The United States is in its third week of a war with no name. President George W. Bush has not yet given the people a sense of what America’s New War will be. Congress has rallied behind the president and written a $40-billion check for an unspecified military action and recovery in New York City.
Americans back their government overwhelmingly. But that support cannot include unquestioning acceptance of the administration’s violation of civil liberties in the name of national security.
In the administration’s proposed Mobilization Against Terrorism Act, Attorney General John Ashcroft asks for authority to hold non-citizens incommunicado indefinitely if the government regards them as a risk to national security or wants to question them. The government wants to be able to jail people without charge in time or peace or war, and to have the power to deny them the right of representation and the right to confront their accusers. It wants to use anonymous accusations and information obtained by illegal wiretaps overseas.
Government would have access to e-mail and voice mail without judicial oversight. In addition, the administration wants broader wiretap power in the United States. The Immigration and Naturalization Service is already detaining material witnesses indefinitely, jailing aliens for technical violations and traffic warrants and stretching due process. There is legitimate evidence that the terrorists of Sept. 11 were illegal aliens and legitimate concern that other aliens might be terrorists as well.
Ashcroft says that the current law restricting wiretaps to a specific phone number is obsolete in an age when people commonly have multiple telephones and e-mail. He argues that the government needs more flexibility to move against terrorists because current law allows detention without charge for only 24 hours before the right to an attorney and other basic rights come into force. The security of the United States, he says, is at stake.
If the administration’s proposal becomes law, security measures will increase. But freedom will decrease. So before the United States takes the dangerous step of overriding its Constitution, the people and their government must know as surely as they can that the life of the union is at risk.
The Mobilization Against Terrorism Act has already drawn criticism. Civil libertarians, both liberal and conservative, are challenging the proposals as infringing on the rights of citizens and aliens. This proposed law erodes constitutional protections.
American history is replete with instances in which government used national security to justify repression only to find later that the targeted population was little or no threat. When John Adams believed the nation faced an internal threat from sympathizers with revolutionary France in 1798, Congress gave him the Alien and Sedition Acts. With sedition defined as anything that brought government into disrepute, Federalist prosecutors and judges brought action against every major newspaper that supported Thomas Jefferson’s opposition Democratic-Republican Party. The Federalists even jailed a member of Congress.
Unwilling to be cowed, the Jeffersonians mounted a new defense of public debate. Americans voted Adams out of office in large part because of their dislike of these prosecutions. Still, other presidents resorted to similar measures. During the Civil War Abraham Lincoln suspended habeas corpus, a suspension that allowed detention of potential enemies indefinitely. His imposition of martial law, which replaced constitutional law with military rule, frequently stifled dissent.
Again during World War I, the federal government enacted new alien and sedition acts and established a propaganda agency. State and local governments also enacted new restrictions. Efforts to promote patriotism became excessive and led to outbreaks of violence and vigilante justice against those who opposed the war or the administration. Disloyalty was charged against those who didn’t buy enough bonds or did anything that wasn’t “one hundred percent American.”
Similar disregard for constitutional freedoms led to the detention of Japanese-Americans in World War II. Government excesses during the Cold War and the Korean and Vietnam wars included the Smith Alien Registration Act, loyalty oaths, the McCarran Internal Security Act and J. Edgar Hoover’s FBI files on those he considered subversive, such as Martin Luther King, Jr.
Historically, when the dust has settled the United States has recovered its appreciation for civil liberties and tried to undo the harm caused by those concerned more with protecting the security of the United States than with safeguarding its Constitution. Courts then have overturned alien and sedition laws, enforced habeas corpus, required due process prior to deportations, and undone executive and congressional loyalty oaths and “enemies” lists.
The United States is likely to go through this regrettably familiar cycle again. If the campaign against terrorism is long, difficult and costly, there will be those who will try to enforce unity and to stifle free dissent.
They will sacrifice freedom for what they think are the best of motives — the preservation of “the American way of life” and the security of the nation. And many, probably most, will at one time or another willingly support what they do. It’s hard not to. But giving in to the needs of the moment will come, as it has in the past, at too great a price. If terror weakens the Constitution, the terrorists win.
John H. Barnhill is an independent historian in Houston and a writer for the History News Service.
