Steven R. Shapiro Lecture

Steven R. Shapiro

Legal Director, American Civil Liberties Union
April 24, 2002

Let me begin by stating what may be an obvious point, but one that cannot be stated too often, and that is that the world changed in a dramatic way on September 11th. We do a disservice to this debate if we don't acknowledge the real threat that is out there. The world is a dangerous place. It was undoubtedly a dangerous place before September 11th. But whatever illusions we had as Americans that we were somehow immune from the chaos and the dangers and the instability of the world, by virtue of geography or by virtue of our superpower status, evaporated forever on September 11th. The ACLU offices are less than a mile away from the World Trade Center. I was not there on the morning of September 11th. I was in fact on an airplane flying to Washington, DC. Most of my colleagues, however, were at 125 Broad Street. The building was evacuated and we didn't get back to our offices for nearly two weeks. We didn't have telephone and Internet connection for several weeks thereafter. I did not know anybody who perished in the Trade Center, but I certainly knew people who knew people who perished in the Trade Center. The world looks like a different place to all of us after September 11th.

But acknowledging the fact that there is a real threat and real dangers only states the problem. It does not state the solution to the problem. The fact that the world is self-evidently a dangerous place is not in and of itself a defense for the erosion of our freedoms in the name of security. To the contrary, I think it is perfectly clear that our society and indeed all societies can maintain their security only by maintaining their freedoms, and that one of the lessons that we have learned from history is that the erosion of freedom is itself a destabilizing force in society. Some would say that we cannot afford our freedoms after September 11th. Just the opposite is true. We cannot afford to abandon them.

The existence of that dangerous world out there -- the sense that we all have that we are embroiled in a crisis, that the world is at a critical juncture -- places inevitable and understandable pressure on civil liberties. Some of that pressure is predictable, which is to say there always will be people who exploit the moment to restrict freedoms in pursuit of goals that in fact have very little to do with September 11th. That is certainly true when you look around the world. For repressive regimes, the tragic events of September 11th have become yet another occasion to punish dissent for reasons that have much more to do with domestic political agendas than they do with the worldwide war on terrorism. It is also true domestically, where the Bush Administration used the occasion of September 11th to obtain from Congress a whole series of new powers, many of which are quite inimical to civil liberties, and many of which have very little to do with the war on terrorism. Some of these expanded powers were sought long before September 11th ever happened and were routinely rejected by Congress. In the wake of September 11th, they became politically irresistible and the Administration took advantage of the moment to have them enacted.

It is important to understand this reality. But it does not relieve us of the obligation to ask the hard questions. What it is that we want out our government to do in response to the threats we now face? How should we preserve both our freedom and our security? It is a laudable goal. Is it an achievable one?

Of course, this is not the first time in our history where we have faced a moment of crisis, where we have been in the position where we are told that we must sacrifice at least a portion of our liberty, at least for a time, in order to achieve a higher end, which is frequently described in terms of enhanced security. The historical record, unfortunately, is not particularly encouraging. What we see over and over again in American history is that in moments of crisis, we have almost always overreacted, and that when the crisis has passed, we have almost always regretted the steps we have taken. Furthermore, our overreactions have rarely if ever been distributed equally among the members of society. Instead, they have almost always been focused on particularly vulnerable elements of society, as I believe they are now, either immigrants or ethnic and racial minorities.

It is useful nonetheless to spend a little time going over the historical record -- to see what lessons we can learn and to recognize that this is not the first time that we have faced this dilemma. The historical record goes back almost to the beginnings of the nation. The Alien and Sedition Acts were enacted in 1798, during the Administration of John Adams, only seven years after the Bill of Rights was ratified guaranteeing freedom of speech and due process of law. The Alien and Sedition Acts made a mockery of those promises. Yet the Congress that adopted it included many members who had also participated in the drafting of the Constitution. The ostensible reason for the Alien and Sedition Acts was fear of an invasion by France. In response to that perceived national threat, the American public was told that dissent could no longer be tolerated and foreigners were suspect. Hundreds of people were put in jail on the wrong theory that criticism of the government undermined the public support that was needed to ensure the success of the new democratic experiment and to enable the government to protect our national security.

