The State of Civil Liberties
New York: May 22, 2002
A Speech by Anthony D. Romero
Executive Director, American Civil Liberties Union (ACLU)
It is an honor to be here with you this evening.
Today, I want to talk to you about the state of civil liberties in America. If I were to describe it in a word, I would use precarious. Nine months after the unprovoked, horrific terrorist attacks on our homeland, few of us understand, or even want to hear about, the major changes that have taken place in our nation's laws, policies and regulations. These changes, made in the immediate, emotional aftermath of the attacks, are blurring the distinction between waging war and doing justice. As such, they undermine our liberty without effectively protecting our security.
I was just one week on the job as Executive Director of the American Civil Liberties Union when the terrorists struck the World Trade Towers. The ACLU's national headquarters is located at the tip of Manhattan, not far from what is now known as "ground zero." From this terrible vantage point, staff members watched with horror as victims hurled themselves from the flaming buildings, and then as the two giant towers collapsed and thousands of innocent Americans were brutally murdered. As the destruction spread, our staff and everyone else caught downtown on that awful day fled the area in fear and desperation, chased by swelling clouds of smoke and debris.
I only mention this because the ACLU's critics never tire of describing the organization as "out of touch" with reality. Nor do they weary of accusing us of preaching from "on high," from a safe and comfortable, even privileged, distance. If that has ever been true - and I sincerely doubt it ever was - it is definitely not so in this instance. September 11 is seared in our memory as only a firsthand experience of sheer horror, fear and insecurity can be.
YET - at the same time, we know what many Americans intuitively know - that the terrorists were targeting not only people and buildings, but also our values - the values of freedom, liberty and equality that are the defining characteristics of our democracy. That is why in poll after poll Americans have indicated that they are concerned BOTH that the government will do too little to increase SECURITY, and that it will do too much to restrict LIBERTY.
Some commentators have interpreted these survey results as typically American - attempting to "have our cake and eat it." I don't agree. I think the surveys indicate that the American people are sophisticated and nuanced in their approach to liberty and security. In other words, these conflicting concerns point to the fact that people are trying to strike a balance between competing values. Americans understand that terror, by its very nature, is intended not only to destroy, but also to intimidate a people, forcing us to take actions that are not in our best interest.
That's why defending liberty during a time of national crisis is the ultimate act of defiance. It is the ultimate act of patriotism. For if we are intimidated to the point of restricting our freedoms, the terrorists will have won.
President Bush understood this point at the start. In his first address to the nation following 9-11, Mr. Bush said that America was targeted for attack because we are the brightest beacon for freedom and opportunity in the world. And no one, he emphasized, "will keep that light from shining."
Safe and Free
At the ACLU we took those words to heart and launched a campaign that we call "Safe and Free in Time of Crisis." Our message is clear - the ACLU supports government actions to keep Americans SAFE from terrorism and FREE to exercise constitutional freedoms. We support actions to increase the effectiveness of LAW ENFORCEMENT and protect INDIVIDUAL RIGHTS. After all, when the war against terrorism is finally won, we want to be able to recognize our country. America must, therefore, be vigilant, and guard against any short-term tradeoffs that would needlessly and dangerously erode fundamental freedoms.
Unfortunately, within days of the President's affirming the need to keep freedom strong, his administration, with the support of Congress, sought and eventually gained an expansive array of new powers that threaten to undermine the system of checks and balances so essential for the protection of civil liberties.
This is not the first time we have seen this in American history. Allow me to make a short detour in order to give you some background on the ACLU and its support of liberty in times of national crisis.
The ACLU was created in response to the gross violations of civil liberties that occurred during the Palmer Raids of 1918. Recall that the period following World War I was a time of great political and economic turmoil worldwide. The old world order was collapsing, and new social and revolutionary movements were underway. Millions of people were uprooted, disoriented and frightened. Here in the U.S., cities were bursting with new immigrants who were poorly housed and working under terrible industrial conditions. A nascent union movement organized strikes which led to violent demonstrations and in some cases riots. Bombs exploded in eight cities, one killing its deliverer on the doorstep of Attorney General Palmer's house.
Law enforcement officials reacted immediately and drastically. Over a period of two months they swooped down on suspected radicals in 33 cities, arresting 6,000 people, most of them immigrants. The raids involved wholesale abuses of the law, including arrests without a warrant, unreasonable searches and seizures, wanton destruction of property, physical brutality, and prolonged detention.
While the public initially supported these actions in the name of law and order, popular opinion soon changed. Prominent lawyers like Felix Frankfurter charged that the abuses "struck at the foundation of American free institutions, and brought the name of our country into disrepute."
In was precisely in this context that Roger Baldwin established the National Civil Liberties Bureau - which became the ACLU in 1920.
Baldwin and his fellow civil libertarians understood the critical role that the Constitution and the Bill of Rights fulfill in our society. "Those who have power," Baldwin observed, "call their wishes justice. Those who have not power call their wishes rights…. You've got to have some law, or at least a living tradition to appeal to, or else you don't get anywhere." The Bill of Rights is that "living tradition."
The ACLU was thus forged in the crucible of the Palmer Raids, and then later tested by fire in 1942 when the nation abandoned itself to xenophobia. Claiming that the Japanese-American communities located on the west coast were a national security risk, the federal government uprooted more than 120,000 people, many of them U.S. citizens, and held them in internment camps.
