On November 25, Indymedia spoke by telephone with Nadine Strossen, President of the ACLU. Strossen discussed the plight of civil liberties in the US today revealing urgent information about the erosion of our rights, the ACLU's position that grass-roots struggle will be key to defending our rights, the bi-partisan nature and history of the dismantling of civil liberties and the possibility of impeaching George Bush.
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Q - Hello, Nadine and welcome. Thank you for taking this call. I want you to know that you're being taped for this interview. And the first thing that I would like to ask you is: has the ACLU been the recipient of more donations over the past year and has this helped you address the onslaught of legal work brought about by the excesses of the Patriot Act and rewriting of FBI regulations by John Ashcroft?
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A - Hi, Jean, I'm delighted to be interviewed by Baltimore Indymedia. The answer is yes. The ACLU has received a record number and amount of contributions and new memberships starting with September 11th 2001 and continuing to this day. In fact last week we had a record number of new members join, more than has joined in any single week since the ACLU was founded in 1920. We think that is because we were running in 5 or 6 media markets around the country a 30 second ad that we put out that we call the "Ashcroft ad" or the "Constitution ad." It's very well done visually but it shows the slashing of the 4th Amendment, cutting out the Habeas Corpus requirement and so forth. At the end it says, "John Ashcroft, he's supposed to defend the Constitution, not rewrite it." People are really responding to that. So the truth is that we have so much more work to do and people realize that--both our hard core members and many new members that are flocking to us. And that's why they're joining up and tha's why they're contributing in record amounts but the sad thing is it's hard to keep pace with the new challenges. You mentioned the USA Patriot Act and the FBI guidelines and those are certainly important, but you also know that it seems as if almost every day, certainly every week that there are new onslaughts that we have to struggle against. Just within the last week there were several very upsetting--I don't want to say setbacks, I'm more optimistic than that--let's say challenges. For example, with the Total Information Awareness System that came to light and the review court's approval of this expansive new surveillance power. So the challenges are growing and it's not just a fundraising device to say this--our resources--our personnel are stretched to the maximum. Because in addition to the fact that we are dealing with post-September issues across the spectrum and for everything that receives national press there are many other issues that are happening on the local level and state level that are equally important and dangerous. We were a very busy organization before September 11, 2001. That pre-existing agenda of all fundamental freedoms for all people continues to be very important to the ACLU and certainly to our adversaries who are now taking advantages of recent development including the Republican victory in Congress including the fact that most public attention is riveted on terrorism. So, some things are being slipped through below the radar screen that are very worrying in terms of everything from electoral reform which was a very big issue and public concern two years ago and continues to be a major concern for the ACLU, reproductive freedom continues to be under assault. And the faith-based initiative - I don't think most people know that our government gave Pat Robertson $500,000 for social services.

Q - Some of this injection of language in bills is very insidious. For example, the No Child Left Behind allows the military to get information about all high school students and recruit without hinderance on campus.

A - You've raised to my mind that you can't judge a bill by its title. Also, there are these omnibus bills that deal with seemingly one subject then something else will be smuggled in, with the public and the press not picking up on it. I think even many members of Congress are not understanding what they're voting for.

Q - What are the top three cases that you are challenging the Patriot Act through the ACLU--and what are the significance of these cases?

A - I would not want to limit my answer to only the Patriot Act. Because as terrible as that was, it was unfortunately the first or one of the earliest of what has been the ripple effect of measures that curtail our civil liberties and secondly when you say cases, there are other strategies we're using in addition to bringing lawsuits in court. Sometimes because of technical legal doctrines there's not an effective or an immediate lawsuit that can brought but there are other things that you can do such as having the law amended or trying to get information about how it's being enforced so I'm going to construe your question differently to, I guess, what are three most important tactics that we're using to fight the whole array.

Q - Good, yes.

