Homeland Security: The Sworn Duty of Public Officials The United States has a unique position amongst the countries of the world;...
Friday, May 6, 2016
The Overreaction Cycle in American Security History Lecture/Discussion
The Overreaction Cycle in American Security History
Inter arma silent leges
Reaction and overreaction come into play when the balance between liberty (personal rights) and security (public safety) is not defined clearly in legal terms (or when clear legal boundaries are not enforced). In America, this balance goes to the heart of what is Constitutional, and what is not. We will go into a full discussion of this balance and its Constitutional interpretations later in the term, but for now, it is necessary to understand that reactions to homeland security events cycle in response to politics. America is not the only country in which a pattern of reaction and overreaction take place. Also, consider that overreaction can be in terms that weaken security as well as in terms that weaken liberty. As we discuss these reactions, we will see that there were security reasons to justify action; whether or not all the actions taken were in line with the security-liberty balance is another question. Therefore, we will address the reactions chronologically with the overreactions, and leave the floor open as to which actions were overreactions.
1878 - The Alien and Sedition Acts were four distinct laws, enacted in anticipation for war with France. Although the laws were enacted for security, the laws were used by the party in power, the Federalists, to attack the Jefferson Republican Party, also known the Democratic-Republicans (Restrictions on Civil Liberties, 2005). According to Supreme Court Justice Brennan (1987), enforcement of the Sedition Act led to at least 25 arrests, 15 indictments, and 10 convictions, which were all against Democratic-Republicans, including sitting elected officials and journalists. Both parties had a specific view of what the American republic was and felt that the other party was a national security threat (Garrison, 2009). The Alien Enemies Acts, one of the four laws, remained in effect at the outset of World War I and was rewritten to be part of national security law (50 USC 21-24). None of the laws were challenged in the Supreme Court, and the Jefferson Republicans used the enforcement of these laws as an election issue. The Sedition Act expired before the Federalists were voted out of office en mass in 1800. Krafter (2010) suggests that Federalist use of these acts to silence opposition ended the party as voters took exception to these methods. Note that zero Frenchmen or potential French saboteurs were arrested under these acts.
1861 - The Civil War led to the suspension of habeus corpus and the use of military tribunals. President Lincoln had already suspended the writ of habeas corpus prior to the act of Congress that legitimized his actions (Fairman 2009). At least 20,000 people were arrested under these conditions (Brennan, 1987). These include people arrested for acts of sabotage, and those simply suspected of sabotage.
1870 - Ku Klux Klan terrorism against black Americans leads to the creation of the Justice Department as Congress passes the Enforcement Act of 1870 (Jeffreys-Jones, 2007). This anti-Klan effort became "America's first federal anti-terrorist intelligence program" (Jeffreys-Jones, 2007). However, there was no policing agency assigned to the Justice Department, and Congress refused to establish such in fear of creating an "American secret police" (Weiner, 2012).
1917 - Even prior to America's entry into World War I, German agents had been assigned to perform sabotage operation in the United States. At this time, there were no federal laws regarding espionage or sabotage (Rafalko, 2011). This spawned the enactment of the Espionage Act and of the Sedition Act. 900 people were arrested under the Espionage Act, including anti-war activists and leftists (Restrictions on Civil Liberties, 2005). The Sedition Act included the act of "disloyal" speech. The Justice Department cooperated with the American Protective League (APL), a private organization, to track violators. Theoharis (2004) notes that American politicians became concerned with the "growth of militant anarchist and socialist movements” (leftists) at this time.
1919 – The "Red Scare" evolved out of these concerns, which were justified by a series of bombings by leftist groups, including a bombing attack on Attorney General Palmer. The bombings occurred against a background of labor dispute (sometimes violent), race riots across the country, and the communist revolution in Russia. Palmer initiated a series of raids directed at leftist organizations including the Socialist Party. In particular, the raids targeted aliens belonging to these groups (Cohen, 2003). Palmer intended to deport them as he considered this option his only legal means of dealing with a communist conspiracy (Palmer, 1920). 600 aliens were deported.
1934 – As Europe watches growth in the strength of sister ideologies National Socialism and communism, American politicians also take note. Roosevelt directs the FBI to become the lead agency in domestic security. Roosevelt targeted the FBI at the Nazis in 1934, and to target the “subversive activities” of both Nazis and Communists in 1936 (O’Reilly, 1982). Roosevelt also required the agency's use as a secret police, as "by 1935 the White House had begun to solicit bureau reports on the president's critics" as well (O’Reilly, 1982). The House Un-American Activities Committee is formed to investigate possible citizen ties to the Nazis, and later started looking into possible communist activity (in 1969, the committee's name was changed to the "House Committee on Internal Security”).
1942 – The war that Americans knew was coming arrives. In arguably the greatest civil liberty violation in American history, Roosevelt orders the internment of over 100,000 residents of Japanese origin. At least 60,000 of these folks were American citizens. The authorization of this act wass via Executive Order 9066. In 1943, the Supreme Court ruled in Hirabayashi v. United States that the use of curfew against members of a minority group is constitutional when America is at war with the country of their origination. Approximately 1880 Italian nationals (not citizens), and 11,000 Germans (including a few American citizens, but primarily German nationals) were also detained. The vast majority of citizens of German and Italian descent were not detained.
The Cold War – America began the Cold War with a national will to fight communism. Truman formalizes the FBI mission to fight subversive groups, in particular Communism; however, subversion is never specifically defined (Keller, 1989). The McCarran Act (The Internal Security Act) was passed in 1950. Three events change the national mood from 1946 to 1976: a shifting in judicial opinion towards privacy rights in regards to wiretapping, the debacle of Joseph McCarthy, and revelations of government excesses and abuses under the national security banner.