The verdict of history has condemned the Alien and Sedition Acts. They are now seen as antithetical to the very premises of the First Amendment and the principles of a free and open society that those same people had enacted only a few years earlier when they adopted the Constitution and ratified the First Amendment. Nonetheless, they were quite quick to abandon those principles less than a decade later when confronted with the fear, real or manufactured, of foreign invasion.

A similar pattern emerged during the Civil War. President Lincoln, whose name will forever be synonymous with the defense of equal rights, probably did as much to erode the concept of civil liberties as any other president in our history. Convinced that it was necessary to preserve the Union, he suspended the writ of habeas corpus. Habeas corpus, as you probably know, is the ancient principle that allows people to go to court to challenge the legality of their detention. Having suspended the writ of habeas corpus, Lincoln then placed 13,000 people in jail without trail during the course of the Civil War. To be fair, Act I, Section 9 of the Constitution states that the writ of habeas corpus may be suspended “when in Cases of Rebellion or Invasion the public safety may require it.”

However, most legal experts agree that this suspension power belongs to Congress not the President. In any event, Lincoln’s decision was a dramatic departure from one of our core constitutional understandings. In many other societies around the world, governments are given the right to suspend constitutional guarantees in times of national emergency. Lincoln is the only American president ever to invoke a similar power. But even though the writ of habeas corpus has never again been suspended, the claim that constitutional rights must be scaled back during periods of national stress is a sadly familiar one.

Consider another example. The ACLU was founded in 1920. In World War I, Congress passed an updated version of the Alien and Sedition Acts, this time entitled the Espionage Act of 1918, which again allowed the government to imprison people for criticizing government policies on the theory that dissent interfered with the war effort. Although it seems remarkable in retrospect, the full force of the United States government was directed at protesters whose message was essentially, as follows: "We think World War I is a bad idea. In any event, it's not our battle, it's Europe's battle. We ought not to be involved in it. It is serving the interest of the capitalist forces and not serving the interests of the people of the United States." Those were perceived to be dangerous words in 1918, one year after the Russian Revolution, when everybody was nervous about what would happen worldwide. Hundreds of people were put in jail for engaging in peaceful dissent that we would now perceive to be well within the protections of the First Amendment. One of those people was Eugene Debs, who was prosecuted, tried, and convicted under the Espionage Act. His conviction was upheld by the United States Supreme Court in 1919 for simply suggesting, as a socialist, that our involvement in World War I was motivated as much by capitalist economics as by the defense of liberty. As you may know, he ran for president from jail in 1920 and received over a million votes on the Socialist Party ticket.

The story of World War II is, of course, well known. The United States government interned approximately 110,000 Japanese and Japanese-Americans in detention camps for three or four years based on the suspicion that all of them might be disloyal, although none of them had been proven to be disloyal. Not only were they imprisoned, but their homes and property were taken away from them and, in many instances, their lives were shattered. Ten years later we were back at it again during the McCarthy period. Once again, the explanation for the functional if not the literal suspension of civil liberties was that the country was under threat, this time from communism, and we all know the story of what happened.

We now look back on those incidents with shame and regret. The United States Congress, for example, has apologized to the Japanese-Americans for their internment during World War II and provided them with reparations. What underlies that regret, I believe, is the sense that we did wrong, that we panicked, that we overreacted, that we stigmatized a particular group, that we abandoned our principles, and that in doing so we betrayed a national trust. We are the heirs of a remarkable birthright of liberty. In our better moments, we remember that the balance between security and freedom should not be approached as a zero sum game in which greater security somehow requires discounted freedom. Just the opposite is true. As Justice Brandeis once wrote: “Those who won our independence know…that fear breeds repression; that repression breeds hate; that hate menaces stable government….” When we forget that lesson, we do a dishonor to ourselves and everything that we stand for.

Judges, as well as politicians, must share responsibility for the mistakes of the past. The United States justly prides itself on the notion of an independent judiciary. We have an independent court system in this country, and we rely on our independent judiciary to enforce our constitutional rights and preserve our civil liberties. If you were in fact to ask me what the single most important contribution of the United States has been around the world in terms of human rights and civil liberties, I would not answer that question the way many people do. I would not say the Constitution. I would not say the Bill of Rights. I would say that the concept of an independent judiciary is the most important contribution that we have made to the human rights movement around the world.

