March 11th, 2005
Director of Education
ACLU of Massachusetts
Museum of Fine Arts, March 11, 2005
Just over 66 years ago -- on March 2, 1939, the Massachusetts legislature finally ratified this little piece of paper -- the US Bill of Rights. The ACLU of Massachusetts marked the date by screening the film Robert Greenwald film "Unconstitutional: the War on our Civil Liberties" in 2 dozen communities -- I strongly recommend you to organize a screening at the Museum School. The ACLU was established 85 years ago to make sure this document is not JUST a piece of paper -- but a guarantee of constitutional rights and protections for everyone.
It was a time when rights counted for little. Shortly before our founding Rose Pastor Stokes had been given 10 years in prison for writing a letter in a St. Louis newspaper: "I am for the people, but the government is for the profiteers." J. Edgar Hoover was in his very first job in the fledgling organization that became the FBI, and was eager to prove himself -- soon had a card index of 200,000 files on people perceived to be dangerously radical or somehow subversive of the status quo. When Attorney General A. Mitchell Palmer in 1919 and 1920 ordered raids on homes and meeting places and bowling alleys in cities across the country, more than 10,000 immigrants and citizens were arrested and held without any due process and as many as a thousand deported. They were targeted because of their ideas and actions including trade union organizing. The mentality of the time was exemplified by Massachusetts Secretary of State Albert Langtry who stated about political radicals: "If I had my way, I would take them out in the yard every morning and shoot them, and the next day would have a trial to see whether they were guilty."
In some respects things are better today. After all, you are unlikely to get 10 years in prison for an anti-war letter in the newspaper. But with new FBI guidelines once again permitting spying on religious and political groups, the expanded surveillance provisions of the USA PATRIOT Act and the technological advances brought by computers, our civil liberties are today uniquely imperiled. Never before has it been possible for monitoring agencies to carry out such extensive spying and so quickly to pool and share their information in files they can open with the click of a computer key, and which we can never see and challenge.
And thanks to the USA PATRIOT Act's "non disclosure" or gag orders -- which threaten prosecution if government demands for our private records are made public - the extent of government surveillance may never be known. Civil rights are equally imperiled by a government which is using ethnic and religious profiling to fight "pre-crime," -- remember the film "Minority Report"? Thousands of non citizens have been rounded up on "suspicion" of terrorist activity, not a single one of whom has been successfully tied to the crimes of 9/11. The government wants to be able to strip of their citizenship Americans who provide any kind of support for the lawful activities of a group designated as "terrorist" -- even if that group was not on a list of terrorist organizations at the time that support was given.
At the end of the 20th century, few of us would have predicted that within a handful of years, the US would become a country in which a thousand people could disappear into secret detention. Few of us would imagine that the US attorney general's office would be arguing in federal court that "nothing in the due process clause of the Constitution" prohibits reliance on statements obtained through torture to decide whether people can be held indefinitely as enemy combatants. Who would have conceived of uniformed military attorneys filing a brief to the Supreme Court denouncing the Administration as a "monarchical regime" that has created "a legal black hole" in which one person, the President, has the power to prosecute, try and execute sentences? Who could have imagined the existence of a large number of documents attesting to our military's use of torture and abuse in its detention facilities -- some 20,000 emails and other documents have been released to the ACLU through a FOIA lawsuit. Earlier this month we attempted to hold the Secretary of Defense responsible for the torture that has occurred on his watch by working with prominent military lawyers to bring a lawsuit against him in federal court. At the end of the 20th century who would have believed that there would be an Administration in power which would refuse to bar terrorist suspects from purchasing assault weapons, but would consider imprisoning in Guantanamo "a little old lady from Switzerland" if she donated to a charity not knowing some of her money was eventually used to finance the activity of terrorists? This is what deputy associate attorney general Brian Boyle told a federal court last December, adding that "Someone's intention is clearly not a factor that would disable detention.
In my remarks today I want to do three things -- first, I will say something about the big picture facing us as we try to ensure respect for constitutional rights and protections; second, I will talk about the PATRIOT Act, and finally, I bring you up to date on the organizing going on in the Commonwealth and across the country, in hopes that that you all will join these efforts.
