excerpts from the book
Silencing Political Dissent
How post-September 11 anti-terrorism measures
threaten our civil liberties
by Nancy Chang
Seven Stories Press, 2002
The first ten amendments to the Constitution-which | collectively
comprise the Bill of Rights-guarantee I Americans the political
freedoms and individual liberties essential to an open society.
The core of the Bill of Rights is the First Amendment, which guarantees
our freedoms of speech, political association, and religion, our
rights to assemble peaceably and to petition the government for
a redress of grievances, and the freedom of the press. These guarantees
encourage democratic participation in government by promoting
debate on public issues that is "uninhibited, robust, and
wide-open," an inquisitive press, and government accountability
for its actions.
The remaining amendments in the Bill of Rights safeguard us
against undue governmental interference in our lives. The Fourth
Amendment protects our privacy against unreasonable government
intrusion and surveillance. Its warrant requirement imposes a
judicial check on the executive branch. Except in the case of
exigent circumstances, a law enforcement officer must obtain a
warrant from a neutral and independent magistrate prior to conducting
a search or seizure. The warrant must be supported by the officer's
written affirmation that there is probable cause to believe that
a specific criminal act has taken place and that the search or
seizure that the warrant authorizes will uncover evidence of the
The due process clause of the Fifth Amendment demands fairness
from the federal government. On a substantive level, the due process
clause protects us against government action "that 'shocks
the conscience' or interferes with rights 'implicit in the concept
of ordered liberty." On a procedural level, the due process
clause bars the government from depriving any person-whether citizen
or not-of life, liberty, or property without first providing the
person with a full and fair opportunity to be heard. The requirement
of equal protection of the laws, which the Supreme Court has read
into the Fifth Amendment by way of the Fourteenth Amendment, prohibits
the government from intentional discrimination on the basis of
race, ethnicity, gender, religion, or political belief. And the
Sixth Amendment promises a fair trial and the assistance of counsel
to those accused of crimes.
THE SEDITION ACT OF 1798
Just seven years after the ratification of the Bill of Rights,
the First Amendment came under assault. In an ultimately unsuccessful
bid to prevent the Republican Party from gaining power, a Federalist-controlled
Congress enacted the Sedition Act of 1798, which made it a crime
to criticize the government. Although the Federalists claimed
that this extreme measure was justified in light of heightened
tensions between the United States and France, curiously, all
of the indictments, prosecutions, and convictions under the act
were of Republicans. One of the best-known figures to be convicted
under the act was a congressman, Matthew Lyon of Vermont. Lyon
served a four-month prison sentence for his "crime"
of describing President Adams as "swallowed up in a continual
grasp for power, in an unbounded thirst for ridiculous pomp, foolish
adulation, and selfish avarice.'' The Federalists' misguided quest
for political power back fired on them. Lyon and the other Republicans
who had been outspoken critics of the Federalists became popular
heroes and, in 1801, Thomas Jefferson, a Republican, wrested the
presidency from Adams. As president, Jefferson pardoned those
who had been convicted under the act.
The worldwide political unrest of the World War I era brought
forth a fresh assault on the First Amendment. The Espionage Act
of 1917 made it a crime to "willfully utter, print, write,
or publish any disloyal, profane, scurrilous, or abusive language"
about the United States, or to "cause or attempt to cause,
or incite or attempt to incite, insubordination, disloyalty, mutiny,
or refusal of duty, in the military or naval forces of the United
States." In 1919, the Supreme Court upheld the conviction
under the Espionage Act of socialist Charles Schenck, who had
printed and distributed pamphlets urging opposition to the draft.
The Court's unanimous opinion, authored by Justice Oliver Wendell
Holmes, flatly rejected Schenck's argument that his speech was
protected under the First Amendment. Instead, the Court held that
government may restrict speech when it presents a "clear
and present danger" of ''bring[ing] about the substantive
evils that Congress has a right to prevent." The Court went
on to declare that ''[w]hen a nation is at war many things that
might be said in time of peace are such a hindrance to its effort
that their utterance will not be endured so long as men fight."