At the same time, it is important to acknowledge that our judicial system has not performed very well in these moments of national crisis, either. Courts may be independent but they are not insulated from the larger political climate. It is perhaps not surprising, therefore, that our courts have rarely been willing to stand up for civil liberties in the midst of the crisis that ostensibly justified their curtailment. The pattern is both remarkable and remarkably consistent. Especially during war, or when national security is otherwise deemed at risk, judges are hesitant to second guess an executive or legislative decision that rights must be restricted. This is the approach the Supreme Court took when it upheld the conviction of Eugene Debs in 1919, when it upheld the internment of Japanese-Americans in 1944, and when it upheld the conviction of the leaders of the American Communist Party in 1951. Like the political system at large, the judicial system has been prepared to look back and say, "We made a mistake in the moment of crisis." But it is very hard for courts to stand up to the prevailing political sentiment, in the midst of a national security crisis, or perceived crisis, and they have rarely done so.

With that historical background, let me give you some sense of the pressure that the courts are facing at the moment. The ACLU is one of several organizations that has filed a lawsuit against the United States under the Freedom of Information Act. One of the things that we have sought from the government under the Freedom of Information Act is the names of the people who have been arrested since September 11th. We've made what seemed to us a very simple and straightforward request to the government. We've said: "This is a democracy. At the very least, the American public has the right to know who you've arrested, why you have arrested them, are they still in jail, and if so, where are they in jail." The government has so far refused to disclose that information. We are in the midst of now submitting various legal papers to the courts, which is what lawyers do. We're killing a lot of trees. But here is a slightly edited version of the opening paragraph of the latest brief that the government has just submitted in this Freedom of Information Act case. It says that disclosure of the information sought from the government would place in jeopardy one of the most significant law enforcement investigations ever conducted. The effects of any miscalculation with respect to the information at issue could be catastrophic. Disclosure of the names of the detainees presents an unacceptable risk to their safety and the safety of the public. Placing the requested information in the public domain, and therefore in the hands of terrorists, threatens to undermine the efficacy of the investigation and the government’s ability to deter future terrorist attacks. Simply stated, the risks are too grave and the margin of error too slim.

If you want an explanation for why courts usually rubber stamp executive decisions in the midst of national emergencies, that's it. It takes a judge of enormous fortitude to stand up to that sort of rhetoric from the United States government because what the United States government is in essence saying to the judge is, "If anything goes wrong, the finger of blame will point to you.”

On the other hand, the calculation always looks very different when the moment of crisis is past. As Justice Marshall eloquently stated in a 1989 dissenting opinion: "History teaches that grave threats to liberty often come in times of urgency, when constitutional right seem too extravagant to endure. The World War II relocation cases and the Red Scare and McCarthy Era internal subversion cases are only the most extreme reminders that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it."

Now, regret is an admirable emotion, but it's not as good as getting it right in the first place. So one of the lessons that I take from all this is that we have no choice in our system of government but to rely on the courts when the government is abridging our rights, but it is folly to put too much faith in the courts or expect the courts to get too far ahead of political sentiment. Ultimately, the obligation for maintaining liberty in this country is an obligation that we all have as citizens.

One of the things that John Ashcroft has done recently is to call on communities around the country to establish neighborhood security patrols, to encourage everybody to be on alert for any signs of terrorism, to watch their neighbors, report anything that may be suspicious to the government so the government can respond appropriately. My view is that we need neighborhood patrols, but they ought to be neighborhood patrols looking for invasions of liberty and not neighborhood patrols encouraging us to spy on each other. There's a famous quote from Learned Hand, one of the great American jurists of the twentieth century, who said, "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.” One of the things that we all have to remember in moments like this, is that it is up to us to insist that our liberties be preserved.

We are now, as the President keeps telling us, in the midst of a very different war because this is a war, we are told ... and I think reasonably told ... may go on without end. Part of the implicit promise in the past, part of the unspoken assumption behind all of those Supreme Court decisions upholding various wartime restrictions on liberty in the midst of war, has been the promise that the restrictions would be temporary. The implicit message in each of these decisions has been: “We don't like to do this, but we're facing a grave situation. When the crisis is over, you will get your freedoms back.” One can question whether that is true. Whether or not that is the way constitutional law ought to operate, it made it easier, I think, for everybody to swallow. This, too, shall pass.