A - The first is to get information. It's an absolute prerequisite for challenging in the legislative branch of government and the executive branch any government over-reaching, because they are susceptible to political pressure. The Congress can exercise oversight power, it can amend the laws, it can stop the government from enforcing the law in a way that's abusive. The power may be there, but it may not be used or it may not be abused. But the prerequisite for launching any of those strategies is information. You need to know what the government is doing. How it's exercising these new powers that it's assumed. That is why we have had a concerted strategy in many forums of pursuing the Freedom of Information Act at the federal level and then when the government doesn't turn over records going to court and bringing Freedom of Information lawsuits. We've got several of those requests pending. There is one that relates very directly to the USA Patriot Act and that's certainly one of our top three initiatives if I have to choose. And that is to get information from the government, statistical information, about how it is using some of these sweeping new search powers that can be exercised against ordinary citizens who aren't even suspected of any crime at all, let alone a terrorist crime. For example, the power to go to libraries and demand that they turn over records about their patron's records about book borrowing and web surfing. That's the sort of thing that the typical American would be very upset to learn that his or her library records are being turned over and suddenly would create enormous political pressure to amend at least that aspect of the USA Patriot Act. Most people blithely say, "Oh, well someone else's rights are being violated--the Muslims or people from foreign countries or non-citizens." I think they would be very irate if they saw the extent to which this personal information about people like them and their reading habits are being turned over to the government. So that's one very big initiative. Getting information about how these new powers are being enforced. We've had to go to court. In fact I think there's an argument in federal court tomorrow because the government is stone-walling after basically agreeing that we were entitled to the information under the Act. They just haven't turned it over so we have to go to court to get that enforced.

The second major initiative is quite related, and as a journalist yourself, you're aware of the fact that this administration has been called by many experts one of the most secretive in history. I've heard some journalist organizations call it the most secretive. And that's certainly been true with respect to the post September 11 investigations. Here, I'm talking about the immigrants who have been subject to sweeping dragnet investigations, interrogations, incarcerations, deportations--all in secret. We can't get their names, we can't find out whether they have contact with lawyers, we can't even find out if they are not being held incommunicado of their family members, which several reports have alleged. Their deportation hearings have been closed to the public, to the press and to their family members. Charges are brought against them based on secret evidence. And then they're deported in secret. This sounds like Afghanistan under the Taliban. So we have a series of initiatives including lawsuits challenging all of those types of secrecy. I think one of them will head to the United States Supreme Court. These are the post September 11 cases that have advanced the furthest in the courts. And again, that's an absolute prerequisite for not only liberty but also for democracy in this country is that we the people have information about what the government is doing in our name.
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And then if I had to pick a third one. I think it's important to talk about the grassroots local activism strategy that we are using in an unprecedented way for the ACLU. It's unprecedented because it's so expensive and from your first question--it takes a lot resources to bring a case in the courts but that pales in comparison with any grassroots organizing which is much more pro-active and labor intensive and we've decided that that's absolutely something that has to be done to raise people's consciousness about the new powers that the government is getting, to organize them to take action, including at a local level. For example, you've probably seen that there's a movement, and we're part of this, too, to get local city councils and state legislatures to adopt resolutions that would ask for a repeal of the USA Patriot Act, that would instruct local law enforcement officials not to engage in the kind of surveillance that is now authorized by the FBI guidelines. In other words, not to engage in surveillance and infiltration based on religion and political beliefs and to eschew racial, religious and ethnic profiling. So, we've actually hired half a dozen to a dozen new field organizers around the country to be working with local community groups around the country to organize this kind of local and grassroots attempt to maintain our freedom as well as our safety and to roll back some of the rights violations that have already been put in place.

Q - Given that the administration is appointing conservative judges to the bench, can we expect that our civil liberties will be protected in the courts?

A - No.

Q - So where is the struggle for civil liberties going to go on?

