December 15, 2004  ·  Geof Stone

How many of you think we live in perilous times? I agree (with those of you who think we do). For the rest of you, think again. We live with the ever-present threat of another terrorist attack. On 9/11, you were shocked. If another such event were to occur five minutes from now, you would be horrified, but not shocked. The expectation now rests just under your level of consciousness.

Moreover, we are engaged in an ever-more disturbing war in Iraq. Last night, I watched the movie Fog of War (the Robert McNamara documentary). The similarities in the depth of American foreign policy misunderstandings between the Vietnam War in 1966 and the Iraq War in 2004 are stiking, and unnerving. There is much to fret about. I want to make it worse. I want to give you something else to worry over. You should be losing sleep about the security of your civil liberties.

The United States has a long and consistent pattern of unduly restricting civil liberties in time of war. Time after time, we have panicked in the face of war fever. We have lashed out at those we fear and allowed ourselves to be manipulated by opportunistic and exploitative politicians. We did this in 1798, when we enacted the Alien and Sedition Acts, during the Civil War when Lincoln suspended the writ of habeas corpus, during World War I when the nation brutally suppressed all criticism of the war and the draft, during World War II when we interned 120,000 individuals of Japanese descent, during the Cold War when we humiliated, abused and silenced tens of thousands of individuals for their political beliefs and associations, and during the Vietnam War when the government engaged in an aggressive program of surveillance, infiltration, and surreptitious harassment designed to “exposre, disrupt, and neutralize” antiwar dissent.

We have made some progress over the past two centuries. We are less likely to do some of these things today than we were in 1798, 1863, 1917, 1942, 1950, or 1968. That is a cause for celebration. But that progress is fragile. The forces unleashed in wartime are extremely powerful, and the fear, anxiety, anger, and vulnerability that war entails can quickly translate into persecution and oppression. Certainly, we have seen warning signs of this in some of the actions of the Bush administration since 9/11. Imagine what might happen if we were now to suffer a succession of six 9/11-like attacks over the next six weeks.

Can we learn the lessons of history? Can we avoid repeating the mistakes of the past? Given the pressures and fears of war, can we discipline ourselves both as individuals and as a nation to respect civil liberties even in a time of war? And is it even sensible to talk seriously about civil liberties in wartime? What do you think?

  • http://davefriedman.blogspot.com Dave

    I’m unclear where you’re coming from in this post. Are you critiquing the Bush Administration’s handling of civil liberties? If so, why not come out and say so explicitly and directly, rather than referencing historical events? I blog more about my reaction to your post here: http://davefriedman.blogspot.com/2004/12/civil-liberties-during-war.html

    Dave Friedman

    davefriedman.blogspot.com

  • http://thunt.net thunt

    I think the sad answer is no. While we, (and by that I mean Mr. Stone, Mr. Lessig, and the rest of the intelligencia who read this blog) can do nothing. We can cry loudly while they take things away and we can know in advance what they are going to do and why they are going to do it, but it is very unlikely that in these widely believed to be “perilous times” that we will be able to reach the tipping point necessary to stop these abuses.

    I’m young and negative, but it wasn’t too long ago that I got my first library card, and just months into this “War on Terror” (still a horrible term that has now been cemented in the public consciousness) we have given up the right to private library records (Patriot Act). What right could be more basic?

    Small things are already slipping away. The danger from our own leaders is far greater than the danger we face from terrorists. The current plan, as brilliantly made public a few days ago on DailyKOs, and as recently published in Thomas Franks’ groundbreaking book “What’s the matter with Kansas” (also in Robert Reich’s Reason) and of course made public for so many years on the web at Project for a New American Century is that our leaders (ie: Republican Party) are currently involved in a major backlash against not just the reforms and new freedoms of the 1960s, but the New Deal itself. Their goal is simple and as the KOS article points out can be accomplished with the dual purpose of appointing the judges to the Supreme Court, not just to overturn Roe v. Wade, but to overturn the Interstate Commerce Clause, leading to the destruction of the minimum wage and the retraction of the entire New Deal. FDR gave us the New Deal, which hurt the corporations and their interests, now they have mobilized a political coalition that has decided to rescind the New Deal, using these “perilous times” as cover.

