CIVIL LIBERTIES AND HUMAN RIGHTS IMPLICATIONS OF GOVERNMENT'S POST-9/11 POLICIES

MEDIA: PLEASE CHECK SPEECH AGAINST DELIVERY

Anthony Romero, ACLU
National Press Club “Newsmaker” Luncheon
Washington, DC
March 9, 2004

Since 9-11, the ACLU has insisted on the need for Americans to be both “Safe and Free.” Pursuing security at the expense of freedom is a dangerous and self-defeating proposition for a democracy. This is especially true in time of war when zealous government officials often attempt to accumulate unchecked powers under the guise of national security.

The danger is most apparent in the expansive assertion of new executive powers at the expense of individual liberty. The threat is also apparent in the arbitrary, unequal and unconstitutional treatment of hundreds of immigrants detained after 9-11, and in the shameful indefinite detention of hundreds of foreigners at Guantánamo Bay.

The debate over the proper balance between liberty and security goes to the heart of who we are as a nation, where we come from, and where we are headed. Let’s never forget that we are the political descendants of practical visionaries such as Benjamin Franklin, who at the birth of the republic – when our country’s very existence was in doubt – warned against “giving up essential liberty to purchase a little temporary safety.” Those who engage in such dangerous tradeoffs, said Franklin, “deserve neither liberty nor safety.”

For the past two and a half years, our country has been struggling with the challenge of protecting us from a new kind of enemy – a loose, far-flung network of terrorist organizations whose threat will extend for the foreseeable future. Precisely because we expect the terrorist threat to be with us for a long time, we must take extra precaution to safeguard our liberties. What are we fighting for if not the values of freedom, liberty, equality and tolerance?

My purpose today is to draw attention to two significant developments whose impact has not yet been fully appreciated. The first is the growing momentum in support of liberty at home and abroad. And the second is the Supreme Court’s decision to review the actions the government is taking in the name of national security. These two developments merit serious attention because their combined outcomes will determine whether America prosecutes the war on terror while safeguarding essential liberties.

MOMENTUM BUILDING FOR LIBERTY AT HOME
Consider the momentum building for liberty here at home. Two hundred and sixty communities in thirty-eight states – as well as the entire state legislatures of Alaska, Hawaii and Vermont – have adopted resolutions in support of the “Safe and Free” message. These communities represent an extraordinarily diverse group of Americans – more than forty-five million people from small towns, such as North Pole, Alaska and Carrboro, North Carolina, all the way to large metropolitan areas like Los Angeles, Chicago, and New York City. The supporters of these efforts are conservatives, liberals, moderates and independents – people concerned about the impact of decisions and actions the government is taking with serious consequences for their personal freedom of expression, of association, and – most importantly – the freedom to be left alone in their individual pursuit of life, liberty and happiness.

We see a similar momentum building in Congress. A growing number of Members are concerned about the dangerous expansion of government powers granted under the PATRIOT Act. There is, for example, a bipartisan group of 15 Senators, dubbed the “Coalition of Conscience,” that supports “The Security and Freedom Ensured (SAFE) Act.” That proposed legislation is aimed at bringing provisions of the PATRIOT Act in line with the Constitution. Its original co-sponsors are Senators Larry Craig, Republican from Idaho, and Richard Durban, Democrat from Illinois – two men who are rarely on the same side of an issue. In this case, however, they share a concern over protecting liberty in a time of crisis.

So far the Senate has also rejected the Administration’s continued attempts to extend some of the PATRIOT Act’s most controversial powers beyond the year 2005, when they are set to expire. Unfortunately, President Bush has made the Act’s extension a cornerstone of his policy agenda over the next year.

Strange bedfellows also exist in the House where Members have voted overwhelmingly to scale back one of the most dangerous provisions in the PATRIOT Act – the one that authorizes the FBI to obtain warrants for so-called “sneak and peek” searches. These searches apply to any and all criminal offenses and are not limited to terrorist investigations. Moreover, the individuals who are the subjects of these searches are not notified until weeks or even months later. The sponsor of the legislation that would repeal this part of the PATRIOT Act is Representative “Butch” Otter, a conservative Republican from Idaho. He is joined by members of Congress across the political spectrum.

The momentum in support of liberty can also be seen in federal court decisions that have challenged the Administration’s attempt to concentrate power in the executive branch. The ACLU brought several of the cases that resulted in these decisions.

For example, the ACLU brought suit against the secret deportation hearings conducted by the government in the aftermath of 9-11. The hearings were used against hundreds of Arab and Muslim immigrants rounded up and detained as part of the 9-11 investigation. Almost all of these immigrants were ultimately deported or removed for minor immigration violations unrelated to the terrorist attacks.