One question that we now have to ask ourselves when we think about what the government has done and what the government is proposing to do, and whether it's justifiable and whether it's defensible, is: Are we prepared to live with these restrictions for the indefinite future? What we might be prepared to accept as a society for six months, for one year, for two years, may start to look very different when we think that this is the world we're going to be living in for the rest of our lives. With that in mind, I think it's a useful and valuable exercise seven months after the attacks on the Trade Center to look back and see what it is that has actually happened to core liberties. Where do we stand? What can we expect in the future? It's easier to look back, obviously. Hindsight is always simpler. It's easier to look back and describe what has happened. It's a lot harder to predict what will happen in the future, especially because what will happen in the future is almost certainly tied to whether or not we face another terrorist attack.

If I had been sitting here on October 11th instead of on April 24th, I would have said that I think that the prospect of another attack before April 24th is overwhelming. I am relieved, pleased, but surprised that this country has not been subject to another terrorist attack in the past seven months. As much as we all might hope, I don't think that we can assume that this situation will continue. Rather, I think we have to consider these issues with the understanding that things are likely to get worse before they get better.

As I look back on the last seven months, it is clear that we are facing a serious assault on civil liberties, that there is real cause for concern, and that there is a need for people to speak out in an atmosphere in which dissent is not particularly encouraged. It's also important to keep things in perspective. We don't have 110,000 people in internment camps. We don't have 13,000 people who have been put in jail without trial as they were during the Civil War. We have serious problems, and we ought to talk honestly about the serious problems, but it doesn’t help either to underestimate the problem or to exaggerate it. What we do know, and this may not be the full extent of the problem, is that approximately 1,100 people have been arrested and detained since September 11th, mostly on immigration charges, at most one or two of them on terrorist-related immigration charges, many of them held in secret in ways that I will explain in one moment.

First, however, let me explain what the Administration originally proposed to Congress. Shortly after September 11th, John Ashcroft went to the United States Congress and asked it to enact an anti-terrorism statute, which Congress eventually did. It is called the USA Patriot Act. In explaining the scope of the powers he sought, Ashcroft essentially said to Congress: “I would like you to give me the power as Attorney General to arrest and detain anybody that I reasonably believe may be a terrorist, and then hold that person in jail for as long as I choose, without trial, until I conclude that the person is no longer a threat and can be released.”

That is the initial request that John Ashcroft made to the United States Congress. It's one of the few proposals that John Ashcroft made to the United States Congress that Congress was unwilling to adopt. Even Congress balked at the notion of summary arrest and detention with no judicial review. But what Congress did grant John Ashcroft the power to do is the following. It granted John Ashcroft the power to certify anyone as a suspected terrorist, and based upon his certification alone, arrest that person and put them in jail and hold them for seven days without charges. Detention without charges for seven days. That may not seem so severe to some of you, but it is unprecedented in American history. At least until now, this has not been a country in which the government can pick you up, put you in jail without telling you why, and hold you there for seven days before bringing you before a judge. Yet that is the power that Congress gave to John Ashcroft. VV More seriously in some ways, Congress also said to John Ashcroft, "If you arrest somebody for overstaying their tourist visa and you bring deportation proceedings against them to deport them from the country for having violated the immigration laws, and you go through the immigration proceedings and get a deportation order which entitles you to deport the person from the United States, but you are unable to deport them, you may then, even though the only thing you have ever charged and tried and convicted this person of is overstaying a tourist visa, you may keep that person in jail for the rest of their lives as long as you, John Ashcroft, are willing to say every six months, “I still think this person may be a terrorist, even though I have never charged him or tried him on those charges or proved it."

The scenario that the government can arrest somebody for overstaying a tourist visa, wind up unable to deport that person, and then keep that person in jail indefinitely as a suspected but uncharged and unproven terrorist is not such a far-fetched one. Sooner or later, there are likely to be a certain number of people the United States government thinks may be terrorists even though it doesn’t have enough evidence to charge them, let alone prove a charge of terrorism. So instead, the government gets a deportation order against them for violating their tourist visas, and then begins a process of actually trying to deport them out of the country. The government, then, may very well be faced with a dilemma. There are very few countries in the world who are going to want to accept anybody that we have labeled as a suspected terrorist, and the very few countries in the world that might be prepared to accept those people are not going to be countries that we're going to want to send them to. At that point, we're going to have people who have never been convicted of terrorism or anything remotely resembling terrorism, who have only been convicted of overstaying their tourist visa, who are nevertheless sitting in jail for month after month, year after year, without any charges, without any trial, without any conviction, because John Ashcroft or his successor as Attorney General says, "I suspect this person may be a terrorist although I cannot prove it." That is an extraordinarily serious situation.

