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Threats to Civil Libertiesrecording...
Transcription by Jung Kim · Introduction, speech and Q&A. Rough transcript.


At the begining, what I hope and pray will be a happy year of an extended political discussion on this campus and in this country about our future directions in which I pray and hope we will address the issues that press upon us in very serious ways. And I hope and pray we will engage on this campus and as a society in serious ways. It is possible however that instead, at least on the national front, we enter the silly season in which we will be tempted to forget our principles and our way of debating and not trust others or ourselves.


The founders of this country had a different view in mind. It is a view that is made as clearly as they can possibly make it in the most... in the starting place where they could make it, article one, in the bill of rights. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or bridging the freedom of speech, or of the press, or of the people, or the right of the people, peaceably, to assemble, or to petition the government for redress of grievances.


Our founders believed as fundamentally and stated as clearly as they possibly could that the people must be trusted to argue and engage their interests and their views. And that out of that engagement would come the best possible solution. That is the genius of democracy and the faith of this country. That we as a people needn't be and shouldn't be overly protected and that in our efforts to protect ourselves were the greatest of possible dangers. This is a testament to democracy in its purest form. Even when and particularly when it is in its hardest form.


One organization in this country, in my personal view, stands for this principle above all others. It is the American Civil Liberties Union and its national executive director, Anthony Romero, is with us today. Very quickly, (applause)... (inaudible)... Anthony took the helm of the American Civil Liberties Union in September 2001, a week before the attacks on the world trade center and the pentagon... (inaudible)


Anthony is an attorney with a history of public interest activism who has presided over, already, one of the most successful drives of the ACLU's 82 year history. In his first year, bringing in 75,000 new members, he is the ACLU's first latino and openly gay executive director. He came to the organization from the Ford Foundation of Human Rights and International Cooperation program, where he and I first got to know each other. He led that program through extraordinary growth, and as director of that program, channeled approximately $90 million dollars in grants to civil rights, human rights, and peace projects.


He's also worked previously for the Ford Foundation and the Rockefeller foundation. A native of New York City, of Puerto Rican ancestry, a graduate of Stanford University Law School and the Princeton University Woodrow Wilson school. He has been a visiting scholar at Stanford and at Princeton. It is my personal pleasure and delight to welcome Anthony to Amherst College. (applause)



Perhaps the only time when Attorney General John Ashcroft and I share something of the same sentiments is when I see that folks turn to the official bio on the website and begin to read from it. That's when I get anxious and I want to pull the plug on the speaker. (laughter) In all seriousness, it is terrific to be here with President Marx, who is a dear friend. When he first wrote to me and invited me to come address you at Amherst, I merely pulled it out of the inbox and said, "I have to do this. He's a good guy. He's a man I often admired and we shared a lot of good times together working on various projects. He did terrific work on races in the US and South Africa and elsewhere, it's a chance...


I'm starting to pull the plug here...



OK (laughter) But I was glad to cross paths with you then and I'm glad to be back here today. I just wanted to say one thing. I have prepared for you a formal talk. Those of you who feel like you won't get your money's worth at the end of this lecture, you should e-mail me and I will send you a great speech that I won't give, OK? And hopefully it will be historical and it'll make you laugh, it'll make you cry, it can also put you to sleep, but I will send it to you. And you can look at it at some later point.


I thought much rather, what I'd like to do, given the fact that you are all in this room and seem to be already very much engaged, would be to just talk more off the cuff on what's happening the country, the way that we see at the ACLU, give you some initial framework on what's happening in this country in the aftermath of 9-11. And then, to reserve ample time for taking your questions. Because that's really what I get the most out of these questions. And so, with that bargain in mind, if you still are unsatisfied and you feel like this wasn't a good (inaudible). But hopefully, we'll have a much different dialogue which you'll remember much more than any kind of dry remarks I could have made.


Now, I began with a very simple premise that what happened on 9-11 fundamentally changed the character of the country and the character of American politics. That no one can argue that the events of that day fundamentally transformed the way that this country views itself. And the way that this country views foreign events. That no longer could we ever imagine a scenario whereby this country was going to be immune from the furies of foreign events. That it made very clear that day, the connections between the domestic and the international. And that those efforts would come home to affect Americans in their livelihoods, in their communities in ways that no one had really imagined before.


You can also begin with the premise that what happened on 9-11 was truly a national tragedy. We had almost 3000 civilians who were just going around in their everyday business, brutally murdered by the front of our eyes. Many of us were watching from our television sets from our homes. Or I, from my apartment just about 20 blocks away from the World Trade Center site. And that tragedy of that morning must never be underestimated. That challenge for our law enforcement officials must never be underestimated. Because our law enforcement officials do have an affirmative obligation to protect us from harm. And to ensure that they do so and to ensure that that great event of 9-11 never be repeated as best as they can. And they must do so with all of their abilities, but this where we part comments and arguments of law enforcement on the administration... But they must do so in a way that comports with the best of American values and principles.


And you had better remind ourselves and the American public, not only what it is that you are fighting against, but what it is that you are fighting for. You've got to remind ourselves and our president and our attorney general that there are certain core values that have to be as much a part of this war on terror as it is about preventing the next terrorist attack. That you've got to remember that core principles, like democracy, like due-process, like rights, like your innocence until proven guilty, all of those core principles have certain meanings which have to accrue to us, even as we do our best to fight this war on terror.


And you will recall that initially, there was much to be hopeful about and initially, and this is where you go back and you see the first initial public statement from President Bush and others, they were saying things that the ACLU agreed with. That initially the president would speak at the national islamic center, and would clearly say that we must turn our Muslim and Arab and Asian friends and neighbors and co-workers (inaudible). And that was terrific. That was a welcome departure from previous wartime presidents, many of whom had succumbed to the fury of xenophobia and the pressures of the time. This president had at least started out saying the right thing.


