Civil Liberties in the Wake of the September 11 Attacks: A Conversation with Nadine Strossen

CIAO DATE: 09/02

Civil Liberties in the Wake of the September 11 Attacks: A Conversation with Nadine Strossen ¹

Nadine Strossen ²

The Annual Constitution Address
October 3, 2001

Nadine Strossen, Professor of Law at New York Law School, has written, lectured and practiced extensively in the areas of constitutional law, civil liberties and international human rights. In 1991, she was elected and currently serves as president of the American Civil Liberties Union (ACLU), the first woman to head the nation’s largest and oldest civil liberties organization. Strossen continues in her faculty position as well.

The National Law Journal has twice named Strossen one of “The 100 Most Influential Lawyers in America.” In 1996, Working Woman Magazine listed her among the “350 Women Who Changed the World 1976-1996.” In December, 1997, Upside Magazine included Strossen in the “Elite 100: 100 Executives Leading The Digital Revolution.” In November, 1998, Vanity Fair Magazine included Strossen in “America’s 200 Most Influential Women.” In November, 1999, Ladies Home Journal included Strossen in “America’s 100 Most Important Women.”

Since becoming ACLU president, Strossen has made more than 200 public presentations per year before diverse audiences, including approximately 500 campuses and many foreign countries. She does frequent media interviews on legal issues, having appeared on virtually every national news program. Strossen is a regular on ABC’s “Politically Incorrect,” and has been a monthly columnist for the Web-zine Intellectual Capitol and a weekly commentator on the Talk America Radio Network.

Strossen’s writings have been published in many scholarly and general interest publications (more than 225 published works). Her book, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights (Scribner 1995), was named by the New York Times a “notable book” of 1995 and was republished in October 2000 by N.Y.U. Press, with a new introduction by the author. Her co-authored book, Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties (N.Y.U. Press 1995), was named an “outstanding book” by the Gustavus Myers Center for the Study of Human Rights in North America.

In 1986, Strossen became one of the first three women to receive the U.S. Jaycees’ “Ten Outstanding Young Americans” Award; she was also the first American woman to win the Jaycees International’s “The Outstanding Young Persons Of the World” Award. Strossen has received Honorary Doctor of Law Degrees from the University of Rhode Island, the University of Vermont, San Joaquin College of Law, Rocky Mountain College, and the Massachusetts School of Law. Other awards include: the “Women of Distinction” award from the Women’s League for Conservative Judaism, The Media Institute’s Freedom of Speech Award, and the Free Speech Coalition’s “Freedom Isn’t Free” Award.” Strossen is also a member of the Council on Foreign Relations.

Strossen graduated Phi Beta Kappa from Harvard College (1972) and magna cum laude from Harvard Law School (1975), where she was an editor of the Harvard Law Review. Before becoming a law professor, she practiced law for nine years in Minneapolis (her hometown) and New York City.

Good afternoon. I am honored and happy to participate in the impressive educational program your school has organized in the wake of the terrible terrorist attacks. I applaud the pledge of Dickinson President William G. Durden, “to do everything [possible] to fashion learning experiences from the crisis.” In his words: “There is a special responsibility for colleges and universities, and even a special priority, to promote a deeper knowledge and understanding of the broader context and dimensionality surrounding the phenomenon of September 11.”³

Before I delve further into my assigned topic, I would like to say how happy I am to be back here with you, on your beautiful campus. I have so many positive memories of my past two visits here, and the very special, close-knit educational community you have built.

I am also happy to be in this part of the country, not far from Pittsburgh, because it is the location of one of the best book reviews I ever got for my book defending free speech in cases of pornography, or sexually-oriented expression, which N.Y.U. Press republished last year.⁴ I learned about this from an article in the Pittsburgh Post-Gazette last spring,⁵ describing a book-burning that was being organized by a church in the Pittsburgh area, the Harvest Assembly of God Church. The church’s minister, the Rev. George Bender, had been urging all people in the area to have their own book-burnings as a type of spring cleaning. In his words: “Cleanse your house from ungodly . . . and demonic books . . . .” The items that Rev. Bender burned include the Book of Mormon, back issues of Humanist Magazine, and of course, the most-widely suppressed books all over the U.S. in recent years–the Harry Potter series! Also, as the article reported: “Nadine Strossen’s book ‘Defending Pornography’ will join . . . in the big burn.” As I said, in light of the company, I consider that a very good book review!