A - We're obviously thinking in the same directions, Jean. We can't count on the courts to fulfill their constitutional function as the ultimate safety net for individual and minority group rights. I have to say I have been so pleasantly surprised by how good and responsive and responsible the courts have been to date. We have won so many cases including with votes from conservative Republican appointees and you know that the ACLU is a non-partisan organization and there is no correlation between conservatives on the one hand and civil libertarians on the other. You've probably seen that we just enlisted two staunch conservatives, Dick Armey and Bob Barr on particular issues--government surveillance. They've been excellent and really great allies. And then Souter and Stevens are probably the two most pro-civil liberties justices on the Court and both Republicans or who were appointed by Republicans. So I hasten to stress that I'm not making a partisan comment, but it is a comment that has to do with ideology. When President Bush said he wanted to appoint justices like Scalia and Thomas, he meant large government conservatives. Sometimes I think that's an oxymoron. Isn't a classic conservative someone who's against big government? From a civil liberties point of a view the way to express the concern is that the justices who are being appointed are judges who have a very expanded notion of government power and a very limited notion of individual rights and also a very limited notion of the courts power to protect individual rights. Scalia, for example, is very majoritarian in his emphasis. Whatever the majority votes for that's fine with very few exceptions. So that is very troublesome. By definition, the more the courts become dominated by that viewpoint, the less that it will act as a check and balance of the overreaching of the other two branches of the federal government. That's why the pressure has to come from below, from the people to their elected representatives. The elected representatives certainly are responsive to political pressure. And here I can site a couple of examples. The administration has already rolled back the more drastic versions of a couple of post 9-11 measures that were very violative of civil liberties. We think they still go too far, but they don't go as far as they did in their original incarnation in response to public pressure. One is the TIPS program (The Terrorist Information Preventions System)--you know what that was. The second is the secret military tribunals order which when Rumsfeld issued the regulations last spring, they were far less Draconian than the President's original order on November 13, 2001. And it's no coincidence that those were programs that received a firestorm of criticism from the public and journalists across the political spectrum. So if we can unleash that kind of concerted criticism at the grassroots level, I think that we are going to see rollbacks. And some members of Congress have had second thoughts on their own. Jon Corzine said he really regretted and apologized for having voted for the USA Patriot Act. It just happened too fast, he didn't have enough to think about it and he would not do it again and he would vote to repeal it.

Q - You talked about the Freedom of Information Act and I wonder if we are going to see it work for people as it did in the past? I see the government resisting requests from people and institutions to get access to information through the Freedom of Information Act. Have you found that to be the case?

A - Yes, that's documented. John Ashcroft issued a directive last fall to government agencies which was a reversal of the prior directive of the Justice Department under Janet Reno. Basically the Reno directive had been you've got to comply with all Freedom of Information requests unless there is a specific legal objection against turning it over and you can show some demonstrable harm from turning over the information. Ashcroft reversed that. So the presumption is against disclosure and he offered the services of the Justice Department lawyers to defend any government officials who refuses to turn over any information under the FOIA. And this has been documented also by the courts. Jean, there's just been a succession of rulings by ... it's the Federal District Court in Washington, DC, that takes the cases if the government refuses to respond to a FOIA request. Then the next step is that you go to the Federal District Court in District of Columbia. And we've won those cases about information relating to the secret so-called "detainees" post September 11. At the very same time that other human rights organizations and public interest organizations have won similar cases about the energy committee that Dick Cheney chaired and some other environmental matters.

Q - In your speaking engagement with Christopher Witcomb at Hopkins and in the ACLU literature, it says that it will take a long time to undo what has already been done. What makes you conclude that?
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A - It's much harder to get Congress to repeal a law once it's been passed when there's no automatic sunset provision than it is to dissuade Congress from passing a law in the first place. Once the law is there, the status quo sets in and it's very, very hard to overturn it. I'm not aware of any historical example and I'm not the greatest student of this aspect of history, so I don't want to put too much emphasis on it. A number of years ago Anthony Lewis gave a talk to a small group of ACLU leaders about this (this was in the Clinton administration in reference to the most recent anti-terrorist law that was passed before the one passed in 2001). Tony Lewis, who, as you know won his first Pulitzer prize during the McCarthy era, said that of "all the civil liberties abuses I've documented throughout this long journalistic career, the worst is what we've had in the last 5 years." And it was because of the 1996 anti-terrorism law, but also because of a whole series of other statutes cutting back on immigration and many of them going below the radar screen as we were talking about earlier. He said, "yes, during the McCarthy era we had a Congressional committee that was committing all kinds of violations, but once the committee went out of existence, its work no longer had any power to do any harm." During World War II we had the executive orders via the Roosevelt administration that perpetrated such horrendous injustices against Japanese Americans but that was an executive order. With one stroke of the pen the President can undo the executive order. But where is an example where so many civil liberties violations have been reified in the form of a statute enacted by Congress? And when does Congress voluntarily give up power that is taken or the executive branch has taken? So, even apparently, I hear from people who do follow Congress more closely than I do that even when there are sunset provisions, it's almost automatic that the law will get re-enacted anyway. So I'm trying to think of a word--it's the opposite of--it's a way of saying "a lack of momentum," but its one word to say it, but anyway, you get the idea I'm talking about.