This president also started out by saying that we must not ever allow the core freedoms that bind this country to fall short. No matter what happens long term, he was clear about saying that freedom was an opportunity, to use a (inaudible) statue of liberty as a beacon to countries and individuals across this world. And in those early days the ACLU largely agreed with the statements coming out of the White House and the President of the United States.


But then things changed. And many of us, even though we had heard those initial statements from the president, thought that something else would unfold in the coming months and the coming years. And the reason why we thought that was not because we are inherently suspicious individuals, although some of us are with presidents like President Marx. (laughter) But those of us who are questioning these statements the president made remembered our history lessons. And we knew that after the first world war, a war that was of enormous popularity in this country, that there were also a series of politically motivated bombings that went off in 33 cities all across this country.


And that one bomb even went off on a doorstep of a man who was attorney general at that time, a man called Mitchell Palmer. And Palmer, concerned about the security and the safety of his family, unleashed the full fury of the federal bureau of investigation on to immigrants in this country. They arrested and detained more than 5000 immigrants, denied them due process, (inaudible) police brutality, kept them incarcerated for long periods of time and ultimately deported most of the 5000 individuals they arrested and detained. In charge of those investigations was none other than a very young and a very energetic and a very ambitious, J. Edgar Hoover, who you might remember.


And then we see saw that the government was focusing its energies on the immigrants who were tied to this rising international force overseas. Remember that just the year before in 1917, you have the Bolshevik revolution which fundamentally challenged every aspect of American ideology and its history, that we saw the rise of this global power, we thought, that would challenge us as a country. We saw this bulging immigrant population pouring into the nation's cities across the Eastern shore. You saw the union movement that was beginning to become radicalized if not sometimes vile. And then you have these 33 bombs. And they arrested and detained the enemy within. The 5000 were Germans. They were Poles. They were Eastern Europeans. They were Russians. The individuals were largely of Jewish religion and what you sat at that time was the beginning of the fuels and the fires (inaudible) seeing immigrants as potential enemies within the country.


It was precisely at that time that a small band of individuals not too much older than yourselves said that they must be able to create a force to stand up to the government. That they had to create a permanent institution to ensure that this will never repeat itself in American history. In 1918 (inaudible) Roger Baldwin and Crystal Eastman and Jane Addams (inaudible) founded the National Civil Liberties Bureau which came back to two years to be renamed to the ACLU.


So it is precisely out of that crucible that the ACLU was forged as an organization. And so when 9-11 hit, and we heard the president say we're not going to turn our muslim neighbors into the enemy and that we had to respect freedom and we had to respect tolerance. We were concerned because we knew that our history had taught us from other periods in American history when precisely the concerns of our national security (inaudible) process rights.


You fast forward then to another chapter in American history, during the 1940s, when you had to get another noble war that was being fought against the Nazis and the Axis in Europe. And at that time you had the fears that grip us, especially along the western coast of the United States, where one of the great liberal giants of American Democracy, FDR, authorized the internment of 150,000 Japanese Americans. Two-thirds of whom were American citizens. Two-thirds of them... They were taken from their homes. They were not granted any form of due process at all. They were put in internment camps, also native american reservations for the duration of the war. And everyone thought, at least in the political establishment, this was a necessary accommodation to insure the war in Europe.


And there were only a handful of individuals who really had the courage to stand up for America's convictions and say that was wrong. You had the three greatest names of American liberalism all ratified the internment of Japanese Americans. You had, of course, FDR who signed the executive order. You had Hugo Black who was on the US Supreme Court. And you had Earl Warren who was then state attorney general of California. You had three of the greatest names in American liberalism who all believed that internment was just and necessary. And then of course, it was our own supreme court that in 1944 in a 6 to 3 vote, sided on the side of fear and prejudice against some of the core protections of the constitution and ratify the internment of Japanese Americans. In the Supreme Court case of Korematsu, a case brought by the ACLU at that time which we brought all the way up to the supreme court and lost. But we ended up on the right side of history.


So when 9-11 hit, we really understood the Palmer raids, the Japanese-American internment. We also knew what happened during the Vietnam war where once again you saw protest and (inaudible) shut down precisely when it mattered most. And so we were braced for what would surely come over the next two years as an erosion of core due process rights. And the list of what's happened in the country and what's happened to our laws and regulations and policies and procedures would be too long for me to enumerate for you even in this short that we've got together.


But let me give you five ways, five categories, by which you can view all of these different ways and policies and procedures that they've hacked. We begin one with the idea that free speech and the ability to express one's mind is critical now more than ever. At a time when so much is at stake, you have core principles that are the heart of the American democratic experiment of what are our due process rights, that you want to make sure you have as robust an exchange of ideas, you want to make sure that the marketplace of ideas is as full and as energetic and as vigorous we'd like.


And unfortunately in the past two years, you have seen many instances government efforts to shut down precisely that debate when it matters most. And you can begin with first remembering what happened with many of the anti-war protesters, when many individuals tried to march against the war in iraq, what difficulties they encountered in getting permits to have those protesters. Even in large cities like New York City where the march protesters tried to get a permit to march up the first avenue of the United Nations and they were denied that permit because it was "a security risk." And the ACLU brought that case on behalf of those protesters, and we lost, we lost that too because the court granted great deference to the New York City Police Department in being able to make determinations about what would keep the greatest public safety on that march.


