 Wrong direction
Al Gore condemns Bush Administration on approach
to freedom and security
November 11, 2003
The Iranian
Remarks to MoveOn.org by
former Vice President Al Gore,
New York University,
November 9, 2003. You can also listen
to the speech.
I want to thank the American Constitution Society
for co-sponsoring today's event, and for their hard work and
dedication in defending our most basic public values.
And I am especially grateful to Moveon.org, not
only for co-sponsoring this event, but also for using 21st Century
techniques to breathe
new life into our democracy.
For my part, I'm just a recovering politician
but I truly believe that some of the issues most important to
America's
future are
ones that all of us should be dealing with.
And perhaps the most important of these issues
is the one I want to talk about today: the true relationship
between Freedom and
Security.
So it seems to me that the logical place to start
the discussion is with an accounting of exactly what has happened
to civil liberties
and security since the vicious attacks against America of September
11, 2001 and is important to note at the outset that the Administration
and the Congress have brought about many beneficial and needed
improvements to make law enforcement and intelligence community
efforts more effective against potential terrorists.
But a lot of other changes have taken place that
a lot of people dot know about and that come as unwelcome surprises.
For example,
for the first time in our history, American citizens have been
seized by the executive branch of government and put in prison
without being charged with a crime, without having the right
to a trial, without being able to see a lawyer, and without even
being able to contact their families.
President Bush is claiming the unilateral right
to do that to any American citizen he believes is an enemy combatant
Those are
the magic words. If the President alone decides that those two
words accurately describe someone, then that person can be immediately
locked up and held incommunicado for as long as the President
wants, with no court having the right to determine whether the
facts actually justify his imprisonment.
Now if the President makes a mistake, or is given
faulty information by somebody working for him, and locks up
the wrong person, then
is almost impossible for that person to prove his innocence because
he cann't talk to a lawyer or his family or anyone else and he
doesn't even have the right to know what specific crime he is
accused
of committing. So a constitutional right to liberty and the pursuit
of happiness that we used to think of in an old-fashioned way
as inalienable can now be instantly stripped from any American
by the President with no meaningful review by any other branch
of government.
How do we feel about that? Is that OK?
Here's another recent change in our civil liberties:
Now, if it wants to, the federal government has the right to
monitor every
website you go to on the internet, keep a list of everyone you
send email to or receive email from and everyone who you call
on the telephone or who calls you and they dot even have to show
probable cause that you've done anything wrong. Nor do they ever
have to report to any court on what there doing with the information.
Moreover, there are precious few safeguards to keep them from
reading the content of all your email.
Everybody's fine with that?
If so, what about this next change? For Americs first 212 years, it used to be that
if the police wanted to search your house, they had to be able
to convince
an independent judge to give them a search warrant and then (with
rare exceptions) they had to go bang on your door and yell, "Open
up". Then, if you didn't quickly open up, they could knock the
door down. Also, if they seized anything, they had to leave a
list
explaining what they had taken. That way, if it was all a terrible
mistake (as it sometimes is) you could go and get your stuff
back.
But that's all changed now. Starting two years
ago, federal agents were given broad new statutory authority
by the
Patriot Act to sneak
and peak in non-terrorism cases. They can secretly enter your
home with no warning whether you are there or not and they can
wait for months before telling you they were there. And it doesn't
have to have any relationship to terrorism whatsoever.
It applies
to any garden-variety crime. And the new law makes it very
easy to get around the need for a traditional warrant - simply
by saying that searching your house might have some connection
(even a remote one) to the investigation of some agent of a
foreign
power. Then they can go to another court, a secret court, that
more or less has to give them a warrant whenever they ask. Three weeks ago, in a speech at FBI Headquarters,
President Bush went even further and formally proposed that the
Attorney General
be allowed to authorize subpoenas by administrative order, without
the need for a warrant from any court.
What about the right to consult a lawyer if yore
arrested? Is that important?
Attorney General Ashcroft has issued regulations
authorizing the secret monitoring of attorney-client conversations
on his
say-so alone; bypassing procedures for obtaining prior judicial
review for such monitoring in the rare instances when it was
permitted in the past. Now, whoever is in custody has to assume
that the government is always listening to consultations between
them and their lawyers.
Does it matter if the government listens in on
everything you say to your lawyer? Is that Ok?
