Roundtable #18 | Civil Liberties
Section I: History of Civil Liberties During Wartime Through World War I
In 1735, Peter Zenger was put on trial for publishing newspapers critical of the New York colonial governor. His lawyers defended him on the grounds that truth and veracity superseded libel, stating “the exposing of public wickedness…is a duty which every man owes to truth and his country.” [1] Zenger was acquitted, and thereby set a precedent for freedom of speech and liberty of the press in the annals of American history. However, at the turn of the century, anxieties over a war with France complicated the issue, and the precedent was ignored by the now-infamous Alien and Sedition Acts. Passed by the Federalist in 1798, the acts were a series of four laws designed to fracture their political opposition by criminalizing any perceived criticism or subversion of the government. The logic used to justify these civil oppressions was the exigent circumstances of a potential war—that age-old societal plague that has captivated our fascination and horror for millenia, the harbinger of revolution, empire, and atrocity.
This perennial dialectic between freedom and security, complicated by the fear of war, would not be seriously addressed again until World War I (WWI) and settled in the decades after. However, beginning in the 19th century, the debate developed from its embryonic form: in Federalist Paper No. 8, Alexander Hamilton predicted that Americans would choose security over freedom, citing that “the violence destruction of life and property incident to war” would incentivize citizens to accept “institutions which have a tendency to destroy their civil and political rights.” [2] Abraham Lincoln, over half a century later, employed the logic explicated here in his suspension of habeas corpus during the American Civil War, which held up for the duration of the conflict notwithstanding the Supreme Court’s dissent in Ex Parte Merryman. [3] In 1917, with the debate still unresolved, the United States entered WWI. In light of this, the Espionage Act of 1917 and the Sedition Act of 1918 were passed to criminalize the publication or distribution of any information deemed harmful to the U.S. government or military. In his 1915 State of the Union Address, President Woodrow Wilson emphasized the “threatening and sinister scope” of the war “on the other side of the sea” to push for the passage of laws designed to curb “creatures of passion, disloyalty, and anarchy.” [4] He appealed to rising agitations about foreign subversion and revolution, which reached an apex in the Red Scare, as an impetus for tightening security at the expense of freedoms.
Hamilton’s hypotheses would be put to the test over the next few years as the judicial branch slowly pushed back against the oppression of liberties during and after WWI. In Schenck v. United States (1919), there was sufficient evidence to prove the defendant Charles Schenck, who circulated mail encouraging citizens to stand up against conscription, had engaged in a “conspiracy to obstruct the recruiting and enlistment service, contrary to the Espionage Act.” [5] Even though Schenck’s prosecution was unanimously upheld by the Court, the opinion delivered by Justice Oliver Holmes espoused a limiting of the grounds for the persecution that served as a precedent for similar cases down the line. Holmes conceded that “in ordinary times the defendants in saying all that was said…would have been within their constitutional rights.” However, he continues, all acts depend “upon the circumstances in which it is done…” which calls into question whether there is “a clear and present danger” that the defendant will bring about the “evils that Congress has a right to prevent. It is a question of proximity and degree.” [6] Holmes’s rhetoric was revolutionary in that it recognized a discrepancy in the protection of civil liberties between war and peacetime in a judicial opinion, and further outlined the ‘clear and present danger test,’ putting the onus on prosecutors to identify a direct connection between speech and criminal action—a conception divergent from the orthodox Anglo-derived ‘bad tendency test,’ hitherto generally used by courts, which allowed speech to be taken at face value and prosecuted more broadly. [7]
