6-16-05,10:52am

President Bush is currently lobbying Congress to reauthorize portions of the Patriot Act that are scheduled to expire. While the Patriot Act containsprovisions much needed in the war on terrorism,it also has elements that are in conflict with the civil liberties enshrined in the Constitution. Many of the provisions are violations of the Fourth Amendment right against unreasonable searches and seizures.

The Patriot Act allows the government to search someone’s home or office without informing them. It allows the government to obtain an individual’s library records, medical history, and financial documents, among many other items, without any probable cause of a crime. It requires judges to approve of wiretaps without knowing whom the suspect is. Immigrants and non-citizens can be jailed for an indefinite period of time, without any requirement that the government demonstrate that they are a threat to national security.

It’s not surprising that the federal government is attempting to strip people of their fundamental rights and freedoms. During the last two centuries, this has been a common occurrence in America during a time of war.

In the Vietnam War, the Nixon administration used the Federal Bureau of Investigation so spy on anti-war activists. And it directed the Internal Revenue Service to harass members of the anti-war movement. After former intelligence officer Daniel Ellsberg gave top-secret files concerning U.S. involvement in Vietnam to the press, President Nixon ordered his secret White House agents to break into the office of Ellsberg’s psychiatrist and obtain documents that could be used to embarrass him.

Congress became obsessed with communism during the Korean War. It passed the McCarran Internal Security Act of 1950, which required organizations regarded to be communist to register with the Department of Justice, to identify their members, and to furnish their financial records. It also excluded communists from employment in defense factories. Communists were barred from immigrating to the U.S., and any alien suspected of being a “subversive” could be deported. After the U.S. entered World War II following the attack on Pearl Harbor, the Roosevelt administration became fearful that spies were living among Japanese-Americans. In March 1942 President Roosevelt issued Executive Order 9102, which mandated the internment of Japanese-Americans on the West coast. Between 1942 and 1944, approximately 120,000 Japanese-Americans were held in internment camps. More than two-thirds were native-born American citizens of Japanese ancestry. The Supreme Court upheld the constitutionality of internment in 1943 when it ruled in Hirabayashi v. United States, “residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of different ancestry.”

During World War I, there was intense opposition to America’s involvement in its first international conflict. President Wilson and Congress responded with a series of Draconian laws designed to squash dissent. In 1917, Congress passed the Trading with the Enemy Act, which prohibited the mailing of magazines that were characterized as offensive to the government. “The Masses” magazine was barred because of an article that asserted, “This is Woodrow Wilson’s and Wall Street’s war.”

This was followed by the Espionage Act, which was created to prevent spying and sabotage, but also carried penalties including a twenty-year prison sentence for merely criticizing the war. In 1918, Congress passed the Sedition Act, which made it illegal to use “disloyal, profane, scurrilous, or abusive language” about the war, the federal government, the Constitution, the flag, and the armed services. Approximately 2,100 people were prosecuted under this act. One individual received a jail sentence for remarking, “This is a rich man’s war.”

President Lincoln was also concerned with dissent and criticism during the Civil War. In 1862 he suspended the writ of habeas corpus, which protects against unlawful imprisonment, throughout the North and announced that it applied to “all persons discouraging volunteer enlistments…or guilty of any disloyal practice.” Approximately 20,000 people were arrested for disloyalty of other offenses, most of who were never charged with a crime or brought to trial. Clearly, the government’s efforts to limit civil liberties during wartime are a long-standing tradition. But so is the willingness of the American people to allow it. Hopefully, current discussions regarding the Patriot Act will encourage the public to respond differently this time.

Gene C. Gerard is a professor of American history at Tarrant County College in Arlington, Texas and a contributing author to the forthcoming book 'Americans at War,' to be published by Greenwood Press.