Limiting Rights in Times of Crisis: Our Civil War Experience - A History Lesson for a Post-9-11 America

• Author: Paul Finkelman
• Position: Professor of Law, University of Tulsa College of Law
• Pages: 25-48

Paul Finkelman - Chapman Distinguished Professor of Law, University of Tulsa College of Law. I would like to thank my research assistant Tracy Kort Roesle for help on this article.

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"We live in dangerous times." This is often the plea of governments and government officials seeking to restrain the civil liberties and civil rights of citizens and resident aliens. Totalitarian states have often used such claims to repress large numbers of people, sending millions to gulags, concentration camps, death camps, and killing fields. Throughout the twentieth century, hundreds of thousandsif not millions- were victims of summary executions, sometimes after trials, but just as often without even the charade of a legal process. Millions more were murdered, pure and simple, because of their ethnicity, political views, or merely because the state believed they were a threat. "Dangerous times" called for drastic measures.

Residents of the United States, both citizens and aliens, have been more fortunate. Wholesale executions of civilians or the execution or killing of captured enemies has been rarely, if ever, an aspect of official national policy.¹ Mass incarcerations have been rare; even in the worst of times, courts have usually been accessible to those whose liberties have been threatened by the state,² even if those appeals have only occasionally been successful.³

It is also clear that there are periods of truly "dangerous times"-or at least "dangerous moments"-when extraordinary measures may be necessary to protect people or even secure the nation. Indeed, the United States Constitution itself provides for the suspension of habeas Page26 corpus under certain circumstances,⁴ and throughout our nation's history there have been moments-usually very brief moments-when the normal rights of citizens were legitimately suspended for the common good, such as after an earthquake or other natural disaster.

In the wake of the attack of September 11, 2001, on the United States by Islamic terrorists, Americans have had to think hard about the meaning of civil liberties in times of crisis. The USA PATRIOT Act⁵ clearly threatens traditional civil liberties and, if misused, could lead to severe deprivations of fundamental rights for anyone unlucky enough to be perceived as a threat by the Department of Justice. Muslim Americans, aliens from the Middle East and South Asia, and others who "look like" Middle Easterners and South Asians have complained about profile searches, extra scrutiny at airports, arrests without probable cause, being stopped on the highways, lengthy interrogations by federal officials, and overly aggressive enforcement of immigration laws. To some extent, the United States has seen the development of a parallel to the problem of "driving while black." We now have a phenomenon which might be called "traveling or residing while swarthy."

In the post-September llth world, Americans must rethink the meaning of civil liberties in a free country. Has this new reign of terrorism fundamentally undermined the possibility of a "free" society, or has it merely forced us to accept some inconveniences? Whatever the answer to this question is, we must develop new and more carefully articulated and thought-out procedures for stopping and searching people in this new "war on terrorism." To remain a free society we must emphati-cally reject race, religion, dress, ethnicity, and appearance as legitimate criteria to trigger a stop, investigation, or search. Something more must trigger such investigations, or we will have reverted to a police state. Indeed, some sort of "Terry" search criteria⁶ must be developed, either by the legislature or the courts, to protect society from both terrorists and from becoming a police state.

As we begin the process of learning how to balance security and liberty in an age of global terrorism, it is important to understand the Page27 ways in which claims of "necessity" or assertions of "dangerous times" have been used and misused in the past. There are critical lessons we can learn from the history of the nation in crisis times. Most importantly, we must be aware of the ways that we have unfortunately allowed racial and ethnic prejudice to undermine civil liberties, civil rights, and due process in times of crisis. These lessons and this knowledge can help us from repeating past mistakes.

ILegitimate Restrictions on Liberty

Before examining how the United States has responded to threats in times of crisis, it is useful to spend a moment examining when it might be appropriate to restrict basic liberties. At some times, and in response to some emergencies, it is clearly reasonable to infringe upon some basic liberties. There may even be times when the military can arrest civilians if they violate orders given by the police or the military. At some times the necessity of limitations on mobility and movement seems obvious. After an earthquake, for instance, the police or the National Guard often seal off streets and roads and prevent even residents from entering the area. If someone enters the quake zone, the military may stop and restrain that person. Officials might allow a resident to return to his or her home in a quake zone, but refuse to allow a nonresident to pass through a barricade. Or those in charge might prevent anyone from entering the danger zone. Similarly, fires, floods, train wrecks, toxic leaks, and the like can ciose down neighborhoods or even threaten whole cities. Under such circumstances it is not unusual for the National Guard, the police, members of the fire department, or forest service personnel to stop people or arrest them if they disobey orders to leave or avoid restricted areas.

Similarly, there can be mobility restrictions at the scene of a crime. Officials protect evidence by preventing people from walking over the crime scene, and it would not be inappropriate to stop, and, if necessary, arrest someone for crossing the barrier where a crime is being investigated.

In the wake of civil disorder or civil violence, we have also come to expect limitations on liberty and have come to live with them. For example, the riots in the 1960s and the Los Angeles riots after the Rodney King incident led police, the National Guard, and, in some cases, the army, to restrain civilians. In some instances we would wish that the military and police would act with more care and less force, but that is a Page28 different issue from the theoretical idea that the police or military may be able to restrain or even arrest civilians in the wake of a crisis. After terrorist attacks like the bombing of the World Trade Center, we understand that it is appropriate for government agencies such as the National Guard, the police, or army to seal off an area. Restrictions during war-time are also something that we understand: military bases may be shut off and people may not be allowed to go to certain places. For example, during World War II, the government restricted economic activity, required that lights in cities be shut off at night, and restricted movement of civilians in certain places.

Restrictions such as these do not necessarily constitute a denial of fundamental liberties. People arrested under these circumstances need not be denied a fair trial, basic due process, or the right to counsel. They might be arrested for violating some law (such as crossing a police line) but they would go through the normal legal process. Obviously, on the day of September 11, 2001, and in its immediate aftermath, heightened security was reasonable and necessary, even though no war had been declared and no "enemy" had been clearly defined.

The suspension of habeas corpus, during which a person arrested might not be charged with any particular crime and might not be tried immediately, can only occur within the United States⁷ under certain explicit circumstances. The most extreme prosecution, a treason prosecution, can similarly only occur during a warusually a declared war. With one exceptionthat of a civil war or armed insurrection to overthrow the governmentit is hard to imagine that one could be legally prosecuted for giving "aid and comfort" to an enemy when the United States is not formally at war.⁸ However, the very idea of a declared war may be itself outmoded.

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Although the United States has fought scores of conflicts and wars, the nation has rarely "declared war." Indeed, it is often hard to tell the difference between the declared wars and the undeclared wars. In reality, most of the military conflicts have been conducted without a formal declaration of war. Since 1787, as best I can tell, there have been five declared wars: the War of 1812 (1812-1815), the Mexican War (1846-47), the Spanish-American War (1898), World War I (1917-1918) and World War II (1941-45). But most of wars have, in fact, not been declared. The United States fought the "phony war" with France in the 1790s without a declaration. At various times the United States has invaded or fought in Nicaragua, Haiti, Panama, the Dominican Republic, Lebanon, Mexico, Grenada, and the Philippines without a declaration of war. The "Barbary War" gave a line to the Marine's Hymn ("to the shores of Tripoli,") but the Marines and the Navy were there on orders of the President and not through a Congressional declaration. The United States fought innumerable Indian Wars, which often ended in treaties but began without a formal declaration of war. There were two Seminole Wars, a savage war against the Creek Indians,⁹ and many wars against the Sioux and other Native Americans, all fought without a formal declaration of war. The government...