Or, to take another
change - and thanks to the librarians, more people know about
this one - the FBI now has the right
to go into any library and ask for the records of everybody
who has used the library and get a list of who is reading what.
Similarly,
the FBI can demand all the records of banks, colleges, hotels,
hospitals, credit-card companies, and many more kinds of companies. And these changes are only the beginning. Just
last week, Attorney General Ashcroft issued brand new guidelines
permitting FBI agents
to run credit checks and background checks and gather other
information about anyone who is of investigatory interest - meaning
anyone
the agent thinks is suspicious - without any evidence of criminal
behavior.
So, is that fine with everyone?
Listen to the way Israel's highest court dealt
with a similar question when, in 1999, it was asked to balance
due
process rights against
dire threats to the security of its people:
This is the destiny of democracy, as not all
means are acceptable to it, and not all practices employed
by its enemies
are open
before it. Although a democracy must often fight with one hand
tied behind its back, it nonetheless has the upper hand. Preserving
the Rule of Law and recognition of an individuals liberty constitutes
an important component in its understanding of security. At
the end of the day they (add to) its strength..
I want to challenge
the Bush Administration's implicit assumption that we have to
give up many of our traditional freedoms in order
to be safe from terrorists. Because it is simply not true.
In fact, in my opinion, it makes no more sense
to launch an assault on our civil liberties as the best way to
get at terrorists than
it did to launch an invasion of Iraq as the best way to get at
Osama Bin Laden.
In both cases, the Administration has attacked
the wrong target. In both cases they have recklessly put our country
in grave and unnecessary danger, while avoiding and neglecting
obvious and
much more important challenges that would actually help to protect
the country.
In both cases, the administration has fostered
false impressions and misled the nation with superficial, emotional
and manipulative
presentations that are not worthy of American Democracy. In both
cases they have exploited public fears for partisan political
gain and postured themselves as bold defenders
of our country
while actually weakening not strengthening America. In both cases,
they have used unprecedented secrecy and deception in order
to avoid accountability to the Congress, the Courts,
the press and the people.
Indeed, this Administration has turned the fundamental
presumption of our democracy on its head. A government of and
for the people
is supposed to be generally open to public scrutiny by the people
- while the private information of the people themselves should
be routinely
protected from government intrusion.
But instead, this Administration is seeking to
conduct its work in secret even as it demands broad unfettered
access to personal
information about American citizens. Under the rubric of protecting
national security, they have obtained new powers to gather information
from citizens and to keep it secret. Yet at the same time they
themselves refuse to disclose information that is highly relevant
to the war against terrorism.
They are even arrogantly refusing to provide information
about 9/11 that is in their possession to the 9/11 Commission
the lawful
investigative body charged with examining not only the performance
of the Bush Administration, but also the actions of the prior
Administration in which I served. The whole point is to learn
all we can about preventing future terrorist attacks.
Two days ago, the Commission was forced to issue
a subpoena to the Pentagon, which has disgracefully put Secretary
Rumsfeld's
desire to avoid embarrassment ahead of the nation's need
to learn
how we can best avoid future terrorist attacks. The Commission
also served notice that it will issue a subpoena to the White
House if the President continues to withhold information
essential to the investigation. And the White House is also refusing to respond
to repeated bipartisan Congressional requests for information
about 9/11 even though
the Congress is simply exercising its Constitutional oversight
authority. In the words of Senator Main, "Excessive administration
secrecy on issues related to the September 11 attacks feeds conspiracy
theories and reduces the public's confidence in government.."
In a revealing move, just three days ago, the
White House asked the Republican leadership of the Senate to
shut down the Intelligence
Committee's investigation of 9/11 based on a trivial political
dispute. Apparently the President is anxious to keep the Congress
from seeing what are said to have been clear, strong and explicit
warnings directly to him a few weeks before 9/11 that terrorists
were planning to hijack commercial airliners and use them to
attack us.
Astonishingly, the Republican Senate leadership
quickly complied with the President's request. Such obedience
and complicity in
what looks like a cover-up from the majority party in a separate
and supposedly co-equal branch of government makes it seem like
a very long time ago when a Republican Attorney General and his
deputy resigned rather than comply with an order to fire the
special prosecutor investigating Richard Nixon.
In an even more brazen move, more than two years
after they rounded up over 1,200 individuals of Arab descent,
they still refuse
to release the names of the individuals they detained, even though
virtually every one of those arrested has been "cleared" by
the FBI of any connection to terrorism and there is absolutely
no national security justification for keeping the names secret.
