This timeline provides milestones for events and U.S. Supreme Court cases related to civil liberties.
While the nation’s leaders believe an outspoken press was justified during the war for independence, they take a different view when they are in power. The Federalist-controlled Congress passes the Alien and Sedition Acts. Aimed at quashing criticism of Federalists, the Sedition Act makes it illegal for anyone to express “any false, scandalous and malicious writing” against Congress or the president.
The United States is in an undeclared war with France, and Federalists say the law is necessary to protect the nation from attacks and to protect the government from false and malicious words. Republicans argue for a free flow of information and the right to publicly examine officials’ conduct.
Congress lets the Sedition Act expire, and President Thomas Jefferson pardons all who were convicted under the law. Jefferson, in his inaugural speech, speaks of “the right of Americans to think freely and to speak and write what they think.” The only journalists prosecuted under the Sedition Act were editors of Democratic-Republican newspapers, critics of the Federalists, who controlled Congress. Strong criticism of the Alien and Sedition Acts helped lead to the Federalists’ defeat in the 1800 elections.
Citing the threat to the Union posed by Confederate spies, President Abraham Lincoln suspends the writ of habeas corpus in Maryland and parts of Midwestern states. Habeas corpus is the right to challenge the lawfulness of a prisoner’s detention before a court in a timely manner. The suspension allows suspected spies to be held indefinitely without formal charges.
Citing threats to the Union, President Abraham Lincoln suspends the writ of habeas corpus for all states. Article I, Section 9 of the Constitution permits such a suspension only “when in cases of rebellion or invasion the public safety may require it.” (Habeas corpus is Latin for “You have the body,” and the writ is used to challenge the legality of a prisoner’s detention.) Although the U.S. Supreme Court later will rule that only Congress has the power to suspend the writ, Lincoln ignores the high court.
John Merryman is a Maryland citizen who supports the Confederates. Charged with assisting the rebellion, he is arrested. Chief Justice Roger Taney issues a writ of habeas corpus, requiring the military commander to bring Merryman before the U.S. Supreme Court. The commander refuses because of President Abraham Lincoln’s executive order suspending habeas corpus (a legal procedure through which a prisoner can challenge his detention).
Taney writes an opinion condemning Lincoln’s order as unconstitutional and declaring that Merryman is free. Taney sends a copy of his opinion to Lincoln, who ignores it and later goes before Congress to defend his right to suspend habeas corpus.
Lambdin Milligan and others were antiwar Democrats living in the North during the Civil War. They were arrested in 1864 in Indiana and charged with aiding the enemy. Under President Abraham Lincoln’s executive order, they were tried and convicted in military courts and sentenced to death by hanging. Milligan challenged the conviction in the U.S. Supreme Court, asking it to decide if the president had sole authority to create military courts and try citizens who could not appeal in a civilian court.
In 1866, after the Civil War ended, the Supreme Court ruled in favor of Milligan. The Court says in Ex parte Milligan that the president does not have authority to try civilians in military courts if civilian courts are open and functioning.
During the administration of President Theodore Roosevelt, Attorney General Charles Bonaparte orders the creation of an investigative unit for the Justice Department. The agency is renamed the Federal Bureau of Investigation (FBI) in 1935.
With World War I being fought, President Woodrow Wilson proposes the Espionage Act of 1917 to protect the country from internal warfare propaganda. Congress passes the act, which makes it a crime to intentionally interfere with military forces, recruiting or enlistment or “cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States.” Punishment is a maximum fine of $10,000, a maximum jail term of 20 years, or both. The act also bans any mailings urging treason.
An amendment to the Espionage Act of 1917, the Sedition Act is passed by Congress. It goes much further than its predecessor, imposing severe criminal penalties on all forms of expression that are critical of the government, its symbols, or its mobilization of resources for World War I. Ultimately, about 900 people will be convicted under the law. Hundreds of noncitizens will be deported without a trial; 249 of them, including anarchist Emma Goldman, will be sent to the Soviet Union.
In Schenck v. United States, the U.S. Supreme Court, in an opinion by Justice Oliver Wendell Holmes, upholds the conviction of Socialist Charles Schenck for conspiracy to violate the Espionage Act by attempting to distribute thousands of antiwar leaflets to U.S. servicemen. While acknowledging that the First Amendment under normal circumstances might protect Schenck’s activities, the Court holds that in special circumstances, such as wartime, speech that poses a “clear and present danger” can be restricted. The Court likens the ideas expressed in Schenck’s leaflets to “falsely shouting fire in a theatre and causing a panic.”
