Testimony of ACLU President Nadine Strossen on National Security and the Constitution

Testimony of Nadine Strossen
President of the
American Civil Liberties Union 

Before Congressman John Conyers'
Forum on National Security and the Constitution   

Protecting Dr. King's Legacy:
Justice and Liberty in the Wake of September 11th  

January 24, 2002  

The American Civil Liberties Union is a non-partisan, non-profit organization consisting of nearly 300,000 members dedicated to protecting the principles of freedom and equality set forth in the Constitution and in our civil rights laws. We have been involved in responding to Congressional and Administrative actions in the wake of September 11th, some of which we find deeply troubling. Many of the policies are placebos - they are illusory "solutions" that do not make us safer but do threaten fundamental constitutional protections. We believe that it is possible to be both "Safe and Free." We can have effective law enforcement while also protecting individual rights.  

As we start a new year and celebrate the birthday of Dr. Martin Luther King, Jr., we commend you, Mr. Chairman, for holding this forum. This is an appropriate time for the Congress to ensure that in our effort to remain secure, we do not sacrifice the very foundations of our democracy.  

Dr. King's life is a testament to the power of the Constitution. Dr. King had the social insight and moral courage to challenge government and resist policies that undermined liberty, equality, and justice for all. He stood on the principles of the First Amendment to advocate equality under the Fourteenth Amendment.  

Over the past several months, the Executive Branch has initiated an expansive array of new police powers and tactics that raise significant moral and constitutional questions -- from secret tribunals and expanded wiretapping authority, to monitoring attorney-client conversations, riffling through confidential business and student records, rounding up and detaining immigrants in secret, and questioning certain young male lawful U.S. residents merely based on their national origin. It is up to the Congress to assert its oversight authority -- and responsibility -- to examine these dramatic actions.  

As you consider the actions taken in response to terrorism, consider that threats to the constitutional rights of one group endanger the constitutional rights of everyone. As Dr. King said in a speech he gave in September 1967: "I have fought too hard and long to end segregated public accommodations to segregate my own moral concerns. It is my deep conviction that justice is indivisible, that injustice anywhere is a threat to justice everywhere."  

Justice means that each and every right and liberty in our Constitution must be as strong in a time a crisis as in a time of peace. We cannot sacrifice equality or privacy or basic checks and balances without eroding justice for all. We cannot allow discrimination against one group without threatening equality for all. We cannot allow the government to silence the voice of one dissenter without weakening the core of our democracy. These principles are the bedrock of American democracy.  

Justice means equality.  

Secret Detention  

The Department of Justice has launched what appears to be an extensive program of preventive detention. The Department admits that over 1,200 people have been detained in connection with the September 11 attacks. Some have been incarcerated for long periods of time, others held for only hours. Because of the secrecy surrounding the detentions, we do not have a full picture as to how many people are still incarcerated, where they are incarcerated, whether they have access to counsel and how they are being treated. Some of the stories being reported upon are disturbing. According to a Washington Post story, two Pakistani immigrants were held for 49 days before being charged with overstaying their visas; and an Israeli national was held for 66 days before being charged with entering the country illegally.¹  

According to media accounts of the detentions, only a very small number of persons who have been arrested have any involvement with, or knowledge of, the attacks. Approximately 10 people are at what the Washington Post called the "hot center" -- believed to have close ties to the Al-Qaeda network or some knowledge of the hijackers. An additional 18 people are believed to have more distant connections to the hijackers or connections to the people in the "hot center."² The rest have been charged with unrelated technical immigration violations or minor criminal charges (usually under state law), or are being held as material witnesses under 18 U.S.C. sec. 3144.  

It appears that the vast majority of the people being detained in connection with this investigation are being detained on pretexts: they are suspected of having committed minor offenses that give law enforcement or immigration authorities the power to detain them even though they would not normally be detained for such conduct. By all accounts, the overwhelmingly majority of detainees are Muslims or Arabs, come from Middle Eastern countries, and are non-citizens. However, as was previously mentioned, we know that there have been at least a few detainees from India and Pakistan. It seems that for the most part, similarly situated non-Muslims and non-Arabs who commit the same types of violations are not being detained.  

