ACLU Insists on Need to be Safe and Free

February 6, 2002 12:00 am

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Statement of Anthony D. Romero,
Executive Director, American Civil Liberties Union

WASHINGTON — When I accepted the position as Executive Director of the ACLU, the nation’s premier civil liberties and civil rights organization, I knew the job would be challenging. But never did I imagine that a personal challenge would so quickly become intertwined with so serious a challenge to our nation’s liberty and security.

On September 11, only a week after I started as the ACLU’s sixth executive director, the need to protect our security became vividly clear. We all watched with horror as thousands of innocent Americans were brutally murdered before our very eyes. All of us felt the loss – and the insecurity. Staff members at the ACLU’s national headquarters – located less than ten blocks from ground zero – desperately fled the area of destruction and were chased by swelling clouds of debris. On that tragic day, the firemen, the policemen, the other rescue workers did the heavy work, some paying with their lives. The rest of us donated blood, gave money, volunteered at “ground zero,” prayed and resisted despair.

Within days of the terrorist attacks on September 11, the American people were also struggling with another question: how to protect our nation’s fundamental freedoms – our liberty — in times of crisis. Much to the chagrin of many reporters who called us in the couple of days following the terrorist attacks, the ACLU refused to engage in speculation about the loss of our liberty. We were calling on Congress to be deliberate and thoughtful as it considered new legislation. And my own organization was practicing what it preached.

Initially, we applauded the words of President Bush who, in his first address to the nation, said that America was targeted for attack because we are the brightest beacon for freedom and opportunity in the world. And no one, the President emphasized, “will keep that light from shining.”

We took those words to heart and launched a campaign that we called Safe and Free in Times of Crisis. Our campaign – which you can find on the ACLU’s website at — embodied our support for the federal government as it struggled to keep us safe from terrorism but we also made clear that we must defend the essential freedoms guaranteed by the Constitution and the Bill of Rights.

From the earliest days of this national crisis, we knew that we needed to be vigilant, to guard against any short-term tradeoffs made in the heat of the moment that would needlessly erode fundamental freedoms. The ACLU argued that we must have effective law enforcement while also protecting individual rights. For when the war against terrorism is won, we all want to be able to recognize our country as the land of the safe and the free.

Unfortunately, right now the government is blurring the line between waging war and doing justice. Over the past several months, at times with the concurrence of Congress, the Executive Branch has sought an expansive array of new police powers and employed dangerous tactics. These range from establishing military tribunals that diminish due process, to expanding wiretap authority, to monitoring attorney-client conversations, rifling through confidential business and student records, rounding up and detaining immigrants in secret, and questioning certain lawful U.S. residents merely based on their national origin. Government must take steps to protect the American people, but we must not allow the war to become an excuse for government to do whatever it likes.

In his recent testimony before Congress, Attorney General Ashcroft took another dangerous step when he equated legitimate political dissent with actions unpatriotic and un-American. He warned that criticism of the government would “give pause to our allies ? ammunition to our enemies ? and diminish our national resolve.” That was an astonishing and disheartening statement from a government official who had taken an oath to uphold the U.S. Constitution, including the First Amendment’s guarantee of free speech.

Mr. Ashcroft’s “dissenters” presumably include conservatives such as former FBI director William Webster, who along with other former FBI officials publicly contested the Attorney General’s assertion that FBI counterterrorism operations require new, expanded powers. Webster told the Washington Post that “We used good investigative techniques and lawful techniques. We did it without all the suggestions that we are going to jump all over people’s private lives, if that is what the current attorney general wants to do. I don’t think we need to go in that direction.”

Many of our opponents – and maybe some of you in this room – think the ACLU is “out of touch” or “naïve” on the subject of security. They downplay our concerns, saying that limitations imposed on civil liberties 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 not likely to come to a public, decisive end.

Homeland Security Director Ridge, for example, recently 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.

