Civil Liberties and War

Civil Liberties and War. From the outset of the new American government under the Articles of Confederation, the need for striking a delicate balance between authority and liberty was essential. Fear of powerful central control was stated clearly regarding the English king in the U.S. Declaration of Independence. It remained an ongoing concern under the Constitution. Indeed, a Bill of Rights limiting the new central government was adopted, which from its First Amendment assumed that the main enemy of liberty was Congress, which was admonished to “make no law abridging freedom of speech and of the press.” Further, the amendment went on to protect freedom of assembly and the right to petition, along with its initial statement of religious freedom.

The very nature of republican government, James Madison stated in 1792, required that “the censorial power be in the people over the government, and not in the government over the people.” Actual war intensified the issue, and the early Federalists felt its dangers required national security legislation. Hence the Alien and Sedition Acts, which sought to sharply curtail freedom of speech and press as long as the Undeclared Naval War with France of 1798–1800 was underway. With all three branches of the national government controlled by the Federalists, the libertarian Jeffersonians found their voices silenced, as most Anti‐Federalist editors were jailed. This produced negative backlash and Jefferson's election to the presidency in 1800. It also resulted in a movement headed by political writers to define more precisely the permissible limits of free speech and press. The War of 1812 with England, highly unpopular in Federalist New England, not only elicited bitter criticism of Republican president James Madison but produced discussions by some Federalists at the Hartford Convention regarding secession. Madison prosecuted none, but deplored many.

The Mexican War of the 1840s carried with it so many subtle moral and political issues that formal legalistic civil liberties issues took a backseat. Congressmen, including Abraham Lincoln, worried aloud how slavery could be further curtailed so as not to destroy the union. Henry David Thoreau denounced the war and refused to pay taxes to support it, but also called for civil disobedience and noncompliance with wartime actions that might result in obtaining more slave territory. Gen. Winfield Scott appeased some critics by seeking to protect Mexican property rights by setting up military commissions that would develop a form of due process of law for citizens subjected to unruly behavior by occupying U.S. soldiers. Even though this did not restrain the U.S. Army, it brought a new technique of controlling the more extreme abuses of the military in its dealing with civilian populations.

The Civil War saw important crises in civil liberties developed ultimately out of the White House as President Abraham Lincoln claimed a body of Presidential War Powers which had the force of law and which frequently sublimated civil liberties to national security. This sprang from presidential initiative, but was then followed by congressional approval or acquiescence. Lincoln consolidated state militias into one force, summoned volunteers for active service, increased the size of the army and navy without legislative authority, paid money from the Treasury without an appropriation, and closed the Post Office to “treasonable correspondence.”

In addition, Lincoln and his generals in the field were not reluctant to use censorship to protect wartime secrecy considered necessary to assure victory. Translated informally, this led to various orders for control of the press and curtailment of disloyal utterances. The army was to control reporters and take action against incorrect reports and inadvertent leaking of strategic and military secrets. Feeling that more control was needed, an effort was made to exclude from the mails printed material that was calculated to interfere with the war policy. Dissenters were threatened with arrest and trial before a court‐martial.

Congress's conscription legislation (1863, 1864) penalized those who counseled resistance to the draft. This followed its 1862 Treason Act, which was never held to cover the expression of disloyal sentiments. But through the temporary wartime suspension of the writ of habeas corpus, the government found ways of striking at those who might interfere with the president's duty to ensure that the laws were faithfully executed. These actions, plus the use of martial law against critical civilians, constituted a kind of prior restraint and drew strong negative public reaction.

It was not until the war was over that the Supreme Court ruled on such restrictions of constitutional liberties. In an 1866 case, Ex Parte Milligan, the Court struck hard at the suspension of the writ of habeas corpus and further proclaimed that martial law could not be justified by a threatened invasion.

Lincoln's pattern was repeated in World War I, when President Woodrow Wilson initially closed German wireless stations and later created a host of administrative boards and agencies to monitor war criticism. Yet the Civil War experience had not provided the federal government with the kind of legal weapons, such as statutory instruments of suppression, that it needed to control public discourse on a massive scale in wartime. With the formal declaration of war in April 1917, Congress passed an Espionage Act, and a Trading with the Enemies Act, which created a Censorship Board to coordinate and make recommendations about censorship. It condoned censorship of mail or any other kind of communication with foreign countries and gave the Postmaster General almost absolute censorship power over the American foreign‐language press. Included also was a Sedition Act, 1918, which sought to repress anarchists, socialists, pacifists, agrarian radicals, and especially the Non‐Partisan League, which had taken over North Dakota at the time. The Alien Act of 1918 empowered the government to deport “any alien who, at the time of entering the United States was found to have been a member of an anarchist organization.”

Other forms of war restriction raised civil liberties concerns. The Selective Service Act (1917) elicited legal challenge. In the 1918 Selective Draft Cases, a unanimous Supreme Court found the constitutional authority to impose compulsory military service in Congress's power to declare war and to “raise and support armies.”

Critics complained that much of this legislation was a threat to freedom. But except for conscription, the Supreme Court did not pass judgment on the constitutionality of any of it pending the end of the war itself. In the 1919 Schenck and Abrams cases, wartime prosecutions were upheld, much to the distress of a number of loyal Americans who feared this was laying the basis for a surveillance state. From these decisions arose the “clear and present danger” test, and also the American Civil Liberties Union in 1920, to preserve the Bill of Rights.

