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Wilmington, Delaware

I am delighted to keynote the presentation of the Gerald E. Kandler Memorial Award. I know that many of you are disappointed that your first choice, Rush Limbaugh, wasn’t able to make it tonight. But I was told that Bill Bennett was taking him to his first hypocrites anonymous meeting. So I’m happy to fill in.

Don’t worry. I’m going to stop with the jokes and get you home in time to see the political figure we are all most proud of in America today – President Jeb Bartlett.

I want to take a moment to recognize the two individuals we are honoring tonight – Liane Sorenson and Carl Schnee. We are all here tonight to pay tribute to their commitment to civil liberties and their service to the State of Delaware and our nation. I want to personally commend them for their efforts and I ask all of you to join me in acknowledging their achievements. The attacks of September 11 dramatically exposed our country’s vulnerabilities and presented us with enormously complex questions: How do we police our borders? How do we defend our critical infrastructure – our computer networks, our power grids, and our water supplies – against a catastrophic terrorist attack? How do we prevent terrorist groups from gaining access to weapons of mass destruction? In short, how do we prevent the attacks of September 11th from happening again?

In responding to these questions, we have been forced to reassess the role of the intelligence community, the FBI, the military, the INS, the border patrol and countless other government functions. There are public servants working hard and making sacrifices everyday as part of this reassessment; and we appreciate their dedication to our country.

Even more than the public servants doing dedicated work here at home, I particularly want to acknowledge all the men and women who are still on the front lines in the Middle East and Afghanistan, risking their lives to win the peace. They honor all of us with their service, and I know you join me in wishing their safe return home.

Terrorists do need to be caught and punished; our vital assets secured; the laws which protect our borders strictly enforced. But these tasks have to be done with respect for our constitution, our laws, and our global responsibilities.

In 1961 Attorney General Robert Kennedy said: "On this generation of Americans falls the burden of proving to the world that we really mean it when we say all men are created free and are equal before the law. All of us might wish at times that we lived in a more tranquil world, but we don't. And if our times are difficult and perplexing, so are they challenging and filled with opportunity."

More than 30 years later, that quote is striking not only for its eloquence but also for its continued relevance. But in 2003 we have a very different Administration – with a very different perspective on how to respond to challenging times. In the aftermath of 9/11, the Administration has engaged in infringements of civil liberties unprecedented since the era of COINTELPRO and Watergate. The PATRIOT Act, signed into law just forty-five days after the World Trade Center collapsed, has garnered the most attention. Although many of its individual provisions are uncontroversial, the sum of the PATRIOT Act authorities made it easier for the Justice Department to conduct secret searches, plant wiretaps, track internet use and obtain private records of ordinary Americans on demand. The law extends unprecedented authority to the Attorney General to operate without meaningful judicial supervision and permits certain highly intrusive surveillance techniques, previously available primarily for foreign intelligence operations, to be used for primarily criminal investigations.

But Attorney General Ashcroft’s implementation of the act, as much as its substance, is the source of many problems. First, while the Patriot Act was marketed to Congress and the public as a response to the war on terrorism, immediately after the act became law, the Justice Department openly and aggressively sought to exploit their newfound powers outside the scope of their war on terrorism. The Justice Department even offered its staff a course on the Patriot Act’s effect on “everyday prosecutions.”

Second, the Justice Department has refused to make comprehensive disclosures about how they are using the act. Rather, they have chosen to selectively release information to suit their own purposes. Recently, faced with intense criticism, Attorney General Ashcroft revealed that the Justice Department has not yet sought to use its new authority to obtain library records.

But on a number of critical issues – in spite of multiple, explicit, bi-partisan requests from Congress – we don’t know anything about what the Justice Department is doing; not about their ability to conduct “roving” wiretaps, nor about how they are using broad new power to conduct surveillance under the Foreign Surveillance Intelligence Act. We don’t even know how many times the Justice Department has issued “National Security Letters” – a method for acquiring records and other items without any judicial oversight at all.

