THE TERROR ATTACK ON CIVIL LIBERTIES

America has lauded itself as a country that cherishes individual

liberty. Our constitution and the Bill of Rights are held out as models for the
rest of the world to immolate. But America has never been comfortable
protecting civil liberties in times of national crises.

Former U.S. Supreme Court Justice William Brennan in a 1987

speech at the Law School of Hebrew University in Jerusalem pointed out
that “[t]he ink had barely dried on the First Amendment” when Congress
passed the Alien and Sedition Acts of 1798. The Act authorized the
President to deport any alien shown to be working against the newly-formed
government’s national interest. The Act explicitly barred publication of “any
false, scandalous and malicious writing” designed to hold the government in
contempt or disrepute. See, Block, Frederic, “Civil Liberties During
National Emergencies: The Interactions Between the Three Branches of
Government in Coping with Past and Current Threats to National Security,
29 N.Y.U.Rev.L.&Soc.Change 459 (hereinafter “Block”)

“The enforcement of these statutes, particularly the Sedition Act,

constitutes one of the greatest blots on our country's record of freedom.
Publishers were sent to jail for writing their own views and for publishing
the views of others. The slightest criticism of Government or policies of
government officials was enough to cause biased federal prosecutors to put
the machinery of Government to work to crush and imprison the critic.
Rumors which filled the air pointed the finger of suspicion at good men and
bad men alike, sometimes causing the social ostracism of people who loved
their free country with a deathless devotion.” See, Community Party of the
United States v. Subversive Activities Bd., 367 U.S. 1, 155 (1961)(Black, J.
dissenting).

Block pointed out that during the Civil War President Lincoln
suspended the writ of habeas corpus permitting the detention of 20,000
suspected of disloyalty. One of those detained was a Maryland man named
John Merryman who advocated Maryland’s secession from the Union. The
Chief Justice of the U.S. Supreme Court, John Taney, ordered Merryman
released but the order was ignored by military officials. Frustrated, Taney
wrote that he “exercised all the power which the constitution and laws
confer[red] on [him], but that power [was] resisted by a force too strong for
[him] to overcome” and it was up to President Lincoln “in fulfillment of his
constitutional obligation … to determine what measures he will take to
cause the civil process of the United States to be respected and enforced.”
See, Ex parte Merryman, 17 F.Cas. 144, 153 (C.C. Md. 1861) (No. 9,487).

President Lincoln took no action. John Merryman remained

incarcerated.

In 1866 the Supreme Court in Ex parte Milligan dealt with another

case in which a military tribunal had convicted an Indiana man, who
belonged to what Block called an “insurgent group” named Sons of Liberty,
and ordered him hanged. The man sought a writ of habeas corpus which had
by then been restored. The court said that the Constitution applies “equally
in war and in peace,” and that since Milligan neither a resident of any state
in rebellion nor a prisoner of war, the military tribunal had no authority to
try him. See, 71 U.S. 2, 120 (1866).

In 1917 Congress enacted the Trading with the Enemy Act (TWEA)
shortly after it declared war against Germany. Block wrote that as the Act
was originally enacted it permitted “the President to declare a national
emergency following a congressional declaration of war ‘if [he] shall find it
compatible with the safety of the United States’.” Id. Under TWEA, the
President assumed almost unlimited power “with respect to, or transactions
involving, any property in which any foreign country or a national thereof
has any interest.” Id

TWEA would prove for decades to come a valuable asset to any

President who deemed the country faced with a “national emergency. Block
wrote that President Wilson utilized the Act “as the basis for suspending the
gold standard, conscripting soldiers, and taking over portions of railroad,
ocean shipping, and communications industry.” Id.

Congress in 1993 expanded the reach of TWEA during the height of

the Depression to allow the President in peacetime to declare a “national
emergency” if he felt a social crisis threatened the interests of the country.
President Roosevelt immediately jumped on TWEA like molasses on
pancakes to support many of his radical “New Deal” programs. The same
year Congress gave him the TWEA authority, Roosevelt used it to declare a
“Bank Holiday” to prevent what Block called “hoarding of gold and
currency.” Id. [President Truman used in 1950 to seize control of many of
the nation’s steel mills and President Nixon used it twice: one to stop a
Postal Service work stoppage in 1970 and again in 1971 to impose tariffs on
imported goods to halt the decline of international monetary reserves of the
United States.]

