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Civil Liberties and the War on Terrorism
Erwin Chemerinsky* I. INTRODUCTION In the four years 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 Bush Administration 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 Acts, which made it a federal crime to make false criticisms of the government or its officials.1 The Sedition Act was used to persecute the government’s critics, and people were jailed 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 Within a few years, after the election of 1800, Congress repealed the law and President Thomas Jefferson pardoned those who had been convicted. The right to freedom of speech was lost and nothing was gained. During the Civil War, President Abraham Lincoln suspended the writ of habeas corpus. Additionally, dissidents were imprisoned 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 United States Supreme Court declared unconstitutional Lincoln’s suspension of the writ of habeas corpus.2 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;3 another, Socialist leader Eugene Debs, was sentenced to prison for simply saying to his audience, “you are fit for something better than . . . cannon fodder.”4 At about the same time, the successful Bolshevik revolution in Russia sparked great fear of communists here. The Attorney General, A. Mitchell Palmer, launched a massive effort to round up and deport aliens in the United States. Individuals were summarily deported and separated from their families without any semblance of due process.
* 1. 2. 3. 4. Alston & Bird Professor of Law and Political Science, Duke University. Sedition Act of 1798, ch. 73, 1 Stat. 596 (expired 1801). Ex parte Milligan, 71 U.S. 2, 130-31 (1866). Schenck v. United States, 249 U.S. 47, 48-49 (1919). Debs v. United States, 249 U.S. 211, 214 (1919).

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Washburn Law Journal

[Vol. 45

During World War II, 110,000 Japanese Americans were forcibly interned in what President Franklin Roosevelt called “concentration camps.”5 Adults and children, aliens and citizens, were uprooted from their lifelong homes and placed behind barbed wire. Not one Japanese American was ever charged 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. United States,6 expressed the need for deference to the executive in wartime and upheld the removal of Japanese Americans from the West Coast.7 The McCarthy era saw enormous persecution of those suspected of being communists. Jobs were lost and lives were ruined on the flimsiest of allegations. In the leading case of the era, Dennis v. United States,8 the Court approved twenty-year prison sentences for individuals for the crime of “conspiracy . . . to advocate the overthrow of the [g]overnment” for teaching works by Marx and Lenin.9 This brief recitation of history should give pause to any efforts to take away civil liberties in this new time of crisis. Unfortunately, the Bush Administration and the Ashcroft and Gonzales Justice Departments have shown no such pause. They rushed…