    We can’t stop ourselves from repeating the mistakes of history, all we can do is watch as they help cement the definition of Insanity as doing the same thing twice and expecting different results.

    (Obviously the rescinding of the New Deal will create a situation of worker unrest/extreme poverty that will lead to re-unionization and the return of socialism, which will lead to capitalism loosening it’s grasp once again, and history will repeat itself once more…..)

    Thank you for your excellent blog post. Welcome to the “blogosphere” (another bad term, but we are stuck with what the public provides….)

    Thunt
    read more rants: “>http://thunt.net

  • Brentmeister General

    the “republicans” are not the problem. the evidence seems to show that the “democrats” are doing exactly the same as the republicans. the only national politicians i’m aware of that seem to have any integrity in this area are ron paul(R) and cynthia mckinney(D). so, *who* really is trying to curtail our civil liberties?

    the main problem, which may be obvious, is that the populace isn’t aware of any pain. no enterprise will be successful unless it addresses a perceived pain. this is why people in power can rule: because they can make their subjects feel the pain. activists have a much harder time doing that.

  • Andrew Boysen

    This was is different than the wars of the past. In the past, if you were worried about unknown people within your country seeking to do harm, you would try to limit their access to weapons like machine guns. In the past wars have resulted from specific actions by specific countries to other specific countries.

    Now we have an administration that doesn’t think it’s a problem to have machine guns for sale to anyone willing to wait 5 days for an inefficient government to try to turn up something. Now we are fighting a way that is based on ideas about our policies, and we have enemies (people who have those ideas) in probably every country of the world, including our own. Instead of fighting this war with ideas (I think the way to win the war on terror might be as easy as a brain-washing advertising blitz), we’re blowing up people who disagree with us using bombs that also blow up or injure people within 25 feet of those who disagree with us.

    Taking away the civil liberties we value – freedom of speech, freedom of the press, freedom against unlawful search and seizure � will not help win the war on terror. At best it will make it worse by keeping people ignorant to how policies can be changed in a way that will make people not hate us. At worst it will fan the flames of hatred by proving that the United States doesn�t give freedom of religion, free speech, free press, and against unlawful search and seizure to certain groups � and if we deny those rights to any one group, are they still rights?

  • http://thunt.net thunt

    I agree, both parties are corrupt and in the pocket of the Corporations….. and of course that leads to the real truth of why we need 4 more wars: the Military Industrial Complex.

    You can’t deny now that Eisenhower’s farewell address was probably the most poignant warning to America since George Washington warned of the danger of “entangling alliances.”

    –thunt
    read more rants: thunt.net

  • Ed Lyons

    Thank you Mr. Stone, for your book and your blogging here.

    As so many of the people who are screaming about civil liberties know neither their history nor what is actually happening, you are doing a great service bringing your knowledge and perspective to a poor-quality national discussion.

    I do not believe we will learn the lessons of history as so many do not study it anymore, and others embrace classic American exceptionalism to disregard the past. I am not that worried about the Patriot Act and men like John Ashcroft. That is at least happening out in public view. I am more concerned that technology is enabling an entire new regime of surveillance and control that is being constructed without public debate.

    Also, I am worried about the notion of “wartime.” I am reluctantly willing to accept a decrease in liberty during a time of war, but I think that WMD proliferation now means we are on a permanent war footing. If wartime now means all the time, then we should come up with a long-term understanding about what to do, rather than hold our breath hoping that we’ll get our liberties back when the war is over.

  • Jardinero1

    I am most concerned about the curtailing of the 4th amendment. This has been going on since before 9/11 and The USA PATRIOT Act. Has anyone heard of The Bank Secrecy Act? This act requires all financial institutions to report any suspicious activity of their clients to the feds. These same institutions are forbidden from revealing such reporting to the same client under pain of criminal prosecution. Failure to report suspicious activity can also result in criminal prosecution.

    The definition of “suspicious” is pretty general and results in a great deal of reporting and not much in the way of prosecutions.(i.e. Your privacy is being compromised for nothing.) Read this report:

    http://www.fincen.gov/sarreviewissue7.pdf

    Pages 29-30 are most enlightening. The nut of it is that the feds received 14,135 Suspicious activity reports over a 16 month period which netted the people two, yes just two, indictments.