As public prejudice and hysteria mounted, the ACLU protested the internment to President Franklin Roosevelt. Arthur Garfield Hays, the ACLU's General Counsel at the time, argued, "Our democratic structure is sufficiently elastic to reconcile the military necessity with the fundamental civil rights of the citizen." The ACLU lost that battle, and it took the government more than 45 years to acknowledge its wrongful actions and pay restitution to former internees.
This history of shameful actions, should remind us that in times of national crisis we must not unify to the point of intolerance.
Undermining Checks and Balances
With this background, let's look at the actions being taken today that undermine our system of checks and balances.
Recall your 8th grade social studies lesson. Madison together with Alexander Hamilton, the two chief authors of The Federalist - promoted a government that had enough power to function as a modern state, but not enough to lead to tyranny. The separation of powers would insure that each branch and level of government exercised a check on the actions of the others. In this way power would be balanced and not concentrated in one branch or in one or several persons.
A chief means of securing the system of checks and balances was the right to judicial review. Indeed, the framers of our Constitution went to great lengths to create an independent judiciary - an institution very different from the colonial judges who had served at the pleasure of the king and were greatly distrusted by the colonists. The new, independent judges were to play a primary role in guaranteeing individual freedoms, forming, in Madison's words "an impenetrable bulwark against every assumption of power in the legislative or executive."
Now fast-forward to 1995. The Oklahoma City bombing had killed 168 people. Public pressure mounted for President Clinton and Congress to "do something" to prevent domestic terrorism. After a year of deliberation, Congress passed a new anti-terrorism law giving the government new tools to conduct surveillance and detain suspicious individuals. More worrisome was the fact that many of these new enforcement powers were insulated from meaningful judicial oversight.
Within a few short months following passage of the 1996 anti-terrorism law, Congress enacted two additional laws focused on immigrants and prisoners. These laws once again shielded executive authority from review by neutral judges.
This trilogy of laws passed in 1996 set in motion a dangerous trend in which the framers' view of the judiciary as an essential instrument of accountability is being replaced by a totally opposite view - one in which the judiciary is treated as an inconvenient obstacle to executive action. For example, the 1996 immigration law restricted judicial review of a range of executive branch decisions regarding legal and undocumented immigrants.
Let's move to the current situation - the aftermath of September 11. After barely merely a month and a half of deliberation, Congress, with the strong support of the President, passed a complex, hastily drafted 342-page piece of legislation known as the USA PATRIOT Act.
Unfortunately, many of the Act's provisions further undercut the role of the judiciary, in some cases limiting judicial review of law enforcement activities altogether, or creating the illusion of judicial review while transforming judges into rubber stamps of administrative actions.
During Congressional deliberations, the ACLU did succeed in getting accountability measures included in the House bill. However, the victory was short-lived since these provisions were removed under pressure from the Administration. The new law, therefore, preserves the fullness of law enforcement powers, but substantially weakens the safeguards against abuse.
As a result, our laws and regulations now permit the government to do the following:
- Detain non-citizens facing deportation based merely on the Attorney General's certification that he has "reasonable grounds to believe" the non-citizen endangers national security. In other words, the legislation confers new and unprecedented detention authority on the Attorney General based on vague and unspecified threats to the national security.
Although the law requires that immigration or criminal charges must be filed within seven days, these charges need not have anything to do with terrorism, but can be minor visa violations of the kind that normally would not result in detention at all.
- Search your home, rifle through your effects, all without providing you the opportunity to scrutinize the search warrant until several days after the search. The new law refers to this infringement on due process as "delayed notice" searches. The ACLU has dubbed them "sneak and peek" searches.
When I was on Nightline, Ted Koppel asked me what was so objectionable about such searches, especially since law enforcement agents are required to obtain a search warrant. The answer is that agents frequently get it wrong. They may have the wrong name on the warrant, the wrong address, the wrong judge. Now there is no way of catching these mistakes until after the search has been completed. That is too late to assert your constitutional right to be left alone.
- Monitor confidential attorney-client conversations in any case in which the Attorney General finds that there is "reasonable suspicion" to believe that a particular federal prisoner "may" use communications with attorneys or their agents "to further or facilitate acts of terrorism." In short, the Justice Department, unilaterally, without judicial oversight, and with no meaningful standards, is to decide when to monitor the confidential attorney-client conversations of a person whom the Justice Department itself may be seeking to prosecute.
What makes the regulation even more disturbing is that it is completely unnecessary. The Department of Justice already has legal authority to record attorney-client conversations by going before a judge and obtaining a warrant based on probable cause that the attorney is facilitating a crime.
- Enhance the power of the FBI to spy on Americans for "intelligence" as opposed to criminal purposes, and to share highly personal information with the CIA and Department of Defense - all without meaningful restrictions on how the information is used or re-distributed.
Many of us will remember the FBI's abuse of power under Director J. Edgar Hoover. In 1976, Senator Frank Church held high-profile hearings in Congress in which he and his fellow Senators concluded that the FBI, under its infamous Counter Intelligence Program (COINTELPRO), had harassed and disrupted groups and individuals like Dr. Martin Luther King who posed no threat of violence or illegal acts on behalf of a hostile foreign power. Instead they were spied on because of their political views and lifestyles. This is not the sort of history our country can afford to repeat.