The Schenck decision is perhaps best known for the Court's
pronouncement that an individual who falsely shouts "fire"
in a crowded theater is not protected by the First Amendment.
Historian Howard Zinn has suggested that Schenck's act was more
akin to someone "shouting, not falsely, but truly, to people
about to buy tickets and enter a theater, that there was a fire
raging inside." Zinn questions whether the war itself "was
a 'clear and present danger,' indeed, more clear and present and
more dangerous to life than any argument against it.''
The Supreme Court also upheld the conviction under the Espionage
Act of socialist labor leader Eugene Debs based on an impassioned
antiwar speech he delivered in Canton, Ohio, in which he counseled
those in the audience of conscription age, "You need to know
that you are fit for something better than slavery and cannon
fodder." Debs, the founder of the Industrial Workers of the
World, had been sentenced to a ten-year prison term. From prison,
he mounted his fifth and final presidential campaign. His sentence
was commuted after thirty-two months by President Warren Harding,
and he was released from prison at the age of sixty-six.
THE SMITH ACT OF 1940
The First Amendment came under challenge once again with the
passage of the Smith Act of 1940, which made it a crime to "knowingly
or willfully advocate, abet, advise, or teach the duty, necessity,
desirability, or propriety of overthrowing or destroying any government
in the United States by force or violence," or to "organize...any...assembly
of persons who teach, advocate, or encourage the overthrow or
destruction of any government in the United States by force or
violence." In the late 1940s, as Cold War tensions between
States and the Soviet Union mounted, the Truman administration
capitulated to the anticommunist frenzy by indicting Eugene Dennis
and ten other Communist Party leaders under the Smith Act for
conspiring to organize the Communist Party and for advocating
the overthrow of the United States government by force and violence.
Following a highly contentious trial in 1949 that stretched over
nine months and led to accusations of judicial bias and prosecutorial
misconduct, all eleven defendants were convicted.
The Supreme Court, in a plurality opinion written by Chief
Justice Frederick Vinson, upheld the convictions of Dennis and
his fellow Communist Party leaders under a First Amendment test
that provided even less protection of speech than the "clear
and present danger" test applied in the Schenck case. Chief
Justice Vinson asked "whether the gravity of the 'evil,'
discounted by its improbability, justifie[d] such invasion of
free speech as is necessary to avoid the danger." Despite
the fact that the Communist Party had not used force or violence,
Chief Justice Vinson concluded that "[t]he formation...of
such a highly organized conspiracy, with rigidly disciplined members
subject to call when the [leaders] felt that the time had come
for action, coupled with the inflammable nature of world conditions,
similar uprisings in other countries, and the touch-and-go nature
of our relations with countries with whom [the leaders] were in
the very least ideologically attuned," posed a sufficiently
grave danger to justify the convictions of its leaders.
By the end of 1954, Senator Joseph McCarthy had been censured
by the Senate, and the anticommunist hysteria that he had done
so much to incite began to subside. In 1957, the Supreme Court,
in Yates v. United States, reversed the convictions of Communist
Party leaders under the Smith Act by drawing a distinction between
"advocacy of abstract doctrine and advocacy directed at promoting
unlawful action." However, it was not until 1969, the final
year of Chief Justice Earl Warren's sixteen-year tenure on the
Supreme Court-a tenure remarkable for its groundbreaking decisions
promoting individual freedom and racial equality-that the Court
finally abandoned the cramped reading of the First Amendment adopted
in the Schenck, Debs, and Dennis cases.
In the pivotal case of Brandenburg v. Ohio, the Warren Court
declared that "the constitutional guarantees of free speech
and free press do not permit a state to forbid or proscribe advocacy
of the use of force or of law violation except where such advocacy
is directed to inciting or producing imminent lawless action and
is likely to incite or produce such action." Brandenburg
marked a crucial turning point in the Court's First Amendment
jurisprudence by establishing that "mere abstract teaching"
of "the moral propriety or even moral necessity for a resort
to force and violence" cannot be prohibited. Under this new
standard, the Court reversed the conviction of a Ku Klux Klan
leader based on his statement at a rally for white supremacy that
"if our President, our Congress, our Supreme Court, continues
to suppress the white, Caucasian race, it's possible that there
might have to be some revengeance [sic] taken."