It is a great honor to have been invited to deliver the prestigious Constitution Address, in honor of your school’s distinguished namesake, John Dickinson, and following in the footsteps of such distinguished predecessors. I took the opportunity presented by your kind invitation to read up on John Dickinson. It is quite well-known that Dickinson refused to sign the Declaration of Independence. He had eloquently denounced British actions in his influential “Letters from a Farmer in Pennsylvania.” But he still hoped for a reconciliation with Britain. For this reason, he has been regarded as a leading conservative among the founding generation. In one important respect, though, Dickinson was a radical, way ahead of his time–in 1777, he freed all his slaves, consistent with not only his political beliefs, but also his religious beliefs as a Quaker.

John Dickinson was one of six signers of the Constitution who are closely associated with your College. Shortly after the Constitutional Convention in which they all participated, a famous story tells of a woman who approached their fellow delegate–another remarkable Pennsylvanian, Ben Franklin–right outside the convention hall in Philadelphia. “Mr. Franklin,” she asked “What kind of government have you given us?” His answer is especially pertinent in these troubled times. He said: “A republic, if you can keep it.”⁶

Yes, the drafting of the Constitution was a towering achievement, but it was not a self-enforcing document. And the same is true for constitutional amendments, such as the Bill of Rights and the post-Civil War Amendments. In James Madison’s words, these were all mere “parchment barriers”⁷ against actual government oppression. Likewise, as Franklin indicated, our whole republican form of government depends not only on the words of the so-called “Founding Fathers,” but also on the actions of all Americans in that generation and every succeeding one, to ensure that all government officials remain true to the founding ideals. That has been precisely the mission of the American Civil Liberties Union. Since 1920, we have been trying to transform the Constitution’s grand–but still unfulfilled–promises of liberty and equality for all into real rights for real people. That mission always keeps us very busy, and that has been especially true since September 11.

I would like to open my remarks about the topic you have asked me to address–civil liberties in the wake of the September 11 attacks–by quoting a passage from a 1972 opinion by former Supreme Court Justice Thurgood Marshall, who served on the American Civil Liberties Union’s National Board of Directors before becoming a federal judge. Justice Marshall’s inspiring remarks were triggered by the then- unprecedented street crimes throughout our nation’s cities, but they apply fully now, in the wake of the unprecedented terrorist crimes that have stricken two of our major cities, as well as the rural area right here in Pennsylvania. Indeed, considering that Marshall wrote these stirring words 30 years ago, they seem amazingly prophetic:

“At a time in our history when the streets of the Nation’s cities inspire fear and despair, . . . it is difficult to maintain objectivity and concern for our fellow citizens. But, the measure of a country’s greatness is its ability to retain compassion in time of crisis. No nation in the recorded history of man has a greater tradition of revering justice and fair treatment for all . . . in times of turmoil, confusion, and tension than ours. This is a country which stands tallest in troubled times, a country that clings to fundamental principles, cherishes its constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system.”⁸

These words well summarize the stance we should take now, in the current national security crisis, to ensure that we do not unnecessarily compromise our precious civil liberties. In the wake of the terrible attacks on September 11, the ACLU has been working very closely with many government officials and other citizens’ groups, from across the political spectrum, to ensure that our nation continues to stand as a “beacon of freedom”–as President Bush said that awful night–whose government protects both human life and human rights. As the new logo on the ACLU’s website puts it, we in America can and should be both “Safe and Free.”⁹

Supreme Court Justice Sandra Day O’Connor issued a prescient warning a few years ago: “It can never be too often stated that the greatest threats to our constitutional freedoms come in times of crisis.”¹⁰ As a nice coincidence, Justice O’Connor made that apt observation in an ACLU case, in which she upheld our position.

When we review American history, we see too many examples where we have been panicked into too quickly assuming that we must choose between national security and individual liberty, and we too often have made choices that are in fact the worst of both worlds, sacrificing liberty with no countervailing gain in security. The most dramatic example is the internment of 110,000 Japanese-Americans during World War II based on the government’s unsubstantiated assertion that they posed risks of sabotage and espionage. Other examples range from the Alien and Sedition Acts of 1798 to the harassment of anti-Vietnam War protesters in the 1970s. We must not repeat these past mistakes.