We only know this: the Inspector General at the Justice Department, found 34 credible complaints of civil rights or civil liberties violations connected with the Patriot Act. American citizens and taxpayers deserve to know more about the activities undertaken by Justice in their names. At the Center for American Progress, we will soon release a report responding to post-9/11 civil liberties abuses, including the PATRIOT Act, with a comprehensive reform agenda. Concerning the PATRIOT Act, the report makes three main recommendations.

First, we should limit the use of the PATRIOT Act to investigations involving international terrorism. The PATRIOT Act was justified by the attacks of 9/11 and enacted into law in an extraordinarily compressed time-frame. Some of the authorities created by the PATRIOT Act could be beneficial in other kinds of criminal investigations. But we should consider whether these authorities should be extended outside of the terrorist context only after there has been ample time for study and debate.

Second, we should reaffirm the role of the independent federal judiciary. Many provisions of the PATRIOT Act replace the role of the independent judiciary with the unilateral determination of the Attorney General or his subordinates. These extra-judicial processes lack constitutional protections. Moreover, there is nothing to suggest that the federal judges are not just as concerned as the Attorney General in protecting the safety of the public=

Finally, we should require comprehensive disclosure by the Justice Department concerning its use of the PATRIOT Act. Selective disclosures only continue to obfuscate the use and impact of the act as a whole. Only comprehensive disclosure will allow for an accurate assessment of the act. Such an assessment is essential, as many of the Act’s provisions sunset in 2005.
But reform of the PATRIOT Act is only the first step. The most serious post-9/11 violations of civil liberties have resulted from reinterpretation of longstanding laws or, in some other cases, on the basis of no apparent legal authority at all.

Recent revelations as to the audacity and reach of this campaign have been startling. In the days after September 11, according to a report issued by the the Justice Department Inspector General, 762 Arab and Muslim men, most lawfully living in the U.S., were rounded up on pre-text immigration violations, labeled as “of high interest” and placed under 23-hour lockdown. Some were denied access to family members and attorneys for weeks at a time. Some were subjected to physical and verbal abuse by correctional officers. Despite the paucity of evidence against many detainees, none were released until “cleared” by the FBI, a process that took, on average, 80 days – and as long as 240 days. Ultimately, not a single detainee was charged with any terrorist crime and all but a handful were affirmatively cleared of any connection whatsoever to a terrorist organization. Nevertheless, Attorney General Ashcroft said in a statement that he makes “no apologies” for the actions of the Justice Department.

These detentions were only a small part of a much larger effort to target Arabs and Muslim males living in the United States.

For example, the Justice Department created the “Special Registration” program at the INS – requiring men residing in the United States from twenty predominantly Arab and Muslim countries to report to INS offices to be fingerprinted, photographed and interrogated. More than 80,000 immigrants have been required to register under this program.

In February 2002, Attorney General Ashcroft ordered the Board of Immigration Appeals, often the last hope for those seeking asylum from a homeland that would subject them to death, torture or other inhumane treatment, to clear its 56,000 case backlog in a little over a year. The Attorney General also announced that, after the backlog was cleared, he would reduce the size of the board from 23 to 11 – deciding which members to retain, in part, on the number of cases each board member clears.

Immediately, the board members abandoned their traditional panels of three and started making decisions individually, often taking just minutes to decide. Between March and September of 2002, the Board of Immigration Appeals issued over 16,000 decisions without explanation, an exponential growth in such rulings over the previous year, with virtually all upholding the immigration judge’s decision.

And in March of this year, the Justice Department took the unprecedented step of allowing state and local law enforcement officials to enforce immigration laws. Now tens of thousands of local police, without any special training, will be enforcing and interpreting immigration law – a notoriously complex and nuanced statute, which is fraught with the danger of racial profiling.

I don’t have to tell an ACLU audience that the Constitution of the United States begins with we the people of the United States. Not we the citizens, or we the native-born. The rights and liberties of the Constitution, save for a few narrow exceptions, are guaranteed to all who live here – not just those who have attained citizenship status. The Justice Department’s post-9/11 activity – a veritable “war on immigrants” – rejects this fundamental principle of the law.

