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ACLU Written Statement of Nadine Strossen, President, and Timothy Edgar, Legislative Counsel, before the United States Commission on Civil Rights at a Hearing on "Security and Liberty"

Document Date: March 19, 2004

ACLU Written Statement of Nadine Strossen, President, and Timothy Edgar, Legislative Counsel, before the United States Commission on Civil Rights at a Hearing on "Security and Liberty"

Dr. Berry, Justice Reynoso and Members of the Commission:*

On behalf of the American Civil Liberties Union and its over 400,000 members, dedicated to defending the principles enshrined in the Constitution and civil rights laws, with their promise of due process under law for all persons, we welcome this opportunity to appear at this hearing on the impact of federal anti-terrorism efforts on civil liberties since September 11, 2001.

We commend the Commission for coming together to examine how our nation's efforts to preserve freedom can be enhanced without sacrificing the very liberties we are trying to protect. This country needs exactly this public discussion, and the ACLU is privileged to urge the government to see its responsibility as preserving our rights and our system of checks and balances while it ensures our safety.

America faces a crucial test. That test is whether we - the political descendants of Jefferson and Madison, and citizens of the world's oldest democracy - have the confidence, ingenuity and commitment to secure our safety without sacrificing our liberty.

For here we are at the beginning of the 21st century, in a battle with global terror. Terrorism is a new and different enemy. As a nation, we learned this on September 11, 2001, when a group of terrorists attacked us here at home, and within the space of minutes murdered nearly 3,000 of our fellow Americans and citizens of other nations, innocent civilians going about their everyday lives.

ACLU lawyers and activists can never forget that day. Our national offices in New York and near the Capitol in Washington were evacuated. We pledged on that day to support President Bush in the battle against terror, while standing strong against any efforts to use the attacks to abridge civil liberties or our system of checks and balances.

We must be ready to defend liberty, for liberty cannot defend itself. We as a nation have no trouble understanding the necessity of a military defense. But there is another equally powerful defense that is required, and that is the defense of our Constitution - the defense of our most cherished freedoms.

Put aside our popular culture which changes by the day, and our material success which is now vulnerable to the vicissitudes of the global economy - strip away all that is truly superficial. What is left that distinguishes us if not our constitutional values? These values -freedom, liberty, equality and tolerance - are the very source of our strength as a nation and the bulwark of our democracy. They are what have permitted us to grow abundantly, and to absorb wave after wave of immigrants to our shores, reaping the benefits of their industrious energy.

Now, we are in danger of allowing ourselves to be governed by our fears, rather than our values. How else can we explain the actions of our government over the last two years to invade the privacy of our personal lives and to curtail immigrants' rights, all in the name of increasing our security?

One particularly troubling - and ineffective - government policy which has been advanced in the name of security is the practice of racial profiling. Racial profiling occurs when law enforcement relies on race, ethnicity, national origin, or religion in selecting which individuals to subject to law enforcement investigations. This practice not only violates our nation's basic constitutional commitment to equality before the law, but it also violates international principles aimed at eliminating racism.

Every year, thousands of minorities experience the humiliation of being stopped while driving, flying, or even walking simply because of their race, ethnicity or religion. These individuals are not stopped because they have committed a crime, but because of an erroneous assumption that they have committed a crime, simply because of their appearance. The practice fuels and confirms the belief in minority communities that the criminal justice system and national security policies are unfair, which undermines the trust between the police and the communities they serve.

Racial profiling is opposed by many law enforcement officials, who fear it will not only lead to the targeting of innocent people, but will also prompt security officers to overlook suspicious behavior by those who are not members of a targeted ethnic group. Despite the efforts of some state, local, and federal law enforcement agencies to address racial profiling within their departments, the practice persists and has become more pervasive over the last few years, particularly for the Arab American community.[1]

In June 2003, the Department of Justice issued racial profiling guidelines to address racial profiling, but the guidelines are weak and are insufficient to eliminate racial profiling practices in this country. The guidelines do not apply on the state and local level, where the vast majority of profiling occurs. They require no data collection, which is essential to identifying and stopping profiling, and they lack an enforcement mechanism to end the practice. Unless the government makes racial profiling illegal, it will undoubtedly continue. Federal legislation is key to ending racial profiling in this country. Congress and the American people must step in - now - to preserve the freedoms that have been steadily eroding before and after September 11, 2001.