Fortunately, we are not there yet. But where we are is serious enough. By it’s own admission, the government has arrested 1,100 people, most on minor immigration charges, a few on minor criminal charges, virtually nobody on terrorist-related charges. But the government has decided that it cannot -- and this is what our Freedom of Information Act lawsuit is about -- it cannot release the identities of the people it's arrested. So not only have these people been arrested in secret, the government won't tell anybody where they are being held. In addition, the government has insisted on the right to try these people in secret deportation hearings behind closed doors, much like what is going on in Pakistan at the moment, where there is a trial going on behind closed doors. Under normal rules, the government is entitled to ask that a portion of a hearing be closed if especially sensitive information is involved. The government is not interested in following those rules, however, nor in allowing a judge to decide whether secrecy is warranted. Instead, the government has insisted that every minute of every hearing it designates must not only be closed, it cannot even be listed on the public docket sheet, or else the war on terrorism will be jeopardized. We do not have a tradition in this country of trying people in secret. We routinely condemn countries around the world for holding secret trials. The United States government has nonetheless insisted that these immigration proceedings, which after all are trying people for overstaying their visas (or similar violations of the immigration law) must be held entirely in secret. We are also in the process of suing the United States government over these secret hearings. Recently, a federal judge ordered the government to open a deportation hearing it had sought to close. As the judge reminded the government, secret trials are odious to a democratic society. My only regret is that a reminder was necessary. So, we have these 1,100 people. They have been picked up on minor charges. They're being held in secret. In many cases they had difficulty obtaining access to counsel. For a long time, our government refused to notify their embassies in violation of our obligations under international law, many have been brought to trial in front of secret immigration courts. All of these things are very, very serious and, I think, a legitimate source of concern to civil libertarians.

The government has also begun laying the groundwork for military tribunals that would enable the government to bypass the criminal justice system despite a pre-9/11 record that demonstrates the ability of the criminal justice system to try and convict terrorists, including those charged with the first World Trade Center bombing in 1993. What is it that the Administration doesn’t like about the criminal justice system? Apparently, its respect for due process and tradition of openness.

The original military tribunal order that President Bush issued was quite extraordinary. It did not apply to citizens, which is important. Otherwise, it was quite staggering in its scope. Under it’s terms, any non-citizen who the President certifies is or was a member of Al Qaeda, is engaging or has engaged in any terrorist activities, or who has harbored anybody who fits into either of the first two categories is subject to the jurisdiction of a military tribunal and can be immediately arrested. Once arrested, that person can either be tried before a military tribunal or detained indefinitely in a military jail without trial.

If tried under the initial military tribunal order, defendants had a right to counsel, but not a right to the counsel of their own choice. The government reserved the right to appoint the defendant’s lawyer. There was no requirement that the government prove guilt beyond a reasonable doubt. There was no requirement of a unanimous verdict, except in capital cases. The traditional rules of evidence that apply in criminal trials did not apply to the military tribunals. There was no requirement that the military tribunals be conducted in public. They could be conducted in secret. If you were convicted by a military tribunal, your only appeal was to the President who had charged you in the first place. After the President upheld your conviction, you had no right to appeal to any state court, federal court or international forum. This was true even in cases when the death penalty was imposed.

The President’s initial order on military tribunals produced an enormous outcry. In response, the government issued a series of new regulations which corrected some but not all of the problems. There is a lesson to be learned from this. The government is sensitive to the charge that they are eroding our liberties. Even in the midst of this terrorist crisis, it is not immune to public criticism. Under the new regulation, military tribunal defendants are entitled to have a civilian lawyer of their own choosing. There is a presumption in favor of public hearings, although the chief military judge has discretion to close any hearing if he sees fit. Morever, even the defendant and the defendant’s civilian lawyer can be barred from a closed hearing. There is a requirement that the government prove its case beyond a reasonable doubt, which is the traditional criminal standard. A unanimous verdict is now required to impose the death penalty, but not for lesser punishments, including life imprisonment. Most importantly, there is still no right to appeal to any civilian judicial court, so the process exists entirely within the military system and all of the judges are part of the chain of command in which the President is the commander in chief. Presumably, they all know that if they refuse to return a conviction or uphold the sentence, they will in some way have disobeyed the least implicit charge of the commander in chief who has brought this person before the military tribunal in the first place.