To promote our government’s obligation to protect both national security and personal liberty, right after the terrorist attacks, the ACLU spearheaded an extraordinarily broad, diverse coalition of close to 200 concerned citizens’ groups. In a press conference at the National Press Club in Washington, D.C. on September 20, we released a joint statement entitled, “In Defense of Freedom at a Time of Crisis.” This statement set forth ten core principles unanimously supported by all the groups–a remarkable feat, given the extraordinary breadth and diversity of the groups, from all across the political, religious, ethnic, and racial spectrums. Our coalition partners ranged from such liberal groups as the Leadership Conference on Civil Rights, Common Cause, and People for the American Way, to such arch-conservative groups as the American Conservative Union, Phyllis Schlafly’s Eagle Forum, Grover Norquist’s Americans for Tax Reform, Paul Weyrich’s Free Congress Foundation, and major gun-owners’ rights organizations.

Given the ideological diversity of the groups that endorsed the ten principles in our statement, these principles clearly are traditional American values. They provide a common, unifying bond among all of us in this great country–notwithstanding all the other ways in which we might differ from and with each other. So I would like to share these important core principles with you. In the wake of the terrorist attacks, so many specific proposals are now being pushed in the name of anti-terrorism, we will not have time today even to touch on all of them. But these core principles lay out the basic template that we should use to assess each specific proposal:

This week thousands of people lost their lives in a brutal assault on the American people and the American form of government. We mourn the loss of these innocent lives and insist that those who perpetrated these acts be held accountable.
This tragedy requires all Americans to examine carefully the steps our country may now take to reduce the risk of future terrorist attacks.
We need to consider proposals calmly and deliberately with a determination not to erode the liberties and freedoms that are at the core of the American way of life.
We need to ensure that actions by our government uphold the principles of a democratic society, accountable government and international law, and that all decisions are taken in a manner consistent with the Constitution.
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.
We should resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security.
We should resist efforts to target people because of their race, religion, ethnic background or appearance, including immigrants in general, Arab-Americans and Muslims.
We affirm the right of peaceful dissent, protected by the First Amendment now, when it is most at risk.
We should applaud our political leaders in the days ahead who have the courage to say that our freedoms should not be limited.
We must have faith in our democratic system and our Constitution, and in our ability to protect at the same time both the freedom and the security of all Americans.

Consistent with these general principles, endorsed by our unprecedentedly broad coalition, on September 20th the ACLU issued a set of somewhat more specific guidelines which we urge all officials to follow. We noted that some immediate actions could be taken to increase security without undermining civil liberties. For example, at our nation’s airports, the measures we endorse and welcome include increased screening of all personnel who have access to the airplane and tarmac, increased screening and training of security personnel, strict control of secured areas, measures to improve security at foreign airports, a neutral entity to which passengers can report lax security procedures, fortifying cockpit doors, and luggage matching of all passengers, so you cannot check your luggage without getting on the flight yourself.

But when we turn to many other measures that are being touted, we need more evaluation and deliberation, from Congress and concerned citizens alike. That is true for many provisions in the so-called anti-terrorism act advocated by Attorney General John Ashcroft. Before rushing to give the government the sweeping new powers it seeks, lawmakers and citizens should determine whether our authorities are effectively using the extensive security and investigative powers they already have in the areas of national security and law enforcement. And if the existing measures are found inadequate, we must analyze precisely what the problems are, and devise measures to remedy those specific problems. Moreover, before rubber-stamping any new measure that further expands government power, and further contracts individual freedom, we should insist that our lawmakers follow certain basic guidelines. At the very least, these measures 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 nondiscriminatory manner.

Unfortunately, key provisions of the pending federal legislation violate these basic precepts. We are especially concerned that the new so-called “anti-terrorism” legislation would give the government sweeping new powers with little, if any, judicial oversight. These include, for example, powers to detain and deport non-citizens, to engage in electronic surveillance of telephone and computer communications by all of us, and to conduct secret searches of the homes, offices, and property of anyone suspected of any crime.

