Hickey was never prosecuted, but authorities had other ways to silence him, and strong motives for doing so. He had run afoul of the postmaster general, Albert Sidney Burleson, by reporting in The Rebel the eviction of thirty tenant farmers from land owned by Burleson and his brother-in-law. The farmers had been replaced with convict labor—a thinly disguised form of slavery in those years.
On the eve of the Espionage Act’s passage—but six days before it became law—the U.S. Post Office employed the prospective statute to ban The Rebel from the mails “for publishing treasonable matter,” Buckingham reports. Hickey protested that the government could not invoke a law not yet in force, but to no avail. He was hounded the rest of his life; his barn was burned down by a mob, and his county’s local newspaper recommended that those who schemed against America be awarded “a nice little plot of their own, about seven feet long, three feet wide and four deep.” Residents of his Texas town of Brandenburg changed its German name to Old Glory, as it is still called today, a monument to xenophobia.31
World War I’s conclusion segued smoothly into the Red Scare of 1919–20, an ideological war with Lenin’s Russia: American union organizers were branded Bolsheviks, leftist foreigners were deported, and state laws were generated to prosecute people for displaying the red flag of worker internationalism. At least 1,400 flag-flyers were arrested, and 300 received sentences of up to twenty years.32 Some 6,000 people, mostly immigrants, were swept up as alleged anarchists in the 1919 Palmer Raids after a series of bombings was punctuated by an explosion on the porch of Attorney General A. Mitchell Palmer’s home. The usual suspects were rounded up.
Looking back at this history, you have to marvel at the sense of fragility endured by those at the pinnacle of power. In practically every war, it seems, those wielding the authority of the state were gripped with a galvanizing fear, not just of the enemy abroad but of an imagined virus of resistance and subversion at home. Or they cynically mobilized the fear. Hitler’s deputy Hermann Goering thought such manipulation possible in every political system. Ordinary people never want war, he told an American psychologist questioning him in 1946, after his capture. “Why would some poor slob on a farm want to risk his life in a war when the best that he can get out of it is to come back to his farm in one piece?” Goering asked. “It is the leaders of the country who determine the policy, and it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship or a parliament or a communist dictatorship.” Even where the citizens have a voice? the psychologist asked. “Voice or no voice,” Goering argued, “the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country.”33
Wartime anxieties in the United States tend to focus first on noncitizens, then spill easily into the ranks of Americans who are outspoken, who have foreign names, or whose race or class makes them readily identifiable as “others.” As if the country were not stable enough to withstand strident dissent or even the silent presence of people ethnically akin to the enemy, those who seem different become convenient targets. That has happened during every detour from constitutional principles.
“Safety from external danger is the most powerful director of national conduct,” wrote Alexander Hamilton in The Federalist Papers. “Even the ardent love of liberty will, after a time, give way to its dictates.” Even “nations the most attached to liberty” will resort to institutions that destroy their rights. “To be more safe, they at length become willing to run the risk of being less free.”34
And so for the fourth time, during World War II, individual rights succumbed to national fear. There were scattered prosecutions on both the right and the left of the spectrum, using the Espionage Act of 1917 and a new measure, the Smith Act of 1940,35 whose prohibition against advocating the overthrow of the government “by force or violence” was stretched to cover mere membership in communist or fascist organizations. (It is still on the books.) President Franklin D. Roosevelt, a civil liberties supporter in the abstract, repeatedly pressed his reluctant attorneys general to arrest his isolationist critics.
More than two dozen leaders of the Socialist Workers Party in Minneapolis were indicted for opposing entry into World War II and organizing work stoppages in the defense industry; about the same number of fascist leaders were prosecuted in the Great Sedition Trial, which ended without convictions but effectively curbed speech on the extreme right.36 German-born Americans who expressed sympathy for Germany were stripped of their U.S. citizenship in 146 cases.37 State laws outlawed the uniforms of the pro-Nazi German-American Bund and the employment of communists, resulting in the dismissal of about thirty New York City schoolteachers alleged to be communists. In fifteen states, Communist Party candidates were barred from the ballot.38
After Pearl Harbor was attacked, on December 7, 1941, Roosevelt invoked the 1798 Alien Enemies Act to designate 900,000 Japanese, Italians, and Germans as enemy aliens required to register, to stay within five miles of their homes, and to observe a nighttime curfew.39 They could be searched without warrants and were prohibited from owning guns, cameras, and shortwave radios. Some 120,000 ethnic Japanese, about 80,000 of them American citizens, were expelled from their homes and locked up in ten camps from California to Arkansas, out of suspicion that they might aid Japan. They were implicated by their race and national origin alone, not by anything they had actually done. Not a single such charge was ever brought, yet the Supreme Court upheld their internment.40
SECRET SUPPRESSION
