Upsetting Checks and Balances: Congressional Hostility to Courts in Times of Crisis, Statement of Anthony D. Romero

November 1, 2001 12:00 am


Media Contact
125 Broad Street
18th Floor
New York, NY 10004
United States

FOR IMMEDIATE RELEASE

Earlier this week, there was a similar press briefing across town called by Attorney General Ashcroft and FBI Director Mueller. At that press conference, they warned the American public of other terrorist attacks that might be forthcoming. While it was not clear what Mr. Ashcroft and Mr. Mueller wanted the public to do, they told Americans to remain vigilant.

Today, we would like to issue a similar warning, but one that demands action from the American people.

Our warning is that our basic liberties and the checks and balances of our constitutional system are at stake, along with our security.

The action that we are asking of the American people is to tell their representatives in Washington that judges charged with safeguarding our constitutional rights should not be seen as obstacles to our safety.

The terrorists who attacked our nation on September 11 took insidious advantage of our way of life, living in our communities and enjoying our freedoms.

Many Americans have asked themselves, does that mean that those freedoms are somehow at fault? Or that respecting the rights of others is wrong? Or that the courts are to blame for the death and destruction that happened on September 11? The answer to the three questions is a simple and emphatic “No.”

After weeks of negotiation, the USA-Patriot Act was signed into law last Friday. The legislation gives government expanded power to invade our privacy, imprison people without meaningful due process and punish dissent. There are many provisions in the law that simply do not meet the basic test of maximizing our security and preserving our civil liberties.

Anti-terrorism laws enacted last week, as well as in 1996, reflect growing hostility to the role of judges in our constitutional system.

A common theme that runs through the legislation is that law enforcement lacks sufficient powers to fight terrorism, and that the courts are an impediment to protecting the lives of American citizens.

Unfortunately, the debate in Congress over changes in law enforcement powers has drawn attention away from more salient questions – questions that should have preceded the rush to advance new laws. Namely, how did September 11th evade our intelligence services? What powers do law enforcement agencies now have? And, how can these existing powers be used more effectively to combat terrorism?

Had Congress asked and answered these questions, they might have arrived at different conclusions than the ones they rushed to implement in the USA-Patriot Act

The U.S. is facing a serious threat to its security. However, that threat is directed as well to our democratic values, our freedoms, our diversity, our equality.

We must demand that government take action, but we must also require that it stand by our democratic principles. I say this because American history teaches us that we have tended to move in the wrong direction in times of national emergency.

In fact, our history teaches us two valuable lessons about the importance of the courts during periods of national crisis:

First, we know that conscription of opinion often goes hand in hand with conscription of soldiers. During World War I and World War II, soldiers were not the only ones conscripted; public opinion and the First Amendment were also conscripted as the government attempted to squelch free expression and dissent.

Sadly, we are finding similar efforts to conscript the First Amendment in service of the “War Against Terrorism.” ACLU offices across the country have begun receiving complaints of books, magazines, and other materials that are being pulled from bookstores and libraries because they are viewed as contrary to or critical of the National interest. In colleges and universities, we are receiving complaints of efforts to limit academic freedom and quell dissent and debate.

And on October 11, we saw troubling efforts to conscript public opinion when the White House requested that broadcast media outlets edit or decline to show any video tapes of Osama bin Laden. No evidence of secret messages or coding was provided in the White House request, and in any case, the tapes were broadcast worldwide and were available on-line. Yet, the White House endeavored to conscript public opinion and information in the name of the “War Against Terrorism.”

The free exchange of ideas, open debate and peaceful dissent are even more important during periods of national crisis. And the courts are the stewards of our open society.

Second, crises tend to encourage gross violations of due process. Following World War I, strikes in our nation’s cities terrified milions of Americans, who saw law and order collapsing. In June of 1918, the country was shaken by a series of politically motivated bombings, including an explosion at the home of Attorney General A. Mitchell Palmer.

What ensued was one of the worst violations of civil liberties in American History. During raids in November and January, law enforcement officials swooped down on suspected radicals in thirty-three cities, arresting 6,000 people, most of them immigrants. The raids involved wholesale abuses of the law: arrests without a warrant, unreasonable searches and seizure, wanton destruction of property, physical brutality, and prolonged detention.

While the initial reaction to the raids was favorable, the tide of public opinion soon changed. Prominent lawyers like Felix Frankfurter raised concerns that the abuses “struck at the foundation of American free institutions, and brought the name of our country into disrepute.”

Today, government officials have refused to reassure the American people that the Palmer raids are no more than a disappointing chapter in our History books. Government officials have refused to reassure the American people that our constitutional protections are in place, and that due process of law is alive and well. On Monday, the ACLU joined a coalition of civil liberties, human rights and public interest organizations in filing a Freedom of Information Act request about the individuals arrested or detained since September. We were compelled to file this request, because the government refused to answer our previous inquires about the individuals in detention, whether they had access to counsel and family members, and the status of the charges against them. The courts may be our only avenue for ensuring that due process of law is a reality during coming months of this crisis.

As Arab Americans, Muslims and Sikhs continue to experience bias attacks, racial profiling and unfair treatment, only the courts can offer shelter to the vulnerable segments of our communities.

With political leaders afraid to appear unpatriotic or critical of the government, the independent judiciary plays an even more central role in safeguarding our basic freedoms.

For these reasons we must resist the temptation to overreact and to strip our courts of their essential role during this time. Cooler heads need to prevail if we are to defend our country and our liberty. The attack of September 11 not only targeted our personal lives and property, it was also an attack on the freedom and equality that are the hallmarks of our democracy.

Terror, by its very nature, is intended not only to destroy, but also to intimidate a people, forcing them to take actions that are not in their best interest.

That’s why defending liberty and upholding our constitutional process during a time of National crisis are the ultimate acts of patriotism. For if we are intimidated to the point of restricting our freedoms and to the point of stripping our courts of their power, the terrorists will have won.

By completing this form, I agree to receive occasional emails per the terms of the ACLU’s privacy policy.

The Latest in National Security

ACLU's Vision

The American Civil Liberties Union is a nonprofit organization whose mission is to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States of America.

Learn More About National Security

National Security issue image

The ACLU’s National Security Project is dedicated to ensuring that U.S. national security policies and practices are consistent with the Constitution, civil liberties, and human rights.