The Bill Of Rights: Can We Take Freedom For Granted?by Richard Criley Bill of Rights Foundation
"Congress shall make no law. abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble and to petition the
Government for a redress of grievances." -- First Amendment to the U.
We assume that the United States is dedicated to individual freedoms; it's
part of our national identity.
But as individuals, we seldom appreciate our constitutional freedoms until
we are unjustly treated. An abusive police officer, an unfair judge,
an unresponsive tax auditor, or some other person in a position of authority
can vividly show us how easily our rights can be trampled. Then we are
outraged and want to do something to defend our fragile freedoms.
FREEDOMS FOR ALL--OR FREEDOMS FOR NONE
What can we do? Our system of individual rights depends upon their availability
to *everyone* -- including some people whose beliefs we may not like. But
if the constitutional rights of any unpopular group or minority are weakened
by a decision of the Supreme Court or an Act of Congress, we will all
lose some of our freedom in the process.
The First Amendment declares that "Congress shall make no law . . . abridging
the freedom of speech, or of the press; or the right of the people peaceably
to assemble and to petition the Government for a redress of grievances." This
protects us from an abusive government policy against disagreement or
dissent. The colonists wrote it after their treatment under repressive
policies of the British, to guarantee freedom in America.
The First Amendment guarantees freedoms that are both individual and collective. If
the *individual* is not free to express his or her opinion, not only
is that individual deprived of a basic freedom, but the rest of society
is deprived of the right to hear all sides of a controversial question.
Without meaningful debate, democracy is reduced to a hollow shell. The wisdom
of any decision that is translated into governmental action depends on
the public's access to all the pertinent facts and opinions. When government
propaganda replaces free debate, the consent of the governed has been
engineered, and democracy does not properly function.
Under the Constitution, the *people* are the ultimate authority. The preamble
to the Constitution declares, "We, the People of the United States .
. . do ordain and establish this Constitution. . . ." This empowerment
of the people depends upon our right to know what the government is doing
in our name. If the public cannot discover the truth because the
government suppresses opinion or conceals relevant facts (calling it
security), we citizens lose control of our democracy and take a step
toward dictatorship. The rights of all are diminished.
Freedom of expression and openness of government are closely related. Both
are critical ingredients of democracy. Let us take a look at what's happened
to our freedoms since the end of World War II.
THE NUCLEAR ERA--A THREAT TO LIFE AND FREEDOM
Millions of Americans are aware of the threat of nuclear war; but few
of us recognize how the nuclear era placed our democratic institutions
The world entered a new era when our atomic bombs were dropped on Hiroshima
and Nagasaki. For the first time in history the weapons of war carried
the potential of destroying all human life. As Albert Einstein said, "The
unleashed power of the atom has changed everything except our modes of
thinking, and thus we drift toward unparalleled catastrophes."
U.S. Government reliance upon nuclear weaponry as a dominant element
of foreign and domestic policy, while propounded as a defense of democracy, is
in fact its greatest threat. Four decades of adherence to this
policy has fundamentally altered the nature of our constitutional democratic process
and poses a paramount threat to civil liberties. -- American Civil
Liberties Union 1983 Biennial Conference Report
Instead of the peace that we hoped would follow the Allied victory over Hitler
and the Nazi ideology, the U.S. entered a cold war with our wartime ally,
the Soviet Union. At first only the U.S. possessed nuclear weapons,
and our national security system was focussed on guarding our " atomic
secret." But given the universality of scientific knowledge, the " atomic
secret" was inevitably unraveled by Soviet scientists and military planners
who created and exploded their nuclear bomb a few years later. The
U.S. government, however, encouraged the belief that the Soviets had
figured out the power of the atom only because somebody stole our "atomic
secret." In the political and anti-Soviet hysteria of the 1950's,
political dissent in America was widely equated with disloyalty and treason.
Popularly known as the "McCarthy era," the period actually began at
the end of World War II, before Senator Joe McCarthy rose to national prominence
in 1950, and it continued long after his death in 1957. This political
era was the product of many factors. U.S. corporations sought to
take advantage of the post-war pre-eminence to shape the emerging structures
of the third world to their liking. The political center shifted
to the right following the death of Franklin Roosevelt. The news media
adjusted to the new climate and in retrospect appears to have been easily
manipulated by government agencies.