After the Allied victory, the Cold War against Soviet-led communism sowed fear into fertile ground. For the fifth time in its history, the United States swerved dramatically away from its protection of individual rights. It was a time of flourishing imagination, seeing in respectable political and economic criticism the specter of internal subversion. Leftists, whether communist or not, were promoting workers’ rights, condemning capitalism’s exploitations, and urging an agenda of public policies that triggered high-level anxiety in the political class. To those in power, being a communist was neither a benign intellectual exercise nor a legitimate political position. It was more than an embrace of Marxism’s theory that the stages of history would progress inevitably from feudalism to capitalism to socialism to communism. It was “un-American,” and its proponents were seen as advocates of the Soviet Union’s designs on American security and independence. As David Cole has noted, the suspicions and tactics of the first Red Scare after World War I were now applied against American citizens. “The link between internal enemy—the Communist Party of the United States—and external foreign threat—the Soviet Union—helped to collapse the distinction between foreign national and citizen.”41
The House Un-American Activities Committee, which compiled dossiers on one million suspected communists, ruined many loyal Americans’ professional lives by summoning them to testify under oath, then berating them with the question “Are you now or have you ever been a member of the Communist Party?” An affirmative answer would doom their careers, whether in Hollywood or at universities, and might expose them to prosecution; taking the Fifth Amendment’s shield against self-incrimination, however, put them on blacklists that excluded them from jobs. One hundred of three hundred people who were named as communists and “fellow travelers” in 1950 were fired. Some 3,000 were interrogated publicly from 1945 to 1960. Senator Joseph McCarthy waged a crass and cunning campaign of character assassination against supposed communists in government and the army. And President Harry Truman’s loyalty program permitted the FBI to collect unchallenged rumors and innuendo about millions; an estimated 6,300 employees of private firms, and 11,000 of federal, state, and local governments, were dismissed for allegations of disloyalty that they were never allowed to see or rebut.42
Beginning in this era of the Cold War, and stretching through the Vi
etnam War into the 1970s, government actions descended underground. In the previous four periods, which began around 1798, 1861, 1917, and 1941, the violations of constitutional rights had been committed mostly in the open, for the public to see and the victims to challenge. During the postwar anxiety over communist infiltration, however, federal agencies evaded the law covertly, and their targets spread exponentially beyond suspected communists to political, labor, civil rights, and antiwar organizations that dared to push against the status quo.
We know the details thanks mainly to Senator Frank Church of Idaho, who chaired a relentless investigation in 1976, collecting testimony and documents that exposed the remarkable breadth of the government’s surveillance, disinformation, and dirty tricks against legitimate and constitutionally protected political activity.43
Not only the FBI—through its infamous Counterintelligence Program called COINTELPRO—but also the CIA, the National Security Agency (NSA), the Internal Revenue Service, and army intelligence were secretly mobilized against dissident groups and individuals. The FBI routinely requested tax files on activists, and the IRS, through its Ideological Organizations Audit Project, selected for audits and investigations about 8,000 people and 3,000 groups “of predominantly dissident or extremist nature,” as the assistant commissioner for compliance told the FBI director in a 1969 memo. The targets included such grave national security threats as the American Library Association, the American Civil Liberties Union, the National Association for the Advancement of Colored People (NAACP), and the National Urban League.
From 1947 to 1975, the NSA intercepted “millions” of private telegrams going into and out of the United States, just as it has done with e-mails and phone calls since 9/11. Nearly 250,000 first-class letters were secretly opened and photographed by the CIA from 1953 to 1973, and the FBI did the same with at least 130,000 from 1940 to 1966.
In addition, using secret informants, warrantless wiretaps, hidden microphones, and clandestine break-ins of homes and offices, various agencies “swept in vast amounts of information about the personal lives, views, and associations of American citizens,” the Church committee found. The CIA compiled an index of 1.5 million names; the FBI had 500,000 intelligence files in headquarters alone, with uncounted numbers in field offices; and the army put 100,000 people in its records from the mid-1960s to 1971. The army monitored protests by welfare mothers in Milwaukee, infiltrated church youth groups in Colorado, dispatched operatives to a meeting of priests on birth control, and even sent agents to a Halloween party for children in Washington, D.C., following a report that a “dissident” might be there.
All this was done for more than curiosity’s sake. The FBI had a list of 26,000 suspicious Americans to be rounded up in case of a “national emergency,” the Church committee discovered. Dossiers were assembled on student activists in case they someday applied for government jobs. “Groups and individuals have been harassed and disrupted because of their political views and their lifestyles,” the report concluded. “Unsavory and vicious tactics have been employed—including anonymous attempts to break up marriages, disrupt meetings, ostracize persons from their professions, and provoke target groups into rivalries that might result in deaths.”
The FBI sent unsigned letters to wives of Black Panthers and others alleging infidelity, a ploy that worked to destroy at least one marriage, the bureau’s files showed. It sent letters to employers trying to get activists fired for their political views. It falsely identified certain members of antiwar organizations as FBI informants so that they would be expelled or isolated, a technique that succeeded in ostracizing at least one draft-resistance counselor.
The dirty tricks got very dirty indeed. Stokely Carmichael, the fiery advocate of black power, flew to Africa the day after the FBI shocked his mother by calling her with an invented report that the Black Panthers were out to kill him. Agents also tried to incite a preemptive strike against the group by telling the head of a Chicago gang that the Panthers had “a hit out for you.”