A Nation of Immigrants
I want to say a few words about the people who were detained after September 11. We pride ourselves on being a nation of immigrants, yet we frequently fail to meet the standard of tolerance and fairness implied by that self-image. Popular anger at immigrants has periodically boiled over and immigrant groups have frequently been used as scapegoats in American politics.
After September 11, more than 1,200 individuals were arrested or detained and an unknown number of these people are still in government custody. Since they are not American citizens, we tend to view them as having fewer rights than those of us who are citizens.
While it is true that non-citizens are denied certain civic rights, such as the right to vote, the fact is that many of the constitutionally guaranteed rights apply to citizens and non-citizens alike. For example, the Fifth Amendment guarantee of due process makes no distinction between individuals, and instead is very clear that "No person shall…be deprived of life, liberty, or property, without due process of the law." Therefore, any denial of due process has to be of concern to every American, for when the rights of any are sacrificed the rights of none are safe.
The Administration refuses to release crucial information about the fate of the remaining detainees. The Justice Department has responded to the ACLU's repeated requests for information by engaging in a game of hide-and-seek, withholding information that could prove that the vast majority of detainees have no connection at all to terrorism. This information may also show that many of the detainees were denied access to counsel.
Of course, the ACLU is not so easily deterred. Determined to identify and challenge abuses of civil liberties, we sent letters to the consulates of 10 countries offering legal assistance to innocent people caught up in the government's crackdown on terrorism. Foreign officials were at first hesitant, not knowing who we were - and frankly surprised that an American organization was offering to challenge its own government.
Ironically enough, they did eventually provide us with names and family contacts of detainees. And just who was the source of their information? Why no other than the U.S. government - the same government that was giving an organization made up of its own citizens - namely the ACLU - the run-around! With this information in hand, we have prepared several lawsuits on behalf of the rights of detainees.
On another front, the ACLU last month won a challenge brought in federal court on behalf of Representative John Conyers (D-MI), the Detroit News, and the Metro Times. Rep. Conyers and the members of the media were among hundreds turned away from three deportation hearings in the case of Rabih Haddad, a native of Lebanon and resident of Ann Arbor, Michigan. Mr. Haddad, who faces an immigration hearing, a founder of the Global Relief Foundation, an Islamic charity that has come under federal scrutiny for possible links to terror groups.
Federal District Court Judge Nancy Edmunds ruled Haddad's immigration hearing could not be closed to reporters. The judge insisted that "Openness is necessary for the public to maintain confidence in the value and soundness of the government's actions, as secrecy only breeds suspicion."
The ACLU has also challenged the closed hearing policy in New Jersey, in a lawsuit brought on behalf of local news outlets. And in two separate state and federal cases the ACLU is seeking basic information about the detainees remaining in government custody.
In the New Jersey case, the judge ruled recently that under state law, the government must release the names of detainees in New Jersey jails. The federal government, which intervened in the case, has indicated it will appeal.
Finally, the ACLU is closely monitoring the establishment of military tribunals ordered last year by the President. Counter to assertions by the Administration, these tribunals appear starkly different from regular courts-martial. They might, for example, deny any appeal to a civilian body independent of the executive branch. Such a drastic measure would put the lives of defendants solely in the hands of the President, and violate basic American and international principles of fairness and justice.
Necessary and Defensible
Our critics are downplaying these concerns over civil liberties, insisting that limitations imposed on individual freedom during wartime are almost always temporary, and that we can expect a return to normal conditions once hostilities are ended.
But the war on terrorism, unlike conventional wars such as the two World Wars, is unlikely to come to a public, decisive end any time soon. Homeland Security Director Ridge, for example, has equated the war on terrorism with the nation's continuing war on drugs and crime.
Consequently, restrictions on civil liberties may be with us for a very long time. So long, in fact, that they may change the very notion of freedom in America, and the character of our democratic system in ways that very few, if any, Americans desire. There are, in other words, long-term concerns that must be taken into account so that America will be both "safe and free."
That is why we need to be vigilant and carefully scrutinize actions the government is taking - actions that may limit our liberty without adding anything to our safety. At the ACLU, we believe that every proposal to restrict liberty should be made to pass a "necessary and defensible" test.
That is, in evaluating each new proposal we must ask:
- Is the proposed new restriction necessary-will it in fact increase our security?
- Is it defensible-will the increased benefit to security outweigh the cost to constitutional guarantees of procedural fairness, free speech and privacy?
If we believe conventional wisdom, national security always trumps civil liberty. Fortunately, large segments of the American public have a strong commitment to the freedoms expressed in the Bill of Rights. In a 1972 Supreme Court case, Thurgood Marshall noted that "The U.S. is a country which stands tallest in troubled times, a country that clings to fundamental principles, cherishes its constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system."
Make no mistake; the challenges ahead of us are stark. Staunch civil libertarians such as Alan Dershowitz are already saying that incursions into freedom are the price we need to pay to ensure our security from further terrorist attacks.
My response is that before we forfeit any freedom, we need a strong, healthy debate over these critical issues.
Our democracy is built squarely on principles of free speech and due process of law. These great principles encourage each and every one of us to speak up in the firm conviction that by so doing, we strengthen our nation. Therefore, when Americans question whether the new anti-terrorism laws are upsetting the system of checks and balances that are fundamental to our democracy, they are fulfilling a civic responsibility. And when others decry the detention of hundreds of immigrants for reasons that have nothing to do with the September 11 terrorist attacks, they are performing a necessary task.