However, in the cases following Schenck v. United States (1919), courts tended to revert back to the bad tendency test, confining Holmes’s explication of clear and present danger to theory. Merely a week after Schenck’s case, Eugene Debs in Debs v. United States (1919) was prosecuted for giving an anti-war speech to a general public despite that, unlike in Schenck’s case, his speech was not a specifically targeted subversion with tangible implications in the form of hamstringing conscription. [8] Even though Holmes consented to Deb’s prosecution in the case, he was displeased by the trajectory of the oppression of wartime civil liberties. Thus, in Abrams v. United States (1919), a repeat of anti-war activist this time espousing their rhetoric through leaflets, Holmes shifted his view, dissenting against the majority and thereafter becoming a powerful and outspoken champion of the protection of liberties during wartime based on the clear and present danger test he had pioneered earlier that year. His epochal dissent, which would later underpin our modern understanding of civil liberties, established a distinction between Schenck and Abrams’s case, and defended the latter on the idea of a “free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market…” and “unless they so imminently threaten immediate interference with the [law],” he acutely affirmed that “the defendants were deprived of their rights under the Constitution of the United States.” [9]
Half a decade later, Gitlow v. Abraham (1925) showed a 7-2 Supreme Court majority that upheld the prosecution of Benjamin Gitlow for publishing a manifesto espousing left-wing, anti-capitalist and socialist views. Justice Sanford’s majority opinion admitted that “there was no evidence of any concrete result flowing from the publication of the Manifesto.” Still, he justified the Court’s decision by stating “that utterances inciting to the overthrow of organized government [presents] sufficient danger of substantive evil.” Even though this did not meet the criteria of clear and present danger, the Court asserted that for “peace and safety,” they had the authority to pre-emptively prosecute manifestly evil doctrines “without waiting until there is a present” danger. [10] Thus, the Court had, invariably, reverted to a bad tendency test by rejecting Holmes’s explication of clear and present danger on a technicality of rhetoric rather than tangible outcome. However, a decade later in Herndon v. Lowry (1937), the Supreme Court invoked the clear and present dangers test to overturn the conviction of Angelo Herndon, a communists pamphleteer, who was charged by a Georgia state court using the bad tendency test. [11] Thereafter, Holmes’s rhetoric would go on to become the orthodox practice in courts in the 1940s. [12]
Even though we have inherited the paradigm of Holmes’s theories—a market of free ideas, strict constitutional interpretation of the Bill of Rights, and the primacy of individual liberties—they came out of a century of wartime civil rights infringements, and the heated debates surrounding them. It was this crucible that shaped the freedoms we take for granted today. The judicial dialogue regarding wartime liberties that continued into the 1920s were thus of paramount significance to the gradual rejection of Hamilton’s assertion that Americans would willingly concede their freedoms in the face of war, revolution, and the absence of peace and security—in other words, that there exists higher principles which should not conform to exigent circumstances.
by Matthew Oey
Section I Sources:
[1] “Trial of John Peter Zenger,” Jack Miller Center, October 2, 2017, online at https://jackmillercenter.org/cd-resources/trial-john-peter-zenger/?category=sedition-incitement (visited April 4, 2022).
[2] Alexander Hamilton, “The Federalist Papers No. 8,” Avalon Project - Documents in Law, History and Diplomacy, online at https://avalon.law.yale.edu/18th_century/fed08.asp (visited April 4, 2022).
[3] History.com Editors, “President Lincoln's Suspension of Habeas Corpus Is Challenged,” History.com Television Networks, November 13, 2009, online at https://www.history.com/this-day-in-history/lincolns-suspension-of-habeas-corpus-is-challenged (visited April 4, 2022).
[4] Woodrow Wilson, “Third Annual Message,” The American Presidency Project, US Santa Barbara, December 7, 1915, online at https://www.presidency.ucsb.edu/documents/third-annual-message-19 (visited April 4, 2022).
[5] Schenck v. United States, 249 U.S. 49 (1919), Justia, online at https://supreme.justia.com/cases/federal/us/249/47/ (visited April 4, 2022).
[6] id
[7] Richard Parker, “Clear and Present Danger Test,” The First Amendment Encyclopedia, online at https://www.mtsu.edu/first-amendment/article/898/clear-and-present-danger-test (April 4, 2022).
[8] Debs v. United States, 249 U.S. 211 (1919), FIRE, online at https://www.thefire.org/first-amendment-library/decision/debs-v-united-states (visited April 4, 2022).
[9] Abrams v. United States, 250 U.S. 616 (1919), Justia, online at https://supreme.justia.com/cases/federal/us/250/616/ (visited April 4, 2022).
[10] Gitlow v. New York, 268 U.S. 652 (1925), Justia, online at https://supreme.justia.com/cases/federal/us/268/652/ (visited April 4, 2022).
[11] John Vile, “Herndon v. Lowry (1937),” The First Amendment Encyclopedia, online at https://www.mtsu.edu/first-amendment/article/268/herndon-v-lowry (visited April 4, 2022).
