ACLU at Howard University School of Law

Good evening I'm Alice read all of our first lot like. Well you see. I don't think you know yesterday that. One day six months removed from taxes or a letter that I believe every citizen realize and recognize as a nation as a result of. The terrorist attacks you're watching your man and the challenges that we face in dealing with the red terrorism in the future. Terrorism obviously is I know but do you feel that Myers has a way of life. Well it is a bit like writing

more. Racial profile. Trial by military tribunals or indefinite detention. There is a common thread of legislation which does follow the events of September. 11. This may be a harbinger. Of the rest to our fundamental wrong with. Course. We must be sure that our nation does not read Rice of September 11 terrorism that any. Boards. That are no longer president is no. More.

And I. Think this is interesting. Well. I think they are right. I will come back in the back enjoy. MOAMAR. And. I'll try to be the one to start our first expressed

condolences. Oh my lord kill the birds. We don't want the human cost of the dog is how we minimize the cost. With now because of the nature of our democracy. Three by Alfred Federal Building in Oklahoma City but reminded that they were not the city has been my thought and the threads as well as. Much of the media attention was focused on the red. It was less focusing on power than this one. Well Congress held title 7 and terrorism and 1986 mandated through the Treasury to study

the risk of bomb blast that is as a result. I was in. Enough to serve on the National Research Council a committee that was appointed to conduct that study the commission you shouldn't order that the cost of prevention would be there and there were financial costs such as Target apartment buildings to withstand explosions cutting of the suppliants most of Iraq's paying for technological research through the blast detection of explosives. But there was less tangible cost Greece Rissa civil liberties from World privacy base of technology and more militarized police. Moreover the American people were thought of the time and why look at the current level of risk. To willingly pay those costs. So the recommended immediate action but

with more strenuous efforts made as the perception of risk grows by the time it was issued in 1980 public order for change values of Oklahoma City began to recede. But the perceived threat of the dash rose dramatically. Number Eleven this time the threat from bomb. But through July jet planes crashing into the World Trade Center towers over 3000 people died many more were injured and the American economy took a serious blow. World quickly became clear that an international terrorist organization al Qaeda was behind the attacks and might be involved in planning more serious destruction. Threats were now seen everywhere from bioterrorism such as with subsequent chemical attacks. One of our homes

looking to move dirty bombs or more to show the country rage war on terrorism designed to root out the killers. The country also first raised them. M.S.. Diminished freedom and now freedom of speech as a way to defend homelands. For example racial profiling of the order of the day and sang of the public polls of the minority were originally. John. Ashcroft announced the attorneys conversations with your clients my my all man's video surveillance of city combined with face recognition technology. In Congress. Perhaps Mr. Limbaugh asked would you brace my

rendering immigrants deportable for a wholly innocent activity with a label terrorist organization allowed denial of immigrant entry based on their political views alone brought in search and seizure powers. Otherwise you risk just government best and most citizens gets back. To my civil liberties in the city. So the questions arise. Must. Sacrifice civil liberties with hers. But there are other alternatives to sacrifice just part of a partner or affected by the less invasive knowledge. Does it make sense to sacrifice so far with the very funny and that the terrorists despise and it is your middle ground that each of these questions on the subject of tonight's. The other an extremely talented group of experts in the field you have killed by

so I want to do no more than give the briefest of introductions before letting us know which of the first nation that fortunately Representative John Conyers an emergency at the last minute and has been unable to attend. However I will send my guard. Graciously agreed to the last minute by his minority counsel to the U.S. House Committee on the judiciary and current and surprise. No no no. And just oversight matters and serve as minority counsel to President Clinton. To his immediate left is the coal vessel parts which can last up to. A volunteer staff attorney for the Center of Constitutional rights. Legal Affairs Correspondent for The Nation. Author of no equal justice. Race and class and the American criminal justice system and co-author of now the Saturday edition of her resume and the Constitution sacrificing

civil liberties in the name of national security and today it's love this girl. Paul a legal advisor for the American-Arab Anti-Discrimination law. This is holy. That's from John Marshall Law School concentrated public by the National Law and also has a master's in international affairs from the American University with a concentration middle class. John Barnes who has been slightly delayed words back at her early and he is the executive director of the national capital area. He was a covert to 21 years there is a response to this issue and has tried numerous law schools. So without further ado I will. The mines over here might have a sandbar going with the Democratic stuff the House Judiciary Committee like apologize again my boss not being able to make it and I