THE COLD WAR
The ruthless witch hunt for communists and their "fellow
travelers" during the height of the Cold War-from the late
1940s to the early 1950s-stands out as one of the most sordid
chapters in American history. Communist Party leaders were criminally
prosecuted and convicted under the Smith Act based on their political
views. Witnesses subpoenaed before the infamous House Un-American
Activities Committee (HUAC} who refused to answer questions about
their membership in the Communist Party or to supply the names
of their political associates were imprisoned for contempt of
Congress. Federal and state government employees, attorneys seeking
admission to the bar, and labor union leaders were required either
to sign loyalty oaths disclaiming any association with the Communist
Party or relinquish their positions. "Communist-action"
and "communist-front" organizations were required either
to register with the attorney general, reveal the names and addresses
of their officers and members, and account for financial contributions,
or to face criminal penalties. As anticommunist hysteria swept
the nation, organizations suspected of communist ties found it
increasingly difficult to retain their members, much less attract
new members and raise funds. Individuals suspected of being sympathetic
to leftist causes were subjected to surveillance, blacklisted
from employment, and saw their reputations destroyed.
While anticommunist fervor ran high, the Supreme Court consistently
deferred to the political branches of government on the question
of whether restrictions on the First Amendment were justified
by the threat that the Communist Party posed. Between 1945 and
1957, HUAC held "at least 230 public hearings, at which more
than 3,000 persons testified, of whom 135 were cited for contempt."
When a court convicted former college professor Lloyd Barenblatt
for contempt of Congress and sentenced him to six months in prison
because he had refused to respond to HUAC questioning concerning
his political beliefs and affiliations, the Supreme Court affirmed
his conviction. The Court found that Barenblatt's First Amendment
rights were outweighed by the government's interest in "self-preservation"
in a situation where Congress had found that the Communist Party
was intent on overthrowing the United States government by force
and violence. On this reasoning, the Court affirmed the contempt
convictions of civil rights activists Frank Wilkinson and Carl
Braden, who, like Barenblatt, had refused to name names when subpoenaed
For similar reasons, the Court upheld a provision of the Labor
Management Relations Act of 1947 that conditioned the recognition
of labor unions on their leaders' disavowal of communist ties.
The Court also upheld a provision of the Internal Security Act
of 1950 that required the compulsory registration of communist
organizations with the attorney general.
In 1957, however, with its decision in Yates, the Supreme
Court tentatively asserted itself as a check on the excesses of
the political branches. In 1961, in Scales v. United States, the
Court overturned the Smith Act convictions of Communist Party
leaders on the ground that "a blanket prohibition of association
with [the Communist Party,] a group having both legal and illegal
aims," would pose "a real danger that legitimate political
expression or association would be impaired." Similarly,
in 1967, in United States v. Robel, the Court struck down a provision
of the Internal Security Act that barred members of "communist-action"
organizations from working at defense facilities. The Court objected
to the provision because it "swe[pt] indiscriminately across
all types of association with communist-action groups, without
regard to the quality and degree of membership."
The Supreme Court's decisions in Scales and Robel established
what is accepted today as a basic tenet of constitutional law:
guilt cannot be imposed based solely on one's association with
an organization that has both lawful and unlawful ends. Instead,
guilt must be personal, and it must be based on clear proof of
an intent to further the unlawful ends of such an organization
by resort to force or violence. As Chief Justice Earl Warren observed
in Robel, "[i]t would indeed be ironic if, in the name of
national defense, we would sanction the subversion of one of those
liberties-the freedom of association-which makes the defense of
the Nation worthwhile.
THE FBI'S COINTELPRO PROGRAM
Government efforts to suppress political association did not
end with the ebbing of Cold War tensions. Between 1956 and 1971,
the FBI operated COINTELPRO, a secret political intelligence program
that covertly spied on, and interfered with, law-abiding political
organizations that were engaged in activities protected by the
First Amendment. The existence of COINTELPRO-shorthand for counterintelligence
program-did not come to light until March 1971, when the "Citizens'
Committee to Investigate the FBI" broke into an FBI field
office in Media, Pennsylvania, and provided the press with documents
seized from that office. The program's purposes were sinister.
