by Ed Fallen

“In war, truth is the first casualty” was probably first said by Aeschylus, the first playwright in Western literature, 2,500 years ago. The framers of the Constitution understood the value of truth and good information, and that’s why they enshrined freedom of speech in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.”

In December 2010, under the direction of U.S. Attorney Patrick Fitzgerald, the FBI delivered 9 new subpoenas in Chicago to anti-war and Palestine solidarity activists – bringing the total number of subpoenaed activists to 23. Patrick Fitzgerald’s office is ordering the 9 to appear at a Grand Jury in Chicago on January 25.  Three women from Minneapolis – Tracy Molm, Anh Pham and Sarah Martin – are facing re-activated subpoenas.

One of the 24 people originally subpoenaed, Meredith Aby, has said, “Our opposition to U.S. war and occupation in Afghanistan and Iraq, our scathing criticism of U.S. government support for repressive regimes and death squads in Colombia and Israel are well known and public. This attempt to criminalize us in the anti-war movement must be stopped. The grand jury should be ended. There should be no charges.”

The attacks on the peace movement are not original with the FBI in 2010, in fact they’re as old as the republic, almost as old as the First Amendment itself.

The Alien and Sedition Acts were four bills passed in 1798 (only nine years after the ratification of the First Amendment) by the Federalists in the 5th United States Congress during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams. Proponents claimed the acts were designed to protect the United States from alien citizens of enemy powers and to prevent seditious attacks from weakening the government. Jefferson’s party and later historians have called them unconstitutional and said they were designed to stifle criticism of the administration.

There were actually four separate laws making up what is commonly referred to as the Alien and Sedition Acts:

1. The Naturalization Act extended the duration of residence required for aliens to become citizens of the United States from five years to fourteen years.

2. The Alien Friends Act authorized the president to deport any resident alien considered “dangerous to the peace and safety of the United States.” It was activated June 25, 1798, with a two year expiration date.

3. The Alien Enemies Act authorized the president to apprehend and deport resident aliens if their home countries were at war with the United States of America. Enacted July 6, 1798, and providing no sunset provision, the act remains intact today. At that time, war was considered likely between the U.S. and France.  The basis of this law was used, most recently and infamously, by Roosevelt to incarcerate Japanese-American citizens during World War II.

4. The Sedition Act made it a crime to publish “false, scandalous, and malicious writing” against the government or its officials. It was enacted July 14, 1798, with an expiration date of March 3, 1801 (the day before Adams’ presidential term was to end).

Vice President Thomas Jefferson denounced the Sedition Act as invalid and a violation of the First Amendment.

The Sedition Act expired on March 3, 1801, coinciding with the end of the Adams administration. While this prevented its constitutionality from being directly decided by the Supreme Court, subsequent mentions of the Sedition
Act in Supreme Court opinions have assumed that it would be ruled unconstitutional if ever tested in court. For example, in the seminal free speech case of New York Times Co. v. Sullivan, the Court declared, “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”  In a concurring opinion in Watts v. United States, which involved an alleged threat against President Lyndon Johnson, William O. Douglas noted, “The Alien and Sedition Laws constituted one of our sorriest chapters; and I had thought we had done with them forever … Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution.”

Henry David Thoreau, in 1848, refused to pay his $1 Massachusetts poll tax because he believed the Mexican-American War was an immoral advancement of slavery.  He was put in jail until his friend Ralph Waldo Emerson paid his fine.  Emerson asked Thoreau, “What are you doing in there?” and Thoreau returned the existential question, “What are you doing out there?”  Thoreau used this experience as the basis for his “On the Duty of Civil Disobedience,” an essay that inspired Gandhi and Martin Luther King among others.

Lincoln suspended habeas corpus throughout the nation during the Civil War and had many Copperhead Democrats arrested under military authority because he felt that the State Courts in the northwest would not convict war protesters such as the Copperheads. He proclaimed that all persons who discouraged enlistments or engaged in disloyal practices would come under Martial Law.

Among the 13,000 people arrested under martial law was a Maryland secessionist, John Merryman. Immediately, Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States issued a writ of habeas corpus commanding the military to bring Merryman before him. The military refused to follow the writ. Justice Taney, in Ex-parte Merryman, then ruled the suspension of habeas corpus unconstitutional because the writ could not be suspended without an Act of Congress. President Lincoln and the military ignored Justice Taney’s ruling.