Congress, dominated by the 1950's hysteria of "anti- Communism," supported
the development of an unprecedented peacetime military establishment,
a network of repressive government institutions, the growth of right-wing
blacklisting and witch-hunting of alleged traitors. The Supreme Court
retreated from the Bill of Rights. Many labor unions, liberal organizations
and other independent groups which had traditionally defended civil liberties
retreated in the 1950's to avoid being branded "subversive." Some
groups even purged their membership ranks of dissenting voices.
Among the many forces which contributed to McCarthyism, two government institutions
played a leading role in repressing the First Amendment right to dissent. One,
the House Un-American Activities Committee, operated in the spotlight
of media attention. The second, the Federal Bureau of Investigation,
performed its most damaging work under cover of secrecy.
"The principle at stake was the First Amendment, the right of
people not to be punished for dissenting beliefs. And so I would say
that one of the first lessons of the '50's is the need for serious national
First Amendment education: what it is, how to use it, how to know when
it is under attack, and how to defend it. -- Victor Navasky, Editor,
The Nation, at the "No More Witch-Hunts" rally, Chicago, 1981
HUAC--HIGH COURT OF THE POLITICAL INQUISITION
The headline-hunting House Un-American Activities Committee (HUAC) was officially
a legislative committee of Congress. But contrary to constitutional
principles, HUAC actually functioned as the chief public prosecutor and
judge of political behavior and heresy. HUAC subpoenaed, denounced,
and punished the individuals and groups it claimed were guilty of being "un-American". It
was the role model for similar investigative committees which sprang
up in the U.S. Senate and state legislatures across the country. HUAC's
voluminous published hearings, reports and catalogues of "subversives" became
an official index of those condemned to be ostracized and blacklisted. Blacklisted
individuals found themselves unable to get work and sometimes housing,
because of accusations someone had made about their political beliefs
Many thousands of American were called before HUAC or another of the investigative
committees as "unfriendly witnesses" to be publicly judged and pilloried. Persons
named by informers suffered disruption of their lives and careers. Even
more important, fear of being branded drove millions of citizens away
from political activity and open expression of their opinions. These "witch-hunt" victims
were not charged with legal offenses; they were condemned and punished
without regard to Constitutionally mandated rules of evidence or rights
to due process.
AMERICA'S SECRET POLICE
The Federal Bureau of Investigation (FBI) abused its mandate for law enforcement
in the 1940's, 50's 60's and 70's. Secretly it engaged in destroying
those political views and opinions which FBI Director J. Edgar Hoover
did not personal approve. With its awesome staff of disciplined agents,
the FBI organized a vast network of political spies who infiltrated thousands
of political, religious and civic organizations. It trained and coordinated
similar operations by other law enforcement agencies at every level of
In the City of Chicago alone, from 1966 to 1976, the FBI employed (at
a cost of $2.5 million) over 5,000 secret undercover informers to operate within
civic and political organizations which were violating no laws. For 16
years (1960 to 1977), the FBI employed 1,600 informers to infiltrate
*one* small political group, the Socialist Workers Party (at an estimated
cost of $26 million). Such was the national pattern.
The information gathered by the FBI's informant network was supplemented by
illegal wiretaps, letter openings, burglaries of office files, secret examination
of bank records, clippings from newspapers, and physical surveillance. At
the FBI and other government offices, vast files of organizations' political
policies and individuals' opinions were catalogued according to their
degrees of presumed "dangerousness" in the FBI's secret "Security Index." Thousands
of individuals in the FBI Index were targetted for round-up and detention
in case of a "national emergency," although it is still unclear what
constituted a "national emergency." The FBI created this detention
list in the 1940's, even before legislation was passed providing any
statutory authority (the Emergency Detention Act of 1950).
"COINTELPRO is the FBI acronymn for a series of covert action
programs directed against domestic groups....Many of the techniques used
would be intolerable in a democratic society even if all of the targets
had been involved in violent activity, but COINTELPRO went far beyond
that...the Bureau conducted a sophisticated vigilante operation aimed
squarely at preventing the exercise of First Amendment rights of speech
and association, on the theory that preventing the growth of dangerous
groups and the propogation of dangerous ideas would protect the national security
and deter violence. -- Final Report of the Senate Select Committee
to Study Governmental Operations with respect to Intelligence Activities
- Book Three, Staff Report, April 23, 1976.