In 1917 Congress also passed the Espionage Act which, as Block

wrote, “criminalized the making of false statements during times of war with
the intent to undermine the success of the war effort and which, for the first
time, granted federal courts the power to issue search warrants.” Id. As it did
with TWEA, Congress in 1918 expanded the Espionage Act to prohibit the
publication of “any disloyal, profane, scurrilous, or abusive language” about
the government of the United States,

Criminal convictions under the Espionage Act quickly made their way
to the United States Supreme Court. In Schenk v. United States the general
secretary of the American Socialist Party was convicted of distributing
leaflets that read “Assert Your Rights” and “Do Not submit to Intimidation.”
In upholding Schenk’s conviction on the premise that the leaflets posed a
“clear and present danger,” the Supreme Court said that “[w]hen a nation is
at war many things that might be said in time of peace are such a hindrance
to its efforts that their utterance will not be endured so long as men fight and
that no Court could regard them as protected by any constitutional right.”
Id., 249 U.S. 47, 51-52 (1919).

That same year the Supreme Court used the same “clear and present
danger” test to uphold the conviction of Eugene Debs who, in a public
speech, told the audience that “you need to know that you are fit for
something better than slavery and cannon fodder.” See, Debs v. United
States, 249 U.S. 211, 214 (1919). See also: Block, supra.

Renowned Supreme Court Justice Oliver Wendell Holmes authored

both the Debs and Schenk decisions. But the brilliant jurist had an
immediate change of mind. Federic Block explained:

“When, in 1919, another Espionage Act leafleting conviction made its

way to the Supreme Court, however, Justice Holmes dissented--not because
the Court overturned the conviction, but because he had reconsidered his
position regarding the boundaries of permissible anti-war speech. In that
case, Abrams v. United States, the Court upheld the defendant's conviction
for the distribution of leaflets critical of United States policy at home and in
Europe. In his dissenting opinion, Justice Holmes, joined by Justice Louis D.
Brandeis, introduced the ‘marketplace of ideas’ approach to the First
Amendment, writing that ‘the ultimate good desired is better reached by free
trade in ideas--that the best test of truth is the power of the thought to get
itself accepted in the competition of the market’.” Block, supra. See also:
Abrams, 250 U.S. 616, 651-72 (1919)(Holmes, J. dissenting).

Justice Holmes noted that the judiciary has a fundamental duty to be

“eternally vigilant” against government efforts to “check the expression of
opinions” unless the suppression of such opinions was necessary “to save
the country.” Id. Joined in the “marketplace of ideas” approach, Justices
Holmes and Brandeis dissented in two other similar cases. See, Gitlow v.
New York, 268 U.S. 652, 672 (1925)(Holmes, J. dissenting); Whitney v.
California, 274 U.S. 357, 372 (1927)(Brandeis, J. concurring).

World War II was not a period friendly to civil liberties. Justice

Holmes’ “marketplace of ideas” doctrine became a vague memory. In 1940
Congress enacted the Smith Act which provided that “[w]hoever knowingly
or willfully advocates, abets, advises, or teaches the duty, necessity,
desirability, or propriety of overthrowing or destroying the government of
the United States or the government of any State, Territory, District or
Possession thereof, or the government of any political subdivision therein,
by force or violence” could subject to imprisonment up to twenty years.

While the Supreme Court joined Congress in the assault on civil

liberties during the “war years” with its “clear and present danger” mindset,
the Court was also in a cauldron of legal and political turmoil.

