Guy Yedwab

World Since 1945

Mr. Neblett

“We'll Go Down In History With A Sad Statue Of Liberty”

For a multitude of reasons, the United States today has found itself under attack by global

extremists. In the wake of the September 11th attacks, the United States felt that its complacency during

the 1990's had lead to the deaths of thousands of innocent lives, and the natural reaction was to try to

recreate our national security agencies to be infallible. The reorganization of many intelligence and

crime-fighting organizations under Homeland Security was one of the major changes to American

government, as well as the nearly unanimously passed USA PATRIOT Act. Yet, America's honeymoon

with national security has begun to wear off, as doubts have surfaced as to the legitimacy of the

campaign in Iraq and the constitutionality of the Patriot Act. The controversy surrounding the Patriot

Act and other anti-terrorism measures such as the detentions at Guantanamo Bay are not new: since the

very beginning of our country, national security has been in a struggle with civil liberties. This debate

will most likely never be resolved; the continual examination of this question keeps our government

both from becoming a criminal haven like Afghanistan was, or from becoming a police state like

Maoist China or Israel.

There is a delicate balance to be struck between civil liberties and national security. Any powers

given to the government in the interest of national security can quickly become a political, economic,

or personal tool wielded by people in positions of authority. While I understand the need for national

security to be defended, it must be in a way that rigidly conforms to the Constitution, and is visible to

the people, the legislature, and the Supreme Court. Unless the need is pressing and immediate –

between a few days to a few weeks – national security should pass through the same limitations as we

have placed over our criminal investigation procedures and our intelligence procedures. Any time an

individual is targeted by the government, he must have the ability to fight the charges on an equal level

with the government (as the normal trial-by-jury system provides), national security measures taken
against political figures must be avoided as much as possible, to prevent abuses of politicians who

oppose the majority power in government, and the authority to circumvent civil liberties must rest

solely as an agreement between Congress and the President.

The Constitution of the United States is widely acknowledged to be the basis of all theoretical

discussion on American civil liberties. On the subject of the criminal process, there are five separate

amendments in the Bill of Rights to protect the rights of the criminal, as well as a clause in Section 9

which says that Congress cannot suspend the Writ of Habeas Corpus unless required by “Cases of

Rebellion or Invasion” when “the public safety may require it. Judicial reinterpretation since then has

upheld and even expanded the rights of suspected criminals, such as the now established Miranda

Rights. The First Amendment also protects the rights of assembly and speech, the latter being cited as

one of our most basic and important freedoms in a democracy. The Constitution is established by the

Supremacy Clause to be the highest law of the land, which should not be violated by any member of

government in action or by any law. It is clear to see that the defense of fair trials weighed heavily on

the minds of those who started our country. National security is mentioned less widely, and except for

the clause providing for the suspension of writ, the Constitution makes no exceptions for times of

emergency. Many founding fathers have commented that the Constitution applies equally in times of

war and peace. Theoretically, the relation between civil liberties and national security seems cut

clearly: civil liberties take supremacy in nearly every case.

However, theoretical discussions are often less informative than examinations of the practical

history of civil liberty infringements for national security, so as to better understand what constitutes an

out-and-out violation of civil liberties, as opposed to necessary give-and-take between civil liberty and

national security. The Constitution, though a very good document to serve as the basis of our

government, does not foresee all nuances of application, and the interpretations of various officials and

the time wherein these decisions were made often dictate different uses of the Constitution.

After the Election of 1860, the United States was in turmoil. South Carolina had led a

movement of embittered Southern States into a secession movement, which threatened to tear the
country in half. The newly elected president Abraham Lincoln swore to keep the country united despite

the sectional fighting. Fearing the spread of unrest and dissent further north, Abraham Lincoln gave

permission to the Commanding General of the US Army, General Winfield Scott, to suspend the writ of

Habeas Corpus whenever Scott deemed it necessary for the security of the country. In April of 1861, a

meeting of the Maryland legislature was called to discuss the issue of secession, and whether Maryland

would join the newly formed Confederate States of America. Lincoln realized that secession of

Maryland would leave the capital city in the middle of Confederate territory. Although he clearly

recognized their First Amendment right to assemble in his letter to Scott, he dictated that Scott was to

arrest the pro-secession members of the State Legislature. These men were held on charges of

conspiracy of treason, but no evidence was ever produced and they were not brought to trial. In fact,

the government had no evidence of treason except hearsay as to the voting intentions of the members

involved.

This first example of Lincoln's suspension of habeas corpus raises several alarming questions.

