Samuel Walker - Defending Fundamental Principles: An ACLU Tradition

Samuel Walker is Professor Emeritus of Criminal Justice at the University of Nebraska at Omaha. He is the author of In Defense of American Liberties: A History of the ACLU

The American Civil Liberties Union's decision to coordinate defense teams for detainees at Guantanamo is part of a long and honorable tradition of standing for fundamental constitutional principles in a time of crisis.

• In World War I, the National Civil Liberties Bureau, forerunner of the ACLU, defended the First Amendment rights of antiwar dissidents in the face of massive government repression.
• During World War II, the ACLU was the only national organization to challenge the government's evacuation and internment of the Japanese-Americans.

Those two earlier crises involved fundamental American liberties. During World War I, the government banned from the mails and prosecuted individuals who merely expressed opposition to the war, or criticized President Woodrow Wilson. People were convicted and sentenced to ten-year prison terms for allegedly interfering with the draft, even though they said nothing about the draft itself.

In that crisis, the Civil Liberties Bureau was the only national organization to speak out in defense of freedom of speech, freedom of the press, the rights of conscientious objectors, and the due process rights of radical labor leaders. The Bureau was led by Roger Baldwin, who founded the ACLU in January 1920.

History has vindicated the Civil Liberties Bureau's lonely defense of constitutional rights during World War I. Historians are unanimous in their judgment that the government's actions were among the greatest violations of civil liberties in American history. The U.S. Supreme Court upheld the wartime prosecutions, but subsequently embraced the principle that the First Amendment protects the right to criticize the government during wartime.

The evacuation and internment of 120,000 Japanese-Americans during World War II has also been labeled one of the worst violations of civil liberties in American history. The ACLU handled the two crucial cases before the Supreme Court –Hirabayashi (1943) and Korematsu (1944). Meanwhile, liberal, leftist, and conservative groups looked the other way, afraid to challenge the government.

On the Japanese-American tragedy, the ACLU's courageous defense of fundamental rights has been vindicated by historians, legal scholars, and public opinion. No historian has found justification for the government's actions. The American public as a whole is ashamed of this ugly chapter in our history.

These two episodes are only two of the most notable examples of the ACLU's active defense of basic liberties – from the Scopes case in 1925, the defense of freedom of speech and association during the Cold War, and challenges to unconstitutional aspects of the so-called "war on terrorism" today.

What is at stake in the military commission proceedings are a set of legal issues that go to the core of the American system of justice:

• The use of evidence obtained by torture;
• The right of defendants to see the government's evidence against them, so they and their lawyers can present an adequate defense;
• The right of a defendant to confront his or her accusers;
• The use of hearsay evidence;
• The right to an impartial hearing.

In the end, we have to ask the question, What are we fighting for? President Woodrow Wilson said that World War I was a war to make the world safe for democracy, but he trampled on democracy at home. Only the ACLU challenged him. World War II was a fight against Nazi racism, yet the president authorized the most racist action by the federal government in our history. Again, only the ACLU challenged the government. And so it is today. The federal government is casting aside fundamental constitutional principles with the military commission proceedings. The ACLU is again rising to defend the core values that we are fighting for.