Yet at the same time, White House officials themselves
leaked the name of a CIA operative serving the country, in clear
violation
of the law, in an effort to get at her husband, who had angered
them by disclosing that the President had relied on forged
evidence in his state of the union address as part of his effort
to convince
the country that Saddam Hussein was on the verge of building
nuclear weapons.
And even as they claim the right to see the private
bank records of every American, they are adopting a new policy
on the Freedom
of Information Act that actively encourages federal agencies
to fully consider all potential reasons for non-disclosure
regardless of whether the disclosure would be harmful. In other
words, the
federal government will now actively resist complying with
ANY request for information.
Moreover, they have established a new exemption
that enables them to refuse the release to the press and the
public of important
health, safety and environmental information submitted to
the government by businesses merely by calling it critical infrastructure By
closely guarding information about their own behavior, they
are dismantling a fundamental element of our system of checks
and balances. Because so long as the government's actions are
secret, they cannot be held accountable. A government for the
people
and by the people must be transparent to the people.
The administration is justifying the collection of all this
information by saying in effect that it will make us safer
to have it. But
it is not the kind of information that would have been of much
help in preventing 9/11. However, there was in fact a great
deal of specific information that WAS available prior to 9/11
that
probably could have been used to prevent the tragedy. A recent
analysis by the Merkle foundation, (working with data from
a software company that received venture capital from a CIA-sponsored
firm) demonstrates this point in a startling way:
* In late August 2001, Nawaq Alhamzi and Khalid Al-Midhar
bought tickets to fly on American Airlines Flight 77 (which
was flown
into the Pentagon). They bought the tickets using their real
names. Both names were then on a State Department/INS watch
list called TIPOFF. Both men were sought by the FBI and CIA
as suspected
terrorists, in part because they had been observed at a terrorist
meeting in Malaysia.
* These two passenger names would have been exact matches
when checked against the TIPOFF list. But that would only
have been
the first step. Further data checks could then have begun.
* Checking for common addresses (address information is
widely available, including on the internet), analysts
would have
discovered that Salem Al-Hazmi (who also bought a seat
on American 77) used
the same address as Nawaq Alhazmi. More importantly,
they could have discovered that Mohamed Atta (American 11,
North
Tower
of the World Trade Center) and Marwan Al-Shehhi (United
175, South
Tower of the World Trade Center) used the same address
as Khalid Al-Midhar.
* Checking for identical frequent flier numbers, analysts
would have discovered that Majed Moqed (American 77)
used the same
number as Al-Midhar.
* With Mohamed Atta now also identified as a possible
associate of the wanted terrorist, Al-Midhar, analysts
could have
added Att's phone numbers (also publicly available
information) to their checklist. By doing so they would have
identified
five
other
hijackers (Fayez Ahmed, Mohand Alshehri, Wail Alsheri,
and
Abdulaziz Alomari).
* Closer to September 11, a further check of passenger
lists against a more innocuous INS watch list (for
expired visas)
would have identified Ahmed Alghandi. Through him,
the same sort of
relatively simple correlations could have led to
identifying the remaining hijackers, who boarded
United 93 (which
crashed in Pennsylvania. In addition, Al-Midhar
and Nawaf Alhamzi,
the two who were on the terrorist watch list, rented
an apartment in San Diego under their own names
and were listed,
again
under
their own names, in the San Diego phone book while
the FBI was searching for them.
Not to put too fine a point on it, but what is
needed is better and more timely analysis. Simply
piling
up more
raw data that
is almost entirely irrelevant is not only not
going to help. It may actually hurt the cause. As one
FBI agent
said privately
of Ashcroft, "We're looking for a needle in a
haystack here and he (Ashcroft) is just piling on more
hay."
In other words, the mass collecting of personal
data on hundreds of millions of people actually
makes
it more difficult
to
protect the nation against terrorists, so they
ought to cut most of
it out.
And meanwhile, the real story is that
while the administration's
manages to convey the impression that it is
doing everything possible to protect America,
in reality
it has seriously
neglected most of the measures that it could
have taken to really make
our country safer.
