Among the items on his wish list: allowing federal law-enforcement agencies to issue “administrative subpoenas” that wouldn’t require a judge’s approval, expanding the death penalty to cover terror-related crimes, and raising the bar for terror suspects to be released on bail. All of this came on the heels of Attorney General John Ashcroft’s nationwide tour to defend the increasingly controversial USA Patriot Act, which granted authorities new surveillance and detention powers in the immediate aftermath of September 11.
The administration’s offensive has prompted howls of protest from civil-liberties groups. NEWSWEEK’s Arian Campo-Flores spoke to Anthony Romero, executive director of the American Civil Liberties Union, about security and liberty in the post-9/11 world:
NEWSWEEK: If President Bush gets what he asked for in his speech on Wednesday, what are the implications for civil liberties?
Anthony Romero: President Bush’s request for additional law-enforcement powers would go even further than the first Patriot Act. It would minimize judicial oversight in important due-process protections. Several of these powers were originally in Patriot II [a piece of draft legislation–ultimately not passed–that surfaced in February and would have granted authorities additional surveillance and detention powers], and now the president used the anniversary of a national tragedy as a way to grab additional powers, even though there were substantial questions earlier on.
What resulted from the debate over Patriot II?
Patriot II was leaked to members of the press [last February], and there was an enormous outcry over powers in that legislation. The attorney general at that point, in front of the Senate Judiciary Committee, said he was not seeking those powers. And now what you’re finding is that there’s this ad hoc request where these Patriot II powers are appearing on disparate pieces of legislation. They’re breaking up the Patriot II Act and sprinkling it across various draft bills that are coming before Congress.
Why should average Americans care about this? How will Bush’s proposals affect them personally?
The erosion of judicial oversight and upsetting the system of checks and balances have been our primary concerns with Mr. Ashcroft’s agenda since September 11. Those changes affect all Americans, because they insulate executive-branch action from important congressional oversight, judicial oversight and public debate. Patriot I was not only focused on terrorism. In fact, the “sneak and peek” provisions [which allow authorities to search suspects’ properties without immediately informing them] of the Patriot Act apply to ordinary run-of-the-mill criminal investigations. Section 215 of the Patriot Act, which allows the government to get personal information on individuals–such as your library books, your employment records, your financial records–also applies to American citizens. Many of the powers the government has sought and secured in the aftermath of September 11 affect all persons in this country, not just suspects or immigrants.
Have you found that the debate over the Patriot Act has increased the public’s awareness of civil-liberties issues? What’s the pulse in communities you’ve visited?
Absolutely. Clearly, the Justice Department is on the defensive, where they now realize that larger portions of the American public are now asking them the tough questions we were unable to ask or unwilling to ask in the aftermath of September 11. More than 160 local communities have passed resolutions saying that the Patriot Act went too far, too fast. There are also three statewide resolutions–one in Hawaii, one in Vermont, one in Alaska, a primarily Republican state. You have leading members of the House from within the Republican Party raising questions about the attorney general’s civil-liberties record. Congressman Butch Otter, a Republican from Idaho, sponsored a piece of legislation in the House that garnered overwhelming support from Republicans and Democrats alike to repeal the sneak and peek provisions of the Patriot Act.
This is a debate that crosses political ideologies, that crosses generations, that crosses race and ethnicity, and it’s a debate that the attorney general has been trying to squelch in his recent road show. In fact, the attorney general showed very little interest in engaging a public debate and dialogue. In most of the appearances he made across the country, he slipped into his speaking engagements through back doors, avoiding the public and press in the front entrances. He spoke to law-enforcement officials and selected members of the press. At the Washington, D.C., briefing of the American Enterprise Institute, he took not one question from the whole Washington press corps. If the attorney general were truly interested in engaging the public, he’d be speaking in front of churches, school groups, Elk’s Lodges. He’d be taking questions from the public, and he’d be engaging in an important, necessary debate. He seems unwilling to do that. He’d rather preach to the converted and shut down debate as it’s springing up across the country.
It seems that the issue of administrative subpoenas is the most contentious of Bush’s proposals. Can you explain how they work and what you find objectionable?
Under administrative subpoenas, the government can demand–and enforce its demand through civil and criminal penalties–documents and other information from a business or any individual without prior court approval. This includes documents that can be very sensitive, including medical and genetic records. They can be seized without individual suspicion or court review. Judicial oversight is an essential part of our system of checks and balances. The administrative subpoenas would remove an essential check on the executive branch’s power and would relegate the role of a judge to considering challenges to orders already issued. I think that’s the most important part. Our goal is to keep a system of checks and balances alive and well, precisely when they’re needed most.