    Additionally, any federal officer can demand to see your financial records without a subpeona or warrant. How does it make you feel that someone is snitching on you without your knowledge and a federal officer could be reading your credit card statement right now.

  • http://br DPG

    Quick thoughts and questions-

    1) Great book. As a member of Generation Y, I frequently wonder about the parallels between this generation’s war (Iraq, not terror) and past wars like Vietnam. Thanks for giving me a glimpse of the past.

    2) Question: Now that you double as a historian, from a civil liberties stand point, not a strategic military stand point, do you think the war on fundamentalist Islam is any different than previous wars? In other words, is this war really so different, as the adminstration would have us believe, that it requires us to reasses our civil liberties in ways we would not have before? Or is the administration simply insisting it is a different war to justify encroachment?

    3) Question 2: As I am sure you are aware, your colleagues at the U of Chicago, Posner and Becker, recently started a blog. How either finds time is beyond me. Their first entry subjected the notion of pre-emptive war to cost benefit economic analysis. The bottom line: weigh the potential costs of allowing for an enemy attack against the costs of pre-empting this attack and possibly making a mistake (see Iraq). Presumably, Posner and Becker would subject our civil liberties during times of War to this analysis (Posner in fact does in discussing Korematsu) despite the fact that both freely admit that many of the costs borne in fighting wars are unknowable. My question, when you sit down and discuss civil liberties in wartime with these two, and they start using cost benefit analysis equations without knowing the true costs or benefits, what do you say? What do they say when you inform them that the costs of a loss of civil liberties often falls only upon certain discriminated groups (Japanese in WWII, muslims today)?

    3) Isn’t the pattern you see exhibited in American history, (decrased liberty during war, regret in hindsight) inevitable? Won’t every gov’t official default to a “not on my watch standard” during war and let future administrations deal with possible overeach? And if so, how can we make the executive branch more accountable? I saw that you suggested sunset provisions on measures that curb civil liberties passed during times of war. But the executive branch is usually above such legislation. We all know from the way the administration tried to defend the jailing of enemt combatants that it would be rounding up suspects regardless of the patriot act.

    thanks.

    DPG

    The biggest difference between the “war on terrorism” and past wars, according to the administration, is that this war will continue indefinitely, if not in perpetuity. If this is so, then it should have a significant impact on how we think about restrictions of civil liberties. All past wars were reasonably time-bound. We can take some consolation that the restrictions of civil liberties were therefore time-bound as well. But it we seriously believe that the “war on terrorism” is essentially a permanent state of affairs, then any restrictions we adopt may also be permanent. That should make us especially wary about embracing them, because we could be permanently changing the state of our democracy.

    As for my discussions with Becker and Posner, which are quite common (especially with Posner), I constantly wrestle with the problem of specifying and weighing what they mean by costs and benefits. In some sense, of course, all policy and most legal decisions come down to costs and benefits. But at that level of generality, cost-benefit analysis is neither helpful nor very coherent. For a more precise example of how I respond to Judge Posner in these conversations, see pages 546-554 in Perilous Times.

  • http://www.redbug.org/ David Andrews

    In re: The Fog of War

    I saw this last summer, after my family had retired at the end of a busy day (we were aboard one of those Alaskan cruises). I had noticed earlier that the documentary was to be shown in the ship’s theater. Cool, I thought, a good opportunity.

    I let myself into the theater quietly, since the film was about ten minutes underway. Cracked the door open only as far as I had to, and then crept along the wall to the back of the darkened theater, settling in the middle of the back row, directly in front of the audio booth. I could make out the dim silhouettes of 12-15 people in their seats, all watching the movie intently.

    After a couple of minutes I was hooked. Vietnam wound itself out in my college years, and I have acquaintances who came back from there changed for the worse. (And a couple others came back in boxes.) So the war was sort of a personal issue for me, and I gave the film the attention that it deserved. Some of it made me mad, and some of it was enlightening. I was struck by McNamara’s candid narration, and remember thinking that whatever else Bob McNamara is, he isn’t an evil man. I can’t make myself hate him, but the same feeling came over me that I felt when I toured the Wall in Washington: What a waste. What a colossal waste.

    I thought about the small number of people in the theater, and shook my head in the darkness. Every American should see this film, and I was a little embarrassed that attendance was so light. Boy, I didn’t know the half of it.

