Threats to Civil Liberties Post-September 11: Secrecy, Erosion of Privacy, Danger of Unchecked Government

December 14, 2001 12:00 am

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Statement of Gregory T. Nojeim,
Associate Director, ACLU Washington National Office


WASHINGTON — Almost immediately after September 11, speculation and conjecture about curtailing civil liberties began to appear in our national conversation. While we at the American Civil Liberties Union feel as strongly as anyone that the perpetrators of these monstrous crimes must be brought to justice, we also feel that America’s freedom – the very essence of our national character – must be protected as we respond to the threat of terrorism within our borders. Americans can be both safe and free.

Unfortunately, the government has implemented measures that go light years beyond anything conceivably necessary to combat terrorism. Most of the changes are permanent, apply to citizens as well as to non-citizens and promise to be ineffective in the fight against terrorism. Many new anti-terrorism measures fit into three broad themes: secrecy, erosion of checks and balances, and circumventing long-standing personal privacy protections by muddying the important distinction between foreign intelligence gathering and criminal investigation.

The United States is a country in a constant state of evolution – in a constant state of experimentation on how best to ensure the greatest individual freedom to each person within its borders. American history teaches important lessons – foremost of which is the idea that a government of the people and by the people must be visible to the people. In other words, American democracy is a political system based on the ideas of transparency and accountability. Our government must open itself to the public spotlight so the American people can judge the effectiveness of their elected representatives and the propriety of their actions.

Government secrecy is a concept completely at odds with this idea. The Administration should strive to be as forthcoming with the public as possible, for it is only through public examination and debate that we can choose the best course for our nation. We’re not saying that the government must, for example, publicize troop movements in Afghanistan. However, the Bush Administration has unilaterally gone far beyond this level of secrecy and has entered policy territory far outside the appropriate level of secrecy for American governance.

Most importantly, the Administration refuses to release crucial information about the 500-plus detainees currently being held in federal prisons. Even after several reasonable requests under the Freedom of Information Act and a lawsuit filed in federal court, the Attorney General still adamantly declines to allay the fears of the civil liberties, human rights and, indeed, the American public that our closely-held values of fairness, justice and equality under law are being applied to these detainees, the vast majority of whom are being held on charges unrelated to the events of 9-11.

The dedication to secrecy in the terrorism investigation has been carried even further. The recently passed anti-terrorism legislation carries a provision permitting a wide expansion in the use of ‘black bag’ or ‘sneak and peek’ searches by law enforcement. These searches do not require that law enforcement notify the person whose residence or property is being searched until much later, or not at all.

There is also a new adherence to secrecy in how government agencies collect and share information. Prior to the passage of the USA Patriot Act, several privacy statutes required that the government notify Americans when it collected private information, including credit reports, student records, financial information and other personal data. USA Patriot allows law enforcement and the intelligence community to secretly gather this information.

Moreover, Attorney General Ashcroft has adopted a new policy contrary to the presumption of openness that is the underpinning of the Freedom of Information Act. Under this new policy, agencies are told to withhold information sought under FOIA whenever there is a “sound legal basis” for doing so. Under the previous administration, the DOJ encouraged agencies to release information under FOIA unless it was reasonably foreseeable that its release would be harmful.

This new secrecy policy extends beyond the Freedom of Information Act. Government agencies have begun to remove from their websites and from easy public access information that is important for the public to know. For example, the Federal Aviation Administration recently removed from its website information about accidents involving airplanes. The Environmental Protection Agency recently removed from its website information about accidents and potential incidents involving chemicals at many worksites. The public needs this kind of information in order to protect itself, and to insist on changes where they are warranted.

The second broad theme involves a significant erosion of the basic checks and balances that are so essential to American democracy. Any sixth grade social studies student is aware of the importance of the separation of powers in the United States. We elect a powerful legislative branch to protect against the usurpation of power by the executive from the people. And, we maintain a strong and independent judiciary as a safeguard against the imposition of the will of the majority against the minority.

In a number of instances, these balances of authority have been significantly weakened with the Administration assuming far more power than it should. The anti-terrorism law steals away from the judiciary much of its ability to review the actions of the executive. Immigration judges have far less ability to prevent the unlawful detention or deportation of non-citizens. The legal standards for granting law enforcement search and seizure warrants have, in many cases, been reduced significantly. Wiretapping and surveillance powers have been greatly expanded and judicial review of these actions reduced. And, the President’s order establishing military tribunals to try suspected terrorists bypasses the criminal justice system altogether. It takes from defendants – including non-citizens present lawfully in this country – the right to a jury trial, a civilian judge, and a unanimous verdict.

In sum, USA Patriot and the Administration’s other responses to September 11 treat the courts more as an obstacle to the free reign of executive action than as a necessary component of our body politic. Courts are there to protect our rights, and to protect the public as well: fair procedures help ensure that only the guilty are convicted. If they are not, not only is an innocent person wrongly harmed, but the public is put at risk because the actual terrorist remains at large.

Lastly, our privacy and our right to dissent have been put at risk by the weakening of the traditional separation between criminal investigations and intelligence gathering. During the 1950s and 1960s, American law enforcement – most notably the FBI, although state and local police copied much of the Bureau’s abuse – operated within the borders of the United States much as the CIA or the NSA operated abroad. Ominous programs, such as COINTELPRO or Operation CHAOS, were set up to spy upon and harass dissident civil rights and anti-war groups engaging in lawful protest activity. COINTELPRO went so far as to anonymously send the results of its illicit surveillance of Dr. Martin Luther King to his wife in an attempt to provoke his suicide.

In response to the FBI’s abuses, all three branches of government worked to separate law enforcement from foreign intelligence gathering. The new War on Terrorism has erased much of this separation. In many ways, the FBI can now act like a domestic CIA when seeking a criminal conviction. It can obtain a secret warrant from a secret court to gather evidence of crime without ever having to present to the court evidence that the person upon whom it wishes to spy is involved in crime. Moreover, evidence gathered in criminal case can now be more easily shared – without a court order – for “intelligence” purposes with intelligence agencies such as the CIA even if the information is about an American citizen. This opens the door wide to further abuses similar to those that marked the COINTELPRO and CHAOS programs.

Critics of the government’s actions over the past three months have themselves been attacked as unpatriotic or un-American. Notably, however, their perspectives have also been criticized as too abstract, as too legalistic – that the reality of terror is too immediate to worry about constitutional hair-splitting. Yet, this critique is unfounded.

There are a very few things that enjoy almost unanimous agreement in this country. One of the most important is our collective dedication to the ideals of fairness, justice and individual liberty. Much of our government is structured around the pursuit of each of these ideals for every American citizen. The Administration’s actions over the past three months – its dedication to secrecy, the tearing down of barriers between intelligence gathering and domestic law enforcement and the erosion of judicial authority – are not in tune with these ideals.

And, if this country proceeds to sacrifice its values and liberty in this manner, justice will be elusive and America’s moral victory will be far from assured.

Thank you.

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