Ultimately, you saw the individuals ended up marching up first avenue because there were too many individuals anyway. It was really quite heartwarming for those of us who were out there. No matter what rule or regulation, no matter whatever permit to grant or not grant the individuals out there, there were too many people to keep them stationary (inaudible) a three block radius right outside the designated zone. You have another example of shutting down free speech, one that hasn't been given concern (inaudible) is that you have a pattern of practice of the secret service corralling individuals who are critical of the president, in what they call "free speech zones." (laughter) Far away from (inaudible), far away from the president, far away from the (inaudible).


And this is remarkable. This is the story of how it evolved in the ACLU, it shows you how the ACLU operates. We have the Cleveland director of the ACLU, first saw this happening in Cleveland, and our internal list serv said this is what happened, the president should appear, does anyone have any ideas or suggestions? And immediately pops up a response from someone from Pittsburgh who works in the ACLU that the same thing happened in Pittsburgh. And there was another one that popped up across the west coast. That the same thing happened in a presidential appearance on the west coast. And all of a sudden on the list serv you would see this pattern of practice of the secret service trying to protect the president, not from harm, but to protect them from criticism. And frankly that's not the job of the secret service. Yet, you can take someone who is holding up a sign saying President Bush and John Ashcroft's agenda is antithetical to civil liberties. And you've corralled them away, far away from the campus, but if you hold a sign saying "We love ya, George Dubya," you get to smile for your close up or appear on a TV show or a news magazine. It's just completely antithetical to the American experiment, the American way of life. And you have instances, and this is for the college students (inaudible) some of the college students. One of the fellows, Alex, asked me, "How do you make sure that this issue comes alive for people (inaudible).


There's a young woman in North Carolina who was giving a rowdy keg party one night. I'm sure none of you have ever attended those. And the police came out to her dorm room... came down to her dorm, and told her to turn down the music (inaudible). The next day she was visited by the secret service and they came to her room, and said, "we understand you have some anti-Bush propaganda on your wall." And she merely had a poster right opposite her front door that showed a picture of George Bush making a statement about his position on the death penalty. There are obviously some other (inaudible). And that was apparently enough for them to call the secret service on her and have her be interviewed by the secret service. They requested to come into her apartment to conduct a search. She luckily called her mother who was involved with the ACLU (laughter) (inaudible) She told her, "Don't let them in, don't let them in to your apartment" and at the very end of the interview, they asked her, "Do you have any more pro-Taliban stuff?"


Now, there are other instances just like this one and they are (inaudible) tell you about. And although those instances of the march, of the protesters, of individuals who are corralled into free speech zones, of this college student who gets visited by the secret service. Each one in their own right do not amount at all to the level of scrutiny and government shutting down (inaudible) during Vietnam war during the McCarthy era. It does not compare. I don't want to make these comparisons that are overstated. But what they are for me are, these are the canaries in the coal mine. When you bring them, in mining culture, you bring a canary into a mine shaft. Because if the canary stops singing, then you realize the oxygen's gone too thin for life. You've got to evacuate the mine shaft.


And when you begin to shut down the (inaudible) debate precisely like the government has done in several instances. These are the beginnings of the canaries in the coal mines that have stopped singing and we've got to be concerned here.


Question number two. You begin with the premise that a government of the people, by the people, and for the people has to be visible too. That it's a clear necessity to make sure that in order that the public exercise its power overseeing the actions of the government. He needs to know what the government's doing, how and when to protect itself. And much of what's happening in the war on terror is the government has insisted that to reel any information on how it's (inaudible) in the war on terror, would jeopardize that war on terror. The prosecution war on terror. That they argue that to reel, for instance, the names of hundreds of immigrants who were detained in the aftermath of 9-11 would tip the hand to the Al Qaeda. Now none of the individuals to our knowledge has ever been charged with any connection at all to the terrorist attacks on 9-11.


You saw the government summarily close every single bit of every single deportation hearing held after 9-11 that was closed to members of the press, closed to members of the public, closed to members of congress, closed even to family members. That even if you were a U.S. citizen and your husband or your wife was a permanent resident and they found themselves in a deportation hearing that you would not have the right to attend the deportation hearing. And again our key clients in these cases were the newspapers because we argued this case on first amendment grounds. That the press has the right to cover the news, because the public has a right to know. It's very simple, the arguments were very simple. We were not saying, Oh, open up all the deportation hearings to all members of the press and public, we were arguing let judges judge. Let judges judge on a case by case, fact by fact basis. What part of what hearings are open and what part of what hearings are closed.


Whether the (inaudible) closing of all of these proceedings was completely (inaudible). So a government dedicated to transparency and accountability and scrutiny of government actions. You look at that and you also see the fact that this president and this attorney general in fact, has even resisted Congress' request for information, about how they have used some of the powers they have taken for themselves in the aftermath of 9-11. Where even in efforts that are prescribed by the (inaudible) and report to Congress on the number of times they abused certain powers or the number of individuals that began, they began an investigation upon. Or the number of individuals in arrest (inaudible). They have summarily refused to release such information even to members of Congress. So when you couple (inaudible) and the lack of information, you begin to worry about how this function in democracy plays out.