I referred to this proposed legislation as the “so-called antiterrorism” law for a couple reasons. First, the Attorney General and other officials have not shown that the law’s sweeping new powers would even be effective in countering terrorism, let alone necessary to do so, especially considering that our government already has vast powers in all these areas, particularly since the 1996 Anti-Terrorism Law, passed in the wake of the Oklahoma City bombing. Second, many of the even more expansive new powers under the new law would apply to all criminal law enforcement, not only to terrorist or violent crimes. So, in the name of fighting the “war on terrorism,” our government is actually seeking power to wage the ongoing “war on drugs,” including against adults who use marijuana for medical reasons, consistent with medical advice.

Until September 11, my Constitution Address–which was originally scheduled for September 12– was going to discuss the War on Drugs, to explain why its many, diverse critics believe that a more accurate term would be the War on the Constitution. So I am happy to note this connection between that original topic and my new one–that the expanded surveillance powers that the government now seeks would be used largely against not terrorist violent crimes against human life, but rather against the consensual, nonviolent crimes of drug possession and gambling.

That has always been true for electronic surveillance. U.S. law enforcement officials first used wiretapping during the Prohibition era to enforce the laws prohibiting alcohol. And the stepped-up electronic surveillance powers under the 1996 Anti- Terrorism law have been used almost exclusively to enforce the current prohibition of other substances, as well as gambling. One of the many inevitable evils that flows from creating victimless crimes, through prohibition laws, is that the government by definition cannot obtain evidence of the crime from the victim, since there is no victim. Therefore, the government has to spy on its own citizens, including in such personal settings as our own homes, and our intimate relations and confidential communications with other individuals. These are precisely the tactics that are used by the most totalitarian states.

There is also another connection between the new “war on terrorism” and the ongoing “war on drugs,” which was suggested to me by one of the many journalists with whom I have talked in the past couple weeks about civil liberties and national security. Specifically, a Canadian journalist told me about an in-depth article he is writing about the extent to which some of the international terrorist rings are financed by the illegal drug trade. Therefore, he argues, if we decriminalized drugs, the profits would dry up. And, I should note, he is citing many experts on both the drug trade and terrorism. One of the tactics that our government is now using to undermine international terrorists, since September 11, is to freeze their assets and to stop the flow of funds toward their operations. So, it is consistent with that overall strategy, and intriguing, to consider whether the war on drugs might actually be undermining the war on terrorism by fueling the flow of funds to terrorists.

The kinds of problems that the ACLU and our diverse coalition partners have noted with key provisions of the Administration’s proposed anti-terrorism law are also being noted by many, ideologically diverse, members of Congress–Republicans as well as Democrats, and conservatives as well as liberals. For example, one of the ACLU’s strongest allies on these issues, and one of the most outspoken critics of key portions of the Administration bill, is Congressman Bob Barr, the conservative Georgia Republican. Congressman Barr has an extensive law enforcement background, as a former U.S. Attorney and CIA official. So he can hardly be called “soft on crime” or terrorism. But when John Ashcroft tried to persuade the House Judiciary Committee to rush through his new law, Bob Barr (who is a member of that committee) questioned the reason for the hurry. Barr asked:

“Does it have anything to do with the fact that the Department [of Justice] has sought many of these authorities on numerous other occasions, has been unsuccessful in obtaining them, and now seeks to take advantage of what is obviously an emergency situation?”

Urging caution before casting away our freedoms, Barr said:

“Our immediate reaction must not be to blindly expand law enforcement’s investigative authority, or the government’s prosecutorial authority, without at least first engaging in a serious deliberative effort to examine how and why execution of current authority was not successful.”

Fortunately, we are now seeing some stirrings of this type of deliberation. Although Congress has short-circuited its usual hearing process, the House Judiciary Committee did invite a few experts to brief it, including the ACLU. The only official witness to testify before either the House or Senate Judiciary Committees was Attorney General Ashcroft himself. But although he urged Congress to pass the whole law rightaway, he got many skeptical questions from lawmakers on both sides of the aisle. And both committees are continuing their consideration of the law this week. So now there is reason to hope that at least some of the law’s most worrisome provisions will at least be slowed down and perhaps moderated, if not defeated outright.