Democracy has many great attributes; but it is not a quiet business.
In conclusion, let me come full circle to where I began
Some have commented on the transformative nature of 9-11. It is hard to disagree that our country has not changed in some significant way now that it is no longer immune to the furies of foreign events.
But I would also remind us all of the transformative nature of 1776, 1787 and 1791 - the Declaration of Independence, the signing of the Constitution, and the ratification of the Bill of Rights. For Americans, these must remain the key transformative events, shaping how we see the world and what we understand our role to be.
In this spirit of our founder Roger Baldwin, let us go forward to make this country a better place for all people who yearn for freedom and dignity.
It is, after all, our values - not our fears - that bind us together.
Okay, I’d love your questions or comments or thoughts…your doubts, your arguments, please.
Why was the last spot not shown?
Well, when you run public service advertisements, you are at the whim and fancy of the network producers. The first two were designed specifically with the hope that they would run them on television. They’re non-controversial enough, they’re non-confrontational enough. They really speak to a broader message that perhaps the TV producers would be willing to show. It has the voice of Danny Glover. He’s the actor who’s the narrator on the first two. The third one is much more controversial. And we hear from some of the TV producers and the TV executives that in fact they do not like to use the public service advertisements for public affairs programming. So it is very unlikely that those will run. It might run in some of the cable and some of the free access programs. I’d love your ideas and thoughts if you have ideas for how we might be able to show them. They are many more hours of footage and of tapes that we have. There are at least four or five videotapes of individuals who were also interviewed while in detention and we’d love to find a way to be able to use them as well. We’ve been discussing it with some of the major news outlets and might be in fact that they use it in some of their new stories. So…we’ll see.
What troubles me is your isolation. I don’t hear these message from the legal profession, from the law schools, from civic society generally, from the media, from the major newspapers. Well with the possible exception of Bill Morris who’s turning himself into a very welcome radical. So the question is why is this happening and what can we do and say to make this a much broader discussion and raise the visibility of these questions?
Yeah I think that’s exactly the right question. It’s good to finally see you after all these email exchanges over the last several months. The difficulty we had of course initially was…even as we were engaging members of congress and the media, they had enormous pressure that they placed on themselves for not appearing un-American or un-patriotic. We would often engage members of the senate staff and ask them to raise these concerns in the hearings, even however abbreviated they might have been, and they told us we cannot raise these concerns right now. If we do so, we’ll be seen as being against the president, against the war, or appearing un-American, or un-patriotic. And so you had this very much of a chilling effect on individuals who are not willing to speak up. On the two lawsuits that we filed in Michigan and New Jersey, I think it is notable, I’m sure to many of you in this room, that many of the national media outlets did not join that litigation. It was not from lack of trying, I can assure you…that many of the national media outlets told us that they’d like to do a little more reporting and a little less advocacy in this work. You had many of the media producers, often under the same pressure, that were unwilling to cover stories or to cover articles that would make them seem as un-American or un-patriotic. And then of course you have to park this at the door step of one of the greatest bullies in the government…and by that I mean the Attorney General John Ashcroft. That when he deigned to give Congress one hour of his time, his precious time, as Congress was debating on of the most sweeping pieces of legislation that fundamentally rewrote immigration, searches and seizures, privacy, surveillance…that he only had one hour for the elected representatives of the people. And that in that one hour of his time that he had the audacity to make the statement which I reference, “That anyone who conjured up the phantoms of liberty would give ammunition to our enemies, pause to our allies, and diminish our national resolve.” Those are his exact words, earlier paraphrased, those are his exact works. And the fact that he used that Senate Judiciary Committee hearing as a way to browbeat the senators and the media and the public, to essentially say, “You’re with me or your against me.” And the fact that no one had the audacity, I looked that next day in all the newspapers, and by God, I did not find the articles I expected to see. And so it has been one of our enormous frustrations. Now one thing that I will tell you which will I think give you a sense of optimism. The fact that last year we saw the largest growth in ACLU membership in our 82-year history. In the last two months of the year we saw over 75,000 members join the ACLU. It is an unprecedented growth for us. When you consider the fact that members only join after you invite them to join and that we have an entire direct mail machine that was essentially shut down in the month of September, and that once you shut the machine down you have to work very hard to ratchet it back up, we were not asking people to join the ACLU probably till mid-October, and that in the small period of time we saw a record spike in our membership. That for me indicated there were many more individuals across this country who agreed with us rather than who agreed perhaps with the Attorney General. I’d love your other thoughts and questions.
You talked about how the judiciary’s been weakened. I wonder if you could talk about also how the judiciary’s been changed by the Bush administration’s appointment of very, very right-wing judges to all the vacant positions that are open. The other thing is that I wondered if you would talk about the role of corporate capitalism in the way that the US response to the terrorism has been conducted. You asked the question, “How did September 11th happen?” The root causes of terror haven’t really been part of the public discussion either.