A few days later, in another opinion by Holmes, the Court will uphold Socialist Eugene V. Debs’ conviction, finding that his speech also poses a “clear and present danger” of undermining war recruitment and is not protected by the First Amendment.
After World War I ends in 1918, labor unrest continues to make the nation uneasy. The Russian Revolution in 1917 sparks fears of a worker revolution, and a “Red Scare” sweeps the nation. Starting in May 1919, dozens of mail bombs are sent to political leaders. An anarchist blows himself up outside the home of Attorney General A. Mitchell Palmer.
Fearing a communist takeover, Palmer creates the General Intelligence Division and recruits J. Edgar Hoover as its leader. Over two months, beginning in November 1919, Palmer stages several raids across the country and arrests thousands of suspected communists, Socialists, anarchists and other radicals. Many are held without trial for a long time, and some are deported. Palmer later will be criticized for ignoring basic civil rights.
In his dissent from the majority opinion in Abrams v. United States (upholding the Espionage Act convictions of a group of antiwar activists), U.S. Supreme Court Justice Oliver Wendell Holmes coins his famous “marketplace of ideas” phrase to explain the value of freedom of speech. He said that “the ultimate good desired is better reached by free trade in ideas … the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
Over the years, Holmes’ “marketplace” concept, and the idea that more is better when it comes to competing ideas, has been a consistent theme in First Amendment cases.
In response to the Palmer raids, the American Civil Liberties Union (ACLU) is founded by Roger Baldwin. The ACLU publishes the “Report Upon the Illegal Practices of the United States Department of Justice,” which criticizes the raids and similar government activities.
Rep. Martin Dies, a Texas Democrat, persuades the House to create the Un-American Activities Committee to investigate allegedly subversive political activities in the country. Dies chairs the committee, which at first investigates right-wing and left-wing groups.
In 1947, the committee will investigate the Hollywood movie industry to find leftist sympathizers. Some people named members of left-wing groups, but others refused and were convicted of contempt. Those who were named were ordered to testify before the committee. If they refused to name names, they were blacklisted by film studios and prevented from working in the industry.
In an early morning air raid, Japanese planes attack the U.S. military base at Pearl Harbor, Hawaii, killing more than 2,000 Americans. The next day, President Franklin D. Roosevelt will deliver a speech to Congress seeking a declaration of war. The speech begins: “Yesterday, December 7, 1941 – a date which will live in infamy – the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.” Soon after, the federal government will initiate curfews for Japanese, German and Italian Americans. Hundreds of Japanese nationals living in the United States also will be arrested and moved into internment camps.
Citing national security, President Franklin D. Roosevelt issues two executive orders (quickly passed into law by Congress) that authorize the internment of people of Japanese descent, including many U.S. citizens. One order designates “military areas” across eight states from the Canadian to the Mexican borders in which they are not allowed to live. The other order authorizes their relocation to internment camps. More than 120,000 people are forced to give up their homes and businesses and move to the camps.
In Hirabayashi v. United States, the U.S. Supreme Court says a federal law passed after Pearl Harbor that requires Japanese Americans to live in restricted areas and obey curfews does not violate their Fifth Amendment right to due process. The case revolves around the conviction of Gordon Kiyoshi Hirabayashi, a Japanese American college student, who had refused to register for relocation and had violated a curfew. The Court does not address the relocation issue and instead focuses on the curfew, which it deems a necessary “protective measure.”
In Korematsu v. United States, the U.S. Supreme Court finds post-Pearl Harbor restrictive measures, including internment camps, to be constitutional. The Court upholds the conviction of Fred Korematsu, a Japanese American citizen who refused to comply with a relocation order. The Court says compulsory exclusion is justified in times of “emergency and peril.” Justice Frank Murphy, one of three dissenters, says the internment order was the “legalization of racism.” The Court decides that Japanese Americans may have divided loyalties during wartime and that their segregation is necessary to protect national security.
Under the chairmanship of Rep. John S. Wood and led by Sen. Joseph McCarthy, the House Un-American Activities Committee holds a new round of hearings that focus on communist influence in Hollywood. Hundreds of prominent members of the entertainment industry are subpoenaed and asked to “name names” of communist sympathizers. Those who refuse to testify are placed on a “blacklist” within the industry and are denied work. Ultimately, more than 300 people are blacklisted. After unedited footage of the hearings becomes public, the committee’s activities come under fire. On Dec. 2, 1954, the Senate votes 67-22 to censure McCarthy for conduct unbecoming to a senator. The committee is abolished in 1975.
