The Pendulum: Civil Liberties vs. Security
in Times of Crisis

By: Kinny Bagga

 

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Co-Researched by: Bryce Erickson, Jeffrey Allinson
“A distinguished jurist advises us to calm down about the probable
curtailing of some personal freedoms in the months ahead. As a nation
we've treated certain civil liberties as malleable, when necessary, from the
start.”- Richard Posner


Introduction
People can lose their lives in two ways when it comes to war. They can be killed or their way of life, their freedoms, can be taken from them. The United States has always pursued a delicate balance between security and freedom. In the context of this paper, ‘freedom’ will refer to the natural human rights as well as civil rights granted to persons through the US constitution, while the term ‘security’ refers to the threat from attack by rebellious groups. This paper will go to examine three distinct time periods of conflict in American history that have led the leaders and the public to disregard the very principles of sovereignty that are guaranteed in the US Constitution.
The idea of civil liberties, which is an important social value, is often conflicted with the need for security and ultimately often sacrificed. By examining historical events, society can learn from past mistakes and anticipate future circumstances alongside their preventative measures in times of crisis. The analysis of these events, in conjunction with the deontological ethical framework that focuses on the idea of duty and respect for individuals, opposes the idea of solely utilitarian responses. Although it is highly common for the US government to respond to crisis situations with a common-good approach, historical mistakes suggest that duty-based ethics should be the prominent consideration when responding to these events. This thesis is supported by the examination of ethics behind the suspension of the Writ of Habeas Corpus during the Civil War, the moral implications of interning Japanese Americans during World War II, and the impacts of new laws under the PATRIOT Act on the civil liberties of people today.
Background on the Civil War
The Civil War, a highly noted conflict in the 19th century, was a heated battle between the Northern Union and Southern Confederate states. The war ended in 1865 with a Union victory and southern rebellion. This time of conflict also contained a recognized government action in which Lincoln independently suspended the Writ of Habeas Corpus in 1861 with the aim of keeping the union together and preventing rebellious groups from separating. This writ was “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."1 More commonly, this was used to challenge the authority for imprisonment sentences and other forms of detention. This law showed a great amount of historical importance, as it was the only common law referenced in the original text of the US Constitution. The Writ is revealed in the US constitution under Article 1, Section 9, Clause 2, and states, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it”2. In addition, it is often associated with the due process clause in the Fifth Amendment that represents five liberties ratified to protect the public from government impulses.
Suspending the Writ of Habeas Corpus
During this time of chaos the US witnessed extreme forms of rebellion from groups. Such forms included riots, local militia actions, and the fear that Maryland would withdraw from the Union exposing the capital of Washington D.C. to surrounding hostile territory3. In response, Lincoln independently suspended the writ of Habeas Corpus, so as to create social peace and protect military operations by arresting and/or detaining groups who rebelled against the northern military. The result was the imprisonment of 13,535 citizens during the period of February 1862 to April 1865 as reported by the Commissionary General of prisoners4. In the early part of the Civil War, freedom from random arrests became a huge issue and this freedom was hardly granted to anybody who had opposing ideologies of separating from the Union. This was directly due to the fact that the majority of loyalists in the Union did not believe that secession was a constitutional right4. Due to ‘abnormal’ and extreme circumstances, President Lincoln claimed independent authority to maintain peace under one nation state by suspending the writ at his will in these times when social threat reached peaks. Legally, only the legislative branch, otherwise known to be Congress, had the right to suspend the Writ. Therefore, measures taken independently and conveniently by President Lincoln were completely unethical in terms of following guidelines that were thoughtfully established from social values.
At this point, the Union loyalists were supporters for Lincoln’s war policies and demanded public safety from attacks, invasions, and rebellions from those who disagreed with his political thoughts. It was believed that ‘traitors’ would use the cover of freedom of expression, liberty of the press, as well as the Writ of Habeas Corpus in order to successfully execute harmful plans against the Union. For that reason, freedom of speech was no longer tolerated in the face of rebellion. Government agencies controlled freedom of press so as to confiscate any controversial issues in newspapers and other publications, and military officials were given authority to abide by or suspend the Writ when needed4. Additionally, elected members of a state legislature were prevented from assembling and speaking on critical issues. Along with free speech and assembly, states' rights were crushed in this effort to preserve the Union.
