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Civil Liberties and the Military Industrial Complex

By Jeff Fogel

War is not healthy for people and other living things and, not surprisingly, it’s not good for civil liberties either.

The military industrial complex, by definition, is designed to keep us on a war footing either by direct involvement or the constant threat of war.  We needn’t speculate on the impact of war on civil liberties for we have adequate examples from our own history.  Let me share some of them with you.

Alien and Sedition Act:

In 1798, the Federalist-controlled Congress made it a crime to criticize the government (seditious libel = “writing, printing, uttering, or publishing of any false, scandalous and malicious writing with the intent of bringing the US government or its officials into “contempt or disrepute”).  The Federalists claimed that this was necessary in light of heightened tensions and the potential for war between the US and France, but all of those charged and convicted under the act were Republicans.  In 1801, Jefferson, a Republican, was elected president.  He pardoned those who had been convicted and the act expired by its own terms.

Civil War suspension of the writ of habeas corpus:

Lincoln, the Great Emancipator, early in the civil war, suspended the writ of habeas corpus.  Tens of thousands of civilians suspected of being disloyal to the Union cause were detained by the military without charge.  Ex parte Milligan reached the Supreme Court in 1866, after the war.  The Attorney General argued that the legal guarantees set forth in the Bill of Rights were “peace provisions.” During wartime, he argued, the federal government can suspend the Bill of Rights and impose martial law.  If the government chooses to exercise that option, the commanding military officer becomes “the supreme legislator, supreme judge, and supreme executive.”  

The Supreme Court wrote:

“During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment.

Red Scare of 1917:

Shortly after the Russian revolution there was a “red” scare in this county. - we had the Palmer Raids and deportations of “dangerous aliens”.

Espionage Act of 1917 made it a crime to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language” about the United States. In 1919 the Supreme Court upheld the conviction of socialist Charles Schenck, who had printed and distributed pamphlets urging opposition to the draft.  Justice Oliver Wendall Holmes, writing for a unanimous court,“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight.”

World War II:

Franklin Delano Roosevelt, the icon of America liberalism, signed the declaration that resulted in the internment of Japanese Americans - a outrageous act of racism and deprivation of civil liberties, the right to liberty itself and this was upheld by the Supreme Court.

In 1971, Congress passed the anti-detention act, 18 U.S.C. § 4001(a), which states that “no person shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Koramatsu who brought the unsuccessful case before the Supreme Court was eventually awarded the medal of honor and congress apologized and provided for limited reparations for this heinous act.

McCarthy era    -    

As the cold war set in, so did the McCarthy era.  The Smith Act made it a crime to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence.

In 1951, Supreme Court upheld the convictions of Eugene Dennis and 10 other leaders of the Communist Party for conspiring to organize the Party and for advocating the overthrow of the government by force and violence. In 1969, in Bradenberg v. Ohio, that the Warren Court ruled that the government could not prohibit advocacy even of unlawful conduct “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or product such action.”

In 1967 in U.S v. Robel, the Warren Court struck down the portion of the Internal Security Act that prohibited members of communist-action organizations from working in defense plants. “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile. . .  the phrase ‘war power’ cannot be invoked as a talismanic incantation to support any exercise of power which can be brought within its ambit. Even the war power does not remove constitutional limitations safeguarding essential liberties.”

McCarthyism was not only a series of laws (e.g. making membership in a political party a crime or that membership in certain political parties was a disqualification for union leadership or even holding a drivers license) but a process of fear mongering and intimidation that led to the greatest danger to civil liberties, self-censorship something that lasted well into the following decade.

War on Terror:

Patriot Act - 1 dissenting vote in senate

The USA Patriot Act, passed virtually without debate or discussion in the weeks following 9/11, authorized the executive to conduct certain searches and seizures (e.g. medical records, educational records, financial records, library and bookstore records) on less than the probable cause standard set forth in the Fourth Amendment so long as FBI certifies to a judge that it is engaged in a terrorism investigation.  The law even made it a crime to disclose the existence of such a search and seizure order.
The Act also established new crimes such as providing material aid to a terrorist organization.

warrantless wiretapping:

“The NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States.” In this instance, the president acted in direct contradiction to the Foreign Intelligence Security Act which itself provided a mostly secret mechanism for the government to obtain permission from a hand chosen court to engage in wiretaps that affected national security.  

The president asserted the power to declare even a US citizen an “enemy combatant” and to hold that citizen in military custody indefinitely, without trial or other form of due process.

The president continues to assert the power to execute even US citizens abroad without any process except what the national security state chooses and that will be hidden from public scrutiny.

The invocation of terror, like the invocation of communism, has skewed the balance in the courts as well.

e.g:    Bret Barsey - arrested while protesting President Bush outside the Columbia airport for violating an unannounced “restrictive zone” surrounding the president who had yet to arrive. Thereafter protesters were required to confine themselves to so-called free speech zones that isolated and marginalized their protest.

United for Peace and Justice was denied a march down 1st avenue and the UN to protest the Iraq war and this was upheld by the courts, all in the name of protecting us from terrorism.  When UFPJ sought the use of the great lawn in Central Part, the traditional location for large demonstrations, the judge while acknowledging that fact and that the First Amendment was still in force, nonetheless responded that this was “a new day.”

RNC 2004, Phila, Minneapolis - free speech zones, raids on protesters, undercover operations to disrupt and discredit (remniscent of cointelpro operations against the Black Panthers)  “free speech zones.”

Permanent security state in NYC - a little CIA, headed by the CIA, trained by the CIA, bag searches, surveillance cameras, arrests for taking pictures, infiltration of religious communities.

One of the hallmarks of the constant state of war and one of the gravest threats to democracy itself is secrecy.  While the president promised transparency in government, the justice department repeatedly argues, and usually with success, that the courts are not open to cases that might reveal “state secrets.”  And we’re not talking about how to make a nuclear weapon, but virtually anything that the intelligence community does (e.g. extraordinary rendition) or that might reveal or harm our relations with other governments. Every law student learns the first leading case in the Supreme Court, Marbury v. Madison, which teaches that where there is a right under our system of law, there is a remedy.  Yet in the new paradigm, though the bill of rights may be violated, there is no remedy in the courts of the united states. . A right without a remedy is no right at all.  And look at the efforts of this government to prosecute Julian Acing for helping to reveal the kind of important information that citizens in a supposedly free society need to judge their government (of the people and by the people) and their political leaders.  

One other war that should not be ignored and that has fostered its own commercial lobby is the War on Drugs and the prison-industrial complex.  This has been one of the greatest threats to civil liberties in the past several decades (one aspect of which was characterized by one justice as the “drug” exception to the 4th amendment).  The hidden horror of mass incarceration has followed and the result, in part has been the development of what one wise observer and law professor has called the “New Jim Crow.”

In past wars, as I have noted, civil liberties has been one of the casualties, but often, when the war was over, we recognized either the error of our ways or that curtailment of liberties was no longer necessary.  Now we face what our politicians (and some of their friends on courts and in the media) call a “war without end,” and we thereby face a threat to our liberties without end.  What is encouraging, however, and as is apparent here, is the fact that so many people refuse to be silent.  After all, neither liberties nor social justice have been or will be achieved or maintained without organized resistance to repression and the demands of the citizenry for social justice.  Peace and liberty will come, at home and abroad, not as the result of the so-called victories of war, but as the result of social justice for all.

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