Tuesday, October 6, 2015.

< Justice goes after doctor accounts in tax avoidance investigation | Main | Election map analysis >

November 5, 2004

Perilous Times

In this New York Times review, Michiko Kakutani reviews Perilous Times, the new book about American restrictions on civil liberties and free speech by Geoffrey R. Stone, the Harry Kalven Jr. distinguished service professor of law at the University of Chicago. As the review notes, the restrictions of civil liberties under the recent Patriot Act are not unusual in time of war in the United States, regardless of whether the President is a Republican or a Democrat:

Impassioned yet methodical, [Professor Stone] lays out the vital role that free speech plays in a healthy system of self-governance, using lots of case studies to illustrate his arguments while creating a devastating portrait of those public figures whose commitment to free speech has been weak or hypocritical. Woodrow Wilson, who tried to squelch any disharmony that might impede his mission of making "the world safe for democracy," comes off especially poorly, and Franklin D. Roosevelt emerges as a president who would support civil liberties in the abstract, "but not when they got in his way."

However, Professor Stone is reassuring that America's commitment to civil liberties is strong, and that each period of restriction has been followed by a period of stronger restoration:

After each period in which the nation went too far in restricting civil liberties, Mr. Stone argues, "the nation's commitment to free speech rebounded, usually rather quickly, sometimes more robustly than before." A Congressional report declared that the Sedition Act of 1798 had been passed under a "mistaken exercise" of power and was "null and void." The Sedition Act of 1918, which was repealed two years later, helped give birth to the modern civil liberties movement. And in 1976, President Ford formally prohibited the C.I.A. from using electronic or physical surveillance to collect information on domestic activities of Americans, and the new F.B.I. director, Clarence Kelly, publicly apologized for F.B.I. abuses under J. Edgar Hoover.

Such developments buttress Mr. Stone's argument that "the major restrictions of civil liberties of the past would be less thinkable today than they were in 1798, 1861, 1917, 1942, 1950 or 1969," and that "in terms of both the evolution of constitutional doctrine and the development of a national culture more attuned to civil liberties, the United States has made substantial progress." Mr. Stone writes that in its 1971 Pentagon Papers decision (which held that the government had not met its "heavy burden of showing justification" for a prior restraint on the press), "the Supreme Court, for the first time in American history, stood tall - in wartime - for the First Amendment." That case was only one in a series of Vietnam-era decisions in which the court suggested its understanding, in Mr. Stone's words, "that dissent is easily chilled, that government often acts out of intolerance when it suppresses dissent, and that it is essential to protect speech at the margin."

Read the entire review.

Posted by Tom at November 5, 2004 7:58 AM |


The problem is that in the past, we've had wars against well-defined enemies that ended. The "war" we're in now is an entirely different animal; it's not a war with any other nation (except maybe almost all of them); it's on ongoing security exercise.

A handful of people can be a credible enemy is this "war." How does it end? When does it end? Too many of us suspect that it's a 1984-like ongoing activity that will lead to more permanent changes in our society.

Incidently, I put "war" in quotation marks not to minimize the reality of the threats we face, but to suggest that "war" is not the right word for it.

Posted by: John at November 5, 2004 1:11 PM

Well, I agree that the Bush Administration has not done a particularly good job of defining the current war. However, I think it is clear that the war is against radical Islamic fascism and those states that support it. Although different from previous wars against nation-states, this conflict has distinct similarities with past wars in terms of the effect on civil liberties. Ethnic infiltration and subversion has been a valid domestic national security concern in each of America's major military conflicts of the 20th century, and it remains so today in this conflict. Indeed, my sense is that a good case can be made that the government is dealing better with inevitable erosion of civil liberties during this conflict than it did during any of the major conflicts of the 20th century.

Posted by: Tom K. at November 5, 2004 1:33 PM

No disagreement, but it is difficult to see how this one ends. As much grief as Kerry got for his "reducing terrorism to a nuisance" comment, Bush pretty much said the same thing when he slipped up and said that the war could not be won.

Terrorism has been around a long time (measured in centuries) though we've been happily remote from it here in the US. If we defeat a few state sponsors of radical Islamic terrorism and thus weaken those groups, it's likely that others will pop up - or terrorists with some other cause will appear. Then what?

It would be interesting if the administration attempted to define what a successful outcome for the war on terror would be - what are the specific conditions? and how far are we from them? And at that point, do we relax some of the incursions into civil liberties? I'm not sure anyone in the administration has even figured that out for themselves.

As a side note, most of my extended family lives in Northern Ireland, and thus have experienced some level of terrorism for a very long time (all their lives for those under 40). I suspect that's what our future looks like. It's worth noting, if that sounds horrible, that as awful as "the troubles" have been, it's a lower death toll than crime in a typical American city. But it does mean that terrorism never goes away.

Posted by: John at November 8, 2004 7:24 PM

I think you make a valid point in that the Bush Administration has poorly defined the war as one against "terrorism" as opposed to what it really is against -- radical Islamic fascism. I also concede that an ambiguous "war against terrorism" would be impossible to win, particularly when a freedom fighter's war against an oppressor is another man's terrorism. However, I do not concede that the war against radical Islamic fascism is impossible to define or win. The U.S. military and diplomatic progress on several fronts over the past three years has been encouraging, although much work remains to be completed.

Posted by: Tom K. at November 9, 2004 11:06 AM

Post a comment

Thanks for signing in, . Now you can comment. (sign out)

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)

Remember me?

© 2003 - 2015. Tom Kirkendall. All Rights Reserved.