Having created these military tribunals, the government is apparently searching for someone to try in front of the military tribunals. Thus far they don't seem to have found anyone. As a result, they have not actually convened a military tribunal. There is a lot of talk that the military tribunals -- if they are to be used at all – will not be used to try anybody arrested in the United States, but instead will be used if any of the 300 or so people who are now imprisoned in Guantanamo, most of whom were captured in Afghanistan, are ever tried. We’ll see. In the meantime, the government has run into another problem with the Guantanamo detainees. Military tribunals traditionally exist only to prosecute people for violation of the laws of war. Apparently, the government has not been able to figure out any violation of a law of war that has been committed by most of the people that they now have detained at Guantanamo. If you've been reading the paper in the last couple of days, you’ve seen that what the government is now proposing is to create a new crime under the laws of war in order to justify bringing people before these military tribunals, which themselves do not comply with international legal standards. So, we've not only created a new court system, but we've created a new set of crimes to try people in front of the new court system, and in addition to all the problems that that creates for human rights in the abstract – sort of lawmaking on the run to suit your purposes for a particular crisis – it also, as many people have said, puts our own soldiers at considerable jeopardy if and when they are captured by enemies overseas. We will have very little moral standing to say that they ought to be treated better or differently than we were willing to treat people who we arrested in the course of this conflict. A third major area that I think is a cause for justifiable concern are the new surveillance provisions that have been given to the government in the USA Patriot Act. I can describe to you, and I will briefly, what those new surveillance powers are. It is very difficult to describe how they have actually been used by the government because they're all secret, and we're not going to find out how the government is in fact using those powers or the extent to which the government is using those powers until the violations are already complete, and then information will come out after the fact. So it's a big mystery now whether these powers are sitting there largely unused, like the military tribunals, or whether there are significant privacy invasions going on under the authority of this new statute and we just have not heard about them.

Let me just summarize these surveillance provisions briefly. In sum, they make it easier for the FBI to wiretap your phone, track your Internet uses, search your home surreptitiously, review your library records and bank records, and then share all the information it gets with the CIA. I'll give you just one small example of how some of this works because a lot of these surveillance provisions get complicated.

I’m probably going to tell you more now about wiretap law than you ever wanted to know. There is something called a pen register. There is also something called a trap and trace order. They are simply mirror images of the same phenomenon. The pen register gives the government a record of all the phone numbers you have dialed. A trap and trace order gives the government a record of all the phone numbers that have dialed your home phone. The theory has always been that these orders are less intrusive than a wiretap order because the government is not in fact capturing the content of your conversation. If the government actually wants to listen to what you're saying on the phone, then the government is engaging in a full blown wiretap, has to go to a judge, has to get a warrant, has to prove there's probable cause to believe that you have violated the law. There are all sorts of procedural protections that apply when the government actually listens to your conversation. But if all the government wants is a list of the phone numbers, incoming or outgoing, then all it does is it goes to a judge and say, "Judge, this would be useful to us in our investigation." Faced with that request, the judge has no discretion, but must grant the government the order it wants to go to the phone company and get the list of phone numbers.