For example, in Minersville v. Gobitis upheld the school expulsion of

Jehovah’s Witness children who refused to daily recite the “Pledge of
Allegiance.” The Court said that the flag promoted “national cohesion” and
that “national unity is the basis of national security.” See, 310 U.S. 586, 595-
96 (1940). The Supreme Court, however, three years later reversed its
position in Gobitis, saying that those “who begin coercive elimination of
dissent soon find themselves exterminating dissenters. Compulsion
unification of opinion achieves only the unanimity of the graveyard.” See,
West Virginia v. Barnette, 319 U.S. 624, 641 (1943).
 But that judicial warning was short-lived under the weight of war
politics and social hysteria. That same term in 1943 and the following term
in 1944 the Court dealt with two cases involving decisions made by
President Roosevelt, with Congressional approval, that took away the
freedom of movement, right of expression, and ultimately the physical
freedom of Japanese-American citizens. The Court in Hirabayashi v. United
States and Korematsu v. United States addressed the constitutionality of
these measures: “ ...{t]here is support for the view that social, economic and
political conditions … have .. prevented [the] assimilation [of Japanese-
Americans] as an integral part of the white population [therefore] Congress
and the Executive could reasonably have concluded that these conditions
have encouraged the continued attachment of members of this group to
Japan and Japanese institutions.” See, Hirabayashi, 320 U.S. 81, 96-98
(1943); Korematsu, 323 U.S. 214 (1944)

“We cannot say that these facts and circumstances,” the Hirabayshi
court continued, “considered in the particular war setting, could afford no
ground for differentiating citizens of Japanese ancestry from other groups in
the United States. . . . We cannot close our eyes to the fact, demonstrated by
experience, that in time of war residents having ethnic affiliations with an
invading enemy may be a greater source of danger than those of a different
ancestry. Nor can we deny that Congress, and the military authorities acting
with its authorization, have constitutional power to appraise the danger in
the light of facts of public notoriety.” Id., at 101-102.

But the Court was kinder to three other cases in consecutive years
involving alleged threats to national security. In 1943 the Court in
Schneiderman v. United States overturned a governmental decision to
revoke the citizenship of a member of the communist party. 220 U.S. 118
(1943). In 1944 the Court in Hartzel v. United States upheld the right of an
anti-Semite to send political literature to members of the armed forces, no
matter how immoderate or vicious “without running afoul of the Espionage
Act of 1917.” See, 322 U.S. 680, 689 (1944). In 1945 the Court in Bridges v.
Wixon halted government efforts to deport a labor organizer who had ties to
the communist party. See, 326 U.S. 135 (1945). The Court stated:

“It is clear that Congress desired to have the country rid of those
aliens who embraced the political faith of force and violence. But we cannot
believe that Congress intended to cast so wide a net as to reach those whose
ideas and program, though coinciding with the legitimate aims of such
groups, nevertheless fell far short of overthrowing the government by force
and violence.” Id., at 147-48.

In the wake of World War II the global “threat of communism” had

become the latest crisis faced by the United States. In response to that threat
Congress enacted the Internal Security Act of 1950 and the Communist
Control Act of 1954. And shortly after the invasion of South Korea by
Communist forces, Congress enacted the Emergency Detention Act of 1950
which authorized the president to declare an “Internal Security Emergency”
during times of war, invasion or “[i]nsurrection within the United States in
aid of a foreign country.” The Act bestowed upon the U.S. Attorney General
the authority to detain “each person as to whom there is reasonable ground
to believe that such person probably will engage in, or probably will
conspire with other to engage in, acts of espionage or of sabotage.” Block,
supra.

In 1951 the Supreme Court in Dennis v. United States upheld the

convictions of leaders of the United States Communist Party under the
Smith Act, saying:

“[T]he leaders of the Communist Party in this country were unwilling

to work within our framework of democracy, but intended to initiate a
violent revolution whenever the propitious occasion appeared[;] . . . that the
Communist Party is a highly disciplined organization, adept at infiltration
into strategic positions, use of aliases, and double-meaning language; that
the Party is rigidly controlled; that Communists, unlike other political
parties, tolerate no dissension from the policy laid down by the guiding
forces, but that the approved program is slavishly followed by the members
of the Party; that the literature of the Party and the statements and activities
of its leaders, petitioners here, advocate, and the general goal of the Party
was, during the period in question, to achieve a successful overthrow of the
existing order by force and violence. “ See, 341 U.S. 494, 497 (1951)

The following year the Supreme Court drew a constitutional line in

the sand in its landmark decision in Youngstown Steel & Tube Co. v.
Sawyer. President Truman facing a potential steelworkers’ strike in the
middle of the Korean War order the Secretary of Commerce to seize control
of and operate the nation’s steel mills. Truman acted without Congressional
authority. The Supreme Court said the seizure was illegal, saying that “the
President’s power, if any, to issue the [seizure] order must stem either from
an Act of Congress or from the Constitution itself.” See, 343 U.S. 579, 585
(1952).

