‘We must avoid “mission accomplished” mentality’

If you need a new president of the American Civil Liberties Union, after seven years of a ‘war on terror’ that decimated individual liberty and at a time when shock jocks describe the ACLU as ‘treasonous’, then it’s probably wise to turn to Brooklyn. ‘Restoring America’, as the ACLU describes its post-Bush plan to rescue liberty, is not a job for a mild-mannered lawyer from Manhattan or a celebrity solicitor from sunburnt LA. No, you need the qualities Brooklyn is known for: tough talking; no nonsense; a built-in capacity for BS-detection. All of these traits are embodied in new president Susan Herman, who welcomes me into her newspaper-strewn office on the eighth floor of the Brooklyn Law School with a firm handshake.

‘Becoming president of the ACLU is humbling – and daunting’, says Herman, Centennial Professor of Law at Brooklyn and a leading expert on the Supreme Court, as she sticks a sachet into a chugging coffee machine to produce a cup of the ‘strong stuff’ (she needs a lot of this, she says, now that she’s ‘still teaching, still singing in my chorus once a week, and leading the ACLU’). For Herman, ‘the ACLU is the most important organisation in the country’: ‘It’s about preserving America’s soul, its foundation, the rights and principles on which our country is built. Freedom of speech, the right to exercise the religion of your choice, the right to be left alone by the state… that is what America is about.’ And being the individual ‘ultimately responsible’ for protecting America’s soul has, she admits, got her waking up in the middle of the night. ‘I think to myself: I’ll just do the best I can.’

Herman was elected president of the 88-year-old ACLU – America’s oldest and most consistently liberty-loving civil liberties organisation – last month, taking over from Nadine Strossen, the professor of law at New York Law School and implacable defender of free speech who led the ACLU from 1991 to 2008. Strossen was the first woman to lead the ACLU; Herman is the second. She comes in at a crucial time in the debate about the future of freedom in the US, following eight years of an administration that launched a shock’n’awe attack on individual rights in the name of protecting America from those ‘catastrophic technologies in the hands of the embittered few’ (as the National Security Strategy of 2002 hysterically described the terrorist threat to the US). Under Bush, the ACLU, in daring to criticise new rights-obliterating national security laws, found itself denounced as the aider and abetter of terrorism. Shortly after 9/11, then attorney general John Ashcroft decried the ACLU and others for scaring ‘peace-loving people with phantoms of lost liberty’, and declared: ‘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.’ (1)

Today, Herman – the alleged chief provider of ammunition to America’s enemies – is in fighting spirit. Rejecting what she describes as ‘this government intimidation designed to silence its critics, to paint them as terrorist sympathisers, to chill speech’, she says the loss of liberty in the US over the past eight years has been ‘anything but a phantom’. There has been a very real assault on the right to free speech, ‘the right to be let alone’, freedom of association and freedom of religion, she says. Indeed, the Bush administration has undermined many of America’s key constitutional liberties and denigrated individual sovereignty itself, that American Revolutionary ideal of the free, capable, self-determining individual who should be ‘let alone’ by the state unless and until the state can prove – in an above-board and fair due process – that he has done something wrong. Herman seems pretty certain that it is not she who has ‘eroded’ America and its values, but those who have been in power.

Looking back on the past eight years, Herman says there have been sweeping assaults on the First Amendment (the right to free speech), the Fourth Amendment (the right of people not to be subjected to ‘unreasonable searches and seizures’), Habeas Corpus (‘freedom from being thrown in prison illegally’, as the ACLU describes it), and on openness in government and law (the Bush administration has pursued much of its national security strategy in secret, away from public scrutiny). And taken together, these government muggings – of the right to speak up; of the integrity of people’s homes and personal information; of freedom from being incarcerated without due process – represent an ominous and historic shift in the balance of power between the state and the individual, with the state newly emboldened and the individual reduced to little more than an object of suspicion and potential interrogation.

Susan Herman, with the ACLU’s
New York Times ad giving advice
to Obama.

Herman has written extensively on the Bush administration’s undermining of the Fourth Amendment – a part of the American Bill of Rights which, outside of the US, is less well known and seemingly less glamorous than the First Amendment on free speech, but which is a key expression of the sovereignty of the individual against the prejudice and interference of the state. The Fourth Amendment states that: ‘The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ In short, no state authority shall meddle with a man’s home or possessions unless it has very, very good reason to do so, and a court-approved piece of paper to back it up. ‘It is an absolutely key liberty’, says Herman. ‘And you know what? It no longer really exists.’

Under the Bush administration’s Patriot Act, which was rushed through by Congress just five weeks after 9/11 and which contains hundreds of pages of amendments to already existing laws to allow the American government to ‘investigate terrorism’ more effectively, Fourth Amendment rights count for little. Section 215 of the Act, titled ‘Access to Records and Other Items Under the Foreign Intelligence Surveillance Act’, empowers the government to acquire individuals’ records and other ‘tangible things’ from any third-party custodian it chooses. So it can demand that schools, universities, banks, internet service providers and even libraries hand over people’s personal information, without having to ‘demonstrate any form of individualised suspicion’ (2). The government can demand the book-borrowing or web-browsing records of any and every individual in the US.

