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Civil Liberties in Uncivil Times: the Ep Rilous Quest to Preserve American Freedoms Kenneth Lasson University of Baltimore School of Law, [email protected]

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Civil Liberties in Uncivil Times: the Ep Rilous Quest to Preserve American Freedoms Kenneth Lasson University of Baltimore School of Law, Klasson@Ubalt.Edu University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship 2007 Civil Liberties in Uncivil Times: The eP rilous Quest to Preserve American Freedoms Kenneth Lasson University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, and the National Security Law Commons Recommended Citation Civil Liberties in Uncivil Times: The eP rilous Quest to Preserve American Freedoms, 2 London Law Review 2 (2007) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. bepress Legal Series Year Paper Civil Liberties in Uncivil Times: The Perilous Quest to Preserve American Freedoms Kenneth Lasson University of Baltimore This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://law.bepress.com/expresso/eps/1090 Copyright c 2006 by the author. Civil Liberties in Uncivil Times: The Perilous Quest to Preserve American Freedoms Abstract The perilous quest to preserve civil liberties in uncivil times is not an easy one, but the wisdom of Benjamin Franklin should remain a beacon: “Societies that trade liberty for security end often with neither.” Part I of this article is a brief history of civil liberties in America during past conflicts. Part II describes various actions taken by the government to conduct the war on ter- rorism – including invasions of privacy, immigration policies, deportations, pro- filing, pre-trial detentions, and secret military tribunals. Part III analyzes the serious Constitutional questions raised by the government’s actions in fighting terrorism. The thesis throughout is that the farther we stray from our hard-won freedoms in order to vanquish those who would destroy our way of life, the more we become like them – and the more hollow our ultimate victory. CIVIL LIBERTIES IN UNCIVIL TIMES The Perilous Quest to Preserve American Freedoms By Kenneth Lasson Hosted by The Berkeley Electronic Press CIVIL LIBERTIES IN UNCIVIL TIMES The Perilous Quest to Preserve American Freedoms INTRODUCTION I. A BRIEF HISTORY OF AMERICAN LIBERTIES DURING WARTIME A. The First Hundred Years B. The Twentieth Century C. The Rehnquist Thesis II. THE “WAR” AGAINST TERRORISM A. Legislative Precursors to 9/11 B. Legislative Responses to 9/11 C. Rec ent Federal Actions Limiting Civil Liberties III. ANALYZING THE CONSTITUTIONAL QUESTIONS A. The Patriot Act and Its Progeny B. Immigration Policies and Pre -Trial Detentions C. Secret Military Tribunals CONCLUSION 2 http://law.bepress.com/expresso/eps/1090 CIVIL LIBERTIES IN UNCIVIL TIMES The Perilous Quest to Preserve American Freedoms By Kenneth Lasson* The Constitution is not a suicide pact. – Justice Robert Jackson1 He was not a suicide bomber, he was on a military operation and he was a martyr. – Mariam Farhat 2 IN TRODUCTION The simple vision sanctifying the Declaration of Independence – that life, liberty, and the pursuit of happiness are inalienable rights – is quintessential to the American psyche. No less taken for granted are the deep -rooted notions of fairn ess and justice nurtured by the Constitution and guaranteed by the Bill of Rights: the First Amendment’s fundamental freedoms, limitations on unreasonable governmental intrusions, and procedural protections afforded those accused of having committed a crim e. In times of terror and tension, however, civil liberties quickly become subjective. Survival, after all, is still and understandably a nation’s strongest instinct – even at the cost of individual rights. As this is being written at the dawn of the T wenty -first Century, over two * Professor of Law, University of Baltimore. I am grateful to my research assistant on this project, Michelle Weiler, for her diligence and skill in bringing toge ther disparate elements of a lengthy manuscript. Thanks are also due to two former assistants, Tora Scott and Carl Zacarias, who worked on earlier drafts. 1 Dissenting in Terminiello v. City of Chicago , 337 U.S. 1 at 37 (1949). This oft -quoted dictum is in fact a paraphrase of Justice Jackson’s statement (“There is a danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”) , and has been variousl y attributed to others, like Justices Oliver Wendell Holmes ( see Editorial, 93 AMERICAN JOURNAL OF INTERNATIONAL LAW 860 ) and Arthur Goldberg ( see ,e.g., Amy Hack, Forfeiting Liberty , 2 CARDOZO PUBLIC L. POL ’Y & E THICS J. 469 at 514 ). Holmes never said it. Goldberg did, in Kennedy v. Mendoza -Martinez , 372 U.S. 144 at 160 (1963) . 