PATRIOTISM AND GRASSROOTS DISSENT

Since September 11, 2001, the ACLU has been privileged to be an important part of a remarkable grassroots movement to defend the Bill of Rights. As of March 5, 2004, resolutions to restore civil liberties, in response to the government's post 9/11 overreaching have been passed in 260 communities in 38 states, including three state-wide resolutions.

The resolutions have passed in towns from Maine to Alaska, from New York to Texas. They have attracted support in liberal strongholds, like Berkeley, California, and in small towns in Utah, Idaho, and Alaska - three of the most conservative states in the Union. The resolutions are the most visible symbol of a growing movement that is perhaps most notable for uniting allies across the political spectrum - from the ACLU and its liberal allies like People for the American Way and MoveOn.org, to some of the nation's most important member-based conservative organizations: the Free Congress Foundation, Americans for Tax Reform, and Gun Owners of America. Our campaign has included closely working with former Congressman Bob Barr (R-GA), a Board Member of the National Rifle Association.

The resolutions take issue with portions of the USA PATRIOT Act[2] and many other government actions, including Executive Orders and regulations undermining the right to counsel, the right to a jury trial, and the rights of immigrants. Hundreds of thousands of Americans have written their elected representatives to express their views about these issues, and to urge Congress to take corrective actions.

Some have accused these engaged citizens, who are acting in the best tradition of Thomas Jefferson, of being naïve, misinformed, even ignorant. On the contrary, while the arcane details of these issues can flummox the finest legal minds, the supporters of this movement are usually remarkably well informed.

Many have read the PATRIOT Act closely and have studied what its defenders have to say. They have also followed the debate around other government powers, including attorney-client monitoring, immigrant registration and detention, and FBI guidelines governing investigations of religious and political groups.

There is no doubt that both PATRIOT Act detractors and defenders alike have sometimes had difficulty wading through the arcane details of the Foreign Intelligence Surveillance Act and other complex federal laws amended by the Act. It does not help matters when spokespersons for the Department of Justice (DOJ) make misleading and inaccurate statements about the PATRIOT Act - such as that ""U.S. citizens cannot be investigated under this act""[3] or that ""the standard of proof before the [Foreign Intelligence Surveillance Court] is the same as it's always been.""[4]

Ordinary Americans are profoundly troubled by the government's policies. They do not believe America's system of checks and balances, including meaningful judicial review of surveillance and detention, represent ""unreasonable obstacles"" to law enforcement, as President Bush and Attorney General Ashcroft have argued.

Rather, they see judicial review, and meaningful standards for government surveillance and detention, as essential bulwarks against abuse. They view judges as partners - not obstacles - in the war on terrorism.

The online satirical publication, the ""Onion,"" recently had this headline: ""Revised Patriot Act Will Make It Illegal to Read Patriot Act."" The serious point is that the more Americans learn about the government's actions since September 11, the more they say the government went too far, too fast. Thankfully, we do live in a country where people can go to the source, read the law and make up their own minds.

LISTEN TO THE PEOPLE

Many members of Congress and other leaders, from right to left and in between, have heeded the calls of ordinary Americans to look at the PATRIOT Act and other post-9/11 government actions, have evaluated arguments for and against, and have decided to bring some of these powers back in line with constitutional freedoms. Congressmen Butch Otter (R-ID) and Bernie Sanders (I-VT), and Senators Larry Craig (R-ID), Richard Durbin (D-IL) and Russ Feingold (D-WI) have joined forces to revise the PATRIOT Act.

Americans are concerned because the PATRIOT Act put in place statutory authority for the government to get a court order to come into your home without your knowledge and even take property without notifying you until weeks or months later.[5] Americans are concerned because the PATRIOT Act allows the government to obtain many detailed, personal records - including library and bookstore records, financial and medical records, and Internet communications - without probable cause and without meaningful judicial review. For those records that may be obtained using ""national security letters,"" there is no judicial review at all. Americans are concerned because the PATRIOT Act - as well as changes to immigration regulations since 9/11 and the President's claimed authority to detain ""enemy combatants"" - all sanction indefinite detention without criminal charge and without meaningful judicial review.

