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."- Attorney General Gonzales before the Judiciary committee 2/6

By  Ron Fullwood

02/07/06 "ICH" -- -- 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 constitutional right."

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 speech."

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 antiwar leaflets.

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 with success."

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 'incitement test."

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 fundamental."

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 despise."


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 assailants.

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 statement.

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 men."

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 overthrown?"

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 in wartime.

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.

 Ron Fullwood,  bigtree_75@msn.com  is 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'