First, the big picture.We are facing much more than the Patriot Act. Much of what the government is doing has nothing to do with that legislation, but is being done under executive orders or administrative rule changes. For instances, over a thousand alleged terrorist suspects rounded up and held for months not under Patriot Act, but a change of an immigration rule....
The losses of liberty can be distilled into four basic categories:
- An alarming resort to government secrecy, and the abandonment of the core American principle that government for the people and by the people must be transparent to the people. You may be aware of the memo that John Ashcroft wrote to federal agencies in October 2001 about not fulfilling Freedom of Information Act requests if they can find grounds to refuse to do so. In October 2004 Rep. Henry Waxman released a 90 page report "Secrecy in the Bush Administration" which details "an unprecedented assault on the principle of open government."
- A removal of the checks and balances that have been a cornerstone of our constitutional system for more than two centuries, as the executive branch and law enforcement agencies assume unprecedented new powers without meaningful judicial oversight to ensure that these powers are not being abused.
- A disdain for the American values of due process and equality under the law making our nation one in which citizens and non citizens alike can be stripped of their constitutional rights. For over a century the US Supreme Court has ruled that non-citizens were "persons" under the Fifth and Fourteenth Amendments, entitled to certain constitutional protections. But today in the US, non-citizens are being denied due process and reminded of the police states that they fled. And there are in custody citizens who have been held for 3 years as "enemy combatants" without recourse to lawyers and the courts. Thanks to a June 2004 Supreme Court ruling, one American "enemy combatant" - Yasser Hamdi -- was finally released. His lawyers maintain he never was a combatant in Afghanistan, but was handed over to American forces by bounty hunters. Rather than show the court the evidence it had to detain Hamdi, the Justice Department had him stripped of his citizenship and deported to Saudi Arabia. Federal district court Judge Henry Floyd ruled on February 28, 2005 that Jose Padilla, another American citizen held as an enemy combatant, be either charged or set free -- the government is appealing this ruling.
- Finally, there is a full frontal assault on our rights to privacy, which, if unchecked, could result in their obliteration. Specific sections of the PATRIOT Act are, as we shall see, part of the problem, with our personal records newly vulnerable to seizure and surveillance by government agencies, and with financial bodies and other private institutions either compelled by the PATRIOT Act or recruited through government contracts to keep an eye out for"suspicious activity." This must be put within context of the "Total Information Awareness" mentality. In 2003 congress refused to fund TIA -- the program of the Pentagon's Defense Advanced REsearch Progect Agency (DARPA) to compile giant databases with files on all of us that would be "mined" to reveal"patterns of terrorism indicators." But apparently Total Information Awareness has been made a covert program, a "black bag job," with Congress out of the loop. According to one source, "any bank transaction, all credit card charges, plus phone records, credit reports, travel and even health records are captured in real time by DARPA computers" which use "database profiling" to look for pattterns that break from norms. Computer programs open investigative files if they detect "keywords" that suggest "suspicious behavior." Meanwhile seven other government initiatives focus on mining personal information in the hunt for terrorists, and the building of giant databases with names like MATRIX is moving swiftly ahead in intelligence agencies and private corporations, with no accountability to the public and no respect for privacy rights. According to privacy expert Susan Morrissey, "We have a police state far beyond anything George Orwell imagined in his book 1984. The everyday lives of virtually every American are under scrutiny 24 hours a day by the government."
The USA PATRIOT Act
The USA PATRIOT Act is an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." At 3:40 AM in late October 2001 John Ashcroft substituted his version of the PA for one that had received unanimous bipartisan support in the Judiciary Committee, and forced it to a vote at 11 AM the next morning without it even being read and debated.
The massive intelligence failures and the institutional incompetence that paved the way for 9/11 have been documented in the 900 page Report of the Joint Inquiry into the Terrorist Acts of September 11, 2001 and in the 9/11 Commission report -- much of which is still classified. Instead of making these failures its main focus, the government has gone after our rights.
