[Pages S13904-S13906]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page S13904]]
PROFESSOR GEOFFREY STONE'S SPEECH, ``CIVIL LIBERTIES IN WARTIME''

Mr. DURBIN. Mr. President, I ask unanimous consent to print in the
Record a speech by University of Chicago Law Professor Geoffrey Stone
on ``Civil Liberties in Wartime,'' delivered at the annual luncheon of
the Chicago Council of Lawyers on July 23. Professor Stone thoughtfully
reviews America's history of restricting civil liberties during times
of war and our subsequent regret for those decisions. His speech
invites reflection by the Members of this Senate as we debate important
issues of national security and civil rights, and counsels us to
``value not only [our] own liberties but the liberties of others . . .
and to have the wisdom to know excess when it exists and the courage to
preserve liberty when it is imperiled.''
There being no objection, the material was ordered to be printed in
the Record, as follows:

Civil Liberties in Wartime

(By Geoffrey R. Stone)

We live in perilous times. This is true along several
dimensions, but I focus this afternoon on only one of them:
Civil Liberties in Wartime. Or, more precisely, how are we,
as a nation, responding to the threat of terrorism?
Since September 11th, our government, in our name, has
secretly arrested and detained more than a thousand non-
citizens; it has deported hundreds of non-citizens in secret
proceedings; it has eviscerated long-standing Justice
Department restrictions on FBI surveillance of political and
religious activities; it has vastly expanded the power of
federal officials to invade the privacy of our libraries and
our e-mails; it has incarcerated an American citizen,
arrested on American soil, for almost a year--incommunicado,
with no access to a lawyer, and with no effective judicial
review; it has sharply restricted the protections of the
Freedom of Information Act; it has proposed a TIPS program to
encourage American citizens to spy on one another; it has
laid the groundwork for a Department of Defense Total
Information Awareness program to enable the government to
engage in massive and unprecedented data collection on
American citizens; it has detained a thousand prisoners of
war in Guantanamo Bay in cynical disregard of the laws of
war; and it has established military tribunals without due
process protections. We live in perilous times.
Of course, we have lived in perilous times before. What I
want to discuss this afternoon is how we have responded to
such peril in the past, what we can learn from those
experiences, and what our responsibilities are as lawyers.
I have a simple thesis: In time of war, we respond too
harshly in our restriction of civil liberties, and then,
later, regret our behavior. To test this thesis, I will
review, very briefly, our experiences in 1798, the Civil War,
World War I, World War II, the Cold War and the Viet Nam War.
I will then offer some observations.
To begin, at the beginning. In 1798, the United States
found itself embroiled in a European war that then raged
between France and England. A bitter political and
philosophical 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 thus a dramatic 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 non-citizen he judged
to be dangerous to the peace and safety of the United States.
The Act accorded the non-citizen no right to a hearing, no
right to present evidence and no right to judicial review.
The Sedition Act prohibited 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 Republican newspaper
and against the most vocal critics of the Adams
administration.
The Sedition Act expired on the last day of Adams's term of
office. The new President, Thomas Jefferson, promptly
pardoned all those who had been convicted under the Act, and
forty 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 never missed an opportunity
in the years since to remind us that the Sedition Act of 1798
has been 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 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 most
extreme of these suspensions, which applied throughout the
entire nation, declared that ``all persons . . . guilty of
any disloyal practice . . . shall be subject to court
martial.'' Under this authority, military officers arrested
and imprisoned 38,000 civilians, with no judicial proceedings
and no judicial review.
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 vehemently argued that
our goal was not to ``make the world safe for democracy,''
but to protect the investments of the wealthy, and that this
cause was not worth the life of one American soldier, let
alone ten or hundreds of thousands.
President 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 soon 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 Charles 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.''
In fact, the government worked hard to create an ``outraged
people.'' Because there had been no direct attack on the
United States, and no direct threat to our national security,
the Wilson administration had to generate a sense of urgency
and anger in order to exhort Americans to enlist, to
contribute money and to make the many sacrifices that war
demands. To this end, Wilson established the Committee for
Public Information, which produced a flood of inflammatory
and often misleading pamphlets, news releases, speeches,
editorials and motion pictures, all designed to instill a
hatred of all things German and of all persons whose
``loyalty'' might be open to doubt.
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 all genuine debate about the merits, the morality
and the progress of the war.
But even this was not enough. A year later, Congress
enacted the Sedition Act of 1918, which expressly prohibited
any disloyal, scurrilous, or abusive language about the form
of government, the Constitution, the flag, the uniform, or
the military forces of the United States. Even the Armistice
didn't bring this era to a close, for the Russian Revolution
triggered a period of intense public paranoia in the United
States, known to us today as the ``Red Scare'' of 1919-1920.
Attorney General A. Mitchell Palmer unleashed a horde of
undercover agents to infiltrate so-called radical
organizations, and in a period of only two months the
government arrested more than 5,000 American citizens and
summarily deported more than a thousand aliens on
``suspicion'' of radicalism.
The story of the Supreme Court in this era is too familiar,
and too painful, to bear repeating in detail. In a series of
decisions in 1919 and 1920--most notably Schenck, Debs, and
Abrams--the Court consistently upheld the convictions of
individuals who had agitated against the war and the draft--
individuals as obscure as Mollie Steimer, a twenty-year-old
Russian-Jewish emigre who had thrown anti-war leaftlets 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.
As Harry Kalven has observed, these decisions left no doubt
of the Court's position: ``While the nation is at war,
serious, abrasive criticism . . . is beyond constitutional
protection.'' These decisions, he added, ``are dismal
evidence of the degree to which the mood of society can
penetrate judicial chambers.'' The Court's performance was
``simply wretched.''
In December 1920, after all the dust had settled, Congress
quietly repealed the Sedition Act of 1918. Between 1919 and
1923, the government released from prison every individual
who had been convicted under the Espionage and Sedition Acts.
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