One of the things that Congress did in the USA Patriot Act was to say that the same procedures should apply to the Internet. What that means in the context of the Internet is that when you log on and start browsing the Internet, the government can get a list of all the Web sites you have visited with the same ease that it can now get a list of all the telephone numbers you have dialed. All it has to say is, "It would be useful to us." It doesn't have to have any criminal suspicion under this new Act to get a list of all the Web sites you have visited. One of the things that we pointed out when we were opposing the Patriot Act in Congress is that a list of Web sites is very different than a list of phone numbers. A list of phone numbers doesn't tell you very much about somebody's thought processes. A list of Web sites tells you an enormous amount about what is going on in somebody's head, especially because the government, once it has the list, can then go to visit the Web sites themselves and find out what you're interested in. In that way, it is much more like getting a list of books that you have taken out of the library than it is like getting a list of phone numbers that you have dialed. It's simply much more revealing about your thought processes. The government, our government ought not be able to do that unless there's some reason to believe you've violated the law. But under the USA Patriot Act, they don't need any reason to believe you've violated the law. They just have to go to a court and say, "This would be useful, and we would like to have it," and the judge has to give them permission to get it. So there are all sorts of new lurking powers out there that have tremendous potential for abuse and harm. But, beyond the specifics, what we have seen over the last six months is a series of what I think of as structural issues in which the particular violations of civil liberties are simply symptoms or examples. The structural issues, as I see them, are these. There has been significant erosion in the system of checks and balances. One of the things that the framers of the Constitution did with enormous wisdom is to recognize the value of divided government, that too much power concentrated in the hands of one person or one branch of government is power that is prone to abuse, and that the way to prevent that abuse or at least limit the possibilities of that abuse is to divide government among the three branches.

What we have seen since September 11th is a tremendous amount of unilateral action on the part of the executive. When the Bush Administration decided to create military tribunals, they did it on their own without ever going to Congress and getting Congress' authorization. When the Bush Administration decided to start holding secret deportation hearings, they did it on their own without ever going to Congress and getting Congress' authorization. When the Bush Administration decided to issue a regulation authorizing the Justice Department to listen to conversations between lawyers and their clients in prison without any judicial authorization, the Administration did it on its own without ever going to Congress and getting Congress' authorization.

The principle that Congress makes the law and the executive enforces the law has been severely eroded. We have lacked the debate that normally accompanies the legislative process. Even when the Administration has gone to Congress, Congress has failed to live up to its Constitutional responsibilities in my view. Perhaps the most prominent example of this was the so-called authorization of force resolution, which Congress adopted only a few days after September 11th. It most closely resembled the Gulf of Tonkin resolution, and we all know what that led to. We did not have a declaration of war by Congress. Instead, we had a badly worded and open-ended resolution that essentially said the President can use whatever force he thinks is appropriate at any time in any place. In recent decades Congress has largely abdicated its war making power, which was integral to the original constitutional arrangement that the framers created. I think that is a major mistake.

The role of the judiciary has also been marginalized. As I said, it's a mistake to over-rely on the judiciary or expect too much from the judiciary in moments of real or perceived crisis. But, nonetheless, a lot of the measures that have been adopted, some unilaterally by the Administration, some with the approval of Congress, have written the courts out of any meaningful role in protecting civil liberties. The military tribunals again are a classic example. The civilian courts have no role to play whatsoever; at least on the face of the order, you never get to go to court. It all ends with the President as commander in chief. The rule that the Attorney General on his own certification can pick up anybody as a suspected terrorist and hold them without charges for seven days deprives the courts of their traditional role in assuring that detention is based upon reasonable cause and not based upon the arbitrary say so of an executive official. The order that allows the government to eavesdrop on attorney/client conversations contemplates no role for the judiciary before the government starts to interfere with the attorney/client privilege. In addition, the immigration process has been severely compromised. Scores of people arrested on minor immigration charges are being held in jail even though their deportation proceedings are over. These people would normally be put on a plane and sent back to their original country; instead, they are sitting in jail for weeks and months because the FBI, which has nothing to do with the immigration process, has not yet “cleared” them. In effect, the government has instituted, without saying so, a new and I believe illegal form of detention in which people who are ready to be deported are being held in jail for weeks and months without any criminal charges and without any legal authority just because the FBI is not prepared to let them go. Legally, it is no different than if the FBI picked them up initially and held them in jail for months without charges or any judicial supervision. The government has simply figured out a way to hold these people in jail for months without charges at the end of the immigration process instead of the beginning, and the courts have by and large said very little about that. The whole use of the pen register that I described before to track Internet traffic largely writes the judiciary out of any meaningful role in monitoring what is essentially a wiretapping regime. Under the USA Patriot Act, the government now is increasingly able to go to a special intelligence court instead of the traditional federal criminal courts in order to get permission to engage in very severe invasions of privacy, including wiretaps. The standards that are applied to intelligence wiretaps are much less stringent than the standards that apply to traditional criminal wiretaps. And the courts again are reduced to almost rubber stamps of any Administration request to listen to your phone conversations as long as the government invokes the word "intelligence." In all of these ways, the role of the judiciary in preserving civil liberties has been significantly reduced. Testifying before Congress in December, 2001, John Ashcroft remarkably said that those who criticize the Administration by invoking “phantoms of lost liberty” are giving aid and comfort to the enemy. He has since announced that he is considering revising FBI guidelines that have been in place since 1976, and that were designed to limit the ability of the government to spy on political and religious groups. As you may recall, those guidelines were adopted because of a whole series of scandalous revelations about the use of the FBI and the CIA to spy on lawful political activities in this country. The announcement that those guidelines may now be rewritten, coupled with the charge that those who criticize the Administration’s civil liberties record are engaging in (at the very least) unpatriotic activity, will have a chilling effect on robust political discussion that is never more vital than when we are in the midst of a national crisis. Yet the impulse is to stifle that discussion and not to encourage it.