Q - Is there any similarity with what John Ashcroft is doing without even bringing before Congress radical changes to regulations and guidelines for the FBI? Is there anything like that in our history that you can point to that tells us where we are right now?

A - The comparison that I've heard is in terms of the FBI. One historical connection is often drawn between the excesses and abuses under J. Edgar Hoover that led to the Levy guidelines being put in place which are the ones that Ashcroft revoked and has gone back to the Hoover era where there was surveillance and infiltration on the basis of nothing other than peaceful advocacy of political change--the civil rights activists and the anti-war activists. That's one very strong analogy and the ACLU actually put out a report at the time of the Martin Luther King Birthday holiday this year that drew precisely that parallel--that the powers that had been used to harass Martin Luther King and other civil rights activists are precisely the powers that are being claimed by this Justice Department again. The second historical parallel I've heard is in respect to Attorney General A. Mitchell Palmer right after World War I during the "red scare" era. There are uncanny similarities between what Palmer had done and what is being done by Ashcroft. The ACLU issued another report right at the September 11th anniversary this year and all the way through we drew comparisons to problems now. It starts when the ACLU was founded which was at the time of World War I and the "red scare" and the Palmer raids. And you would think that you were reading about what is happening now. Targeting people on the basis of immigration status and political beliefs and detaining them without due process and without probable cause. Subjecting them to secret deportations and again, the Palmer raids themselves were instigated by a series of terrorist acts on US soil, namely bombs around the country.

Q - Is it possible that what is being done by the government is so far off the mark that there could be an impeachment process for George Bush down the road?

A - That's a really interesting question. It's not at all inconceivable. And the ACLU was the first national organization to call for the impeachment of Richard Nixon back during the Vietnam War era, specifically because of the series of constitutional violations of constitutional rights and civil liberties in conjunction with the war in Southeast Asia. So it's conceivable that we could reach a point where we made the same conclusion about the current administration.

A - How far can this go without beginning to be fascism?

Q - Right, and Jean, I have to say I have no love lost for the policies of this administration that we've been talking about but it's very important to emphasize that Congress bears a huge amount of the responsibility here--that's why sometimes when some of my liberal friends demonize John Ashcroft too much and that really takes the sting off. It really relieves Congress of its responsibility of a co-equal branch of the federal government. Why is it that in the entire United States Senate, only one person votes against the USA Patriot Act? And you know, even, may he rest in peace, Paul Wellstone, voted in favor of the USA Patriot Act. And in Congress there were 66 votes against, but still the overwhelming majority of Democrats as well as Republicans not only voted for that law, but did so with no debate, almost no deliberations. It was a real abdication and travesty of the legislative process in our democracy. So, by saying that it would be conceivable that there would be impeachment against the administration, I also think that Congress is very culpable here. The second cautionary note or perspective that I wanted to inject is that I don't have any illusions that things would have been much different if this would have happened while Bill Clinton was president. Prior to September 11th, the worst terrorist act on US soil was the Oklahoma City bombing and Janet Reno and Bill Clinton acted in parallel fashion to John Ashcroft and George Bush by proposing and pushing what was then the most draconian anti-civil libertarian law, the so-called "Anti-Terrorism and Effective Death Penalty Act," which was fraught with civil liberties violations including cutting back on privacy and free speech and an overly expansive definition of terrorism with real damage to the writ of Habeas Corpus and due process rights.

Q - What we're talking about in a sort of legal or constitutional way ... you can get lost you in it in isolation from the rest of the world ... we might want to look at how does it fit with the foreign policy, are these new laws related to imperialism?

A - And that is something that I'm going to take a pass on because the ACLU focuses its comments and activism on this country. But I can say that in addition to having clones of the USA Patriot Act having been passed by state governments, and some of the state initiatives have gone even further than the federal government. We managed to get the TIPS program killed at the federal government level, but it's being passed, pushed through by Governor George Pataki here in New York who recently got elected by a resounding majority. But correspondingly, our government is pushing through similar laws in other countries around the world. John Ashcroft himself as well as President Bush have traveled and spoken to the parliaments and other government leaders of democratic countries around the world and are getting them to pass their own version of this anti-terrorism legislation.

Q - I appreciate your taking time to answer these questions.

A - Thank you, Jean, I will visit your website.