For example, there is still
no serious strategy for domestic security that protects critical
infrastructure such as
electric power lines, gas pipelines, nuclear
facilities, ports, chemical
plants and the like. There still not checking incoming cargo carriers
for radiation. There still skimping on protection
of certain
nuclear weapons
storage facilities. There still not hardening
critical facilities that must never be soft
targets for
terrorists. There still
not investing in the translators and analysts
we need to counter the growing terror threat.
The administration is still not investing
in local government training and infrastructures
where they
could make the
biggest difference. The first responder
community is still being
shortchanged. In many cases, fire and police
still dot have the communications
equipment to talk to each other. The CDC
and
local hospitals are still nowhere close
to being ready
for a biological
weapons attack.
The administration has still failed to
address the fundamental disorganization
and rivalries
of our
law enforcement,
intelligence and investigative agencies.
In particular, the critical
FBI-CIA coordination, while finally improved
at the top, still remains
dysfunctional in the trenches.
The constant
violations of civil liberties promote the false impression
that these
violations are
necessary in order to
take every precaution against another
terrorist attack. But the simple
truth is that the vast majority of
the violations have not benefited our security
at all; to
the contrary, they
hurt
our security. And the treatment of immigrants was probably
the worst example. This mass mistreatment
actually hurt our security
in a number
of important ways.
But first, let's be clear about what
happened: this was little more than
a cheap and
cruel political stunt
by John Ashcroft.
More than 99% of the mostly Arab-background
men who were rounded up had merely
overstayed their
visas
or committed
some other
minor offense as they tried to pursue
the American dream just like most
immigrants. But they were
used as extras
in the Administration's
effort to give the impression that
they had caught a large number of
bad guys.
And many
of them
were
treated horribly
and abusively.
Consider this example reported in
depth by Anthony Lewis.
Anser Mehmood, a Pakistani who
had overstayed his visa, was
arrested in New York on
October 3, 2001.
The next
day he
was briefly questioned
by FBI agents, who said they
had no further interest in him. Then
he was
shackled
in handcuffs, leg
irons, and
a belly
chain and taken to the Metropolitan
Detention Center in Brooklyn.
Guards there put
two more sets of
handcuffs on
him and another
set of
leg irons. One threw Mehmood
against a wall. The guards forced him to
run down
a long
ramp, the
irons cutting
into his wrists
and ankles. The physical abuse
was
mixed with verbal taunts.
After two weeks Mehmood was allowed
to make a telephone call to
his wife. She
was not
at home
and Mehmood
was told that
he would have to wait six weeks
to try again. He first saw
her, on a visit, three months after
his
arrest. All that time he was
kept in a windowless
cell, in
solitary
confinement,
with
two
overhead fluorescent lights
on all the time. In the end he was
charged
with
using an invalid
Social
Security
card. He
was deported
in May 2002, nearly eight months
after his arrest. The faith tradition I share
with Ashcroft includes this
teaching
from Jesus, "Whwhatsoever
you do unto
the least of
these, you
do unto me."
And make no mistake:
the disgraceful treatment suffered
by many
of these vulnerable immigrants
at the hands
of the administration
has created deep resentments
and hurt the cooperation
desperately needed
from immigrant
communities
in the U.S.and from the
Security Services of other
countries. Second, these gross violations of their rights have seriously
damaged U.S. moral authority and goodwill around the world,
and delegitimized U.S. efforts to continue promoting Human Rights
around the world. As one analyst put it, "We used to set the
standard; now we have lowered the bar." And our moral authority
is, after
all, our greatest source of enduring strength in the world.
And
the handling of prisoners at Guantanomo has been particularly
harmful to America's image. Even England and Australia have
criticized our departure from international law and the Geneva
Convention.
Sec. Rumsfeld's handling of the captives there has been about
as thoughtful as his postwar plan for Iraq.
So the mass violations of civil liberties have hurt rather
than helped. But there is yet another reason for urgency in stopping
what this administration is doing. Where Civil Liberties are
concerned, they have taken us much farther down the road toward
an intrusive Big Brother-style government - toward the dangers
prophesized by George Orwell in his book198 - than anyone
ever thought would be possible in the United States of America.
And they have done it primarily by heightening and exploiting
public anxieties and apprehensions. Rather than leading with
a call to courage, this Administration has chosen to lead us
by inciting fear. Almost eighty years ago, Justice Louis Brandeis wrote, "Those
who won our independence by revolution were not cowards... They
did not exalt order at the cost of liberty." Those who won our
independence, Brandeis asserted, understood that "courage [is]
the secret of liberty" and "fear [only] breeds repression."