We have the most urgent concern for the detainees who are being held on immigration charges because their access to legal counsel is limited. Although the Attorney General assures us that everyone being held has had access to counsel, many stories are coming to light that belie this assertion. For example, Dr. Al Bader Al-Hazmi, a San Antonio, Texas, Saudi national and a radiologist at the Texas Health Science Center was held incommunicado -- denied access to either his lawyer or his family -- for seven days. After nearly two weeks in detention, Dr. Al-Hazmi was finally released with no charges filed against him. Another troubling example is Tarek Mohamed Fayad, an Egyptian national and dentist residing in California. He was picked up by the FBI on September 13th and then transferred to the Brooklyn Detention Center in New York City, where we believe he remains to this day. According to the Wall Street Journal, it took his lawyer one month before she was able to locate and talk to him.³ If this is the treatment that prominent professionals are receiving, one can only imagine what is happening to people who are less fortunate.  

The public has virtually no information about the whereabouts of persons held on immigration violations. Are they being held in custody or have they been released? Where are they being held? How long have they been held? Do they have attorneys? The fact that immigration detainees can be held in so many facilities, coupled with the secrecy surrounding the detention, makes it extremely difficult to determine whether the detainees have access to counsel, are allowed contact with their families, and are being properly treated. We know that at least one detainee - 55-year-old Mohammed Rafiq Butt - died in custody.⁴ On October 23, Mr. Butt was found dead in his cell at the Hudson County jail in Kearny, New Jersey, the cause of death ruled heart failure. We know of others who have been held for weeks without any charges being lodged against them. This contradicts the Attorney General's assurances that all those who are being detained are being promptly charged within 48 hours. It also violates the recently enacted USA PATRIOT Act, which requires that, even for those individuals certified by the Attorney General as suspected terrorists, charges must be filed within 7 days or the individuals must be released.  

It is not for lack of trying that we have been unable to get adequate information about the detainees. On October 17, 2001 the ACLU wrote to the Attorney General asking him for information about the detainees. He did not respond to that letter. We posed similar questions to the Director of the FBI, Robert Meuller, at two meetings on September 25 and October 25. When those requests for information failed, we filed, along with other organizations, a request under the Freedom of Information Act on October 29. Subsequent to filing the FOIA request, on October 30, we met with Commissioner Ziglar of the Immigration and Naturalization Service who also did not provide the information.  

When our repeated attempts to obtain information failed, we filed suit in federal district court on December 5, 2001 along with other organizations including the American-Arab Anti-Discrimination Committee, the Arab American Institute, the Asian American Legal Defense and Education Fund, the Center for National Security Studies, the Council on American Islamic Relations, the Electronic Privacy Information Center, Human Rights Watch, and the Reporters Committee for Freedom of the Press.  

Since filing suit, the government's response to our legal request for basic information on individuals arrested and detained after September 11th continues to be "incomplete and inaccurate." We are now seeking further information about the contradictory information contained in documents provided on January 11, 2002. Those documents revealed beyond any doubt that earlier assurances by government officials that rights were being respected were false. For example, while officials said that they were, in general, charging those who were arrested within the constitutionally required 48-hour period, the documents show instead that many individuals were not charged for several weeks, or even as long as two months.  

We believe that a complete response to our FOIA request will prove that the vast majority of people detained after September 11 had no connection to terrorism and may also show that the government placed severe obstacles in order to thwart access to counsel. Civil rights and human rights groups who had routinely been given access to detention facilities to offer legal assistance were not permitted to do so after September 11th. Individuals who retained lawyers were denied the right to have a lawyer present during questioning.  

The documents that have been provided reveal that the government itself has determined that most of the detainees are not connected to terrorism and that the Attorney General no longer has any national security rationale for withholding information about these individuals. For instance, of the 725 detainees listed in documents, 344 are listed separately under the caption 'INACTIVE CASES,' which would seem to indicate that they have been cleared of any link to terrorism.  

Our organization continues to press for basic information about the detainees and about any rights violations that have occurred. The ACLU of New Jersey announced on January 22 the filing of a lawsuit against Hudson and Passaic Counties, seeking disclosure of the names of all Immigration and Naturalization Service detainees held in those counties' jails. The filing was made under the state's strong public records law, which requires that jails make public the names and other information on all those being held.  

