National Security After September 11: A Rights Perspective (continued)

Remarks by Michael Posner
Executive Director, Human Rights First.

Presented to the American Bar Foundation
San Antonio, Texas
February 7, 2004

Posner's speech began with an introduction and special thanks to Jerry Shestack for his introductory remarks. Click here to read those remarks.

...continued

A number of recent and current actions directed against people from South Asian and Middle Eastern communities in the U.S. fall into this pattern. I predict that future generations will look back and wonder why there was so little public debate about these discriminatory policies.

These actions against immigrants can be grouped into two phases. The first phase began immediately after September 11, when more than 1200 people were arrested and detained, mostly on very dubious grounds. The Attorney General's own Inspector General issued a 200-page report last year that was highly critical of these detentions. He concluded that most of the detentions were based on "extremely attenuated" connections to the September 11 attacks. He also cited serious violations of the due process rights of these detainees, including patterns of physical and verbal abuse.

In the months that followed the Administration also initiated a Special Registration program directed at young men from 25 Middle Eastern and South Asian countries. This program required these immigrants, including many lawful permanent residents, to re-register with US immigration authorities, be fingerprinted, photographed, and in some cases interviewed. During the life of this program more than 82,000 people went through the re-registration process. Apparently little, if any, valuable intelligence information resulted from this massive effort. What the program did do was to further strain an already fragile relationship between US law enforcement agencies and the South Asian and Middle Eastern communities in the US. This unfortunate initiative was finally suspended last year.

In the last year we have moved into the second phase of the immigration debate related to the war against terrorism. A different set of issues of a more permanent character have emerged. To cite one example, the Administration has proposed a federal statute called the CLEAR Act that would deputize local law enforcement officials to become federal immigration law enforcers. This proposal has raised a host of concerns, including strenuous objection from many leading local police officials. They say first that they lack resources to take on this significant new role.

More importantly, they are greatly concerned that once local police become immigration enforcement agents, they will lose significant trust and confidence in the immigrant communities they are being asked to serve. If we are serious about improving intelligence from immigrant communities, this is perhaps the worst way to go about getting it.

Openness in Government & Personal Privacy
In mapping out the big picture relating to the erosion of civil liberties in the post-September 11 world, there are two other related areas that I will touch on briefly. These are openness in government, and personal privacy.

Historically we have held a presumption that our government should be largely open to public scrutiny. As James Madison wrote, "A popular government without popular information, or the means of acquiring it, is but a prologue to farce or tragedy or perhaps both."

We have also operated on the presumption that individuals in our society should be protected from government intrusion in our personal lives, and our personal privacy, subject only to narrow exceptions.

Since September 11 we have begun to turn these two assumptions on their head. The government is asserting the growing need for official secrecy, and at the same time demanding greater access to our personal records and information.

With respect to openness in government, the Executive Branch has asserted a new presumption of secrecy, tightening the Freedom of Information Act (FOIA), consulting and less with members of Congress, and chilling the public debate on these issues. I despair that the Attorney General of my country questions the patriotism of those who challenge official policies relating to national security.

With respect to personal privacy, through the USA PATRIOT Act, the Administration has asserted the need for greater discretion to obtain access to personal records and to use electronic surveillance - all with less judicial oversight. The debate about the PATRIOT Act has become a flashpoint, eliciting the broadest public controversy around any of these issues. On one side, more than 200 local communities around the country have passed local resolutions calling for repeal of the PATRIOT Act. On the other side, the President, in his State of the Union address, urges the renewal of PATRIOT Act provisions that are subject to "sunset" clauses. The Administration's previous efforts to remove the sunset clauses from the act were defeated by the Republican Congress.

Amidst this debate there is a need for a more careful focus by lawyers and others on the quite complex issues at stake. Among these issues are how should we develop practical standards for assessing who in government will have access to what information, based on what initial threshold of suspicion, to be used for what purpose and to be shared with whom? In all of this, we need to clarify what role the courts can and should be playing in helping to regulate and provide oversight with respect to these sensitive questions. These are all questions which lawyers and the ABA can help the nation address.

