If we do not succeed, then we run the risk of failure. -- Vice President Dan Quayle, to the Phoenix Republican Forum, March 1990


PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

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. S. Constitution

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 in jeopardy.

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 or activities.

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 government.

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 agents provocateurs.

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 citizens.

"...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 transition team.

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 Black

For a printed copy of this material with footnotes, send $2 to
Bill of Rights Foundation
220 S. State St.
Chicago, IL 60604

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