The people of the Union States trusted the President’s actions all too much, as they were willing to give up some of their personal liberties that the President deemed necessary for peace and security from invasion or rebellion. It is, however, important to consider that Union loyalists were not the ones directly being affected by these restrictions. More so, it was the Confederate supporters who were directly affected. The reactions of detainees showed more and more intolerance of the injustices that were thrown upon them without cause. A prominent case that questioned and turned around the legality of the issue was the Merryman Case.
Chief Justice Taney in the case, ex parte Merryman decided that Lincoln’s suspension of the Writ of Habeas Corpus was unconstitutional as it pertains to legislative powers, and not executive powers. Taney further decided that it was unconstitutional for the president to delegate to military officers individual discretion to obey the judicial process5 as he himself had broken the very laws he’d sworn to ‘faithfully execute’. Taney’s view exposed him to public scrutiny, as supported by the quote from the New York Tribune, “The Chief Justice takes sides with traitors, throwing around them the sheltering protection of the ermine”6. Although the Chief Justice held that suspending the Writ of Habeas Corpus was unconstitutional, President Lincoln continued to suspend the Writ whenever he deemed necessary to fulfill his purpose of stopping rebellion. In fact, Lincoln thought it was far better to preserve the Union than to live up to its guarantees.
Because Lincoln had great control over the war agenda, it was only after his death and after the war in 1866 that the Supreme Court ruled in the case of ex parte Milligan that it was unconstitutional to hold citizens not associated with the military. This was supported by the assertion, “where the civil courts were open and functioning it was unconstitutional to suspend the writ of habeas corpus and to establish a system of military detentions and trials”6 concluding with the idea that governments should be of laws, not of men.
It is fairly evident that the Civil War is an example where the government, in order to satisfy a political ideology, neglected the balance of powers in times of crisis. Along with this, government officials approved/ordered the detention of many innocent civilians simply because they exercised an opposing viewpoint or showed ‘suspicion’ of doing so. Another theme that was prominent in the actions of the President directly was the interpretation of law. Although it was not explicitly written in the Constitution at the time, it was Lincoln’s duty to consult Congress before suspending such a significant part of the constitution explicitly placed under legislative powers. It was not the President’s duty or right to suspend the Writ of Habeas Corpus. For the preservation of the Union, however, he acted on his own political interest and found a loophole to do it.
Ethical Concern
Taking that into account, it is reasonably inferred that Lincoln took a Utilitarian standpoint when acting as he did, because he wanted one nation state and the greatest good, due to a larger population, would favor the Union states. Although utilitarian approach is a popular ethical standpoint to take when acting in the interest of a democratic nation state during a crisis, it is important to consider a social justice from a deontological standpoint because this country’s governing laws are set to limit the authority of the government by ensuring individual rights that are inherent in the Bill of Rights7 . These liberties were fought for throughout the history of the nation, representing highly regarded social values guaranteed by the US Constitution. Therefore, it is the duty of the government officials to uphold those values, especially in times of crisis when they are most sacrificed.
Under the deontological theory, a leader should stress the role of duty and respect for persons, even though it may not give high importance to the idea of social utility. Fulfilling his own political agenda at the expense of the country’s own citizens was unethical on part of Lincoln. He was elected to serve the people and ensure that laws under the constitution be faithfully executed under his ruling. Although Lincoln showed good leadership, taking the matter into his own hands without explicit permission showed a lack of reasoning and respect for the laws that were established for the people, by the people. It was reasonably expected that Lincoln be attacked for his actions as he was seen to attack the constitution.
After the Civil War ended, the people began to demand their freedoms back, and the suspension of the Habeas Corpus ended with the court case ex parte Milligan, which allowed the people that were being held in military custody to receive a trial in federal courts with impartial judges and juries.
Duty-based ethics focus more on fulfilling responsibility that is bestowed upon rather than to live by an explicit contract, which may only encourage morality. Lincoln did not act ethically as he did not value the individual autonomy and individual rights of the Southern citizens. Furthermore, he did not fulfill his duty as a lawful leader who respected his people, let alone the laws they helped form. Lincoln considered the incarcerated people as means to an end – an end to the war – and placed little validity in their individual autonomy and rights.
Background on World War II
