When War Comes to the Court

The true limits of our freedoms may soon be revealed

By Jeff Bleich, Kelly Klaus and Deborah Pearstein

As recent events should remind us, the rules change during wartime, including the rule of law. Cicero first coined the phrase 'Silent leges inter arma,' (roughly translated, 'laws are silent among raised arms'), urging that courts not apply the ordinary ban on violence to one who has been attacked. Cicero's phrase has endured and has been broadly reinterpreted over the years to mean, 'the power of law is suspended during war.' Invoking this phrase in his 1998 book on civil liberties in wartime, Chief Justice Rehnquist noted that the modern formulation, while an overstatement, still contains some essential truth. 'The laws will not be silent during time of war,' he wrote 'but they will speak with a somewhat different voice.' Today, facing a new form of 'war' on terrorism, this famous Latin maxim may become particularly important. How the Supreme Court responds to post-September 11 calls to expand criminal surveillance and wiretapping, curb immigration, and racially profile terrorist suspects may depend largely on what sort of 'war' we have declared, and what voice it compels.

Throughout U.S. history, when war threatens U.S. soil the Court has frequently allowed the president to expand his executive power to declare war and make foreign policy, even at the expense of traditional legislative and judicial powers. As the Court has explained, the security of the Union depends not just on the president's power to wage war, but 'to wage war successfully.' Home Building & Loan Assn v. Blaisdell (1934). The history of legal rights during wartime, therefore, has been one of presidents taking actions, often without the legislature's approval, and with the Court's indulgence. These initiatives create constitutional tensions when they enlist domestic courts in the war effort in ways that implicate First, Fourth, Fifth, Sixth and Eighth Amendment rights. Justice O'Connor herself thus recently posed the question of whether terrorism will require a special treatment in which constitutional limits are reduced. '[C]an a society that prides itself on equality before the law treat terrorists differently than ordinary criminals? And where do we draw the line between them?' Ultimately, whether the Court views the current effort to eradicate terrorism as a true 'war' on American soil, or as only an expansion of domestic laws against terror crimes, or as some new hybrid that requires rewriting Supreme Court jurisprudence altogether, may well determine how this war is waged and the legacy it leaves.

While certain freedoms are particularly vulnerable during wartime, freedom to criticize the government and the war effort have historically been among the first casualties. Since the earliest days of the Republic, when President Adams signed the Alien and Sedition Acts of 1798 to quiet criticism of government officials by perceived insurgents, presidents and Congress have often reacted to perceived threats to national security by stifling its supporters at home. Lincoln responded to the firing on Fort Sumter by closing the post offices to any 'treasonable correspondence.' Wilson responded to the 1915 sinking of the Lusitania by proclaiming that domestic security must be tightened because 'the gravest threats against our national peace and safety [are those] spoken within our border' who have 'poured the poison of disloyalty into the very arteries of our national life.'

During World War I, the Supreme Court demonstrated the extent to which the Court would suspend normal First Amendment freedoms to protect a war effort. The Wilson administration enacted laws in 1917 and 1918 that criminalized 'disloyal' speech, including any opposition to the draft. Despite the obvious viewpoint discrimination, no less a champion of civil liberties than Justice Oliver Wendell Holmes, Jr. affirmed that these 1917 acts were valid during wartime. Writing for the unanimous Court, Holmes upheld the conviction of persons convicted under the 1917 Espionage Act for circulating a leaflet critical of the draft because '[w]hen a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured. . . . No court could regard them as protected by any constitutional right.' Schenck v. United States (1919). Holmes later went further, upholding a conviction for opposing the war, because 'that opposition was so express that its natural and intended effect would be to obstruct recruiting.' Debs v. United States (1919). The Court, over Holmes' dissent, even held that advocating a labor strike could be unlawful under the 1918 Sedition Act because of the risk that it would stop production of munitions. Abrams v. United States (1919).

But the Court's willingness to indulge limits on the First Amendment during wartime has tended to vary considerably depending upon the apparent nature of the conflict. For example, in response to the perceived threat of 'anarchists' and 'communists' within the U.S., the Court continued to adopt a wartime view of the First Amendment even after World War I ended. The Court upheld a state sedition law in Gilbert v. Minnesota (1920), and later upheld a state criminal syndicalism law in Whitney v. California (1927).