No, it’s true. It’s true I mean first on the judiciary and the appointees to the judiciary. There has been a lot of movement afoot in terms of scrutinizing the Bush appointees to the federal courts. It’s essential that there is a full review and debate on these issues. The ACLU as a matter of organizational policy does not weigh in on judicial appointments except, and only in the case of, Supreme Court appointments, but there have been other organizations that have really done fantastic work which I very much applaud in terms of fighting some of the lower-level court appointments. And there it is essential because you find that for instance that many of the decisions I was just citing to you will often get determined and shaped by the lower court, and that those appointments are an essential part of the democratic process, very often shielded from input or interaction with the public. On the question of the involvement of corporate America on questions of national security, it’s curious. It surprised me enormously that you had some very strong advocates of a national ID card, which we haven’t yet spoken about but I’m sure many of you are thinking about, that you had many strong proponents of a national ID card were in fact CEO’s of major technology companies and that even though their initial offer was to provide the infrastructure for helping set up such a system…Well you know that’s exactly what Bill Gates has done often with Microsoft in terms of offering the programs and the packages to the schools and then one day you wake up and you have a virtual monopoly. It is rather surprising that in fact that some of the major purveyors of a national ID card in fact have been many of the corporate executives who sit on some of the technology companies. And for us, that one of the major concerns, about the compilation of personal information into a mega-databank that could be used to undercut core notions of privacy, of equality, of due process. And that some of these initial offers for help in the name of national security were in fact much more business-oriented than I think they were often described in the newspapers. There is also of course much more about dealing with the impact of corporations, especially in terms of policies on the developing world, and the complicity in some instances in terms of poverty and what’s happened in many countries whether it’s Pakistan or Afghanistan or elsewhere. I personally care a great deal about those issues. It’s not work I’m paid to talk about at the ACLU. Our mandate is very specifically focused on issues related to the US and the impact of the US on the broader international community, but you know I agree with you completely.
I actually just joined the ACLU in the fall.
Right, it’s $35 and it’s only $5 if you’re a student. And what we won’t tell openly is that in fact if you send any amount of money in an envelope you will become a member. And you can do this on the website > and it’s rather simple and straight forward, and then you’ll get these lovely letters from me every month telling you what’s happening with the Attorney General, with the government, so congratulations and welcome aboard.
Yeah, thank you. All right, I’ll be looking for those letters. Well, I do agree with what you’re saying, but I think when you’re asking about what the causes of September 11th were and you criticized the lack of intelligence coordination. I think a lot people also felt that to some degree it was also because the U.S. is too open of a society…that there was a general feeling that, “okay maybe we should close a few doors or tighten things up a little bit,” so I would ask you what you think is defensible, what is necessary, how you would respond to that general idea?
Well, you have to begin also with the premise, which I happen to share, that the INS is an agency that has been fundamentally broken for a number of administrations and that in fact that you need an agency that is strong enough and well-run enough to implement and to adhere to the nation’s immigration laws and that has not been often the case with the INS. We’ve seen faux pas after faux pas in terms of the letters to the terrorists that the INS sent out to them, the lack of compilation of information about terrorists who were on wanted lists and yet they were not often shared with airport security personnel, and you’d begin with the need for fundamental reform and revamping of that agency. That is something I very much believe is necessary. What has us concerned though is that even as we begin a process of reform which is long over due, that now becomes a steam-roller in terms of how some of the impacts on immigrant communities, on foreign students, on visitors, and others who’ve been here lawfully in this country, and that there’s such a zeal to reform the INS that we may throw out much more than we need to, and we may overcompensate for some of the difficulties and failings of that agency. When you look more broadly about, and I often get this question especially and I’ve been rather explicit that I don’t often or not always speak to the choir, the choir knows how I sing, how badly I sing, I’ve been insisting on speaking to audiences that are not in agreement with the ACLU and there was an audience where I spoke in Washington D.C. where I was on the panel with a criminal prosecutor of Achilles Lauro and I was on a panel with a man who worked for the Israeli intelligence agency and it was quite entertaining. I’d never had very high blood pressure until that day. And one of the questions that was put to me at the audience was, “Well Mr. Romero, what does the ACLU stand for. We hear what you oppose, but was is it that you would propose?” And actually there is quite a list of things that we’ve been proposing for a number of years that heretofore have not been implemented by law enforcement or the intelligence agencies. If you’ll go back and you’ll look at our website you’ll see a document almost seven years old which advocated the need for fortifying the cockpit door in the main cabin. You’ll see a list of efforts that would ensure that luggage be matched with passenger lists on airplanes…a remarkable fact that doesn’t happen in this country on domestic flights, and that in countries with far fewer resources for airline security, such as India, regular require their passengers to identify their luggage. I know, because I forgot to identify my luggage in an airport in Calcutta, and it stayed behind. And the fact that we did not mandate that until September 11th, and that in fact was not something that we required the airlines to do, we gave them special dispensation of many months after September 11th before they would begin that act, was remarkable to me. We will run and rush to judgment to change the immigration laws, surveillance, searches and seizures, and yet we will grant a time period, a grace period for the airlines to match luggage with passenger lists? You read in the last several days about the cargo ships and the fact that these cargo containers are not screened, that they merely go on the bona fides of a good shipper, and that these cargo ships come right into New York harbor, and when we talk about balancing safety with freedom, it seems that we must begin with those efforts that truly balance them quite well. Those are no-brainers from our democracies point of view. Those are the ones we should be rushing to implement, and we should be taking our time to review what we do with immigration, with surveillance, with privacy, those are the ones we should be engaging, and it seems we have it a bit on its head. We can go further, we’ve said for instance that we believe in the importance of being able to screen airport and airline security personnel to make sure that you have the individuals who are truly working on or around the planes to be the individuals we believe them to be. We’ve said that for awhile. Now, it seems that Congress has gone even a step further than that recommendation because they recently have enacted a rule that would require all airline security screeners to be U.S. citizens. Now this citizenship requirement, in addition to being obviously against protections of national origin discrimination, is just patently illogical. The fact that these lovely folks who sit behind these television cameras looking at your dental floss, have to be US citizens. Whereas the gentleman changing the food on the airplanes need not be, nor do the airline mechanics, nor do the people who check them in at the gate, nor do the stewardesses or the stewards, that we only impose a citizenship requirement on the airport screeners and not the rest of the airline personnel puts it all on its head. We’ve had to file a lawsuit in California challenging that citizenship requirement, not just pointing out the unconstitutionality aspects of it, but also the lack of logic that we think is in that new law. I think there are many efforts that we could all come and discuss and agree upon that we should implement right away and that we should just take our time and engage in a debate on the other ones that may have an impact on freedom and on liberty.