[12] id
Section II: World War II
Prior to the United States’ entrance into World War II (WWII), the Supreme Court followed the precedents established in the early 20th century. The ruling in Minersville School District v. Gobitis (1940) affirmed that a school could expel a child for refusing to participate in the flag salute, even for religious reasons. The children involved in the case belonged to the Jehovah’s Witness religion, which prevented them from saluting the flag. The Court’s majority opinion emphasized that the flag salute was essential to the development of citizenship, even stating that “[n]ational unity is the basis of national security.” [1] As the time period prior to WWII was characterized by fears of disloyalty, such as concerns regarding espionage during WWI, the Court’s decision to prioritize unity over civil liberties was a natural continuation of existing sentiments. In Cantwell v. Connecticut (1940), another case involving Jehovah’s Witnesses, the Supreme Court ruled in Cantwell’s favor to unsolicitedly share his religious views with other people, this time upholding the freedom of religion. [2] The critical difference between these two cases is that in Minersville, refusing to salute the flag symbolized a rejection of national unity and American patriotism, whereas the Cantwell decision merely affirmed the Jehovah’s Witnesses’ constitutional right to go door-to-door, sharing their religious beliefs. The Court, influenced by the division and tension that the nation had just experienced during WWI, promoted unity and patriotism at the expense of civil liberties in this next time period.
A key difference between WWI and WWII was that an attack on U.S. soil only occurred in the latter, thereby inspiring more spirit and loyalty among the American people in the 1940s than in the 1910s. The attack prompted Americans to enthusiastically support the war effort, meaning “[i]solation was no longer an option.” [3] This new sense of national camaraderie translated into court decisions that no longer had to prioritize unity over religious freedom, as it was no longer the Court’s prerogative to impose a unity that already existed. In fact, only three years after these rulings, the Supreme Court overturned the precedent set in Minersville in West Virginia State Board of Education v. Barnette (1943). Writing for a 6-3 majority, Justice Robert H. Jackson explained that the Constitution both protects religious freedom and prescribes a government by the consent of its people. It does not enumerate the ways in which people must display that consent, nor does it state that the consent must be portrayed through a flag salute. Put by Justice Jackson, “[t]o believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.” [4] The Court was aware that the decision in Minersville prioritized the flag salute over religious freedom not for the act itself, but for the symbolic meaning behind it. It was the patriotism, not the patriot act, that the Court believed was most at stake in the case. When a people are still recovering socially and economically from the throws of war, and the domestic tension that comes with it, such patriotism is in danger and more likely to be enforced. When the nation is united, however, that patriotism is given voluntarily, leaving room for other aspects of American identity, such as religious freedom, to flourish. Following a period of divise war, the Court was more restrictive of civil liberties than it was when the nation was actively in a state of war due to the different levels of unity the public experienced. In the face of an active, common enemy during WWII, the nation was more united than it was while living through domestic turmoil as a result of the end of WWI. The Court’s decisions on cases involving civil liberties interacted with this dynamic, creating a pattern of cases that associated unity with civil liberties unrelated to the war effort.
The constitutionality of restrictions on civil liberties during wartime was further strained during this period. On February 19, 1942, President Roosevelt signed Executive Order 9066, which imposed curfews and ordered the relocation of citizens from “military areas and surrounding communities” to detention camps. [5] While the order itself did not specify the citizens to which it applied, it only affected Japanese-Americans in its execution. Hirabayashi v. United States (1943) called Executive Order 9066 into question, focusing specifically on the curfew aspect of the order. In the Court’s unanimous decision, Chief Justice John Stone justified the racial character of the order with the following statement: “in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry.” [6] When national security was at stake, the Court deemed it constitutional to infringe upon the civil liberties of American citizens based on ethnicity as opposed to evidence of espionage. This case was not the only one that contested the constitutionality of Executive Order 9066, but it was unique in its unanimity in favor of the government.
When Fred Korematsu, a Japanese-American U.S. citizen, refused to relocate to an internment camp, he was convicted of violating an order within Executive Order 9066 and sentenced to five years probation. He was also forced to go to an internment camp. The Supreme Court ruled against Korematsu and affirmed that the executive order was necessary on the basis of national security and could, therefore, discriminate against citizens based on race. In the majority opinion, Justice Hugo Black wrote that impeding upon the civil rights of a specific group was constitutional in cases of “[p]ressing public necessity,” as opposed to “racial antagonism.” [7] In keeping with precedent, the Court examined this order under a standard of strict scrutiny, which applies to all cases with race-based classifications. Although this order was, therefore, “suspect,” it was upheld as constitutional. [8] This case opened the door for U.S. presidents to legally abridge not only the civil liberties, but also the civil rights of Americans during times of war.