Some have dismissed these concerns, saying the government has not used some of these anti-terrorism powers, or has used them appropriately. In fact, there has already been evidence of widespread and systematic civil liberties abuses of non-PATRIOT powers of detention, both of citizens and non-citizens. There is anecdotal evidence of excessive government surveillance and other overreaching under the PATRIOT Act. Unfortunately, the Administration's excessive secrecy prevents the American people from getting an adequate picture of its use of PATRIOT Act surveillance powers.

What the ACLU can say for certain is that these and other powers make abuses far more likely because they remove the checks and balances that prevent abuse. Throughout our history, excessive power has inevitably been used excessively.

Some have dismissed concern about an expanded PATRIOT Act - dubbed PATRIOT II - as misinformed, saying that the draft legislation that provoked a firestorm last year was never introduced. In fact, many provisions of this draft legislation have been introduced separately, including bills to sweep aside the last vestiges of prior judicial review from FBI records demands (H.R. 3037), to require automatic pretrial detention for certain crimes (H.R. 3040 and S. 1606), and to expand the death penalty to include any crime that fits the PATRIOT Act's overbroad definition of terrorism (H.R. 2934 and S. 1604).

A major expansion of the FBI's powers to obtain records without any judicial review was attached to last year's Intelligence Authorization Act and signed into law. In short, Americans are indeed right to be concerned about an expanded PATRIOT Act. One part of the PATRIOT II proposal - expanding access to records without judicial review - became law last year.

Some have dismissed concerns about immigrants' rights, including the selective fingerprinting and registration of visitors from the Arab and Muslim world under the National Security Entry-Exit Registration System (NSEERS), also known as ""special registration."" This program is seriously damaging the image of the United States abroad and, as a result, hindering international cooperation against terrorism.

The ACLU has discovered that immigration authorities gave many who registered confusing and woefully inadequate notice of their obligations - including the requirement that they register their departure. Those who were given inadequate or no notice are at risk of falling afoul of their status through no fault of their own. While the ACLU welcomes the Department of Homeland Security's recent decision to drop the 30-day and annual re-registration requirements for most visitors, reports of the demise of NSEERS are inaccurate and misleading, as most aspects of this program remain in place.

AMERICAN FREEDOMS LOST AFTER SEPTEMBER 11

The specific freedoms that have been abridged - by the PATRIOT Act and by other government actions - often involve technical and complex changes to surveillance laws, detention regulations, and government guidelines. However, they share common themes. The government's new surveillance and detention powers have undermined important checks and balances, diminished personal privacy, increased government secrecy, and exacerbated inequality.

Checks and Balances. At bottom, the issue with respect to all these powers - PATRIOT Act and non-PATRIOT Act alike - is the removal of basic checks and balances on government power. The genius of our founding fathers was to design a system in which no one branch of government possessed all power, but instead the powers were divided among legislative, executive and judicial branches.

The government's actions since September 11 have undermined this essential system. Prior to September 11, the government had ample power to investigate, detain, convict and punish terrorists, with meaningful judicial review. The changes have made that review less meaningful.

The arguments in favor of these excessive new powers, which erode and evade judicial review, reflect many myths. It is a myth that prior to September 11, the government could wiretap organized crime suspects but not terrorist suspects. In fact, the government has always had far greater powers to wiretap foreign terrorist suspects, because it could use either its criminal or its intelligence powers to do so. The PATRIOT Act simply enlarged further the already loose standards for both kinds of wiretapping.

It is a myth that prior to September 11, the government was prevented by the Foreign Intelligence Surveillance Act from sharing with criminal prosecutors information acquired in intelligence investigations. In fact, it could do so, under procedures designed to ensure that the intelligence powers were not being abused as a prosecutorial end-run around the Fourth Amendment. The PATRIOT Act did not authorize such information sharing - it was already legal. Rather, the Act reduced the judicial oversight designed to prevent abuses of information sharing.