The Court added that “even though ‘theater of war’ be an expanding

concept, we cannot with faithfulness to our constitutional system hold that
the Commander in Chief of the Armed Forces has the ultimate power as
such to take possession of private property in order to keep labor disputes
from stopping production. This is a job for the Nation's lawmakers, not for
its military authorities.” Id.,at 587

Presidents like the authority to unilaterally declare national

emergencies. Following the Roosevelt-Truman precedents, Presidents
Kennedy, Johnson, Nixon, and Carter all used the vestiges of TWEA to deal
with “national emergencies.” In 1977 Congress decided to curtail this
presidential authority with the passage of the International Emergency
Economic Powers Act (IEEPA). While IEEPA maintained the president
broad authority to declare national emergencies during war time, it amended
the TWEA which reduced the president’s power to declare a national
emergency in peacetime. However, once a national emergency has been
declared, the President still enjoys the broad powers under TWEA. See,
Block, supra. These powers include the authority to confiscate “any
property” belonging to an individual, organization or country which “has
planned, authorized, aided or engaged in such hostilities or attacks against
the United States.”

Then came the “threat of terrorism.” With the passage of the Foreign
Intelligence Surveillance Act of 1978 (FISA), the first legal definition of
“terrorism” was introduced to criminal law in the United States:
“international terrorism.” This term was defined as activities that:

“ (1) involve violent acts or acts dangerous to human life that are a
violation of the criminal laws of the United States or of any State, or that
would be a criminal violation if committed within the jurisdiction of the
United States or any State;
(2) appear to be intended--
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping;
and
(3) occur totally outside the United States, or transcend national boundaries
in terms of the means by which they are accomplished, the persons they
appear intended to coerce or intimidate, or the locale in which their
perpetrators operate or seek asylum.”

The “threat of terrorism” moved America beyond the narrower

confines of “national emergencies.” The “crisis” became “international
terrorism.” The very word “terrorism” would assume a life of its own. By
1983, a mere five years after the enactment of FISA, Alex P. Schmid had
catalogued 109 different definitions of terrorism which had been used
between 1936 and 1980. See, Political Terrorism: A Research Guide to
Concepts, Theories, Data Bases and Literature 119-52 (1983). See also:
Perry, Nicholas J., The Numerous Federal Legal Definitions of Terrorism:
The Problem of Too Many Grails, 30 J.Legis. 249 (2004).

Today, through Congressional enactments and Executive Orders

issued by the President, there are as Perry reported “nineteen different
definitions of terrorism, as well as three terms relating to the support of
terrorism.” The word “terrorism” is a loose label. Both the legislative and
executive branches of our government have been unable to agree upon a
uniform legal definition of “terrorism.” This governmental indecision is
fueled by a national media that uses the term so loosely that it hinders
creation of a precise legal definition.

For example, Nelson Mandella, Yassar Arafat, and Menachem Begin,

all Nobel Peace Prize winners, were once universally considered “terrorists”
by the media and the governments they challenged. The adage applies: “One
man’s terrorist is another man’s freedom fighter.” Nicholas Perry, an
attorney with the Homeland Security Department, offered the most current
legal definition of “terrorism”:

“Title 18 of the United States Code--the Criminal Code--contains the

most definitions of terrorism; it includes a chapter entitled ‘terrorism,’ as
well as definitions of terrorism in other parts of the title. The basic
definitions of terrorism in the terrorism chapter, found in 18 U.S.C. § 2331,
mirror the FISA definition. The definition of ‘international terrorism,’
enacted in 1992 and amended slightly in 2001 by the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act (USA PATRIOT Act), is a verbatim
copy of the FISA definition, with the exception that the motivation
component includes affecting governments by ‘mass destruction’ in
addition to assassination and kidnapping. Likewise, the definition of
‘domestic terrorism,’ enacted in 2001 as part of the USA PATRIOT Act, is
identical to the definition of FISA except for the inclusion of ‘mass
destruction’ in the motivation component and the jurisdictional requirement
that limits the definition to ‘domestic.’ The definition of ‘domestic
terrorism’ requires that the event ‘occur primarily within the territorial
jurisdiction of the United States’ as opposed to requiring conduct outside of
the United States or transcending national boundaries under the FISA and §
2331 ‘international terrorism’ definitions. Both definitions are deductive
with a requirement that the conduct ‘appear[s] to be intended’ to affect or
influence a government or population and potentially include all acts of
terrorism.”

Recently ten members of the Earth Liberation Front and the Animal
Liberation Front pled guilty in federal court in Eugene, Oregon to nearly two
dozen arson counts. The defendants were accused of setting the fires to
protest the slaughter of wild horses and stop logging. The government said
these defendants set 40 fires between 1996 and 2001, including a ski resort
in Vail, Colorado that did $40 million in damages, national forest ranger
stations, meat packing plants, research laboratories, and an automobile
dealership that marketed SUVs.

Prosecuting attorneys compared the actions of these defendants to the

actions of the Ku Klux Klan who burned churches in the South. U.S.
Attorney Stephen Peifer said the fires qualified as “terrorism” because they
were intend to coerce a change in government policies concerning logging,
selling wild horses for slaughter, and genetic engineering.

Peifer is relying upon United States Sentencing Guideline § 3A1.4

which was established under the authority mandated by the Antiterrorism
and Effective Death Penalty Act of 1996 and the Violent Crime Control and
Law Enforcement Act of 1994. This guideline allows a U.S. Attorney to
request and the court to grant an upward sentencing adjustment for felonies
that involved or was intended to promote "federal crime[s] of terrorism."

The first court to address the legality of §3A1.4 was the Second
Circuit in United States v. Meskini in 2003. The defendant was convicted of
conspiracy to provide material support to a terrorist act and a number of
other criminal convictions. The issue before the Second Circuit was whether
§3A1.4 impermissibly double counts by increasing both the offense level
and the criminal history category for a felony involving or intending to
promote an act of terrorism. The Second Circuit held that double counting
under §3A1.4 is permissible because Congress has the authority to establish
a sentencing formula that accounts for the same factor more than once. The
Meskini court said the language of § 3A1.4 plainly manifests the intent of
both Congress and the Sentencing Commission to account for an act of
terrorism in calculating both the offense level and the criminal history
category. See, 319 F.3d 88 (2nd Cir. 2003)

The American Law Reports discussed a Sixth Circuit case in United

States v. Graham which expanded the application of §3A1.4 by ruling the
guideline applies to conviction not specifically enumerated in 18 U.S.C.
§2332g)(5)(B) if the defendant has been convicted of conspiracy to commit
terrorism. In Graham the defendant was convicted under 18 U.S.C.A. § 371,
which makes it illegal for two or more persons to conspire to commit any
offense against the United States and to take an act in furtherance of the
conspiracy, for his involvement in a scheme to target for attack certain
interstate commerce facilities. The Sixth Circuit held that the domestic
terrorism sentencing enhancement could be applied to a sentence for
conviction of the general conspiracy statute, which is not mentioned in §
2332b(g)(5)(B). The court's conclusion was based on the distinction between
Guideline 3A1.4's "intended to promote" as opposed to its "involved in"
language, the first expression, which it believed more closely reflected the
defendant's situation here, not requiring conviction of a specific offense. The
District Court had pointed to six statutes enumerated in § 2332b(g)(5)(B)
and had held that the defendant's intent was to participate in a conspiracy to
promote those crimes of terrorism. For example, one of the enumerated
statutes, 18 U.S.C.A. § 844(i), holds punishable anyone who "maliciously
damages or destroys, or attempts to damage or destroy, by means of fire or
an explosive, any building, vehicle, or other real or personal property used in
interstate or foreign commerce or in any activity affecting interstate or
foreign commerce." There was no need, the Sixth Circuit said, to determine
that the defendant had conspired to commit a particular object crime alleged
in the general conspiracy count, where his crimes were part of a broader
conspiracy intended to promote such specifically enumerated crimes of
terrorism. The Graham court, therefore, held that the sentencing
enhancement of § 3A1.4 applied no matter which crimes were assumed in
the jury's guilty verdict. See, 275 F.3d 490 (6th Cir. 2001), cert. denied, 122
S.Ct. 1625 (2002). See also: 186 A.L.R.Fed. 147 (2003)
 The Earth Liberation Front’s website says that one of the originators
of the term “eco-terrorism” was Ron Arnold who founded the “wise-use
movement” – a collection of groups that oppose environmental regulation
and who advocate for greater industrial development of public lands. The
ELF charges that Arnold once told the TORONTO STAR that he wanted to
“eradicate the environmental movement.” Arnold is now vice-president of
the Center for the Defense of Free Enterprise, a pro-business organization,
and that “he has pushed the concept of the eco-terrorist threat in his
published writings, media appearances and congressional testimony.”
There is no comparison between criminal arson and terrorism, such as
church burnings by the Klan that killed innocent children. The ELF and ALF
have made organizational decisions to engage in criminal activity (namely,
arson and other forms of property destruction) as a form of political
expression. Criminal activity has always been an integral component of
political dissent: release of the Pentagon Papers; sit-ins at nuclear facilities;
disclosure of classified information; property destruction; and a litany of
other forms of civil disobedience. The ELF and ALF have not advocated
violence as a political strategy.