The decision Lincoln was forced to make was unique because it pitted two sections of the Constitution

against each other. The suspension of habeas corpus means that, without the need to produce evidence

of a committed crime, Lincoln could hold the legislature indefinitely without having to prove any of the

charges. If, as in this case, the case against the accused was based on hearsay or even on nothing, there

would be no opportunity for the defendants to attempt to defend themselves. Lincoln knew that the

Maryland legislature had not yet violated any laws of the nation, but if allowed to vote they could (and

likely would) commit an act of treason against the United States. Therefore, he felt justified in

removing not only habeas corpus but their Assembly right. In my opinion, this is actually a violation of

the Constitution. Although the Constitution provides the right to suspend habeas corpus, the ability of

the State Legislature to convene is protected by a separate clause of the Constitution, written in

amendment. I believe that the limitations set by the Constitution have weight over the powers the

Constitution gives the branches of government, not the other way around. These Constitutional

violations (which were later declared unconstitutional by the Supreme Court) demonstrate the ability of
even well-intended national security endeavors to injure the rights of the people. Lincoln's differing

interpretation of the Constitution conveniently allowed him to stop a democratic vote from occurring.

The second example of Lincoln's reach for power during the Civil War came in 1863. In the

North, Southern sympathizers were pushing for a peace treaty between North and South that would

lead to two separate nations coexisting. The Democratic party, opposing Lincoln, rallied behind

Congressman Clement L. Vallandigham, who began to seek the party's nomination for the 1864

Gubernatorial election of Ohio. Shortly after his nomination, Major General Ambrose E. Burnside who

was the local military commander signed General Orders declaring that the “habit of declaring

sympathies for the enemy will no longer be tolerated.” Burnside justified his actions by saying that

dissent empowered the South and detracted from the war effort, so dissent was a danger to national

security. When Vallandigham continued to defy the General Orders, Burnside arrested him and brought

him before a Military Commission. Not only had Burnside violated Vallandigham's right to Freedom of

Speech, he had also violated Vallandigham's right to a fair trial before his peers. These violations were

not issued by the President, by the Secretary of the Army or even by the Commanding General. Rather,

a Major General had taken his own initiative to squash political opposition to Lincoln. Burnside's

justification of dissent being a danger to national security is one of the more dangerous assumptions

that many in positions of power have made; at this point, the power to protect national security can

quickly become a way to control politics. The events after Vallandigham's arrest made this clear: the

Supreme Court said that it had no power to review the military tribunal system, and the military

tribunal exiled Vallandigham to Canada, where he was unable to run for Governor. Lincoln, when

questioned on the validity of Burnside's action, would not comment on its necessity and deferred to

Burnside's appraisal of events. This raises another concern of empowering the government to fight

national security: if the power to suspend articles of the Constitution can devolve from the President to

any person in the Executive Branch, then less and less qualified individuals will be making decisions

regarding our individual freedoms. The Vallandigham's case also shows that without any oversight, the

Executive Branch's power to prosecute on behalf of national security can quickly devolve into political
control. The Supreme Court, in stating that the Supreme Court could not judge the validity of military

tribunals, stated that citizens brought to trial during wartime may not have fair trial.

At the end of the war the damage would eventually be undone: when Lambdin P. Milligan was

arrested and sentenced by military tribunal to death, he managed to secure Supreme Court review. The

Supreme Court ruled, in April 1866, that “the temper of the times did not allow the calmness in

deliberation and discussion so necessary to a correct conclusion of a purely judicial question,” and

overruled its previous sentiments on the independence of the military tribunal and the validity of the

Executive Branch's constitutional abuses. The Court correctly hit upon another concern: during

wartime, the atmosphere of fear and paranoia often leads to infringements of civil liberty that will not

be tolerated during wartime. However, they continued, “The Constitution of the United States is a law

for rulers and people, equally in war and peace, and covers with the shield of its protection all classes

of men, at all times and under all circumstances...” The Court felt that the excesses of wartime should

be limited by the laws previously set during peacetime, so laws passed in a wartime environment are

extremely circumspect. This is not to say that useful legislation cannot come about, but often civil

liberties will be trampled when fear is given clear reign. As Roosevelt (ironically) said, “The only thing

we have to fear is fear itself.”

These are not the only examples of constitutional violations during the Civil War. Editors of

Democratic or Southern-sympathizing newspapers found their circulation blocked by the Postmaster

General. The Habeas Corpus Act of 1863 led to almost 14,000 detentions, often with little or no proof.

In effect, the states bordering the South had been reduced to an undeclared atmosphere of martial law.

Although the nation was in a state of rebellion, the civil liberties of American citizens were curtailed in

the name of national security, though in reality curtailing their liberties made nobody safer.