It gets worse. Herman tells me about the ‘uprising of librarians’ in response to Section 215 of the Patriot Act. In a country where the library has not yet, as it has in Britain, been turned into a ‘meeting space’ where you slump into a beanbag and chit-chat with friends over coffee, but rather remains that place which contains, as the library here in Brooklyn puts it, ‘the longing of great hearts and noble things that tower above the tide’, there was little appetite for handing information about people’s intellectual pursuits to a paranoid state. Yet when disgruntled librarians joined forces with the ACLU to put pressure on attorney general Ashcroft over Section 215, he responded by saying: ‘Look, Section 215 court orders have only been used 35 times, so will everyone please calm down!’ This didn’t ring true with librarians – and ISPs – around the country, thousands of whom had been asked for people’s personal information. And that is when the ACLU discovered that the administration had been using a different, and in some ways more ominous, part of the Patriot Act to extract people’s ‘tangible things’ from third-party custodians: Section 505.

‘This section allowed for the use of “National Security Letters”’, says Herman. ‘These were like administrative subpoenas. Under Section 505, the government didn’t have to go to court at all to get an order forcing somebody to turn over information. It would simply issue a National Security Letter saying “We need this information, you must give it to us.”’ And any librarian or internet service provider who received a National Security Letter – these non-court approved devices for acquiring people’s ‘papers and effects’ – was forbidden by law from telling anybody about it. ‘They couldn’t tell their fellow workers. They couldn’t tell a lawyer. They couldn’t even tell their children’, says Herman. ‘It was a total gag order.’

If they did tell someone? Say an individual librarian targeted with a National Security Letter about one of his patrons decided to tell a co-worker about it? They could be imprisoned. For 10 years. It was later discovered that while, yes, only 30-odd court orders had been issued under Section 215, hundreds of thousands of National Security Letters had been sent out under Section 505. As Herman says, such a development represented an all-out attack on all sorts of freedoms, and on the nature of liberty itself. It undermined the Fourth Amendment (because people’s effects were no longer protected), the First Amendment (because the custodians of people’s effects were gagged from speaking out), and the right to legal representation (because those custodians of information targeted by National Security Letters were forbidden even from speaking to a lawyer). In one fell swoop, the US administration denigrated speech, privacy and the protection of the law.

It is worth recalling the historic nature of the Fourth Amendment in preserving people’s privacy, their sovereignty and self-respect, against the interference of the powerful state. Like much of the Bill of Rights, the Fourth Amendment springs from earlier radical upheavals in English law in the seventeenth and eighteenth centuries – upheavals that sought to lessen the power of the King and boost the moral standing of the individual. The Fourth Amendment was inspired by the English jurist Edward Coke’s common-law ruling in Semayne’s Case in 1604, which said: ‘The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.’ In challenging the ‘unbridled authority’ of the King’s men to ‘intrude on a subject’s dwelling’, Coke’s ruling helped to establish the importance of privacy, the sanctity of the home, and more profoundly the sovereignty of the individual against the more powerful sovereignty of the King (3). The Founding Fathers of the United States were enamoured by this vision of every man’s home as ‘a castle, a fortress’ when they forbade the state from ‘unreasonable searches and seizures’.

For decades, civil libertarians in the US have fought hard to defend the Fourth Amendment. In the key case of Olsmtead vs United States in 1928, when an individual challenged the wiretapping of his private telephone conversations as a denigration of his Fourth Amendment rights, the libertarian judge Justice Louis Brandeis argued that phone conversations should most certainly be protected from unreasonable state intervention, just as ‘papers and effects’ had been protected when the Bill of Rights was written. And he perspicaciously predicted that new ways of ‘searching and seizing’ people’s effects would arise as society progressed: ‘Ways may be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.’ Such a development of ‘search and seizure’ methods would, Brandeis argued in 1928, ‘place the liberty of every man in the hands of every petty officer’ (4).

So it has come to pass. Through the forced sharing of web-browsing information (not so much a development of ‘psychic science’ as techno-spying), the US government can grab people’s personal effects without having to break down their doors and rifle through their drawers. Through its spying on library habits, the government can tease out people’s ‘unexpressed beliefs, thoughts and emotions’ in search for some sign of evil. And through its attempt to transform everyone from bankers to librarians to university admission staff into spies, the government has indeed ‘placed the liberty of every man in the hands of every petty officer’. There now exists in the US, in Alexander Cockburn’s colourful phrase, an army of ‘warantless wiretappers’ who have the power to monitor everyone (5). All of this, says Herman, severely denigrates the Fourth Amendment, which is ‘one of the best articulations we have of the importance of privacy, and of personhood itself’. Justice Brandeis said that the ‘right to be let alone’ was the ‘most comprehensive of rights and the right most valued by civilised men’ – now it is shot through with holes, as the ‘war on terror’ returns America almost to a pre-Edward Coke era in which no man’s home (or ‘tangible things’) is really his fortress any longer.

