Civil Liberties, 1946–Present
CIVIL LIBERTIES, 1946–PRESENT
For civil liberties, the era after World War II has been full of paradoxes: The victories of the civil rights movement (due in part to the success of non-violent civil disobedience), the expansion of criminal due process, and the judicial establishment of reproductive rights have contrasted with repeated exertions of government power in the name of national security, often cloaked in secrecy and frequently directed at peaceful political activity. Since 1945, the tensions between civil liberties and national security have centered around three conflicts: the Cold War, the Vietnam War, and the war on terrorism.
the cold war
The apparatus secretly created by Franklin Roosevelt before World War II to collect domestic intelligence about "subversive activities" did not fade away with the end of the war. It shifted its attention to the Communist threat, taking on aspects of hysteria. By executive order, in 1947, President Truman initiated a Loyalty and Security Program for federal employees. The attorney general compiled a list of subversive organizations. Overriding Truman's veto, Congress enacted the Internal Security Act of 1950. The House Un-American Activities Committee (HUAC) and its Senate counterpart launched extensive investigations of Communist "infiltration" of all aspects of American life, ruining lives and sowing fear. The ideological guilt by association personified by Senator Joseph McCarthy's inquiries had a profound, chilling impact on free speech. As the attorney general reported in 1955, the Federal Bureau of Investigation (FBI) was conducting surveillance of "the entire spectrum of the social and labor movement."
Revulsion to McCarthy's careless bullying grew, and with the 1952 election of Republican President Dwight Eisenhower, McCarthy lost his political relevance. In 1954, the Senate voted overwhelmingly to censure him. Loyalty boards withered and the attorney general's List was not updated after 1955. But in 1956, behind a wall of secrecy, the FBI created a new domestic spying operation called COINTELPRO, with the express goal of investigating and disrupting domestic groups across the political spectrum. Later, the Senate Church Committee found that the FBI's activities during this period constituted a "sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association" (U.S. Senate Select Committee, 1976). Tactics included extensive surveillance of anti–Vietnam War demonstrations, warrantless wiretaps, illegal break-ins, infiltration, and "dirty tricks" intended to foment violence between targeted groups.
Public and congressional outrage over the abuses of COINTELPRO led to reform. Permanent oversight committees were created in the House and Senate. President Ford's issuance of a public executive order on intelligence activities for the first time put security efforts under a unified, public framework. The Freedom of Information Act (FOIA), passed in 1966, was amended in 1974 to strengthen citizen access to records concerning national security. Statutes were adopted bringing wiretapping under judicial control. Attorney General Edward Levi adopted guidelines limiting FBI domestic security operations to the investigation of criminal conduct.
The reforms of the 1970s undeniably curtailed a range of intelligence activities infringing on the rights of Americans and created an enduring system of oversight. The overall picture of their effectiveness is complex. Some of the reforms were weakened subsequently. Courts interpreting the FOIA continued to defer to executive branch claims for withholding information from the public. Secret attorney general guidelines preserved in large part the FBI's authority to collect intelligence on domestic groups suspected of foreign influence. At the end of the twentieth century, the threat of international terrorism came to play somewhat of the role that had been held by Communism—a real threat serving as the justification for restrictions of civil liberties.
the supreme court
Of all the branches, the Supreme Court has most consistently defended and expanded civil liberties, at least of citizens. At the height of McCarthyism, in the 1951 Dennis v. United States case, the Supreme Court affirmed the convictions of Communist Party leaders, ruling that the defendants' speech advocating the overthrow of the government could be punished even though there was no evidence
that actual danger to the country was imminent. The case turned out to be somewhat of an anomaly. Soon, the Court retreated from the Dennis decision, and in the 1960s embarked on a jurisprudential path that gave robust protection to First Amendment freedoms against government claims of security.
In the 1969 case of Brandenburg v. Ohio, the Court held that the government could not criminally punish statements advocating the use of force or other illegal conduct except where such advocacy is "directed to inciting or producing imminent lawless action" and is in fact likely to do so. The Court extended the Brandenburg principle in subsequent cases, affording constitutional protection to speech intended to stir anger, and even speech intended to create a climate of violence, so long as it was not immediately responsible for the violence. In a 1969 opinion, at the height of the Vietnam War, the Court struck down a criminal conviction for flag burning, holding that expressive conduct was a form of protected speech.
The freedom to criticize public officials was given a high level of protection in New York Times v. Sullivan (1964), holding that government officials could not sue for libel (i.e., for erroneous, damaging statements) unless the speech was made with actual knowledge that it was false, or with reckless disregard for the truth. And in the landmark Pentagon Papers case, the Court ruled that the government could not obtain an injunction to stop publication of classified national security information without meeting a very high test.
In the area of surveillance, however, the Court's rulings were more mixed. It ruled that U.S. citizens could not be wiretapped in the name of domestic security without a court order. But it also ruled that the First Amendment did not limit government surveillance of public demonstrations and meetings open to the public.
the war on terrorism
Concerns with terrorism in the 1980s and 1990s led to expansions in government power. In 1996, after the Oklahoma City bombing, Congress adopted a major anti-terrorism law, making it a crime to support even the lawful activities of foreign groups that also engaged in terrorism and authorizing use of secret evidence to deport aliens accused of terrorist ties. Under the guise of fighting terrorism, due process was curtailed in unrelated areas: Most notably, the 1996 law curtailed the right of habeas corpus in all cases.
Immigrants bore the brunt of discretionary counterterrorism measures. In 1999, the Supreme Court ruled that aliens had no right to object to deportations initiated in retaliation for lawful associations with terrorist organizations that would have been protected by the First Amendment if engaged in by U.S. citizens.
The attacks of September 11, 2001 prompted rapid enactment of the USA PATRIOT Act, expanding electronic surveillance powers, authorizing secret searches in all federal cases, and weakening controls on access to personal data. The executive branch exercised broad authority to detain and deport aliens in secret and even claimed the right to hold U.S. citizens in military prisons without filing criminal charges. The digital revolution posed new threats to privacy. Yet congressional oversight committees continued to seek information on intelligence activities, and watchdog groups pursued a campaign of criticism, advocacy, and litigation.
Halperin, Morton H.; Berman, Jerry J.; Borosage, Robert L.; et al. The Lawless State: The Crimes of the U.S. Intelligence Agencies. New York: Penguin Books, 1976.
O'Reilly, Kenneth. Hoover and the Un-Americans: The FBI, HUAC, and the Red Menace. Philadelphia: Temple University Press, 1983.
U.S. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities. Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of Americans, Book III. 94th Congress, 1976. Rept. 94–755.
Supreme Court Decisions
Dennis v. United States, 341 US 494 (1951).
New York Times v. Sullivan, 376 US 254 (1964).
Brandenburg v. Ohio, 395 US 444 (1969).
Street v. New York, 394 US 576 (1969).
United States v. United States District Court, 407 US 297 (1972).
NAACP v. Clairborne Hardware Co., 458 US 886 (1982).
Reno v. American-Arab Anti-Discrimination Comm., 525 US 471 (1999).
James X. Dempsey