Wednesday, June 19, 2013

The Road to Prelims | Developing a Culture of Civil Liberties: Balancing Liberty and Security

How are civil liberties to be protected in wartime without preventing the government from responding effectively to a crisis? In the book War and Liberty (2007), Geoffrey Stone argues, “The United States has a long and unfortunate history of overreacting to the dangers of wartime,” and that “…in each we went too far in restricting our liberties.” (Stone 2007, 166) Stone supports this argument by exploring the liberty violations of President Adam’s Sedition Act of 1798, President Lincoln’s suspensions of habeas corpus during the Civil War, President Wilson’s Sedition Act during World War I, Japanese internment camps during World War II, McCarthyism during the Cold War, illegal surveillance and infiltration of antiwar groups during Vietnam, and illegal wiretapping and indefinite detention of American citizens during the War on Terror. Citizens place trust in their elected officials but whether the policies implemented during the seven cited periods worked to save the nation from further danger is unknown. What is known is that the nation came to regret its actions (Stone 2007). Even after such regrets, it should not be a surprise that America’s leaders, once again, justified the violation of civil liberties after 9/11:

"Indeed, it should hardly surprise us that a nation swept up in war fever would lose its sense of composure. The fear, anger, and patriotism engendered during a war inevitably undermine the capacity of individuals and institutions to make clearheaded judgments and risk, fairness, and danger. We all know this as a matter of personal experience. It is difficult to make calm, balanced decisions in a state of personal anxiety, outrage, or passion." (Stone 2007, 167)

So the question remains, what should be done to balance the needs of national security against protections of civil liberties? Stone acknowledges that the nation will not find a perfect balance between liberty and security but that it can be less quick to abandon liberty (Stone 2007). If we cannot guarantee a perfect balance between security and liberty than it makes sense to construct policies and constitutional doctrine that makes it difficult to abandon liberty. Stone’s suggests that a solution to this problem is that we develop a “culture of civil liberties” and he places the burden of slowing the abandonment of civil liberties on four groups – the people, Congress, Executive Branch, and Judicial Branch.

Civil Liberties and National Security after 9/11

The World Trade Center attacks of 9/11, ushered the United States into a new period of war and presented the nation with a new dilemma of balancing national security and liberty. In some ways, George Bush did learn from past mistakes:

But in 2004 it was inconceivable that the Bush administration would prosecute Howard Dean, even though his criticisms of the war in Iraq were every bit as inflammatory as the criticisms of Lyon, Vallandigham, and Debs. This is a profound and hard-bought achievement. We should neither take it for granted nor underestimate its significance. It is a testament to the strength of democracy. (Stone 2007, 171)

In this passage, Stone contrasts President Bush’s non-prosecution of Howard Dean for dissention to past periods when President’s used their power to silence those who opposed war. For Stone, this is a marked improvement. Stanley Renshon agrees, in his 2004 book, In His Father’s Shadow: The Transformations of George W. Bush, he argues that Bush has acted less imperial than Abraham Lincoln and Franklin D. Roosevelt. Renshon comes to this conclusion because Bush did not suspend habeas corpus or set up detention camps (Stuckey and Ritter 2007, 661). Although it is an improvement that George Bush did not prosecute Howard Dean, suspend habeas corpus, or set up detention camps, this line of reasoning does not account for the Bush administration’s unconstitutional acts such as; secret detention of thousands of noncitizens, closed deportation meetings, interception of mail and phone calls without judicial warning, and indefinite detention of American citizens (Stone 2007). These policies of the Bush administration signal that the nation still has work to do when it comes to defending civil liberties. Stone argues that Bush’s violations provide further proof that the courts need to construct further safeguards against the consolidation of power in the Executive Branch. Former Department of Justice, deputy assistant attorney general, John Yoo disagrees. He contends that the nature of The War on Terror is different than any previous war and therefore the courts should not restrict the power of the president:

"The world after September 11, 2001, however, is very different. It is no longer clear that the United States must seek to reduce the amount of warfare, and it is certainly no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force." (Yoo 2005, ix)

According to Yoo’s argument, policies such as secret detention, closed deportation meetings, intercepted mail, and detention of American citizens are justified because; “…terrorist attacks, however, demonstrate that inaction can be extremely high – the possibility of a direct attack on the United States and the deaths of thousands of citizens.” (Yoo 2005, x) This type of fear based policy making is what led to John Adam’s Sedition Act, Lincoln’s suspension of habeas corpus, Wilson’s prosecution of dissenters, Roosevelt’s Japanese internment camps, McCarthyism, and Johnson’s and Nixon’s illegal surveillance. Although Stone believes that Bush improved by not suspending habeas corpus, he disagrees with Yoo’s statement that “it is certainly no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force.” Stone cites the Constitutional violations of the Bush administration as evidence that the courts need to construct constitutional doctrine to limit the power of the executive branch and protect the nation from abandoning liberties.

Stone does not place the burden of balancing security and liberty solely on the courts. Rather, he advocates a national development of a “culture of civil liberties” and outlines how citizens, congress, the executive branch, and the judicial branch) can go about cultivate this culture of liberty.