Finally, in 1866, after the war, the Supreme Court officially restored habeas corpus in Ex-parte Milligan, ruling that military trials in areas where the civil courts were capable of functioning were illegal. As the United States appeared to be drifting toward war in late 1916, Emma Goldman threw her energy into opposing the government’s military preparations, using her magazine, Mother Earth, as a forum. Goldman was not alone in this cause: The anti-war effort was the product of a broad coalition of liberals, socialists, anarchists and progressive unionists. Ultimately, however, the federal government crushed this movement and repressed its elements in an almost hysterical patriotic pro-war and antiradical crusade orchestrated by President Woodrow Wilson. Mother Earth was banned, along with other periodicals opposing the war. Hundreds of foreign-born radicals were deported.

Although Goldman knew federal government officials had been looking for grounds to deport her for years, she pressed on with her anti-war activities. Within weeks of America’s entry into World War I, she helped launch the No-Conscription League to encourage conscientious objectors and spoke repeatedly against the draft, attracting 8,000 people to one meeting. Predictably, the government responded, arresting Emma Goldman and her comrade Alexander Berkman on June 15, 1917. Charged with conspiring against the draft, they were convicted and sentenced to two years in prison with the possibility of deportation at the end of their term.

After an unsuccessful appeal to the Supreme Court, Goldman began serving her term at the Missouri State Penitentiary in Jefferson City. On September 27, 1919, she was released, only to be re-arrested shortly afterward by the young J. Edgar Hoover, head of the Justice Department’s General Intelligence Division. Hoover advanced his career by implementing to the fullest extent possible the government’s plan to deport all foreign-born radicals. Writing the briefs and presenting the case against Goldman himself, Hoover persuaded the courts to deny Goldman’s citizenship claims and to deport her.  The Espionage Act of 1917 was passed on June 15 shortly after the U.S. entry into World War I and began the First Red Scare.

It prohibited any attempt to interfere with military operations, to support America’s enemies during wartime, to promote insubordination in the military, or to interfere with military recruitment. In 1919, the U.S. Supreme Court unanimously ruled in Schenck v. United States that the act did not violate the free speech rights of those convicted under its provisions. It made it a crime to willfully obstruct the recruiting or enlistment service of the United States. This was punishable by a maximum fine of $10,000 or by imprisonment for not more than 20 years or both.

In 1919 Woodrow Wilson appointed A. Mitchell Palmer as his attorney general. Palmer recruited John Edgar Hoover as his special assistant and together they used the Espionage Act (1917) and the Sedition Act (1918) to launch a campaign against radicals and left-wing organizations.

A. Mitchell Palmer claimed that communist agents from Russia were planning to overthrow the American government. On Nov 7, 1919, the second anniversary

of the Russian Revolution, over 10,000 suspected communists and anarchists were arrested. Palmer and Hoover found no evidence of a proposed revolution,

but a large number of these suspects were held without trial for a long time. The vast majority of them were eventually released, but Emma Goldman and 247 other people were deported to Russia.

From September 1918 to June 1919 the Overman Senate Subcommittee investigated German and Bolshevik elements in the United States.  The Committee was originally charged with investigating pro-German sentiments in the American liquor industry. After World War I ended in November of 1918 and the German threat lessened, the Committee began investigating communist Bolshevism. The Committee’s hearing into Bolshevik propaganda, conducted Feb. 11 to March 10 of 1919, had a decisive role in constructing an image of a radical threat to the United States during the First Red Scare. Congressman Hamilton Fish III, who was a fervent anti-communist, introduced on May 5, 1930, House Resolution 180, which proposed to establish a committee to investigate communist activities in the United States. The resulting committee, commonly known as the Fish Committee, undertook extensive investigations of people and organizations suspected of being involved with or supporting communist activities in the United States. Among the committee’s targets were the American Civil Liberties Union and communist presidential candidate William Z. Foster.  The committee recommended granting the United States Department of Justice more authority to investigate communists, and strengthening of immigration and deportation laws to keep communists out of the United States.

Just six weeks after the Sept. 11, 2001, attacks, a panicked Congress passed the “USA/Patriot Act,” an overnight revision of the nation’s surveillance laws that vastly expanded the government’s authority to spy on its own citizens, while simultaneously reducing checks and balances on those powers like judicial oversight, public accountability and the ability to challenge government searches in court.

Most of the changes to surveillance law made by the Patriot Act were part of a long-standing law enforcement wish list that had been previously rejected by Congress, in some cases repeatedly. Congress reversed course because it was bullied into it by the Bush Administration in the frightening weeks after the Sept. 11 attack.

