Civil Liberties Examined in Context of War

Sep 26, 2014
Eric Wilkens
Woodrow Wilson School
As laws involving American civil liberties have evolved, individuals have needed to be especially vigilant about those rights in wartime, speakers concluded at the “Civil Liberties in Times of War” policy forum held Sept. 18 and 19 in Robertson Hall on the Princeton University campus.
The conference was sponsored by the Woodrow Wilson School of Public and International Affairs; the Wilson School's Program in Law and Public Affairs (LAPA); and the Seeley G. Mudd Manuscript Library at Princeton, which houses the complete ACLU archives. The ACLU was involved in planning the event. 
Cecilia Rouse, dean of the Wilson School, opened the conference and noted that while the ACLU has litigated cases on a wide range of issues in its nearly century-long history, the conference would focus on challenges where security and civil liberties collide. 
“Given all of the policy implications of the cases the ACLU has argued and won over time, we were thrilled to partner in this event,” Rouse said. “Because we are a policy school, we wanted to explore the ways that the legal and historical record can positively influence policy going forward.” 
The event began with a look into how security and technology affect civil liberties in the 21st century. Edward Felten, the Robert E. Kahn Professor of Computer Science and Public Affairs at the Wilson School, and Jeffrey Rosen, president and CEO of the National Constitution Center, discussed whether the government’s gathering and use of cell phone and telephone metadata without warrant is consistent with the Fourth Amendment, which pertains to search and seizure. 
“If you have a large database of information about the population, you can use machine learning to build a predictive model that can look at a person’s phone call patterns and makes inferences – with some degree of confidence – about that person and his or her lifestyle,” said Felten, who is also director of the School’s Center for Information Technology Policy. “And so we know that metadata, especially in bulk, examined with modern data analysis techniques, can be exceptionally revealing about an individual and about a population.”
Launching the second day of the conference, ACLU Executive Director Anthony Romero ’87 explained how the ACLU archive is a window into American history. He introduced ACLU President Susan Herman, who continued this theme by giving an overview of the ACLU’s history and showing how the organization’s case records can be used to track historical trends in the United States.
Throughout the day, panelists explored the constitutionality of government actions that people have claimed violated their civil liberties. The first panel, “When ‘Others’ Scare Us: World War II and Japanese Internment, and the War on Terror and Treatment of Muslim Americans,” included Greg Robinson, professor at the Université du Québec à Montréal; Denny Chin ’75, judge for the U.S. Court of Appeals for the 2nd Circuit; and Adam Goldman, staff writer at the Washington Post. Moderated by Jonathan Hafetz, a 2014-15 LAPA fellow and associate professor of law at Seton Hall University, the panel drew parallels between the landmark Supreme Court case Korematsu v. United States, which sanctioned an executive order that placed Japanese Americans into internment during World War II, and the government’s surveillance of Muslim Americans after 9/11. Chin, who is also a trustee of Princeton, emphasized the emotional impact families and individuals suffered during their internment. 
The second panel, “Saying ‘No’ to War – World War I, the Vietnam War and Conscientious Objectors,” explored constitutional history and how the ACLU has influenced cases involving those who refuse on principle to fight in wars. One panelist, Aryeh Neier, president emeritus of the Open Society Foundations, recounted his time in the 1960s as national executive director of the ACLU, defending the rights of Vietnam War protestors. The panel concluded that the historical records of the ACLU are fundamental in understanding the evolution of civil liberties. Other panelists included Laura Weinrib, Ph.D ’11, assistant professor at the University of Chicago; Samuel Walker, professor emeritus at the University of Nebraska at Omaha; and Risa Goluboff, MA ‘99, Ph.D. ’03, professor at the University of Virginia. Hendrik Hartog, Class of 1921 Bicentennial Professor in the History of American Law and Liberty and director of the Program in American Studies at Princeton, moderated the discussion. 

The final panel, “The Spy Who Didn’t Come in From the Cold: Surveillance in the Name of National Security vs. Privacy –The Cold War and McCarthyism; the Pentagon Paper; Wikileaks; and the Snowden Affair,” included Barton Gellman ’82, the journalist who broke the Snowden story in the Washington Post and a visiting professional specialist and lecturer at the Wilson School, Peter Baker of The New York Times, David Cole of the Georgetown University Law Center, Nadine Strossen, former president of the ACLU; and Karen Greenberg of Fordham University School of Law. Among the issues the panel discussed were the constitutional rights of whistleblowers, as well as the constitutionality of Section 215 of the Patriot Act, which concerns the collection of telephone metadata. 
For the conference’s keynote presentation, Geoffrey Stone of the University of Chicago discussed his recent service on President Barack Obama’s Review Group on Intelligence and Communications Technologies, a group commissioned following the disclosures about surveillance activities of the National Security Agency (NSA).
While Stone entered the Review Group skeptical of the government’s actions (particularly given his strong record of litigating in defense of civil liberties), he concluded that the problem with the NSA’s global surveillance program was not always the agency itself. Rather, it was because the NSA was given authorities and responsibilities by braches of government that it should not have been given.
The motivation for the conference was to highlight the ACLU archive at Princeton. Daniel Linke, University Archivist and curator of public policy papers, said the archive is Mudd Library’s largest and most used collection. With more than 4,000 boxes, it is four times larger than Mudd Library’s next-largest collection, second only to the George S. McGovern papers. 
“There are organizational records from the board of directors and the executive directors and records from regional offices, including the Southern Regional, which played a very important role in our nation’s civil rights struggle,” Linke said. “The collection is proof, especially in the context of this conference, that the archives should not be thought of as a collection of dead letters, but a place that has ideas that still have life.”
Leslie Gerwin, associate director of LAPA, said she was grateful that the participants, like Stone, shared their scholarly expertise and engaged in debate over the future challenges in safeguarding civil liberties. 
“The conference organizers succeeded in ensuring that everyone in attendance learned something while also highlighting the value of the ACLU archives housed at Princeton and the incredible work of our University’s archivists,” Gerwin said.
To view video of the conference, please visit here
Photos by Tori Sulewski/Fotobuddy for the Wilson School.