If the Civil War proves the statement “The path to hell is paved with good intentions,” then the

period after World War Two proves the statement “Absolute power corrupts absolutely.” After the

World War Two, fear reigned that the United States would fall to the dictatorial Stalinist brand of

Communism spreading across the globe. Fear of Communist spies raged as Americans remembered the
labor unrest that had plagued America at the same time that the USSR had been formed, and watched

as similar Communist movements ended democracies throughout the globe. In 1949, China fell to Mao

Tse Tsung, and by 1950 all of Eastern Europe was one solid block of Communist dictatorships. During

this time, a newly elected senator named Joseph McCarthy rose to power during his investigations on

behalf of the House of Un-American Affairs Committee (HUAC) of Communist sympathizers and

spies in the United States. The McCarren Internal Security Act, passed for National Security, declared

that all Communist and Communist-leaning organizations were fronts for a worldwide conspiracy to

topple the American democracy, made all their actions subject to the American government, and

curtailed their Constitutional right to assemble. The vicious investigations led by McCarthy wrecked

the lives of many upstanding citizens, often of liberal leanings. McCarthy also used the investigations

to target political enemies until he was finally censured by the senate for his abusive misuse of

congressional power. In effect, McCarthy, the McCarren Act, and the HUAC made it illegal to be

outwardly left-wing in political leaning: a clear violation of the freedom of speech, and the freedom of

political thought it implies. People were blacklisted without any concrete evidence, without a trial in a

judicial court; a clear violation of the right to fair jury by peers. Emanuel Celler said that it was similar

to Hawthorne's description of those “who go all wrong by too strenuous a resolution to go right,” but

the oppression of liberals by a right-wing majority government seems to be at least partially motivated

by selfish desire, especially when led by figures such as Dies, a KKK supporter, Nixon, who was

eventually toppled by the Watergate scandal of abuse of presidential power, and McCarthy, whose

propaganda machine was so vicious that he had led to the shame and death of his senatorial opponent.

McCarthy was also a raging alcoholic and a loose cannon, which prompted the famous quote, “Have

you no sense of decency sir? At long last, have no sense of decency?”

The McCarren Internal Securities Act meant that treason could be defined not only as

supporting a foreign country, but also supporting a foreign idea. The United States would now have to

police ideas, as well as actions; a clearly unconstitutional task for the government to embark on. The

ideas being fought were the ones opposite of the people in power, so it became difficult to distinguish
the line between fighting Communism and fighting liberalism. Powerful individuals managed to hijack

national security on behalf of personal gain, demonstrating the need to keep too much power from the

hands of government. Human beings, with differing interpretations and human errors like fear and

greed, should not be given too much sway over the lives of other human beings.

The fear of the Cold War led to another encroachment on civil liberties which was far more

subtle and less extreme, but significant in its scale and its eventual violations of the Constitution.

During the 1950s, an executive order formed the National Security Agency (NSA - note the placement

of 'national security' and 'internal security' in acts of questionable constitutionality), which was charged

with monitoring international communications to track Communist agents and plots in non-communist

countries. The NSA joined with other European agencies of similar aim to create Echelon, a massive

worldwide monitoring program that has lasted over fifty years. Until 1999, Echelon was guarded in

near complete secret, and there has been a lot of discussion as to what Echelon actually is and what it

has been doing. Finally, in 1999, Duncan Campbell wrote a report on behalf of the European

Parliament to clear up the confusion caused by secrecy. Echelon, he wrote, monitors the Internet,

underseas cables, radio transmissions, fax networks, phone networks (through a CIA program called

Carnivore) and communication satellites. Echelon is not limited to military and governmental

communication. Until the 1970s, it could monitor any individual suspected of threatening national

security in any way – afterwards, some aspects such as wiretapping were reviewed by a secret court

called the Foreign Intelligence Security Court (FISC), appointed by the Supreme Court Chief Justice.

The diplomatic communication of every country has been violated by the court, as well as many private

citizens across the globe. During the 1960s, liberal anti-Vietnam leaders such as Joan Baez, Jane Fonda

and Dr. Benjamin Spock were stalked by Echelon, as well as civil rights leaders such as Martin Luther

King, Malcom X, and Eldridge Cleaver. These monitoring programs sometimes included robberies and

illegal entries. Many of these activities were not even known to Congress until the investigation

following the Watergate Scandal, where wiretappers were arrested under Richard Nixon, who was

using them to unfairly alter his presidential campaign. Echelon was not used for purely selfless reasons
– during the 1980s Echelon began to investigate companies that competed with its corporate suppliers.