I would like to close by quoting two pertinent speeches that were made close to your campus, here in Pennsylvania–one just yesterday, and the other more than a century ago. The more recent speech was by Pennsylvania’s Governor, Tom Ridge, who is now stepping into an important new role as our nation’s Director of Homeland Security. Coincidentally, as I was traveling here this morning, I read the report in today’s New York Times ¹¹ about the farewell speech Governor Ridge delivered to the Pennsylvania state legislature yesterday. These were Governor Ridge’s first public comments since President Bush named him to his important new national position. Significantly, Governor Ridge warned against giving up basic freedoms in the name of safety. He noted that “Liberty is a precious gift,” and quoted another famous Pennsylvanian’s caution against pitting national security against personal liberty. In Governor Ridge’s words: “Ben Franklin once said that those that can give up essential liberties to purchase a little temporary safety deserve neither liberty nor safety.” Turning to one particularly pressing civil liberties concern in these dark days, Governor Ridge also criticized the post-9/11 harassment of people of Arab or Middle Eastern appearance in the strongest possible terms:

“All Americans are inheritors of a legacy of freedom and religious tolerance. To those Americans who would lash out at your fellow citizens simply because they worship differently or dress differently or look differently than you, there is a word for such behavior: terrorism. And it must stop.”

The second pertinent speech I would like to quote is one of the most famous in American history, originally delivered about thirty miles from here in Gettysburg, in 1863. Of course, I am referring to President Abraham Lincoln’s timeless “Gettysburg Address.” Since I was originally scheduled to come here to give this address on the day after the monstrous terrorist attacks, I thought of Lincoln’s address. It was, after all, a eulogy to the brave young people who had died so close to here, fighting for our country’s founding ideals of liberty and justice for all–the very ideals that the 9/11 terrorists attacked, as President Bush said on that awful night.

We all have heard Lincoln’s moving memorial many times, but like all great words, they convey new meaning each time. And, in these sad times, I find they provide some consolation for the past, and much inspiration for the future. So I would like to share just one brief passage that I think applies fully to the many men and women who were killed on September 11, martyred to our noble national ideals. Lincoln’s immortal words guide all of us toward providing some form of immortality for all of them, precisely by striving to preserve both our nation and our freedom. He said:

“It is for us the living . . . to be dedicated . . . to the unfinished work which they . . . have . . . so nobly advanced. [F]rom these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion–we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom.”

Endnotes

Note 1: This monograph is an edited version of the oral presentation that Nadine Strossen delivered at The Clarke Center on October 3, 2001, as the annual Constitution Address. Professor Strossen had been scheduled to deliver the Constitution Address on September 12, 2001, on the topic of “The War on Drugs and the Resulting War on the Constitution.” In light of the terrorist attacks on September 11, Strossen’s address was postponed and the topic changed. Back.

Note 2: President of the American Civil Liberties Union (“ACLU”) and Professor of Law, New York Law School. For research assistance with this piece, Professor Strossen gratefully acknowledges her Chief Aide, Amy Fallon (NYLS ‘03). Back.

Note 3: Dickinson College Responds to Terrorist Crisis on Many Fronts, ASCRIBE NEWSWIRE, September 28, 2001. Back.

Note 4: Nadine Strossen, DEFENDING PORNOGRAPHY: FREE SPEECH, SEX, AND THE FIGHT FOR WOMEN’S RIGHTS (New York University Press 2000). Back.

Note 5: Dennis Roddy, A Hot Fire Can Consume Anything, PITTSBURGH POST-GAZETTE, March 24, 2001, at D-1. Back.

Note 6: R.C. Sproul Jr., “If you Can Keep It” www.gospel.com.net/hsc/ETC/Volume_Three/Issue_Two. Back.

Note 7: The Federalist No. 48 (James Madison). Back.

Note 8: Furman v. Georgia, 408 U.S. 238, 371 (1972) (Thomas, C concurring). Back.

Note 9: See generally www.aclu.org Back.

Note 10: Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 686 (O’Connor, S., Dissenting) Back.

Note 11: Iver Peterson, In Stepping Down, Governor Is Stepping Up to New Plate, NEW YORK TIMES, Oct. 2, 2001, at A-17. Back.