The repeal of constitutional rights was again seen in a time of conflict nearly 80 years after the Civil War. Following the Japanese attack on Pearl Harbor in December 1941, the people of the United States became fearful and suspicious of anyone who could possibly attack the country again. This fear was especially strong along the Pacific coast where there were large populations of Japanese immigrants. “Leaders in California, Oregon, and Washington, demanded that the residents of Japanese ancestry be removed from their homes along the coast and relocated in isolated inland areas. As a result of this pressure, on February 19, 1942, President Roosevelt signed Executive Order 9066, which resulted in the forcible internment of 110,000 people of Japanese ancestry. More than two-thirds of those interned under the Executive Order were citizens of the United States, and none had ever shown any ‘disloyalty’8.
The Japanese-Americans had as little as 6 days notification to dispose of most of their property and possessions before they were transported, leaving them with minimum possessions and/or savings9. These are clear violations of the Fifth Amendment of the Constitution, but it was done for the supposed security of the country from these ‘enemy aliens’. However, the direct result of the order never proved to be a deterring factor. There was heavy impact that this order had through the attitudes of the time seen through Supreme Court cases that were introduced as a result.
The attitude of the time was that interning all Japanese was the most sensible thing to do for the security of America. The loyalty of the Japanese Americans was in question, significantly because of racial bias rather than a reasonable evaluation of risk they were believed to pose. There were sentiments that Japanese Americans, despite their citizenship status, were deeply rooted to their culture, and would ultimately show more loyalty to Japan. Because of this, there was no concern about absolving the rights of the Japanese Americans and imposing harsh mistreatment towards the group, but rather a sense of superiority that overwhelmed a belief in the American public that the Japanese should cooperate fully to prove their loyalty. The following is an excerpt from an editorial called:
Their Best Way to Show Loyalty, March 6, 1942 in The San Francisco News. “Its execution should be supported by all citizens of whatever racial background, but especially it presents an opportunity to the people of an enemy race to prove their spirit of co-operation and keep their relations with the rest of the population of this country on the firm ground of friendship…. Real danger would exist for all Japanese if they remained in the combat area. The least act of sabotage might provoke angry
reprisals that easily could balloon into bloody race riots. We must avoid any chance of that sort of thing. The most sensible, the most humane way to insure against it is to move the Japanese out of harm’s way and make it as easy as possible for them to go and to remain away until the war is over.”
Internment of the Japanese Americans
This internment was not accepted by all the Japanese. Two important legal cases were brought against the United States concerning the internment. The landmark cases were Hirabayashi v. United States (1943), and Korematsu v. United States (1944). The defendants argued that their Fifth Amendment rights were violated by the U.S. government because of their ancestry. In both cases, the Supreme Court ruled in favor of the U.S. government10 and allowed the mistreatment to continue. In 1983, however, Korematsu appealed his conviction and later that year a federal court in San Francisco overturned it, stating that the government's case at the time had been based on false, misleading, and racially biased information. Following, in 1987 a federal appeals court panel unanimously overturned both of Hirabayashi’s convictions on the grounds that they were racially discriminatory. Moreover, in 1988, Congress passed legislation apologizing for the internments and awarded each survivor $20,000 11.
This shameful incident proves that in actuality, laws and constitutions are certainly not sufficient for themselves. “Despite the unequivocal language of the Constitution of the United States that the writ of habeas corpus shall not be suspended, and despite the Fifth Amendment's command that no person shall be deprived of life, liberty or property without due process of law, both of these constitutional safeguards were denied by military action under Executive Order 9066”12. These court decisions show just how illegitimate the judgment of the United States government was in dealing with Japanese-Americans. For further examination, it is essential to look at the government’s action through a deontological ethical standpoint.
After the attack on Pearl Harbor the balance between security and freedom is overwhelmed by security. The threat of Japanese-Americans hurting other Americans is only a possibility, compared to the reality that all the freedoms the Japanese-Americans possessed were disregarded even though the government had a duty to protect and uphold the rights granted to all citizens.
Ethical Concern
The government took a purely utilitarian stance in reacting to the sneak attack on Pearl Harbor. Although there was not much evidence stating the justifiable harm that Japanese Americans were feared to pose, the country was filled with the sense of socio­tropic threat of being attacked again, that they not only tolerated the mistreatment of Japanese Americans, but also encourage any and all means to gain a sense of security that the internment camps provided. The government, who clearly should be held responsible for upholding American values of civil liberties had supported these exaggerations in the name of urgency and hence failed to fulfill their duty of enforcing respect for its citizens under the freedoms that are rightfully theirs.
