Leslie Burg, Newton's Iraq Resolution
Bill Moyers, Restoring The Public Trust
Bill Moyers June 4, 2003
Howard Zinn at Spelman College
Bill Moyers May 15, 2005
Bill Moyers December 1, 2004
Sen Byrd Oct 17, 2003
Sen Byrd April 7, 2004
MP George Galloway Senate Testimony
MP George Galloway interview by Amy Goodman
Al Gore Nov 29 ,2003
Kennedy Oct 16, 2003
Kennedy Jan 14, 2004
Kennedy March 5, 2004
Kennedy: America's Future in Iraq
Mark Dayton Opposing Ms. Rice
Martin Luther King: Beyond Vietnam
Iraq Veterans Against the War
Howard Zinn at Spelman College
Remarks Prepared for Delivery November 9, 2003
FREEDOM AND SECURITY
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, Im just a recovering politician but I
truly believe that some of the issues most important to Americas 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
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 its 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 dont 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
its almost impossible for that person to prove his innocence because he
cant talk to a lawyer or his family or anyone else and he doesnt 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?
Heres 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 dont even have to show probable cause that youve done
anything wrong. Nor do they ever have to report to any court on what theyre
doing with the information. Moreover, there are precious few safeguards to
keep them from reading the content of all your email.
Everybody fine with that?
If so, what about this next change?
For Americas 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 didnt 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 thats 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 doesnt 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 youre 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
So, is that fine with everyone?
Listen to the way Israels 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
I want to challenge the Bush Administrations 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
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 Rumsfelds desire
to avoid embarrassment ahead of the nations 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 publics 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
Committees 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 Presidents 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 governments 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
- With Mohamed Atta now also identified as a possible associate of the
wanted terrorist, Al-Midhar, analysts could have added Attas 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: Were looking
for a needle in a haystack here and he (Ashcroft) is just piling on more
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
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.
Theyre still not checking incoming cargo carriers for
radiation. Theyre still skimping on protection of certain nuclear weapons
storage facilities. Theyre still not hardening critical facilities that
must never be soft targets for terrorists. Theyre 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 dont 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
But first, lets 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 Administrations 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: whatsoever you do unto the least of these, you do unto
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
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 Americas image. Even England and Australia have
criticized our departure from international law and the Geneva Convention.
Sec. Rumsfelds 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 book
1984 than anyone ever thought would be possible in the United States of
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
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 unilateralism and dominance
are the guiding principles of their disastrous approach to international
relations, they are also the guiding impulses of the administrations
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 agents 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 Greenpeaces 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, Womens 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 Georgiawere 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
Bushs 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
The White House timing for its big push for a vote in
Congress on going to war with Iraqalso happened to coincide exactly with the
start of the fall election campaign in September a year ago. The Presidents
chief of staff said the timing was chosen because from a marketing point of
view, you dont introduce new products in August.
White House political advisor Karl Rove advised Republican
candidates that their best political strategy was to run on the war. And
as soon as the troops began to mobilize, the Republican National Committee
distributed yard signs throughout Americasaying, I support President Bush
and the troops as if they were one and the same.
This persistent effort to politicize the war in Iraqand the
war against terrorism for partisan advantage is obviously harmful to the
prospects for bipartisan support of the nations 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 a
side 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
Our framers were also keenly aware that the history of the
world proves that Republics are fragile. The very hour of Americas 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
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 Americahas 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 latitude 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 Americaunique,
require no less. The Bush Administrations treatment of American citizens it
calls enemy combatants 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 Convdntion, a hearing that the United Stateshas given those captured
in every war until this one, including Vietnamand the Gulf War.
If we dont 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
Afghanistanand 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 nations 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 Presidents 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 generations. 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
Constitutions 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.