Most important of all is the fact that these restrictions and these invasions of liberty have not been shared equally throughout the society. They have instead been focused on particular groups, as they almost always are, and the particular groups this time who have been singled out are people of Middle Eastern and South Asian descent, and Muslims. Virtually everybody who has been arrested falls into these categories. The government has announced and carried out plans to question thousands of people in the United States for no reason other than they come from the Middle East or certain designated South Asian countries like Pakistan. The government has also announced that anybody from these countries is now subject to priority deportation. The inevitable effect of these policies has been to stigmatize an entire community because of the actions of a few. There is a very big debate going on in my world about whether this activity amounts to racial profiling. That's a very interesting discussion to be had, and we can talk about that if you want for a while. Before 9/11, there was a tremendous public sentiment that racial profiling was in fact un-American and unjust -- that to stop people who were driving on the New Jersey Turnpike merely because they were black was immoral and unconstitutional. In response to poll questions, most people of all races said that racial profiling was wrong. After 9/11, there has been a shift in public attitude. Now if you ask most people whether it's fair to subject Middle Eastern men between the ages of 20 to 35 to enhanced security checks at the airport merely because of their appearance or their national heritage, they will say yes. They will also say that it is not racial profiling, it is simply smart law enforcement.

Defenders of the practice point to the fact that all 19 hijackers on September 11th were from the Middle East, and that to the best of our knowledge all of them were Muslim. One of the important constitutional principles in this country, however, is that there is a critical distinction between individual guilt and collective guilt. We do not assume that simply because one member of a community may have violated the law that all members of that community are therefore suspicious. We cross that line at a tremendous cost, in addition to which it is almost always counterproductive and inefficient. The moment we start to profile Muslim men between the ages of 20 and 35, we're going to find a Filipino woman who blows up the next airplane, and we won’t be looking for her because we were concentrating on racial and religious profiling rather than focusing on people's behavior. It is not only wrong, it is ineffective, and it gives a misleading sense that the government is actually doing what it ought to be doing to protect our security.

We are at an important crossroads for the nation. Our burden as citizens, as citizens who care about liberty, is to deliver two messages to the government. The first message, and it's a message that I take very seriously, is that we expect the government to do everything it can to protect our security. That is the fundamental obligation of government: to make us safe. But, the second message is equally important. The price of security cannot be our freedom. Morever, our right to question the steps that the government has taken is not an act of disloyalty but the highest act of loyalty in a constitutional democracy.

In closing therefore, let me simply say this to those governing in our name: "Before you invade our liberties, you must at the very least establish that there is a reason for doing so; that the absence of these powers that you are now claiming was the cause of what happened on September 11th; that the grant of these powers will in fact assist you in preventing the next September 11th; that you will not use these powers to treat particular communities unfairly based upon the color of their skin or where their parents came from; that you proceed on the recognition that the security of this country ultimately lies in its liberty and that neither can be preserved for long without the other; that rights that are lost may very well never be regained; that we cannot allow September 11th to change who we are as a people, not only because the enemy will then have gained a victory it never could have won, although that is true, but because we owe more to ourselves as a people and to our constitutional heritage than to allow it to be sacrificed in ways that the historical record shows us we will later come to regret."

Thank you.