The utilitarian ethical theory seems to be the prevailing theory in times of crisis as Lincoln also used it in the suspension of the Writ of Habeas Corpus. Examining this theory alone can lead to detrimental outcomes such as the discriminatory internment of the Japanese Americans. At the very least, an American citizen is an American citizen, regardless of race. At the end of the war, the government apologized and later provided monetary compensation with explanations that were far from excusable. Considering the deontological ethical theory would have been wise for the government, given that past events involved unlawful detentions of groups and outcomes of those events had grave impacts on the people of this country in terms of living by and upholding an extremely important document—the US Constitution.
Background on September 11, 2001 Attacks
A recent event that disturbed the balance of civil liberties and security was known as 9/11. September 11, 2001 was the day terrorists carefully executed a series of planned attacks on America’s symbol for its thriving, capitalistic success—the World Trade Center. The American public was deeply shaken in fear and insecurity, undergoing a drastic shift from living the ‘American way’ to really questioning the civil liberties that create the foundation for this nation. Terrorists evoked a great degree of sociotropic threat against societies’ established and valued norms – in this case safety from foreign attack. For basic social harmony, studies indicate that a society shows the will to stick together with the intention of creating social order and prevent future attacks, often by ceding their own civil liberties in a situation of high sociotropic threat, high trust in government13. Also supported by studies, people during this time of crisis questioning the government’s response, be it unconstitutional, were considered ‘anti-American’13. Therefore, the overall mood of the nation was insecure and anxious to the degree that public trust on the government and its actions more than doubled to 64%14 as compared to before the event.
Implementing the PATRIOT Act
As a responsive act, the government implemented changes in the national policy, in some cases severely compromising the civil liberties of US citizens. The most prevalent, and highly disputed document seen immediately after the terrorist attacks was the PATRIOT Act.
There were several security measures authorized and implemented under the USA PATRIOT Act. The most significant and drastic alterations were made to the Foreign Intelligence Surveillance Act (FISA), which “provides guidelines under which a federal agent can obtain authorization to conduct surveillance for foreign intelligence purposes”15. In this case, purposes also included protecting US citizens from foreign powers (including terrorists). The Act expanded the application of FISA to those situations where foreign intelligence gathering is merely ‘significant’ purpose of the investigation16. After alterations were made, government officials were able to conduct surveillance more freely without jurisdiction at many levels, simply based on their suspicion of threat. Further, the term ‘significant’ being undefined under the act coupled with the low surveillance standards led to the reasonable assumption that inconsistency and misuse of the FISA standards was expected.
Surveillance Measures Under FISA
Sure enough, many surveillance measures are now in place under the provisions of the FISA, including roving wiretap that goes against the Fourth Amendment by not requiring a specification of searches, tracking system in communications devices that overlook almost any form of communication, computer systems that provide the current status of foreign students, RFID chips that retrieve/store remote information through radio waves, etc16. For example, as of August 2005, the use of RFID technology has been seen in passports issued by the U.S. State Department to collect information regarding national origin, travel information, and other personal data without the knowledge of the cardholder. This stringent action taken on by the government not only poses an individual security threat with risk of identity theft and misuse of information, but it also encourages discrimination from the use of information that is not rightfully collected.
A highly debatable section under FISA was Section 215, Amending Title V. This area of law allowed government agents to retrieve any information or records of library patrons without notification to the suspected party17. This law was heavily questioned from libraries for two main reasons. Primarily, it ordered libraries to produce any ‘tangible thing’ that was requested, principally going against the professional code of ethics. In particular, it went against code III, which stated, “We protect each library user's right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted”18. Secondly, this limited an individual’s intellectual freedom granted under the first Amendment17. It is unbelievable to realize that one cannot even check out a book from the library without being investigated for terrorist activities. This posed a huge problem as it limited something so simple as intellectual knowledge. The increased level of surveillance created the most impact in disregarding the civil rights of citizens as they were not made aware of various surveillance technologies, which at times were used for purposes other than fighting terrorism, allowing the government to go out of the scope of investigation to snoop on its own people. Unfortunately, this led the nation in a state where the government officials had full liberty to bend any rule on the name of security, leaving the US with “no checks, no balances … ultimately discarding the bedrock constitutional principles.”19

