Wartime Presidents and free speech

How Does President Bush Compare with Other Wartime Presidents With Respect to Free Speech Issues? -- by John W. Dean

Lately, the Bush Administration has been talking of using the Espionage Act of 1917 to prosecute the New York Times and the Washington Post . Yet these veteran newspapers' "crimes" consist merely of publishing Pulitzer-Prize-winning articles on the CIA's secret prisons, and the NSA's secret surveillance programs.

Not even Nixon sank so low. He might have initiated criminal prosecutions against the Times for printing the Pentagon Papers, yet did not.

And in other respects, the Bush Administration makes Nixon look like a piker when it comes to free speech, as well as other civil liberties issues: Its electronic surveillance of American citizens has been done in utter defiance of the law.

Does the "war on terror" justify the Administration's incursions on civil liberties? Putting this Administration's actions in historical perspective suggests the answer is a resounding no.

Drawing on Professor Geoffrey Stone's Work on Wartime Presidents

Opportunistic president have, from our founding, exploited public fears during wartime for their political advantage. Yet other presidents have recognized the dangers to civil liberties in time of war.

In 2004, University of Chicago law professor (and former dean) Geoffrey Stone published his timely and telling study Perilous Times: Free Speech in Wartime from the Sedition Act of 1789 to the War on Terror . Stone's work traced the general pattern of repressive action undertaken against civil liberties by the United States government in six periods of American history, so-called "perilous times."

Professor Stone called attention to widely recognized and acknowledged mistakes of the past because he could see that the emerging pattern in the current war against terror was ignoring history. The so-called Patriot Act, for example, was the first sign that America was about to repeat its "long and unfortunate history of overreacting to the dangers of wartime." Stone, obviously, was hopeful that history would not repeat itself.

It turned out, however, that the Patriot Act was the proverbial tip of the iceberg. History, of course, never repeats itself exactly. But what does occur is that patterns of behavior are repeated.

In his 800-page work, Professor's Stone addressed President John Adams's use of the Sedition Act of 1789; Abraham Lincoln's command during the Civil War; Woodrow Wilson's suppression of dissent relating to World War One; Franklin Roosevelt's forcible internment of 120,000 Americans of Japanese descent; the Cold War loyalty hysteria of Senator Joe McCarthy and the House Un-American Activities Committee; and Nixon's suppression of anti-war criticism and protests.

Stone's work strongly suggests that history's mistakes are only being repeated now, in different guises.

President Adams, War with France , and the Sedition Act

When war with France loomed on the horizon in 1789, public fear was widespread. But so was public criticism of going to war with France. Congress played on public fears and enacted the Sedition Act of 1789, making it a crime to utter or publish "false, scandalous, and malicious" statements against the federal government, including Congress or the President. President John Adams, in turn, signed the law and prosecuted Americans under it. (President Jefferson later pardoned those who were convicted.)

Adams's biographer, David McCullough, acknowledges that "fear of the enemy within" provoked the action, which President Adams insisted was a "war measure" - even though there was no war. McCullough observes that the law was "clearly a violation of the First Amendment," and Adams well knew it, since his secretary of state, Thomas Jefferson, so advised him.

More to the point, McCullough says that the ulterior motive underlying the seditious libel law was the Federalist president and his Congressional supporters' desire to stifle their political opposition with the law, which they did.

Lincoln 's Command during the Civil War

The actions of President Abraham Lincoln, Commander-in-Chief of Union forces in the most calamitous war ever in America, have frequently been cited by later presidents (like Franklin Roosevelt, Richard Nixon, and George W. Bush) as providing good authority for trampling civil liberties in wartime. In fact, few of these later presidents truly paid heed to the precedents Lincoln actually set.

For example, consider Lincoln's famous decision to suspend the writ of habeas corpus. Lincoln made this decision in response to specific threats: He sought to address the widespread fear that Maryland was going to leave the Union, and knew that riots and disorder threatened troop movements to Washington, DC through Maryland. The result of his action was to prevent the judiciary from reviewing the arrest and imprisonment of individuals by the military.

