The War on Terrorism and the Loss of Freedom

Since September 11, 2001, one of the worst aspects of American history has been repeating itself. For over 200 years, repression has been the response to threats to security. In hindsight, every such instance was clearly a grave error that restricted our most precious freedoms for no apparent gain. I have no doubt that the actions of the George W. Bush Administration and the Ashcroft and Gonzales Justice Departments will, in hindsight, be viewed in the same way.

The legacy of suppression in times of crisis began early in American history. In 1798, in response to concerns about survival of the country, Congress enacted the Alien and Sedition Act, which made falsely criticizing the government or its officials a federal crime. The government used the law to persecute its critics and jailed people for what today would be regarded as the mildest of statements. Within a few years after the election of 1800, Congress repealed the law and President Thomas Jefferson pardoned those whom the government convicted. The right to freedom of speech was lost and nothing was gained by the Alien and Sedition Act.

During the Civil War, President Abraham Lincoln suspended the writ of habeas corpus. Additionally, the government imprisoned dissidents for criticizing the way the government was fighting the war. There is no evidence that this aided the fighting of the Civil War in any way. Ultimately, the Supreme Court declared unconstitutional Lincoln's suspension of the writ of habeas corpus (Ex parte Milligan 1866).

During World War I, the government aggressively prosecuted critics of the war. One man went to jail for ten years for circulating a leaflet arguing that the draft was unconstitutional (Schenck v. U.S.). Socialist leader Eugene Debs was sentenced to prison for simply saying to his audience, "You are good for more than cannon fodder" (Debs v. U.S.). During this period, the successful Bolshevik revolution in Russia sparked great fear of Communists in America. Attorney General Mitchell Palmer launched a massive effort to round up and deport aliens living in the United States. The government summarily deported and separated individuals from their families without any semblance of due process.

During World War II, the government forcibly interned 110,000 Japanese Americans in what President Franklin Roosevelt called "concentration camps" (Manchester 1974, 300). The internment uprooted adults and children, aliens and citizens from their lifelong homes and placed them behind barbed wire. The government charged not one Japanese American with espionage, treason, or any crime that threatened security. There is not a shred of evidence that the unprecedented invasion of rights accomplished anything useful. Nonetheless, the Supreme Court in Korematsu v. U.S. (1944) expressed the need to defer to the executive branch of government in wartime and upheld the removal of Japanese Americans from the West Coast.

The McCarthy era saw enormous persecution of those suspected of being Communists. People lost jobs, and flimsy allegations ruined their lives. In the leading case during the era, United States v. Dennis, the Supreme Court approved 20-year prison sentences for individuals for the crime of "conspiracy to advocate the overthrow of the government" for teaching works by Marx and Lenin.

This brief recitation of history should give pause to any efforts to take away civil liberties in this new time of crisis. To appraise what has occurred since September 11 in this context is crucial. More than four years have elapsed since September 11, a period longer than World War II, World War I, or the Civil War.

There now have been many cases challenging aspects of the U.S. government's War on Terrorism. Much has been written about the Supreme Court's decisions in this area—Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla. However, not nearly enough attention has been focused on lower court cases and the threat they pose to civil liberties. In this article, I want to consider a few examples concerning secrecy, freedom of speech, and detentions. The pattern in each of these cases is the same: federal courts of appeals uncritically accepted the government's...