U.S. Civil Liberties In September 11's Wake
A Roundtable Discussion with Jamie Fellner, Elisa Massimino, and Michael Ratner
December 31, 2002
Dialogue: Let’s start with the situation immediately following the September 11 attacks. It was a frightening time—all the more so here in New York. People who had never really thought about patriotism were breaking out flags, bumper stickers, and pins to demonstrate their support. How did you as human rights activists make sense of your roles?
Michael Ratner: One of the hardest things for us to do in that first six months after the attacks was to argue for the government to analyze critically what had happened and why. People who suggested in the first few weeks after the attacks that the United States should examine its foreign policy in the Middle East were attacked by the administration, the media, and the public. I definitely was not as direct in my criticisms as I am today. Instead, I addressed other areas of concern—ones that were not as contentious, such as pushing the government to launch an investigation of intelligence failures before passing new laws.
Elisa Massimino: We knew from the beginning that we would have to join forces and build a coalition. Two days after the attacks, we all participated in a coalition meeting, dubbed “In Defense of Freedom,” with representatives from more than 100 groups representing a broad spectrum of groups that disagreed on an enormous number of issues. But we agreed on the fundamentals.
Dialogue: What were those fundamentals?
Massimino: We agreed that it is wrong for the government to target people based on their race, religion, national origin, or immigrant status. We agreed that security could be ensured without abridging the Constitution. We rejected the assertion that proposals put forward as “antiterrorist” necessarily bring greater security. We believed that it was important to reaffirm the right of peaceful dissent. We worked together and drafted a statement by the end of the meeting. The understanding we forged that day has made us more effective in addressing the challenges that have emerged over the last year.
Jamie Fellner: This coalition was unprecedented. I have never seen anything like it in all my years of human rights work.
Ratner: I recently talked to one of the organizers, Kit Gage, and she was still amazed that everybody was able to pull this group together so quickly in light of the shock of September 11. It was remarkable.
Dialogue: Did you have any models to fall back on?
Ratner: This environment was not totally unprecedented. We saw some parallels with the 1980s when a similar group was in the Pentagon and the State Department under Reagan. The government launched a big program to spy on Central American activists. There are also historical parallels with the McCarthy era, but nothing quite like this.
Fellnder: Going back to your earlier question, I want to say that all three of us are Americans. We live in this country. We work for organizations that are predicated on internationalist ideals. The United States was a primary force behind codifying those ideals in treaties. So when our home was attacked, it was not as though any of us did not feel it. But I am worried about the repercussions of the policies developed in response to September 11. I don’t feel that by criticizing I am unpatriotic—I consider it deeply patriotic to ask the United States to live up to the finest ideals in its tradition. We do what we do because it is both the right thing and because there is a strain in United States history and culture that affirms values to which we are all personally and professionally committed.
Dialogue: As more time passed, how did your groups address the U.S. public’s willingness to trade civil rights for increased security?
Fellner: In the months following the attacks, our concerns for the protection of civil rights were not shared by the public. That’s nothing new: we are often on the wrong side of these issues from the public’s perspective.
Elisa, Michael, and I all work for organizations whose efforts on human rights abuses taking place in the United States are often not well received. Even some Human Rights Watch supporters in the United States who are concerned about what happens to Chinese dissidents have a different criterion when it comes to abuses at home. Although the post–September 11 policies, such as extreme cases of government secrecy, repressive legislation, and denial of free speech and due process are not something we have had to confront in the U.S. in recent years, dealing with them is not so different from the work the organization has been doing in other countries. We are doing what we always do. However, I never thought I would be writing up an informational pamphlet for distribution in the United States about why torture is unacceptable.
Dialogue: Have you put extra emphasis on your public education campaigns?
Ratner: The Center for Constitutional Rights is primarily a litigation organization, but after September 11, we realized that litigation is limited without the support of the public. Therefore, we have been trying to do more public education and outreach—everything from printing “Know Your Rights” pamphlets to participating in more radio and television interviews. We have circulated briefing papers with stories more personal in approach. We have published books about the USA PATRIOT Act and the military tribunals.
Massimino: Explaining things to a broader public is much more important now. For the past year, all three of us have been doing talk shows and call-in radio shows, and we understand that the public is afraid. At the Lawyers Committee, we have redoubled our efforts in public education. I have spent far more time talking to people outside Washington and New York than I ever have before. While direct input to policymakers is critical, it would have been a mistake to invest all of our attention there. Policymakers will not take up these difficult civil liberties issues unless they believe there is a constituency that cares about them. Winning the support of the public is imperative.
