As we approach July 4, it is worth reminding ourselves of America’s foundational idea.
This country is set apart from the rest of the world because of its unparalleled commitment to personal freedom and the dignity of the individual. It is a vision captured in the guarantee of freedom of speech, freedom of religion, due process of law, equal protection under the law and freedom from unreasonable search and seizure and cruel and unusual punishment.
We do not always live up to these aspirations. Over time, we have embarrassed ourselves and tarnished our image as a country that is respectful of civil liberties. We have persecuted dissenters, interned the innocent, suspended habeas corpus, invaded reasonable expectations of privacy. We have even engaged in torture.
What, then, can we do to see to it that we more reliably honor our core values? Here’s a start.
Presidents have a wide range of official advisers. There is a secretary of defense, a secretary of labor, a national security adviser, to name just a few. The next president should create a new executive branch position: a civil liberties adviser. Within the highest councils of every administration there should be a respected public official whose charge it is to defend our civil liberties against all comers.
Many administrations have included high-level officials who have been strong advocates for civil liberties, even though this was not their explicit job description. At times, such officials have made a real difference. During World War I, for example, the administration of Woodrow Wilson conducted a devastating campaign to squelch dissent. Although the Justice Department vigorously supported this campaign — prosecuting some 2,000 people for criticizing Wilson’s war policies — several key figures in the department (most notably John Lord O’Brian and Alfred Bettman) effectively moderated the government’s campaign of repression.
Some years later, Francis Biddle, as Franklin Roosevelt’s attorney general, championed respect for individual liberties from within the White House. He vigorously opposed the prosecution of dissenters, the mass detention of enemy aliens, J. Edgar Hoover’s effort to authorize unbridled loyalty investigations of Americans and the internment of Japanese-Americans. Biddle did not always prevail, but he made a critical difference in our nation’s policies.
Too often, though, presidents have excluded voices supporting civil liberties from their highest councils. The results — from Harry Truman’s federal loyalty program and Richard Nixon’s prosecution of war protesters to the actions of the current administration — have never been happy. In some sense, these failures are not surprising. The preservation of civil liberties usually involves protecting the rights of dissenters, minorities and outsiders. It is often politically expedient to look the other way when the liberties of such people are denied. But as Francis Biddle observed, every man “who cares about freedom must fight” to protect it “for the other man” as well as for himself.
Some may object to the idea of an official civil liberties adviser (or a Council of Civil Liberties Advisers analogous to the Council of Economic Advisers) on the ground that we already have an attorney general, a legal counselor to the president, an office of legal counsel and a host of other lawyers in the executive branch. (The president himself is often a lawyer.) But all these officials, presidents included, have mixed and often conflicting agendas and responsibilities. None is assigned the specific responsibility of articulating and advancing the cause of civil liberties.
Of course, the civil liberties advisers may sometimes lose the debate, or even be shunted aside. But sometimes they will win — and at the very least, they will always be heard.
Geoffrey R. Stone, a professor of law at the University of Chicago.