Number Three. You began with a core commitment to due process rights and no matter what, everyone is entitled to due process rights. That even the accused and especially the accused are entitled to due process rights. That no person, no one politician, no one president must ever have the power to summarily restrict and rescind the protections of the Bill of Rights of the Constitution. And that is not how it works in America. And that amazingly enough, you have instances where the government insists that it must take on to itself a power which no president has had before. You have right now, this day, you have the instance of this government taking on American citizens on American soil not charging them with any crime at all, not even a (inaudible), no crime at all (inaudible) they had Chicago O'Hare airport and the government has insisted that legal papers before federal courts, all the way up to the supreme courts which will now hear this case next month that they need not charge him with a crime and that as a matter of policy, he need not be granted access to his lawyer. And they've given him access to his lawyer as a courtesy, but as a matter of policy, that he does not the right to refer to his counsel. Now we find that completely unacceptable because the only thing that gives you the (inaudible) to know... if you walk out of this room and you go back to your dorms, and the only thing (inaudible) you'll be able to talk to your parents or talk to your loved ones or talk to your boyfriends and girlfriends, and know that you won't be subject to arbitrary arrest and detention because there are certain core protections in the bill of rights that no one can suspend. That you have a right to confront your accusers. That you're innocent until proven guilty. That you have a right to review and rebut the evidence they might use in a court of law. And that all of those protections will attach to each of us, no matter who we are, and no matter what we've done.


And that is clearly unsustainable to say and the case of Mr. (inaudible) arrested at the Chicago O'Hare airport, that he can be held on a mere declaration signed by some old (inaudible) at the Defense Department saying that he is "an (inaudible)" and that the government need not do anything more to detain him for that period of time. That is completely unacceptable. The same argument we make and that (inaudible) case in Guantanamo. And on the one hand you have the government insist that the 600 plus men held in Guantanamo are not entitled to protections of international law under the Geneva Convention. That they are not prisoners of war because they are not soldiers of the state. And they say that no international law applies. And by the same token, and by the same side of their mouth, they argue that domestic law does not apply. And that the constitution does not apply.


And our argument is very simple here as well. That the government and the president cannot create an island outside of law where rights are denied. That you cannot say that these men have no rights of international law and they have no right to domestic law. You got to have one or the other. (laughter) And that argument implies (inaudible) any court establishment here or overseas. And that by doing so, he is not only assured (inaudible) policy in terms of due process rights, it also puts our own soldiers at risk. Because the only thing that allows our men and women in uniform to know that they will be allowed access to some international mechanism when they're captured (inaudible) overseas. (inaudible) Geneva convention there to protect them. And that even under Operation Desert Storm, the last time this country went to war in the middle east, you had 1196 individuals who were arrested and detained by U.S. military. And they had hearings under the Geneva convention and 310 were considered to be prisoners of war where are the remaining 900 or so were displaced civilians or refugees that the government had wrongfully incarcerated at that time.


Now how can we be sure that the government has made the same set of mistakes as the men in Guantanamo and don't they deserve some form of due process rights? The four areas of concern. (inaudible) I think a very simple... it's a system of checks and balances. That most importantly right now, that you've got to make sure that in three branches of government serve as a check on each other. That the war on terror cannot be prosecuted only by one branch of government with the exclusion of the other two branches. You want to make sure that there's judicial review of executive branch action. That there's congressional authorization of executive branch action. And that the three branches must work in concert in tandem or in conflict with each other. And what you find remarkable is that throughout the last few years has been a consistent argument from this administration that there need not be any judicial review. That in fact, you just have to trust the president. That judicial review would only get in the way in the war on terror. Only tip the hand to the terrorist groups.


You will find in parts of the USA Patriot Act, a 346 page piece of legislation, that was enacted 45 days after 9-11, 45 days, when very few members of Congress had the time or the energy to review or understand what was in that bill. And as the ACLU furiously tried to lobby members of Congress, asking them to ask the questions of the administration and the attorney general. The attorney general using the national tragedy to hold the sword of Damocles over the heads of Congress saying "Unless you give me these powers, additional blood of Americans might be on your hands." And so effectively, he shut them all up from asking them to discharge their responsibilities and their duties. And that you ask them all in private, well, after they (inaudible), raise these questions, raising these questions about the Patriot Act would be un-American or un-patriotic. And to do so is not appropriate to this time, stand behind the president, and so they signed it to law, a piece of legislation, that very few of them fully understood. And when you look through that law, that consistent themes that run across the entire law, is the erosion of judicial review. A concern about the role of the judiciary, play an essential checks and balance on the actions of the executive.


I'll give you one set of examples. In that law, there is a provision that allows the government to seize your library records, your personal records, your employment records, your school records with something much less than probable cause. And merely on the government's (inaudible) that it's necessary for a terrorist investigation. And it makes it a crime, if that librarian or if that president of the university were to tell you that they came looking for your record. It has lowered the standard of judicial review to such a low standard, almost making judicial review (inaudible). This is section two-fifteen of the Patriot Act. (inaudible) There is nothing from the Patriot act, read this particular section, you can look at specifically at this analysis of this section. For me, this is the most dangerous section of the Patriot Act.


And the idea that all of your personal could be accessed to be reviewed with much less than probable cause and with only a rubber stamp from judiciary should really trouble us. Not because they might be (inaudible) they might be using it right now, but who knows how they might use these powers in the future. There's another section of the Patriot Act which they call (inaudible) which we call the "sneak-a-peek" provision of the Patriot Act which they call the late notice searches that allow the government to come into your homes, your dorm rooms, or your cars, search your personal effects and not tell you about that search until after the fact sometimes months after the fact.


So now many ask, now why should that be a concern to us? That sometimes under previous investigations, organized crime or for contraband, you sometimes have had the ability to go in and to plant a device, a listening device, and not tell anyone or do a secret search. What's different about this is that it is not limited to questions around drugs or organized crime. This power extends to any and all criminal investigations. So even if it's to the point of lying on your taxes, or certain traffic violations, that are crimes, the government would have the ability to come into your home and search your dorm room, and not tell you until months later.


