed. Burr was acquitted in 1807. Chagrined, Jefferson, who had proclaimed Burr’s guilt “beyond all question,” complained: “I did wish to see these people get what they deserved....I expected that instead of invoking the forms of law to cover traitors, all good citizens would have concurred in securing them.” But former President John Adams, whose previous administration had been responsible for the Sedition Act, speculated, “I think something must come out of the Tryal, which will strengthen or weaken our Confidence in the General Union.”
Liberty’s great apostle was still not out of the woods. Almost before the ink was dry on Burr’s acquittal, Jefferson was on shaky ground again. Searching in 1807 for a way to avoid war with France, he conceived the Embargo Acts, which forbade trade with any of the Napoleonic Wars’ belligerents. The economic impact was so disastrous that it led to widespread smuggling, and Jefferson resorted to the armed forces of the United States, not against a hostile foreign power, but to police U.S. citizens. Further, he declared the Lake Champlain region of New York to be in insurrection, ignored Supreme Court rulings, and tried to use treason trials as part of his enforcement program. It remains the only time in American history that a president was empowered to use the military for day-to-day law enforcement.
Once again, war fever did not become war. But in 1812, in the middle of a real war at last, civil liberties fought the next round against military necessity, and again, the ring was New Orleans. Prior to the Battle of New Orleans, General Andrew Jackson had imposed martial law on the city, encompassing a radius of four miles. When the army arrested a civilian for sedition, he applied for, and got, a writ of habeas corpus. In what might seem a rerun of the Wilkinson imbroglio, rather than comply, Jackson arrested the judge who had issued it. But with the end of the war, the general restored civil authority, whereupon one very angry judge fined him one thousand dollars. Jackson paid the fine.
Part 2: Civil War to the Present (http://americanhistory.about.com/library/prm/blfreedomsundersiege2.htm)
Freedoms Under Siege
As America copes with increased security measures in the wake of 9/11, a look at our past reveals that U.S. civil liberties have been impinged upon more than is commonly realized.
By Ira Meistrich for Military History Quarterly Magazine
With the smoke still rising from Ground Zero, and the halls of the Capitol shuttered by anthrax-tainted mail, an anxious Congress passed HR3162, the U.S.A. Patriot Act, “uniting and strengthening America by providing appropriate tools to intercept and obstruct terrorism.” The “appropriate tools” included broad powers for electronic surveillance and eavesdropping, for warrantless searches, and for open-ended detention or expulsion of aliens who may “threaten the national security of the United States or the safety of the community or any person.” President George W. Bush gave orders for al Qaeda terrorists to be summarily tried by military tribunals. New federal entities such as the Office of Homeland Security and the Transportation Security Agency were jump-started.
A strident cacophony of voices challenged each other. While President Bush declared that on September 11, 2001, “night fell on a different world, a world where freedom itself is under attack,” various groups such the American Civil Liberties Union and the Center for Constitutional Rights mourned the bypassing of the Bill of Rights. And Supreme Court Justice Sandra Day O’Connor, visiting Ground Zero in late September, opined, “We’re likely to experience more restrictions on personal freedom than has ever been the case in this country before.”
The fact is, none of this is exactly terra incognita for America. The United States has had a long on-again, off-again flirtation with the dark side of civil liberties, usually most intense at times of great crisis. Government lashes out self-protectively at enemies real or imagined, and often the actions taken seem at odds with our constitutionally guaranteed rights. Since 9/11, laws and security measures have sprung up like mushrooms, and as with mushrooms, caution is required in choosing which ones to swallow. The real question is, are these new laws the wholesale assault on our way of life that many believe them to be?
The debate started with the American Revolution. No sooner was the shot heard ’round the world than controversy arose about how much freedom our war for independence could stand. There was little tolerance for differences of political opinion, especially on the question of independence, and restraints were placed on the free speech of soldiers in the Continental Army. As early as 1776, the Continental Congress urged state legislatures to enact laws to prevent people from being “deceived and drawn into erroneous opinions.”
The great apostle of “life, liberty, and the pursuit of happiness,” Thomas Jefferson, was himself unsure of where the boundary lay between civil liberties and suppression, or even if one existed at all. As governor of Virginia during the Revolution, Jefferson supported a number of acts that one would hardly assume would pass muster with the author of the Declaration of Independence, such as the establishment of internment camps for the politically suspect. The statute was proposed (and passed) during a particularly dark period in the conflict in Virginia—a British fleet was at large in Chesapeake Bay—and was intended as a short-term security measure, its duration limited to the “imminence of danger.”