Martin Luther King, Jr., was under surveillance for many years. In the strangely twisted world of federal law enforcement, he was seen as a communist sympathizer, a subversive threat. King’s inspiring “I Have a Dream” address at the 1963 March on Washington may be ranked with the greatest oratory in American history, but the FBI’s Domestic Intelligence Division worriedly called it a “demagogic speech” that made King “the most dangerous and effective Negro leader in the country.”
The FBI campaign, termed a “war” by one official, was designed to “neutralize” King: “No holds were barred,” one bureau document declared. When hidden microphones in a hotel room caught King in a compromising situation, the FBI mailed him the tape with a note that he and his aides interpreted as suggesting that the recording would be made public unless he committed suicide.
In this mental framework, facts were not allowed to get in the way of a good investigation. Nonviolent peace and civil rights activists were seen as national security threats; the women’s liberation movement, Senator Adlai Stevenson, and the NAACP were categorized as dangerous enough to rate expensive surveillance. “The NAACP was investigated to determine whether it ‘had connections with’ the Communist Party,” the Church committee stated. “The investigation lasted for over twenty-five years, although nothing was found to rebut a report during the first year of the investigation that the NAACP had a ‘strong tendency’ to ‘steer clear of Communist activities.’ ”
The truth is, presidents of both parties liked seeing the information. Truman received intelligence on the inside negotiating positions of labor unions and on journalists’ upcoming articles. President Dwight D. Eisenhower got reports on “purely political and social contacts with foreign officials” by Eleanor Roosevelt and Supreme Court Justice William O. Douglas, among others. The administration of John F. Kennedy ordered FBI wiretaps on “a Congressional staff member, three executive officials, a lobbyist, and a Washington law firm.” His brother Attorney General Robert F. Kennedy saw the results of the King taps. President Lyndon B. Johnson got the FBI to provide intelligence on certain senators; do electronic surveillance at the 1964 Democratic Convention; and report on the staff of his opponent in the presidential campaign, Senator Barry Goldwater.
Extensive wiretapping provided President Richard Nixon with considerable personal and political information “unrelated to national security,” according to the Church committee. At one point, the CIA asked to renew its mail-opening program, which it falsely told Nixon had been halted. Nixon said yes, then five days later reversed himself, but the program continued anyway. And then, during the 1972 presidential campaign, Nixon’s operatives broke into the Democratic National Committee offices at the Watergate office complex to plant bugs. His cover-up led to his downfall as he resigned to avoid impeachment.
Such cavalier disdain for both presidential authority and the rule of law typified intelligence gathering for many decades, as the official who headed the FBI’s intelligence division for ten years told the Church committee: “Never once did I hear anybody, including myself, raise the question: ‘Is this course of action which we have agreed upon lawful? Is it legal? Is it ethical or moral?’ We never gave any thought to this line of reasoning, because we were just naturally pragmatic.” Such pragmatism, the committee concluded, meant that intelligence officials proceeded as if governed by “a higher law,” their own interpretation of the interests of national security.
As in the wake of earlier deviations, the country came back. After the Church committee’s stunning report, Congress passed a series of privacy laws, including the Foreign Intelligence Surveillance Act (FISA), which imposed a modicum of judicial review on wiretapping, bugging, and other spying directed against agents of foreign powers inside the United States. An administrative wall was erected to prevent intelligence information, which was gathered under loose controls, from seeping into criminal investigations, where constitutional rights had to be observed. A clandestine court was e
stablished to hear secret applications for warrants—not an ideal way to check executive authority, but some oversight nonetheless.
Since September 11, 2001, even that inadequate process has been weakened and evaded while the United States has strayed seriously for the sixth time in its history. The American experience demonstrates how permeable the barriers of time can be in the ebb and flow of individual rights. The past is not walled off from the present; the virtues and the violations come forward.
International frontiers are also porous boundaries. They cannot seal American soil from contamination by lawless American behavior in the outside world: Some of the toxic disrespect for rights in the “war on terror” has seeped into the domestic criminal justice process. Nor can our practices on civil liberties be defined as neatly as we might think by the lines dividing political parties or types of crime, Republicans from Democrats or terrorism from narcotics.
The neoconservative Republicans who dominated the administration of George W. Bush after September 11 strayed egregiously from constitutional principles essential to democracy, a detour made ironic by their evangelical passion for spreading democracy worldwide. Yet they got plenty of cooperation from Democrats, only one of whom in the Republican-led Senate—Russ Feingold of Wisconsin—opposed the 2001 Patriot Act, which undermined the protections enacted after the Church committee’s exposure of domestic spying. Even as a majority in both houses, Democrats in 2008 passed a measure legalizing much of the National Security Agency’s warrantless eavesdropping, for which Bush had been so vilified when it was exposed two years earlier. The new law got the vote of Barack Obama, then a senator in the midst of a heated presidential campaign.
The Rights of the People Page 4