Citizen Responsibility

The first responsibility is placed on the people of the United States, as Judge Learned Hand stated in 1944, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.” (Quoted in Stone 2007, 172) Citizens must demand protection of their liberties in order to urge Congress and the courts to implement liberty protection policies. If citizens react, instead, with fear and demand irrational decisions by the government, they create an environment that jeopardizes their Constitutional rights. Stone states:

"A critical determination of how our nation responds to the stresses of wartime is the attitude of the public. Citizens in a self-governing society are responsible for their own actions and the actions of their government. They cannot expect public officials to act calmly and judiciously without regard of their own response." (Stone 2007, 172)

Stone maintains that the people need to cultivate a “culture of civil liberties” to withstand fear and the “perils of war fever.” (Stone 2007, 173) If the people covet their liberties and resist making irrational demands on the government, then Congress would have the time to make decisions after full deliberation and slow the process of abandoning civil liberties.

Congressional Responsibility

The second responsibility rests on Congress and its ability to provide oversight of the Executive Branch. According to Stone, Congress should enact a mandatory cool down period before making decisions and implement a sunset provision to reconsider decisions after a short period of time (Stone 2007). Considering the value of a cool down period Stone states:
"An obvious peril of wartime is that Congress will act precipitously in response to public hysteria. To prevent this, Congress could adopt a rule prohibiting it from enacting such legislation without full and fair deliberation." (Stone 2007, 176)
By taking the time to have full and fair deliberation, Congress could better manage a threat to national security without succumbing to the fearful reactions of the people. Even after a cool down period, the decisions made “will often be warped by the effects of the crisis mind-set,” and “should automatically be reconsidered after a relatively short time.” (Stone 2007, 176) A sunset provision, according to Stone, “should require reconsideration within no more than one year of enactment, and regularly thereafter.” (Stone 2007, 176) A sunset provision could allow the president flexibility to take decisive action but would help protect civil liberties by allowing Congress to reconsider those decisions after a short period of time. Implementing a cool down period and a sunset provision would ensure Congress the time to make rational decisions, grant the Executive Branch the power to make national security decisions, protect against Executive Branch consolidation of power, and slow the abandonment of civil liberties.

Presidential Responsibility

The third group responsible for slowing the abandonment of civil liberties is the Executive Branch. The Executive Branch should resist secrecy and select cabinet members who will defend civil liberties. According to Stone, the Executive Branch has a tendency to become overly secretive in times of war and that secrecy undermines the separation of powers:
"In a self-governing system committed to the separation of powers, excessive secrecy is a recipe for disaster. The American system of government depends on a reasonable degree of transparency, congressional oversight, and public awareness in order to check the threat of an overreaching executive." (Stone 2007, 177)
In order for presidents to balance the need for national security against the need for civil liberty protection they must acknowledge their responsibility to protect the nation from its enemies and to respect the liberties granted by the Constitution (Stone 2007). To ensure that the presidents uphold the Constitutional rights of individuals, every administration should “have within its highest councils individuals who will ardently and credibly defend civil liberties.” (Stone 2007, 176,177) A senior official representing civil libertarian views can keep the Executive Branch from endorsing extreme positions that threaten civil liberties. If the Bush Administration would have been more transparent and included senior officials who argued to protect civil liberties, it may have not secretly detained thousands of noncitizens, held closed deportation meetings, intercepted mail and phone calls without judicial warning, and indefinitely detained American citizens on determination that they were unlawful enemy combatants (Stone 2007).

Judicial Responsibility

Last, the Judicial Branch needs to set clear precedent which will slow the president’s ability to abandon civil liberties in wartime. Stone documents that “even in wartime, presidents have not attempted to restrict civil liberties in the face of settled Supreme Court precedent.” (Stone 2007, 182) He notes that Lincoln did not implement a Sedition act, Wilson did not suspend habeas corpus, and Bush did not install a federal loyalty program on Muslim-Americans. This would suggest that in times of peace, “the Court must articulate clear constitutional rules that are not easily circumvented or manipulated,” and that these rules “will provide firm guidance for later periods of stress.” (Stone 2007, 182) By setting firm precedent, the Judicial Branch can help slow the abandonment of civil liberties in wartime.


As Stone has argued, the nation may never find the perfect balance between the needs of national security and civil liberty. But, the nation can slow the speed in which civil liberties are abandoned. The distinction between finding the perfect balance and slowing the speed of abandonment is important because it recognizes the complexity of wartime strategy and the interaction between the people, Congress, Executive Branch, and Judicial Branch. In times of national emergency, it is hard to determine what is right and wrong. Stone illustrates this well when he says:

"As with any counterfactual, we cannot know for certain what would have happened if Lincoln had not suspended the writ of habeas corpus, Wilson had not prosecuted those who protested World War I, or McCarthy had not raged against communist subversion." (Stone 2007, 166)

We do not know what would have happened if past presidents had not made these decisions, but we do have the luxury of hindsight. When we look back at the seven periods we can recognize that we suppressed liberties more than needed and that we came to regret those suppressions. So, the goal should no longer be how to find that perfect balance but how we can slow the abandonment of civil liberties. If the people cultivate a culture of civil liberties, the Congress implement a cool down period and a sunset provision, the Executive Branch can resist secrecy and select civil libertarian cabinet members, and the Judicial Branch set clear and firm precedent in times of peace then, in times of war, the Executive Branch may be less quick to abandon civil liberties.

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