According to a memo written by J. Edgar Hoover-the FBI's controversial
director from 1924 until his death in 1972 - on May 9, 1969, COINTELPRO's
mission was designed to "expose, disrupt, misdirect, discredit,
or otherwise neutralize activities" of individuals and organizations
perceived by the government to pose a threat to domestic interests.
COINTELPRO was created in 1956 to investigate the Communist
Party, but by 1961 it had turned its attention to the Socialist
Workers Party. With the social unrest and upheaval of the mid-1960s,
COINTELPRO widened its targets to include the civil rights movement,
the black nationalist movement, the white supremacist movement,
the women's liberation movement, and the "New Left,"
which included groups opposed to the Vietnam War. From 1963 until
his death in 1968, Martin Luther King Jr. remained the target
of a ferocious FBI smear campaign, the goal of which was to "neutralize"
him as an effective civil rights leader. The FBI went to the extreme
of mailing Dr. King a composite audiotape of recordings picked
up by microphones it had planted in hotel rooms he had occupied.
The tape was accompanied by a note suggesting that Dr. King commit
suicide or face the public release of the tape.
In the case of the FBI's investigation of the black nationalist
movement, agents were instructed to "prevent groups and leaders
from gaining 'respectability' by discrediting them" and "prevent
the rise of a 'messiah,"' such as Dr. King, Stokely Carmichael,
or Elijah Muhammed, "who could 'unify and electrify' the
movement." In the case of the FBI's investigation of the
New Left, agents were instructed to instigate "personal conflicts
or animosities" between leaders, create the impression that
leaders are "informants for the Bureau or other law enforcement
agencies," "have members arrested on marijuana charges,"
"exploit the 'hostility' between New Left and Old Left groups,"
and "use 'cooperative press contacts."
In April 1976, following a yearlong investigation, the Senate
Select Committee to Study Governmental Operations with Respect
to Intelligence Activities, chaired by Senator Frank Church, issued
a scathing report documenting in extensive detail the FBI's abuses
in its COINTELPRO operations. The Church Committee roundly condemned
COINTELPRO for having accumulated, in a manner "indisputably
degrading to a free society," massive intelligence information
on lawful activity, including protest activity and domestic dissent,
and on law-abiding citizens, for purposes "related only remotely
or not at all to law enforcement and the prevention of violence."
The Church Committee was even harsher in its condemnation of the
FBI's frequent resort to its repertoire of "dirty tricks,"
which included the frequent use of informants and agents provocateurs
to infiltrate and disrupt political organizations, illegal wiretaps
and break-ins, and the spread of false rumors that caused reputations
to be ruined, jobs to be lost, and marriages and friendships to
COINTELPRO was effective in suppressing many of the dissident
political movements that burgeoned in the mid-1960s. Groups that
were the targets of the FBI's clandestine actions to "expose,
disrupt, misdirect, discredit, or otherwise neutralize" their
activities found it difficult to maintain their cohesiveness,
momentum, and ability to attract new adherents. The full extent
to which COINTELPRO shifted the trajectory of political life in
the United States will never be known.
The ruling in Ex Parte Milligan had long been forgotten by the
time the nation next found itself in a state of crisis. During
the Red Scare of the World War I era, the fear that communism
would spread from Bolshevik Russia to Europe and the United States
fueled government investigations of suspected radical dissidents.
When the home of Attorney General A. Mitchell Palmer was bombed
by anarchists in June 1919, the administration of President Woodrow
Wilson interrogated, arrested, and detained as many as ten thousand
resident aliens who had been targeted based on their political
ideology. Many of the detainees were beaten and forced to sign
confessions. These actions, which came to be known as the Palmer
Raids, took place in more than thirty cities and resulted in the
deportation of more than five hundred immigrants, not one of whom
was proved to pose a threat to the United States.