know he's usually a bigger draw than I am like to talk a little bit about the procedure of how we got this bill and what we did with it and how it ended up the way it ended up a little bit about the substance and then some of the aftermath. Lovely scene with the law. You know these events always have an awesome time or 11 and around six or seven days after that on the 18th of September the attorney general gave the press conference with the I think it was the FBI director saying that from the just from his review of the events in the laws did looking at. They saw a need for major changes to how we investigate prosecute terrorist offenses and they had a whole host of ideas they want to present to Congress that should be passed very quickly and I think even so they should be passed within a week which is an unprecedented amount of time for anything to happen. Certainly a bill going through on Capitol Hill. And things on the law. Maybe a few days after that we got word

of a draft bill 10 pages 20 pages long being circulated around to different members that turned out was being started on to the Republican members and it was a draft that came from the Just One we believe we somehow I think maybe got pages other 6 pages of it and I think I was the only person in office at that moment so my first phone call was to recall. Think of that. Immigration as I don't want this is no one's around. He's helpless to get what's going on with this and this is a bill that suspended habeas corpus that a whole bunch of other bad visions that were so bad that it was a conservative members of Congress the works of conservative Republican members who told administration that this bill had no chance at all passing. So for five days after that we're now a week after the attorney general announcement today we're going to have. A ministration formally submitted its proposal to the members to the judiciary committees on both sides. And this draft bill was maybe

200 pages long and was the just from its wish list that every provision that it couldn't get past the 96 act and every provision that it thought of sense that any prosecutor would dream of having. And now this is the opportunity to get it through because who what member at this moment could say no to the increased prosecutorial resources. In some of these provisions included pretrial restrain asset forfeiture cases meaning the government can take the assets before trial began. And money laundering cases they had one provision saying that just pharma could use wiretap information that was obtained overseas even if the information was obtained in violation of the Fourth Amendment and under current law that's illegal. Any evidence introduced before the US court and then obtained in compliance with the fourth man. They also tried to say that

they any certain types of information they got on the court orders like getting wiretaps or getting business records. They now would have to just submit an administrative subpoena meaning they basically have an assistant attorney general or his or her designee sign a letter saying we need these documents from whether it's a business or a telephone company or some other entity. Now they can get the mediately. Well you know we met with the chairman of the committee Jim Sensenbrenner of Wisconsin. Pretty much within a day and decided that a lot of these provisions were so egregious that they pose problems for both parties particularly the members of my committee who are more left of center and the members of the other party who are more right of center. And we decided we had to work out a compromise. And so for about a week and a half or two weeks we sat in a room about 10 of us and. Went through these provisions one by one about 50 of them

ranging from the use of. All of these intelligence gathering provisions in terms of how how could the government get a wiretap on someone when it's used for intelligence gathering purposes. What are the rules for when they want to get a wiretap for a criminal investigation. What can they do with that information once they get it. How should the criminal procedure laws be changed in terrorism cases. How should the immigration laws be changed when they're dealing with people who are suspected terrorists. And so. After about two weeks were able to work out a compromise with the essence of. Group song. People that we generally turn to on both sides of the aisle more conservative more liberal. And we passed a law passed a bill 36 nothing out of the Judiciary Committee. And that. You know itself is a process. The most partisan committee on Capitol Hill the one that had just impeached president three years ago four years ago had just passed the most sweeping bills in its history

unanimously. And so there was clearly some cheering after that. We thought we were done. We can hopefully move this bill to the floor and get signed into law the Senate take it of course. The administration unfortunately wasn't happy with that. They realize that a lot of that is they want to the wants in this wish list just weren't going to happen. So the day before we were scheduled to go to the floor on this bill that passed the committee unanimously. The administration persuaded the chairman of the committee to introduce another bill. This is a bill they had worked on on their own for the tour three days and. So on I think it was October 12. Our bill was scheduled to go to the floor. This other bill was introduced meaning it was written up and presented to the UN members we hadn't even seen it. We heard maybe with some additional We weren't sure. So the moment that. These numbers get to the floor talk about this bill it's still being printed. So there are perhaps two copies available literally in the entire house.