Another of liberty’s passionate voices, Patrick “Give-Me-Liberty-or-Give-Me-Death” Henry, also stumbled during his term as Virginia’s governor. In his case, the issue revolved around a bill of attainder and a Tory terrorist.
Bills of attainder were particularly odious to the rebellious colonists. When the king of England found someone offensive without necessarily being criminal, he could ask Parliament for a bill of attainder, outlawing him by fiat. Indictments, trials, witnesses, juries—all those cumbersome rituals—were rendered irrelevant by this convenient legislation. The offensive individual was declared outside the protection of the law and could be killed by anybody, official or not, not only without adverse consequences but also quite possibly with the thanks of the monarch. So noxious were these acts that the brand-new United States of America specifically banned them in the first article of the Constitution.
During the Revolution, however, the ends were considered to justify the means, and in May 1778 Patrick Henry asked the Virginia legislature for, and received, a bill of attainder against a notorious Tory partisan fighter, Josiah Philips. Ultimately he was apprehended, tried, and executed without recourse to the bill, but the mere fact of its passage and what it represented plagued Patrick Henry through the years ahead.
In 1788, during the debate over the ratification of the Constitution, Henry vehemently objected to its lack of a specific Bill of Rights. Edmund Randolph, who had been Virginia’s attorney general during the Philips affair, offered it as an example that “parchment guarantees” were no protection from legislative misbehavior. An offended Henry insisted that Philips had been properly served; not only was he “no Socrates,” Henry said, “He was a fugitive murderer and an outlaw....Those who declare war against the human race may be struck out of existence as soon as they are apprehended. He was not executed according to those beautiful ceremonies which are pointed out by the law in criminal cases. The enormity of his crimes did not entitle him to it....The occasion warranted the measure.” Nor, years later, did President Thomas Jefferson, who had supported Henry’s actions, show any compunction about what happened: “No one doubted that society had a right to erase from the roll of its members any one who had rendered his existence inconsistent with theirs; to withdraw from him the protection of their laws, and to remove him from among them by exile, or even by death if necessary.”
The first big test of the boundary between civil authority and civil liberty came in 1798. Tensions between France and the United States boiled to a state of quasi-war, during which Congress passed a series of emergency acts known as the Alien and Sedition Acts. The Alien Acts resulted from the fear that, in the event of war, foreign nationals would act as a fifth column. The acts gave the president the power to expel “dangerous” foreigners or, in time of declared war, to imprison or expel enemy aliens. But other acts, especially the Naturalization Act and the Sedition Act, had a much more direct impact on civil liberties.
For one thing, it was the perception of the ruling Federalists that most immigrants, upon becoming naturalized, joined not them but the opposing Republican Party. This they took as evidence of disloyalty. The Naturalization Act of 1798 lengthened the time it took for an immigrant to become a citizen. The result: The Federalists knowingly deprived their political rivals of votes and diminished their political power.
Even more treacherous was the Sedition Act, which forbade the writing, the publishing, or the speaking of anything “false, scandalous, malicious…against the government of the United States, either house of Congress, or the President.” The law had a sunset provision, and was scheduled to expire on March 3, 1801. That this was after the presidential election of 1800 was lost on no one. Outspoken proponents of free speech like Thomas Jefferson and James Madison flew to their pens. In the Virginia Resolves, Madison wrote that the act “ought to produce universal alarm, because it is leveled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.”
The Republican charge that the act was designed to stifle political opposition was proven by the results. The indictments that followed, although not many, were predominantly of Republicans, including the editors of four of five leading Republican newspapers, but not a single Federalist editor. Representative Matthew Lyon, a Vermont Republican, criticized President John Adams; he was fined one thousand dollars and spent four months in prison. Perhaps most ludicrous was the case of Newark garbage scow pilot Luther Baldwin. While in a tavern, he heard cannons firing in salute of Adams, and said that he did not “care if they fired through [the president’s] arse”—two months in jail for criminal sedition.
The Quasi-War never became declared war. Instead, because of abhorrence of the Alien and Sedition Acts, freedom of speech became an important issue in the 1800 presidential election, and John Adams was defeated. Thomas Jefferson’s first act as president was to pardon everyone convicted under the Sedition Act, including, presumably, Luther Baldwin. There would not be another federal sedition prosecution until Woodrow Wilson’s presidency.