THE JAPANESE INTERNMENT OF WORLD WAR II
Following the bombing of Pearl Harbor on December 7, 1941,
as the United States entered World War II, President Franklin
D. Roosevelt issued Executive Order 9066, which mandated the evacuation,
relocation, and internment of the 110,000 men, women, and children
of Japanese ancestry then living on the West Coast of the United
States. While the government had no evidence that any of these
persons-two-thirds of whom were United States citizens- were collaborating
with Japan, they were kept in preventive detention under harsh
and punishing conditions for much of the war.
HOW THE USA PATRIOT ACT UNDERMINES OUR CIVIL LIBERTIES
A number of the USA PATRIOT Act's provisions are uncontroversial.
The act nevertheless stands out as radical in the degree to which
it sacrifices our political freedoms in the name of national security
and consolidates new powers in the executive branch. It achieves
these undemocratic ends in at least three ways. First, the act
places our First Amendment rights to freedom of speech and political
association in jeopardy by creating a broad new crime of "domestic
terrorism" and denying entry to noncitizens on the basis
of ideology. Second, the act reduces our already low expectations
of privacy by granting the government enhanced surveillance powers.
Third, the act erodes the due process rights of noncitizens by
allowing the government to place them in mandatory detention and
deport them from the United States based on political activities
that have been recast under the act as terrorist activities.
Blurring the line between ideology and terrorism
Section 802 of the act creates a federal crime of "domestic
terrorism" that broadly extends to "acts dangerous to
human life that are a violation of the criminal laws" if
they "appear to be intended...to influence the policy of
a government by intimidation or coercion," and if they "occur
primarily within the territorial jurisdiction of the United States."
Because this crime is couched in such vague and expansive terms,
it is likely to be read by federal law enforcement agencies as
licensing the investigation and surveillance of political activists
and organizations that protest government policies, and by prosecutors
as licensing the criminalization of legitimate political dissent.
Confrontational protest activities, by their very nature, are
acts that "appear to be intended...to influence the policy
of a government by intimidation or coercion." In addition,
clashes between demonstrators and police officers and acts of
civil disobedience-even those that do not result in injuries and
are entirely nonviolent-could be construed as "dangerous
to human life" and in "violation of the criminal laws."
Environmental activists, antiglobalization activists, and
antiabortion activists who use direct action to further their
political agendas are particularly vulnerable to prosecution as
Within hours of the terrorist strikes on the World Trade Center
and the Pentagon, the FBI, working in close cooperation with the
INS and local law enforcement agencies across the country, embarked
on a dragnet for suspected terrorists. In its first few days,
75 individuals were rounded up, interrogated, and detained. By
November 5, 2001-the last date on which the Bush administration
released a cumulative total-the number of detainees had soared
to 1,147.5 In April 2002, one expert estimated that the total
had exceeded 2,000.
The government's detention of such large numbers of individuals
could, in theory, stand as a measure of its success in identifying
and rooting out terrorists within the United States. Unfortunately,
a number of factors suggest instead that the government is engaging
in preventive detention-a now universally condemned practice that
the United States last employed, with disastrous results, when
it interned 110,000 people of Japanese descent following the invasion
of Pearl Harbor. Under the Fourth Amendment, the government may
detain a person accused of a crime only on a showing of probable
cause that the person has engaged in criminal conduct. Under the
due process clause, a person who has not been accused of a crime
has a fundamental right to freedom from bodily restraint. The
due process clause requires that a noncitizen who has been charged
with an immigration violation but not with a crime be released
from detention on bond unless he is shown to pose either a danger
to security or a flight risk.
Even the Department of Justice has acknowledged that most of the
people arrested in the weeks after the terror attacks have since
been cleared of any connection to the attacks or terror groups.
And the department's six-month report to Congress on the INS's
compliance with Section 412 of the USA PATRIOT Act which provides
for the mandatory detention of suspected alien terrorists, establishes
that the attorney general has yet to certify a single noncitizen
as a terrorist under the act. As Representative John Conyers Jr.-who,
as the ranking minority member of the House Judiciary Committee,
led the fight in the House in opposition to the USA PATRIOT Act-remarked,
"The entire justification for Attorney General Ashcroft's
dragnet approach to detaining Arab and Muslim Americans has collapsed
with this admission that he hasn't been able to identify a single
SILENCING POLITICAL DISSENT
When U.S. national security is threatened, our commitment
to the First Amendment and the democratic values it embodies becomes
all the more essential. Crises force us to make decisions on the
weightiest of matters-whether to declare war, whether to take
military action and compel military service, whether to curtail
our political and personal freedoms, whom to call friend and whom
foe. The specter of casualties-both military and civilian, American
and foreign-looms in the balance. Once made, these decisions are
certain to carry long-lasting repercussions extending far beyond
the geographical confines of the United States.
