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The War on Terror: A War on Civil Liberties, Too?

Is the War on Terror inadvertently a war on civil liberties? Many people are asking that question, including Geoffrey Stone, the Harry Kalven Jr. Distinguished Service Professor of Law at the University of Chicago. But neither the question nor the circumstances leading people to ask it are new, says Stone. Several times in the history of the United States, the country has curtailed civil liberties, concentrated power in the executive branch of government and later regretted both. This pattern, he asserts, is predictable, yet there may be new reason to worry.

Invited by University President Lee C. Bollinger to deliver the first in a series of Presidential Lectures, Stone discussed themes from his new book, Perilous Times: Free Speech in Wartime. The book analyzes the conflicts between civil liberties and national security during times of war.

During the course of his lecture, Stone makes a convincing case for his theory. The current crisis of the War on Terror, the Patriot Act and the Abu Ghraib prison abuse scandal are markers along a road well traveled throughout U.S. history.

In 1798, the U.S. was under threat of war with France . Federalist-controlled Congress passed four laws known collectively as the Alien and Sedition Acts, meant to empower the government to identify enemies and punish them. Less well known at the time was that the acts were also intended to halt the growth of the Republican Party. One of the laws, the Sedition Act, made it a crime to write, publish or say anything "false, scandalous and malicious" against the government or government officials and was a direct violation of the First Amendment. The Alien Act and the Alien Enemies Act curbed the rights of immigrants, who were largely Republican, by extending the length of time necessary to be eligible for citizenship and authorizing the president to deport anyone considered "dangerous."

Undeterred, critics of the government and the new acts continued to write, publish and say things the government deemed malicious. Newspaper editors who defiantly printed critiques of the acts were tried for sedition and convicted. But the editors were all later pardoned by Republican President Thomas Jefferson, who was elected in 1800 after voters' public outcry over the sedition trials and the deportation of only one non-citizen. The acts were either allowed to expire or were repealed by 1802.

During the Civil War, the suspension of the Writ of Habeas Corpus -- which required the government to justify in court a person's confinement-was the beginning of the repetition of a now -- familiar pattern, Stone says. Threat of war, a fearful public, suspension of judicial review and an empowered executive branch: The U.S., Stone contends, trod the path again during World War II, the war in Vietnam and currently in the War on Terror.

During each of these times, the public was encouraged to fear its fellow citizens and power was stripped from the judicial branch of the government. "The truth," says Stone, "is that although dissent in wartime can easily be seen as the highest form of patriotism... it is also true that dissent in wartime can readily be cast as disloyal." This, he contends, is the greatest threat to democracy and our safety: the erosion of civil liberties.

What Stone finds troublesome about the current turn of events, is that laws such as the Patriot Act -- and the War on Terror of which it is a part -- are open-ended with no expiration date, unlike past rulings, which were created with a finite time frame.

Following Stone's presentation, Bollinger led a panel discussion of distinguished scholars and attorneys: Floyd Abrams, the William J. Brennan Jr. Visiting Professor of First Amendment Issues; Nancy Chang, senior litigation attorney at the Center for Constitutional Rights; and Mary Jo White, an attorney with Debevoise & Plimpton L.L.P. and former United States attorney who prosecuted a number of prominent terrorism cases.

The panel explored whether the fight to preserve freedom and defend democracy globally was instead imperiling both at home. They also considered the notion that the temporary suppression of free speech would become permanent and debated the role and responsibility of the media, Congress, the courts and other institutions in preparing citizens for war.

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Published: Dec 29, 2004
Last modified: Jan 10, 2005

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