I don’t belong to the ACLU yet because I’ve been away for about 25 years from the United States, and I’ve come back rather astonished obviously at some of the attitudes that I see around. What you have done so commendably in dissecting and giving names and dates and actions to what has been to civil rights in America is wonderful. But one question, more and more and more you know that the defense, no matter how shrill it might be, is endless war on terrorism, terrorism forever, this and that and the rest of it. That war is a lower case war. We haven’t even declared war on anything since the Second World War, neither Korea nor Vietnam nor anything else. Is it within the purview of the ACLU or with other organization to actually challenge and to find out the definition of this war which excuses everything which you’ve talked about here.
If you give me your address, you’ll see that one of the first statements we put out was taking exception with the resolution passed by Congress on authorizing military action. We were invoking at that point the war powers act. We were told that we were the lone children crying in the woods on this one, that it’s a fait accomplit, they’ve already employed military action, but we nonetheless issued one of our very strong letters and statements to members of Congress saying that they had not complied with their very own act at requiring the delineation of an enemy, that in fact that the effort to just allow the President to just deploy military action further into the war against terrorism did not comply with the War Powers Act. That was a lesson we learned after the Vietnam War…that you need to identify the enemy and the countries, and in fact Congress needed to exercise oversight on the deployment of military action and that only in concert with Congress could the executive really carry out the deployment of military action. Although that we thought it was very essential to put on the record, not because we thought we could actually get the troops back from Afghanistan, but we thought possibly that we could begin to shoot a shot across the bow before we go into the Philippines or Indonesia or Iraq or Libya, that it might be a way to encourage to stiffen its spine and to play the role it must play in overseeing the actions of the Executive. And I thinks it’s an essential lesson as you point out and it’s a lesson we learned the hard way with Vietnam. But I’ll get that to you, I think at least you’ll have something, you’ll have good reading. It may not have had an impact on the public process but there are things you have to do on principle even if they don’t have an effect.
Somewhat to my surprise you’ve been kind of winning me over. I’d like you to help me a little further. If you could go back to describing the US Patriot Act in terms of, after the initial seven days of detention for aliens, what sort of judicial process is required, and could you also tell us from that third clip, what if any of the actual provisions in the new law were actually violated by the sorts of things that are going on, because I’m sure that that’s what happened.
Yeah, let’s go back. The USA Patriot Act is really a complicated document. We have a very good summary which gives it to you in about four or five pages if you want to go into such detail. The parts of the law that are new for instance, there is a new crime of domestic terrorism. It’s a crime that had not been codified in any way before and it’s worded so ambiguously that it could be used for instance to prosecute some of the WTO protestors or some of the, for instance, animal rights activists, that it’s so broad and so ambiguous it could be used against legitimate forms of protest, of dissent and of debate. You have with the detention of immigrants, you have now the ability for government to essentially hold someone without charge for a full seven days. And then after the seven days the government is to either file an immigration charge, such as either overstaying a tourist visa or working on a student visa or a lapsed work authorization, some form of immigration charge, or a criminal charge. And that after that charging, that the Attorney General can continue to hold that person if he can certify that he has reasonable grounds to believe, a very ambiguous standard that is not defined in any way in terms of the law, it is really meant up to his discretion. And the difficulty we have is that even though one could endeavor, as we are endeavoring, to insert judicial oversight of that reasonable grounds to believe standard, it is so poorly and so ambiguously worded that it’s virtually impossible to enforce. And that all the Attorney General need do is to continue to re-certify that person as a potential security threat and continue to hold them indefinitely. The reason this has us enormously concerned is obviously the potential for abuse when you have 1200 plus individuals who were detained for many, many months, and we did not know when they were charged, we did not know if they had access to lawyers, we did not know whether they had access to their family members. When you give governments such sweeping powers and then you veil those actions of the government from the public, or from advocacy organizations, or from the media, that then it’s almost impossible to ensure the accountability that you would want. That has been our greatest frustration in fact is the level of secrecy. So much of the government efforts after September 11th have been shrouded in a veil of secrecy, hiding government action from the review and the scrutiny an they engagement of the public, that it’s often very hard to determine what in fact has gone on. Of the various tapes that we have, some of the voices of the men I can recognize cause I’ve heard their