For the USA PATRIOT Act gives sweeping new powers of detention and surveillance to the Executive branch and law enforcement agencies, and deprives the Courts of meaningful judicial oversight. This is a key point: the checks and balances that have been the cornerstone of our constitutional system for more than two centuries are being seriously undermined. If the executive branch wanted more power, why would it not permit judicial oversight of that power?
Troubling provisions of the Act relate to the overbroad definition of domestic terrorism, to the fact that under the act non citizens can be locked up indefinitely -- possibly for life -- on mere suspicion, without a conviction or trial, and to searches and surveillance. Under the law if an intelligence li nk can be shown, secret physical searches, seizures and wiretaps can be authorized in criminal investigations without a showing of probable cause of criminal conduct, as the Fourth Amendment requires. Without a showing of probable cause, FBI agents can now tap your phones and secretly search your house and office and computer files, your mental health and financial records and share that information with many federal agencies. They can see what internet sites you visit, and intercept your email.
The volume of information that FBI can intercept under the PATRIOT Act is simply enormous -- for instance, claiming that it needs information to protect against international terrorism, it can now get the credit card records not just of a suspected foreign agent, but of everyone in the company's entire database. Section 215 permits the FBI to visit libraries, bookstores, and all businesses demand the "tangible things" records of all books that have been taken out or purchased, and copies of library hard drives if a person they suspect to relevant to a terrorism investigation (define very broadly) has been using the library. They do not need probable cause or even reasonable suspicion that an individual is involved in criminal, espionage or terrorist activity to get a warrant from a secret court. Librarians and bookstore owners can be prosecuted if they make it public that they have been visited by the FBI.
To understand what is alarming about PATRIOT Act search provisions you have to know something about the secretive FISA court. FISA -- Foreign Intelligence Surveillance Act had been passed in 1978 after damaging revelations of how the FBI was spying on hundreds of thousands of Americans. The Act set up a new secret Foreign Intelligence Surveillance Court to review government applications for the collection of "foreign intelligence" information. The idea was that this court would issue orders to wiretap and carry out electronic surveillance of suspected spies. There did not need to be a showing of probable c ause of criminal activity to get such a court order -- in this respect it was different from a warrant issued by a magistrate. Although FISA-obtained information was not entirely barred from being used in criminal trials, the intention was to restore the integrity of the Fourth Amendment ban on unreasonable searches and seizures by minimizing the extent to which information obtained without a showing probable cause could be used by criminal prosecutors.
Section 218 of the USA PATRIOT Act amended the Foreign Intelligence Surveillance Act to make it much easier to carry out surveillance. As long as some intelligence link could be shown the FBI could get a FISA order permitting them to secretly spy on people AND introduce that evidence in criminal prosecutions. Most people have never heard of the FISA Court. So imagine how startling it was when the FISA Court itself, in May 2002, forwarded to the Senate Judiciary committee a memorandum which challenged USA PATRIOT Act provisions allowing FISA evidence seized without probable cause of criminal wrongdoing to be used in criminal prosecutions.
In response the Justice Department appealed to a court which had never before met -- a three-judge FISA COURT of Review. Meeting behind closed doors, and only listening to government arguments, this brand new Court, in its first ruling ever, came down on the side of the Justice Department and upheld the section 218 of the PATRIOT Act.
The result has been an end run around the Fourth Amendment -- let me quote the words of Elliot Mincberg, legal director for People for the American Way, "What the Justice Department has really done is to get things put into the law that have been on prosecutors' wish lists for years. They've used terrorism as a guise to expand law enforcement powers in areas that are totally unrelated to terrorism." There have recently been articles about the USA PATRIOT Act being used against journalists, kidnappers, money launderers, common criminals and in an investigation of strip clubs in Las Vegas. The Justice Department's 29-page Report from the Field: The USA PATRIOT Act At Work, issued in July 2004, makes it clear that what we fear is indeed happening: the PATRIOT Act -- put forward as an anti-terrorism tool, is being widely used in common criminal cases that have nothing to do with terrorism. In the case involving PATRIOT Act subpoenas being served journalists who were investigating the hacking into the NY Times website, let me quote attorney Elaine Cassel, "We only know about these subpoenas, because a Wired News reporter reported that the FBI had contacted him, no doubt trying to get the word out before the gag order kicks in. Secret subpoenas, secret evidence, secret trials. That's patriotism today."