Dialogue: Give us some of the details on your approach.
Massimino: We found it extremely useful to talk about trade-offs. But if people believe that the choice between liberty and security is a zero-sum game, if they are presented with the choice abstractly, liberty loses every time in this environment. When we started asking which measures would actually make people safer and which specific liberties people were willing to give up, we found more common ground, and the hysteria began to evaporate. I have done my own ad hoc polling on the military commissions by surveying cab drivers. I started by questioning the basic idea of military tribunals, and people would say, “You just don’t trust the military.” Then when I asked more detailed questions—Is it okay if the trials are held in secret? Is it okay if the detainee does not have a lawyer?—the responses changed to, “Oh, that’s not really what I think of when I think of this country,” or “That wouldn’t be fair.”
When framed in specific terms, people are at least willing to ask the questions and respond to the equation a little bit differently. But to get there you have to engage with people and start from where they are mentally—and right now they are extremely nervous and anxious for the government to protect them. The need for public education is still very great. Ratner: Let me just add that I think public education is crucial, but as long as people do not feel safe in this country, it can only go so far. If people believe there is going to be another al-Qaeda attack, it will be incredibly difficult to roll back the repressive measures that Congress has enacted. This climate will persist for a while.
I am not pessimistic, however. We must continue fighting these measures because we can make some small in-roads. We were able to limit military tribunals to some extent, and we may be able to open immigration hearings.
It is worth the fight to educate the public, but the fear is very real. If you were to ask New Yorkers whether they would support some measure that would make their family more secure in the face of an imminent terrorist attack, most would say yes. Even I would. That is a serious problem.
Dialogue: Do you feel that human rights organizations should do anything to address that public fear, and if so, can they?
Massimino: We all recognize the government’s responsibility to increase security.
Fellner:: Being a human rights activist does not mean wanting to be insecure. When it comes to trading civil liberties for more security, human rights activists are not absolutists. For example, I do not have a problem if every single person in the airport has to be patted down. It is an infringement of my liberty. It is a hassle. But I have no problem sacrificing my liberty for security in this case. Where I do have a problem is if the government is searching people on an irrational and discriminatory basis. I want to ask: Is the measure justified? Is it tailored? Is it proportionate? Is it nondiscriminatory? People like to think that rights activists are absolutist. There are very few absolute rights. Torture is intolerable—freedom from it is an absolute right. But in terms of liberty there is room for trade-offs.
Massimino: I think it is important to support an affirmative agenda on security. But there are limits to how specific human rights groups can get in promoting security measures; that is not our area of expertise. My organization has focused on fostering discussion about these proposals and encouraging people to ask questions about how they will make us safer, in addition to how they will affect people’s rights. I think that posing questions like these is a stronger way to shift the debate—and one that brings us into common cause with everybody.
Ratner: A hallmark of the new security measures is that they stand outside the system of checks and balances. There is no way to check what the executive is doing with the Guantánamo detainees or with surveillance techniques like wiretapping. This is not smart government, and it does not make us more secure.
Massimino: Pushing the idea of smart government is an important strategy in this environment. There is a lot of clear evidence of government failures prior to September 11, such as failures of intelligence agencies to talk to one another or to follow up on tips, failure to allocate money to the right places and to use money wisely, and basic failures of security in the airports. The public has this sense that the government has not kept them safe, and yet there is also a competing, deep desire to believe that the government knows what is best and will be able to protect us.
So the message that we have found resonates with people is the idea of checks and balances. Our system of checks and balances not only keeps one branch of government from overreaching, but ultimately makes for better policy. We have found we can garner public support by showing people that checks and balances actually lead to higher security. When you have a USA PATRIOT Act and there is no debate in Congress, what you get are old proposals that were floated and rejected in the past when they were evaluated on their merits. But these proposals gain new life when people think policymakers and the public won’t look at them too closely. Checks and balances force government to adopt more effective security policies.
Dialogue: Is it possible that recent public debate on civil liberties and the stepped-up work your groups have done in public education have helped raise awareness of human rights in the United States?
Massimino:: Jamie, what you folks at Human Rights Watch have done with your Opportunism Watch program has done a lot to raise awareness of human rights in the United States. The program makes comparisons between human rights abuses that have occurred in the United States after September 11 and human rights abuses of governments in other countries. When you point out the similarities between the military tribunals here and the military tribunals in Indonesia, people realize the gravity of the situation. Showing the American people that abuses now occurring in the United States parallel those seen in Northern Ireland, Turkey, Indonesia, or India is a way to make Americans rethink domestic abuses in human rights terms.