    For when the movie ended, and the lights came up, I stood up and discovered that every other audience member was Asian. As we passed into the hallway a couple of groups began conversing quietly in what I think was Vietnamese. I imagined that they were discussing the fact that only a single American bothered to see it.

    Paranoid? Maybe. But it sure was odd that out of all the WASPs on board, only I made the performance, while a substantial percentage of the Vietnamese passengers came.

    I’m not sure what that means. But I’m sure it makes me uneasy.

  • Geof Stone

    In response to DMG:

    The biggest difference between the “war on terrorism” and past wars, according to the administration, is that this war will continue indefinitely, if not in perpetuity. If this is so, then it should have a significant impact on how we think about restrictions of civil liberties. All past wars were reasonably time-bound. We can take some consolation that the restrictions of civil liberties were therefore time-bound as well. But it we seriously believe that the “war on terrorism” is essentially a permanent state of affairs, then any restrictions we adopt may also be permanent. That should make us especially wary about embracing them, because we could be permanently changing the state of our democracy.

    As for my discussions with Becker and Posner, which are quite common (especially with Posner), I constantly wrestle with the problem of specifying and weighing what they mean by costs and benefits. In some sense, of course, all policy and most legal decisions come down to costs and benefits. But at that level of generality, cost-benefit analysis is neither helpful nor very coherent. For a more precise example of how I respond to Judge Posner in these conversations, see pages 546-554 in Perilous Times.

    Geof Stone

  • Geof Stone

    In reply to Andrew Boysen:

    You’re right about the dangers of restricting free speech during a war. The fundamental purpose of free speech is to enable the citizens of a self-governing society to make decisions about public policy. There is no time that this is more important than in wartime. Government actions that constrain criticism mutilate the thought process of the community and render self-governance impossible at precisely those moments when it is most critical.

    Geof Stone

  • geof stone

    If reply to Dave Friedman:

    This is not a rant against the Bush administration. Although I think the administration has gone too far, I disagree emphatically with those who think we are “now living in the most repressive period in American history.” An understanding of our own history is essential to understanding both what we are doing right, and what we are doing wrong. On the positive side, imagine how unthinkable it would be if the government prosecuted Howard Dean or John Kerry for criticizing the War in Iraq. That seems unimaginable to us. But in 1798, 1863, and 1917, the government did exactly that. It is the rule, rather than exception, in our history for government in wartime to criminally punish national leaders who oppose the war. To that extent, we have made real progress. On the other hand, the dangers posed by the detentions after 9/11, the closing of deportation proceedings, the Patriot Act, and other measures adopted or suggested by the administration can be better understood if we consider them against the background of mistakes we’ve made in the past.

    Geof Stone

  • Fernando

    Interesting piece, however there is one major point worth highlighting. From a conceptual point of view, regarding the theoretical field where war meets rationality, in this very blog the concept �war� is used ambiguously. The historical references illustrate different types of wars, i.e., a civil war, two defensive wars (through international ties), and a geo-political offensive war (Vietnam), whereas the war in Iraq is preemptive–a whole new ball of wax. When relating the concept of �civil liberties� to �war,� the relationship, in terms of the reduction of such liberties during times of national crises, will vary in accordance with the type of war we are engaged in. More to the point, the justification upon the institution reducing civil liberties during a time of war will depend upon the type of war we are in. Or, at least it ought to.

  • Max Lybbert

    Well, I haven’t heard too much dissent here. For a group of individualists, that’s odd.

    Before I lodge my formal dissent, I think a few corrections are in order:

    Thunt, What’s The Matter With Kansas is a fabrication. And there is nothing sinister in differing interpretations of the Interstate Commerce Clause, just as there is nothing sinister in differing interpretations of various other Constitutional clauses (First Amendment comes to mind). The definition of a free press has changed drastically since 1789, but that doesn’t necessarily mean there’s a conspiracy afoot to give all the power to journalists.