Another form of unethical behavior was the secret and unlawful detention of Muslims in Guantanamo Bay, yet another repeated mistake from the past that ignores the Writ of Habeas Corpus19. Prisoners had ceased to exist as individuals, or even POWs, and were denied rights under the Geneva Convention or recourse to American courts20. Many of these measures can be highly questioned in their ethics, feasibility, and ability to uphold social values such as safety from foreign attacks, as well as their ability to sustain the civil rights granted to them through birth or through policy. Provided all the facts, it is reasonable to infer that post 9/11 there had been a dramatic shift in the balance of social security from personal freedom as the responsive acts on behalf of the government promoted the idea of the common good and also deeply avoided the individual freedoms that were valued by people. As previously stated, history has shown that citizens of the United States prefer a crafted balance of these two morals while also firmly upholding to the Constitution that serves as a foundation for our laws. The government’s reaction to the terrorist attacks was based on the utilitarian ethical theory of promoting overall security and reducing the sense of sociotropic threat, in this case the fear of another attack from a foreign power. Because trust in the government and this notion of sociotropic threat are integrally related, it was reasonable to see a greater willingness to adopt a pro-security position13.
After a considerable amount of time, when the level of threat had not increased or decreased, the public became less tolerant of ceding civil liberties in the name of security.
Considering the true definition of democracy as, “a polity in which there are regular,
institutionalized changes in power, in line with the preferences of the people freely
expressed” efforts to shift the fulcrum to a healthy balance needed to be carried through.
Although panic and fear led the shift to lean towards security, over time secrecy in the government’s actions coupled with the fact that no new attacks happened, led the public’s trust in government to go down and hence led to a greater desire to uphold civil liberties.
Although it is imperative to be alert on situations that might affect national security, taking long-term measures at the height of sociotropic threat is unreasonable and absurd. In the case of 9/11, as government took strong utilitarian-based actions in months following the crisis, the public’s belief in civil liberties was reaffirmed not undermined. This is supported by the statistic that 54% of Americans were not concerned about ceding civil liberties before 9/11; however, the figure rose to 67% of Americans (nearly 2/3) after 2 months as vigorous security measures were taken15.
Ethical Concern
Keeping that in mind, it is unethical for the government to continue implementing policies and vigorous measures in the name of security when there is overwhelming public opposition, ignorance in terms of what information is being collected and how it is used to prevent terrorism. Furthermore, there is no statistic to prove that government security measures directly lead to low levels of sociotropic threat. It is reasonable to consider that such safety measures might decrease the anxiety that is seen to trigger sociotropic threat, however the fact that there has not been another physical attack on the nation could be equally considered to reduce the level of fear and anxiety among the public. The point is – there is no proven need to cede civil liberties to such a low level.
When considering the ethical theory based on duty, the government should respect and protect citizens without deliberately compromising their civil liberties to their convenience. In a time when America feels attacked for its thought and the freedom it advocates, it is more important to consider duty rather than consequences of actions as the former is essentially put to test. A concern for the ‘most people’ as suggested by the utilitarian approach cannot be valid when social values are embedded in constitutional rights in times of war. The amount of surveillance that was conducted post 9/11 has given unlimited freedom to the government to keep check on people. That privilege, however, has shown no significant benefit to deterring further attacks. In addition, the detention of Muslims in Guantanamo Bay has yet again ignored basic human rights or even the idea of lawful detention. After two specific events discussed earlier in this paper, there is no ethical justification for detaining and harshly mistreating a particular group, classified as ‘enemy combatants’ simply based on racial discrimination. With this event, it is reasonable to assume that civil liberties have completely taken a rest in the need for security. Although there is unlawful physical mistreatment for Muslim detainees in Guantanamo Bay, there is unlawful action taken towards all members of this society indirectly as every basic privacy that was previously held has now been completely surrendered. Civil liberties are not only being ceded by particular groups, but also by the nation at large. It is not only the duty of the government to comply with social values that are held dear, but also the duty of every citizen to reject actions that go against those values. In the end, if the nation lives only by security and minimal civil liberties, the country will no longer stand as a democracy run by the people, for the people.
Common Themes