Public participation in decision making is the hallmark of
a democratic society. Open debate that invites the vigorous presentation
of opposing viewpoints both enriches our understanding of the
problems we face and challenges us to find innovative solutions.
Yet, it is precisely at moments like the present, when the national
security is under threat, that First Amendment values are most
likely to be abandoned in favor of authoritarian rule. With a
growing sense of uneasiness, we have witnessed the Bush administration
amass enormous new powers in the months since September 11. And
we have witnessed the administration, in an effort to maintain
a free hand in the exercise of its new powers, employ strategies
that are calculated to silence dissent. First, it has questioned
the patriotism of those who oppose its policies, thereby fostering
a climate of intolerance of dissent. Second, it has sought to
discourage political activism by imposing guilt by association.
Third, it has restricted access to government information, which
has stymied the press, the public, and even Congress in their
efforts to hold the executive accountable for its actions.
A QUESTION OF PATRIOTISM
The First Amendment, through its guarantee of the freedom
of speech, has sustained America's most prized traditions- independence
of thought, diversity of opinion, and the right to the uninhibited
expression of one's views, no matter how unpopular. In the words
of Justice Robert Jackson:
[F]reedom to differ is not limited to things that do not matter
much. That would be a mere shadow of freedom. The test of its
substance is the right to differ as to things that touch the heart
of the existing order. If there is any fixed star in our constellation,
it is that no official, high or petty, can prescribe what shall
be orthodox in politics, nationalism, religion, or other matters
The Bush administration has done violence to these cherished
traditions by challenging not simply the ideas but the patriotism
of its critics. Shortly after the September 11 attacks, Bill Maher,
the host of the television show Politically Incorrect, quipped,
"We have been the cowards, lobbing cruise missiles from two
thousand miles away.... Staying in the airplane when it hits the
building-say what you want about that, it's not cowardly."
White House Press Secretary Ari Fleischer seized upon Maher's
statement and angrily warned that Americans "need to watch
what they say," and that "this is not a time for remarks
More ominous yet was the warning of Attorney General Ashcroft,
who, as the nation's top law enforcement officer, heads the Department
of Justice and all of its divisions, including the FBI, the INS,
the Bureau of Prisons, and the U.S. Attorneys. Testifying before
the Senate Committee on the Judiciary in December 2001, Ashcroft
admonished that "those who scare peace-loving people with
phantoms of lost liberty...your tactics only aid terrorists, for
they erode our national unity and diminish our resolve,"
and "[t]hey give ammunition to America's enemies and pause
to America's friends."
The administration's willful refusal to recognize the distinction
between core political speech, which enjoys the full protection
of the First Amendment, and the crime of treason, has produced
an environment in which those who question the soundness of our
government's response to the events of September 11 have been
faced with visits from the FBI, death threats, and other adverse
In August 2002, the Department of Justice scheduled to launch
Operation TIPS, the code name for the Terrorist Information and
Prevention System. The initial phase of this nationwide terrorism
reporting system will involve one million American workers in
ten cities whose ranks will include truckers, mail carriers, train
conductors, and utility workers, and who will constitute a formal
network for reporting suspected terrorist activities.
On September 14, 2001, Congress granted President Bush broad and
open-ended authority under the War Powers Act to use force, not
only against nations but against any "organizations, or persons
he determines planned, authorized, committed, or aided the terrorist
attacks that occurred on September 11, 2001, or harbored such
organizations or persons, in order to prevent any future acts
of international terrorism against the United States." Convinced
that military action would not prevent further acts of international
terrorism against the United States, Representative Barbara Lee
cast the lone vote in Congress against the resolution and called
for diplomatic efforts "to ensure this never happens again.'
