Vol. 16 No. 8 (August, 2006) pp.640-644


AT WAR WITH CIVIL RIGHTS AND CIVIL LIBERTIES, by Thomas E. Baker and John F. Stack, Jr. (eds). Lanham, MD: Rowan & Littlefield Publishers, Inc, 2005. 272pp. Cloth $65.00. ISBN: 0-7425-3598-3.  Paper.  $26.95. ISBN: 0-7425-3599-1.


Reviewed by Barry N. Sweet, Department of Political Science, Sociology, and Philosophy, Clarion University of Pennsylvania.  Email: BSWEET [at] clarion.edu.


This collection, edited by Thomas Baker and John Stack, addresses the highly salient dilemma of maintaining our constitutional rights during a time of war.  The contributions are primarily from notable constitutional scholars, but also from two key institutional players, Supreme Court Justice Stephen G. Breyer and former Attorney General John Ashcroft.


The piece by Justice Breyer is the text of a speech he gave to the New York City Bar in 2003, which was very similar to one he had delivered in Paris a few months earlier.  Without showing his cards, Justice Breyer provides a very thoughtful discussion about how we can maintain our rights during the war on terrorism.  He reminds us that the Constitution still applies in wartime and it requires that we balance individual and community interests. We have often made mistakes in the past when balancing these interests, but we can learn from those mistakes.  Furthermore, we can avoid mistakes by learning from practices of other countries when they face the same challenges.  Other countries may have developed less restrictive alternatives when facing threats to national security.  He concludes by indicating that judges are not the only actors in determining our rights.  In addition to legislators, the citizenry plays a role through open debates in the media, classrooms, and public forums.  The fact that such a vigorous debate is taking place is indicative that the system is working. Justice Breyer’s discussion is very reassuring; he communicates faith in both our judicial and political systems.


The contribution from former Attorney General Ashcroft is the text of a speech he gave in the summer of 2003 to law enforcement officers in Boise, Idaho.  Referencing Thomas Jefferson, Ashcroft argues that the first responsibility of government is to preserve the lives and liberty of its citizens.  He then defends the much criticized USA PATRIOT Act,   arguing that the legislation mainly brings our antiterrorism law in line with current practices in other areas of law enforcement and advancing technology. For instance, the legislation allows “sneak and peak” warrants,  used previously in organized crime and drug investigations.  The Patriot Act allows access to business records when conducting antiterrorism investigations.  “Roving wiretaps” are permissible, recognizing that terrorists use multiple methods of communication to avoid detection.  The Act also permits a lot more information sharing and cooperation between law enforcement agencies at all levels of government.


Jules Lobel provides an historical overview of the restraints placed on civil liberties and rights during times of war [*641] and emergencies.  He also critiques “the war/emergency balancing metaphor.” His historical overview mentions the Alien and Sedition Act of 1798, Abraham Lincoln’s actions during the Civil War, the actions of President Wilson’s administration during World War I and Attorney General Mitchell Palmer after the war, and the internment of Japanese Americans during World War II. In all of these examples restrictions placed on civil liberties were balanced against the perceived need to deal with threats to our security.  Lobel indicates three problems with how balancing is done.  First, the most severe restrictions are usually placed on the liberties of aliens rather than citizens.  Second, the effort to enhance short-term security fails to appreciate the effect on long-term security.  Third, an assumption is frequently made that the restrictions will last only as long the war or emergency is a threat to our security. Lobel argues that the war on terror, like the Cold War, may very well be Orwellian and allows infringements on our liberties to go on in near perpetuity. He then discusses specific examples where emergency powers may have been used unreasonably since September 11. Concerns about provisions of the USA PATRIOT Act are also discussed.


The piece by Peter Irons, a critical assessment of Franklin Roosevelt’s record on civil rights and liberties, is a republished law review article written before September 11.  Irons basically catalogues the failures of the Roosevelt Administration in dealing with the abridgement of civil rights and liberties.  He does this by focusing on the inaction or ineffective actions of FDR’s four Attorneys General.  The Roosevelt Administration failed to deal with lynching and instead appeased the Dixiecrats by emphasizing states’ rights.  Labor and civil rights laws were either not enforced or only halfheartedly enforced with disappointing results. The Roosevelt Justice Department did have some success in its later years dealing with police brutality and the protection of religious minorities. The most shameful part of Roosevelt’s record was the internment of Japanese Americans.  Roosevelt’s policies dealing with subversives and dissidents were also less than admirable.  In fact, he utilized many techniques that sound eerily familiar today, such as warrantless wiretapping and maintaining lists of people for possible imprisonment who were perceived as a security risk.  Irons concludes that Roosevelt basically had a proclivity to do what was politically expedient and expressed near contempt for civil liberties and rights.


