How effective has the US been at defending civil liberties at a time of heightened security?

by Ishaboiz (student)

AS and A Level Politics

James Prentice

________________

How effective has the US been at defending civil liberties at a time of heightened security?

The constitution was written to ensure that civil liberties would be protected at all times, especially when the security of the nation was threatened. There is emphasis on the importance of protecting civil liberties during a national crisis, not because civil liberties become more important but because they become more vulnerable. Most governments do not like to meddle with civil liberties, not only because of their particular ideologies but because it is tremendously unpopular with the public. However, some governments become tempted to do so in times of heightened security. They are tempted to alter or ignore the civil liberties of a few to save the masses.

Civil liberties which are mostly spelt out in the Constitution, guarantee the protection of persons, expression and property from arbitrary interference by the government. The United States Constitution, especially its Bill of Rights, protects civil liberties. The passage of the Fourteenth Amendment further protected civil liberties by introducing the Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause.

During the civil war President Lincoln suspended habeas corpus. Habeas corpus is a writ (legal action) which requires a person under arrest to be brought before a judge or into court. This ensures that a prisoner can be released from unlawful detention, in other words, detention lacking sufficient cause or evidence. The Suspension Clause of the United States Constitution which demands that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." This is a clear example of how the US adjusts during times of heightened national security. Although in doing so, threatening civil liberties. However many people see this as being acceptable as long as it is temporary, just as in the Suspension Clause it says habeas corpus may be suspended but not completely erased.

A more recent example of this was during the war with Japan, specifically after Pearl Harbour. The Japanese-American internment was the relocation and internment by the United States government in 1942 of about 110,000 Japanese Americans and Japanese who lived along the Pacific coast of the United States to camps called "War Relocation Camps," in the wake of Imperial Japan's attack on Pearl Harbour. Korematsu vs. United States was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War regardless of citizenship.

Some people ...

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A more recent example of this was during the war with Japan, specifically after Pearl Harbour. The Japanese-American internment was the relocation and internment by the United States government in 1942 of about 110,000 Japanese Americans and Japanese who lived along the Pacific coast of the United States to camps called "War Relocation Camps," in the wake of Imperial Japan's attack on Pearl Harbour. Korematsu vs. United States was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War regardless of citizenship.

Some people think that the US has taken a step too far and continued to threaten civil liberties even when the national security is no longer in danger. They argue that the constitution is too flexible and complain that it has allowed the government, especially the executive branch, to use periods of crisis to steadily undermine those mechanisms in the constitution which protect liberty, which should protect citizens from the accumulation of power by the national government. Thus, when it was revealed in 2005 that the Bush administration had authorized eavesdropping on overseas phone calls made for the USA, the President argued that as Commander in Chief he was constitutionally mandated to do anything within his power to protect the American people. Bush's only ally was Justice Clarence Thomas, who argued that the president may suspend the Constitution at will if he believes, or claims to believe, that he is doing so to protect the country. The result is that the balance between effective government and personal freedom has tilted dangerously away from liberty, undermining the core principle of the Constitution.

In recent years, the Supreme Court appears to have largely abandoned its unwillingness to get involved in foreign and security matters. However, following President George W. Bush’s declaration of a ‘War on Terror’ and the arrest and detention without trial of people classified as ‘enemy combatants’, the Supreme Court has adopted an aggressively interventionist stance and challenged the policy. This is a good example of judicial activism.

In Rasul vs. Bush, the Court ruled that detainees held on a US military base in Guantanamo Bay, Cuba, were entitled to constitutional protection. Then, in Hambi vs. Rumsfeld, the Court built on the Rasul decision to rule that one of the specific constitutional protections to which detainees were entitled was to challenge their detention before and impartial judge and declared that ‘a state of war is not a blank cheque for the president when it comes to the rights of the nation’s citizens’. This is a great example of the US defending civil liberties during a time of heightened national security.