By contrast, when the security threat has been remote and does not threaten U.S. shores, the Court has been far more vigorous in protecting First Amendment boundaries. During the Vietnam War, for example, the Court rejected claims of 'national security' to justify prior restraint of the publication of the Pentagon Papers. New York Times v. United States (1971). Likewise, the Vietnam era Court refused to enforce laws that prohibited speech condemning the draft and the rights of religious objectors. Cohen v. California (1971); Gillette v. United States (1971). Indeed, it was at the height of Vietnam and of the Cold War when the Court finally overruled Whitney, rejecting the old criminal syndicalism laws and permitting government to punish those who advocate illegal action only if their speech is intended to and is likely to produce 'imminent lawless action.' Brandenburg v. Ohio (1969).

Ironically, the very protections established in the Constitution in the wake of the Civil War -- the due process and equal protection guarantees of the 14th Amendment -- have also been among those most susceptible when wars have hit United States soil. One of the most obvious examples is President Lincoln's suspension of the writ of habeas corpus.

Like the current terrorist conflict, the Civil War itself began, with private individuals within our own borders launching riots and attacks on private buildings in the name of a confederacy of anti-Unionists. Almost immediately after the Baltimore riots in April 1861, Lincoln suspended the writ of habeas corpus without Congress' approval. This effectively authorized military commissions to avoid civil courts and try suspected political criminals with virtually no due process guarantees. Lincoln's action was quickly challenged by a Maryland state legislator, John Merryman, who had been arrested by Union troops for participating in the destruction of railroad bridges in Baltimore. Merryman's attorney filed his petition with the Chief Justice of the United States, Roger Taney, who was sitting as a circuit judge. To Taney the matter was simple; he immediately granted habeas relief and ordered Merryman released because the Constitution plainly provides that only Congress, not the president, can suspend the writ. Lincoln, however, ignored the decision, observing that the higher purpose of the Constitution was to preserve the union. To him, Taney's 'extreme tenderness of the citizens' liberty' would allow 'all the laws, but one, to go unexecuted, and the government itself to go to pieces lest that one be violated.' The full Supreme Court, in its usual wartime reticence to intervene, did not take up the Merryman decision; it waited until the war was over to issue its decision that U.S. military courts may not try 'civilians.'

The pattern repeated itself in the equal protection realm during World War II, which set the low-water mark of civil liberties with the internment of Japanese Americans in the United States. Through a series of military orders and a 1942 statute responding to the attack on Pearl Harbor, the federal government established curfews that applied only to Japanese Americans and forced tens of thousands of Japanese Americans from their homes into internment camps. The Supreme Court first upheld the curfew program in Hirabayashi v. United States (1943), and later upheld the internship program in Korematsu v. United States (1944). The Hirabayashi Court's deference to the military was so great that it would not even address whether detainees might be released once they were found to be loyal. As before, it was not until victory was close at hand that the Court recognized the right of 'loyal' Japanese Americans to be released. Ex Parte Mitsuye Endo (1944). While Korematsu and Hirabyashi have been roundly criticized by later Courts evaluating equal protection claims in peacetime, they remain the last statement of the Court on the subject during time of war and continue to set the framework for evaluating equal protection claims to this day.

Finally, like such seizures of persons, summary seizures of property during times of national conflict have been common. During World War I, the Supreme Court upheld a series of acts by the Wilson Administration and Congress providing for the seizure of railroad and telegraph lines and the seizure of various companies that failed to perform their government contracts. Stoehr v. Wallace (1921). In World War II, more than 60 plants and other facilities were seized in response to labor disputes. Again, however, the Court's willingness to indulge these seizures has tended to be driven largely by perceptions about the threat at home. For example, the Court found no justification for massive property seizures during the Korean 'conflict' -- a military action short of a declared 'war' that occurred faraway and involved no risk of bloodshed at home. The Court rejected President Truman's attempt to seize the nation's steel mills in order to avoid a labor strike, which, he claimed, would threaten the war effort. Youngstown Sheet & Tube v. Sawyer (1952). Later still, when President Carter struck a bargain with Iranian revolutionaries to release American hostages held in the U.S. embassy in Tehran, the Court upheld its provisions terminating claims in U.S. courts only after finding some implicit, non-wartime power to do so. Dames & Moore v. Regan (1980).

