• America's precious but fragile gift
    December 25,2005
     

    This season of reflecting upon the blessings of life is a good time for renewed appreciation for one of the greatest gifts ever bestowed upon any nation – the U.S. Bill of Rights. These amendments to the Constitution contain the guarantees of civil liberties that for more than two centuries have made America "the symbol of the free." But as many generations of Americans have discovered, this extraordinary gift of freedom is something that cannot be taken for granted.

    This comes to mind, of course, with the contentious arguments over renewal of the Patriot Act and other government actions related to the War on Terror — among them: the confinement of enemy combatants and terrorist suspects without charge or trial; the use of torture and harsh treatment of prisoners and detainees; and as we have learned in recent days, the electronic eavesdropping on Americans in their own country and in their own homes by the National Security Agency — without judicial warrant. At a minimum, whether these practices do or do not violate established laws is a matter of intense nonpartisan debate.

    As it happens, the subject is especially on my mind because I am about to teach a course at Middlebury College during the winter term on war and the First Amendment, particularly freedom of speech and freedom of the press. As a reporter who covered numerous wars I have some firsthand experience on the subject. But in preparing for the course I have become re-acquainted with the sometimes egregious threats to civil liberties which regularly have taken place in this country in time of war, going back to the early days of the republic.

    I have decided to use as the primary textbook for this course, a recent book titled "Perilous Times – Free Speech in Wartime," by Geoffrey R. Stone. Professor Stone is a former dean of the University of Chicago Law School and is considered one of the country's leading First Amendment scholars.

    As Stone writes in his introduction, "War excites great passions. Thousands, perhaps millions of lives are at risk. The nation itself may be at risk. If there ever is a time to pull out all the stops, it is surely in wartime. In war, the government may conscript soldiers, commandeer property, control prices, ration food, raise taxes and freeze wages. May it also limit the freedom of speech?"

    In the broadest interpretation of the First Amendment, the answer to that question would seem to be no. But no freedom is absolute — as the old saw goes, you can't yell "fire" in a crowded theater when there is no fire. And it is this ambiguity about freedom of speech that has been exposed and exploited in wartime. According to Stone, "The United States has a long and unfortunate history of overreacting to the perceived dangers of wartime. Time and again, Americans have allowed fear and fury to get the better of them. Time and again, Americans have suppressed dissent, imprisoned and deported dissenters, and then – later – regretted their actions."

    "Perilous Times" documents six episodes in American history when the United States has attempted to punish individuals for criticizing government officials or their policies.

  • In the very early years, when the United States was on the verge of war with France, Congress passed the Sedition Act of 1798. Strongly supported by President John Adams and the Federalist Party and opposed by Thomas Jefferson and his Republicans, the act made it a crime to publish or utter any disloyal statement against the government, the Congress or the president. (The first person to be indicted under this law was Matthew Lyon, congressman from Vermont.)

  • During the Civil War, President Lincoln suspended the writ of habeas corpus — the procedure by which the accused can appeal to a judge to determine the legality of his detention by the government. The national leader of a significant Northern political party known as the Copperheads was arrested and brought before a military tribunal because he publicly condemned the president, the war and the freeing of the slaves. He was convicted, jailed and then exiled to the South.

  • During World War I, the espionage Act of 1917 and the Sedition Act of 1918 were used to prosecute some 2,000 people for their opposition to the war and the military draft. Under President Wilson, debate about the war was squelched and those convicted were routinely sent to prison for 10 to 20 years.

  • In World War II, the major civil liberties issue was the internment of 120,000 people of Japanese descent. But President Roosevelt also attempted to stifle criticism by prosecuting or deporting those who questioned the war, especially American fascists.

  • The Cold War, which immediately followed World War II, was marked by the anti-Communist "Witch Hunts." While no one would deny the reality of the Communist external threat, the internal threat was never more than marginal. But the excesses of the House Un-American Activities Committee followed by Sen. Joseph McCarthy's reckless crusade to expose so-called communists in the government and the Army turned this era into perhaps the most repressive period in American history. On this issue, neither President Truman nor President Eisenhower was a profile in courage.

  • In the 1960s and '70s came the war in Vietnam. Massive anti-war demonstrations, widespread acts of civil disobedience and instances of serious political violence were often met with provocative actions by the police and sometimes the National Guard. In 1970 at Kent State University four student protesters were shot and killed by guardsmen.

    Meanwhile under Presidents Johnson and Nixon, the FBI carried out far-reaching programs to "expose, disrupt and otherwise neutralize" dissident activities while anti-war protestors were prosecuted for desecrating the flag and burning their draft cards.

    "In each of these episodes" writes Professor Stone, "the nation faced extraordinary pressures – and temptations – to suppress dissent. In some of these eras, national leaders cynically exploited public fears for partisan political gain; in some, they fomented public hysteria in an effort to unite the nation in common cause; and in others they simply caved in to public demands for the repression of 'disloyal' individuals."

    In wartime, as we have seen, the line between disloyalty and dissent is elusive and often ignored. There are plenty of examples of that in our public discourse today. At the same time, I think it is fair to conclude that while the current threats to civil liberties are real, they have not yet reached anything like the magnitude of the six historical eras mentioned above.

    But that does not mean they are insignificant. On the contrary, it is imperative to challenge governmental authorities every time they take actions which appear to violate the Bill of Rights or more recently established civil liberties. For if that extraordinary gift is to survive another 200 years it must be vigorously defended by each and every successive generation — especially in wartime — because that is when the country's most precious freedoms are most likely to be in peril.

    Barrie Dunsmore is a veteran diplomatic and foreign correspondent for ABC News now living in Charlotte.
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