The Supreme Court’s decisions in Korematsu v. United States (1944) and Hirabayashi v. United States established that protecting the American public was more important than refraining from enacting policies based on race. This precedent was not long lasting, however, as it eventually gave way to pressure from activists, including Fred Korematsu himself. The Civil Liberties Act of 1988 provided compensation and a formal apology to former detainees, and in 2018, the Supreme Court overturned Korematsu in Trump v. Hawaii (2018). In Trump, the Supreme Court ruled that creating a travel ban from specific countries fell within President Trump’s constitutional authority without using Korematsu as a precedent. [9] However, while eventually overturned, the Korematsu precedent left long-lasting implications for civil liberties in times of war. A clear pattern emerged during WWII, one that prioritized unity and patriotism, even at the expense of civil liberties, when national security was at stake.
by Daniella Sapone
Section II Sources:
[1] Minersville School Dist. v. Gobitis, 310 U.S. 586, 60 S. Ct. 1010, 84 L. Ed. 1375 (1940).
[2] Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940).
[3] “The Great Debate: The National WWII Museum: New Orleans.” The National WWII Museum
[4] West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943).
[5] Mellinger, Caroline. “The United States & World War II.” ArcGIS StoryMaps. Esri, April 9, 2021. https://storymaps.arcgis.com/stories/b8899a15a87c45eb8c47a7066f024960.
[6] Hirabayashi v. United States, 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943).
[7] Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944).
[8] Id.
[9] Trump v. Hawaii, 138 S. Ct. 2392, 585 U.S., 201 L. Ed. 2d 775 (2018).
Section III: The Cold War Era
In an attempt to keep the dangers of Soviet authoritarianism at bay, government orders during the Cold War inhibited civil liberties and replicated the very oppressive policies they condemned abroad. However, in the midst of the Red Scare, the Supreme Court under the direction of Chief Justice Earl Warren served as a powerful check to these legislative directives and arose as a fierce defender of free expression.
At the onset of the second World War, the Red Scare pressured the executive and legislative branches to approve a series of laws choking civil liberties and First Amendment rights. Leading this trend was the executive’s creation of the House Committee on Un-American Activities (HCUA) and its establishment as a permanent agency in 1945, boldly signaling that limitations on civil liberties would not end with the second World War. Drawing from the Smith Act passed five years earlier, which had criminalized the “advocation, teaching, or encouragement of the overthrow of the American government,” HCUA organized a public ‘witch-hunt’ for suspected communists. Over the upcoming decades public libraries were ordered to remove and burn subservient books, prominent Hollywood personalities were targeted and blacklisted for their political opinions, and the McCarran-Walter Acts ordered the systematic deportation of naturalized citizens suspected of any anti-American activities. [1] These fierce legislative policies marked a period of strict government oversight, supervised speech, and limited liberties.
This limitation of civil liberties was further carried out by the Supreme Court under the supervision of Chief Justice Fred M. Vinson (1946-1953). Particularly, in the Court’s 1951 Dennis v. United States [2] decision, justices upheld the criminal convictions under the Smith Act of a dozen politicians affiliated with the US Communist Party who had allegedly advocated for the overthrow of the capitalist system in the United States. In doing so, the Vinson Court set a menacing precedent in which the government could arbitrarily arrest those who held political views with which it disagreed. Epitomizing this legacy of political trials and restrained civil liberties, the Vinson Court’s last ruling was the infamous Rosenberg Trial. [3] In the expedited three-week case, Julius and Edith Rosenberg were accused of sending state secrets to the USSR, and were sentenced to death mainly based on hearsay and limited evidence. While conservatives cried treason, many claimed that the Rosenbergs’ lives were being sacrificed as the scapegoat for America’s Cold War hysteria—the French philosopher Jean-Paul Sartre even denounced the execution as a “legal lynching.”
However, the Warren Court served as a powerful counter to this legislative mania, instead working to promote strong civil liberties and establishing precedents guaranteeing freedom of dissent and expression.