Attorney General Passes Emergency Regulation to Make it Easier to Detain People  

Adding to the concern about unfair detention is a new regulation that makes it easier for the government to detain non-citizens. This regulation was issued by the Attorney General on October 26 and went into effect on October 29. Like many post-September 11 regulations, it was put into effect under the administration's "emergency rule-making authority" that exempts the Attorney General from complying with the normal notice and comment period. The new rule allows the Immigration and Naturalization Service to set aside any release order issued by an immigration judge,⁵ simply because it disagrees with the immigration judge's determination, in cases where the INS says it believes that the non-citizen poses a danger to the community or is a flight risk. Previously, the INS needed to request a stay from the Board of Immigration Appeals if it disagreed with an immigration judge's determination, except in limited circumstances where the individual had been convicted of certain crimes or accused of terrorism. Now, even for individuals who are merely accused of overstaying their visas, the hearing before the immigration judge has been rendered meaningless because the decision whether to detain or release rests exclusively with the INS.  

The Questioning of 5,000 Men based on their Country of Origin  

In addition to detaining people based on their ethnicity or country of origin, the Attorney General also is using these criteria as the primary reason for questioning people. In a November 9, 2001 directive, the Attorney General ordered the FBI and other law enforcement officials to conduct interviews of at least 5,000 men, 18 to 33 years old, who had entered the U.S. on non-immigrant visas in the past two years and come from countries where terrorist activities are known or believed to occur. The DOJ's list of the young men targeted for government questioning was compiled based on their national origin, age and gender, not on any individualized suspicion of criminal activity.  

The DOJ acknowledged that it has no basis for believing that any of the thousands of men on this list has any knowledge whatsoever that is relevant to the investigation, and it stresses that it has no basis for suspecting any of them of any involvement in any terrorist activities, or of any other criminal activity, or any violation of immigration laws.  

The ACLU recognizes the right - indeed the responsibility -- of federal law enforcement to gather relevant information in the course of its investigation into the September 11 terrorist attacks. But discriminatory, dragnet profiling is neither an effective investigative technique nor a permissible substitute for the constitutional requirement of individualized suspicion of wrongdoing.  

The DOJ guidelines went far beyond any legitimate quest for factual information. Officials were instructed to inquire into the political beliefs of the targeted young men, and to ask them to report on the political beliefs of their families and friends. The Attorney General has reported that the interviews were "successful" and conducted professionally. However, the Attorney General has not claimed that the interviews succeeded in acquiring a significant amount of information relevant to the September 11th investigation. Besides raising constitutional concerns, this investigative technique seemed to be ineffective.  

Deporting 6,000 People Based on their Country of Origin  

The most recent discriminatory tactic is the administration's decision to deport 6,000 people who are in violation of their immigration status. The ACLU does not oppose deporting people who have broken immigration laws; we do, however, object strenuously to selective prosecution, a questionable law enforcement tactic that has never been proven effective. While there are over 300,000 outstanding deportation orders, the DOJ plans to focus on some 6,000 based solely on national or ethnic origin. There is no evidence that selectively deporting people with outstanding deportation orders would have prevented the events of September 11th. None of the highjackers had outstanding deportation orders. Many of the hijackers were in the country legally; in fact, the whole point of a "sleeper cell" is to remain innocuous until the last moment before springing into violent action.  

A dragnet approach to removing individuals who overstay their visas based solely on national origin is counter-productive because Al-Qaeda is an organization that spans the globe. Focusing on men from the Middle East or North Africa won't prevent terrorism because the terrorists will simply come from a cell in a country far off the radar screen. The government should be encouraging those with information to come forward, rather than alienating individuals who might have information and discouraging them from coming forward because of the targeting and mistreatment of their communities.  

Furthermore, a recent article in the Washington Post states that Asia and Africa are believed to be the next possible source of Al-Qaeda operatives. According to government officials, Al-Qaeda, by utilizing Asian and African terrorists, hopes to elude the racial profiles developed by law enforcement agencies.⁶  

Increase in Racial Profiling  

The government's investigative tactic of focusing on a person's nationality instead of specific, individualized evidence of criminal activity, is encouraging racial or ethnic profiling on other fronts. Dozens of people whom are -- or "look like" -- Arabs, Muslims, or South Asians have experienced discrimination in our nation's airports. Many have been forced off flights, sometimes by law enforcement and other times by airline personnel, even after being cleared by law enforcement.  