In the case Yates v. United States, decided in conjunction with Richmond v. United States and Schneiderman v. United States, the U.S. Supreme Court limits the government’s use of the Smith Act to prosecute Communists to those instances when a defendant actively participates in, or intentionally encourages, specific insurrectionary activities. As a result, nationwide prosecutions against hundreds of Communists or suspected Communists are halted. Passed in 1940, the Smith Act, formally known as the Alien Registration Act, made it a crime to “advocate, abet, advise, or teach” the destruction of the U.S. government.
President Ronald Reagan signs the Civil Liberties Act, which authorizes reparations of $20,000 each and a letter of apology to surviving Japanese Americans who were forced into internment camps after the Japanese attacked Pearl Harbor during World War II.
Terrorists associated with the al-Qaeda network led by Osama bin Laden hijack four airplanes. One crashes into the Pentagon in Virginia; two crash into the twin towers of the World Trade Center in New York City; and a fourth plane, believed to have the White House as its intended target, crashes in a field in central Pennsylvania. All told, more than 2,700 are killed. Afterward, federal agents take more than 1,200 people into custody. Most of the detainees are held on visa or other immigration violations and are not charged on terrorism-related offenses.
Chief Immigration Judge Michael Creppy issues an order to all immigration judges, who are Justice Department employees, that says deportation hearings are to be closed to the press and the public, including family members, if the Justice Department says it is necessary.
Civil liberties groups will challenge the policy, saying it threatens the rights of immigrants. A federal appeals court will block the policy, but not before scores of secret hearings have been conducted. After a two-year court battle, the U.S. Supreme Court will allow the hearings to be closed.
The Department of Transportation issues the first of two warnings to major airlines to avoid discriminating against passengers on the basis of their race, color, or national or ethnic origin. Still, within the first three months of 2002, the department will receive at least 84 discrimination complaints against airlines.
After the September 11, 2001, attacks, Congress swiftly passes an antiterrorism measure called the U.S.A. Patriot Act “to enable capture of the individuals responsible for the 9/11 attacks, and to prevent future attacks.” Among its provisions is a dramatic expansion of the federal government’s authority to monitor suspected terrorists’ communications (including those made by e-mail and telephone) and to obtain online records, such as organization membership lists, individuals’ purchases and other transactions. Civil liberties advocates voice concern that the measure will infringe on citizens’ rights.
After the terrorist attacks on September 11, 2001, President George W. Bush signs a military order authorizing the government to detain noncitizens suspected of terrorism, and to try them before military tribunals. Civil liberties groups criticize the order, fearing that the accused might be held indefinitely without receiving a trial, and that trials could be held in secret, without the usual rules about the kind of evidence that is admissible.
President George W. Bush signs a military order that authorizes the government to detain noncitizens suspected of terrorism and to try them before military tribunals. The order states that as a result of the Sept. 11 attacks, an “extraordinary emergency exists for national defense purposes,” and that the detentions and tribunals are needed to “protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks.” Civil liberties groups criticize the order, fearing that the accused may be held indefinitely without a trial and that any trials that occur could be held in secret without the usual rules about the kind of evidence that can be introduced.
A coalition of civil liberties groups files a Freedom of Information Act request seeking information about the names of the hundreds of individuals arrested by the federal government for immigration violations and suspected terrorist ties in the weeks after the Sept. 11 attacks. The request also asks where the accused people are being held. The request will be denied, and a follow-up federal lawsuit will be filed Dec. 5, 2001.
Attorney General John Ashcroft proposes Operation TIPS (Terrorist Information and Prevention System). TIPS would enlist a million citizen volunteers – with an emphasis on postal workers, plumbers and others whose jobs regularly take them to people’s homes – to spy on community members and report any suspicious activities to the federal government. Later, public outrage will kill the program in Congress.
Ruling on the government’s refusal to respond to a Freedom of Information Act request filed by civil liberties groups, a federal judge orders the government to release the names of all post-Sept. 11 detainees and the names of their attorneys. The judge finds that “the public’s interest in learning the identity of those arrested and detained is essential to verifying whether the government is operating within the bounds of the law.” The government appeals the ruling, and the judge issues a stay of the order pending the outcome of the appeal.
President George W. Bush signs the Homeland Security Act. Among its provisions are the creation of a Department of Homeland Security, new authority for government surveillance of individuals and groups, and limits on the kinds of information that can be requested under the Freedom of Information Act.
The inspector general of the Justice Department releases a report citing “significant problems” with the department’s detention of hundreds of illegal immigrants after the Sept. 11 attacks. The report says that government officials “made little attempt to distinguish” between possible terrorists and people with no connection to terrorism, and, once jailed, those with no terrorist ties remained imprisoned for lengthy periods.
