The Courage to Be Safe and Free

Once the shock subsided, we set out to determine what new powers the government would seek in response to the 9/11 terrorist attacks. The smoke billowing from the Pentagon was visible over Washington as I met with several ACLU colleagues from around the country in a Dupont Circle hotel. We watched the tragedy unfold on television, looking out on streams of frightened pedestrians uncertain the attacks were over.

“Ten years later, as we remember and mourn those who died on Sepetember 11th, our nation still faces the challenge of remaining both safe and free.”

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We listed those new powers, realizing our government would react quickly to determine who committed these monstrous acts and to prevent future attacks. Based on our country’s reactions to previous acts of terrorism, such as the Antiterrorism Act passed in response to the Oklahoma City bombing, we worried government might sweep too broadly, targeting the innocent along with the guilty based upon their race, religion, immigration status, and political views. We knew the ACLU would serve a crucial role protecting constitutional rights and American values over the following months. None of us imagined we’d be waging that battle 10 years later, or that policy priorities moving forward then, such as immigration reform and a ban on racial profiling, would be thwarted because some lawmakers would use fear of terrorism to manipulate public policy.

The list we created barely scratched the surface. The unprecedented powers granted to the government created an insatiable security machine blurring the lines between national security, policing, and intelligence work at home and abroad. In the process, a dramatic transformation of privacy, surveillance, our concept of war, and government took place. This monstrous security apparatus uses fear to justify its ever-expanding, and largely secret, budget.

While the threat was new, racial and religious discrimination and political oppression are not. The Red Scare of the 20th century saw a wave of terrorist violence leading to thousands of warrantless raids, arrests, and the improper deportation of innocent immigrants based on national origin, speech, associations and political views. Japanese internment in the 1940’s and McCarthy-era investigations in the 1950’s all demonstrated what government is capable of when turned against its citizens. In the 1970s, abuses of intelligence and law enforcement powers saw the government routinely spying on anti-war and civil rights organizations.

Each era of civil liberties abuses was followed by courageous Americans reclaiming their rights, establishing legal precedents that protected political speech and non-violent political organizing. We passed civil rights laws ensuring equal access to voting and equal protection under the law. We even made great strides in exposing the injustice of racial profiling, proving it is as ineffective as it is illegal and immoral. Before 9/11 we were frustratingly close to obtaining a nationwide ban. Even President George W. Bush had declared, racial profiling “is wrong and we will end it in America.”

Unfortunately, after 9/11 our government opted to violate the constitutional and legal limits designed to protect the rights of the innocent. The guidance the Justice Department produced in response to President Bush’s call to ban racial profiling contained loopholes for national security and border integrity investigations. The loopholes made the rule ineffective, as tactics originally justified as necessary and temporary infringements on liberty to ensure security from foreign terrorists are now, predictably, used to address ordinary crime. Law enforcement agencies now identify behaviors as innocuous as public photography and note-taking as precursors of terrorism and crime, and have developed formal programs to collect reports of this behavior, leading to improper police stops and detentions.

Once again, the FBI and other law enforcement agencies are using race and ethnicity as primary factors in deciding whom to investigate. The FBI has a racial and ethnic mapping program directing investigations on an array of criminal activity and potential national security threats to communities identified by race, ethnicity and national origin. This is racial profiling on steroids. The FBI is not alone: the Los Angeles Police Department started a “Muslim mapping” program, but shut it down as a result of public outrage, and recent reports indicate the NYPD has teamed with the CIA, potentially in violation of its legal prohibition against domestic spying, to engage in broad surveillance targeting the Muslim community.

Americans know racial discrimination is wrong. We must summon our courage and push back on fear and the erosion of civil liberties, turning our attention again to the promise of America by ending racial profiling, reforming disastrous immigration policies, and ensuring Americans are treated equally under the law. America can be both safe and free.

On Thursday, September 15 at 4 p.m. EDT, we’ll be hosting a live chat on Facebook. We hope you’ll join us; send your questions to @ACLU with #ACLUchat and #911 hashtags, or leave them in the comments section below.

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