War and civil liberties and the Supreme Court

Description:During periods of national emergencies, the United States. government has often restricted and curtailed the liberties and rights guaranteed in its Constitution.

Significance:When individual Americans have challenged the government’s denial of constitutional rights, especially the rights to free expression and fair trials, many justices of the Supreme Court have prioritized civil liberties less than national security.

The civil liberties contained in the U.S. Constitution were designed to protect citizens against abuses of power by government. The Bill of Rights sets limits on the government’s power to regulate an individual’s speech, religion, and political activities. In addition, it provides the government with certain procedures to ensure that individuals accused of crimes are treated fairly. The Constitution also empowers the government to pursue legitimate goals, one of the most important of which is defense of the nation. As the guardian of the Constitution, the Supreme Court has frequently been called upon to decide cases in which the government’s ability to wage war has come into conflict with the civil liberties of its citizens.

When the Bill of Rights was ratified, attitudes about liberties and rights were much more limited than in later periods of history. During an undeclared naval war with France, for example, Congress passed the Sedition Law of 1798, which codified the English common law of seditious libel. This made it a crime to speak disparagingly of the national government or national leaders. This offense was punishable by imprisonment or fine. Supreme Court justices, while on circuit, presided over trials in which persons were sentenced to prison for their speech. Although most jurists of the time considered the Sedition Law constitutional because it did not authorize prior restraint of expression, the law became very unpopular, especially after its denunciation in the Kentucky and Virginia Resolutions, written by Thomas Jefferson and James Madison. During the War of 1812 (1812-1814) and the Mexican War (1846-1848), national leaders apparently saw no need to pass another such law.

The Civil War

During the course of the Civil War (1861-1865), President Abraham Lincoln, taking a narrow view of individual liberties, issued executive orders to suspend the writ of habeas corpus, to seize newspapers critical of the government’s policies, and to conduct military trials of civilians. Because the federal courts had not routinely heard claims of civil liberties violations, relatively few cases reached the Court. When they did arrive, Chief Justice Roger Brooke Taney, a southerner, was one of Lincoln’s strongest critics.

In the case of Ex parte Merryman (1861), which involved a pro-Confederate political leader arrested under Lincoln’s suspension of habeas corpus, Chief Justice Taney filed an opinion condemning the arrest as unconstitutional, arguing that only Congress had the authority to suspend the writ. However, the majority of justices refused to join the opinion, and Congress later defended Linclon by passing a habeas corpus statute. After Clement Valladigham was tried in a military court and banished beyond Confederate lines, he petitioned the Supreme Court for a review of his conviction. In Ex parte Vallandigham (1964), the Court responded that based on the Judiciary Act of 1789, it lacked jurisdiction to review military proceedings.

In 1866, after the Civil War ended, the Court finally issued a ruling on the constitutionality of military trials of civilians in Ex parte Milligan. Lambdin P. Milligan had been tried by a military commission in Indiana on charges of conspiring to seize Union munitions. Strongly rejecting the government’s argument that the Bill of Rights could be suspended in time of war, the Court held that Milligan had been deprived of his constitutional right to a trial by jury. As long as the civilian courts continued to operate, the Court held, military trials of civilians were prohibited. Ironically, Republican liberals at the time denounced the Milligan ruling because President Andrew Johnson used it as a justification to reduce military authority in the occupied South. Most commentators regard Milligan as a constitutional landmark, although the Court did not refer to it as a binding precedent during World War II.

World War I

During World War I, Congress enacted the Espionage Act of 1917, which included criminal punishments for anyone making false reports to help the enemy or anyone seeking to interfere with military operations or the draft. An amendment of 1918, commonly called the Sedition Act, further punished the uttering or printing of any “disloyal” language. Under this draconian legislation, the government reported a total of 877 convictions out of 1,956 prosecutions. The first case to come before the Court was Schenck v. United States (1919), which involved a defendant found guilty of distributing leaflets that encouraged young men to resist the military draft. The Court upheld Schenck’s conviction, saying that his ideas posed a “clear and present danger” of leading to the results that Congress had the constitutional right to prevent.

In Debs v. United States (1919), the Court upheld the conviction of a prominent Socialist leader Eugene V. Debs for delivering a speech denouncing the war that, in the Court’s view, had the tendency to promote illegal acts against the war effort, even though Debs did not explicitly advocate illegality. Likewise, in Abrams v. United States (1919), the Court upheld, by a 7-2 vote, a sentence of twenty years imprisonment for distributing leaflets that urged people to oppose American efforts to undermine Russia’s Bolshevik Revolution. In an eloquent dissent, Justice Oliver Wendell Holmes declared that the government under the First Amendment could only punish “speech that produces or is intended to produce a clear and imminent danger” of substantive harm. He denied that such a danger existed from “the surreptitious publishing of a silly leaflet by an unknown man.”