Attorney General Robert Jackson said it this way: “With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. [When a federal prosecutor] selects some group of unpopular persons and then looks for an offense… the greatest danger of abuse lies.”

But the trampling of civil liberties is only part of the problem with the Attorney General’s policies towards immigrants. First, detention of large numbers of immigrants with no connection to terrorism is a poor substitute for, and drains resources from, the much more difficult task of discovering actual terrorists. In the words of the Attorney General himself, testifying before Congress, holding innocent people “takes up resources that makes it difficult for us to do what we need to do with other people who are threats.” And it goes beyond financial costs. The targeting of immigrants – especially Arabs and Muslims – is counterproductive.

Potential terrorist are unlikely to show up to a “special registration” to speak with the INS. But pursuing a policy of “preventive” detentions based on pre-text immigration law violations will discourage law abiding immigrants, as nearly all are, from having any voluntary contact with the government. This means that when immigrants have information about actual terrorist activity they will be much less likely to step forward.

If we believe that terrorists are embedded in certain immigrant communities, we should be pursing policies that foster trust and cooperation with Arabs and Muslims living in the United States.

The forthcoming American Progress Report promotes comprehensive reforms that would ensure immigrants and other foreigners due process of law. It shows how we can accomplish this by taking a number of specific steps. Among them: require that an immigrant who is detained appear before a judge within 48-hours; make most immigration hearings public; end the practice of fingerprinting and interrogating law abiding Muslim men. None of these reforms would make America any less secure. All of them would go a long way to repairing the relationship between immigrant communities and the federal government. The administration’s attitude harkens back the infamous, and universally repudiated, 1942 ruling of the Supreme Court in Korematsu v. United States. In that case the court permitted the detention of over 100,000 Japanese Americans on the basis of the government unsubstantial assertions that they posed a national security risk.

Over 60 years later, Fred Korematsu himself, now 83 years-old and in poor health, has filed an amicus brief on behalf of Yasser Hamdi – a US citizen who has been detained as an enemy combatant and denied access to counsel. Korematsu urges the court to “make clear that the United States adheres to the rule of law even in wartime, and that even in wartime the United States respects the principle that individuals may not be deprived of their liberty except for appropriate justifications that are demonstrated in fair hearings, in which they can be tested with the assistance of counsel.”

Korematsu isn’t the only one looking to reign in the Justice Department. This July, the House voted, with overwhelming bipartisan support, to suspend funding for sneak-and-peak searches. Former House Majority Dick Armey said that Ashcroft and the Justice Department were “out-of-control."

How has John Ashcroft responded to the criticism? Testifying before Congress, he admonished his detractors: “To those who pit American against immigrants, citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends. They encourage people of good will to remain silent in the face of evil.”

Let me say this back to Mr. Ashcroft: pride and patriotism do not necessitate that we turn a blind eye to controversial policy choices. Closing ranks doesn’t also mean closing our minds.

The Administration has presented the American people with a false choice; it is not necessary to forfeit civil liberties in order to enhance security. We can treat immigrants respectfully without tolerating the migration of would-be terrorists. We can protect the privacy of law-abiding citizens without turning a blind eye to terrorist conspiracies. We can respect the rule of law without releasing terrorists into the streets.

Richard A. Clarke, served for 11 years as a counterterrorism advisor to Presidents George H. W. Bush, Bill Clinton and George W. Bush. Departing office last February he remarked: “I have never seen one reason to infringe on privacy or civil liberties.” This administration, however, has demonstrated that they don’t need a good reason to cast aside civil liberties. We need to join together and give them a reason to care. Fighting the war on terrorism does not only mean fighting against terrorists but fighting for our own freedoms.

This ACLU was born a century ago to fight exactly these kinds of abuses of government power. No form of government on earth is the work of angels, and so these problems never go away. The work of the men and women who invented America’s great freedoms has been entrusted to our care. And so Mr. Ashcroft, we’re not going away either.

Thank you, and good night.

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