THE FBI NEUTRALIZATION PROGRAM
Collecting information was only the starting point of the FBI's " neutralization
program." One segment of this program, with the code name of COINTELPRO,
became a major scandal when its existence was first revealed to Congress
in 1976 following the Watergate investigations. Established to injure
and discredit certain targetted advocates of social change, it paid special
attention to those who voiced criticisms of the FBI. According
to the Congressional Committees investigating COINTELPRO, the program
was an illegal and unconstitutional abuse of power by the FBI.
When the Freedom of Information Act was amended in 1974 to remove a special
exemption that had kept the FBI's records secret, it opened the door
to an unending stream of details of FBI misconduct. Hundreds of thousands
of pages of documents now reveal the nature of the FBI's " neutralization" programs
directed against individuals in such organizations as The Southern Christian
Leadership Conference, the National Committee Against Repressive Legislation,
the National Lawyers Guild, and Students for a Democratic Society, as
well as numerous other civil liberties, civil rights, peace, labor and
social action groups.
With intimate knowledge of the organizations' internal structures, personalities,
plans and projected publications, the FBI could effectively disrupt and
damage target groups. Counter- demonstrations were initiated, encouraged
and coordinated by the FBI. Speaking tours and meetings were disrupted,
anonymous "poison pen" letters were selectively mailed to discredit leaders
and stimulate factional disputes. Forged leaflets were distributed in
an effort to disrupt activities and create confusion. Sources of
organizational income dried up as contributors were harassed. Divisive
policies and factional strife were nurtured by infiltrators acting as
Working secretly with HUAC and its counterparts, the FBI provided names of
individuals to be attacked in committee hearings, supplied informer witnesses
to "name names," and laundered secret information from its files for
public dissemination. With this supposedly "public source" information,
the FBI conducted a massive campaign to manipulate public opinion through
secret contacts with a nationwide network of columnists, commentators,
editors, reporters, and radio/TV producers.
Much of the FBI record is still unavailable to the public, but from
what has been released, it is clear that the total effect of the FBI's political
interventions on our national life was considerable. Many political
and civic organizations did not survive the FBI " neutralization" treatment;
most were seriously weakened. The FBI undoubtedly did succeed in
leaving its imprint on public opinion, chilling the free expression of
ideas, distorting public perceptions, changing the nature of public debate
and influencing the course of national policies.
During the long reign of FBI Director J. Edgar Hoover, the FBI functioned as
a law unto itself. So great was Hoover's prestige and power that
no President dared to replace him; no Attorney General (theoretically Hoover's
superior) could exercise control or supervision. Hoover's special files
on the personal lives of government leaders, which he kept in his private
vault, were an effective "insurance policy" against political opposition
to the FBI. Few Senators or Representatives dared express
criticisms or question FBI appropriations. With Hoover's death in 1972,
the FBI was no longer an impregnable bastion of power, and Congress did
begin to exercise some Control over the agency.
A REBIRTH OF FREEDOM
The post-Watergate years witnessed a rebirth of constitutional freedom. After
strengthening the Freedom of Information Act in 1974, Congress re- instituted
its oversight (previously non-existent) over intelligence agencies. HUAC
and its counterpart, the Senate internal Security Subcommittee, were
abolished. Repressive laws were repealed or made inoperative.
New guidelines governing the FBI were issued by Attorney General Edward Levi
(the "Levi guidelines") seeking to limit the FBI's investigative power
to legitimate law enforcement matters. Rules for secrecy classificatiton
of government documents were liberalized, recognizing the public's right
to be informed. We seemed to be awakening from the long political
nightmare of the McCarthy/HUAC/Hoover era.
