Testimony By Laura W. Murphy, Director of the ACLU Washington Office, Before the Democratic Party Platform Committee

My name is Laura W. Murphy. I am the director of the Washington Legislative Office of the American Civil Liberties Union. The ACLU is the nation's oldest organization dedicated to defending the freedoms guaranteed in the Constitution and its Bill of Rights. Today, our membership stands at more than 400,000, an increase of more than 100,000 since the tragic attacks of September 11, 2001.

Thank you for giving the ACLU the opportunity to ask that you include strong language in the 2004 Democratic Party Platform in defense of our civil liberties. We live in an age where an understandable fear of terrorism threatens our basic freedoms to a point rarely seen in our history. The time to take a stand is now, and I urge you to take it with us.

In addition to civil liberties concerns relating to the aftermath of the tragic attacks on the Twin Towers and the Pentagon, I will also discuss a variety of other key issues for the ACLU. Arguably most important among these is the newfound mania - most acute among social conservatives - to support amendments to the Constitution and its Bill of Rights to restrict personal freedom.

All of the threats to civil liberties discussed below feature a common premise: that basic constitutional freedoms are malleable and mutable when the stakes are high. We could not disagree more. It is precisely when the stakes, especially for national security, are at their highest point that the ACLU believes we must buckle down and defend the spirit and letter of the Constitution. That is the test of a free nation. History will judge us on if we let ourselves abridge our natural rights out of fear or a sense of expediency.

Terrorism and Civil Liberties

Above all, the Democratic Party platform should affirm the belief that Americans can be both safe and free. Unfortunately, as a matter of policy since 9/11, this ideal has been largely abandoned.

The Patriot Act

Just 45 days after 9/11, Congress passed the Uniting and Strengthening America By Providing Appropriate Tools Required to Interdict and Prevent Terrorism. The USA Patriot Act has become a flashpoint in the debate over civil liberties. It serves both as a symbol of the popular concern for civil liberties in the post-9/11 era and as a flawed law in its own right.

The platform committee should support two general approaches to fixing the Patriot Act:

•  It should adopt a plank in defense of the "sunset" provisions in the law, which will force Congress to deliberate again on several of the Patriot Act's most contentious provisions before the end of 2005.
• It should affirm support for proactive legislation to narrow about a dozen of the law's provisions that went too far, too fast in the panicky days after 9/11. The best step in this approach would be passage of the Security and Freedom Ensured, or SAFE, Act currently pending in Congress.

It is crucial to note two things. First, neither of these two approaches would in any way detract from the ability of our law enforcement and intelligence personnel to prevent or punish terrorism. And, it would do absolutely nothing to rebuild the much-ballyhooed "wall" between intelligence and law enforcement. Second, a wide array of lawmakers from both sides of the aisle, including Senator Larry Craig, Republican from Idaho, and Senator John Kerry, Democrat from Massachusetts, support both the SAFE Act and the retention of the sunsets.

From a civil liberties standpoint, about a dozen provisions of the Patriot Act need reform. Not all of these are included in the SAFE Act though its passage would be a crucial first step. We believe the following sections of the act are in conflict with the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. They include: sections 206, 213, 214, 215, 216, 218, 411, 412, 505, 507, 508 and 802.

At base, all of these provisions are flawed for one or both of these reasons: overbreadth and an erosion of the checks and balances on government authority that protect Americans from mistreatment at the hands of those in power.

For instance, Section 215 permits federal agents to apply for a secret intelligence court order mandating the disclosure of any "tangible thing" that they assert is "sought for" an ongoing intelligence or terrorism investigation. Agents need not show any individual evidence that the target is engaged in wrongdoing. If they meet this ultra-low standard, the judge has no grounds to deny the application. The scope of this section - tangible things can include anything from business records to a diary - is patently overbroad, and the lack of judicial discretion to turn down applications gives power to the executive branch at the expense of the courts.

Some have argued that because the extent of Patriot Act misuse is unknown, Congress should remove the sunsets and make the law permanent. The platform committee should reject this argument for three reasons.

First, details surrounding the use of the Patriot Act are kept highly classified, making evidence of abuse hard to come by. Second, sometimes, an abuse comes to light. Over the 2003-2004 winter holiday season, the Las Vegas Review-Journal confirmed that the FBI used national security letter authority - expanded in Section 505 of the Patriot Act and last year's intelligence authorization bill - to seize the hotel and travel records of close to 300,000 visitors to the city. The FBI conducted this dragnet sweep without any intelligence suggesting an attack in Las Vegas.