In the 1980s, Peg Newsham, a worker for Lockheed, addressed the US Congress House Permanent

Select Committee on Intelligence, stating that she had listened to live intercepts of Senator Strom

Thurmond's phone calls while at the NSA. After testifying to fraud and corruption in the NSA, she was

fired from Lockheed. Maryland Congressman Michael Barnes also testified that he discovered

transcripts of his phone conversations had been released to reporters without his consent. Echelon has

also monitored Amnesty International, Greenpeace, and certain Christian ministries. In the 1990s, after

the fall of Communism (which was the main 'enemy' targeted by Echelon), Echelon's scope was

expanded to protecting 'economic well-being' – meaning that national security could be construed as

the best economic interests of the country. Under President Clinton, Echelon was expanded to include

the National Economics Council, which would feed intelligence to select companies to enhance US

competitiveness. Politically, Echelon has been used as a weapon by political officials. Margaret

Thatcher requested that Echelon be used to monitor two governmental officials she suspected of

disloyalty. Thatcher also asked Echelon to monitor the London Observer after the Observer published a

story detailing corruption of her son in a multi-billion dollar arms deal. The Royal Canadian Mounted

Police asked Echelon to monitor the Prime Minister's wife, convinced that she was trafficking

marijuana. Mike Frost, the Canadian agent assigned to the case, reported being suspicious of their

motives – this was obviously not a case of national security. Henry Kissinger used the NSA to collect

information on then-Secretary of State William Rogers, which he used to convince Nixon of Rogers'

incompetence.

This is only a partial list of the abuses Echelon has engaged in, both in the United States and in

sister countries similarly involved. It is obvious that Echelon is a poignant example of the late Supreme

Court Justice William Brennan's statement: “The concept of military necessity is seductively broad, and

has a dangerous plasticity.” The first amendment, the integrity of the democratic process, the limits on

search and seizure, and the free market were each violated by Echelon repeatedly, with little or no

oversight. The lack of information provided about Echelon is the foremost infringement which lead to
all the others: without public oversight of the NSA, it was free to do whatever it so chose, and when

absolute power is afforded to humans they cannot help but violate decency.

History has a tendency of repeating itself, sadly. Following the attacks of September 11th, an act

of legislation called the Uniting and Strengthening America by Providing Appropriate Tools Required

to Intercept and Obstruct Terrorism Act of 2001 (Patriot Act) was passed nearly unanimously by the

Senate and House with little debate – eerily echoing the Supreme Court's pronouncement on “the

temper of the times” surrounding the Civil War. The single vote against the Act in the Senate was

Senator Russ Feingold, who rightly raised many concerns about the individual provisions of the act. He

listed the civil rights abuses of our history; the ones above, as well as the internment camps of World

War Two and the Alien and Sedition Acts. Feingold quoted a lawyer on the defense team of a wrongly

imprisoned man named Albader Al-Hazmi, “It's how we treat people in difficult times like these that is

the true test of the democracy and civil liberties that we brag so much about throughout the world.” Al-

Hazmi had been arrested because his name bore similarities to two of the hijackers, and he had

attempted to book a plane flight to a medical conference (which he was attending as a radiologist). the

temper of time times did not allow the calmness in deliberation and discussion so necessary to a correct

conclusion of a purely question. Many of the provisions of the Patriot Act had been proposed before

September 11th, and had been voted against due to concerns about civil liberties. Quoting the Supreme

Court's statement (seen earlier) on the role of law both in peace and wartime, Feingold begged the

Senate not to give those powers to the government due to fear after September 11th. A few amendments

proposed were voted down, lead by the party leaderships of both party, who stated that it was

imperative to sign the bill into law by the end of the week lest another attack follow on the first attack's

heels. Feingold was worried as well by the expansion of the NSA's expanded monitoring capabilities,

which allowed it to monitor any person as long as they state that intelligence is a “significant purpose”

of the investigation – and little proof is required to back up that statement. After the passage of the Act,

many of Feingold's fears started to become truth. By the time the first sunset provisions threatened to

expire, many senators had turned against the same bill that they had voted into law, stating that they
had not actually read the bill before voting for it. At the same time, military detention in Guantanamo

Bay has also come under international criticism for thousands of detentions without review under the

blanket statement 'national security.' Recently, the Supreme Court has challenged the military tribunal

which President Bush ordered the detainees to undergo, and ordered all detainees to come to a trial by

jury. Also, the government has adopted a policy of racial profiling, which targets one race as being

likely terrorists – despite the fact that other groups, such as the fanatical Christians who bomb abortion

clinics, are also able to be terrorists.

The errors examined above are proof that the controversy surrounding civil liberties and their

limits will continue until the day we lose them all. It is extraordinarily appealing to empower our

government to keep us safe, but when the government uses that power for its own purpose, we lose our

safety. As Shakespeare wrote, “Virtue itself turns vice, being misapplied.” The solution is an active

public discussion to examine each individual proposal. We can only hope that we will not willingly

give up our right to public discussion before we realize our errors.