Shouldn’t law enforcement, as President Bush argued Wednesday, have the same sorts of powers to pursue terrorists as they do to go after drug dealers and perpetrators of fraud?
The government already possesses extensive powers to go after suspected terrorists. It always could have conducted intelligence on them. It already possessed criminal statutes that allowed them to go after suspected terrorists with the full force of law-enforcement powers. These additional powers are not necessary. The government successfully prosecuted many of the terrorists who were responsible for the first World Trade Center attacks [in 1993]. The president and John Ashcroft have not made a compelling case about why these additional powers are necessary. What’s essential is that we remind ourselves what we’re fighting for, not just what we’re fighting against–that the American democratic system is based on some core American principles, such as due process, innocence until proven guilty, judicial oversight. And if, in our effort to keep the country safe, we do great damage to those core freedoms, then we will have fundamentally changed the nation’s core values.
Post-9/11, are we witnessing a permanent shift in the balance between security and liberty, in favor of security?
The attorney general has asked the American people to sacrifice their freedoms in the name of national security. He’s presented the public with a Faustian bargain: we’ll be safe or we’ll be sorry. The ACLU believes that we have to keep both our safety and our freedom as important goals for our government, that you need both. And much of what’s happened over the last two years has eroded these core freedoms. For instance, you have the U.S. government insisting that it has the unilateral authority to arrest and detain an American citizen on American soil and not charge him with a crime and not grant him access to a lawyer. That is patently un-American and cuts at the heart of some of our most longstanding values. The attorney general and other members of the Bush administration have seized upon a national tragedy as a way to push through a partisan ideological agenda. That’s why we heard the president announce the need for these additional law-enforcement powers on the eve of the September 11 tragedy. The first Patriot Act was pushed through Congress within 45 days of the September 11 attacks, with very little debate and input in Congress and the American public. The attorney general seized on that fear in an effort to grab extensive law-enforcement and intelligence powers. Now two years out, with calmer minds in Congress and the public, we’re beginning to see the start of a debate and questions being asked of the attorney general.
What is the administration not doing that it should be doing to protect the homeland?
The administration has yet not implemented all of the necessary changes in terms of preparing the first responders who would respond to a terrorist attack. Many local jurisdictions still complain about inadequate funding for insuring the security and safety of local communities. One good example would be the New York blackout, where the chaos and confusion that gripped the city during that blackout demonstrated that New York was no better prepared to deal with a major terrorist attack than it was two years previously.
Has the Patriot Act damaged the U.S.’s standing internationally on human and civil-rights issues?
The promotion of human rights was a cornerstone of American foreign policy for decades, and now it’s becoming increasingly clear that those values don’t mean as much at home as when we export them. It becomes increasingly difficult for the American government to look at its allies, or even enemies overseas, in the eye and defend human rights, when the U.S. government itself is engaging in efforts that erode personal privacy, that further racial profiling, that limit judicial review, that diminish due-process rights. As other countries struggle to develop antiterrorism policies and programs, they will invariably look to the American experience and see some very troubling policies and programs that have been sanctioned by the supposed leader of human rights across the globe.
How are civil-liberties groups faring in both their legal and public relations battles with the Justice Department?
Many of these issues are still to be determined in our nation’s courts. The ACLU has filed close to 40 cases that deal with the broader issues of civil liberties after September 11. Most of these cases are still to be decided or being appealed to higher courts, and it’s still an open question as to whether the Supreme Court will render opinions that defend freedom even in the midst of a national emergency. Prior Supreme Court decisions such as the ones during the Second World War, with Japanese-American internment, were very disappointing. We’ll see if this court has the courage of America’s convictions. In terms of the public, it’s increasingly clear that there is a public debate that is playing out in communities all across the country. That’s a debate that affects Republicans and Democrats, young and old, immigrants and citizens.
What future battles are you gearing for? What does Ashcroft want next?
The war on terror is a war without end. It’s not like the Second World War, or even the Vietnam War, which had a clear, decisive finish. What worries us most is the insatiable appetite of this attorney general in amassing additional law-enforcement powers. President Bush’s announcement about the need for these additional law-enforcement powers, even though these powers were already very much questioned by Congress and the public, further underscores the zeal with which this administration would erode civil liberties in the name of national security.
Are there any specific proposals you’re preparing to fight?
One of our greatest difficulties has been the lack of information from the administration and our inability to engage in that debate. Many of the powers authorized under the Patriot Act are secret in nature, and this is an administration that has shown significant penchant for secrecy even in its own legislative deliberations. The Bush administration’s appetite for additional law-enforcement and intelligence powers has not been satisfied, and they will keep pushing the envelope as far and as hard as the American public will let them.