World War II

The Supreme Court’s commitment to civil liberties was severely tested during World War II (1941-1945). In 1942, President Franklin D. Roosevelt signed Executive Order 9066, authorizing the forced evacuation of about 110,000 persons of Japanese ancestry. Despite the protections of the Fifth Amendment, the internees were deprived of liberty without being charged of any wrongdoing. Many lost their homes and businesses. The government argued that some Japanese Americas remained loyal to their ancestral homeland and therefore posed a threat to national security, and that it was impossible to separate the loyal from the disloyal. In Korematsu v. United States (1944), the Court upheld the forced relocation by a 6-3 vote. Writing for the majority, Justice Hugo L. Black uncritically accepted the arguments of military leaders; ironically, he affirmed that restrictions of a single racial group should be given “the most rigid scrutiny.”

In reviewing prosecutions of alleged war criminals, the Stone Court usually deferred to the wishes of the executive branch. In Ex Parte Quirin (1942), the Court unanimously upheld the use of secret military commissions in the convictions of eight German saboteurs captured in the United States. The Court quickly concluded that Congress had authorized the commissions in Article of War 15, showing little concern about the procedures used. The justices declared that despite the 1866 Milligan precedent, the saboteurs were not entitled to civilian trials because they were enemy belligerents (even though one of the men had been a naturalized U.S. citizen).

In Haupt v. United States (1947), the Supreme Court upheld a treason conviction based on evidence that the defendant had done no more than shelter his son. When upholding the very hasty military conviction of a Japanese general charged with failure to prevent war crimes in the Philippines in the case of In re Yamashita (1946), Chief Justice Harlan Fiske Stone, speaking for seven justices, rejected the two dissenters’ concern about the lack of any due process required by the Fifth Amendment. In Duncan v. Kahanamoku (1946), which involved the use of military tribunals for prosecuting civilians in what was then the territory of Hawaii, the Court eventually held that the use of the tribunals violated Hawaii’s organic law. However, reflecting the Court’s determination not to hinder the war effort, the Court did not issue the decision until two years after the termination of martial law. Even then, the Court carefully avoided any reference to constitutional rights or to Milligan.

In comparison with its actions during the previous world war, the Court was not faced with the task of reviewing mammoth assaults on free expression. The Roosevelt administration did not prosecute large numbers of people for speech or press violations under either the Smith Act of 1940 or the Espionage Act of 1940. However, the Court did decline to review a few cases in which individuals were punished for illegal advocacy, most notably the sensational case of eighteen communists convicted in Minnesota in 1941 under the Smith Act. More typical, however, was the case of Hartzel v. United States (1944), in which the Court overturned an Espionage Act conviction for the distribution of profascist literature, finding insufficient evidence that the defendant had intended to impede the U.S. war effort. Likewise, in Keegan v. United States (1945), it concluded that the evidence was too meager to sustain the conviction of German American Bund members for conspiracy to oppose the draft. Perhaps the most important free expression precedent during the war was West Virginia State Board of Education v. Barnette (1943), which upheld the constitutional right of school children not to participate in salute-the-flag ceremonies.

The Cold War, 1946-1991

After World War II, government prosecutors vigorously pursued communist leaders under the Smith Act, which threatened up to ten years imprisonment for any person who “advocates, abets, advises, or teaches” the desirability of a violent revolution. Chief Justice Fred M. Vinson as well as other members of the Court were fearful of internal subversion, perhaps influenced by Senator Joseph McCarthy’s anticommunist crusade during the Korean War (1950-1953). In a 6-2 decision, the Court upheld the Smith Act convictions of eleven communist leaders in Dennis v. United States (1961), emphasizing the “gravity of the evil” and applying the so-called “grave and probable danger test.”

After the Korean War ended in 1953, the justices began to moderate their fears of communist subversion. Setting aside the convictions of fourteen communists leaders in Yates v. United States (1957), the majority opinion stated that convictions must be based on advocacy of action and not advocacy of belief, which made convictions difficult under the Smith Act. In Peters v. Hobby (1955), the Court reinstated federal employees who had been discharged under the loyalty-security program. In Watkins v. United States (1957), the Court put limits on the extent to which congressional committees could require witnesses to answer personal questions.

During the late 1950’s, Justices Felix Frankfurter and John Marshall Harlan appeared to become more fearful of subversion. In Barenblatt v. United States (1959), the Court retreated from Watkins and upheld the conviction for contempt of a witness who had refused to answer questions to the House Committee on Un-American Activities (HUAC). The justices voted five to four to sustain a Smith Act conviction in Scales v. United States (1961), although they insisted that any convictions must be based on evidence of active participation in a subversive group.

During the Vietnam War (1965-1973), in contrast to its actions during most other U.S. wars, the Court actually expanded constitutional liberties. In the seminal case of Brandenburg v. Ohio (1968), the Court held that advocacy of violence could only be punished when it was intended and likely to provoke “imminent lawless action.” The Court’s ruling in Tinker v. Des Moines Independent Community School District (1969) recognized that public school students had a constitutional right to display antiwar symbols as long as long as there was no disruption of normal school activities. Refusing to endorse a “prior restraint of expression” in New York Times Co. v. United States (1971), the Court rejected the government’s attempt to suppress publication of the Pentagon Papers in the name of national security.

