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Column: Palmer Raids Redux: The NSA versus civil liberties

An undated aerial handout photo shows the National Security Agency (NSA) headquarters building in Fort Meade, Maryland. REUTERS/NSA/Handout
An undated aerial handout photo shows the National Security Agency (NSA) headquarters building in Fort Meade, Maryland. REUTERS/NSA/Handout

By Jeffrey Rosen

(Reuters) - During the "Red Scare" that swept the United States in the wake of Russia's 1917 Bolshevik revolution, the Justice Department launched a cycle of raids against radicals and leftists. The U.S. attorney general, a once-celebrated Progressive leader named A. Mitchell Palmer, gave his name to this unfolding series of attacks against civil liberties.

Though initially supported by Congress, the courts and the press, the 1919 Palmer raids revealed a darker side of the American psyche. They eventually provoked a national backlash, which inspired the formation of the American Civil Liberties Union, led to stirring free speech dissenting opinions from Supreme Court Justices Oliver Wendell Holmes Jr. and Louis Brandeis, and ignited a political counter-movement determined to prevent similar civil liberties abuses in the future.

President Barack Obama is far from resembling Palmer in terms of civil liberties abuse, but his conviction in his own progressive righteousness is an unfortunate trait when it comes to designing and overseeing surveillance programs. Obama has also continued to defend the current invasive National Security Agency surveillance programs, even while insisting he welcomes a national conversation about the appropriate balance between liberty and security.

It remains to be seen, though, whether this current crackdown on American civil liberties can spark a new period of backlash from American citizens and the courts. The Obama administration has consistently swatted down lawsuits that challenge it by saying that citizens who believe they have been victims of surveillance lack standing to bring them. It has also prosecuted the very whistleblowers whose leaks made possible the national debate the president says he welcomes.

Constitutional conversations are always welcome, and the one we are having now could clarify the meaning of the Fourth Amendment's prohibitions on unreasonable searches and seizures. The real lessons of the Palmer raids, however, suggest that instead of continuing to compromise the Fourth Amendment, Obama will ultimately have to acknowledge that it constrains national security intelligence gathering. Otherwise, he risks a similarly harsh verdict in the eyes of history.

To understand what that historical verdict might look like, we can learn from the history of the Palmer raids.

On June 2, 1919, Carlo Valdinoci, wearing a suit and a pink bow tie, took a leather briefcase with a bomb to the home of Palmer, the new attorney general. As Valdinoci approached, his bomb prematurely exploded and he accidentally blew himself up on the front steps.

The explosion sent shock waves throughout the upscale Washington neighborhood. A young assistant secretary of the Navy, Franklin D. Roosevelt, heard the explosion in his home across the street. He spent the night helping police clear the scene and the next morning his son found a piece of Valdinoci's collarbone on his front steps.

Palmer was not the only target that night. Around midnight, Italian anarchists set off bombs in Boston, Philadelphia, Cleveland and Pittsburgh in a coordinated attack on government officials who were part of an effort to target anarchists. On the next day, a postal worker discovered 16 mail bombs addressed to political and business leaders, including John D. Rockefeller.

Washington responded to these anarchist terrorist attacks with wide-scale curtailment of civil rights, targeting anyone suspected of being an anarchist or communist. Palmer, who initiated this dragnet, seemed an unlikely person to orchestrate the program.

The attorney general, a progressive Democrat from Pennsylvania, had turned down the secretary of war position in 1912 because of his Quaker devotion to pacifism. He was beloved by progressives, having sponsored bills to limit child labor and to support women's suffrage.

After the explosion nearly took his life, however, Palmer regarded anarchists and communists as an existential threat to the nation's security. President Woodrow Wilson supported him in this, telling Palmer during a Cabinet meeting, "do not let the country see red."

A crackdown also worked for Palmer's political ambitions, since he was eyeing a 1920 run for the White House. Bashing communists and anarchists, Palmer recognized, would provide good background in the campaign season. After hiring a young lawyer, J. Edgar Hoover, to run a small intelligence-gathering unit, Palmer began planning the raids.

From November 1919 to March 2020, Palmer deported 800 people whom he claimed were radical communists or anarchists.