2 Newly elected member of Hamas, on her pride at losing three sons in jihad (“I knew what he was going to do. And when he succeeded, I was happy and I thanked G -d. They are all martyrs.”) Quoted in Fiona Bartongaza, Mother of All Martyrs , NEW YORK POST (Online Edition), February 27, 2006. 3 Hosted by The Berkeley Electronic Press centuries of traditional American ideals appear to be genuinely in jeopardy. This article examines the perilous quest to preserve them. * Citizens have been deprived of various rights and freedoms from the earliest colonial days, especially in their religious beliefs and practices. Such restrictions, particularly during times of war, were not eliminated by either the birth of the nation or the adoption of the Bill of Rights. In most of these cases the limitations on liberty were deemed warranted as necessary to insure order or preserve national security. Only in hindsight have we come to realize that this end-justifies -the-means approach has seldom if ever been justified – that the government’s regulation of basic freedoms does not ultimately preserve national security. As Justice Brennan observed, “After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. But it has proven unable to p revent itself from repeating the error when the next crisis came along.”3 Put another way: Must we become like our enemies in order to defeat them? We may debate the question of whether hindsight has always proven that limitations on liberties were alway s unjustified, but in an era suicide bombers and non-governmental terrorist groups bent on destruction of democracies, does historical experience retain any relevancy? Have we reached the point where we must fairly face the question of whether there are l imits to historical perceptions? In any event, achieving a proper balance between individual rights and national security, however, is less a matter of simple adherence to abstract principle than it is a daunting task of 3 Justice William J. Brennan, Jr., The Quest to Develop a Jurisprudence of Civil Liberties in Times of Security Crisis , Address to the L aw School of Hebrew University, Jerusalem at 1 (Dec. 22, 1987), available at http://www.capaa.wa.gov/pdf/brennan/pdf. 4 http://law.bepress.com/expresso/eps/1090 eternal vigilance. The wartime c hallenge we face is to remember well the lessons learned in the past. In this day and age, when whole societies appear to be genuinely in jeopardy at the hands of international terrorists and rogue nations with weapons of mass destruction, to what extent can we afford to indulge in the civil liberties we have known and cherished? Part I of this article is a brief history of civil liberties in America during past conflicts – focusing particularly on the internment of Japanese -Americans during World War II . It also questions the thesis promulgated by Chief Justice William Rehnquist in his 1998 book, All the Laws but One, that in times of war Presidents and courts rightly restrict freedom and defer to the military on matters of national security. Part II describes the various actions taken by the government to conduct the so -called war against terrorism – including invasions of privacy, immigration policies and controls, profiling, pre -trial detentions, and secret military tribunals Part III analyzes the serious Constitutional questions raised by the government’s actions in its conduct of the current war against terrorism. Our national purpose has become how best to preserve both the national security and the individual liberties we enjoy as Americans – noble and fundamental goals , the acquisition and maintenance of which themselves raise issues both profound and practical. How best can we once again meet that historic challenge? 5 Hosted by The Berkeley Electronic Press I. A BRIEF HISTORY OF AMERICAN LIBERTIES DURING WARTIME The First Hundred Years The Revolutionary War4 The status of American civil liberties during wartime is hardly a new issue. Suppression of fundamental freedoms during times of real or threatened hostilities began very shortly after the nation’s founding. In 1798, only seven years after enactment of the Bill of Rights, the United States found itself on the brink of war with France – which itself was in the middle of a revolution raging throughout Europe. In response, Congress passed the Alien an d Sedition Acts, making it a crime for an individual or organization to publish criticism of federal officials or the government, and authorizing the president to detain or deport citizens who did.5 These measures were not popular. A few states passed r esolutions in protest, calling the laws “palpable violations” of the Constitution and charging that the states’ “silent acquiescence [in accepting the acts was] highly criminal.”6 When Thomas Jefferson was elected President in 1800, he pardoned those c onvicted under the Alien and Sedition Acts – but the laws were never repealed, despite strong public opposition.
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