Civil Liberties

Civil liberties are designed to prevent the government from intruding on the various manifestations of individuals’ freedom. Often, civil liberties and national security come into conflict. During times of national crisis, for example, nations—and in an increasingly globalized world, international institutions—must balance individuals’ civil liberties and national security.

This entry devotes particular attention to the United States and the rationale for civil liberties in that country; it also includes discussions of global issues and the policies of other nations. An understanding of what civil liberties are is enhanced by specific discussions of the way in which civil liberties have been reflected in the legal systems of various countries and in the emerging field of international law. The entry then discusses some of the main areas in which civil liberties have become contentious and the difficulty in reconciling these tensions.

Whereas civil rights involve the state protecting historically marginalized groups, civil liberties are protections for individuals from the restriction of their rights and expression by the state. Examples of key civil liberties include freedom of speech, freedom of expression, freedom of the press, freedom of religion, and due process of law. Freedom from torture, the right to a speedy trial, and the right to legal counsel are additional examples of civil liberties.

In terms of national security, freedom of speech is often the most prominent civil liberty. The U.S. Supreme Court has designed a test for speech known as the clear and present danger test. If there is a clear and present danger, then speech can be restricted. Other civil liberties that can be subject to questions of security include freedom of the press and freedom of expression. A particularly contentious area is what, if any, limits should be placed on freedom of religion. When security issues are associated, with or without merit, to particular faiths, some people may raise concerns and advocate for restrictions.

Civil liberties provide a means for individuals to be treated fairly in society and to shape the way in which their community is governed. Diminishing civil liberties has the potential to create a society in which governments abuse power and citizens lose even the most basic liberties. Past examples of nations where civil liberties were abolished often serve as cautionary tales; one such example is Nazi Germany, which began under the democratic Weimar Constitution. By the same token, many democracies have restricted civil liberties during times of war, in part due to the danger that any release of information could jeopardize national security. Laws involving civil liberties, or the restriction thereof, are sometimes passed by democratic institutions or implemented by executive action. Thus, the judicial system is often the place where the limits to civil liberties are discussed.

There are many ways in which civil liberties are protected throughout the world. As concern for human rights has grown, civil liberties have been included among other rights, such as education and health care, that often represent the state’s provision of protection and services. A body of law and practice has been built throughout the centuries and has often been tested and breached in the name of security.

The Universal Declaration of Human Rights, written shortly after the founding of the United Nations in 1945, outlines several rights that have helped form the basis of international law. The protection of civil liberties dates back at least to the Magna Carta of 1215, which assured protections in terms of the writ of habeas corpus.

When there are threats to national security, balancing civil liberties with the needs to protect and preserve security is always an issue. Focusing on the United States, which provides an interesting microcosm, this section explains how war has affected civil liberties and how nonstate actors and the global War on Terror are creating new challenges. These challenges are exacerbated by the global availability of information.

During World War I, legislation such as the Espionage Act of 1917 was used to suppress the speech of individuals seeking to protest the activities of the government. In the name of national security, individuals such as the Socialist Party of America’s presidential candidate, Eugene V. Debs, were imprisoned. In the immediate postwar era, government immigration policies were used to deport antigovernment figures such as Emma Goldman. Such tactics during this era represent a repression of dissent. Some scholars have argued that the U.S. government went too far in restricting civil liberties. During the 1920s, in part as a response to the cases brought to the U.S. Supreme Court by those who dissented during this turbulent period, the Supreme Court began to take a more prominent role in civil liberties cases. The concept of clear and present danger as a limit to free speech was articulated during this period.

World War II saw more emerging issues of violations of civil liberties. Beyond suppression of speech, there was also the internment in camps throughout the United States of Japanese Americans and others whom the U.S. government considered to be threats to national security. The end of World War II did not represent an end to conflict. Rather, the Red Scare of the early 1950s saw the U.S. government investigating people based on their suspected communist ties.