In addition, while Lincoln initially acted unilaterally, he did not do so for long: He subsequently called a special session of Congress, which ratified his actions. It is hard even to imagine President Bush asking for this kind of ratification from Congress - the very Congress whose specific statutes he bypassed, and whose members he largely kept ignorant - with respect to the NSA surveillance program.

Lincoln's successors also draw on the more general precedent of Lincoln's aggressive prosecution of the war against the Confederacy, which knew few bounds. But in so doing, they utterly fail to recognize his sensitivity to civil liberties.

For instance, in May 1863, with the war well underway, General Ambrose Burnside, who commanded the Department of Ohio, ordered the arrest of Clement Vallandingham, a vocal opponent of Lincoln's. Vallandingham had publicly criticized the President, his Emancipation Proclamation, the military draft, and the war itself, encouraging soldiers to desert the Union forces to "hurl King Lincoln from his throne." When the Chicago Times added its own inflammatory coverage, Burnside shut down the newspaper as well. However, Lincoln biographer Doris Kearns Goodwin reports that Lincoln, rather than supporting Burnside's activities, was deeply troubled, and raised the matter with his Cabinet.

Secretary of War William Seward (Lincoln's Rumsfeld) -- believed by many historians to be the person who convinced Lincoln to suspend habeas corpus - was shrewd enough to realize the arbitrary arrests to suppress dissent had gone too far, and he told the Cabinet so. In the end, the Cabinet unanimously agreed that Vallandingham's arrest had been improper. (Rather than undercut his general's authority, Lincoln simply exiled Vallandingham from the Union, sending him to live within the Confederacy.)

Goodwin also reports that when Lincoln was asked to support closing down the Chicago Times , he rejected the idea. He explained that those behind the idea did "not fully comprehend the dangers of abridging the liberties of the people. Nothing but the very sternest necessity can ever justify it. A government had better go to the very extreme of toleration, than to do aught that could be construed into an interference with, or to jeopardize in any degree, the common rights of its citizens."

In sum, if one looks to Lincoln's entire tenure as war president, one sees that he demonstrated sensitivity to civil liberties that the Bush/Cheney Administration sorely lacks.

Roosevelt 's Infamous Internment of Japanese Americans

During World War Two, public fear of domestic sabotage resulted in the federal government's forcibly imprisoning 120,000 people of Japanese descent, many of them American citizens, merely because of their ancestry. Even President Roosevelt's most admiring biographers, like Conrad Black, have nothing favorable to say about this despicable undertaking.

In fact, the conservative Lord Black delights in reciting the list of liberals whose legacy has been tainted by this horrendous action. For example, Walter Lippman led the "mindless clamoring" against the Japanese Americans; Earl Warren, then attorney general of California and later, of course, Chief Justice of the United States, "called publicly upon the War Department to round up the Japanese Americans." Justice Felix Frankfurter told Assistant Secretary of War John J. McCloy, who was handling the roundup, that he was handling it with "both wisdom and appropriate hardheadedness." And FDR himself had no interest in hearing the qualms of his attorney general, Francis Biddle, who buckled, nor those of his wife Eleanor, who was shunted aside; both Biddle and Eleanor had grave misgivings about the action.

Ironically, J. Edgar Hoover, who was then in his seventeenth year (of forty-eight) as director of the FBI, actively opposed the round-up of Japanese Americans. Hoover argued if there was sabotage by Japanese Americans it could, and should, be handled on a case by case basis, when there was probable cause to take action, and with appropriate judicial processes. He was overruled - and of course, went on to establish himself as the country's foremost boogeyman when it came to civil liberties.

Today, the United States government is still apologizing (and paying reparations) for this overreaction to the threat against the nation.

The Cold War Overreaction to Communism

The early years of the Cold War are known, Stone notes, as "one of the most repressive periods of American history." This was an era when criticism was stifled, rigid loyalty oath programs were imposed, invasive (and unfair) Congressional inquiries were conducted, and leaders and members of the United States Communist Party were prosecuted even though they posed no threat whatsoever to national security.