So we go to the floor and we're debating this bill. You know staff of course and members are scrambling to find out what's in it what are the effects of it how is it different from what we agreed to at the same time the Senate is working on its own negotiations bipartisan negotiations. And the attorney general is saying they're going go slower than us because they haven't passed the committee yet. The attorney general is probably saying that you know. That terrorism law isn't signed soon. Senator Leahy who is the Democratic chairman of the Senate Judiciary Committee will be personally responsible. For future acts of terrorism because the department will be able to prevent the vision from the law. So we you know we passed this new bill on the floor. The Senate still has no belief that eventually acts. And when I have to go to a conference basically in the House and Senate have to work out one bill amongst ourselves. And. We're negotiating

from morning to night from 8:00 a.m. to 2:00 or 3:00 in the morning every day for you know four or five days and with the pressure the administration the public saying we need this this done very quickly. Again we work out. Most of a compromise. And the day that we're supposed to go to the floor again there's a new bill. And this this was reflected I believe most of the compromise. But another. Issue was that some of the members want to add. Stronger money laundering provisions to the bill which are on a different committee. And so that while we were working on these intelligence and criminal and immigration provisions they were working on the specific money laundering issues so that had to be added on to this bill physically. Basically we had a 200 page bill of ours and I think the night before the morning that we were going to war with this bill we had to go to the office that drops the bill and tell them exactly where this other money laundering stuff would go

literally to stick in the bill and make as many copies as we can make so that members would know what we were debating. So we finally take this final bill it's basically a conference report. Some of the negotiations with the Senate the floor and the majority of Republicans who are going to are in charge of the House decide they want to bring up bring it up on suspension of the rules and what that means is normally one of the bill goes up. With the rules the rules committee looking at it. There it is an hour of debate on. The procedure of how the bill be brought up there's an hour of debate on the bill itself and there are several moments that they can to consider and there is debate on those amendments themselves. And they're all voted on under special rules all of that goes away. There was a total of 40 minutes of debate on the entire bill. There are no magnets allowed. So there's nothing else to vote on. There's something else discussed. So. For 40 minutes 20 minutes on each side we debated the USA Patriot Act and near the

end of October. And a cost benefit to seven to 66 and my boss is one of the dissenting votes. In the Senate took up the same bill within a few days and acts of 98 to 1. And I think of the Senate vote was Senator Feingold of Wisconsin. And the one thing that I like to point out you know while all this is going on you have numbers on the anthrax scare with its height and their members many members of the Senate now. When their offices were kicked out because they had anthrax. Members of our staff who worked in the Capitol and even staff members who worked in the House side people who couldn't access to computers couldn't get their books get anything. We're trying to arrange all these meetings these negotiations of the phone and through blackberries. People have had them and you can even a lot of file computer files you have you know if you have a computer you may not build access from work if you don't have the right software. So it was logistically very very difficult to accomplish that accomplished.

And there were a few bad provisions and we had provisions requiring for law enforcement to disclose the information obtained from a grand jury proceeding normally requires a court order. Now we agree that we're going to expand that to the information related to terrorism that's obtained from proceeding that also can be disclosed to other law enforcement officials at least with a court order. They decided they didn't like that. So now you can disclose information as long as you tell it to the board afterward within some reasonable period I believe. That's one of the visions of. I'm happy with some of the aftermath the other panels I get into more detail. You know we've seen the FBI announcing this voluntary questioning of 5000 Arab-American that I'm not sure how voluntary it is when an FBI agent comes to you with a badge to your house and family. The detention of a Muslim the mom Ravi

and the secret evidence to detain him. My boss actually was able to visit him. I think we can go or we can have a go. I was just appalled at the conditions that he's being kept and. Being able to see the evidence that's being used to hold him. It must ration as announced implementation of. Military tribunals prosecute the detainees in the Guantanamo Bay Camp X-Ray. And a lot of our concerns may be worked out. The Department of Defense has announced the procedures it's going to use in these tribunals. But we have serious concerns about the due process rights of the people to be prosecuted and how the evidence libbers added to them willy or the lawyers be able to see the evidence. Will they know when the person is being charged with an offense will they know what the offense is being the offense. They're being charged with is exactly what might still happen in the proceeding itself. We've seen plans to monitor

phone calls between detainees and their lawyers and we've heard of plans for the FBI to loosen its destruction on the surveillance of domestic religious groups. And I have followed that with too closely. Sure there are other analysts who may know more about that but that. Thank you. It's always ugly to see legislation enacted and to see that under these kinds of conditions. Quite appalling and when you consider the long term consequences of what we have what we did virtually overnight you know there's there are very serious reasons. I think the topic that we're discussing today is a sensitive one civil liberties in the wake of September 11. We know it's sensitive for a number of reasons one is that the attorney general has told us that it's that it's sensitive when when he was called