It is a myth that the government lacked adequate power to detain terrorist suspects. In fact, the government could, and did, detain many terrorist suspects prior to September 11 using both immigration and criminal powers. Indeed, President Bush joined the ACLU in criticizing the use of secret evidence against some Arab and Muslim immigration detainees under the Clinton Administration. The PATRIOT Act, and government changes to detention regulations, did not newly authorize detention of terrorism suspects. Rather, they made immigration hearings and judicial review of those detentions far less meaningful.

It is a myth that the government could not effectively prosecute foreign terrorists without revealing classified information. The Classified Information Procedures Act has long been on the books to protect the government's secrets while ensuring a fair trial, and prosecutors of prior Al Qaeda plots have said the Act worked well to protect both the rights of the accused and the national security interests of the government. The President's military tribunals order was not needed to safeguard classified information. Rather, its effect was to substitute a commission subject to Defense Department control for an independent judge in conducting terrorism trials.

It is a myth that the government could not listen to the conversations of attorneys who betrayed their profession by abusing the attorney-client relationship to further their client's ongoing criminal acts. The government could always obtain a court order, based on probable cause, to listen in to such conversations because they lacked the protection of the attorney-client privilege. The monitoring regulation was drafted to evade that requirement of judicial oversight.

Understanding how these actions undermine checks and balances illustrates the sophistry of one of the government's main defenses of its post 9/11 actions. Government officials point out that courts have not struck down many of their actions - but their actions are a threat to liberty precisely because they are calculated to undermine the role of the courts, diminishing their oversight of government action.

The defense that courts have not struck down these court-stripping measures reminds one of the old cliche of the man who murdered his parents and pleaded for mercy on the grounds he was an orphan.

Personal Privacy. The right of privacy, Justice Brandeis said, is that most simple and most important of freedoms - the right to be left alone. The PATRIOT Act and other legislation, coupled with new investigative guidelines, have eroded this right alarmingly. This statement will address just two of the many privacy invading post 9/11 measures: new powers to seize records under sections 215 and 505 of the PATRIOT Act, and ""sneak and peek"" searches under section 213 of the Act.

Under section 215 of the PATRIOT Act, the government may now obtain any and all records, no matter how sensitive or personal, with a ""business records"" order from the Foreign Intelligence Surveillance Court, which sits in secret and has denied or modified a grand total of six out of more than 15,000 surveillance orders sought in a quarter century. Under section 505 of the PATRIOT Act, the FBI now has broader power to use what are called ""national security letters"" to obtain some records - including records of financial institutions, credit reports, and billing records of telephone and Internet service providers - on its own authority, without any court order at all.

National security letters and records demands under section 215 are not made in the course of ordinary criminal investigations, which involve grand jury subpoenas, search warrants, and other longstanding government powers; rather, they are intelligence powers that do not require any criminal wrongdoing on the part of those being investigated.

Before the PATRIOT Act, the government was required to show ""specific and articulable facts"" that the records it sought in intelligence investigations (whether through a ""business records"" order or a national security letter) pertained to a spy, terrorist, or other agent of a foreign power. As a result of sections 215 and 505, that is no longer the case; now anyone's records may be obtained, regardless of whether he or she is a suspected foreign agent, as long as the government says the records are sought for an intelligence or terrorism investigation. The effect is to put the privacy of many more Americans at risk. The record holder must comply with these records demands, and is prohibited from informing anyone - including the person whose records were obtained, the press, or an advocacy group like the ACLU - that they have turned over these records.

Section 213 of the PATRIOT Act substantially lowered the standard for government agents to come into your house, look around, and even take property. Warrants authorizing these ""sneak and peek"" searches no longer require, as they did in some circuits, that notice be given within seven days after the secret search; instead, an indefinite ""reasonable time"" is the new standard. Nor does Section 213 require the government to show specific harms from notice, instead also permitting the government to get a delay under a catch-all provision that applies whenever harm to the prosecution may result.

The government has acknowledged using these Section 213 warrants to invade dozens of homes and businesses without providing notice for as long as three months. The government has sought to delay notice in such cases over 200 times.

While sold as a terrorism power, this provision has little to do with terrorism. In answering questions from Congress on how this provision was being used, the Justice Department cited ordinary criminal cases - from drugs to crime - in its attempt to justify these searches.

Government Secrecy. The American tradition of open government has suffered a severe blow as a result of the government's post-9/11 actions.