That is why we need to carefully scrutinize actions that 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, we need to ask: (a) is the restriction necessary, i.e., will it in fact increase our security; and (b) is it defensible, will the increased benefit to security outweigh the cost to constitutional guarantees of procedural fairness, free speech and privacy. In applying this two-pronged test, we must ask ourselves several key questions: Does the federal government already have the resources to fight the problem that these new powers are supposed to combat? Is the proposal narrowly tailored to limit the adverse impact on civil liberties? Is the proposal designed to battle terrorism or does it represent a fundamental change in the law that has nothing to do with protecting us from the events of September 11?

I’m enormously proud of the work of the ACLU staff, especially here in our Washington National Office. In the weeks and months after September 11, the ACLU’s Washington team worked tirelessly, producing more than 200 documents for members of Congress and the media that helped focus attention on those key questions. The ACLU Washington Office furiously lobbied members of Congress and their staffs, fielded thousands of press calls and helped concerned citizens generate 150,000 faxes and emails to their elected representatives. Our belief is that by using every possible avenue to highlight civil liberties concerns in these difficult times, we strengthen our nation and fulfill a civic responsibility to examine the actions of government. Democracy, after all, has never been known to be a quiet business.

There are two primary issues that I would like to address in the remainder of my remarks – the erosion of checks and balances, and the imposition of a veil of secrecy around government action, especially as it relates to the treatment of the detainees. In both, we believe the government’s handling of the war on terrorism fails the necessary and defensible test, and does not keep the country safe and free. I will briefly describe each one of these trends and then I’ll be happy to take your questions.

Checks and Balances

Any sixth grade social studies student is aware of the importance of the separation of powers in the United States. An elected legislature protects us against an Executive branch that is often determined to give itself increasing power. Moreover, a strong and independent judiciary breathes life into the Bill of Rights and guards against the imposition of the majority against the minority.

But in the days since September 11, these balances of authority have been upset as the Administration assumed vast powers. The USA-Patriot Act, for example, seizes from the judiciary some of its ability to review the actions of the executive. The legal standards for granting law enforcement search and seizure warrants were, in some cases, effectively reduced. Wiretapping and surveillance powers were greatly expanded and judicial scrutiny of these actions minimized.

Even those changes weren’t enough for the Administration, which has taken a number of steps to further erode the system of checks and balances. It virtually stripped, for example, the impartial arbiters of immigration cases – immigration judges – of their authority to free detained non-citizens on bond if the non-citizen was found to be neither a flight risk nor a danger. Some immigration judges are left asking: are we even relevant? And as we read earlier this week, the organization of immigration judges is in open rebellion against the government’s effort to strip them of their powers.

The Administration’s rule allowing the government to listen in on conversations between their attorneys and some of their detained clients is particularly disturbing because the right to counsel is one of most important checks and balances in our constitutional scheme. It is also unnecessary because the Department of Justice already had legal authority to record attorney-client conversations by going before a judge and obtaining a warrant based on having probable cause that the attorney was facilitating a crime. But the Administration’s actions relocated that power. Now the Attorney General himself is allowed to authorize the government to listen in without permission from the courts. He must merely satisfy himself – not a judge – that he has reasonable suspicion that a prisoner may be communicating with his lawyer to facilitate acts of terrorism. This power is permanent; it does not sunset.

Further, the President’s military order establishing tribunals to try suspected non-citizens on terrorism charges bypasses the civilian criminal justice system altogether. Unlike President Roosevelt, who had statutory Congressional authorization and a declaration of war, President Bush acted without authorization or even notification of Congress. Furthermore, the President’s order allows tribunals to take from defendants – including non-citizens lawfully in this country – the right to a jury trial, a civilian judge, and access to the attorney of their choice.

