You know why these decisions are coming about?
Because the USofA has always restricted citizens' rights in an unconstitutional manner when it feels it's at war. Afterwards we've shown the same remorse and resolve not to repeat the error that a young man inspired by a hangover shows over getting drunk.
Make sure you have rights left
We like to think all citizens of the United States of America are
guaranteed certain civil and human rights. Unfortunately, that
guarantee is subject to the vagaries of human judgment. At times of
national crisis this nation has always reduced the protections we are
"guaranteed" by law. In fact Justice Scalia has said in wartime, "the
protections will be ratcheted right down to the constitutional minimum.
I won't let it go beyond the constitutional minimum."
It is expected. There is historical precedent for it. Unfortunately, in
every case the historic precedent has been that the impositions were
deemed unnecessary and, in most cases, unconstitutional after the fact.
The first such case was the Alien and Sedition Acts
which passed in 1798. The threat was a French-backed navy of privateers
operating in the area around the West Indies which was threatening the
expanding U.S. merchant shipping force. The Act allowed the President
to order
…all natives,
citizens, denizens, or subjects of the hostile nation or government,
being males of the age of fourteen years and upwards, who shall be
within the United States, and not actually naturalized, shall be liable
to be apprehended, restrained, secured and removed, as alien enemies.
citizens, denizens, or subjects of the hostile nation or government,
being males of the age of fourteen years and upwards, who shall be
within the United States, and not actually naturalized, shall be liable
to be apprehended, restrained, secured and removed, as alien enemies.
One month later an addendum was added to the law. Section two is worth quoting in its entirety:
SEC. 2. And be it
farther enacted, That if any person shall write, print, utter or
publish, or shall cause or procure to be written, printed, uttered or
published, or shall knowingly and willingly assist or aid in writing,
printing, uttering or publishing any false, scandalous and malicious
writing or writings against the government of the United States, or
either house of the Congress of the United States, or the President of
the United States, with intent to defame the said government, or either
house of the said Congress, or the said President, or to bring them, or
either of them, into contempt or disrepute; or to excite against them,
or either or any of them, the hatred of the good people of the United
States, or to stir up sedition within the United States, or to excite
any unlawful combinations therein, for opposing or resisting any law of
the United States, or any act of the President of the United States,
done in pursuance of any such law, or of the powers in him vested by
the constitution of the United States, or to resist, oppose, or defeat
any such law or act, or to aid, encourage or abet any hostile designs
of any foreign nation against United States, their people or
government, then such person, being thereof convicted before any court
of the United States having jurisdiction thereof, shall be punished by
a fine not exceeding two thousand dollars, and by imprisonment not
exceeding two years.
farther enacted, That if any person shall write, print, utter or
publish, or shall cause or procure to be written, printed, uttered or
published, or shall knowingly and willingly assist or aid in writing,
printing, uttering or publishing any false, scandalous and malicious
writing or writings against the government of the United States, or
either house of the Congress of the United States, or the President of
the United States, with intent to defame the said government, or either
house of the said Congress, or the said President, or to bring them, or
either of them, into contempt or disrepute; or to excite against them,
or either or any of them, the hatred of the good people of the United
States, or to stir up sedition within the United States, or to excite
any unlawful combinations therein, for opposing or resisting any law of
the United States, or any act of the President of the United States,
done in pursuance of any such law, or of the powers in him vested by
the constitution of the United States, or to resist, oppose, or defeat
any such law or act, or to aid, encourage or abet any hostile designs
of any foreign nation against United States, their people or
government, then such person, being thereof convicted before any court
of the United States having jurisdiction thereof, shall be punished by
a fine not exceeding two thousand dollars, and by imprisonment not
exceeding two years.
Under the Act the reigning Federalists party arranged for at least 25
arrests, 15 indictments, and 10 convictions—all against the minority
Republicans. Among the defendants were the four leading Republican
newspapers and three Republican officeholders. And when the Republicans
took power in the 1800 elections, Jefferson pardoned most of them and
Congress paid their fines.
It is fortunate the Act had a sunset provision, specifically expiring
March 3, 1801 or there would be no need for the P.A.T.R.I.O.T. Act…and
before you dismiss that remark as partisan hyperbole, remember that
John Ashcroft's Justice Department charged Greenpeace a full fifteen months after one of their standard protest under an 1872 law:
The group is
charged with violating an obscure 1872 law intended for proprietors of
boarding houses who preyed on sailors returning to port. It forbids the
unauthorized boarding of "any vessel about to arrive at the place of
her destination."
The last court decision concerning the law, from 1890, said it was
meant to prevent "sailor-mongers" from luring crews to boarding houses
"by the help of intoxicants and the use of other means, often savoring
of violence."
charged with violating an obscure 1872 law intended for proprietors of
boarding houses who preyed on sailors returning to port. It forbids the
unauthorized boarding of "any vessel about to arrive at the place of
her destination."
The last court decision concerning the law, from 1890, said it was
meant to prevent "sailor-mongers" from luring crews to boarding houses
"by the help of intoxicants and the use of other means, often savoring
of violence."