The Senate version of the Patriot Act, which closely resembled the legislation requested by Attorney General John Ashcroft, was sent straight to the floor with no discussion, debate or hearings. Many senators complained that they had little chance to read it, much less analyze it, before having to vote. In the House, hearings were held, and a carefully constructed compromise bill emerged from the Judiciary Committee. But then, with no debate or consultation with rank-and-file members, the House leadership threw out the compromise bill and replaced it with legislation that mirrored the Senate version. Neither discussion nor amendments were permitted, and once again members barely had time to read the thick bill before they were forced to cast an up-or-down vote on it. The Bush Administration implied that members who voted against it would be blamed for any further attacks—a powerful threat at a time when the nation was expecting a second attack to come any moment and when reports of new anthrax letters were appearing daily.

Congress and the Administration acted without any careful or systematic effort to determine whether weaknesses in our surveillance laws had contributed to the attacks, or whether the changes they were making would help prevent further attacks. Indeed, many of the act’s provisions have nothing at all to do with terrorism.

The Patriot Act increases the government’s surveillance powers in four areas:

1. Records searches. It expands the government’s ability to look at records on an individual’s activity being held by third parties.  They can look at your e-mails to and from “suspicious characters.”

2. Secret searches. It expands the government’s ability to search private property without notice to the owner.  They don’t have to tell you what they’re looking for or what they’ve found.

3. Intelligence searches. It expands a narrow exception to the Fourth Amendment that had been created for the collection of foreign intelligence information.  Anything you have said can be used against you.

4. “Trap and trace” searches. It expands another Fourth Amendment exception for spying that collects “addressing” information about the origin and destination of communications, as opposed to the content.  If you have been communicating with anyone remotely connected with an international organization that the government declares as Terrorist, then you can be charged with aiding and abetting terrorism.

The Fourth Amendment to the Constitution says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Bruce Nestor, of the National Lawyer’s Guild has said that the new Patriot Law allows the government to prosecute people for giving material support to terrorist groups even if they give them no money or material aid. They can be guilty if they publicly speak in support of the aims or objectives of the groups. By that reasoning, according to Nestor, President Carter could be guilty of working with Hezbollah because he helped facilitate the Lebanese elections.   Likewise, Christian Peacemaker Teams could be guilty of aiding Hamas because of their work in Palestine helping wounded victims of Israeli bombing get medical aid from the Red Crescent.

Patrick Fitzgerald is the federal district attorney in charge of this investigation.  Like J. Edgar Hoover in pursuit of Emma Goldman and a national reputation, Fitzgerald is grandstanding to grab headlines.  He hopes his Terrorist Scare will be as effective for him as J. Edgar Hoover’s Red Scare.  So far, Fitzgerald doesn’t have a great batting average.  He went after Scooter Libby for exposing CIA operative Valerie Plame, but he let Rove and Cheney off the hook.  He ruined the political career of Rod Blagojevich, but, after all the negative publicity, Blagojevich was convicted in the federal trial on only one of 23 counts.  The jury could not agree on the remaining charges and a mistrial was ordered for those counts. He will be conducting the hearings before the Grand Jury in the case of the three Minnesotans who have been called to appear.  In the past he has locked up a reporter who wouldn’t testify before a grand jury, so no one is expecting mercy from this hot dog.

The three that have been re-subpoenaed are probably not Fitzgerald’s principal targets.  If past history is any indication of present motives, then probably Fitzgerald will grant these witnesses limited immunity to compel them to testify about their relationships with others.  It seems more than likely, when you read the original subpoenas, that Fitzgerald and the FBI are most interested in Freedom Road Socialist Organization and their meetings with members of the Front for the Liberation of Palestine and FARC, a rebel group representing small farmers in Colombia, organizations that the U. S. attorney general has labeled as terrorist.

If the government persists in its Grand Jury probe of the anti-war activities of Minneapolis progressives, then it must be assumed that this is being directed by U.S. Attorney General Eric Holder, and that it has the approval and guidance of President Barack Obama.  If, as it is assumed, the intent of the Grand Jury investigations is to gather information about Freedom Road and to restrict its ability to gather information from fighters in liberation struggles in Palestine and Colombia, then this represents an attack on all news organizations and concerned citizens that want uncensored information from all possible sources.

The only genuine safeguard of our republic, as Jefferson noted, is a free press.  Once the government begins restricting and controlling our access to information, then we are sliding down a slippery slope to a totalitarian nightmare.

The attack on freedom of speech, freedom of association and freedom of information is an attack on all of us, whether or not we agree with the goals of the anti-war movement or Freedom Road.  If they cannot gather information free from government repression then none of us can. If you feel strongly about this, then please contact your congressman, senators and the President:

Congressman Keith Ellison: 612-522-1212
Senator Amy Klobuchar: 612-727-5220
Senator Al Franken: 651 221-1016
President Barack Obama:  202-456-1111