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.

Geof Stone

  • Anon

    No need to wait until Larry invites you back. Start a blog of your own! I’m sure you’ll be able to attract readers. Of course, if/when Larry does invite you back, I’ll look forward to reading your posts.

    To Larry: Just a thought, why not create a group blog like WorldChanging or BoingBoing instead of doing these guest blog sessions? It seems like you know enough interesting people to really create something great.

  • anon2

    PLEASE start your own blog. you should start one w/strauss & sunstein – toe to toe w/becker&posner. and an op-ed on oreilly is long overdue.

  • http://www.boobam.org William Loughborough

    You write: “None of this was known to the public until 1972.”

    For those of us who encounter this sort of claim repeatedly this is really annoying. Currently, there’s a “nobody expected…” comment about a great many things that a lot of people did expect.

    Hopefully widespread blogging will put this “how could we have known that Nixon expressed anti-Semitism privately” myth to rest.

    Love.

  • Samizdat Rebecca

    Yes, please. Start a blog so you can do more of the same of what you’re doing here — presenting the world as a one-sided equation with the United States as the manifest source of evil and injustice, never mentioning any of the misdeeds of our very real adversaries, and continuing your own self-flagellation. I’m sure you’ll find a wealth of academic support for your positions. Team up with Chomsky and get it linked to Z Magazine.

  • nate

    re: Samizdat Rebecca
    > Start a blog so you can do more of the same of what you’re doing
    > here — presenting the world as a one-sided equation with the
    > United States as the manifest source of evil and injustice, never
    > mentioning any of the misdeeds of our very real adversaries, and
    > continuing your own self-flagellation.

    Do you really see his arguments this way? I see something far more balanced, with alternating steps of setback and progress. In this piece, for example, how does the paragraph concluding “We should not expect too little of the Supreme Court” fit into your characterization?

    It’s true that he doesn’t concentrate much on the external adversaries, but trying to understand one’s own failures (and successes) doesn’t imply that these adversaries are any more or less at fault. What you see as self-flagellation strikes me as self-analysis: are you argueing against that too?

  • Fernando

    Excellent set of blogs. Learned much. You helped place many US historical events under the important concept of civil liberties. Herein lies food for thought, meat for those interested in the crossroads of civil dissent, executive interpretation of constitutional provisions, supreme court rationale, and the importance of public engagement. Good luck with your book sales!

  • http://crackhouse.blogspot.com KirkH

    I asked Noam Chomsky about his take on the Internet and its effect on the media. Here is his reply “I’m an innocent as far as the internet is concerned. I don’t even know what blogger.com is. Better raise the question with others.”

    I’m assuming this is the best place to talk to the “others”. My question is this: Considering the popularity of Noam’s documentaries on SuprNova why don’t you guys put together a video documentary that could be released on LegalTorrents? The argument in the conclusion of “Free Culture” about the millions of AIDS deaths in Africa would hit a little closer to home if you could see the faces of the orphans.

  • prh99

    As others have suggested you don’t have to wait for Prof. Lessig to invite you back, you can start you’re own blog. Prof. Lessig might post the link ;-) It was interesting and informative reading what you had to say, thanks and Merry Christmas.

  • http://blogs.sun.com/roller/MortazaviBlog M. Mortazavi

    I just read this on my mobile device and am testing to see if I can leave a comment using the device. Cointelpro certainly sounds like some of the material from “1984″ . . .