Rather than defending our freedoms, this Administration has
sought to abandon them. Rather than accepting our traditions
of openness
and accountability, this Administration has opted to rule by
secrecy and unquestioned authority. Instead, its assaults on
our core democratic principles have only left us less free
and less secure.
Throughout American history, what we now call Civil Liberties
have often been abused and limited during times of war and
perceived threats to security. The best known instances include
the Alien
and Sedition Acts of 1798-1800, the brief suspension of habeas
corpus during the Civil War, the extreme abuses during World
War I and the notorious Red Scare and Palmer Raids immediately
after the war, the shameful internment of Japanese-Americans
during World War II, and the excesses of the FBI and CIA during
the Vietnam War and social turmoil of the late 1960s and early
1970s.
But in each of these cases, the nation has recovered its equilibrium
when the war ended and absorbed the lessons learned in a recurring
cycle of excess and regret.
There are reasons for concern this time around that what we
are experiencing may no longer be the first half of a recurring
cycle
but rather, the beginning of something new. For one thing,
this war is predicted by the administration to last for the rest
of
our lives Others have expressed the view that over time it
will begin to resemble the war against drugs that is, that it
will become
a more or less permanent struggle that occupies a significant
part of our law enforcement and security agenda from now on.
If that is the case, then when if ever - does this encroachment
on our freedoms die a natural death?
It is important to remember that throughout history, the loss
of civil liberties by individuals and the aggregation of too
much unchecked power in the executive go hand in hand. They
are two sides of the same coin.
A second reason to worry that what we are witnessing is a discontinuity
and not another turn of the recurring cycle is that the new
technologies of surveillance long anticipated by novelists like
Orwell and
other prophets of the Police State, are now more widespread
than they have ever been.
And they do have the potential for shifting the balance of
power between the apparatus of the state and the freedom of the
individual
in ways both subtle and profound.
Moreover, these technologies are being widely used not only
by the government but also by corporations and other private
entities.
And that is relevant to an assessment of the new requirements
in the Patriot Act for so many corporations especially in the
finance industries to prepare millions of reports annually
for the government on suspicious activities by their customers.
It
is also relevant to the new flexibility corporations have been
given to share information with one another about their customers.
The third reason for concern is that the threat of more terror
strikes is all too real. And the potential use of weapons of
mass destruction by terrorist groups does create a new practical
imperative for the speedy exercise of discretionary power by
the executive branch just as the emergence of nuclear weapons
and ICBMs created a new practical imperative in the Cold War
that altered the balance of war-making responsibility between
Congress and the President.
But President Bush has stretched
this new practical imperative beyond what is healthy for our
democracy. Indeed, one of the
ways he has tried to maximize his power within the American
system has been by constantly emphasizing his role as Commander-in-Chief,
far more than any previous President - assuming it as often
and as visibly as he can, and bringing it into the domestic
arena
and conflating it with his other roles: as head of government
and head of state and especially with his political role as
head of the Republican Party.
Indeed, the most worrisome new factor, in my view, is the aggressive
ideological approach of the current administration, which seems
determined to use fear as a political tool to consolidate its
power and to escape any accountability for its use. Just as
unilateral ism and dominance are the guiding principles of their
disastrous
approach to international relations, they are also the guiding
impulses of the administration's approach to domestic politics.
They are impatient with any constraints on the exercise of
power overseas - whether from our allies, the UN, or international
law. And in the same way, they are impatient with any obstacles
to their use of power at home whether from Congress, the Courts,
the press, or the rule of law.
Ashcroft has also authorized FBI agents to attend church meetings,
rallies, political meetings and any other citizen activity
open to the public simply on the agent own initiative, reversing
a
decades old policy that required justification to supervisors
that such infiltrations has a provable connection to a legitimate
investigation.
They have even taken steps that seem to be clearly aimed at
stifling dissent. The Bush Justice Department has recently begun
a highly
disturbing criminal prosecution of the environmental group Greenpeace
because of a non-violent direct action protest against what Greenpeace
claimed was the illegal importation of endangered mahogany from
the Amazon. Independent legal experts and historians have said
that the prosecution - under an obscure and bizarre 1872
law against sailor-mongering - appears to be aimed at inhibiting
Greenpeace's First Amendment activities.