In addition to the secret proceedings, the government refused to disclose even the names of the men it held or the circumstances of their arrests. The ACLU brought suit arguing that transparency and accountability are essential to the workings of democracy. While we lost one case in New Jersey, the ACLU won a precedent-setting decision in the U.S. Court of Appeals in Cincinnati. In the latter case, the court ruled against the government, declaring the secret hearings unlawful. The judge wrote that: “A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the framers of our Constitution.” “Democracy,” he wrote, “dies behind closed doors.”

Last year the ACLU filed the first constitutional challenge to the PATRIOT Act. We took issue with the controversial provision that allows the FBI to obtain personal records and other “tangible things” from entities such as libraries, Internet providers and charitable organizations. These PATRIOT Act powers have hurt Muslim and immigrant communities. Attendance at some mosques has dropped, contributions to many charities are down, and large numbers of individuals are worried that they will be targeted for government scrutiny because of their religious and ethnic background. These powers clearly violate the First, Fourth and Fifth Amendments and we eagerly anticipate the court’s ruling in this case.

The ACLU has also filed a friend-of-the-court brief in federal court challenging the government’s decision to detain U.S. citizen José Padilla in a military jail. The government’s actions are a breath-taking example of seizing excessive powers. Mr. Padilla, an American citizen, accused of being involved in a plot to detonate a low-level radioactive bomb, was arrested on American soil, held without charge, and denied the right to legal counsel.

A federal judge eventually ruled that Padilla had the constitutional right to consult with a lawyer and offer facts to rebut the government’s evidence. The government suffered a further setback when a federal appeals court ruled that Padilla’s detention exceeded the authority of the executive branch; that he must be either charged under the criminal justice system or released.

A similar situation exists with Yaser Hamdi, an American citizen who is also under indefinite detention in a military jail. Unlike Mr. Padilla, Mr. Hamdi was captured in Afghanistan and accused of fighting for the Taliban. For several months the Pentagon refused to provide Hamdi with access to legal counsel. It then reversed its position and granted access to counsel a day before the Justice Department was required to file a brief with the Supreme Court. The reversal was done to shield the government’s actions from criticism and reversal by the Court, but not as a change in policy.

Finally, in a further setback to the government, a federal appeals court ruled that terrorist suspects held in secret U.S. custody at the Guantánamo Bay Naval Base in Cuba should be allowed to see lawyers and have access to courts. The case involved a Libyan captured in Afghanistan by the U.S. military in the months after the 9/11 attacks. The judges said his continued detention “is inconsistent with fundamental tenets of American jurisprudence and raises most serious concerns under international law.” Unfortunately, a DC federal appeals court had earlier ruled that it lacked jurisdiction over the Guantánamo detentions.

These federal court decisions have laid the foundation for a blockbuster high-court showdown over the extent of presidential powers in wartime. In fact, the Supreme Court next month will hear all three cases: Padilla, Hamdi and Guantánamo. The Court’s rulings will, hopefully, lead to a more constitutionally appropriate balance between security and liberty.

THE GUANTÁNAMO DETAINEES
In the case of the Guantánamo detainees, the American people are just starting to understand what exactly is at stake. By claiming the right to detain indefinitely and without charge more than six hundred men from over forty countries, the government is setting a dangerous precedent that could be applied by other countries against American soldiers fighting abroad.

That is why former judges and diplomats, POWs, veterans, and human rights groups are all protesting the detentions in briefs filed with the Supreme Court. Here with us today to underscore this point are Michael McPhearson, a veteran of Desert Storm, and Ellen Barfield, also a veteran and Vice President of Veterans for Peace.

Bill Rogers, a former undersecretary of state, has given a particularly cogent explanation of what is at stake:

“The fundamental principle here is that no person shall be restrained without due process. There’s no doubt that the president has the authority and responsibility to detain people who are acting against our interests and trying to kill us, but that’s just the beginning of the process. The real issue is whether he can thwart judicial examination of their imprisonment.”

The lack of due process and the indefinite detention is felt most acutely by family members of the Guantánamo detainees, three of whom are present today:

• Mr. Azmat Begg, a citizen of the United Kingdom and father of Moazzam Begg
• Rabiye Kurnaz, a resident of Germany and mother of Murat Kurnaz
• Aymen Sassi, a citizen of France and brother of Nizar Sassi.

We are also honored to have with us Mr. André Gerin, Member of the French Parliament, and Mayor of Venissieux. Nizar Sassi, now detained at Guantánamo, was a resident of Venissieux and worked for the city government.

MOMENTUM FOR LIBERTY ABROAD
I have deliberately identified the nationalities of these family members and other distinguished visitors so that we understand the implications of our government’s actions on citizens of other countries. These family members come from countries that are our traditional allies – countries whose people look to the U.S. as a model for the rule of law, and for fair and equal treatment of all people.

These fathers, mothers and siblings have come to the U.S. in search of the legal process. Instead, what are they finding? – A separate and unequal system of justice for foreigners, immigrants and non-citizens, Arab and Muslim non-citizens, in particular. This is not about innocence or guilt of the Guantánamo detainees. Our concern is about the basic due process right that must be afforded to all persons, citizens and non-citizens alike. We must not create an island outside of the law where people can be held without rights.