Beginning in 1953, the Warren majority started its efforts to curtail the effects of McCarthyism. In 1957, the Court ruled on Yates v. United States, [4] thereby reversing the prior conviction of fourteen American Communist officials who had been sentenced for their political views. In doing so, it placed serious limitations on the political use of the Smith Act and reversed the precedent set by Dennis. That same year, the Supreme Court decided in Watkins v. United States [5] that the HUAC had no formal legitimacy in punishing witnesses who pleaded the 5th and refused to make a statement on their politics. Writing the majority opinion, Justice Warren explained, "the mere summoning of a witness and compelling him to testify, against his will, about his beliefs is a measure of governmental interference.” A year later in Kent v. Dulles, [6] the Supreme Court under its new direction ruled it unconstitutional for the Department of State to arbitrarily deny passports based on political opinions. Based on the trial of Rockwell Kent, who had refused to sign a ‘non-communist affidavit,’ it set an important precedent upholding freedom of opinion even in times of war.
The Warren Court continued its efforts to uphold civil liberties during the Vietnam War. In one of its first Vietnam War decisions, the Court’s 1965 ruling of United States v. Seeger [7] extended the conscientious-objector status, which previously listed religious convictions as the only exception to the draft, to those who opposed war based on any sincere belief equivalent to religious objections. This consequential decision not only limited the government’s power to draft unconsenting citizens, but also paved the way for future anti-war resistance. One such citizen was Julian Bond, a Georgia state senator who publicly supported draft resistors, and as a consequence, saw his seat challenged and denied by the legislature. In Bond v. Floyd, [8] the Warren Court thus reasserted that “criticizing foreign policy does not violate a legislator's oath to uphold the Constitution.” Similarly, the Warren bench systematically struck down loyalty oaths which attached public benefits to political opinions. First, in Speiser v. Randall, [9] the ACLU lawyer Lawrence Speiser won his challenge to a California law which required that veterans sign a loyalty oath to qualify for a property tax exemption. Then, the 1967 Keyishian v. Board of Regents [10] judgment struck down a Cold War era law that required public school teachers to sign a loyalty oath in order to keep their jobs. This support for dissenters was also seen in the Court’s monumental decision in Tinker v. Des Moines. [11] In the 1969 trial of public-school children who decided to wear black armbands to protest the Vietnam War, the Supreme Court ruled in favor of the teenagers and upheld their 1st Amendment civil liberty to protest. As the majority opined, “students do not shed their constitutional rights to freedom of speech or expression at the school-house gate"—a right which bears repeating in today’s political climate. Lastly, one of the Warren Court’s most notable defenses of civil libertarianism was the controversial 1971 United States v. New York Times [12] trial. In the suit, the American government attempted to prevent the press from publishing the Pentagon Papers, which shined a dark light on the state’s war involvement in Southeast Asia. Ruling in favor of free press, Justice Hugo Black historically proclaimed that “only a free and unrestrained press can effectively expose deception in government.”
Overall, while the people’s 1st Amendment rights came under momentous pressure throughout the beginning of the Cold War and the McCarthy era, the Warren Court’s liberal rulings—spearheaded by the courage of Justices Douglass and Black [13]—helped to protect constitutional guarantees and the right of citizens to dissent, especially in times of war.
by Nathan Jacques Darmon
Section III Sources:
[1] History.com, “The Hollywood Ten,” September 12th, 2018, https://www.history.com/topics/cold-war/hollywood-ten
[2] Dennis v. United States, 341 US 494 (1951), Oyez, online at https://www.oyez.org/cases/1965/502 (visited June 4, 2022).
[3] Rosenberg v. United States, 346 US 273 (1953), Justicia, online at https://supreme.justia.com/cases/federal/us/346/273/ (visited June 4, 2022).
[4] Yates v. United States, 354 U.S. 298 (1957), Oyez, online at https://www.oyez.org/cases/1956/6 (visited June 4, 2022).
[5] Watkins v. United States, 354 U.S. 178 (1957), Oyez, online at https://www.oyez.org/cases/1956/261 (visited June 4, 2022)
[6] Kent v. Dules, 357 US 116 (1958), Oyez, online at https://www.oyez.org/cases/1957/481 (visited June 4, 2022)..
[7] United States v. Seeger, 380 U.S. 163 (1965), Oyez, online at https://www.oyez.org/cases/1964/50 (visited June 4, 2022).
[8] Bond v. Floyd, 385 U.S. 116 (1966), Oyez, online at https://www.oyez.org/cases/1966/87 (visited June 4, 2022).
[9] Speiser v Randall, 357 US 513 (1958), Oyez, online at https://www.oyez.org/cases/1957/483 (visited June 4, 2022).