As the Supreme Court's record confirms, during wartime, the law of survival may become paramount, trumping other fundamental rights to speech, liberty and property. However, history also suggests that the question of when the rules of war take effect is complicated, involving more than a simple congressional declaration that we are 'at war.' Even where military action is involved, the Court has drawn distinctions. In the current conflict, the Court may be required to distinguish still further between conducting the domestic 'war on terrorism' and law enforcement actions against other crimes that also pose a national security threat (such as international drug cartels and international organized crime).

The 'war on drugs' provides a useful example and contrast. Although the war on drugs has had its paramilitary and international aspects, it is essentially a law enforcement program involving unprecedented resources for drug interdiction and enforcement, staggering criminal penalties for drug sales, and aggressive profiling, surveilling and prosecuting of drug suspects. While it has been called a 'war,' the Supreme Court has by and large determined that the same rules apply for enforcing drug laws as any other laws. The Court has thus prohibited using intrusive technology to detect drug use through people's walls, it has prohibited using race or nationality as factors in profiling drug 'mules,' and it has required the same standards of proof for probable cause for drug violations as for any other criminal activity. As the Court has explained, even during serious criminal or economic crises, '[e]mergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved.'

The 'war on terrorism,' although still in its infancy, may reflect a new hybrid of war and law enforcement. Although the president and Congress have called America's use of force against Al Qaeda a 'war,' there is as yet no declaration of war; indeed many administration officials continue to use more ambiguous language such as the 'conflict' or 'campaign' or 'response to the events of September 11.' Also, while the enemy has the same goal as a warring nation -- destabilizing the U.S. government and economy and undermining its citizens' security for political ends - the terrorists are not a traditional enemy. They are not a foreign sovereign with fixed territory and a standing army, but rather they are a transnational group of criminals living here and abroad who attack private citizens where they live. Given the nature of the enemy, a 'war' on Al Qaeda is less like a military action in the traditional sense and in some ways more like a law enforcement effort such as the 'war on organized crime' or the 'war on drugs.' The actions taken immediately after September 11 - closing the airports, suspending the statutes of limitations in New York, restricting entry into the United States - could as easily be justified as responses to a state of emergency relating to a horrible criminal act as measures in defense of a war. As a result, how the Court understands the post-September 11 status quo is likely to affect not only its wartime jurisprudence but also its approach to domestic criminal law more generally. Justice O'Connor has already suggested as much. '[I]t is possible, if not likely,' she explained, 'that we will rely more on international rules of war than on our cherished constitutional standards for criminal prosecutions in responding to threats to our national security.'

The difference in how constitutional rights have been treated during wartime, peacetime and times in between may reveal the true limits of our freedoms. In response to the current conflict, the sound of the law speaking in a 'different voice' may already be starting to emerge. On September 19, the president proposed the Anti-Terrorism Act, which provided, among other things, for broad wiretap authority and subpoenas of electronic records, and permitted disclosure of wiretap information to any executive branch employee. Under a bill currently being considered by Congress, the power of judges to refuse executive requests for wiretaps that are in any way connected to terrorism would be significantly limited. Similarly, racial profiling of South Asians and Middle-Easterners by police and public security personnel appears to be on the rise -- even in the face of direct official condemnation -- and restricting student visas for citizens of certain nations is now discussed as a serious possibility.

While it remains unclear how, or if, the Court will decide the constitutionality of these particular issues, history suggests that the Court's assessment of the nature of the threat -- criminal or military, abroad or here at home -- will have a significant effect on whether or not the ordinary rules of constitutional law apply. At least one judicial nominee has already promised his Senate confirmation panel that in this conflict he will not allow the courts 'to interfere with your process [of keeping us secure].' Justice O'Connor too has cautioned that 'we're likely to experience more restrictions on our personal freedom than has ever been the case in our country.' The limit will come, she noted, at the point where 'the cost to civil liberties from legislation designed to prevent terrorism outweigh[s] the added security that that legislation provides.' That point is never easy to find during the heat of battle. Finding it in hindsight, however, may mean finding it too late.


The authors are litigators at Munger Tolles & Olson in San Francisco. Mr. Bleich clerked for Chief Justice Rehnquist in 1990 and teaches constitutional law at Boalt Hall. Mr. Klaus clerked for Justice Kennedy in 1995 and teaches judicial decision-making at Stanford. Ms. Pearlstein clerked for Justice Stevens in 1999. Their articles also appear regularly in The San Francisco Attorney, published bi-monthly by the Bar Association of San Francisco.

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