December 18, 2004 · Geof Stone
Thanks, again, for all the terrific comments on the O’Reilly show. I’ve learned a lot from them. I may write an op-ed about the experience. But for now, a few words about Vietnam.
By the time we got to 1968, it was no longer possible to imagine a criminal prosecution of Gene McCarthy for opposing the war. Constitutional law and American culture had progressed to the point that it would have been unthinkable for the Johnson or Nixon administration to have treated antiwar leaders the way we once treated people like Matthew Lyon, Clement Vallandigham and Eugene Debs. But this doesn’t mean the government couldn’t find other ways to attack dissent. Prosecutions for draft-card burning, flag burning, and the public use of offensive language were frequently directed against antiwar protestors, not because the “crimes” were worth punishing, but because it was a way of “getting” those who offended government officials.
More important, the government initiated an aggressive series of undercover programs — COINTELPRO (“counterintelligence programs) designed to “expose, disrupt, and neutralize” the antiwar movement. FBI agents and confidential informants infiltrated antiwar organizations at every level to gather the names of those who opposed the nation’s policy. When all was said and done, the government had compiled dossiers on half-a-million Americans. But the goal was not just to create files. It was to act against those who had the temerity to challenge the government.
The Nixon administration launched IRS audits of those who contributed to antiwar organizations, the FBI sent letters to the landlords of antiwar activists informing them that their tenant was a “Communist,” it sent anonymous letters to colleges and universities accusing antiwar activists of drug violations, it encouraged local police agencies to arrest war opponents for traffic and other offenses, and so on. The FBI also sent anonymous letters to members of antiwar organizations accusing other members of embezzling the organization’s fund, sleeping with the partners of other members, and even being FBI agents. The goal was to confuse, demoralize, distract, and discredit those who opposed the war, without doing anything that could be seen. None of this was known to the public until 1972.
Finally, a word about the Supreme Court. As we saw, in World War I, the Court upheld the convictions of antiwar protestors under the Espionage and Sedition Act. During World War II, the Court upheld the Japanese internment in Korematsu v. United States. During the Cold War, the Court in Dennis v. United States, decided in 1951, upheld the convictions of the leaders of the Communist Party of the United States on a charge that they had “conspired to advocate” the violent overthrow of government. As Justice Douglas put the point at the time, the Court had decided to “run with the wolves.”
This is not a very happy record. Indeed, the conventional wisdom is that the Supreme Court will never resist the executive branch in wartime. This is overstated. During World War II, the Court held unconstitutional the efforts of the Roosevelt administration to deport American fascists; during the second half of the Cold War the Court took a strong stand against McCarthyism; during the Vietnam War, the Court rejected the Nixon administration’s effort to enjoin the publication of the Pentagon Papers and rejected its claim that it had a constitutional power to engage in national security wiretaps without a warrant. Most recently, the Court rejected the extreme claims of the Bush administration with respect to the rights of the Guantanamo Bay detainees and the rights of American citizens held as “enemy combatants” by the United States military. We should not expect too little of the Supreme Court.
Ultimately, though, the protection of civil liberties depends on an informed, determined, and courageous public. As Louis Brandeis once observed, “courage is the secret of liberty.” May you all have the courage of your convictions.
As Larry said when he introduced me, this is my virgin blog. It was great fun for me, and I hope he’ll invite me back again sometime. I wish you all a happy and healthy New Year.