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ACLU Urges Leaders to Reconcile Security Needs with Constitutional Freedoms in Aftermath of Attacks
A new chapter in American history was written on Sept. 11, 2001 when terrorists attacked the World Trade Center and Pentagon, wreaking death and destruction on thousands of innocent people. The attack not only targeted personal lives and property, it was also an attack on the freedom and equality that are the hallmarks of our democracy. Left to grieve and rebuild, most Americans are now wondering: "Where do we go from here?"
As champions of individual rights, the ACLU has defended the basic principles of democracy throughout our nation's most trying times. Two-and-a-half months after Pearl Harbor, when the government arrested more than 1,300 Japanese nationals and later relocated 120,000 Japanese Americans to internment camps, the ACLU stood almost alone in denouncing and challenging the federal government. After World War II, during the Cold War era , the ACLU fought running court battles against loyalty oaths and other restrictions on freedom of speech and association.
It was during those times of crisis that our work in holding the government accountable was most crucial. It was during those times, when bad laws were quickly pushed through Congress, that the ACLU worked to ensure that actions by our government upheld the principles of democracy. We will continue to do so in the trying days ahead.
Security and civil liberties do not have to be at odds. Like all Americans, we are concerned for our safety. Security to reduce the risk of future attacks should be one of the top priorities for our nation's leaders. But, those government proposals must increase our safety and preserve the liberties and freedoms that are at the core of the American way of life. We can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty.
What then do we, the American Civil Liberties Union, propose?
First, governments and citizen groups should determine whether national, state and local authorities are effectively using the extensive security and investigative powers they already possess before rushing to create new powers.
Second, there are immediate actions that can be taken to increase security at our nation's airports without undermining basic freedoms and liberties. For example, airport security vendors should be screened in accordance with their constitutional rights; cockpit doors should be fortified; and luggage should be matched against passenger lists.
Third, government officials should increase their efforts to prevent and punish unwarranted, bigoted attacks on citizens of Arab descent and members of religious minorities, including Muslims and Sikhs.
Finally, we should establish guidelines for evaluating new proposals that would affect our basic civil liberties. At the very least, proposed changes to restrict liberty should be examined and debated in public; they should be proven effective in increasing safety and security; and they should be fairly applied in a non-discriminatory manner.
Despite nearly unanimous statements in the hours and days after the tragic attacks, insisting that these tragedies not be used to diminish liberty, the Administration and Congress are rushing to change our nation's laws.
Two days after the attack, the Senate adopted a last-minute amendment that dramatically expands our government's legal powers to conduct electronic surveillance, access business records, and detain suspected terrorists. Senate Amendment 1562 proposed by Senators Orrin Hatch, R-Utah, and Jon Kyl, R-Ariz., was tacked on to an appropriations bill in the middle of the night, leaving most congressional leaders wondering exactly what they voted for.
Less than three weeks later, House Judiciary Committee Chairman F. James Sensenbrenner (R-WI) and Rep. John Conyers (D-MI) introduced a "compromise" bill — the "Provide Appropriate Tools Required to Intercept and Obstruct Terrorism Act (PATRIOT)" (H.R. 2975), which also went far beyond the powers necessary to fight terrorism on America's soil. Under the proposed bill, for example, People for the Ethical Treatment of Animals (PETA) could be considered a terrorist group if one of its members hits the Secretary of Agriculture with a pie.
Following are highlights of some of the civil liberties implications of the proposals put forth by Attorney General John Ashcroft:
Immigration
The immigration provisions of the administration's proposals would permit the indefinite detention of any non-citizen based solely on the authority of the Attorney General.
The bill would also allow the Attorney General to require the incarceration indefinitely of any non-citizen who is "certified" even if he or she is here legally, has not been charged with any immigration violation, is not accused of being removable as a "terrorist," or is granted political asylum on the basis of persecution.
Under this proposal, a permanent resident alien could be deported today for making a donation to the African National Congress because that group in the past engaged in military as well as nonviolent opposition to apartheid. And a permanent resident could be deported for having provided such aid in the 1980's when thousands of Americans were doing the same thing.
Wiretapping and Surveillance
The Administration's bill would extend long-standing phone surveillance laws to the Internet. For example, it would apparently apply to law enforcement efforts to determine what websites a person had visited. This is like giving law enforcement the power — based only on its own certification — to require the librarian to report on the books you had perused while visiting the public library.
In allowing for "nationwide service" of "pen register" and "trap and trace orders," which allow law enforcement to obtain phone records, the bill would further marginalize the role of the judiciary. It would authorize what would be the equivalent of a blank warrant in the physical world: the court issues the order, and the law enforcement agent fills in the places to be searched.
Criminal Justice
The Administration's bill would dramatically expand the use of "secret searches" by giving the government authority to request them in every criminal investigation.
The bill would also broadly expand the government's forfeiture powers in criminal cases not related to terrorism. It would allow the government to take any property of an accused person — even if the person has not been convicted of any crime and the property was not obtained during the commission of a crime.