Now most of the American public and I'm sure most of you thought that the Patriot Act was focused on terrorism, was focused on fighting the war on terror. That it was America's response to what happened on 9-11. Most of the American public do not understand that these expansive powers have been granted, that have much more to do than just terrorism. And that affects the lives of each of us who ultimately might find ourselves under the scrutiny of the government.


A final set of concerns and I'll take your questions is a question around dissent and debate. That this is the flip side to free speech, the right for one to express themselves. You got to want to be much clearer about the fact that if you are critical of the government on these set of issues, that there are certain repercussions the government has set, that you might fall back upon. And here I will be, I will quote you directly from the words of our attorney general that only two months after the terrorist attacks of September 11, had the audacity to stand before the senate judiciary committee and basically say, "You're with me or against me." "For those who conjure up the phantoms of liberties," these are direct quotes, "To give ammunition to America's enemies, aid to the terrorists, and you give (inaudible) to her (inaudible)." Now that was astonishing. (inaudible) you took your country's highest ranking law enforcement official, you took an oath to uphold the constitution, you had the temerity to say, "You're either with me or against me" is truly one of the most discouraging moments in this whole crisis, was not just that the attorney general made those statements, but was that the senators on the judiciary committee did not have the courage of America's convictions, to stand up and say, "Wait a minute, Mr. Ashcroft, you're the one whose (inaudible) doesn't want to be questioned, you're the one who ought to be brought in (inaudible). How dare you question those who question." And that is part of the American political experiment. And like it or not, that's what makes this a great nation, ruled by laws, and not by men. How dare you. And it's precisely that same tenor that is played out from that first moment that you see all across the administration for the last two years. From statements from the president who continues to assert (inaudible) all the powers (inaudible) in the aftermath of 9-11. And rebuts any criticism, that's not at all (inaudible) for what just happened.


Even when you have justice department reports like the one that came out from the inspector general from the justice department itself, criticizing the haphazard and indiscriminate way, those were their words, they treated immigrants. That the justice department's very own inspector general criticized the actions of the administration. They said "We have no regrets. We make no apology." And it's the shutting down of that precise set of concerns (inaudible) where the individuals who have a different point of view who are not just not granted permits or not allowed to march, but who are actively criticized by the government. (inaudible)


Now I leave you with these words, now I don't want to leave you with a sense of (inaudible) and sadness. I am always an optimist, you have to be in order to this work, in order to this, you have to wake up an optimist. There is progress (inaudible). There is remarkable bubbling of energy and of questions and of commissions and committees and citizens and immigrants. They're asking the tough questions now. You have now more than 260 local communities who have passed resolutions saying that the Partiot Act went too far too fast. I think one was passed here at Amherst (inaudible). We have more than 260 similar resolutions which are just terrific in terms of what changes are coming. You have 3 state-wide resolutions in Alaska, Hawaii, and Vermont that have the power of being able to constrain their local police departments. What is truly remarkable about those resolutions we have been actively fermenting and doing our best to get them enacted and helping local activists elsewhere is that that says to Mr. Ashcroft very clearly, is that we beg to differ. And that we have the right and we have the responsibility.


What's remarkable is that you also have criticism coming from within the Republican party itself. And this is where I tell you, this is not a partisan agenda, the ACLU has never endorsed or opposed any candidate for any political office. Never done it in over 84 years, never will. This is not about who the president, but what the constitution is. And what's remarkable is that we have (inaudible) from within the Republican party who are raising precisely these concerns (inaudible) helping demonstrate the fact this cuts across political lines and political ideologies. Working with the ACLU, and I was saying this to students before, you have none other than Congressman Bob Barr, a Republican from Georgia, on our retainer. He is the man who let the impeachment process against President Clinton. He is the author of the Defense of Marriage Act, a law that would deny gays and lesbians the right to marry across the country. He has been an opponent (inaudible) affirmative action unit with many issues.


But on this set of issues, we coincide. And keep (inaudible) who helping make this point about how the erosion of civil liberties cuts across partisan lines in ways that are really problematic. Now for those of you who question the importance of looking across the liberal and conservative spectrums. For those of you who question why should you or should you not invite Justice Scalia or Anthony Romero. You've got to remember my first point, too, this is all about the exchange of ideas in the marketplace of ideas, and you can't put people into simple boxes just because you're a conservative justice or a conservative congressman or liberal activist. That sometimes these strange bedfellows (inaudible) core principles do emerge. And you want to be able to keep the tires on those core assumptions to make sure you understand what's best (inaudible). That's my public service advertisement. The last cause (inaudible) are folks like you in this room. Because I know that no matter what happens in this country, no matter what happens in these three supreme court cases will be argued on the case of Mr. H--- and Mr. P--- that I mentioned to you earlier on the case of Guantanamo. No matter what happens in the courts, no matter what happens with congressional deliberations on the Patriot Act, I am confident that with people in this country who engage this debate, that we will be all the better for it.


And I often remind my colleagues at the office, they think I'm a little, I'm a student of political science and history, so I love my history, and so I remind my colleagues that whenever they get down, whenever they get very depressed, which is more often than we'd like, I remind them about the importance of thinking through not just the backlashes that ensued after 9-11 and the transformative nature of that event, I asked them to think about the transformative nature of 1776, 1791, the Declaration of the Independence, and the ratification of the Bill of Rights, and the signing of the Constitution, core periods, core moments in our history, that this country stood clearly on what were the values that would be defined. And that when we remind ourselves, what the word "terrorism" means, it not only means death and destruction, it also means intimidation, it also means forcing a people to take actions which are not in their best interests. And if you erode those basic principles, those founding doctrines, then you will do much more harm than any terrorist could to this country. And that's why it falls on us to make sure it never happens.


