Justice Brennan and Civil Liberty in Times of Crisis

Abstract

It has been forty years since I had the privilege of serving Justice William J. Brennan, Jr. as a law clerk during the 1966 Term. That was a year of intellectual excitement mixed with warmth and friendship. Our reunions then were relatively intimate, as the Justice had fewer clerks. Brennan home in Georgetown left many good memories, none more vivid than the charm, intelligence, and good humor of Justice and Mrs. Brennan. Over the years, I continued to interact with Justice Brennan; once in this law school when I spoke at an event in his honor.' In December 1987, he asked me to attend a conference on Free Speech and National at Hebrew University in Jerusalem. trip was especially memorable for the Christmas mass we attended at the Church of the Nativity in Bethlehem, accompanied by the mayors of Jerusalem and Bethlehem-Teddy Kollek and Elias Freij. It turned out to be one of the last such events prior to the first intifada. Justice Brennan delivered a speech at that conference entitled The Quest to Develop a Jurisprudence of Civil Liberties in Times of Security Crises.2 It was characteristically insightful and courageous. He surveyed the security crises of U.S. history-from the Alien and Sedition Acts of 1798, to the Civil War period of 1861 to 1865, the Espionage Act and its amendments during World War I, the Japanese American intemments during World War II, and the laws and investigations launched to combat the Communist threat during the 1950s. He concluded that security crises in the United States often led to exaggerated claims of danger and unnecessary deprivations of civil liberties. In reaching this conclusion the Justice was not questioning the seriousness of