full interviews. The man you heard say that he was not allowed to access his lawyer for over three weeks, let me tell you a little bit more about him. He was a man who was here legally in this country and has a work authorization. If I remember correctly, he was an engineer, a mechanical engineer, trained in the US, I believe of Jordanian citizenship. I know he was Palestinian refugee descent. He was on a job site one day when the FBI came out to interrogate him as part of their criminal investigation, and he was so mortified and embarrassed by being interrogated by the FBI at his job site that he just wanted to get rid of them as quickly as he could. He was of course answering their questions and the FBI in the context of their interview, they asked him a final question. They did a Columbo on him…Columbo always would ask his most penetrating question just as he’s walking away from his suspect. Just to trip them up, he would always say, “one last question,” and he would ask this penetrating question and then he would get his suspect. So they did a Columbo with this man where they asked him at the very end, “oh you are a US citizen, aren’t you?” And he said, “yes, yes, yes” because he just wanted to get rid of him. And the next day they came back and they arrested him and they held him for 22 days without any charge. He’s got two US citizen children, he’s got a permanent resident spouse, a work authorization. He was finally let out of government detention when he posted a $1500 bond with the Bureau of Immigration Appeals. Even though he had yet not been charged with anything at all, not even an immigration violation, that you are able to post a bond and secure your release. So he posted $1500 and that’s when he ended up on our doorstep and talking with our attorneys. We were in the process of preparing him as our poster boy for civil liberties and civil rights. We literally had his family in my office on a Sunday afternoon. We had put together a press release for a Monday morning press conference. We had the children there, “Daddy’s not a terrorist,” we had the wife there, we were going to put this family forward. This was a family that we thought would make the perfect case of what happened to them after September 11th. And if we knew we had one, and we knew there were 1200 plus others, then we had a hunch that there were probably many more like this family. And as we were prepping him for the press conference and what we knew would be a game of hardball with the Justice Department, we found out about this throw away question that they asked him on the first day, and all of the sudden our air tight case fell through our fingers, because when you lie to the government in the context of a criminal investigation, which is what he did by saying he was a US citizen, when in fact he wasn’t (he was lying) you were committing a felony. So all of the sudden this perfect case, with a man we thought the government could not touch, was suddenly before our very eyes deportable. And although he insisted that we take his case, I’m sure I left him with an enormous amount of frustration, cause he wanted to tell the public what happened to him. He wanted to tell the public that he was held for 21 days without any charge, without access to his family or his lawyers, and that only because of his fearfulness and his embarrassment, and the pressure he felt that first interview, that that precluded him from playing the role he wanted to play in this debate, and we felt in the end it was just too great a risk. We could not afford to divide this family, no matter how important the issue is, no matter how compelling the story, no matter how much I wanted to go public with his face and his children and his family, no matter how ready he was. It was something that we were not prepared to do. We did not want to find him on the next plane to Jordan and his children here without their father, and his wife in a crisis. And so we thought it best to handle it through very low -level channels. Now what you find in many cases with the immigrants we’ve interviewed and the others who we have not had access to, is that they really can’t afford to bite the hand that might feed them. Because in the end, many of them are asking for some form of discretionary relief from the INS. And they’re often not in a position to stand up to a government that can make their lives or their families’ lives all the more difficult. And that is often what we endeavor against. I mean, it’s the secrecy on the one end, and then often the inability of clients to be able to stand up to government because it might come back to haunt them. That’s often what we represent.
I just wondered whether you could cite any specific instances of either judicial intimidation or press intimidation? You alluded to both and I wondered if you could go a bit further with that.
One of the problems I have is that I don’t trust anybody. I mean I don’t trust the press, I don’t trust the politicians, I don’t trust anybody. One of the things that was pointed out is that Bill Meyers seems to be the only one who’s out there and who’s saying some things. Where do I go to get accurate information on anything, other than C-SPAN, which you know, I don’t have time to watch? That’s it.
I think it’s heartening that Dan Rather recently gave an interview with the BBC decrying the self-censorship of journalists in America. I wish he would do it more on US media. My question is do you think that all those decades of the FBI hounding people during McCarthy-ism and going after Vietnam protestors, and nuns and priests protesting our policies in Central America, do you think it ended up making the FBI a weaker, less efficient, less intelligent body that otherwise might have prevented September 11th?