And at the same time they are breaking new ground by prosecuting
Greenpeace. The Bush Administration announced just a few days
ago that it is dropping the investigations of 50 power plants
for violating the Clean Air Act, a move that Sen. Chuck Schumer
said basically announced to the power industry that it can
now pollute with impunity.
The politicization of law enforcement in this administration
is part of their larger agenda to roll back the changes in
government policy brought about by the New Deal and the Progressive
Movement.
Toward that end, they are cutting back on civil rights enforcement,
women's rights, progressive taxation, the estate tax, access
to the courts, Medicare, and much more. And they approach every
issue as a partisan fight to the finish, even in the areas
of
national security and terror.
Instead of trying to make the War on Terrorism a bipartisan
cause, the Bush White House has consistently tried to exploit
it for
partisan advantage. The President goes to war verbally against
terrorists in virtually every campaign speech and fundraising
dinner for his political party. It is his main political theme.
Democratic candidates like Max Cleland in Georgia were labeled
unpatriotic for voting differently from the White House on
obscure amendments to the Homeland Security Bill.
When the Republican leader in the House of Representatives,
Tom DeLay, was embroiled in an effort to pick up more congressional
seats in Texas by forcing a highly unusual redistricting vote
in the state senate, he was able to track down Democratic legislators
who fled the state to prevent a quorum (and thus prevent the
vote) by enlisting the help of President Buss new Department
of Homeland Security, as many as 13 employees of the Federal
Aviation Administration who conducted an eight-hour search,
and
at least one FBI agent (though several other agents who were
asked to help refused to do so.)
By locating the Democrats quickly with the technology put in
place for tracking terrorists, the Republicans were able to
succeed in focusing public pressure on the weakest of the Senators
and
forced passage of their new political redistricting plan. Now,
thanks in part to the efforts of three different federal agencies,
Bush and DeLay are celebrating the gain of up to seven new
Republican congressional seats in the next Congress.
The White House timing for its big push for a vote in Congress
on going to war with Iraq also happened to coincide exactly
with the start of the fall election campaign in September a year
ago.
The President's chief of staff said the timing was chosen because
from a marketing point of view, you don't introduce new products
in
August.
White House political advisor Karl Rove advised Republican
candidates that their best political strategy was to run on the
wa. And as
soon as the troops began to mobilize, the Republican National
Committee distributed yard signs throughout America saying "I
support President Bush and the troops", as if they were one
and the same. This persistent effort to politicize the war in Iraq and the
war against terrorism for partisan advantage is obviously harmful
to the prospects for bipartisan support of the nation's security
policies. By sharp contrast, consider the different approach
that was taken by Prime Minister Winston Churchill during the
terrible days of October 1943 when in the midst of World War
II, he faced a controversy with the potential to divide his
bipartisan
coalition. He said,
What holds us together is the prosecution
of the war. No man has been asked to give up his convictions.
That would be indecent and improper. We are held together by
something
outside, which rivets our attention. The principle that
we work
on is, "Everything for the war, whether controversial or
not, and nothing controversial that is not bona fide for the
war."
That is our position. We must also be careful that a pretext
is
not
made of war needs to introduce far-reaching social or political
changes by a side wind...
Yet that is exactly what the Bush
Administration is attempting to do to use the war against terrorism
for partisan advantage
and to introduce far reaching controversial changes in social
policy by aside wind in an effort to consolidate its political
power.
It is an approach that is deeply antithetical to the
American spirit. Respect for our President is important. But
so is respect
for our people. Our founders knew and our history has proven
that freedom is best guaranteed by a separation of powers into
co-equal branches of government within a system of checks and
balances - to prevent the unhealthy concentration of too
much power in the hands of any one person or group.
Our framers were also keenly aware that the history of the
world proves that Republics are fragile. The very hour of America's
birth
in Philadelphia, when Benjamin Franklin was asked, "What have
we got? A Republic or a Monarchy?" He cautiously replied, "A
Republic, if you can keep it."