Others have been subjected to very intrusive searches. Only last week, on January 16, the ACLU of Illinois filed a lawsuit on behalf of Samar Kaukab, a Muslim woman who was strip-searched at O'Hare Airport. Kaukab passed through metal detectors without setting them off, and there was no indication that she was carrying any banned materials on her person or in her carry-on bags. In 1999, the Government Accounting Office released a study that documented a pattern of racial profiling against African-American women at our nation's airports by the Customs Service. While we had hoped that the problem of racial profiling in our nation's airports was being addressed, it seems that the events of September 11th have set us back in our efforts to make positive reforms.  

Discrimination Against Airport Screeners  

The recently enacted Airline Security Bill included a provision requiring that persons working as screeners be United States citizens. On January 17, the ACLU's California affiliates, joined by Service Employees International Union (S.E.I.U), filed suit challenging the citizenship requirement. Plaintiffs include a U.S. Army veteran and a woman who has been employed as a screener for 14 years and received a commendation for detecting a loaded gun.  

The impact of this discriminatory policy is profound when one considers that non-citizens make up 80 percent of the screeners at the San Francisco Airport, more than 40 percent at Los Angeles International Airport, and a large percentage of screeners at other major airports around the country. Given that permanent residents can serve in the armed forces and be subject to the draft, this new policy seems doubly absurd. If permanent residents are trustworthy enough to defend our country, why can't they help defend our airports? This policy does nothing to further our security but does deprive many hard working people of jobs. In fact, the policy may well actually make us less safe because it would drastically decrease the number of experienced, qualified people working as screeners and would decrease the overall level of screener job experience at the same time the Department of Transportation is trying improve security at our airports  

Justice means the right to dissent free from Government Intrusion  

Relaxing the guidelines on political spying  

On December 1, 2001, the New York Times reported that Attorney General Ashcroft is considering a plan to relax restrictions on the FBI, giving them greater freedom to spy on religious and political organizations.⁷ Apparently, Mr. Ashcroft is not a student of history.  

Many of us remember the horrific revelations made during the Church Hearings in the 1970's. The FBI "monitored political demonstrations, infiltrated civil rights groups, conducted illegal break-ins and warrant-less wiretaps of anti-war groups, sent anonymous poison-pen letters intended to break up marriages of political group leaders, and targeted, among others, Dr. Martin Luther King, Jr."⁸  

With regard to Dr. King, the FBI had no bona fide investigative purpose for its activities. The campaign against him was predicated on FBI Director J. Edgar Hoover's dislike of King. In 1962, Hoover wrote on a memorandum that Dr. King was "no good."⁹ A monograph compiled and published by the FBI and distributed to various officials was described by Burke Marshall, Assistant Attorney General for the Civil Rights Division under Robert Kennedy, as "a personal diatribe. . .a personal attack without evidentiary support on the moral character and person of Dr. Martin Luther King, and was only peripherally related to anything substantive. . ."¹⁰ Dr. King's real crime in the eyes of the FBI was that he "represented a clear threat to 'the established order' of the U.S."¹¹  

The FBI's enmity toward Dr. King led it to bug his telephones and hotel rooms, obtaining highly person information that it then tried to use to break up his marriage and to encourage him to commit suicide. The FBI tried to discredit King in the eyes of the White House, Congress, the religious community, and even foreign governments - all done because Dr. King advocated social justice.  

The documented excesses of the FBI in targeting individuals or groups because of their beliefs led to Congressional hearings, and, eventually, guidelines adopted by the Attorney General.¹² These guidelines regulate FBI activity in both foreign and domestic intelligence gathering, and make it clear that constitutionally protected advocacy of unpopular ideas or political dissent alone cannot serve as the basis for an investigation.  