The PA covers alot of territory -- some of which the ACLU has no problem with, and about a tenth of which is due to sunset in Dec 2005 unless re-authorized by Congress. Much of it modifies previous laws -- you may have heard earlier about Section 817, which expands the Biological Weapons Statute -- the Joint Terrorism Task Force invoked this section when it searched Dr. Kurtz home last May. The section outlaws possession of a type or quantity of biological agents that cannot be justified for peaceful purposes. As I assume you know, Dr. Kurtz was not actually charged with a Patriot Act offense, but rather with mail and wire fraud -- unfortunately, the government all too often shows its determination to get its man at all costs. When a terrorist threat evaporates, they search for other charges.
I want to now turn to a recent victory for the ACLU and the first ruling ever to declare unconstitutional one of the surveillance powers expanded by the USA PATRIOT Act. Declaring that "democracy abhors undue secrecy," Judge Victor Marrero of the Southern District of New York struck down as a violation of the Fourth Amendment the law modified by PATRIOT Act Section 505 which gives the FBI unchecked authority to issue "National Security Letters", administrative subpoenas that FBI agents can issue to obtain sensitive customer records from Internet Service Providers and other businesses without any judicial oversight whatsoever. The court also found that the gag provision in 505 -- similar to that in 215 -- was "an unconstitutional prior restraint" on free speech.
The case is John Doe and ACLU v. John Ashcroft. It was kept from the public until the court made its ruling that "John Doe" was the President and sole employee of an Internet access and consulting business which provided space on the web where people can post their own sites and store electronic files. The company assured its clients that the security of their information was its first priority and some of its clients maintained accounts there specifically because of its commitment to security.
John Doe was served with a National Security Letter demanding records from the company, which came with a gag provision. He turned to the ACLU, and we were gagged as well so we would not be a conduit by which the NSL on Doe was made public. ACLU lawyers had to negotiate for months to be able to make the mere existence of this lawsuit public, and we couldn't say who our client was or what his business was.
Eventually, we were able to make public and post on our website John Doe's redacted (partially blacked out) declaration to the court. I'd like to read you part of it, so you see what the government feels needs to continue to be withheld from the public: "Because of the gag provision, I have not disclosed information about (black) this lawsuit to the press and the public. I believe that the government may be abusing its power by targeting people with politically unpopular views. I also think that I should have the right to challenge (black). But I am afraid to talk about the NSL power in (black) generic terms out of fear that the government could accuse me of violating the gag provision. Furthermore, even though I have taken every precaution to comply with the gag, I am afraid that I may be prosecuted and even jailed if I inadvertently violate the gag provision. I find it ironic that (Black) I freely engaged in political debate on the government's use of the Patriot Act. (Black) I know much more about the way the Patriot Act works) BLACK BLACK." And then there is a sentence that appears white on black, indicating that the court had lifted the gag order on this part of the text, permitting it to be made public: "The public should be able to monitor how the government is using these new powers so that it can police against possible abuses."
Judge Marrero's ruling in the case enjoins the government from issuing National Security Letters or "from enforcing the non-disclosure provision in this or any other case." However, the judge has stayed his ruling in order to allow the government an opportunity to raise objections to the district court or appeal to the Second Circuit Court of Appeals.
I don't want to make too much of this ruling. We have won other post 9/11 cases at the district court level only to lose them on appeal, so this victory can yet be snatched away. But it also is a sign of hope that checks and balances might yet kick in to prevent the steady erosion of our rights.
Since 9/11, the Bush Administration has set security against liberty, as if we cannot have both. And it is doing so with no evidence that its new powers make us secure from terrorism -- and plenty of evidence that our approach to fighting the domestic war on terrorism is counterproductive. The government has greatly inflated claims of PATRIOT Act success and gives no indication of how many innocent lives have harmed by the government's use of its new powers. Let me cite a few -- there is Brandon Mayfield, the attorney from Portland, Oregon who was mistakenly accused of being part of the Madrid bombing because of the FBI's botched fingerprint assessment; and graduate student Sami Omar al-Husseyn -- who was captured in a massive paramilitary style raid on the University of Idaho campus in Feb 2003. He was charged under the Patriot Act's "expert advice to terrorists" section and a year and a half later was acquitted by a jury. After the government presented evidence from 20,000 emails and 9, 000 phone calls, a juror said al-Husseyn "never spoke a word supporting terrorists" and his activities were all a matter of free speech.