And even in the midst of our greatest testing, Lincoln knew
that our fate was tied to the larger question of whether
ANY nation
so conceived could long endure. This Administration simply does not seem to agree that the
challenge of preserving democratic freedom cannot be met by surrendering
core American values. Incredibly, this Administration has attempted
to compromise the most precious rights that America has stood
for all over the world for more than 200 years: due process,
equal treatment under the law, the dignity of the individual,
freedom from unreasonable search and seizure, freedom from
promiscuous
government surveillance. And in the name of security, this
Administration has attempted to relegate the Congress and the
Courts to the
sidelines and replace our democratic system of checks and balances
with an unaccountable Executive. And all the while, it has
constantly angled for new ways to exploit the sense of crisis
for partisan
gain and political dominance. How dare they! Years ago, during World War II, one of our most eloquent Supreme
Court Justices, Robert Jackson, wrote that the President should
be given the widest latitudes in wartime, but he warned against
the loose and irresponsible invocation of war as an excuse for
discharging the Executive Branch from the rules of law that govern
our Republic in times of peace. "No penance would ever expiate
the sin against free government," Jackson said,
... of holding
that a President can escape control of executive powers by
law through
assuming his military role. Our government has ample
authority under the Constitution to take those steps which are
genuinely
necessary for our security. At the same time, our system
demands that government act only on the basis of measures
that have
been
the subject of open and thoughtful debate in Congress
and among the American people, and that invasions of the liberty
or equal
dignity of any individual are subject to review by courts
which are open to those affected and independent of the government
which is curtailing their freedom...
So what should be done? Well, to begin with, our country ought
to find a way to immediately stop its policy of indefinitely
detaining American citizens without charges and without a judicial
determination that their detention is proper.
Such a course of conduct is incompatible with American traditions
and values, with sacred principles of due process of law and
separation of powers.
It is no accident that our Constitution requires in criminal
prosecutions a speedy and public trial The principles of liberty
and the accountability of government, at the heart of what
makes America's unique, require no less. The Bush Administration's
treatment of American citizens it calls "enemy combatant" is nothing
short
of un-American. Second, foreign citizens held in Guantanamo should be given hearings
to determine their status provided for under Article V of the
Geneva Convention, a hearing that the United States has given
those captured in every war until this one, including Vietnam
and the Gulf War.
If we dot provide this, how can we expect American soldiers
captured overseas to be treated with equal respect? We owe
this to our
sons and daughters who fight to defend freedom in Iraq, in
Afghanistan and elsewhere in the world.
Third, the President should seek congressional authorization
for the military commissions he says he intends to use instead
of civilian courts to try some of those who are charged with
violating the laws of war. Military commissions are exceptional
in American law and they present unique dangers. The prosecutor
and the judge both work for the same man, the President of
the United States. Such commissions may be appropriate in time
of
war, but they must be authorized by Congress, as they were
in World War II, and Congress must delineate the scope of their
authority. Review of their decisions must be available in a
civilian
court, at least the Supreme Court, as it was in World War II. Next, our nation's greatness is measured by how we treat those
who are the most vulnerable. Noncitizens who the government
seeks to detain should be entitled to some basic rights. The administration
must stop abusing the material witness statute. That statute
was designed to hold witnesses briefly before they are called
to testify before a grand jury. It has been misused by this
administration
as a pretext for indefinite detention without charge. That
is simply not right.
Finally, I have studied the Patriot Act and have found that
along with its many excesses, it contains a few needed changes
in the
law. And it is certainly true that many of the worst abuses
of due process and civil liberties that are now occurring
are taking
place under the color of laws and executive orders other
than the Patriot Act. Nevertheless, I believe the Patriot Act has turned out to be,
on balance, a terrible mistake, and that it became a kind of
Tonkin Gulf Resolution conferring Congress blessing for this
President's assault on civil liberties. Therefore, I believe strongly
that
the few good features of this law should be passed again in
a new, smaller law but that the Patriot Act must be repealed.
As John Adams wrote in 1780, ours is a government of laws and
not of men. What is at stake today is that defining principle
of our nation, and thus the very nature of America. As the
Supreme Court has written, "Our Constitution is a covenant
running from
the first generation of Americans to us and then to future
genertions." The Constitution includes no wartime exception,
though its Framers
knew well the reality of war. And, as Justice Holmes reminded
us shortly after World War I, the Constitution's principles
only have value if we apply them in the difficult times as well
as those where it matters less.
The question before us could be of no greater moment: will we
continue to live as a people under the rule of law as embodied
in our Constitution? Or will we fail future generations, by
leaving them a Constitution far diminished from the charter of
liberty
we have inherited from our forebears? Our choice is clear.
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