[10] Keyishian v. Board of Regents, 385 U.S. 589 (1967), Oyez, online at oyez.org/cases/1966/105 (visited June 4, 2022).
[11] Tinker v. Des Moines School Dist., 393 U.S. 503 (1969), 403 U.S. 713 (1971), Oyez, online at https://www.oyez.org/cases/1970/1873 (visited June 4, 2022).
[12] New York Times Co. v. United States, 403 U.S. 713 (1971), Oyez, online at https://www.oyez.org/cases/1970/1873 (visited June 4, 2022).
[13] Yarbrough, E. Tinsley, Duke Law Journal, “Justice Black and Douglass: The Judicial Function And The Scope Of Judicial Liberties,” 1973 https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2444&context=dlj
Section IV: The Early 2000s to Today
After the era of McCarthyism and the Cold War, the next significant surge in the consideration of civil liberties during wartime began following the September 11 terrorist attacks. Days after the terrorist attack on 9/11, Congress enacted the Authorization for Use of Military Force of 2001 (AUMF) [1], a joint resolution that allowed the President to use military force against the countries, organizations, and people the executive branch deemed responsible for organizing the attacks, as well as those who aided and harbored these people. The enactment of the AUMF marked the beginning of the War on Terror. The Bush administration, and every presidential administration after, did not seek new authorizations from Congress to expand on supposedly “counter-terrorist” operations; rather, each president claimed that the AUMF provided all the needed authorization. [2] Presidents freely exercised the granted military power, enabled by the resolution’s broad wording. By the end of 2020, the United States had spent $8 trillion on counterterrorism efforts. However, the cost of the War on Terror is not solely monetary; in the post-9/11-wars, there has been an estimated 900,000 deaths, at least a third of which were innocent civilians. [3] During the Trump Administration, a total of 85 countries were impacted by the War on Terror through air and drone strikes, the stationing of troops, counterterrorism training, and US military bases. [4] The vast expansion of the War on Terror has led to the contesting of policies and initiatives enacted by the US government.
Since the beginning of the War on Terror, the United States has breached international criteria regarding civil rights. The United States consistently violates US and international law in their detainment and torture of civilians abroad. In Al Shimari, et al v. CACI (2008), Consolidated Analysis Center, Incorporated (CACI ) allegedly “directed and participated in illegal contact” at Abu Ghraib, an Iraqi prison. [5] The lawsuit was filed on behalf of four Iraqi citizens that were held at the prison from 2003 to 2004. In 2003, the US invaded Iraq and took control of Abu Ghraib to detain suspects, and the US enlisted CACI for almost $20 million to oversee interrogation services at the prison. The lawsuit states that CACI violated US and international law through torture, cruel treatment, war crimes, abuse, and sexual assault. The four Iraqi civilians were subjected to extreme torture, such as electric shocks, food, water, and oxygen deprivation, beatings so severe they caused broken limbs, sensory deprivation, and rape. In addition to these inhumane conditions, the civilians were being actively detained without trial and without International Red Cross site visits, which are required under international law. [6] These two civil liberties are valued and protected in the United States, yet the US was violating these rights abroad. The plaintiffs are seeking financial compensation for all physical and emotional damages. This case is still ongoing, and in September 2021, a US district court judge discussed settlement with both parties and requested the plaintiffs to calculate the cost of damages. [7] While this case is awaiting a final decision, it demonstrates that cases have challenged the constitutionality of the government’s power within the United States.