More severe tests were to come. In 1806, former Vice President Aaron Burr was a politician whose best days were behind him. Under indictment for the murder of Alexander Hamilton, he was hiding in the Western territories. There he intrigued with a motley assortment of conspirators that included British agents, Spanish double agents, and, for good measure, the commanding general of the army of the United States, James Wilkinson, who was himself probably a double agent for Spain. Together they concocted a scheme to carve a new empire out of the United States’ Western lands. Betrayed by Wilkinson (who wrote to Jefferson of a “deep, dark, wicked and widespread conspiracy…to seize New Orleans, revolutionize the territory, and carry an expedition against Mexico”), Burr tried to flee to Spanish Florida but was intercepted and arrested.
In New Orleans, Wilkinson exaggerated the danger of Burr’s pending invasion. To New Orleans Governor William C. Claiborne, he wrote: “Under circumstances so imperious extraordinary measures must be resorted to and the ordinary form of civil institutions must for a short period yield to the strong arm of military law.” He demanded Claiborne authorize him to “repair the sedition and arrest the disaffected,” as well as impose martial law. Claiborne demurred, and Wilkinson acted unilaterally. He arrested several of Burr’s comrades without the benefit of warrants, held them incommunicado, denied them counsel, and confiscated their papers.
When the courts issued writs of habeas corpus, they were told that the prisoners had already been shipped to Washington, D.C., to stand trial. Wilkinson declared, “The commander of the army of the United States takes on himself all responsibility,” and continued, “I shall arrest without respect to class or station all those against whom I have positive proof of being accomplices in the machinations against the state.” On the strength of the writ he did release the one conspirator he had not shipped off in chains, Peter Ogden, but twenty-four hours later arrested him again, along with the attorney who had applied for the writ. Assailed by the judge for his high-handed behavior, Wilkinson arrested the jurist, a friend of the judge, and the editor of the Orleans Gazette and then ransacked the post office in search of further evidence. By January 1807, more than sixty people had been arrested. To the protests of Claiborne and the territorial legislature, Jefferson wrote: “On great occasions every good officer must be ready to risk himself in going beyond the strict line of the law when the public preservation requires it.”
The Senate quickly tried to slap a veneer of legitimacy on the actions of Jefferson and Wilkinson by passing a bill suspending habeas corpus for three months in the cases of individuals charged with treason or other high crimes. Although only a single senator opposed the bill, a bipartisan majority in the House crushed it, 113 to 19. Protested Representative James Elliot of Vermont: “We are told that the salus populi may have required and may justify the lex suprema of military despotism. This doctrine is unknown to the Constitution. That sacred record of our rights proclaims itself and itself alone…the lex suprema, the ‘supreme law of the land.’ It acknowledges no superior. It contemplates no case in which the law of arms can erect a throne on its ruins.” Jefferson responded that “self-preservation is paramount to all law,” and said, “There are extreme cases when the laws become inadequate to their own preservation, and where the universal resource is a dictator, or martial law.”
The courts, and especially Supreme Court Chief Justice John Marshall, disagreed. Burr was acquitted in 1807. Chagrined, Jefferson, who had proclaimed Burr’s guilt “beyond all question,” complained: “I did wish to see these people get what they deserved....I expected that instead of invoking the forms of law to cover traitors, all good citizens would have concurred in securing them.” But former President John Adams, whose previous administration had been responsible for the Sedition Act, speculated, “I think something must come out of the Tryal, which will strengthen or weaken our Confidence in the General Union.”
Liberty’s great apostle was still not out of the woods. Almost before the ink was dry on Burr’s acquittal, Jefferson was on shaky ground again. Searching in 1807 for a way to avoid war with France, he conceived the Embargo Acts, which forbade trade with any of the Napoleonic Wars’ belligerents. The economic impact was so disastrous that it led to widespread smuggling, and Jefferson resorted to the armed forces of the United States, not against a hostile foreign power, but to police U.S. citizens. Further, he declared the Lake Champlain region of New York to be in insurrection, ignored Supreme Court rulings, and tried to use treason trials as part of his enforcement program. It remains the only time in American history that a president was empowered to use the military for day-to-day law enforcement.
Once again, war fever did not become war. But in 1812, in the middle of a real war at last, civil liberties fought the next round against military necessity, and again, the ring was New Orleans. Prior to the Battle of New Orleans, General Andrew Jackson had imposed martial law on the city, encompassing a radius of four miles. When the army arrested a civilian for sedition, he applied for, and got, a writ of habeas corpus. In what might seem a rerun of the Wilkinson imbroglio, rather than comply, Jackson arrested the judge who had issued it. But with the end of the war, the general restored civil authority, whereupon one very angry judge fined him one thousand dollars. Jackson paid the fine.
Part 2: Civil War to the Present (http://americanhistory.about.com/library/prm/blfreedomsundersiege2.htm)