Suppression and Liberty
"President Wilson in World War I authorized the military to
intercept each and every cable, telephone and telegraph
communication going into or out of the United States."-
Gonzales before the Judiciary
By Ron Fullwood
-- -- It's in keeping with the regressive character of this
administration that they would have the gall to throw Wilson's
repudiated actions against Americans during WWI at the wall of
opposition to their own warrantless spying on Americans, hoping
the revisionism would stick.
President Woodrow Wilson urged legislative action against those
who had "sought to bring the authority and 'good name' of the
Government into contempt." He worried in his declaration of
war, about "spies and criminal intrigues everywhere afoot"
which had filled "our unsuspecting communities and even our
offices of government."
During his presidency more than 2,000 American citizens were
jailed for protest, advocacy, and dissent, with the support of a
compliant Supreme Court.
The Wilson-era assaults on civil liberties; Schenck v. U.S.;
Frohwerk v. U.S.; Debs v. U.S, Abrams v. U.S., were ratified by
Supreme Court decisions which asserted that free speech in
wartime was a hindrance to the efforts of peace.
Justice Holmes, in upholding the 1919 Schnek case, in which
leaflets were distributed that expressed opposition to the
draft, wrote of the words of protest: "Their utterance will
not be endured so long as men fight" (referring to the war),
and that "no court could regard them as protected by any
Justices Brennan and Holmes wrote the majority opinion which was
phrased as the new "clear and present danger" test in which they
argued: "The question in every case is whether the words used
are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a
question of proximity and degree."
Justice Holmes said, "We think it necessary to add to what
has been said in Schenck v. United States . . . only that the
First Amendment while prohibiting legislation against free
speech as such cannot have been, and obviously was not, intended
to give immunity for every possible use of language. We venture
to believe that neither Hamilton nor Madison, nor any other
competent person then or later, ever supposed that to make
criminal the counseling of a murder within the jurisdiction of
Congress would be an unconstitutional interference with free
The Court wanted to draw a clear line between free speech and
harmful speech, but their reasoning was blunt The effect of the
ruling was a stifling of protest and dissent.
In the case of Frohwerk, the Supreme Court used the Schnek
decision to uphold the convictions of two newspaper workers for
publishing articles which condemned the war. The Schnek decision
was also used by the Supreme Court in 1919 to uphold the
conviction of Eugene Debs under the Espionage Act for giving a
public address condemning capitalism, advocating socialism, and
speaking in defense of those who had been imprisoned for
exercising their free speech rights. Similarly, in the case of
Abrams, the Supreme Court upheld the conviction for distributing
Eventually Holmes would move away from his ruling on Schnek in
his dissent in the Court's upholding of Abrams. Justice Holmes
worried in his minority opinion that, "A patriot might think
that we were wasting money on aeroplanes, or making more cannon
of a certain kind than we needed, and might advocate curtailment
In the 1917 case of Masses Publishing v Patten, at the beginning
of WWI, Masses Publishing had argued against the postmaster
general's refusal to allow the distribution of its journal which
attacked capitalism. Justice Learned Hand had ruled that the
draft violated the First Amendment. Hand said that, ". . .
the government may prosecute words that are "triggers to action"
but not words that are "keys of persuasion." A reversal
promptly followed his decision.
Not until 1969, would the Supreme Court unanimously abandon
Schnek standard to overturn the conviction in the case of
Brandenburg v. Ohio; in support of the free speech rights of a
member of the Ku Klux Klan. The Brandenburg ruling braided the
"clear and present danger" standard with Justice Hand's
A footnote for the majority opinion observes that, "Statutes
affecting the right of assembly, like those touching on freedom
of speech, must observe the established distinctions between
mere advocacy and incitement to imminent lawless action," for,
it stated, ". . . the right of peaceable assembly is a right
(related) to those of free speech and free press, and is equally
The reversal of the Klanman's conviction affirmed the principle
that the constitutional guarantees of free speech and free press
do not permit a State to forbid or proscribe advocacy of the use
of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action and is
likely to incite or produce such action.
The broad decision in Brandenburg gave future courts room for
the passage of the many protections of public expression and
advocacy which we rely on today in our dissent and protest. As
Justice Douglas wrote in 1958: "Advocacy that is no way
brigaded with action should always be protected by the First
Amendment. That protection should extend even to the actions we
Gonzales argued in the Judiciary hearing that, "Presidents
throughout our history have authorized the warrantless
surveillance of the enemy during wartime. And they have done so
in ways far more sweeping than the narrowly targeted terrorist
surveillance program authorized by President Bush."
That's actually the reason for the creation of the FISA court,
as a check on Executive authority. The FISA was sponsored in the
‘60's by Sen. Edward Kennedy and others in an attempt to reign
in warrantless surveillance by the government. It was a remedy
for abuses. Gonzales wants us to believe that the danger to
America now is so great that we should go back to the paranoia
and repression of earlier dark periods of our nation's history
and strike out at our citizens with the full weight of
government, with the hope of felling a handful of potential
So far, there have been no arrests of any terrorist as a result
of the special powers Bush granted himself after 9-11. Not one
terrorist has been arrested in the U.S. as a result of the
warrantless spying on Americans authorized by this
administration. Not that warrants would have necessarily made
their actions acceptable.