What the ABA Can Do
As we assess this broad range of issues, I urge the ABA to maintain and intensify its focus on the enemy combatant cases. The ABA should file briefs in Hamdi, Padilla and other key cases, seek permission to observe military commission hearings when they are finally convened, and continue to press for the restoration of core US military justice safeguards.

On a broader level, the ABA should be a catalyst for a broader national debate about these cases, and the role of the courts in cases with national security implications. The fact that the US Supreme Court is likely to decide three of these cases this spring provides a great opportunity for engagement.

Secondly, the legal community and others need to become more engaged in addressing issues relating to discrimination against South Asian and Middle Eastern communities. The CLEAR Act is an example of a misguided policy initiative that will infringe on basic rights, alienate key communities, and further perpetuate a pattern of discrimination. The legal community can and should be a strong voice in opposition to these types of initiatives.

A related issue is the widespread use of immigration detention in asylum cases, and greater restrictions on use of the parole authority. These issues are starkly portrayed in a new Court TV movie called Chasing Freedom. The film - which was inspired by an actual case handled by Human Rights First -- tells the story of an Afghan woman who fled the Taliban in 2000, and came to this country only to be detained by US immigration authorities. The film will air again on Court TV on February 21.

Lawyers and concerned citizens also should be demanding greater transparency or openness in government, and a more nuanced debate about the scope of government authority in gathering records and conducting surveillance. Again, defining an appropriate role for the courts is critical.

The ABA can also play an essential role in three broader areas. First, the ABA can help dispel concerns that those who question aspects of the Administration's approach to terrorism are unpatriotic. We need to protect space for multiple dissenting voices, and allow a free-wheeling debate about each of these issues. Such accusations strike at the core of what our democracy is all about.

The organized bar can also help shape stronger national and international laws and legal institutions that are responsive to the threat of terrorism. At the international level, there continues to be an impasse in developing a legal definition for the word "terrorism." The UN Has debated a Convention Against Terrorism for close to 40 years - but they can not finish the task, because Article 1 - the definition of terrorism - remains a blank. A dozen other UN treaties on terrorist acts are all derivative of this main convention, and thus weakened by the world's collective failure to reach an agreement on how to define the term. As lawyers, we know the importance of defining and codifying illegal actions, a critical first step to combating illegal conduct. While I recognize that there are political difficulties in finding a consensus definition, this is an area where lawyers can and should be advancing the current diplomatic debate.

On a national level the political debates about how to prosecute terrorism cases often dissolve into partisan divisions. If we, as lawyers, believe that the criminal justice system can and should be handling these cases, then we bear responsibility for assessing the practical constraints that encourage policymakers to seek alternatives debated and adopted in the usual constitutional course. For example, if there are fears about threats to judges, jurors, and witnesses in these cases, we should help address these concerns. If there are concerns about non-disclosure of sensitive information, then we should be studying how to adjust standard court procedures to address these concerns.

I would add a final important point. The way in which we address and resolve these issues at home will have a profound impact on the rest of the world. As they say, the whole world is watching. Because Human Rights First works with rights defenders globally, I am especially mindful of how profoundly our influence has been felt around the world with respect to human rights issues. This country's historic commitment to constitutional protections of individual rights, a strong and independent judiciary, and open government, have helped shape the rights culture in many other societies.

I fear that the erosion of civil liberties in this society since September 11 is having a deeply negative effect globally in two different ways. Human rights advocates in other societies have long cited the American example in their own domestic struggles. Their ability to do so is now greatly diminished. Today repressive governments around the world are more likely to cite the American example. In Russia, China, Egypt, and elsewhere, we are seeing an opportunistic reliance on the US "war on terrorism" to justify undemocratic policies and actions. To cite one example, last year, former Liberian President Charles Taylor arrested and detained journalists who were critical of his rule, cynically labeling them "enemy combatants."

Still, I am an optimist. I believe that over time we will successfully correct our course in this country, and discard elements of the "new normal" that are inconsistent with our core values, our history, and our national interest. But this course correction will not happen without our active involvement. All of us, especially leaders of the US legal community, have a vital role in generating the debate that is so sorely needed. I look forward to working with you to make it happen.

Michael Posner
Executive Director
Human Rights First