The next such instance was President Lincoln's suspension of habeas
corpus during the Civil War…an event I've seen Conservative
commentators use to support the idea of a Presidential perogative to
cut into civil rights at times of war. Unfortunately, this one actually
made it to the Supreme Court…also unfortunately, after the Civil War
ended. And Mr. Ashcroft should heed the last paragraph of the decision:
It follows, from
what has been said on this subject, that there are occasions when
martial rule can be properly applied. If, in foreign invasion or civil
war, the courts are actually closed, and it is impossible to administer
criminal justice according to law, then, on the theatre of active
military operations, where war really prevails, there is a necessity to
furnish a substitute for the civil authority, thus overthrown, to
preserve the safety of the army and society; and as no power is left
but the military, it is allowed to govern by martial rule until the
laws can have their free course. As necessity creates the rule, so it
limits its duration; for, if this government is continued after the
courts are reinstated, it is a gross usurpation of power. Martial
rule can never exist where the courts are open, and in the proper and
unobstructed exercise of their jurisdiction. It is also confined to the
locality of actual war.(emphasis added)
what has been said on this subject, that there are occasions when
martial rule can be properly applied. If, in foreign invasion or civil
war, the courts are actually closed, and it is impossible to administer
criminal justice according to law, then, on the theatre of active
military operations, where war really prevails, there is a necessity to
furnish a substitute for the civil authority, thus overthrown, to
preserve the safety of the army and society; and as no power is left
but the military, it is allowed to govern by martial rule until the
laws can have their free course. As necessity creates the rule, so it
limits its duration; for, if this government is continued after the
courts are reinstated, it is a gross usurpation of power. Martial
rule can never exist where the courts are open, and in the proper and
unobstructed exercise of their jurisdiction. It is also confined to the
locality of actual war.(emphasis added)
The next major breech of civil rights took place during World War I. According to a speech given by Justice William J. Brennan, Jr.[pdf],
…during World War
I the Senate considered a bill that would have made the entire United
States a military zone within which anyone who published any material
that might endanger the success of U.S. military operations could be
tried as a spy by a military tribunal and put to death.11 Unwilling to
go this far, President Wilson instead convinced Congress to enact the
Espionage Act of 1917, which made it a crime, during a time of war, to
make false statements with the intent to interfere with the success of
U.S. military forces or military recruiting. This Act provided the
predicate for confiscating antiwar films and raiding the offices of
antiwar organizations. In 1918 the Act was amended to make it a crime
also to "willfully utter, print, write, or publish any disloyal,
profane, scurrilous, or abusive language about" the U.S. form of
government, Constitution, flag, or its military forces or uniform "or
any language intended to bring the [same] into contempt, scorn,
contumely, or disrepute
All in all, over two thousand individuals were prosecuted under the
Espionage Act. Very few individuals were convicted for actually urging
men not to enlist or submit to the draft—purportedly the main object of
the Act. Rather, the vast majority of the convictions were for stating
opinions about the war that the courts treated as false statements of
fact because they conflicted with speeches by President Wilson or with
the resolution of Congress declaring war. Among the supposed "threats
to national security" that were prosecuted under the Act were
statements of religious objections to the war, advocacy of heavier
taxation instead of the issuance of war bonds, suggestions that the
draft was unconstitutional, and criticisms of the Red Cross or the
Y.M.C.A.13 Moreover, such "subversive" statements were criminalized
even if they were never directly communicated to soldiers or to men
about to enlist or be drafted—it was thought enough that the statements
might conceivably reach such men and undermine the war effort.
I the Senate considered a bill that would have made the entire United
States a military zone within which anyone who published any material
that might endanger the success of U.S. military operations could be
tried as a spy by a military tribunal and put to death.11 Unwilling to
go this far, President Wilson instead convinced Congress to enact the
Espionage Act of 1917, which made it a crime, during a time of war, to
make false statements with the intent to interfere with the success of
U.S. military forces or military recruiting. This Act provided the
predicate for confiscating antiwar films and raiding the offices of
antiwar organizations. In 1918 the Act was amended to make it a crime
also to "willfully utter, print, write, or publish any disloyal,
profane, scurrilous, or abusive language about" the U.S. form of
government, Constitution, flag, or its military forces or uniform "or
any language intended to bring the [same] into contempt, scorn,
contumely, or disrepute
All in all, over two thousand individuals were prosecuted under the
Espionage Act. Very few individuals were convicted for actually urging
men not to enlist or submit to the draft—purportedly the main object of
the Act. Rather, the vast majority of the convictions were for stating
opinions about the war that the courts treated as false statements of
fact because they conflicted with speeches by President Wilson or with
the resolution of Congress declaring war. Among the supposed "threats
to national security" that were prosecuted under the Act were
statements of religious objections to the war, advocacy of heavier
taxation instead of the issuance of war bonds, suggestions that the
draft was unconstitutional, and criticisms of the Red Cross or the
Y.M.C.A.13 Moreover, such "subversive" statements were criminalized
even if they were never directly communicated to soldiers or to men
about to enlist or be drafted—it was thought enough that the statements
might conceivably reach such men and undermine the war effort.
And of course there was the infamous interning of Japanese Americans
during World War II, a case so egregious that reparations, symbolic
though they may have been, were paid to survivors.
Now we find ourselves "at war" with a concept. Once again we're told
we're in a situation where the "suspension" of our rights is
"necessary" for national security, for the duration…of a "war" with an
undefined and undefinable end. Will we as a nation allow our rights to
be suspended when the odds of being struck by lightning are greater
than that of being involved in a terrorist attack?
Posted by Prometheus 6 on June 18, 2004 - 6:10pm :: War