    Jardineiro, as a former bank teller, I can tell you that the number of “suspicious activity reports” is exaggerated. Any transaction involving over $10,000 in cash requires a “currency transaction report.” If a customer decides to restructure a transaction solely to get around filing the report, the teller is required to file the report, in an effort to catch “suspicious activity.” This report has been required for something like twenty years, now, and has been vetted by the Supreme Court. However, the number cited is a total of all transactions reported to the feds under the BSA, and therefore includes more than simply “suspicious activity.” For instance, I remember a particular customer that ran a check-cashing service, so he needed lots o’ cash on hand. Just about every day he came in we had to fill out a CTR (and we had his information on file to speed things up). However, there was nothing suspicious about his activity. In fact, I think the feds would have found it somewhat suspicious if he stopped filing the reports while staying in business.

    So, regarding the actual questions asked, I believe we definitely must watch our civil liberties, especially since they grow more out of custom than out of actual statutes. OTOH, I think the threat to our liberties is very exaggerated. Federal law now relaxes some of the requirements to get various warrants (wiretaps, search warrants, etc.), but the Fourth Amendment still requires probable cause and specificity. Is that an infringement on civil liberties (or civil rights, for that matter)? Regarding the very well-known law that permits investigators to find out what people are reading, I personally doubt that it will stand up in court. If it does, then it can be undone with a federal law, and I’m sure some Democrat would be willing to propose such a law.

  • Geof Stone

    In reply to Fernando:

    This is a good point about the “type of war.” You’re quite right that the nature of these “wars” varies. What unites them for these purposes is that a real or imagined threat to the security of the nation from an external military force generates a real or perceived “need” for national unity and a consequent hostility to dissent.

    Geof Stone

  • Max Lybbert

    Professor Stone, do you believe that ten years of trying to shoot down American planes counts as an imagined threat? What about Iraq’s behind-the-scenes work to get sanctions lifted so that its military capability could expand enough to do more than simply attack American planes? What about the assisination attempt of Bush I?

  • Max Lybbert

    I guess I should make it clear that the CIA’s original assesment of Irqi WMDs (based largely on thinking such as “we know Iraq has lied in the past, let’s assume it is lying today when it says it has no WMDs, therefore Iraq has WMDs, q.e.d.”) can fall under the “Imagined threat” category. However, for some reason I took Professor Stone’s comment (and previous comments) as coming close to endorsing Michael Moore’s wide-eyed 1984 insunuations, that even Moore backs down from when pressed (Koppel’s article links to Moore’s responses, and points out where Moore doesn’t respond).

  • Jardinero1

    Max,
    Things have gotten agreat deal more stringent since your days as a bank teller. I am a stock broker and know firsthand. You say “but the Fourth Amendment still requires probable cause and specificity. Is that an infringement on civil liberties (or civil rights, for that matter)?” No, but my whole point is that NOW no warrant, no subpoena and no probable cause is required to view your financial records. Due process has been thrown out the window. That is a violation of the fourth amendment. Requiring financial service employees to snoop and report falls under the category of what’s called a “writ of assistance” and these are unconstitutional as well.

    The tragedy is that these breaches of the Constitution are wholly ineffective from a law enforcement point of view. Are the 14,000 unconstitutional violations of privacy reported in the aforementioned report worth two indictments? I don’t think so.

  • Ron Ulan

    If there is anyone reading this out there who does not regard
    rationality as an intellectual crime, than I ask you humbly to
    consider the biographies of Clement Vallandigham and Jose Padilla. Please. Reseach both. Compare. And may I add,
    honesty is not an intellectual crime either. If the noun you
    cling to to describe Vallandigham and Padilla is “citizen” and your comparison goes no further, you are intellectually dishonest. To
    yourself.

    Compare the two cases on all merits you can obtain. They are not even slightly comparable. Anyone reading this, in love with his own intelligence, who concludes otherwise, needs to get
    out in the frsh air and find a new lover.

  • Larry

    Thanks for blogging here, Professor Stone. I’ve long been a fan of your writing on the First Amendment.

    However, I must say I watched Fog Of War and was struck by how different Vietnam and Iraq are in almost every particular. There are plenty of serious questions to be dealt with regarding Iraq and the more general war on terror (including the threat to our civil liberties), but I don’t think facile comparisons to Vietnam are helpful at all.

  • Max Lybbert

    I may well be wrong, Jardinero, but I always assumed that the BSA was meant to have the same role as “illegal drugs taxes” — that is, something to add to the charges against a criminal, not really a way to find criminals to begin with.