Alongside the Bush administration’s wrecking of free speech and privacy, Herman is disturbed by new restrictions on the right to gather and to protest, and by the rising tendency for state agencies to send ‘confidential informants into political or religious meetings’ to gather information on attendees. ‘That is intimidating and again it chills speech’, she says. The ACLU has also been working hard to challenge the Bush administration’s attack on Habeas Corpus. Where much of the European protest over Guantanamo Bay has tended to be of the anti-American, even pornographic variety – with endless, frequently salacious stories of toilet-style abuse visited upon detainees by evil, brainwashed guards – the ACLU has called for the closure of Guantanamo Bay on both humane grounds (it is undoubtedly a hell for the 250 people still held there) and in order to reinstate the democratic principle for all Americans and for the whole of America that, in Herman’s words, ‘no one, and we mean no one, should be imprisoned without due process’.

As part of its ‘Close Gitmo’ campaign, the ACLU set up the John Adams Project to provide legal representation to the men still in the camp. The project is named after John Adams, a Founding Father and the second president of the United States, because following the Boston Massacre of 1770, in which British soldiers opened fire and killed five civilians, Adams took the extremely unpopular decision to represent the British soldiers in their court case in pre-revolutionary, increasingly independent-minded America. ‘And he did so’, says Herman, ‘because he thought “this is what the new America will be about: freedom, justice and representation for all, even for those who we feel have threatened us”’. In following Adams’ example and providing legal representation even for the suspected (though never charged) ‘terrorists’ of Guantanamo Bay, the ACLU hopes to protect America’s ‘fundamental principles’ and re-establish the principle that ‘no person in America can be locked up just because we think they’re guilty’.

What are Herman’s hopes for the future, with Bush on his way out and Obama coming to power early next year? She says she is ‘quietly optimistic’ that Obama will make some changes for the better. The ACLU has issued Obama with a ‘Restoring America’ programme, calling upon him to rescind some of Bush’s executive orders and to close Guantanamo Bay on his very first day in office. But she also warns against ‘adopting a “mission accomplished” mentality’, which, she says, would be as foolish as when Bush said ‘mission accomplished’ in relation to the Iraq War on that destroyer in the Gulf. ‘People should not be fooled into thinking that just because Bush is no longer in the White House, it is all over. It’s all gone. There is still plenty of work for us to do.’

She’s right to be cautious. It is only the spectacularly naïve (and, in my experience here in NYC, Upper East Side Democrats) who imagine that the Bush years were an aberration in the way that they denigrated liberty in the US. In truth, Bush built upon the bad works carried out by the Clinton administration in the 1990s. Today’s assaults on Habeas Corpus develop Clinton’s Antiterrorism and Effective Death Penalty Act of 1996, which, as one recent report pointed out, ‘trashed Habeas Corpus protections’ (6). Clinton severely weakened the Fourth Amendment with his extensions to the Foreign Intelligence Surveillance Act after the 1993 World Trade Center bombings, which allowed the government to obtain people’s travel records. And in presenting speech itself as potentially dangerous – as a threat to American values and morality – Bush is not alone. He is building on the Clinton era’s denigration of speech as hateful and threatening, or what Alexander Cockburn describes as that ‘great liberal drive to criminalise expressions of hate’ (7). (And back in the 1990s, the ACLU fought against the liberal criminalisation of ‘hate speech’ as vigorously as it opposes Bush’s censoriousness today. That is the most admirable thing about the ACLU: its consistency.)

‘Attorney General Ashcroft’s argument was that words are dangerous’, says Herman. ‘And you know what? He’s right. Words are dangerous. It was words that were dangerous to the Bush administration’s plan at Guantanamo Bay and to its Patriot Act. People stood up and said “this is not right”. Their words were a danger, and that’s why we should defend them.’ At a time when, across the Western world, liberty is being sacrificed at the altar of security, and when many civil rights groups, such as Britain’s own Liberty, are actually proposing to the government that it should make more use of wiretapping (8), how refreshing it is that America’s oldest civil liberties group still recognises what is at stake in the freedom debate today: free thought, equality, and the nature of humanity itself.

Brendan O’Neill is editor of spiked. Visit his website here. His satire on the green movement – Can I Recycle My Granny and 39 Other Eco-Dilemmas – is published by Hodder & Stoughton in October. (Buy this book from Amazon(UK).)

(1) Ashcroft: Critics of new terror measures undermine effort, CNN, 7 December 2001

(2) ‘The USA Patriot Act and the Submajoritarian Fourth Amendment’, Susan Herman, Harvard Civil Rights-Civil Liberties Law Review, Vol.41, No.1, Winter 2006

(3) Semayne’s Case. – Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I, Online Library of Liberty

(4) Olmstead v United States, Supreme Court of the United States

(5) A long train of abuses, American Conservative, 17 November 2008

(6) A long train of abuses, American Conservative, 17 November 2008

(7) A long train of abuses, American Conservative, 17 November 2008

(8) The fight for individual liberty starts here, by Brendan O’Neill