The Pentagon Papers and the work of Daniel Ellsberg is another example of conflict between civil liberties and security. Ellsberg released to press outlets, including The New York Times and The Washington Post, classified documents regarding the U.S. government and its policies during the Vietnam War. The documents showed how many of the plans for the war were poorly thought out, and they also provided a window into the disconnect between the public presentation of the Vietnam War and private thinking. The Supreme Court protected the freedom of the press in this particular matter, and although Ellsberg was charged under the Espionage Act, all charges against him were dismissed. While it can be argued that the release of the classified documents had a negative impact on national security, it can also be said that the release of the information gave the public insight into a dysfunctional and ultimately harmful process.

During the Cold War, national security activity also expanded into new areas. The Central Intelligence Agency conducted clandestine activities including facilitating coups in nations such as Iran and Guatemala. As national security expanded beyond traditional warfare and civil liberties began to enter the information age, new conflicts began to emerge.

The aftermath of the events of September 11, 2001, represented a new era in terms of civil liberties. The first attack on the continental United States since the War of 1812 was a serious event. Rather than seeking to fight specific countries, a global War on Terror was called for, although not formally declared. Coming after a decade that saw the rise of the Internet as a form of communication and other decentralized and difficult to trace forms of communication such as cell phones and text messaging, new conflicts began to emerge.

Global responses to civil liberties emerged in other nations as well. Great Britain, for example, considered policies that were seen by many as a violation of due process in the aftermath of the attacks that occurred in 2005. In addition, there were also increasing efforts to coordinate national security efforts, particularly in areas such as cybersecurity.

In the United States, cybersecurity became an area that was primarily dealt with through the inner workings of the National Security Council and the National Security Agency (NSA). During the administration of George W. Bush, presidential directives were issued regarding the protection of government databases. Moreover, protecting the records of major corporations also became a growing concern of the U.S. government and was an area in which the former president Barack Obama issued presidential directives designed to create a policy infrastructure.

The United States received a lot of criticism for certain national defense practices. The detaining of enemy combatants at Guantanamo Bay, the use of enhanced interrogation techniques (e.g., waterboarding, or simulated drowning), and the increased use of technology to monitor communications of all kinds all received criticism. The U.S. government attempted to construct a rationale for these activities, particularly through the so-called Torture Memos that were authored by John Yoo when he was serving with the Office of Legal Counsel. Despite tactics that were objected to by many civil libertarians, the U.S. government attempted to prepare legal reasoning for its actions, and many policymakers noted that they felt that difficult steps needed to be taken in the interest of national security. The U.S. government also used secret detention facilities in nations such as Poland, known as “black sites.” Objections to such actions were raised by the United Nations in the European Court of Human Rights.

In 2014, a global controversy emerged over surveillance activities undertaken by the NSA, as a result of confidential information released by an NSA subcontractor, Edward Snowden. While civil libertarians had objected to policies in the past, the actions of the NSA began a mass discontent over the collection of metadata. In addition, many world leaders, such as the German chancellor Angela Merkel and Brazilian president Dilma Rousseff, were angered by the idea that the United States was spying on their emails and other electronic communications. Although the U.S. government charged Snowden under the Espionage Act, he fled the United States and sought asylum in Russia, even spending a period of time in the Moscow airport awaiting the requested asylum.

Before the Snowden case gained international attention, another prominent case brought attention to the issue of emphasizing national security over freedom of speech, the press, or conscience. In January 2010, U.S. Army intelligence analyst Bradley Manning (now Chelsea Manning) downloaded hundreds of thousands of national security documents and turned them over to WikiLeaks in February 2010. The WikiLeaks release brought many documents to the press and was seen by many members of the national defense infrastructure as endangering the lives of informants. Manning was charged under the Espionage Act and in 2013 was convicted of 17 charges and sentenced to 35 years in prison; however, in January 2017, Obama commuted the remainder of Manning’s sentence.

Matthew J. Gritter

See also Free Speech ; Freedom of Expression ; National Security ; National Security Agency ; National Security Agency Leaks