The FISA court and the Court of Review authorize government
wiretaps in foreign intelligence investigations. Under FISA, all
hearings and decisions are conducted in secret. The government
is normally the only party to FISA proceedings and the only
party that can appeal to the Supreme Court.
In an appeal of the FISA's authority the ACLU argued that,
"These fundamental issues should not be finally by courts that
sit in secret, do not ordinarily publish their decisions, and
allow only the government to appear before them."
The ACLU and its supporters have asserted that some of their
members and many other Americans are currently subject to
illegal surveillance, noting that the FBI has already targeted
its members in numerous other ways. Under the FISA statute, a
U.S. citizen may be subject to a FISA surveillance order for
political statements and views that are determined to be
unpopular by the secret Court of Review.
Gonzales also used the actions of President Lincoln to justify
his warrantless spying on Americans:
"President Lincoln used the warrantless wiretapping of
telegraph messages during the Civil War to discern the movements
and intentions of opposing troops." he counseled in his
President Lincoln spoke to the notion of divinity's mandate to
vigilance when he remarked on the violence of the abolitionist,
John Brown in his Cooper Union address. He said, "An
enthusiast broods over the oppression of a people till he
fancies himself commissioned by heaven to liberate them."
"Human action can be modified to some extent, but human
nature cannot be changed," he continued. "There is a judgment
and a feeling against slavery in this nation, which cast at
least a million and a half of votes. You cannot destroy that
judgment and feeling - that sentiment - by breaking up the
political organization which rallies around it."
Lincoln suffered for the success of his war at the point of a
terrorist's gun. It would be impossible to argue that he died
merely for the defense of territory. The surrender of the
southern army brought freedom for the majority of slaves. And,
no matter how we judge the immediate impact of Lincoln's
proclamation, the victory led to the emancipation and the
subsequent empowerment of Africans in America. But, Lincoln
believed that adherence to the principles of democracy would
distinguish any victory in a manner that would provide for the
durability of the Union and foster a national affirmation of the
rights of the individual.
"It was that," he said, "which gave promise that in
due time the weight would be lifted from the shoulders of all
Regrettably, Lincoln would later contradict that sentiment when
he set up a military tribunal and suspended the writ of habeas
corpus, imprisoning more than 13,000 southerners, who he
determined to be agitating unlawfully against the Union.
Although he first applied the suspension only to the succeeding
states which he regarded as an insurrection, he was rightly
condemned for the tyrannical use of the force of government to
stifle the opposition. He was wrong even though the suspension
was temporary, and most of his efforts were in response to the
sabotage of the railroads, and to counter those who were calling
for the desertion of his northern forces.
Lincoln's actions in suppressing the rights of the "enemy"
southerners reflected the attitudes of the more radical of his
supporters who regarded the ascension of their Republican party
in the southern statehouses as an inevitable political destiny
of the war. And so it is, in all military campaigns, that in the
pursuit of our ‘enemies,’ we become so convinced of the
rightness of our cause that we detach ourselves from the
consequences of the dehumanization of our opponents. When
opposing powers war, how do we distinguish between lawful
opposition and insurrection?
Lincoln addressed the question of the suspension of the
privilege of the writ in a July 4, 1861 message to a wary
Congress; clearly torn between defending against subversives who
advocated secession, and the application of the absolute power
of his Executive presidency.
"Of course," he wrote, "some consideration was given
to the questions of power and propriety, before this matter was
acted upon. Are all the laws, but one to go unexecuted, and the
government go to pieces, lest that one be violated? . . . would
not the official oath be broken, if the government be
Thomas Jefferson had no sympathy for a federal government which
had violated its compact with the governed. He wrote in
opposition to the Alien and Sedition laws that, ". . .
whensoever the general government assumes undelegated powers,
its acts are unauthoritative, void and of no effect."
Jefferson asserted that, "The several states composing the
United States of America are not united on the principle of
unlimited submission to their general government; but that, by
compact, under the style and title of the Constitution of the
United States, and of certain amendments thereto, they
constituted a general government for general purposes, delegated
to that government certain powers."
But Lincoln felt that the preservation of the confederation took
precedence over all else; noting that the Constitution was
conceived, not only to secure liberty, but to secure the
"formation of a more perfect Union"
However, a year after the war ended, the Supreme Court would
rule that Lincoln had exceeded his authority. And despite
Congress' acquiescence in its subsequent approval of Lincoln's
arbitrary actions in its passing of the Habeas Corpus bill of
1863, the court found that the president was not protected by
the constitution in his suspension of the citizen's rights, even
That opinion has not dissuaded presidents in the centuries
thereafter from using the power of government to mandate
loyalty, stifle opposition and imprison those they considered
enemies of the state. Now, it appears that this legacy of
imperial assumptions is being used as a limbo bar as this Bush
administration determines just how low they can go.
an activist from Columbia, Md. and the author of the book 'Power
of Mischief : Military Industry Executives are Making Bush
Policy and the Country is Paying the Price'