Michael Greenberger examines a technique that the Bush Administration has been using to hold persons suspected of being connected to terrorists without probable cause.  Such persons are declared material witnesses and taken into detention for indefinite periods of time.  Greenberger provides the specific example of Osama Awadallah who was shuttled around the United States, starting in California, then Oklahoma, and finally New York.  His lawyer and family were frequently denied access to him to such an extent they did not even know where he was at times.  He was kept in a general prison population and brutalized by correction officers.  The Justice Department argued that he was [*642] being held as material witness to ensure his grand jury testimony.  Awadallah’s attorney contended that the material witness provision in federal law does not apply to grand jury proceedings.  Using the material witness statute in this way is quite rare, with a 1971 Ninth Circuit case being the only legal precedent available.  This case did support the government’s position; however, the District Court found that the statute did not apply to grand juries.  In a parallel case in the Southern District of New York another judge found that the material witness statute did apply to grand juries. Both of these cases were appealed to the Second Circuit.  Greenberger provides a detailed discussion of relevant statutes, federal rules of criminal procedure, and constitutional concerns.  Much to Greenberger’s dismay, the Second Circuit came down on the side of the government.  He concludes that it is uncivilized to hold material witnesses without probable cause in a coercive environment to obtain unreliable testimony.


Louis Fisher catalogues the expansion of executive power in the wake of 9/11 and the apparent abdication of the other branches in terms of checks and balances.  Fisher provides anecdotal vignettes of Arabs and Muslims who were arrested in ill-conceived dragnets right after 9/11.  Many were treated quite shabbily and held for a considerable length of time without charges being filed or even reasonable justification.  Military tribunals and the Administration’s claim of authority to establish them are discussed briefly. The Administration relied upon the EX PARTE QUIRIN precedent where German saboteurs during World War II were given less than admirable due process.  Despite the serious deficiencies of the QUIRIN precedent, the Administration wanted to provide even less for suspected terrorists.  The HAMDAN majority, whose opinion was rendered after this book was published, found that the Administration’s military tribunals were unconstitutional.  Fisher also discusses specific provisions of the USA PATRIOT Act that authorize nationwide service of search warrants, roving wiretaps, lower the threshold requirement for foreign intelligence surveillance, and “sneak and peek” warrants. Additionally, he raises serious concerns about closed deportation proceedings, concealing the identity of persons arrested, holding people as material witnesses, and classifying detainees as enemy combatants.  Fisher concludes that the Department of Justice has considerable power that is further augmented during emergencies, and the attorney general must use it responsibly. It is up to Congress, the courts, the media, and ultimately the citizenry to make sure the executive stays in check.


Mark Graber contributes a piece that is counterintuitive and thought provoking.  He argues that civil rights, specifically voting rights, can actually be expanded during wartime.  He acknowledges that repressive policies, often dealing with speech, have been instituted in times of war and other national emergencies, but the franchise has often expanded.  The three constitutional amendments that expanded voting rights, the Fifteenth, Nineteenth, and Twenty-Sixth, were all closely connected to wars.  He suggests [*643] that the American Revolution and conflicts with Native Americans led to the relaxation of the property requirement and eventually to universal white male suffrage.  Absentee ballots were first made available during the Civil War. The beginning of the end for poll taxes was seen during World War Two, first for troops during the war and then for veterans after the war.  The Democratic white primary also met its end during World War Two.  Asian and Native Americans made gains in voting rights as well during the Second World War. Graber also argues that the Cold War partially contributed to the passage of the Voting Rights Act of 1965.  The US could not push for free and fair elections abroad when so many Americans were being denied access to the ballot box at home.  The expansion of voting rights during wartime is not just an American phenomenon, but has happened in Britain, Belgium, Canada, and Italy. Graber is not optimistic that the War on Terror will lead to an expansion of voting rights or other civil rights because the effort has not required mass mobilization.  It has generally been the need for national unity and mass participation that has expanded the franchise and other rights.