The Justice Department's guidance to federal agencies on implementation of the Freedom of Information Act (FOIA) prior to September 11 included a basic affirmation of the policy of open government the Act embodies, urging agencies to comply with FOIA requests absent a good reason. Shortly after September 11, the Attorney General issued a memorandum to all federal agencies reversing that presumption of openness and pledging the Justice Department's support for denial of FOIA requests.

Reform policies governing classification and declassification of government secrets have suffered a similar blow. On March 25, 2003, President Bush issued Executive Order 12958, which continued classification of many historical documents and reverses a presumption against excessive classification for new documents in President Clinton's prior Executive Order. The new Order flies in the face of findings of the Senate and House intelligence committees that excessive classification may have contributed to the intelligence breakdowns that in turn contributed to the September 11 attacks. Former Chairman of the Senate Select Committee on Intelligence, Senator Bob Graham (D-FL), criticized the move, saying ""this administration is being excessively cautious in keeping information from the American people.""

Perhaps the most dramatic example of unwarranted secrecy has been the government's secret arrest and deportation of hundreds of Muslim and Arab immigrants after September 11. The Justice Department refused to identify the detainees, arguing that to do so might jeopardize national security and tip its hand to terrorists. The secrecy was alarming and, after our repeated requests for basic information about the detainees were denied, the ACLU filed a federal lawsuit seeking names under the Freedom of Information Act.

Then, in a further effort to deny information to the public and press, the Justice Department closed all immigration hearings involving the September 11 detainees. Twice more, the ACLU went to court, with lawsuits arguing that transparency and accountability are essential to the workings of democracy. In an eloquent decision, a three-judge panel of the United States Court of Appeals in Cincinnati unanimously ruled in our favor in one of these cases, declaring that secret deportation hearings were unlawful. ""A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the framers of our Constitution,"" Judge Damon Keith wrote. He further noted that ""democracy dies behind closed doors.""

That was a clear victory for civil liberties and stands today, as the government chose not to seek Supreme Court review in that case. However, in the second lawsuit, the federal appeals court in Philadelphia sided with the government's position in a 2-1 ruling. The Supreme Court has declined to hear that case.

The ACLU's actions, however, have not been limited to the legal arena. Concerned that the secret hearings were a cover for civil liberties abuses, we initiated an ambitious effort to identify the people affected. We sent letters to the U.S.-based consulates and embassies of ten countries from which we believed the secret prisoners had originally come to the U.S., offering legal assistance to these people who had been caught up in the government's crackdown on terrorism - - apparently based only on religion and national origin - - yet were never charged with any terrorism-related crime.

Then in the spring of 2002, the ACLU extended its investigations abroad. Working with the Human Rights Commission of Pakistan (HRCP), we located 21 former secret post-9/11 detainees who had been forcibly removed to Pakistan, or who had left the U.S. voluntarily to avoid indefinite detentions. The interviews were heartbreaking. Before their detentions, these people were indistinguishable from previous generations of immigrants who had come to our shores. They had been salesmen, housewives, and cab drivers with children and homes in America, grateful to be in a country where they could achieve a better life and live in freedom.

Their detention put an end to all that. They described the anxiety-ridden days, which turned into weeks, and then into months - culminating in deportation. Few had been charged with crimes, and many had been deprived of access to counsel. In some cases, the U.S. government ignored the citizenship rights of spouses or even children born in this country. Back in Pakistan, these American children, unable to speak the local language, were miserable and failing at school. The plight of these families was featured on CNN, National Public Radio and on the front page of the New York Times.

The ACLU's concerns about the treatment of September 11 detainees were vindicated by a highly critical report released last year by the Office of the Inspector General of the Department of Justice, finding that detainees were effectively denied access to counsel and languished in jail for months without legal justification. Excessive secrecy clearly contributed to these abuses of the rights of hundreds of Arab and Muslim immigrants and visitors. More sunlight could have prevented many such abuses from taking place.

Increasing Inequality. ""Equal Justice Under Law"" is the motto inscribed above the Supreme Court building, but the legal system's treatment of the Arab and Muslim community in this country since September 11 has been separate, unequal and wrong.

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