[[Page S13905]]

had been imprisoned or deported 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 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%
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 ten internment camps, which were
located in isolated areas in wind-swept deserts or vast swamp
lands. 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 six-to- three 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 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.
As World War II drew to a close, the nation moved almost
seamlessly into the Cold War. As the glow of our wartime
alliance with the Soviet Union evaporated, President Truman
came under increasing attack from a coalition of Southern
Democrats and anti-New Deal Republicans who sought to exploit
fears of Communist aggression. As House Republican leader Joe
Martin declared on the eve of the 1946 election, ``the people
will choose tomorrow `between communism and the preservation
of our American life.' '' The next day, the Democrats lost 56
seats in the House.
Thereafter, the issue of loyalty became a shuttlecock of
party politics. By 1948, President Truman was boasting on the
stump that he had imposed on the federal civil service the
most extreme loyalty program in the entire ``Free World,''
and he had. But there were limits to Truman's anti-communism.
In 1950, he vetoed the McCarren Act, which required the
registration of all Communists. Truman explained that the Act
was the product of ``public hysteria'' and would lead to
``witch hunts.'' Congress passed the Act over Truman's veto.
In 1954, Congress enacted the Communist Control Act, which
stripped the Communist Party of ``all rights, privileges, and
immunities.'' Only one Senator, Estes Kefauver, dared to vote
against it. Irving Howe lamented ``this Congressional
stampede to . . . trample . . . liberty in the name of
destroying its enemy.''
Hysteria over the Red Menace swept the nation and produced
a wide-range of federal, state and local restrictions on free
expression and free association, including extensive loyalty
programs for government employees; emergency detention plans
for alleged ``subversives''; abusive legislative
investigations designed to punish by exposure; public and
private blacklists of those alleged ``pinkos'' who had been
``exposed''; and criminal prosecution of the leaders and
members of the Communist Party of the United States.
The Supreme Court's response was mixed. The key decision,
however, was Dennis v. United States, which involved the
direct prosecution under the Smith Act of the leaders of the
American Communist Party. In a six-to-two decision, the Court
held in 1951 that the defendants could constitutionally be
punished for their speech under the clear and present danger
test even though the Court readily conceded that the danger
was neither clear nor present. It was a memorable stroke of
judicial legerdemain.
Over the next several years, the Court upheld far-reaching
legislative investigations of ``subversive'' organizations
and individuals and the exclusion of members of the Communist
Party from the bar, the ballot and public employment. In so
doing, the Court clearly put its stamp of approval on an
array of actions we look back on today as models of
McCarthyism.
In the Vietnam War, as in the Civil War and World War I,
there was substantial opposition both to the war and the
draft. Lest we forget the stresses of those years, let me
quote briefly from Theodore White's eyewitness account of the
1968 Democratic Convention:
The demonstrators chant ``Peace Now'' as they approach the
Chicago police picket-lines. Then, like a fist, comes a
hurtling column of police. It is a scene from the Russian
revolution. Gas grenades explode. Demonstrators kneel and
begin singing America the Beautiful. Clubs come down. ``The
Whole World is Watching.''
Over the next several years, the nation entered a period of
intense and often violent struggle. After President Nixon
announced the American ``incursion'' into Cambodia, student
strikes closed a hundred campuses. Governor Ronald Reagan,
asked about campus militants, replied: ``If it takes a
bloodbath, let's get it over with.'' On May 4, National
Guardsmen at Kent State University responded to taunts and
rocks by firing their M-1 rifles into a crowd of students,
killing four and wounding nine others. Protests and strikes
exploded at more than twelve hundred of the nation's colleges
and universities. Thirty ROTC buildings were burned or bombed
in the first week of May. The National Guard was mobilized in
sixteen states. As Henry Kissinger put it later, ``The very
fabric of government was falling apart.''
Despite all this, there was no systematic effort during the
Vietnam War to prosecute individuals for their opposition to
the war. As Todd Gitlin has rightly observed, in comparison
to World War I, ``the repression of the late sixties and
early seventies was mild.'' There are many reasons for this,
including, of course, the rather compelling fact that most of
the dissenters in this era were the sons and daughters of the
middle class, and thus could not so easily be targeted as the
``other.'' But the courts, and especially the Supreme Court,
played a key role in this period. In 1969, the Court, in
Brandenburg, overruled Dennis and held that even advocacy of
unlawful conduct cannot be punished unless it is likely to
incite ``imminent lawless action.'' The Court had come a long
way in the fifty years since World War I.
But the Court did not rest there. In other decisions it
held that the Georgia House of Representatives could not deny
Julian Bond his seat because of his express opposition to the
draft; that a public university could not deny recognition to
the SDS because it advocated a philosophy of violence; that
the government could not conduct national security wiretaps
without prior judicial approval; and, of course, that the
government could not constitutionally enjoin the publication
of the Pentagon Papers, even though the Defense Department
claimed that publication would endanger national security.
This is not to say that the government did not find other
ways to impede dissent. The most significant of these was the
FBI's extensive effort to ``expose, disrupt and otherwise
neutralize'' allegedly ``subversive'' organizations, ranging
from civil rights groups to the various factions of the anti-
war movement. In this COINTELPRO operation, the FBI compiled
political dossiers on more than half-a-million Americans.
When these activities came to light they were sharply
condemned by congressional committees, and Attorney General
Edward Levi declared such practices incompatible with our
national values. In 1976, he instituted a series of
guidelines designed to restrict the political surveillance
activities of the Federal Bureau of Investigation.
What can we learn from this history? I would like to offer
at least a dozen observations. But time limits me to only
six.
First, we have a long and unfortunate history of
overreacting to the perceived dangers of wartime. Time after
time, we have allowed our fears to get the better of us.
Second, it is often argued that given 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 non-citizens. In those
circumstances, ``we'' are making a decision to sacrifice
``their'' rights--not a very prudent way to balance the
competing interests.
Third, the Supreme Court matters. It's often said that
presidents do what they please in wartime. Attorney General
Biddle once observed that ``the Constitution has not greatly
bothered any wartime President,'' and Chief Justice Rehnquist
recently argued that ``there is no reason to think that
future wartime presidents will act differently from Lincoln,
Wilson, or Roosevelt.''
In fact, however, the record is more complex than this
suggests. Although presidents may think of themselves as
bound more by political than by constitutional constraints in
time of war, the two are linked. Lincoln did not propose a
Sedition Act, Wilson rejected calls to suspend the writ of
habeas