Finally, evidence of abuse is fundamentally irrelevant. Congress should not wait for revelations of rampant government misconduct before narrowing a flawed law. The Framers of the Constitution did not wait for government censorship or religious persecution before ratifying the Bill of Rights. They did so to forestall future censorship or religious persecution. Reform of the Patriot Act is directly analogous.

Unconstitutional Detention and Prisoner Abuse

The platform committee should include a plank opposing any detention of Americans outside the reach of the American courts and Constitution. The Bush administration, in the name of war and national security, claims that it has the authority to detain American citizens without charge, access to counsel or trial. These "unlawful enemy combatants" are effectively devoid of all rights, even those accorded to military prisoners of war. There are rumblings in Congress of legislation to grant the president this authority. The platform should oppose any such legislation.

The Democratic Party Platform should also include a call for the appointment of an independent commission to independently investigate the treatment of non-citizen prisoners in the war in Iraq and in the various military actions conducted in the name of fighting terrorism in Afghanistan and elsewhere. There are indications, both in news reports and in leaked Bush administration legal memoranda, that the abuses depicted in the digital photographs from Abu Ghraib may have been encouraged by White House policy decisions and imposed by high-ranking Administration officials. An independent, non-partisan investigator should be appointed to discover the full extent of prisoner mistreatment, abuse and torture. In addition, a special counsel should be appointed to investigate those officials who may have authorized the abuses. John Ashcroft cannot be counted on to investigate himself. The Democratic Party Platform should call for an independent counsel.

In addition, the platform committee should note that the way in which the prisoner torture scandal broke is directly relevant to other post-9/11 civil liberties issues, most notably the Patriot Act. For months, the administration denied that prisoners in military custody were being mistreated, asking the public instead to trust it during wartime. For two-and-a-half years, the same answer has been given to people seeking information about the Patriot Act. The Abu Ghraib revelations show that we cannot blindly trust the government, especially in matters of national security, and that details surrounding the use of the Patriot Act should be opened up to public scrutiny.

Other Priorities

Although the Patriot Act and unconstitutional detention practices are the two top post-9/11 priorities for many in the civil liberties community, the platform committee should include several other planks. It should:

• Oppose implementation of the CAPPS II airline profiling system. The Computer Assisted Passenger Pre-Screening System would use secret data and secret criteria to rank the threat level of every airline passenger in America. In addition to privacy concerns over the type and integrity of the data that will be used, the system promises to discriminate against minorities and the potential false positive rate will render it highly unreliable.
•  Support revision of the "Attorney General Guidelines" governing when the FBI can launch domestic and foreign intelligence investigations. Attorney General John Ashcroft weakened the guidelines markedly even though they were put in place to prevent the FBI from repeating the type of activities that resulted in the abuse of anti-Vietnam War and civil rights activists.
• Oppose the establishment of a national identification card system. A national ID card would create a new pretext for racial profiling, amalgamate sensitive personal information into one government-run database of questionable integrity and would do little to stop terrorism. A potential terrorist would simply have to forge or acquire the documents used to prove one's identity to evade the system.

Constitutional Amendments

In recent years, Congress has seen a rash of new constitutional amendments debated in its chambers. Not only should the platform committee repudiate several specific amendments that are currently pending, it should:

• decry the tendency, most prevalent among social conservatives, to introduce constitutional amendments whenever the courts, Congress or the American people reject their policy proposals.
• affirm that the Constitution should never be amended to restrict a right and that it has never successfully been so amended.

For the 2004 party platform, the committee should specifically reject several wrong-headed proposals to change America's founding document.

The Victims' Rights Amendment

When the VRA, as it is known, was considered this year in the Senate, it met swift and sure resistance that ultimately led its sponsors to pull it from debate. Opponents included many prominent Democrats, including Senator John Kerry. They argued that the rights of crime victims can be more effectively protected under state and federal law and that a constitutional amendment would have had far-reaching implications for the rights to due process and a fair trial.

The Democratic Party included a plank in its 2000 platform in support of the VRA. That plank should be removed and replaced with a general statement of principles in support of victims' rights and the rights of all Americans to due process and a fair trial.

The "Desecration of Flag Resolution"

Before Congress recesses for the summer, the Senate is expected to debate a proposed constitutional amendment permitting laws banning flag "desecration." The platform committee should make it clear that the government's responsibility is to protect the freedoms for which the flag flies - including the protection of unpopular speech - not the protection of the cloth itself. The platform committee should affirm that it is patriotic to defend the right of those with whom one disagrees to petition the government through all non-violent means, even when some find those means deeply offensive.

The Democratic Party platform should also note that American veterans do not speak with one voice in favor of this amendment. Many, including former Senators John Glenn from Ohio and Bob Kerrey from Nebraska, as well as Secretary of State Colin Powell, have deep misgivings about the measure. Vietnam war veteran John Kerry is also opposed to the amendment.