Additionally, in response to the terrorist attacks on 9/11, the United States passed the Patriot Act in October of 2001, four days after it was introduced. Several of the Patriot Act’s provisions have been contested in court. In Doe and ACLU v. Ashcroft et al. (2004) [8], the ACLU filed a lawsuit contesting section 215 of the Act, which allows the government access to records and any “tangible things” under the Foreign Intelligence Surveillance Act. [9] Previously, the FBI could only obtain business records from certain facilities, such as transport services and storage facilities. With the passage of the Patriot Act, the FBI can access practically any information from any business, including libraries, private businesses, and health care facilities, and the section prevents the business or institution from notifying its patrons that the government requested their information. The term “tangible things” was intentionally used because it is broad, and thus places virtually no limits on the government’s power to obtain citizens’ personal information. The ACLU argued that this law violates First and Fourth Amendment rights because it “does not impose adequate safeguards on the FBI’s authority to force disclosure of sensitive and constitutionally protected information.” In September of 2004, a judge of the Southern District of New York agreed with the ACLU and ruled that the provision violated the First and Fourth Amendments. Judge Victor Marrero stated, “Democracy abhors undue secrecy…[A]n unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our society.” [10]
While civil liberties were defended in Doe [11], the Patriot Act continues to infringe on Americans’ rights. Provisions from Section 805 of the Patriot Act broadened the definition of providing “material support or resources” to groups that the US government deemed to be foreign terrorist organizations. The law originally criminalized “knowingly providing material support or resources to terrorist organizations,” and the Patriot Act amended the term “material support” to include “expert advice or assistance” to these groups. [12] The change in the law now implicates a much larger group of Americans and organizations that were providing foreign aid. Holder v. Humanitarian Law Project (2010) [13] was filed in response to this provision on behalf of two US citizens and six organizations, with the lead plaintiff being Humanitarian Law Project. The Humanitarian Law Project argued that the law violated First and Fifth Amendment rights. The Humanitarian Law Project provided aid to the Kurdistan Workers’ party, while other plaintiffs assisted the Liberation Tigers of Tamil Eelam, and both of these groups were designated as foreign terrorist organizations. The provision directly banned these non-governmental organizations from helping in terrorist mediation and conflict prevention. In June 2010, the Supreme Court ruled in favor of the law in a 6-3 decision. [14] The Court infringed on civil liberties by upholding this law that denied free speech and freedom of association.
The War on Terror has caused devastating destruction in the Middle East and beyond, and it perpetuates international violence. In addition to sowing violence overseas, the War on Terror impacts millions of American citizens on American soil, leaving them vulnerable to unconstitutional surveillance. In the United States and abroad, the War on Terror displays an infringement on civil liberties, ranging from the surveillance of US citizens to the unlawful detainment of citizens abroad.
by Alexa Goldfarb
Section IV Sources:
[1] “Public Law 107–40 107th Congress Joint Resolution.” 2001. Congress.gov, online at https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf.
[2] “Overkill: Reforming the Legal Basis for the U.S. War on Terror.” 2021. Crisis Group, online at https://www.crisisgroup.org/united-states/005-overkill-reforming-legal-basis-us-war-terror.
[3] Savell, Stephanie. 2021. “Costs of the 20-year war on terror: $8 trillion and 900000 deaths.” Brown University, online at https://www.brown.edu/news/2021-09-01/costsofwar.
[4] Tayler, Letta, and Elisa Epstein. 2022. “Legacy of the “Dark Side”: The Costs of Unlawful US Detentions and Interrogations Post-9/11 Letta Tayler1 and Elisa Epstein.” The Watson Institute for International and Public Affairs, online at https://watson.brown.edu/costsofwar/files/cow/imce/papers/2022/Costs%20of%20War%20-%20Legacy%20of%20the%20%27Dark%20Side%27%20-%20Tayler%20and%20Epstein%20-%20FINAL%20Jan%209%202022.pdf.
[5] Al Shimari v. CACI International, Inc., 679 F.3d 205 (2008)
[6] “Human Rights and Civil Liberties | Costs of War.” n.d. The Watson Institute for International and Public Affairs, online at https://watson.brown.edu/costsofwar/costs/social/rights.
[7] “Al Shimari, et al. v. CACI.” n.d. Center for Constitutional Rights, online at https://ccrjustice.org/home/what-we-do/our-cases/al-shimari-v-caci-et-al.
[8] “Challenge to National Security Letter Authority.” n.d. American Civil Liberties Union, online at https://www.aclu.org/other/challenge-national-security-letter-authority.
[9] United States. 2001. The USA PATRIOT Act: preserving life and liberty : uniting and strengthening America by providing appropriate tools required to intercept and obstruct terrorism. [Washington, D.C.]: [U.S. Dept. of Justice]. https://purl.fdlp.gov/GPO/LPS39935.
[10] “Challenge to National Security Letter Authority.” n.d. American Civil Liberties Union, online at https://www.aclu.org/other/challenge-national-security-letter-authority.
[11] Doe and ACLU v. Ashcroft, 542 U.S. (2004).
[12] United States. 2001. The USA PATRIOT Act
[13] Holder v. Humanitarian Law Project, 561 U.S. (2010).
[14] Hudson, David L. n.d. “Patriot Act.” Freedom Forum Institute, online at https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/libraries-first-amendment-overview/patriot-act/.