For holding true to her principles, Lee found herself accused
of being a traitor and the subject of death threats.
PENALIZING SPEAKERS FOR THE REACTIONS OF THEIR LISTENERS
When the government penalizes speakers for the reactions of
their listeners, it sanctions the heckler's veto. But the First
Amendment protects controversial speech "unless shown likely
to produce a clear and present danger of a serious substantive
evil that rises far above public inconvenience, annoyance or unrest."
Justice William Douglas, speaking ~ for the Supreme Court in Terminiello
v. Chicago, explained J that "a function of free speech under
our system of government is to invite dispute," and that
speech "may indeed best serve its high purposes when it induces
a condition of unrest, creates dissatisfaction with conditions
as they are, or even stirs people to anger." As Justice Douglas
warned, penalizing speakers for the reactions of their listeners
leads to "the standardization of ideas, either by legislatures,
courts, or dominant political or community groups."
... If intolerance of unorthodox views continues unabated,
Americans will soon become as adept in the art of self-censorship
as the citizens of the world's most dictatorial regimes. When
Americans are intimidated into keeping dissident views to themselves,
our public discourse is constricted, the First Amendment is diminished,
and democracy itself is under attack.
The USA PATRIOT Act creates a new federal crime of domestic terrorism;
it appropriates funds for information-sharing systems between
federal, state, and local law enforcement agencies; and it grants
enhanced surveillance powers to the executive branch. As a result,
political activists and the organizations with which they associate
are more likely than ever to become the targets of government
tracking, surveillance, and infiltration.
THE RISING COSTS OF POLITICAL ACTIVISM
Since the Boston Tea Party, confrontational protest activities
have played a vital role in the struggle for political and social
justice in the United States. Our nation's independence from Great
Britain, the abolition of slavery, suffrage for women, the passage
of federal civil rights legislation, and the withdrawal of American
troops from Vietnam were won not by academic debate but by vibrant
mass movements that challenged the status quo with passion and
THE CRITICAL ROLE OF CIVIL DISOBEDIENCE IN POLITICAL AND SOCIAL
To great persuasive effect, each of these movements made principled
use of nonviolent civil disobedience-acts of moral conscience
in which individuals publicly and deliberately violate a law to
protest government policy. Certainly the success of the American
civil rights movement in breaking the stronghold of de jure, or
officially sanctioned, racial segregation is largely attributable
to the courageous and inspirational examples of Rosa Parks, who
was arrested in Montgomery, Alabama, for sitting in the white
section of a bus and refusing to move back to the black section;
Martin Luther King Jr., who was beaten and jailed for sitting
down at whites-only lunch counters in defiance of the South's
Jim Crow laws; Fred Shuttlesworth, who was fire-hosed and set
upon by dogs for leading peaceful marches in protest of segregated
schools in Birmingham, Alabama; and thousands of others who placed
their lives on the line for the cause of racial equality.
Drawing inspiration from the writings of Henry David Thoreau
and Mohandas K. Gandhi, Dr. King wrote from a prison cell in Birmingham
that civil disobedience was integral to the struggle to win civil
rights for African-Americans:
I submit that an individual who breaks a law that conscience
tells him is unjust and who willingly accepts the penalty of imprisonment
in order to arouse the conscience of the community over its injustice,
is in reality expressing the highest respect for law.... [T]he
present tension in the South is a necessary phase of the transition
from an obnoxious negative peace, in which the Negro passively
accepted his unjust plight, to a substantive and positive peace,
in which all men will respect the dignity and worth of human personality.
Actually, we who engage in nonviolent direct action are not the
creators of tension. We merely bring to the surface the hidden
tension that is already alive. We bring it out in the open, where
it can be seen and dealt with. Like a boil that can never be cured
so long as it is covered up but must be opened with all its ugliness
to the natural medicines of air and light, injustice must be exposed,
with all the tension its exposure creates, to the light of human
conscience and the air of national opinion before it can be cured.