These were the days when Wisconsin Senator Joseph McCarthy and the House Un-American Activities Committee, along with a later edition of J. Edgar Hoover, shamelessly fear-mongered the nation into anti-communism hysteria. Communism purportedly threatened to take over the nation from within. It was a baseless concern.

Yet promoting this outsized fear of communism elevated the careers of a host of demagogues - and none more than that of Richard Nixon. Because fear-mongering and disregard of personal liberty worked for him as a young Congressman, he would later employ these tactics again as President.

Nixon's Quelling of Anti-War Dissent

Nixon won the presidency claiming he had a "secret plan" to end the war in Vietnam. But the real secret was that there was no such plan.

Nixon, who saw himself as a wartime president, believed his national security plans and policies - whatever he determined they would be -- should be unfettered. He wanted to end the war honorably - without appeasing the communists.

When dissent - in the form of leaks and public protests - threatened Nixon's policies, he wiretapped newsmen who reported leaked stories, as well as those among his White House staff whom he suspected of leaking. He also made it as difficult as possible for demonstrators to protest the war, particularly in Washington DC, and approved of arresting countless thousands of them when they did so; he wanted demonstrators quelled with tear gas, billy-clubs and even bullets if necessary (which resulted in the killings of students at Kent State).

Nixon also prosecuted Dan Ellsberg - whom he viewed much as he had communists of an earlier time -- when Ellsberg leaked the Pentagon Papers. And, of course, Nixon approved (after the fact) the break-in into Ellsberg's psychiatrist's office, seeking information to discredit him.

These were the hallmarks of Nixon's effort to prevent dissent against his policies.

Rather than quiet dissent, however, Nixon's tactics exacerbated it.

The reactions of his Administration only elevated the prominence of the debate about his policies. One can see the same dynamic occurring now - as the Bush Administration faces ever-sharper criticism, and Bush's approval ratings dip ever-lower.

This is the consistent lesson of repressive measures during wartime in America - they create their own blowback. They are counterproductive, and they cause more harm than good.

Yet so far, our presidents have failed to learn this lesson. With the exception of Lincoln, their legacy is less than exemplary, and Lincoln will never serve as a poster boy for the American Civil Liberties Union.

Professor Stone does not explain why presidents - and compliant Americans - ignore the mistakes of history. He does note that, in every instance when a president has taken such repressive actions, he has not made the nation noticeably safer. To the contrary, it has weakened the nation. That lesson is more relevant today than ever.

Bush and Cheney Are On Track To Outdo Their Rights-Infringing Predecessors

It's true that Bush and Cheney did not call for the arrest of Howard Dean in 2004, as Woodrow Wilson did with Eugene Debs during World War One - an analogy Stone offers to suggest some progress is being made. But as more and more comes out about what they have done, it is clear that they plan to outdo all their predecessors when it comes to dramatic infringements of civil liberties in the name of wartime necessity. Stone may have been premature in believing progress has been made. The facts suggest otherwise.

Rather than suspend habeas corpus, Bush and Cheney declare people "enemy combatants" and keep them out of the jurisdiction of federal courts. No one knows how many Arab Americans (or Middle Easterners) have been rounded up, but rather than create internment camps, they are deporting them, sending them to secret prisons, or turning them over to countries where civil liberties do not exist, in a process delicately known as "diplomatic rendition" but better described as "torture by proxy." .

More generally, Bush and Cheney have surely topped all their predecessors in their unbridled support for and use of torture. They have outdone all their predecessors, too, in their high-tech, relentless fear-mongering. In their claim of strengthening the presidency, they have shown they are cowards hiding behind the great power of the offices they hold, the prerogatives of which they are determined to abuse.

Professor Stone quotes Justice Louis Brandeis, who wrote "Those who won our independence … knew that … fear breeds repression and that courage is the secret of liberty." There is no such courage in the Bush and Cheney presidency.

(John W. Dean, a FindLaw columnist, is a former counsel to the President.)