Cicero is credited with coining the Latin phrase “inter arma silent leges” – among
arms, the laws are silent. The phrase has since been used in US Supreme Court cases
such as ex Parte Milligan, ruling on the justifiability of suspending habeas corpus during
the civil war, by Justice Antonin Scalia in a dissenting opinion in Hamdi v. Rumsfeld and
by a cavalcade of recent journalists discussing the constitutionality and legality of Patriot
Act legislation. This pithy aphorism reflects the exceptional nature of war and, for the
government, the subordination of all other executive and legislative concerns to the
interests of national security.
Wartime is when government repression, encroachment upon civil liberties and
violation of individual privacy is most justified. What good, so goes the argument, is a
bit of civil liberty or personal confidentiality when the very existence and sovereignty of
the nation is threatened? Time and again the United States government has invoked the
exigencies of wartime to justify domestic surveillance, espionage and other covert
activities. From the Revolutionary War, when Washington intercepted British letters,
both civilian and military, to the Civil War, when Lincoln suspended habeas corpus and
wiretapped telegraph lines, to the Cold War, where the covert operations of the FBI’s
COINTELPRO division used wiretapping, “surreptitious entry” and other methods of
dubious legality with impunity, the United States has had a long and illustrious history of
resorting to and permitting widespread violations of individual privacy during wartime.
It is then highly instructive to examine the historical trajectory of US government
violation of civil liberties, particularly personal privacy, in analyzing and understanding
current legislation and methodology employed by the government in the War on Terror.
Due to technological innovation, breadth of surveillance tactics and the character of the
conflict itself, modern privacy violations by the government bear a markedly and
critically different character from historical tactics. Modern surveillance hardware and
software, data aggregation and analysis techniques and increasing automation allow
government surveillance to focus, rather than on publicly espoused views, on private,
personal actions and correspondence.