Some of this uproar was partisan, of course. That is why it was never directed at Barack Obama, even though he extended nearly all of Bush's national-security legacy.
But in fairness, committed civil libertarians had reason to be uneasy. If the first casualty of war is truth, the second is often freedom. From the Alien and Sedition Acts of 1798 to the illegal harassment of political opponents during the Nixon administration, wartime governments have certainly been known to repress dissent and abuse individual rights. During the Civil War, the federal government rounded up thousands of civilians and shut down hundreds of newspapers because they publicly opposed the policies of the Lincoln administration. FDR ordered the internment of more than 100,000 loyal Japanese-Americans during World War II, though they were guilty of nothing but their ethnicity.
It was with historical precedents like these in mind that Wisconsin Senator Russell Feingold voted against the original Patriot Act – the only Senator to do so. Explaining his opposition, he quoted Supreme Court Justice Arthur Goldberg, who warned in 1963 that it is "under the pressing exigencies of crisis that there is the greatest temptation to dispense with fundamental constitutional guarantees."
Yet 10 years later American freedom thrives. To be sure, obnoxious security measures are more common, especially in airports and other public spaces, but political debate, dissent, and activism are as robust as they have ever been. As the New York Times acknowledged this week, the domestic legal response to 9/11 "gave rise to civil liberties tremors, not earthquakes." The Patriot Act, for all the hyperventilating, amounted to little more than "tinkering at the margins" of existing law. By historical standards, "the contraction of domestic civil liberties in the last decade was minor."
Sincere the Feingolds and Barlows may have been, but they were wrong. American history doesn't prove that once the government's "control freaks" get a taste of expanded power, it is only a matter of time before the concentration-camp gates swing shut behind us. If anything, it proves the opposite.
Congress and the president may restrict political liberties during wartime or a crisis, but when the crisis eases liberty rebounds – and then some. The balance between security and freedom shifts back not to where it was, but to even greater liberty and expanded individual rights. Thus, after the Civil War ended, the 13th, 14th, and 15th Amendments made the United States an even freer country than it had been before. Following World War II, FDR's internment of the Japanese was rescinded – and is now so reviled that no mainstream political figure would dream of defending or emulating it.
The Alien and Sedition Acts were an odious assault on liberty and civil rights. But they were soon repealed, and have never been replicated.
Americans are more jealous of their freedoms than libertarians sometimes realize. For nearly 150 years, civil liberties in this country have been on the upswing. Ten years after 9/11, they still are.
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