Mark Tushnet offers a more theoretical contribution to the anthology. He presents three different arguments for how war and other emergencies should be handled by American constitutional jurisprudence. The first argument is that the same constitutional standards used during non-emergencies should be applied during wartime; however, the fact that the country is at war could be determinative in the application of the standards.  The second argument is that significantly different standards should be applied during wartime than are applied during peacetime. The third argument is that during wartime it is possible to justify suspending the application of the Constitution in determining the legality of governmental action.  Tushnet seems to be concerned about the potential harm that might follow from precedents being set using the first two arguments.  Emergency powers that are rationalized as consistent with the Constitution might become acceptable under other circumstances.  He uses Robert Jackson’s dissent in KOREMATSU as an example of this.  Jackson suggested that the Court had rationalized racism into the Constitution, and as a result the Court’s decision is a more serious threat to liberty than the military’s relocation order.  He also indicated that the courts should not have attempted to interfere with the Army’s order, probably because such an effort would have been futile.  Arguably Jackson is suggesting that the Court should have declined to hear the case.  Expanding on Jackson’s reasoning, Tushnet concludes that emergencies are occasions for extraconstitutional jurisprudence when there should be a “suspension of legality.”  


The final chapter consists of edited excerpts from three terrorism detention cases decided by the Supreme Court in 2004, RUMSFELD v. PADILLA, RASUL v. BUSH, and HAMDI v. RUMSFELD.  The first case involves the detention of suspected dirty-bomber Jose Padilla.  An American citizen, Padilla was arrested in Illinois and then held in New York.  Later he was [*644] transferred to South Carolina and held in a naval brig.  Padilla filed a petition for a  writ of habeas corpus, but the Supreme Court dismissed it on technical grounds, namely that he had filed the petition in the wrong jurisdiction, New York rather than South Carolina, and named the wrong respondent, the Secretary of Defense rather than the commander of the naval brig in South Carolina.  Justice Stevens vigorously dissented, noting the importance of assistance of counsel and the problems of incommunicado detention. The second case, RASUL v. BUSH, involves foreign nationals captured in Afghanistan and held at Guantanamo Bay, Cuba.  Fourteen of the detainees filed a petition for a writ of habeas corpus.  A key issue was whether the U.S. District Court for the District of Columbia had jurisdiction.  Justice Stevens, writing for the majority, concluded that since the United States has “complete jurisdiction and control” over the naval base at Guantanamo Bay, the District Court had jurisdiction to consider the petition. The third case involved Yaser Hamdi, an American citizen captured in Afghanistan who was allegedly fighting for the Taliban.  The United States contended that Hamdi was an enemy combatant and could be held indefinitely without being charged, given access to an attorney, or provided an opportunity to refute his status as an enemy combatant. A convoluted four-justice plurality opinion, partially supported by two additional justices, indicated that Hamdi must be given the opportunity to contest his designation and detention.  This decision and the more recent HAMDAN v. RUMSFELD case provide a glimmer of hope in the effort to maintain constitutional rights during the War on Terror.   


In conclusion, Baker and Stack have assembled a thoughtful collection of essays that deal with the difficulty of balancing constitutional rights and security during wartime.  The selected essays provide historical background, theoretical insight, and contemporary issues.  This volume would prove useful as a supplemental text in a special topics course or a course on civil rights and liberties. The collection also reminds us of the importance of an informed and vigilant citizenry.



EX PARTE QUIRIN, 317 U.S. 1, 63 S.Ct. 2, 97 L.Ed. 3 (1942).


HAMDAN v. RUMSFELD, 126 S.Ct. 2749, 165 L.Ed. 2d 723 (2006).


HAMDI v. RUMSFELD, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed. 2d 578 (2004).


KOREMATSU v. UNITED STATES, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944).


RASUL v.BUSH, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed. 2d 548 (2004).


RUMSFELD v. PADILLA, 542 U.S. 426, 124 S.Ct. 2711, 159 L.Ed. 2d 513 (2004).


© Copyright 2006 by the author, Barry N. Sweet.