Ruling on the government’s refusal to respond to a Freedom of Information Act request filed by a coalition of civil liberties groups, a federal court reverses a lower court’s order to release the names of all post-Sept. 11 detainees and the names of their attorneys. The court rules that an exception to the Freedom of Information Act for some information collected for law enforcement purposes applies in this case. The judges agree with the government that releasing the names could interfere with future criminal investigations.
In Padilla v. Rumsfeld, the U.S. Court of Appeals for the Second Circuit cites the Third Amendment in support of its opinion that President George W. Bush lacks the authority to keep accused terrorist Jose Padilla in confinement indefinitely. The Court reasons that although the Constitution has a few specific grants of special authority to Congress that allow it to override individual rights – and the Third Amendment’s provision for housing soldiers in private homes during war is one such example – the Constitution makes no such grants of authority to the president. Consequently, the Court rules, the president is not allowed to take action to deprive an individual of his liberty, even in a time of war.
Petitioner Yaser Hamdi, a U.S. citizen whom the government has classified as an “enemy combatant” for allegedly fighting with the Taliban during the war in Afghanistan, is detained in a Navy brig. Hamdi’s father files a habeas petition on his behalf, arguing that his son is being held in violation of the Fifth and Fourteenth Amendments. The U.S. Supreme Court says that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be allowed to contest the detention before a neutral party. The Court rejects the Bush administration’s contention that the executive branch has the last word on open-ended detentions for citizens and noncitizens.
In Rasul v. Bush, the U.S. Supreme Court rules that federal courts have jurisdiction to hear habeas corpus petitions filed by foreign detainees at Guantanamo Bay, Cuba, who contend they are being unlawfully held. The Court finds that the terms of the lease on the naval base give the United States a degree of control that makes the property the functional equivalent of U.S. territory.
A federal judge for the Southern District of New York rules unconstitutional a Patriot Act provision that allows the FBI to demand information about internet users but does not hold the FBI subject to public review or judicial oversight for its actions. The provision also forbids internet service providers from revealing that such information has been requested. Judge Victor Marrero rules that this provision violates the free speech right by prohibiting internet service providers from ever speaking about such FBI requests.
The Real ID Act is part of a general appropriations bill passed in response to heightened terrorism alerts. To try to prevent terrorists from abusing U.S. asylum laws, the Real ID Act makes it harder for asylum applicants to obtain relief. However, critics argue that the act may jeopardize the lives of asylum applicants who are in genuine and urgent need. The Real ID Act also tightens regulations on state driver’s licenses and imposes strict time limits on deportation processes.
Calling the Patriot Act “vital to win the war on terror and to protect the American people,” President George W. Bush signs a reauthorization of the two non-permanent provisions of the counterterrorism legislation, extending them for 10 years. The reauthorization, which at first was rejected by the Senate, includes more oversight provisions to address concerns that the FBI could abuse the law’s search, seizure and wiretap provisions. Also, it requires the Justice Department to more closely monitor the FBI, and for the administration to report to Congress on the FBI’s uses of the Patriot Act.
The U.S. Supreme Court rules in Hamdan v. Rumsfeld that military tribunals set up by the Bush administration to try detainees at Guantanamo Bay, Cuba, are flawed because they were not expressly authorized by Congress and do not incorporate basic trial protections. The Court says a key clause of the Geneva Conventions applies to the detainees and is enforceable in federal court for their protection. The provision prohibits mistreatment of detainees and trials except by “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people.”
In an internal memo, the Bush administration acknowledges that detainees in the war on terror are covered by a provision of the Geneva Conventions that prohibits “humiliating and degrading treatment” and requires trials “affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The memo is a step back from President George W. Bush’s 2002 executive order declaring that provision of the Geneva Conventions did not apply to Taliban or al-Qaeda detainees.
In Boumediene v. Bush, the U.S. Supreme Court, in a 5-4 vote, decides that prisoners at Guantanamo Bay have the constitutional right to challenge their detention as enemy combatants in federal court. The Court rejects a provision of the Military Commissions Act of 2006 that strips federal courts of jurisdiction to hear habeas corpus petitions from the detainees.
President Barack Obama signs executive orders that close the CIA’s secret overseas prisons, prohibit coercive interrogation methods and shut the Guantanamo Bay detention camp within a year. He also suspends the military commission system that was created to prosecute terror suspects as enemy combatants.
President Barack Obama says he plans to keep the military commission system, which was created by the Bush administration, to prosecute some terror suspects at the Guantanamo Bay detention camp. The federal courts also will be used to prosecute some detainees. The administration says changes will be made to the system to expand the legal rights of the accused. The military commission system was authorized in a 2006 law aimed at prosecuting terror suspects as enemy combatants.