Yeah, I only wish. Let’s start with the FBI for a second. I mean it’s really quite a remarkable institution. When I went to visit it, it was my first time there, although I’m sure it’s not the first time documents about me were there, and you go into this great building named after J. Edgar Hoover, with an enormous stature built to tower over what was not a very tall man in any sense of the word, and you go into the bunker mentality of the head of the Bureau where they’ve got an enormous oil painting to Hoover. And yet as clearly as we know, under Hoover’s tenure you had a strong FBI, and it endured to the detriment of the entire country, and that you know of the level of scrutiny and of surveillance, of tactics on politicians, on civil rights leaders, that was quite troubling, and that we only knew that many, many years after Hoover’s departure and death. And so in many respects I think that the FBI is still coming out of that legacy of having been too authoritarian and too strong an agency with too little concern for the protections and the values that we would want it to uphold. The one moment when I was able to get Robert Mueller’s blood pressure up, when I asked all my questions and he would politely stonewall me. And you know, he was playing the old boys’ game with me. He started the same day that I started. I don’t know how he knew that, but I’m sure knows much more. He went the same college I went to, and although we were quite different in terms of the work we’d done, he was trying to chum it up with me. And then at the end I told him, “Mr. Mueller you of course took an oath to be the head of the FBI?” He said, “yes.” “And you took a public oath?” He said, “yes, yes, yes.” I said, “well you need to reassure the public openly that you’re adhering to that oath, that your secrecy doesn’t give anyone much comfort, to know that in fact you’re adhering to the oath you say you took.” And I think that’s an essential part of it. It’s been so accustomed to shielding its actions from the American public when it really should be an institution that has to be much more open and transparent. I’m not that it should reveal all of its security secrets or that it must reveal information that could be detrimental to secure the safety of the nation, but it has to be much more engaging with the American people about what it’s doing, what it’s charge is, and how it’s trying to play this role. And that I think has not been the case.
In terms of the question of where do you turn to for information? I do think there are several places where you can continue to find credible sources of information. I think there are several of the advocacy groups in Washington D.C. who regularly document for you what is playing out. I will tell you among our own, you can find information on our website, Safe and Free. It’s a specific area of our website where you can go and you can literally get Congressional testimony, analyses of legislation, criticisms of some of the resolutions, but you have a number of other groups that, even if you don’t trust the ACLU, you can also go to the national security archives, you can turn to the People for The American Way, who’s been doing very good work also on the terrorism effort. And then I think that one of things that is quite remarkable is that you can actually go to some of the government websites. That’s where I often go to see what they say about the actions that they’ve taken. The two media outlets that have done the best coverage have of course been the Washington Post and the Editorial pages of the New York Times. I’ve just recently met with the Editorial Board of the New York Times, and have just read every one of their editorials since September 11th. So they’re all fresh in my mind, and it’s been remarkable. My hat’s off to the Editorial pages. The coverage and the journalists I have a little bit more of a critique for, but the Editorial pages I think have been quite strong. So that’s where I would encourage you to go. And I do encourage you to keep checking our website. It gets updated everyday…testimony, speeches, analyses, debates, and you can engage us on the Internet. If you ever have concerns about the work, you should just email us. My email address is very simple. It’s [email protected] . I’m maniacal about answering my phone calls, my letters, my email and you should be in touch if you have other questions.
In terms of the intimidation of the judiciary, all one needs to do is read some of the pleadings that the government has filed after September 11th in some of these cases. It is remarkable. In the case I was citing to you in New Jersey, it begins with the governments legal papers, it begins with this conjuring up of the possible devastation that it says that the judiciary will never fully understand the danger that confronts the country. That what the government would just instill such fear…I can get you some of these initial paragraphs on these statements that are really meant to tell the judges “back-off, you don’t even wanna touch this, this is just too important to entrust in the hands of the judiciary.” And their swagger and the self-importance that often comes through on some of these documents, and even in some of the legal arguments that the government has undertaken is really quite remarkable. You can see that they are riding this tragedy for whatever it’s worth.
On intimidation of the press, you’ll see that I have a little bit of a sarcastic tone to my speech. I don’t want to leave you on a sarcastic note. But go back to early October when you had Condoleezza Rice telling the major broadcast outlets not to run the video tapes of Osama Bin Laden because they might possess secret messages to sleeper cells living in our midst and that this would be detrimental to the national interests and that in fact, all five of the major outlets did not run the tapes, and what’s truly unbelievable, I saw those tapes on Spanish-language television broadcast from Mexico City into my apartment in Chelsea late at night. I could see those very same tapes on the Internet. There were no statements, there was no proof that she alleged that secret messages were in fact communicated to the members of the public. It was just one of those moments when again this kind of very well articulated guidance to the press was done in such a way that it basically conjured up the same fear that the government lawyers had been using in some of their pleadings with the judges. And the fact that we still have not fully unpacked that, I find as an effort of intimidation. You find for instance that some of the journalists have not had access to coverage of the war, that were not allowed on the front lines. One of my major contributors, I know this will not stand well with my fellow feminists in the room, but one of my major contributors is Larry Flint from one of the pornography magazines on the west coast. And when I was visiting with him not too long ago, it was agency, to his credit, that has actually been fighting the fact the journalists have actually been shut out of the coverage of the war on the front lines. And the only reason why he threw his lawyers on this case is because he was frustrated that the other major outlets who were not also given access to the battlefield did not make such a case. And he would be very clear about the level of intimidation and of coercion that you find in the media. So I do think that there’s much for us to be concerned with and that’s why for me it’s essential to have this dialogue with you. Even though I think that these issues are very important and I wish that they were given the coverage and the prominence that they deserve, that my frustration means that I just have to find different ways of making sure that I engage as many individuals in the public, hear from you, your thoughts and your concerns. And I do want to encourage you to remain involved. Even if you disagree with us. Especially if you disagree with us. Keep involved in this debate, keep watching it. It is much too important. We have to ensure that what we do now is essential. Cause we will see that in fact whatever we do as a country and as a nation may change the way we think about our democracy and the way we think about the world going forward. So all I do is ask you to stay involved and remain engaged. Thank you very very much.