Did you know the president of the United States had the power to imprison or deport aliens who are considered "dangerous to the peace and safety of the United States"? On top of that, did you know he had the power to restrict speech that is critical of the government and had some of his political foes incarcerated?
What about a president who was one vote away from Congress giving him the ability to censor the press?
Or what about the American president who attempted to suspend the right of habeas corpus, a right protected by Article 1, Section 9 of the Constitution, that allows a petition to the federal court challenging imprisonment?
Reading the newspaper you'd think that our freedoms have been eroded to the point of non-existence by the ever-encroaching power of the government. I'm not saying that we shouldn't remain vigilant in protecting civil liberties and restricting government growth, but all the gloom-and-doomers and apocalypticians on Facebook should take a history lesson and be grateful for a legal system that is constantly battling to protect individual liberties.
No, it is not President Obama who could restrict speech critical of the government and unilaterally deport aliens. That honor belonged to one of the founding fathers, our second president, John Adams. In 1798, Congress passed a series of laws that became known as the Alien and Sedition Acts. The fears that motivated these laws were the threat of war with France. The French were attacking American ships and a French general by the name of Napoleon had just come to power. The Acts allowed for deportation of immigrants and severely restricted any speech that criticized the government.
Similarly, President Wilson was one vote away in the Senate from getting the Espionage Act of 1917 passed with similar powers restricting free speech because of World War I. The Espionage Act of 1917, although somewhat modified, is still around today and is the law currently being used to prosecute Edward Snowden and that was used to convict Private Chelsea (formerly known as Bradley) Manning for providing documents to WikiLeaks.
Of course, habeas corpus was suspended by President Lincoln. Chief Justice Taney in Ex parte Merryman ruled Lincoln's actions unconstitutional and that the suspension of habeas corpus could only be done through congressional action. During the heat of the Civil War, Lincoln's executive branch ignored the ruling for a time.
More recently, in the Patriot Act of 2001, Congress specifically granted those detained on United States soil the right to petition the courts with a writ of habeas corpus. The Bush administration decided that it would not apply to prisoners from the Afghan war at Guantanamo Bay. The Supreme Court held in Rasul v. Bush that the inmates at Guantanamo Bay had the right to petition the court for habeas corpus. Congress responded by suspending the right of habeas corpus for Guantanamo prisoners in the Military Commission Act of 2006. The Supreme Court ruled the Act unconstitutional in Boumediene v. Bush. Since then, there has been substantial litigation by the detainees. On Oct. 2 this year, a writ of habeas corpus was actually granted for Ibrahaim Idris, allowing him to be returned to his home country from Guantanamo.
The United States has always struggled to live up to its ideals of freedom. History, recent and distant, tells us that freedom isn't free from fear or hypocrisy. Even the vaunted Constitution first hung by a thread because its ideals of equality directly conflicted with the language of the document that classified a large portion of the country as 3/5ths of an individual.
It is no wonder that at the turn of the 20th century, Franz Kafka imagined 17-year-old Karl Rossmann floating into New York Harbor and observing the Statue of Liberty for the first time, saw that her "arm with the sword now reached aloft, and about her figure blew the free winds." Even in the early 1900s a foreign novelist saw not just the light of freedom, but the sword of enforcement in our aspirations for liberty.
E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or email@example.com.