The use of organized violence in opposition to government policy, or

to intimidate the general populace, or to promote any political objective can
be described as “terrorism.” Violence induces “terror.” The fundamental
objective of terror-caused-by-violence is to intimidate, coerce, and, most
significantly, destroy an individual’s sense of personal safety.

Burning trees, car dealerships, and ski resorts, and property attacks on
animal research facilities do not induce “terror” in the community. While
these criminal acts certainly anger or outrage the body politic, they do not
threaten the peace of society or infringe upon the safety of the individual.

To classify criminal activity, regardless of its political motivations, as

“acts of terror” diminishes the impact of terror. Once private industry or
certain political interests can dictate government’s policies on shaping legal
definitions of “terrorism” – as is being done in the ELF and ALF cases –
then no form of human behavior, political or otherwise, is immune from a
“terrorist” designation. The “retarded kid” down the street can become a
“terrorist” to the other kids at the playground, or training a pit bull to fight
can become a “terrorist activity.”
 Who could possibly compare the Vail, Colorado ski resort fire to the
Oklahoma City Federal Building bombing? If the government is allowed to
expand the definition of “terrorism” to cover crimes like those committed by
the ELF and ALF, then all forms of political dissent can become targets of
“terrorism” definition.

For example, a transient who accidentally, or intentionally, starts a

forest fire, or the Muslim high school dropout who spray paints Al Qaeda on
the courthouse steps can be designated as “terrorists.”

The bottom line is that terror is spawned by violence. The ELF and
ALF are non-violent groups. They do not work with any violent political
groups dedicated to the overthrow of the United States. They have not tried
to induce terror in society. They have not tried to overthrow the government.
They have tried to call attention, albeit with criminal means, to issues they
feel are inhumane. This is not terror. It was once called “political dissent” or
“political expression.”

Are we truly a Democratic society? Do we truly believe in our

constitutionally guaranteed freedoms? Is the Bill of Rights relevant? Are we
as a people prepared to sacrifice all our civil liberties in support of the
government’s effort to “defeat the threat of terrorism”?

History teaches that we have abandoned our cherished Democratic

values in times of “national emergencies.” Our society must now face the
“global threat” of terrorism. If we succumb to the evils of torture,
elimination of judicial review for “enemy combatants,” and attempt to brand
political dissent as “terrorism,” then those cherished Democratic values will
become mere relics of another failed civilization.

While our history is littered with horrific abuses of civil liberties and
denials of constitutional protections, the American judicial system is still the
very best and most uniquely qualified to protect this society from the
“politics of terror.” It is the duty of every defense attorney in this country,
when faced with the occasion, to navigate through this political mine field to
protect the rights of the individual at all costs.