But there were those who found the strong new federal government a blessing in disguise. Private power groups, which had greatly distrusted burgeoning regulatory authority in the economic field, now seemed pleased to accept such federal authority when applied to stifling the ideas and expression of their critics. In fact, they were delighted to have the national government play this role since federal authorities could rationalize such actions as essential to victory in a war to preserve international liberal capitalism without incurring the criticism and stigma that private groups would have elicited had they attempted to crush their enemies in such a fashion.

This new role of the state, however, produced strong negative reactions. It seemed to be progressivism gone wrong. Its critics rejected the war emergency rationalization as a dubious justification for such a radical departure in governmental policy. Critics particularly questioned the grounds for giving new federal agencies—from the Committee on Public Information and the Federal Bureau of Investigation to the newly swollen Justice and Post Office Departments—discretionary power to limit Americans' use of their individual freedom. Further, they deplored the absence of legal remedies for innocent citizens whose rights were violated by the excessive zeal of agents of these organizations.

Civil liberties in World War II took a different form. President Franklin D. Roosevelt had been in the Wilson government, and vowed that should war come, his administration would not repeat the repression of the World War I years. But Roosevelt was also aware that domestic groups and individuals had ties with Germany and the Axis powers, and in the late 1930s he alerted the FBI to begin domestic surveillance in the name of national security and the avoidance of sabotage. Meanwhile, conservatives in Congress set up the Dies Committee to investigate the loyalty of the Roosevelt administration. The result was that the World War I Espionage Act was reenacted, and Congress also passed the Smith Alien Registration Act (1940), instructing the government to search out and expose disloyal Americans, and to begin the practice of denaturalizing citizens who expressed sympathy with Nazi Germany. Attorney General Francis Biddle disagreed with both policies and took cases to the Supreme Court (Hartzel v. U.S., 1944; Baumgartner v. U.S., 1944) sharply curtailing both measures. The previous year, 1943, had seen the Court reverse a 1940 ruling by granting First Amendment protection to Jehovah's Witness children freeing them from compulsory flag salute policies on the ground that the state laws violated the free exercise of religion clause. The wartime period also saw a rare use of the treason clause (Haupt v. U.S., 1947), with the government facilitating several treason prosecutions of U.S. nationals for allegedly assisting the Germans and the Japanese during the war.

The most flagrant wartime violation of civil liberties in American history involved the Japanese Americans living on the West Coast, the majority of whom—70,000 of 112,000—were American citizens. Rounded up by the military after Pearl Harbor, they were first subjected to a curfew, then banned from coastal areas, and subsequently shipped to inland detention camps, known as relocation centers. In the process they were punished without indictment or trial, and since this action was called for by the military in the name of national security, the Supreme Court in the Japanese American Internment Cases hesitated to interfere. In the Hirabayshi case (1943), the Court ruled the curfew constitutional on the excuse that it was wartime. A year later, the Court did uphold the right of loyal Americans to leave the camps through a writ of habeas corpus. It was never willing to examine the constitutionality of the relocation program itself, thereby leaving future wartime restraint unresolved.

The war in Korea was technically not a war, but a United Nations “police action” without a formal declaration. Coming during the McCarthy era, when the Truman administration was being criticized for being “soft on communism,” little was done to curtail negative expression for fear of right‐wing backlash. However, in the Dennis case (1951), the Supreme Court sustained the Smith Act, jailing and silencing leaders of the American Communist Party with an extremely narrow interpretation of the clear and present danger test.

The Vietnam War was a sharp contrast. Again, there was no formal war declaration. But a half million American troops eventually fought with meager success and mounting domestic protest, particularly from student organizations such as the Students for a Democratic Society, and angered civil rights leaders, questioning national priorities. Some criminal prosecutions and conspiracy trials were launched against war resisters, but with limited success. The Supreme Court was reluctant to curtail such expression. It expanded the right of conscientious objection. It struck down the Nixon administration's attempt to halt the publication of the Pentagon Papers (New York Times v. U.S., 1971) a critical study of the origins and early history of the Vietnam conflict. Significantly, it was in this period that the Court finally clarified the true permissible limits of freedom of expression. In the landmark case of Brandenburg v. Ohio (1969), a unanimous Court held that the government in order to limit free expression was required to prove that its danger was real and immediate, not imaginary. Even threatening speech was now guaranteed, said the Court, unless the state could prove that the advocacy was directed to inciting or producing imminent lawless action and was likely to incite or produce such action.

Some Americans blamed the defeat in Vietnam on the war critics, who critics said should have been silenced, or at the least denied access to certain information. This questionable view was embraced by the military and applied during the Reagan and Bush administrations, especially regarding paramilitary operations in Central America and the Caribbean, and particularly during the Persian Gulf War of 1991. Tight control was placed on “strategic” in formation, and also on reporters attempting to cover the hostilities. Information was to come only through military briefings. Later information, available following investigations of the health of military personnel and civilians, raised questions about such limited briefings and denial of access to contemporary data that the public had a right to know.
[See also Conscientious Objection; Draft Resistance and Evasion; Espionage and Sedition Acts of World War I; Habeas Corpus Act; Martial Law; Surveillance, Domestic; Treason; Vietnam Antiwar Movement.]

Bibliography

Paul L. Murphy , The Constitution in Crisis Times, 1918–1969, 1972.
Paul L. Murphy , World War I and the Origins of Civil Liberties in the United States, 1979.
Leonard W. Levy , Emergency of a Free Press, 1985.
Harry Kalven, Jr. , A Worthy Tradition: Freedom of Speech in America, 1988.
James G. Randall , Constitutional Problems Under Lincoln, 1997.
David M. Rabban , Free Speech in Its Forgotten Years, 1998.

Paul L. Murphy