In a November 17, 1919 raid, for example, the Justice Department arrested 200 people suspected of being radicals. The New York Times praised Palmer as a "lionhearted man," protecting the nation. In December 1919 a small ship, the Budford, left New York City harbor bound for Russia, carrying 249 individuals suspected of being disloyal to the United States. Several high-profile writers were aboard, including Emma Goldman, whose U.S. citizenship was ignored because she was suspected of being an anarchist. This mass deportation was celebrated in the New York Times, "Soviet Ark Lands Its Reds in Finland."

On January 2, the Justice Department conducted a huge raid, arresting between 2,000 and 4,000 suspects across the country.

A few people courageously stood up to Palmer's fear-mongering. Assistant Labor Secretary Louis Post, charged with overseeing the deportations, was one official who resisted. He carefully reviewed the evidence in each deportation case, and often turned down Palmer's requests.

Francis Fisher Kane, the U.S. attorney for Eastern Pennsylvania, also resisted. In January 1920, Kane resigned because he vigorously opposed Palmer's emphasis on deporting illegal immigrants. His resignation letter, quoted in the New York Times, said that the Democratic Party would lose its soul if it continued to protect the interests of corporations. In Kane's view, the raids had more to do with assuaging corporate power in fighting the nascent labor movement than in protecting national security.

The New Republic called the raids "abhorrent," arguing that America was "frightened into a fantastic attempt to annihilate a political minority by imprisonment and deportation." The Nation also condemned the actions, saying Palmer was "improving on the czar."

Palmer staked the legitimacy of his overreaching raids on predictions of massive violence during the "May Day" celebrations on May 1, 1920. The National Guard and the New York City Police Department were mobilized for the onslaught of the expected violence. But the day passed peacefully.

With this, Palmer's fear-mongering hit its break point and the public slowly turned against his overbearing attacks on civil liberties. By the end of the year, the attorney general was forced to defend his actions before Senate Judiciary Committee hearings. Senator Thomas Walsh said the Palmer raids were nothing less than "the lawless acts of a mob."

Though the Red Scare is now largely forgotten, its legacy lives on in the constitutional dedication to preserving freedom of speech. The Supreme Court's 1919 decision in Abrams v. United States upheld the conviction of dissidents who distributed pamphlets denouncing sending U.S. troops to Russia. Holmes, joined by Brandeis, dissented, stating that speech can only be restricted when it is "speech that produces or is intended to produce clear and imminent danger that it will bring about forthwith � substantive evil."

In a 1927 case, a communist organizer, Anita Whitney, was convicted of trying to overthrow the U.S. government. The Supreme Court upheld her conviction, but Holmes and Brandeis again wrote a stirring separate opinion, stressing that the government had limited power to restrict free speech. Brandeis's opinion in California v. Whitney presented the 20th century's greatest defense of the importance of free speech in the democratic process.

It would take four decades, but the Supreme Court finally embraced the Holmes and Brandeis view with the 1967 Brandenburg ruling. This decision said that speech can only be suppressed by the government when it's intended and likely to produce imminent violence.

What are the lessons of the Palmer raids for our current surveillance controversies? These government actions remind us that even the most beloved progressives can use the power of the government to menace individual liberty when they become convinced that the state faces an existential threat. They remind us as well that the excesses of progressive illiberalism are unlikely to be resisted by Congress or the courts. Consider that it took the Supreme Court 40 years to enact Brandeis's dissenting opinion into law.

The Palmer raids also highlight the crucial need for principled resistance within the government as the best way of galvanizing public opposition. The NSA leaker, a 29-year-old former CIA technical assistant named Edward Snowden, has decided to reveal his identity and suffer the consequences.

It remains to be seen whether an official within the Obama administration will follow the example of Kane, the progressive Pennsylvanian, and resign in protest against the administration's warrantless surveillance programs and overly broad subpoenas to journalists such as James Rosen of Fox News and the Washington reporters of the Associated Press.

But regardless of administration officials' conduct, Obama should be more scrupulous about constitutional values, or risk being remembered - like Wilson - as a progressive who failed to respect civil liberties in anxious times.

(Jeffrey Rosen is president and chief executive officer of the National Constitution Center and a law professor at George Washington University. He is co-editor of "Constitution 3.0: Freedom and Technological Change" and author of "The Naked Crowd: Reclaiming Security and Freedom in the Anxious Age".)

(Jeffrey Rosen is a Reuters columnist but his opinions are his own.)

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