Andrew P. Napolitano has written a thorough and well-written history of presidential
trampling of constitutionally guaranteed civil liberties throughout U.S. history,
especially during wars and times of international tension. Napolitano starts with the
early republic, including John Adamss suppression of free speech to mute his political
opponents by using the Alien and Sedition Acts of 1798 during the Quasi-War
with France. He then explores Abraham Lincolns virtual dictatorship during the
Civil War, including Lincolns usurpation of power from Congress to suspend the
writ of habeas corpus (leading to indefinite detention without trial and other legal
due process) and his unconstitutional use of military commissions when civilian courts
were still open and functioning.
Moving on to the World War I era, Napolitano analyzes Woodrow Wilsons use
of the Espionage Act of 1917 and the Sedition Act of 1918 to jail people for opposition
to the war and his disregard of Americans economic rights by increasing dramatically
government intrusion into the economy to convert it from peacetime to wartime
production. Among other topics surrounding World War II, Napolitano explores the
Smith Act of 1940, which was really a rehash of the Alien and Sedition Actsonce
again criminalizing constitutionally protected political behavior and expediting the
deportation of alien thought criminals. He also explores the readoption of the
World War I model for a command economy during World War II. Napolitano
then talks about Franklin D. Roosevelts reinstatement of Lincolns unconstitutional
military commissions to try suspected German saboteurs and his incarceration of
more than one hundred thousand Japanese Americans in prison camps despite no
cases of bad wartime behavior on their part.
As for the long ColdWar, Napolitano finds plenty of executive encroachment on
civil liberties. During the Korean War, Harry Truman, to sell his new policy of global
interventionism to an American public that had been traditionally inclined to stay out
of other nations business, started the Red Scare, which Joseph McCarthy and others
exploited (pp. 14465). Truman also unsuccessfully attempted to become commander
in chief of the country rather than just of the armed forces by trying to
nationalize American steel companies for war production; in the Youngstown Steel
case, the Supreme Court rejected Trumans ploy. The author then examines government
spying and dirty tricks on civilian antiwar groups within the United States
during the Vietnam War. He also gives the history of heavy-handed executive behavior
by Richard Nixon, as demonstrated by Watergate and the scandal surrounding the
Curiously, however, given the general theme of Napolitanos bookthat
aggressive military action overseas leads to the suppression of civil liberties at
homehe goes out of his way to blame Bill Clinton for not doing enough to combat
al Qaeda. Although Bill Clinton did occasionally flail away with limited and ineffectual
minor military strikes against the group (cruise missile strikes against an alleged
chemical weapons factory in Sudan and al Qaeda camps in Afghanistan) and began an
illegal rendition program, he pursued terrorists more as criminalsapprehending
them and prosecuting them in civilian courtsthan did his successors, as even
Napolitano seems to recognize. Napolitano, a lawyer and judge, gives Clinton no
credit for this approach, however, but instead implies the criticism that he did not do
more militarily or covertly to battle al Qaeda. Napolitano attributes Clintons inaction
to a loss of interest in pursuing al Qaeda (pp. 2038). Yet this regarding of terrorism
as a war (rather than as a crime), which was pursued by Clintons successors,
George W. Bush and Barack Obama, is the main reason for the five chapters that
Napolitano needs to catalog all of the civil liberties violations committed by the
latter two presidents.
In fact, Clinton should be commended for avoiding taking the bait and giving
anti-American terror groups exactly what they wantan over-the-top military
response to their attacksso that they could use it as an excuse to launch blowback
retaliatory terrorist acts and generate more recruits and money for their cause. In fact,
Lieutenant General Daniel P. Bolger notes that Osama bin Laden repeatedly and
unsuccessfully tried to goad Clinton into such an over-the-top military response by
perpetrating relatively small terrorist attacks on U.S. targets (WhyWe Lost: A Generals
Inside Account of the Iraq and Afghanistan Wars [New York: Houghton Mifflin
Harcourt, 2014], pp. 1824). These targets included the U.S. embassies in Kenya
and Tanzania in 1998 and the U.S.S. Cole warship docked in Yemen in 2000.
In exasperation at not being able to provoke the United States, bin Laden resorted
to a much more spectacular attempt to inflame U.S. policymakers with the attacks on
New York and Washington, D.C., on September 11, 2001 (9/11), when bin Laden
foundas he declared to the worlda U.S. president, GeorgeW. Bush, who was easy
Napolitano should be given great credit for stating what other authors avoid:
that the United States sometimes creates its own enemies, as it did when the
mujahideen, who were U.S. allies against the Soviets in Afghanistan, became al Qaeda;
that U.S. interventionism in the Middle East leads to blowback terrorism; and that
terrorism will never be wiped out as long as radicals exist and America has imperial
tendencies (pp. 2013, 216). Yet he does not emphasize a more restrained U.S. foreign
policy overseas as a way to avoid the trade-off of liberty for alleged security that his
book does an outstanding job of documenting in detail. Unfortunately, his very correct
conclusion that the U.S. Constitution elevates liberty even over defensenational
defense is supposed to protect the liberties that the American governmental system
providesis usually lost when the real world encroaches; lessening that encroachment
is what a less assertive U.S. foreign policy would achieve.