A report released in early December 2003 by Syracuse University's Transactional Records Access Clearinghouse documents that in the two years following September 11, the Justice Department referred 6,400 people for investigation on terrorism charges. But two-thirds of them were never charged with anything. Half of the 879 who were charged and convicted received NO jail time. Only a handful got lengthy prison sentences. Among the cases labeled as "terrorist" were 65 involving foreign students who hired others to their English proficiency exams and 28 involving undocumented immigrants working at Austin airport. One of the cases presented by Attorney General Ashcroft as a major victory in the war against is the Detroit case involving a "sleeper operational combat cell" -- has come completely unraveled, with broad evidence of prosecutorial misconduct.
Across the nation there is a vigorous grassroots movement that is calling for the repeal of some provisions of the PATRIOT Act and an end to other government actions that violate fundamental freedoms -- 368 communities including New York City representing 60 million people -- 49 in Massachusetts (one in 7 towns).
I must emphasize that this movement cuts right across the political spectrum. The bipartisan 9/11 Commission criticized excessive government secrecy and powers that erode constitutional rights and respect for the law, and called on the executive to explain how its new power "actually materially enhances security" and to demonstrate effective oversight. It also backs a "full and informed debate" on the PATRIOT Act, rather than the rush to make it entirely permanent favored by the Bush Administration. Some sections of the press have highlighted the failure of the administation to secure chemical and nuclear plants, and the failure of the FBI to translate 500,000 hours of surveillance intercepts, consolidate its dozen watch lists, and even update its computers. Let me read a part of s Feb 20, 2005 New York Times editorial called "Our Unneccesary Insecurity". "While the Administration does too little on one hand, it overreacts on the other, and seems oblivious as to how its excesses are actually making America less safe. The abuse of prisoners at Guantanamo Bay and the refusal to abide by either international law or basis constitutional principles do little to protect the nation, but make it harder for us to enlist much needed allies and provide powerful talking points for terrorist recruiting drives . . . . There is now a wide array of government reports, private studies, and even best-selling books alerting us to remaining vulnerabilities. If the US is hit by another attack at one of those points, we will only have ourselves to blame".
Fears that the government is taking away our fundamental freedoms without making us more safe are strongly bipartisan. In Congress many Republicans agree with Rep Ron Paul, a Republican from Texas, who wrote last December that "We are not yet living in a total police state, but it is fast approaching." Over 100 House Republicans joined Democrats in July 2003 to oppose sneak and peek searches (section 213 of the PA which unfortunately does not sunset), and in July 2004 a majority in the House voted to modify Section 215 -- until the voting time was extended by 38 minutes by Republican leaders so arms could be twisted.
Let me close with the words which Bob Barr of the American Conservative Union and a former Congressman from Georgia spoke before the House Committee on Crime Terrorism and Homeland Security on May 18, 2004:
"As a student and supporter of the Constitution and its component Bill of Rights, I will not concede that meeting this government's profound responsibility for national security entails sacrificing the Rights given us by God and guaranteed in that great document. Yet, unfortunately, the road down which our nation has been traveling these past two years, with the USA PATRIOT Act, is taking us in a direction in which our liberties are being diminished in that battle against terrorism....When we voted for the bill, we did so only because we understood it to be essential to protect Americans from additional, impending terrorist attacks, not as tools to be employed in garden-variety domestic criminal investigations. With conservatives expressing these serious doubts about the reach of the USA PATRIOT Act, it is time to go back and review the law, hold oversight hearings and consider corrections....Conservative or liberal, Republican or Democrat, all Americans should stand behind the Constitution: for it is the one thing -- when all is said and done -- that will keep us a free people and a signal light of true liberty for the world."
Director of Education
ACLU of Massachusetts