Ratner: That is a good point. I have argued we should start to call the USA PATRIOT Act the “United States Internal Security Act.” One of the heaviest criticisms of the military tribunals is that the United States condemned such tribunals in Nigeria, Peru, and a number of other countries. Making these connections is a tactic we use all the time.
Fellner: While Opportunism Watch does help Americans make those important links, we still have difficulties using human rights language here in the United States. I had a long conversation with a donor concerned about criminal justice issues, which my program at Human Rights Watch has worked on substantially. When I asked her if she would be interested in receiving a grant proposal from us, she replied, “Oh, we don’t fund human rights.” I thought to myself, this is exactly the dilemma we face. Sometimes we are all forced to downplay human rights language because, while we are trying to educate people about human rights, we are also trying to get a message to resonate with the American people. Often, when we use human rights language in terms of our work in the United States, Americans just stop listening.
Kit Gage on In Defense of Freedom
Immediately following the September 11 attacks many of us in the civil liberties community who had been through previous terrorism crises could see what was coming. There would be enormous pressure on Congress to pass a bill—one that would most likely trade civil liberties for a quick security response. We knew that in order to secure the protection of civil liberties we would have to unite. A coalition like the National Coalition to Protect Political Freedom, organized in 1997 following the passage of the 1996 Antiterrorism Act, had proven to be an effective way to educate the public and the government, as well as to put pressure on Congress.
A small group of activists moved quickly to form In Defense of Freedom, a politically diverse aggregate of civil liberties groups, human, civil, and ethnic rights groups, and members of the religious, legal, scientific, and medical communities. On September 14, 2001, more than 100 activists of all political stripes came together at the Washington office of the American Civil Liberties Union to discuss potential threats to civil liberties. Our task was to craft a statement that would encourage Congress to respond carefully: on the one hand, protections against attacks on civil liberties must be kept, but, on the other, these must be balanced against the requirements of prosecuting terrorists. By proceeding cautiously and thoughtfully, these two needs could be met in a way that would not challenge fundamental constitutional guarantees.
The group was an extraordinary assembly of activists and representatives of national NGOs from the left, right, and center. We were able to cast such a wide net by using any and all contacts we had made over the years. In the end, 162 organizations signed on to the “In Defense of Freedom” statement. In all my years of activism, this was the largest and broadest group I had worked with, most likely because the post–September 11 political situation represented the greatest potential threat to civil liberties the United States has ever seen.
In just one day, this odd-fellows collection drafted a unified statement to Congress. It did not take a position on any specific piece of legislation, but rather was purposefully broad in order to keep the coalition intact and appeal more effectively to all members of Congress while avoiding a public backlash. The statement’s basic demands—for example, that politicians proceed by “considering proposals calmly and deliberately with a determination not to erode liberties and freedoms” and “resisting efforts to target people because of their race, religion, ethnic background, or appearance”—were difficult to contest.
Because of the size and diversity of the group and the urgency of its mission, discussion was limited to specific wording. Two contentious issues were the death penalty and the advisability of the use of torture as a mechanism of interrogation. Members of the group discussed whether to call for using the criminal justice system to execute the accused terrorists, or rather to take alternative methods to inflict the most pain before death, outside of the legal process. In the final statement, the decision was made to avoid specific references to the criminal justice system and to torture.
We released the statement at a press conference on September 20, 2001, the same day that the USA PATRIOT bill was announced. The statement and press conference helped mobilize public pressure on members of the House of Representatives Judiciary Committee to develop detailed amendments to the bill. That bipartisan effort was later short-circuited by House leadership, however, and the original bill was passed unanimously in the House. In the Senate, Judiciary Committee Chair Patrick Leahy (D-VT), without hearings, quietly negotiated a few changes with a small group from Justice Department. He was assisted by a few civil liberties and immigration advocates from our coalition, who sparred over every word.
In Defense of Freedom did little as a group beyond this statement, although most of its members have remained active individually. But this immediate reaction—even if its effect on the USA PATRIOT Act was ultimately minor—proved how quickly a diverse group of motivated people can be mobilized in a time of need. Groups representing almost every sector of the population spoke out that day to caution the government. We undoubtedly have not seen the end of this, and we will unite again in different and creative ways until the government hears our message.
To view the full text of the “In Defense of Freedom” statement, visit www.indefenseoffreedom.org.