Also, the administration of George W. Bush set up military tribunals to provide a judicial mechanism for the detainees. When it was challenged, in Hamdan vs. Rumsfeld, the Court ruled that the detainees could not be subject to military trials without the specific authorisation of Congress.

It is unwise to make definitive judgements about the Roberts era after just four terms. However, on the basis of early indications the main trend has been for the Roberts Court to move in incremental, or minimalist, steps towards an originalist understanding of the Constitution on the country’s most controversial issues.

Another way of looking at the early years of the Roberts Court is, as the New York Times put it, that the Constitution ‘means what Justice Kennedy says it means’. In that Justice Kennedy often had the pivotal vote. When he sided with the liberals it showed that the US can defend civil liberties effectively.

Both the Patriot Act and the creation of the Department of Homeland Security were the subject of intense criticism from civil liberties groups and interests and, increasingly, from more mainstream political interests, including the Democratic Party. In my opinion the laws were too sweeping in scope. One of the main problems derived from the definition of domestic terrorism under the Patriot Act, which was defined as ‘acts dangerous to human life that are a violation of the criminal laws of the United States or of any State appear to be intended . . . to influence the policy of a government by intimidation or coercion’.

The problem is that this could be interpreted as simply opposing US foreign policy or showing sympathy with those engaged in acts of protest or terror, even if they were not directly a threat to the US. For example, some suspects were arrested because they had sympathised with Palestinian suicide bombers whose target was the Israeli occupation rather than the United States as such. In an attempt to fight terror during, or in this case after a time of heightened security, the US has not defended civil liberties effectively. I have discussed how it has been acceptable in the past to temporarily suspend laws or introduce new ones that affect civil liberties, but in this situation they ‘overdid it’.

Another example of the US failing to protect civil liberties in a time of heightened security was when the FBI were permitted to access information from libraries and bookstores. Library associations argued that it was a fundamental violation of the First Amendment. In fact extensive ‘data mining’ of email, telephone, library, employment, credit card and other sources was even legitimated. Not surprisingly this has been the cause of numerous complaints of civil liberties violations.

It is also argued that civil liberties are paramount and that government should be quicker to intervene when liberties are undermined by measures such as the Patriot Act and the establishment of the prisoner camp at Guantanamo Bay. Groups such as the American Civil Liberties Union, believe that they take too long to restore rights if congress and the President sacrifice liberty of fear of being accused of doing too little to promote security. ACLU argue that the government to not intervene and protect civil liberties fast enough, but they should not be surprised as in the case of the Bush administration, the executive was responsible for threatening civil liberties.

After 9/11, Bush gained a huge amount of popularity, in my opinion this lead to the ‘Bush Doctrine’. After 9/11 the phrase described the policy that the United States had the right to secure itself against countries that harbour or give aid to terrorist groups, which was used to justify the 2001 invasion of Afghanistan. However this was not just about his views on foreign policy, he became paranoid about domestic issues which led to many civil liberty issues.

The Bush administration responded with a strategy that included two elective wars, illegal surveillance, indefinite detention without trial of both citizens and non-citizens, torture, secret prisons, ethnic and religious profiling, infiltration and intimidation of activist groups, dereliction of multiple international human rights agreements, and support for brutal pro-U.S. dictators overseas.

In my opinion civil liberties in the US are under threat too often. Many argue it is acceptable to temporarily suspend or alter laws regarding civil liberties during times of heightened national security. However, the executive often abuses this, for example, using the situation as an excuse for illegal surveillance or more importantly threatening civil liberties when the national security is not in danger. This has understandably led to general mistrust of the executive.

This is something Tom Heard, a civil liberties expert, feels strongly about, ‘Never trust the president, no matter who the president is. This cardinal rule of government was central to the Founding Fathers' thinking when they drafted the Constitution, but even they lived to see George Washington transformed into demigod status by biographers. Never trust the president. This is what Americans learned after Watergate, and it is the lesson we as Americans should be learning now. Never trust the president. It is a lesson that the Obama administration will teach us, just as the Bush administration has.’