We will discuss the last two in relation to our subject. The COINTELPRO (an acronym for ”counter intelligence program”) programs were targeted at various subversive groups including the Communist Party, The Socialist Worker’s Party, the Ku Klux Klan, New Left groups, and the Black Panthers. Each COINTELPRO program was started after a request by the President for specific action against a group, starting with Truman.
Throughout the 1950s, the FBI assessed that COINTELPRO operations against CPUSA and the SWP were successful, however, the forces of politics began tearing holes in the national consensus. The biggest driver of this degradation consensus was a Senator by the name of Joseph McCarthy. McCarthy used the issue of anti-Communism as a platform for self-aggrandizement, and made many charges which he could not verify. While later revelations from Soviet archives and declassification of VENONA intercepts have proven that the Soviets did indeed have American traitors in government working for them, McCarthy’s reckless and unproven attacks resulted in a backlash of public opinion against him and against the idea of anti-communism of which he had made himself the public face. Klehr (2005) notes that “McCarthy’s allegations marginalized the accurate claims”.
Riots and violent campus takeovers through the 1960s gave incoming President Nixon the impression that FBI efforts were not enough. In addition, Nixon considered that anti-war movement as a whole to be a threat, not just the New Left elements; when FBI director Hoover did not cooperate with Nixon’s goals in addressing the anti-war movement (see the Huston Plan), Nixon called on other government agencies (Sullivan, 1979). The CIA and the Army conducted Operation CHAOS.
Summary - An initial overreaction to security concerns can lead to abuses of liberty that lead to a curtailment of the ability of security agencies to perform their function that lead to a spectacular failure that once again result in overreaction. One example of this involves COINTELPRO. The Nixon administration felt that anti-war protestors as a whole were subversive, and that FBI efforts (including NEW LEFT) were not enough. The White House then developed the Huston Plan targeted at the anti-war movement (which was not completely a New Left action, although New Left members often led segments of the anti-war movement). The methods used under this plan were clearly illegal, and the public was made aware of these abuses at roughly the same time as other programs such as the COINTELPRO operations were exposed. The Church Committee was the catalyst for overreaction in the restriction of security agencies. Powers (2004) contends that the reforms that were born as a result of that overreaction caused a hesitation to act in FBI agents that may have been a factor in the intelligence failure to anticipate the 9/11 attacks. In the "Homeland Security" reforms that were a response to those attacks, the PATRIOT ACT was composed. We see the wheel make the complete turn as the mass surveillance of the public in general by the NSA was justified on the basis of the PATRIOT ACT.
We will go into more detail regarding security failures that led to 9/11 later in the term.
Which of these acts are overreactions? Did the overreactions lead to a loss of liberty or a loss of security? Which of these actions resulted in abuse of political power?
Brennan, W. (1987, December 22). The quest to develop a jurisprudence of civil liberties in times of security crises. Law School of Hebrew University, Jerusalem, Israel.
Cohen. (2003). The (un)favorable judgment of history: deportation hearings, the Palmer raids, and the meaning of history. New York University Law Review, 78(1431).
Fairman, M.D. (2009). The restriction of civil liberties during times of crisis: the evolution of America's response to national military threats. Government Honors Papers. Paper 7. http://digitalcommons.conncoll.edu/govhp/7
Garrison, A. H. (2009). The Internal Security Acts of 1798: The Founding Generation and the Judiciary during America’s First National Security Crisis. Journal of Supreme Court History, 34(1), 1–27. http://doi.org/10.1111/j.1540-5818.2009.01196.x
Hirabayashi v. United States. (1943). Oyez. Retrieved May 6, 2016, from https://www.oyez.org/cases/1940-1955/320us81
Keller, W. W. (1989). The liberals and J. Edgar Hoover: Rise and fall of a domestic intelligence state. Princeton, N.J: Princeton University Press.
Klafter, C. (2010, April 20). Sedition and the end of America’s first political party [Text]. Retrieved May 6, 2016, from http://spectator.org/articles/39727/sedition-and-end-americas-first-political-party
Klehr, H. (2005). Harvey Klehr talks in Raleigh: was Joe McCarthy right? Presented at the Raleigh Spy Conference. Retrieved from http://www.raleighspyconference.com/docs/joe_mccarthy_klehr.pdf
Jeffreys-Jones, R. (2007). The FBI: a history. New Haven: Yale University Press.
Palmer, A. (1920, February). The case against the “Reds.” The Forum, 63. Retrieved from https://www.marxists.org/history/usa/government/fbi/1920/0200-palmer-redscase.pdf
Powers, R. G. (2004). A bomb with a long fuse. American History, 39(5), 42–47.
O’Reilly, K. (1982). A New Deal for the FBI: The Roosevelt Administration, crime control, and national security. The Journal of American History, 69(3), 638–658. http://doi.org/10.2307/1903141
Rafalko, F. (Ed.). (2011). A Counterintelligence Reader, Volume I: American Revolution to World War II. National Counterintelligence Center.
Restrictions on Civil Liberties History of U.S. Policy. (2005). Congressional Digest, 84(7), 194–195.
Sullivan, W. C. (1979). The Bureau: my thirty years in Hoover’s FBI (1st ed). New York: Norton.
Theoharis, A. G. (2004). The FBI & American democracy: a brief critical history. Lawrence: University Press of Kansas.
Weiner, T. (2013). Enemies: a history of the FBI. New York: Random House.