I look forward to your questions, and I spoke for much longer than I would've thought but I'm sorry... (applause) Who's the first brave person to ask a question? Yeah, what's your name?




Russell. Hi, I'm Anthony.


I know the ACLU has come out against McCain-Feingold because of the principles of free speech in the constitution, but I also know that the ACLU also thinks that the constitution is in many ways a counter(inaudible) document and part of the fear of money and politics is that it will be used to silence dissenting points of view. So I'm wondering what kinds of reforms the ACLU sees in the area of campaign finance, public financing.


May I go back to... what we have to do a better job of is that we've been... people have been very clear about what the ACLU has opposed and I've been telling my colleagues and my board and myself that we've got to be clear about what it is we are opposing. And for me, public financing is the best way for making sure that you try to root out the corruption that is endemic in the political process. We don't argue the fact that something is fundamentally broken and the way that we elect our government officials, and the influence of power and money on individuals who should be beholden upon the whole public, and not just the wealthy (inaudible). Where we take a different point of view is what's the remedy? And for us, the remedy is public financing.


If you go back, if you look at the history books again, (inaudible) you go back and look at the early 20th century, private political parties, individual political parties were once responsible for the printing of the ballots. Each party was once responsible for printing ballots that were actually used in casting the vote. And that at one point, the government took that power from the individual parties as they said, "This is open for abuse and manipulation that we cannot counter." The butterfly ballot of the early 20th century. And just as government at that point took the responsibility and invested the resources of printing the ballots, I think it's essential for us now to take the next step and ensure that there's public financing for candidates that will allow them to equalize the playing field. That most often what the research has shown and what we've looked at, shows that it's not as much about how necessarily has money, there's a certain critical mass in resources you need to make a campaign viable, and that at that level, the body politic should assume responsibility for putting up those candidates into the political stream.


Now just a word for those of you who follow it, I am tied in knots at this very moment about how I can run radio and broadcast ads that talk about civil liberties in the middle of this election. I have a twenty-two page memo from a lawyer who has charged us tens of thousands of dollars, the best (inaudible) lawyer in the country, trying to give me some guide post as to how it is I can run an ad, broadcast or radio ad, to talk to students, talk to (inaudible), talk to the public. And I still don't have a clear answer. And what is absolutely remarkable is that if the first amendment doesn't stand for anything, it should stand for the ability for an organization like the ACLU to run an ad about civil liberties in the middle of an election. (inaudible) And what is remarkable is that we have completed tied our knickers in a twist in an effort to try and come up with an appropriate remedy, and we have a remedy that really put organizations through (inaudible) that if I authorize these ads, I risk personally, I risk criminal sanction. I can be criminally prosecuted. That the ACLU can lose its tax deductibiles, that we can be all, the full fury of the federal government fall on our heads. And you can imagine, after just giving the talk I have just given you, where I've obviously made some notable enemies at very high levels in the country, I might think twice about consciously picking a fight and exposing the ACLU to a new battle that I'm not we can win. And where most liberals, and this is where I'm critical of liberals, and just as critical with some conservatives and some Republicans, some liberals refuse to focus on was the remedy.


We all agreed that the problem was there. Now what was the solution to that problem? And clearly this new campaign finance legislation does more harm than good. Anyway, that's (inaudible) question. You there (inaudible) in the back, what's your name?


My name is Sarah.


Are you a student here?


No, I'm not. I go to the University of Massachusetts. I was wondering (inaudible) Bush has made statements, something along the lines of "God told me to" (inaudible) The existence of the constitution as a (inuadible) act. He said something along the lines of "every religion is opposed to gay marriage" and something like that. He's obviously a very Christian man, but I don't think that he's (inaudible) he's kind of extreme (inaudible).



Well, we're very troubled by this whole development. The last especially, the last (inaudible) twenty years, you've seen an emergence of Christian organizations especially as political forces in American political life. This should trouble us. Not because of what they stand for that's necessarily good or bad, that's not the judgment we make on them. The judgment we make on it is simply that in a country as diverse as this one, where there is no official religion, where there are multiple religions that exist every day by all sorts of individuals from all walks of life, that the only way to preserve this (inaudible) religious (inaudible) in this country, is to make sure you don't have government entanglement or the establishment of religion in any sense of the word. And that's how we come at it, we don't come at it because we believe these values or these issues that are approached are inherently wrong. We just don't believe they belong in public life. They will do much more harm in a country where this, we have this diversity of viewpoints.


And clearly what you find over the last four years or so is this emergence of government funded religion. Where the gun is pointed directly into the (inaudible) of this organization. Taxpayer money that is just antithetical to civil rights law protections and civil liberties concerns. That you have, for instance, in Louisiana, you have an abstinence only sex education class that is fully federally funded. And in that fully funded abstinence only sex education class, the kids are taught to abstain from sex and to turn to Christ, to walk to the Lord. And I'm sorry but that is not what our taxpayer dollars should be spent on.


Now you have similarly, the carving out of federal civil rights protections at the state and federal level that would normally attach to organizations or agencies where now because of religious organizations would say "we have our conscience to follow." And so this conscience clause allows us to deny access to groups or certain individuals certain benefits or certain treatments. And it plays out in places where some federal funded or state funded hospitals refused to perform certain abortion services or certain health services. Even if clinics fully funded by the government. Or you have an instance of a young woman who is a social worker for Baptist homes, for foster kids. And she works with at-risk teenage boys who loved her, and she went to a state fair and someone photographed her walking hand-in-hand with her partner, a woman, and her picture then was posted up at the state fair, she was fired from her job. And I'm sorry, (inaudible) shouldn't, they said that the reason for her being fired from her job is that being a lesbian, she would set the wrong example in a Baptist home for foster kids, and that might very well be but you can't believe that.