 

Civil War

WWII

9/11 Attacks

Neglecting Balance of Powers

X

 

X

Interpretation of the Law

X

X

X

Alteration of Law

 

 

X

Repeating History

 

X

X

Constant Utilitarian Standpoint

X

X

X

Conclusion
Throughout American history, the concept of civil liberties has strengthened with the general public at large and also has been the most sacrificed in times of crisis. Through events discussed in this paper, it is reasonable to see that public deliberation often prevents bad ideas from taking hold while broadening support for the public policy that is implemented based on a collective opinion that doesn’t go against the Constitution19. It is important to establish the need to consider duty-based ethics when reacting to crisis events, as opposed to the popular groupthink phenomenon that immediately occurs at a high level of sociotropic threat. Simply taking the convenient utilitarian approach to interpreting the laws will soon create an increasing amount of loopholes in the system allowing governing bodies to quickly take away any basic civil liberty that is cherished by the people.
In addition, historical events such as the abolition of slavery, women’s suffrage, implementation of anti-segregation laws, and many more have given increasing importance to the idea of civil liberties. Yet, we continuously see social justice and respect for civil liberties diminishing little by little. We must learn from those crucial points in our history so we can prevent hypocritical actions that demote social justice when dealing with crisis situations in the future. Overall, it is the duty of the governing bodies to faithfully execute the laws that coincide with society’s goals and ethical priorities. Through this approach, it is evident that respect for individuals and the rights embedded in constitution will prevail over measures that succumb to crisis situations by deliberately reducing civil liberties. This serves to be beneficial for the nation in the long run, especially in times of post-crisis, when those values become harder to restore. However, disallowing debate on current policies creates a loss of democracy, a loss of freedom and civil liberties, which would lead the terrorists to win this war on our freedom19.


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