The primary safeguard is that the guidelines require a valid factual basis for opening an investigation, which largely precludes wholesale FBI fishing expeditions.¹³ The preamble to the Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations (hereinafter "Domestic Guidelines") notes investigations "must be performed with care to protect individual rights and to insure that investigations are confined to matters of legitimate law enforcement interest."¹⁴ A domestic terrorism investigation may only be initiated "when the facts or circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of furthering political or social goals wholly or in part through activities that involve force or violence and a violation of the criminal laws of the United States."¹⁵ One of the considerations when determining whether to open such an investigation is "the danger to privacy and free expression posed by an investigation."¹⁶  

The Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations (hereinafter "Foreign Guidelines") state that investigations of groups or organizations "should focus on activities of foreign counterintelligence or international terrorism activities, not on unrelated First Amendment activities."¹⁷ [Emphasis added.]  

The threshold for opening a formal investigation is low, requiring only a "reasonable indication" that a crime is occurring or is about to occur. This standard is substantially lower than probable cause."¹⁸ The FBI is also authorized to open a preliminary inquiry based on even a lower evidentiary threshold, when it receives any information or allegation "whose responsible handling requires some further scrutiny." ¹⁹ These preliminary inquiries are contemplated to be of short duration and more limited than a full investigation. A preliminary inquiry can turn into a full investigation upon the Bureau's receiving "reasonable indication" that a crime has been, or is about to be, committed.  

Not only is there already a low standard for FBI investigations, but it is also clear the Bureau's hands are not tied. It need not wait for a crime to occur. The Guidelines recognize that "[i]n its efforts to anticipate or prevent crime, the FBI must at times initiate investigations in advance of criminal conduct."²⁰  

The guidelines also make it clear that the FBI may investigate based on advocacy of violence. While urging respect for the First Amendment, the guidelines state: "When, however, statements advocate criminal activity or indicate an apparent intent to engage in crime, particularly crimes of violence, an investigation under these guidelines may be warranted."²¹  

We know from history what happens when the FBI is given too long a leash -- it targets individuals and groups based on their advocacy and association rather than based on legitimate law enforcement concerns. The guidelines were adopted to shorten that leash and to keep investigations properly focused. To relax the guidelines and allow greater spying on groups based on their First Amendment activity is counter-productive and a waste of resources, as well as violating fundamental constitutional rights.  

Political spying not only undermines our political freedom, chilling those who may disagree with the status quo, but it also diverts resources that could be better spent fighting real crime. Thousands of groups espouse views with which the government disagrees, but a relatively small number ever engage in criminal activity. Every FBI agent spending his or her days noting license plate numbers at a political rally or taping and transcribing political speeches is an agent not engaged in preventing or solving crime.  

Political spying is also likely to exacerbate violence rather than stop it. Justice Louis Brandeis recognized long ago that the First Amendment acts as a safety valve. If those marginalized in our society are free to express their views and engage in political activity, they are less likely to resort to violence. Political spying plays into the hands of many anti-government extremist groups, driving them underground and encouraging the fanatics among them to respond with violence.  

While the Attorney General drafts the Guidelines, Congress has the responsibility to oversee any proposed amendments and examine their effects on the constitutional right to dissent. Since the passage of the USA PATRIOT Act, Congress must be even more vigilant in overseeing the Justice Department because the USA PATRIOT Act permits law enforcement agencies to share sensitive information gathered in criminal investigations with intelligence agencies including the CIA and the NSA, and also with other federal agencies including the INS, Secret Service, and Department of Defense.  

The PATRIOT Act also permits law enforcement officers to share with the CIA intercepts of telephone conversations and Internet communications. No court order would be necessary to authorize the sharing of this sensitive information and the law does not include any meaningful restrictions on subsequent use of the recorded conversations. For example, there is nothing in the Act that prevents this information from being used to screen candidates who apply for government jobs. Moreover, the Act does not prohibit the CIA from sharing with foreign governments surveillance information gleaned from a criminal investigation, even if sharing that information could put at risk members of a person's family who live abroad.  

The PATRIOT Act also mandates disclosure to the CIA of "foreign intelligence information" obtained in connection with a criminal investigation, without defining "foreign intelligence information." These provisions represent extraordinary extensions of the previous powers of the foreign intelligence agencies, including the CIA, to obtain information about Amer