before Congress to testify at a hearing to look into civil liberties in the wake of September 11. He in his opening remarks. Charge those who would call into question the government's efforts and those who would not draw distinctions between citizens and non-citizens undermining the national resolve and aiding the enemy. Now this is the same attorney general who spent $8000 to cover the breast of a statue of justice in the Justice Department so you can take what he says all too seriously. We also know it's a sensitive issue because of the experience of an editor of a California newspaper who was asked to give a graduation speech at a California college in December and decided to talk about civil liberties in the wake of September 11 and was booed and hissed off the stage.

And the New York Times wrote a story about this. You know interviewed a student too who was saying that she wasn't booed and hissed off the stage because of the subject matter of her speech. She was booed and hissed off the stage because she spoke for too long. So the so the New York Times being the paragon of investigative journalism that it is got the videotape and they they timed it and they found that she spoke for eight minutes and then and then at four minutes the boos and hisses began saw it. So my lesson from that is if you're going to speak about this speak briefly since we've been told we have 10 to 15 minutes we all will have a lot more seriously it's a sensitive issue because we all feel a vulnerability in the wake of the attacks of September 11th that none of us ever had to feel before we were all in. We're all privileged in many ways but I'm certainly privileged in living in a country where terrorism was not an everyday threat in the way that it is in many other parts of the world. And in the

wake of September 11th and seeing that people are willing to go far beyond what limits we thought people operating under we all feel this this need for security. And many of called for recalibrating the balance between liberty on the one hand and security on the other. And I think that with good reason. But I think what we have done for the most part in the wake of September 11. Much like what we have done in prior periods of crisis and fear is not. To make the sacrifice of giving up our liberties for security but rather make the much easier sacrifice of sacrificing their liberties for our security. They're being immigrants and particularly Arab and Muslim and that's an easy political tradeoff because after all if immigrants don't vote and Arab and Muslim immigrants are not a particularly popular minority at this point in time

it's this is the kind of tradeoff that we've seen time and time again in the criminal justice system with minorities and the poor. That's the short end of the stick and we seem to be doing the same thing today with respect to immigrants. I want to just lay out very briefly the ways in which we have. Essentially adopted a double standard and sacrifice the rights of immigrants in ways that we would not for ourselves and then argue why it's wrong why it's counterproductive in terms of security and why it may well come back to haunt us. So first how have we. Down the street our first piece of evidence for the trade off is a massive campaign of preventive detention undertaken under a veil of unprecedented secrecy. Since September 11 since September 11 an undisclosed but large number of people have been detained in connection with the investigation. We know that it's well over twelve hundred We estimate that

it's about 2000 people that have been detained locked up arrested in connection with the investigations of number 11 the last official figure we got was eleven hundred forty seven that was on November 5th. And at that time the government was under increasing criticism for how high this number was. Given the fact that not a single person had actually been charged with any involvement in the crimes of September 11. Why are you locking up over a thousand people when no one has been charged. And so the government responded to that criticism by refusing to release the daily running tally of how many people were arrested. So since November 5th no one outside of government actually knows the official number. But but I think conservative estimates we would put it at about 2000. Now those are not people who are all still detained but those are people who were detained at one point some of whom still are today. The vast majority of them are detained under immigration authorities. And those who are held under immigration authority have been to a person

tried in secret. Their hearings or their hearings are closed to the public closed to the press close to legal observers close to members of their family and a daughter could be seeing her father be sent out of this country for good. And she can't even attend the hearing that decides his fate. There are hundreds of people who are in this position. Pastor Ravi had died. That is one Congressman Conyers actually went to try to attend his hearing around the first of the year and was denied entry to that hearing and is now play different a lawsuit seeking entry. Many of these people were held for weeks at a time without any charges being filed at all. The government has now charged them with technical immigration violations overstaying a visa taking too few credits as a student on a student visa working without authorization on a student visa things that you can be deported

for but you're generally not locked up and these people are all locked up. Well you might say well that's of that's justified if we really are facing this tremendous threat but then you look at how many people have actually been charged with any involvement in the crimes of September 11. And it's one Zacharias Moussaoui and he was picked up before September 11. So he.