We must remember that our courts are the bulwarks of our strong democracy. They have been used effectively to prosecute dangerous terrorists in the past, including members of the Al Qaeda organization who committed the first attack against the World Trade Center. Procedures already exist in federal law to protect witnesses, jurors and classified information. But the USA-Patriot Act and the Administration’s other responses to September 11 treat the courts more as an obstacle to the free reign of executive action rather than as a necessary component of our democratic system.

Government Secrecy and the Detainees

In addition to a system of checks and balances, there is a second fundamental concern about the government’s anti-terrorism efforts – that a government of the people and by the people must be visible to the people. In other words, American democracy is a political system based on the ideas of transparency and accountability. Even during times of war, the government cannot afford to act in virtual secrecy. How can we measure the effectiveness of our government’s response to terrorism if we don’t know what it is?

We’re not arguing, of course, that the government must publicize troop movements in Afghanistan. Yet the Bush Administration has assumed a measure of secrecy and has hidden its actions from its citizens to a degree outside the appropriate zone for American governance.

Most importantly, the Administration refuses to release crucial information about the fate of the approximately 725-plus detainees currently being held in custody. Our requests — made in letters and meetings with officials of the Department of Justice and the FBI — were met with shrugs and silence. We followed up with a request under the Freedom of Information Act and with a lawsuit filed in federal court. The government has responded by engaging in a game of hide-and-seek with information that could prove that the vast majority of people detained after September 11 have no connection to terrorism and may also show that many of these individuals were denied access to counsel.

The Attorney General adamantly refuses to allay the fears of the civil libertarians, human rights groups and, indeed, the American public that our closely held values of fairness, justice and equality under law are being applied to these detainees.

By many accounts, only a dozen of the more than 1,200 people who have been arrested or detained in connection with the investigation of the September 11 attacks have any ties with Al Qaeda. The rest were held – or continue to be detained – on technical immigration violations or other wholly unrelated charges. Many are charged with minor violations such as overstaying a tourist visa or working on a student visa. And from what anyone can tell, the overwhelming majority of the detainees are Muslim or Arab men from Middle Eastern and Asian countries. This has created a palpable fear in the Arab and Muslim communities.

Just last week, the ACLU filed a lawsuit in federal court on behalf of two Detroit newspapers and Rep. John Conyers of Michigan saying that a categorical block on public access to immigration hearings is unconstitutional and un-American. Our lawsuit challenges an unprecedented order issued by the Justice Department – secretly, as we later learned – requiring immigration judges hearing these cases to close their courtrooms, regardless of whether classified information was being presented. The records of the proceedings were sealed and the Justice Department directed immigration court officials to say nothing about the cases and to neither confirm nor deny whether case was even on the docket or up for a hearing.


In sum, there is a great deal that deeply concerns us about the way the Bush Administration has handled the war on terrorism. So much in fact that we are now asking Congress to take a number of concrete steps to protect civil liberties, including:

  • Holding quarterly oversight hearings on the implementation of the USA-Patriot Act. Doing so would help highlight any government excess in the war on terrorism.
  • Establishing an independent commission of prominent academics and national leaders to monitor and analyze the impact of the USA-Patriot Act and other Bush Administration actions.
  • Calling upon Attorney General Ashcroft to give a full and complete accounting of all people held in detention since September 11 to ensure that everyone is being held on legitimate charges and has access to adequate legal counsel. Congress should also insist that anyone being held illegally should be immediately released.
  • Urging the Attorney General to rescind immediately the regulations that permit the monitoring of attorney-client conversations and those that permit the Attorney General to override the release orders of immigration judges.

As the nation confronts the serious challenges to our liberty and security, I very much appreciate the opportunity to be here today to talk with you and answer your questions. We pledge to continue to bring our concerns to the national press corps and engage you in a dialogue.

Those of us who are staunch advocates of civil liberties and civil rights believe that freedom is meaningless unless it is supported by civic responsibility. That requires us to examine the actions taken by our government in the name of national security. We are not challenging the need to be safe. Instead we are insisting on the need to be both safe and free.

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