You can't believe that with federal taxpayer money. You can't believe that with taxpayer money. You can believe that with your own private personal money, but you can't use public money. And you have either the administration had lost in Congress a major battle on government funded religion where they tried to push through the so-called (inaudible) program and Congress rendered it moot and decided not to grant the president that legislation (inaudible). And yet the president created the White House office on faith-based initiatives. That there are ways they are channelling administratively the resources directly into religious congregations. Pat Robertson's Operation Blessed received 500,000 dollars directly from this white house office on faith based initiatives.





We are looking into that. There are obviously, he's peeking between different religions. That's equally (inaudible). But these should all concern us not because what they may or may not be doing is good or bad. It's just not the role of the government to get involved in (inaudible) and we'll go down this path and we will regret it. In fact, the pledge of allegiance case, it was not the case that we never (inaudible) this case, but this was a case that we ultimately filed under very strong (inaudible) in the Supreme Court. And ultimately, the Supreme Court has a very tough job to decide. On the one hand, they get to decide the words "under God" mean something which means it then gets very hard to swear back with an understanding that the first amendment of the establishment (inaudible). Or they can say that the words "under God" mean nothing. Which won't make many of the conservatives or the individuals in the religious belt of the country very happy either. And so we argue as we argued in our brief, that the words "under God" mean nothing (inaudible).


Let's say one day it's "under God," the next day it's "under Allah," the next day it will be "under (inaudible)", the next day it will be "under Buddha," the next day it will be "under no God." In the less (inaudible) picture it means not (inaudible) and you read our (inaudible) I really (inaudible) to read our (inaudible) public (inaudible) public domain. We read about the history of how the pledge of allegiance actually evolved. "Under God" is placed into the Pledge of Allegiance in the 1950s. At the height of the McCarthy period when they were using Christianity, in particular religion, as a way to further the division between those who were suspect and those who were loyal. And that the initial pledge of allegiance, I swear to you, this was a document in the brief, was to put your left hand over your heart and your right hand palm up, and that they dropped that part of the pledge of allegiance in 1940s (inaudible) (laughter)


And there's a great Freudian slip that I just can't help but say (inaudible) OK. (laughter) There's a justice, there's a justice. I think it was Justice Stevens, who at this oral argument said, when you say, when you're reciting the prayer, oh, I mean the pledge of allegiance, (inaudible) (laughter). Any other lawyer would say, "Your honor, I rest my case." (laughter) I've got another question, what's your name?




And you're a student here, David?




And what year are you?


I'm a sophomore.




Well, I was wondering, I've written a lot in support of civil liberties and the ACLU so I don't ask this question antagonistically. I hear what you have to say today, I agree so much with it, but then you turn on the (inaudible) 9-11 commission and you understand it, but at the end of the day, the lawmakers must be able to look parents in the eye and say, "We did all we could to prevent the terrorist attack, but your son and daughter still died." So how do you balance the pursuit of civil liberties and the protection, at the end of the day, and you know, having the confidence to say we've done all we've can. And how do you, as someone who's so supportive of civil liberties, swear that and (inaudible) and prevent (inaudible) that could save lives.


That's a great question. And it's not at all (inaudible) it's the right question. It's the one that keeps me up at night. Because obviously we have a responsibility to the ACLU and our members (inaudible) public good. And we have been trying very hard to strike an appropriate balance.


We have not set, for instance, the (inaudible) impressions that we are against the entire Patriot Act. There are other groups who have called for the wholesale (inaudible) concerning the Patriot Act. There are even some presidential candidates who have called for the wholesale (inaudible) of the Patriot Act. We have not gone that far. There are things in the Patriot Act that we think are necessary and are good. Such as, greater resources for making sure that they are able to translate intelligence information that come from overseas offices (inaudible) headquarters. Questions around the training of FBI agents and law enforcement officers. The breaking down of the walls between the different parts of the government can argue with that. Who can not give (inaudible) to Mohammed A--- received in the mail, a month or two after the terrorist attacks (inaudible) who could not want a different change. We (inaudible) how to share that information (inaudible). And I think what's important here is to be very conscious in the (inaudible), and try to do our best specifically (inaudible) what parts of the act we find difficult, what parts of the act trouble us, and to the extent that we can talk about the Patriot Act, (inaudible) support we can get behind. There are parts of, there are pieces of the legislation that we supported in Congress due to precisely that and bring the Patriot Act back in line with the constitution. Doesn't (inaudible) reveal the Patriot Act that they are much more conscious (inaudible) than to begin with. That's on the people's side, now getting on the politics side I think what's important is to always keep in mind what happened that day. And I think one of the things we have refused to do, and I think the government's got criticism for this, (inaudible) long-standing ACLU member, is that we have consciously, I have consciously, from the beginning, consciously chose to wrap ourselves in the American flag.


And I'm not going to have anyone tell us that we are un-American or we're not patriotic. I have people tell me I sound nationalistic or I sound a little bit too patriotic and there will be parts of this country that (inaudible) absolutely astonishing. In my own personal life, the great American experiment worked in opening up doors for me in ways that I could never have imagined anywhere else. (inaudible) the countries Tony and I have traveled together (inaudible). And there are great parts of this American experiment that we have to hold up (inaudible). And there are people who suffered at the 9-11 tragedy who still believe (inaudible) and for instance, the one person who died closest to me, was a member of our board, who was a New York City cop, and he was helping people get out of the world trade center, voluntarily. And he gave his life because he thought there was no inherent conflict between being a New York City police officer than being an ACLU member (inaudible).