Civil Disobedience as Domestic Terrorism
... the USA PATRIOT Act defines a new federal crime of domestic
terrorism that stretches beyond recognition the common understanding
of the term "terrorism" as premeditated and politically
motivated violence targeted against a civilian population. The
new crime's wide ambit covers any "acts dangerous to human
life that are a violation of the criminal laws," if they
"appear to be intended...to influence the policy of a government
by intimidation or coercion" and if they "occur primarily
within the territorial jurisdiction of the United States."
The looseness of this definition allows the government to group
nonviolent civil disobedience in the tradition of Thoreau, Gandhi,
and King together with the Al Qaeda network's ruthless attacks
on civilians, all under the single banner of terrorism.
Law Enforcement Monitoring of Political Activists
Since September 11, local police departments, with massive
infusions of support and technical assistance from the Department
of Justice and the FBI, have been busily refurbishing their "red
squads"-the police units that became notorious during Hoover's
reign as the FBI's director for spying on, infiltrating, and disrupting
left-wing political organizations in cooperation with the FBI.
Their methods of political intelligence are varied and include
reading the literature of "subversive" political groups,
interviewing people who attend their rallies, infiltrating the
groups, and developing informants within the groups.
Attorney General Janet Reno
"The American public's understanding of the workings of its
government is a cornerstone of our democracy.''
President Bush has taken measures to restrict access to President
Reagan's records, which were scheduled for release under the Presidential
Records Act of 1978 on January 20, 2001. President Bush delayed
the release of these records for months on end, and on November
1, 2001, he issued an executive order that essentially overrides
the act by executive fiat. Faced with the Watergate scandal and
President Nixon's assertion of proprietary claims over the records
and tape recordings created during his administration, Congress
passed the act in order to ensure public ownership and control
over presidential records. Under the act, a president's records
are to be opened for inspection twelve years after he leaves office.
But President Bush's executive order grants the incumbent president,
as well as former presidents, vice presidents, and their representatives,
the power to veto the release of records based on a simple claim
of executive privilege.
A COMPLIANT PRESS CENSORS ITSELF
Historically, the press has played a crucial watchdog over
government operations. In 1971, the Supreme Court refused to block
the New York Times and the Washington Post from publishing, over
the strong objections of the Nixon administration, a classified
study of the Vietnam War that exposed the government's use of
secrecy and deception to gain the public's support for the war.
The study, which has come to be known as the Pentagon Papers,
had been commissioned by President Johnson's secretary of state,
Robert McNamara, and was leaked to the press, in an act of civil
disobedience, by Daniel Ellsberg. As Justices Hugo Black and William
Douglas explained in their concurring opinion:
In the First Amendment the Founding Fathers gave the free
press the protection it must have to fulfill its essential role
in our democracy.... The press was protected [from government
censorship] so that it could bare the secrets of government and
inform the people. Only a free and unrestrained press can effectively
expose deception in government. And paramount among the responsibilities
of a free press is the duty to prevent any part of the govern
Since September 11, more than a thousand antiterrorism measures
have been proposed in state and local jurisdictions across the
nation, and already a number of them have become law. These measures
threaten to criminalize speech and protest activities, limit the
availability of public records, expand government surveillance
powers, and promote participation in acts the legislature deems
Unfortunately, noncitizens who engage in political activities
today run the risk of being placed in detention and deported under
the USA PATRIOT Act or for minor immigration violations. Noncitizens
from Arab and South Asian countries are being selectively targeted
by the Department of Justice for "voluntary interviews,"
and in campaigns to deport "absconders." It is critical
that citizens engage in political activities on their behalf.
The decision whether this nation will uphold the Bill of Rights-or
acquiesce in its surrender-will ultimately fall to the judiciary.
In the nine months since September 11, four trial court judges
have issued rulings finding antiterrorism measures to be illegal,
in defiance of a tradition in which the judiciary has bowed to
the wishes of the political branches of government in times of
crisis. Justice William Brennan, in a 1987 speech presented in
Jerusalem, urged that we "build bulwarks of liberty that
can endure the fears and frenzy of sudden danger-bulwarks to help
guarantee that a nation fighting for its survival does not sacrifice
those national values that make the fight worthwhile."