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corpus and Bush has not advocated loyalty oaths. The fact is
that even during wartime, presidents have not attempted to
restrict civil liberties in the face of settled Supreme Court
precedent. Although presidents often will push the envelope
where the law is unclear, they do not defy established
constitutional doctrine.
Fourth, 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, of
course, Korematsu and Dennis. In fact, however, there are
many counter-examples.
During World War II, the Court upheld the constitutional
rights of American fascists in a series of criminal
prosecutions and denaturalization proceedings, effectively
putting a halt to government efforts to punish such
individuals. During the Cold War, the Court rejected
President Truman's effort to seize the steel industry and
eventually helped put an end to the era of McCarthyism. And
during Vietnam, the Court repeatedly rejected national
security claims by the Executive. 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.
Fifth, 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. If
all that sounds familiar, it should.
Finally, I want to say a word about our responsibilities as
lawyers. In each of these episodes, lawyers played an
important role, both in imposing the restrictions on civil
liberties, and in opposing them. At the moment, I'm more
interested in the latter. Albert Gallatin offered brilliant
arguments in opposition to the Alien and Sedition Acts.
Gilbert Roe defended the free speech rights of dissenters in
World War I. Professors Ernst Freund and Felix Frankfurter,
of the Chicago and Harvard law schools, played a critical
role in illuminating the civil rights violations of the Red
Scare and bringing that era to a close. Francis Biddle played
a courageous role within the Roosevelt administration during
World War II in opposing both the Japanese internment and the
prosecution of American fascists. Joseph Welsch, a Boston
lawyer, publicly humiliated Senator Joseph McCarthy hearings
with his blistering questions ``Have you no sense of decency,
sir, at long last? Have you left no sense of decency?'' And a
group of lawyers here in Chicago from such organizations as
BPI, the ACLU, the Better Government Association and the
Alliance to End Repression helped put an end to end
COINTELPRO and to the City of Chicago's Red Squad during the
Vietnam War.
Now, to return to our own perilous time. The threat of
terrorism is real, and we expect our government to protect
us. But we have seen disturbing, and all-too-familiar,
patterns in our government's activities. To strike the right
balance in our time, we need judges who will stand fast
against the furies of the age; members of the academy who
will help us see ourselves clearly; an informed and tolerant
public who will value not only their own liberties, but the
liberties of others; and, perhaps most of all, lawyers with
the wisdom to know excess when it exists and the courage to
preserve liberty when it is imperiled.
Thank you.

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