RETURN TO REPRESSION IN THE 80s
In the 1980s, however, the trend toward greater freedom is being reversed once
again. In December 1981, President Reagan authorized the Central Intelligence
Agency (CIA) to engage in domestic spying again, (Executive Order 12333)
despite Congress's original intent to limit the CIA to intelligence collection
abroad. In April 1981, the President established new rules for
classification of documents, severely limiting the right of public access,
emphasizing "security" interests in more secrecy, making declassification
more difficult, and permitting re- classification of documents that had
previously been released to the public. Since classified documents
are exempt from the Freedom of Information Act, President Reagan's order
has greatly reduced the amount of information previously available to
"...it is axiomatic that individual liberties are secondary to
the requirements of national security and internal civil order." -- "Mandate
for Leadership," Heritage Foundation report presented to President Reagan's
For the first time ever, in June 1981, Congress imposed criminal penalties
for publishing information already made public, with the Intelligence
Identities Protection Act. In January 1983, investigative reporters,
historians and other researchers were priced out of the information market,
with new administrative guidelines for Freedom of Information Act requests
that greatly increased fees for obtaining documents.
In March 1983, the President issued a directive (National Security Decision
Directive 84) to stop unauthorized leaks of information from government
officials. In domestic security and terrorism investigations it
required that government officials sign an agreement that never in their
lifetimes would they write or speak publicly about their government experience,
without obtaining prior clearance. Willingness to take lie detector
tests when requested was made a condition of government employment. This
Presidential act extended controls over freedom of speech (previously
applied only to CIA personnel) to all executive agencies. Vehement
protests from both the House and the Senate have presently forced a temporary
suspension of the order.
In March 1983, new guidelines for the FBI became effective, rescinding the
earlier Levi guidelines. They permit the use of informers and other intrusive
means even without a reasonable cause to believe that any criminal violation
is taking place. Mere speech, without evidence of criminal conduct,
will be enough to trigger investigations in areas legally protected by
the First Amendment.
In April 1984, President Reagan proposed an "anti-terrorism" bill (S. 2626/H.R.
5613) which could imprison Americans for ten years for supporting or "acting
in concert with" groups or nations designated as " terrorists" by the
Secretary of State. Representative Don Edwards (Democrat, California),
chair of the House Judiciary Subcommittee on Constitutional Rights, observed
that under the proposed law "the Secretary by an edict can almost create
the crime himself." Courts would be forbidden from questioning
the validity of the Secretary's designation. On the other hand,
the bill would exclude from prosecution activities "conducted by officials
of the United States government or their agents"--such as the 1984 mining
of Nicaraguan harbors or other " authorized" terrorist acts against people
in other countries.
According to the American Civil Liberties Union, the Reagan "Anti- Terrorism
Bill" is "wholly unnecessary, since current law [already] prohibits bombing,
sabotage, kidnapping, and other crimes which may be committed by terrorist
organizations or factions."
But the proposed legislation would create a new political crime: opposing government
policy in such areas as Central America or the Middle East. Such nonviolent
acts as sending school books to Nicaragua, or voicing support for a negotiated
settlement in El Salvador, would be made criminal. Because of strong
opposition in Congress, this legislation has not yet been passed.
WHAT WILL THE FUTURE BRING--DEMOCRACY OR A POLICE STATE?
With these disturbing developments in the 1980s, all of the components are
in place for a return to a new era of coordinated repression of our freedoms. Our
democracy has survived some difficult tests before, not solely because
of the vigilance of a vast number of our citizens, but because of some
fortunate turns of history.
President Eisenhower appointed a Supreme Court Chief Justice who was
not previously noted for his support of civil liberties, but Earl Warren became
an outstanding champion of the Bill of Rights and blunted the impact
of McCarthyism in the mid-50s. HUAC leaders made many mistakes
in the 1940's and 1950's, becoming entangled in criminal violations which contributed
to discrediting the Committee. President Nixon (perhaps foolishly)
kept secret tapes and they provided the evidence of "high crimes and
misdemeanors" that ensured his impeachment, forced his resignation, and
exposed the misuse of government agencies.
Freedom loving Americans may not be so lucky again. Our alertness
to events, our opposition to every step taken that would undercut our constitutional
rights, our thoughtfulness in the voting booth and our courage to resist
oppression will determine whether or not we remain a democratic society
or adopt an American version of a police state.
"Our First Amendment was a bold effort... to establish a country
with no legal restrictions of any kind upon the subjects people could investigate,
discuss, and deny. The Framers knew, better perhaps than we do today,
the risks they were taking. They knew that free speech might be the friend
of change and revolution. But they also knew that it is always
the deadliest enemy of tyranny." -- U. S. Supreme Court Justice Hugo
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