President Bush has said that we are not going to serve the terrorists with legal papers. But we must serve them with American justice – with conduct, procedures and principles befitting the greatest democracy in the world.

In fact, the government’s current position is a dramatic departure from prior practice. Consistent with the Geneva Conventions, individuals captured by the American military have long been entitled to a review process under the military’s own regulations. During Operation Desert Storm, the U.S. Army convened one thousand, one hundred and ninety-six tribunals to determine the status of detained “enemy combatants.” As a result, three hundred and ten were granted POW status. Many other detainees who came before the tribunals were found to be displaced civilians, and were ultimately treated as refugees.

In contrast, the Defense Department is now preparing a separate and unequal justice system for some Guantánamo detainees. The proposed military commissions will allow the government to investigate jail, interrogate, try and punish the men held at Guantánamo without sufficient legal protections against false arrest, prosecution, conviction and execution. In other words, the Guantánamo detainees will not be entitled to basic due process protections accorded under the Uniform Code of Military Justice and required by international law.

The problems of the separate and unequal system of justice for foreigners are discussed in the ACLU’s white paper titled, “Conduct Unbecoming: Pitfalls in the President’s Military Commissions.”

Among the violations of the basic rules of fairness are:

• A complete lack of judicial independence, and the denial of appeal outside the military chain of command.
• The ability of prosecutors to keep evidence – even evidence of innocence – from the accused.
• The ability of military officials to change the trial rules at any time, even during a trial.
• The authority to detain defendants indefinitely, even if cleared of all charges.

The ACLU white paper is in your press kit. I urge you to read it carefully and use it to follow – and especially to question – the government’s actions concerning the system of unequal justice. I also urge you to use the white paper to question candidates for public office – especially the presidential candidates – for their positions on this critical issue.

The Defense Department, however formidable its resources, is sensitive to popular pressure. Last month, Pentagon officials agreed to review the rules for defending terrorism suspects at military commissions. Specifically, they agreed in principle that defense lawyers should be able to object in court if the government wants to eavesdrop on attorney-client strategy sessions. Why are Pentagon officials suddenly interested in judicial fairness? Because civilian defense lawyers and others had objected strongly to rules they viewed as violating fundamental attorney-client privileges and ethical guidelines.

And just last week, Defense announced a procedure for periodically reviewing the status of Guantánamo detainees not brought before military commissions. The action came in response to criticism from the ACLU and others, and in anticipation of Supreme Court review. These draft rules, however, amount to little more than a fig leaf on what is still a fundamentally lawless process.

The plans for military commissions have been in the works for more than two years. Although the government has finally brought charges against two of the Guantánamo detainees, no date has been set for the first commissions. Meanwhile, Pentagon officials admit they are still making “tweaks, adjustments and clarifications” to the rules. Therefore, discussion, debate and analysis on the subject are timely, and I urge the media to make this subject a priority.

LESSONS OF AMERICAN HISTORY
What most concerns the ACLU right now is the question, “How did we get to this point?” Why are we allowing the rights of foreigners to be sacrificed? Why are we acquiescing to a double standard of justice? Sacrificing the liberties of foreigners – who have no direct voice in the democratic process – is an expedient way of resolving the tension between liberty and security in time of war. In other words, Americans are under the illusion that we can sacrifice someone else’s rights and still maintain our own.

Unfortunately, history suggests that what we do to foreign nationals and immigrants today usually paves the way for what will be done to American citizens tomorrow. The cases of Hamdi and Padilla illustrate the point that the rights of all of us are at stake.

Think of the deprivation of rights for immigrants during and after World War I and World War II – the Palmer raids, the internment of Japanese Americans – and consider how these actions laid the foundation for the suppression of free speech and association for citizens during the McCarthy years. The internment of the Japanese-Americans is especially instructive because more than two-thirds were American citizens. In that shameful case, the transition from denying the rights of immigrants to denying the rights of citizens was immediate. The ACLU challenged the internment action before the U.S. Supreme Court. Unfortunately, we lost the case in a 6-to-3 decision.

That brings us full circle to why the families of the Guantánamo detainees have traveled so far in search of a legal process based on a single, constitutional and moral standard of justice.

CONCLUSION
Several days ago the Wall Street Journal ran an op-ed entitled, “Repeal the PATRIOT Act.” It included a marvelous quote from George Washington that “government is not reason or eloquence, it is force.” That is why we have a Constitution to restrain the government, and to give freedom the breathing room it needs so we can enjoy its blessings.

That is also why the struggle against terror has to be conducted inside – not outside – the law. The Constitution and the Bill of Rights are the real sources of our strength as a people and as a nation. We should never give up or compromise what is essentially our most important advantage, one that fundamentally distinguishes us from the enemy.

Let us take pride in the undisputed fact that even when democracies fight with one hand tied behind their back, they nonetheless have the upper hand.

Thank you.