The Federal Marriage Amendment

Recent polls have shown popular opposition to discrimination based on sexual orientation growing rapidly, especially among younger Americans. This growing tolerance is most manifest in the recent moves in many states to stop denying the right to marry to couples of the same sex. In part because of this progress, a minority of Americans, who claim they are the sole arbiters of morality, are seeking to impose their will through the Federal Marriage Amendment to the Constitution.

The platform committee should side with the forces of progress and support equal rights for all Americans, regardless of race, religion, creed, ethnicity, disability, age, sex or sexual orientation. All Americans should be treated on their own merits, ensured access to opportunity as individuals and should never be denied the equal protection of our laws.

Currently, loving and committed couples are denied the concrete benefits of marriage that other Americans take for granted. They cannot enjoy health or pension benefits. They have no inheritance or, in many states, joint adoption rights. They have no visitation rights for when their loved ones are sick in the hospital. They are taxed differently. Even their religious freedom is infringed, for instance, when they cannot oppose the autopsy of a loved one on religious grounds.

The platform committee should also note that many prominent conservatives strongly oppose the marriage amendment. Many do so out of concern for the federalist system. However, as former Congressman Bob Barr, Republican from Georgia, has himself said, the amendment would be "needlessly intrusive and punitive."

Gay and lesbian Americans fight our fires and police our streets. They build our cities and serve ably in the military. They pay taxes and worry about credit card bills. The committee must strongly assert that they should not be treated as second-class citizens, undeserving of the full and fair protections of our laws.

Civil Rights

Racial Profiling

Momentum is building once again for legislation to, once and for all, eliminate the practice of singling out Americans for law enforcement encounters based on race, religion, ethnicity or national origin. There is broad support for the End Racial Profiling Bill, which has recently been reintroduced in Congress.

The platform committee should endorse the bill and urge its adoption. The legislation would define racial profiling, make it illegal, provide victims of the practice with legal recourse and implement a system of data collection that would track profiling and provide wrongly accused police departments with a defense.

The platform should also include language asserting:

• The use of race, religion, ethnicity, national origin or any other group characteristics as a proxy for criminal suspicion violates the constitutional guarantee to equal justice under law.
•  Such profiling is counter-productive. It breeds resentment and suspicion among minority communities toward law enforcement, undercutting cooperation and a belief in the legitimacy of police authority. Experts also agree that profiling takes energy and resources away from effective law enforcement tactics, hindering crime prevention and making it more likely that criminal behavior will go unpunished.
•  National legislation is the only effective way to stop profiling. Some states have taken praiseworthy action to eliminate racial profiling, but until national standards are adopted and appropriate funding allocated, profiling will continue.

The Faith-Based Initiative

At the heart of President Bush's campaign in 2000 was the promise of so-called "charitable choice," a euphemism for exempting religious social service providers from long-standing civil rights laws.

At base, the faith-based initiative was little more than a push to have government fund religion. Currently, in most government programs, religious social service providers are welcome to compete on equal terms with secular providers for federal contracts. They must agree, however, not to discriminate in their hiring or to allow federal tax dollars to pay for religious activities. This is exactly the way it should stay. Government-funded discrimination, in any guise, is antithetical to basic American values and to the Constitution.

The Democratic Party should officially:

• Support a repeal of the universe of regulatory changes that the President has enacted to circumvent the democratic process in his push to allow taxpayer funded religious contractors to hire or fire people for religious reasons and use federal dollars to pay for religious activities.
• Reassert that federal social services should be subject to uniform standards of professionalism and quality, based on secular criteria.
• Oppose any legislation that would weaken civil rights protections in federal contracting.
• Express concern that the faith-based initiative would lead to religious favoritism against smaller or unpopular religions that the government feels are not sufficiently mainstream.
• Note that religion has often been used to justify discrimination based on race or sexual orientation.
• Express concern that the faith-based initiative would actually hinder religious liberty by subjecting religious contractors to federal audits and other review.

Conclusion

The civil liberties landscape has changed significantly since the platform committee last deliberated before a presidential election. The fear of terrorism has made us less free with policies and laws that do little to make us safer. Progress toward equal rights for all Americans has stirred up a hornet's nest of opposition. Lawmakers continue to introduce constitutional amendments that, for the first time in history, would take away rights rather than grant them.

The challenges facing freedom in these early years of the 21^st Century are vast and formidable. I sincerely hope the Democratic Party will adopt these platform recommendations as a key step in the fight to preserve liberty, life and the pursuit of happiness for all Americans.

Thank you for the opportunity to present our views to you. We look forward to working with you.