Terrorism, Afghanistan, and Iraq

As in other times of fear and war, the terrorist attacks on the United States of September 11, 2001, caused many Americans to become more concerned about national security than about their civil liberties. Seven days after the attacks, Congress passed an Authorization to use Military Force, empowering the president to “use all necessary and appropriate force” against terrorists and their supporters. A few weeks later, Congress passed passed the Patriot Act, which made it easier for executive agencies to gather and share information about persons in the United States. Civil libertarians were highly critical of these statutes, especially since some provisions resembled bills of attainder.

Civil libertarians denounced President George W. Bush’s executive order authorizing the National Security Agency (NSA) to monitor, without obtaining warrants, conversations among Americans and among suspected terrorists abroad, contrary to legislation requiring that warrants first be obtained by the Federal Intelligence Surveillance Act (FISA). The Bush administration responded that its policy was justified by the inherent powers of the president as well as by Congress’s endorsement of a war against terrorism. Civil libertarians were outraged with the Bush Administration’s domestic surveillance policies. In 2006, it remained uncertain whether the Supreme Court would be called on to decide the constitutionality of Bush’s policies.

Meanwhile, the Court faced decisions about whether to review cases involving the detaining of persons (both citizens and noncitizens) suspected of giving support to terrorists. After invading Afghanistan in 2001, President Bush ordered an ambitious military operation against Iraq in 2003. The administration endorsed a policy of detaining large numbers of persons suspected of either being terrorists or cooperating with terrorist groups. Many prisoners naturally sought habeas corpus relief in U.S. federal courts. Yaser Hamdi, an American citizen raised in Saudi Arabia and accused of cooperating with the enemy in Afghanistan, was imprisoned for over two years in the United States as an “enemy combatant,” without being charged and without the right of habeas corpus. In Hamdi v. Rumsfeld (2004), however, the Court held that the due process clause guaranteed all citizens the right to a “fair opportunity” to contest their detention before neutral magistrates, and that Hamdi had either to be tried for a specific crime or be released. An arrangement was worked out through which Hamdi renounced his citizenship and was returned to Saudi Arabia.

An issue of greater significance was the fate of five hundred foreign citizens held on suspicion of supporting terrorism at the U.S. naval base in Guantanamo, Cuba. The government claimed that these alien prisoners on foreign soil did not have any privilege of seeking habeas corpus relief in the federal courts, emphasizing that the naval base, which was located in a foreign country, did not fall under the jurisdiction of U.S. federal courts. When finally reviewing several habeas corpus petitions in Rasul v. Bush (2004), the Court rejected the government’s position by a 6-3 vote. Speaking for the majority, Justice John Paul Stevens concluded that federal courts held jurisdiction over the “territory over which the United States exercises exclusive jurisdiction and control.” In addition, he wrote that the right to habeas corpus was not dependent upon citizenship status, observing that for three hundred years the English common law had extended the privilege to any person held by the government. In 2006, it was expected that the right of habeas corpus relief would eventually force the government to choose between either releasing or prosecuting at least some of the Guantanamo detainees.

The Bush administration made plans to use special military commissions for the trials of aliens who could be charged with crimes of war. The commissions were established under a presidential order of 2003. By early 2006, ten detainees at Guantanamo had been formally charged. The Supreme Court reviewed the case of one of these defendants, Salim Ahmed Hamdan, a Yemeni national accused of conspiracy to commit terrorism. Its 5-3 decision, Hamdan v. Rumsfeld (2006), rendered the administration a major setback, as it held that the special commissions were illegal under both the Geneva Conventions and the Uniform Code of Military Justice (UCMJ). The majority of justices concluded that the Authorization for the Use of Military Force (AUMF) had not authorized the president to create special commissions, and even if such commissions were to have congressional support, they would have to include all the procedures of the UCMJ and the Geneva Convention. Stevens firmly rejected the administration’s policy of denying the detainees the protections of the Geneva Convention based on the claim that they were not lawful combatants fighting in uniform for a foreign country. Stevens argued that all detainees were entitled to the convention’s full protections until a court would decided they were not prisoners of war. From the Bush administration’s perspective, the only good thing about the Hamdan decision was that it did not actually require the release of any of the detainees.

A somewhat different criticism has emerged concerning the overreach of executive power in supposed times of crisis. In 2023, critics contended U.S. government policy is being enacted using a national emergency as a false pretext. In 2023, the Biden administration sought debt forgiveness for college loans which were accumulated by students during the Covid-19 national emergency. The administration claimed its legal basis for doing was The Hero's Act (2001). This legislation was originally intended to provide debt forgiveness to military members who might be deployed following the terrorist acts of 9/11. In an effort to extend a controversial policy dating to the Trump administration, many Republican-led state legislatures have also been accused of miscategorizing the influx of illegal immigrants along the United States southern border as a national emergency. This was being done to bypass protections formerly provided to such persons while in U.S. custody.

Bibliography

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Parker, Kristy, Justin Florence, Genevieve Nadeau, Soren Dayton, and Scott Welder. "A Chance for the Courts to Rein in Governing by Emergency." Lawfare, 3 Feb. 2023, www.lawfareblog.com/chance-courts-rein-governing-emergency. Accessed 13 Apr. 2023.

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