In three full chapters, Napolitano mounts a legitimately scathing attack on
George W. Bushs flagrant aggrandizement of power, usurpation of American civil
liberties, and resurrection of prior unconstitutional practices during crises: military
commissions and the executive suspension of habeas corpus. Bush also authorized
illegal and unconstitutional torture, which clearly violated long-standing international
and domestic law. Finally, Napolitano lays out a comprehensive case on the extraconstitutional
spying on Americans, which he says began much before the 9/11 attacks.
All of these egregious violations of liberty were done to further centralize power in
the executive branch by using the attacks to create a permanent state of emergency so
that the president, as commander in chief, could ride roughshod over the legislative
and judicial branches to do whatever he wanted in the name of national security.
Napolitano then correctly points out that Obama, a constitutional law professor,
has done little to improve on most practices begun during the Bush administration
and has an even worse record on some civil liberties issues. Seemingly, the two areas
that saw the most improvement were the use of torture and the military commissions.
The worst of the torture has apparently been stopped, but some less-drastic techniques
in the armys field manual are still permitted. Some additional defendant rights have
been given to suspected terrorists tried before military commissions, but the panels
are still unconstitutional kangaroo proceedings that do not meet the standards of
civilian courts. Under the Obama administration, the executives unconstitutional
suspension of habeas corpus continues, as does the equally unconstitutional warrantless
domestic spying. Napolitano alleges that Obamas record is worse on such privacy
issues (p. 342), but he does not substantiate that claim very well.
In one area, Napolitano alleges that Obama has gone beyond Bush by unconstitutionally
authorizing the killing of Americans by drones without any legal due process.
He calls this murder (pp. 32230). Napolitano is quite correct that it is murder,
but the issue needs reframing.
First, Napolitano wrote this book before the revelation that Bush personally
ordered the CIA to assassinate Imad Mughniyah, a well-known Hezbollah leader,
with a car bomb in 2008. Mughniyah was not an American citizen, but, as Napolitano
points out, Obama has killed at least four Americans with drone strikes, including
Anwar al Awlaki of al Qaeda. Napolitano, like the media, has focused too much on
dazzling lethal automated drone technology and the killing of Americans. Killing the
citizens of other nations is murder, too, unless such military strikes have been constitutionally
approved by Congress. Neither Bushs nor Obamas killing of people
overseas in Yemen, Somalia, and Pakistan (Pakistani Taliban fighters) nor Bushs
killing of Mughniyah in Syria was part of a congressionally approved military action.
In major wars, Bush was better about getting congressional approval (in the
Afghanistan and Iraq Wars) than Obama has been (the conflict in Libya). The post-
9/11 Authorization of the Use of Military Force (AUMF) by Congress approved
armed action anywhere against the perpetrators or enablers of the 9/11 attacks or
those that harbored themthat is, the central al Qaeda group and the Afghan Taliban.
Yet Bush illegally stretched this congressional action to include al Qaeda and Talibanaffiliate
groups in Yemen, Somalia, and Pakistan that had no role in the 9/11 attacks.
Obama, upon taking office, accelerated drone attacks on all such affiliates.
The nations founders made very clear in the Constitution and in the debates at
the Constitutional Convention that created it that all military actions, even minor ones,
should be approved beforehand by the peoples branch of government. Only one
justifiable exception exists: if the country is in imminent danger of attack, the president
can take action in self-defense but even then should get congressional approval at the
earliest possible time. Because the wars involving assassination of suspected terrorists
with the use of drones and apparently car bombs outside the AUMFs purview have
been going on for significantly longer than a decade, with neither Bush nor Obama
seeking congressional approval, the legitimate self-defense from imminent attack
clearly does not apply constitutionally in any of these illegal conflicts.
Although Napolitano does note the executives usurpation of the congressional
war power in his book, he does not give this important erosion of the constitutional
checks and balances due attention. And although he does a good job of cataloging the
deterioration of Americans economic liberties by government intrusion into the
private sector during wartime, he does not mention at all the corrosion of Congresss
budgetary power and its aggrandizement by the executive, which started shortly after
World War I. The disintegration of Congresss war and budgetary powers throughout
U.S. history has upended the Founders checks-and-balances system, which was
originally designed to make the peoples branch, the Congress, the dominant arm
of government to prevent executive abuse, which the kings of Europe doled out to
their citizens. The current imperial presidency does affect citizens liberty, and
Napolitano should have done a better job of covering this issue.
Napolitanos solution to the governments trampling of civil liberties is to have
people in government who do believe in the Natural Law, and to have systems in place
to change and diminish the government, not grow it (p. 346). Yet this vague
solution runs afoul of Lord Actons axiom: Power corrupts, and absolute power
corrupts absolutely. Look at Barack Obama, a constitutional law professor who
pledged a restoration of lost civil liberties but who has given us more of the same.
The real solution is greater public education about and awareness of the constitutional
framers intent in order to keep the politicians honest and to combat the fear
that they regularly peddle.
Overall, however, Napolitanos book is an excellent overview of the history of
American liberty and, with a few exceptions, demonstrates the prescience of Thomas
Jeffersons prediction that liberty usually gives way in the face of government power.