And I think about John P--- and how he managed that conflict in making sure that you strike the appropriate balance. When I look at his mother in the audience and how she turned out for my speech, I see her directing to the audience, it's an immediate reminder of human cost. There's a great quote of Chief Justice B--- out of Israel set a great supreme court precedent that (inaudible) oversees, there's some great analyses (inaudible) where Justice B--- said, "Even when democracies fight with one hand tied behind their back, they always have the upper-hand." And that brings (inaudible). OK, one or two more... When we say 'two' (inaudible) more so let's (inaudible) what's your name?




Hi, I'm Anthony. Do you go here or...?


I go to Mt. Holyoke.


I'm sorry?


Mt. Holyoke.


OK. (inaudible) Great.



This is kind of along the lines of (inaudible) question that was asked about (inaudible) government and separation of church and state. I was wondering if you could talk a little bit more about the gay rights movement that's going on right now, and I'm just so confused, I've been reading up on it so much that I'm wondering about what, marriage (inaudible) institution, but government is so involved in it, and (inaudible) religious sense, and how are you, how is the ACLU approaching the situation? I know (inaudible)


No, no, no, no...


And also the issue (inaudible) civil rights movement, and there's been so much of people saying it's not this or is this and...


I think (inaudible) things are never helpful. We never approach this work with the point of view (inaudible) struggle for liberty and for justice and for freedom. It has its very own specific way it has evolved. It's true for the women's movement, the (inaudible) justice movement, the gay movement, the women's rights movement, it's a very different set of circumstances. There are comparisons we can draw, but they fall short after awhile. So I try (inaudible) make a comparison, this denial of rights is like x or like y.


I think most importantly is this and I get this (inaudible) sense of, it is confusing. You're right, first off, because it's very hard to keep up with everything that's happening, and if there is one thing that I could recommend to you, again, for those of you who sometimes are wanting to put people into simple (inaudible) (laughter). We did bring in, under Lawrence v. Texas, that was this Texas sodomy case, this summer or last summer. And it is a remarkable (inaudible), it is not a (inaudible) for lawyers, it is an opinion that makes you want to cry. And it was an incredible opinion, just the way it was (inaudible). And the author of that opinion is the activist judge, Justice Stevens... Justice Kennedy, rather, Justice Kennedy is the new justice on that (inaudible). And now you find the Bush Administration saying that gay marriage and the gay rights movement is this concern of activist judges and you look at it and say, well how could it be that Justice Kennedy was not at all an activist justice is the one who wrote this opinion, how can you twist and contort the facts that way. So you're right to be confused, because I think that's a part of what certain government officials are constantly trying to do.


The marriage issue is very simple for us at this point. The Defense of Marriage Act was signed into law by President Clinton. There is not a break (inaudible) rather on his whole history as president. And it's not about the scandals that (inaudible) the administration, if you ask me, one of the greatest moments where President Clinton signed the Defense of Marriage Act and the Welfare Reform. Those are the two (inaudible) and let's not forget as (inaudible) election year, everyone (inaudible) who should be the next president, but it's not the (inaudible) to complacency that even if, it never gets (inaudible) elected to the white house, because the President Clinton (inaudible) signed into law the Defense of Marriage Act. And (inaudible) you have this federal law that states do not necessarily have to grant a right to gay, lesbian couples in marriage. That it's a matter of the states to determine that they need not recognize each other's marriages in the context of same sex unions. What's also happened is that you have 38 states already who have laws that prohibit the right to marriage would be given to same sex partners. So really you're only talking about only possibly twelve or so state where the (inaudible) attached.


And what is really cynical is that the president, who obviously tried to turn favor, on a certain part of his constituency, by raising the issue that it's highly divisive, and that's only creating greater confusion and greater (inaudible) across the country. And the idea that you would amend the constitution to enshrine discrimination, and that in it you would take one of the greatest documents ever written in the history of modern political thought to deny rights it's just very (inaudible). And clearly, this is just about a political agenda. There are very few individuals who believe that federal amendment on gay marriage will pass, but will it be divisive? You bet. Will it be distracting? You bet. Will it require ACLU organizations to spend limited resources that we do not currently have to fight a battle we know we're going to win, but we can't afford not to fight it so we have to fight it nonetheless? You bet. And what will happen in terms of ripple effects in global communities where even if it's fought back at the federal level, you will only encourage the state and local officials to pass even more aggressive laws, denying gays and lesbians certain rights. And you find the backlash is going to play out not at the federal level, not in cities like Amherst or New York or San Fransisco. You're going to find them in places like Helena, Montana, Boise, Idaho, or in Denver or in Colorado Springs. That in the local communities we're going to find that there is a backlash.


So it's very cynical to take some of the best principles and the best aspirations of this country and to write in discrimination, deny rights, it is just very unfortunate. I leave you with this, I leave you with two invitations: I encourage you to engage each other. Don't take anything you hear as a given. Don't take anything I said in this whole lecture, this whole talk with you, as a given. I want you to read about it. I want you to ask some questions. I want you to come back and ask each other. Really challenge each other, that is what is most necessary. That what we begin to allow orthodoxy to govern these discussions and these debates, then we are surely lost, so I just ask you to do that.


The second piece, which always my assistant in my office hates, if I have not asked or answered any of your questions, have the courage to ask (inaudible) my hand or if I can answer the question (inaudible) you e-mail me: I answer all my e-mails, I won't answer them all right away (inaudible) I'll be doing a couple lectures this week so I doubt (inaudible) inboxes, it will take me awhile get through, but if you e-mail me, (inaudible). Thank you for your time.