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SUSAN HERMAN: So I thought before getting to the present I would take you back to the days in which the ACLU was founded, and the year of the founding of the ACLU was 1920. And that was right after World War I for a couple of reasons. One of the things that happened that really precipitated the founding of the ACLU was the Palmer Raids.
How many of you have heard of the Palmer raids? OK, a number of people. Not everyone. This is something that's somewhat known about history, but not everyone knows about this.
So right after World War I, there were a number of people in the country-- anarchists, communists-- some of whom had been speaking out during World War I against the war. And there was a lot of activity going on at the time that people at the time would have described as terrorism. There were a number of bombs that went off. A bomb was sent to the Office of Justice Oliver Wendell Holmes. A bomb was exploded nearby the home of Attorney General Mitchell Palmer.
So Attorney General Palmer decided that he was going to get tough on terrorism. So what he did was he initiated what we now know as the Palmer Raids, and he arrested and deported tens of thousands of people. Mostly people who were not American citizens, because you can't really deport American citizens. And the idea was that anybody who was a foreigner who might be an anarchist or a communist, often just based on their name, their ethnicity, was just picked up or arrested without probable cause, no due process. Some terrible conditions-- the allegations of torture and abusive conditions in detention.
And at the time when Attorney General Palmer did this, this was actually a very popular move, because people in the country were quite alarmed about the prospect of a communist takeover. In fact, Attorney General Palmer had told them that there was going to be a communist revolution on May 1, 1920, quite specifically, and that doesn't seem to have quite happened. But that was everyone's concern at the time that the terrorist incidents were building up to an out and out communist revolution.
So what happened is that Roger Baldwin and some other people, coming out of a background of international human rights and civil liberties, founded the ACLU. And the ACLU's first action, interestingly enough, was to issue a report. They wrote a report on the Palmer Raids that was written by, among other people, then future Supreme Court Justice Felix Frankfurter, who at the time was a professor at the Harvard Law School.
And the purpose of the report was really to do some public education, to get people to really understand what had happened to all of these people, even though they had foreign names, and to understand that this was really overreaching. That it was really just going too far. It wasn't a really good way to counteract communism or anarchism or terrorism, and, in fact, it was really a violation of many, many rights and international human rights principles.
So what happened was that after the report was issued and public opinion began to sort of settle down-- people got over the immediate overreaction of what a good idea to round up everybody with a foreign name and make them leave the country-- and public opinion turned against the Palmer Raids where it's been ever since. Now if you read about the Palmer Raids in history, generally, historians revile what happened. And this is not considered to be one of the more glorious incidents of the American past.
So at that point, the ACLU lawyers and others went into court, and there was a federal judge, George Anderson, who began to stand up to the government and say, could we please stop this? Could you please at least give people some due process? Don't just pick people up if you have no reason to pick them up. And, in fact, with the federal courts help, the Palmer Raids ended.
And, again, I think the judgment of history is that the public education combined with the judicial efforts of the court really made a big difference. So ever since then, the ACLU has had in its arsenal both public education-- we do a lot of just trying to communicate with people and just getting people to know what's going on-- as well as litigation. I think most people tend to associate the ACLU just with lawyers, but not the case. We really have communications people and all sorts of other people, too.
Now a second central issue that also led to the founding of the ACLU was freedom of speech. That was always one of the core ACLU interests. During World War I, as I was just saying, there had been a number of prosecutions of people for expressing various sorts of unpopular ideas, pr0-anarchist or pro-communist, and mostly anti-war. There were several people who were convicted of arguing against the draft in World War I and arguing-- just making anti-war arguments.
Now if you've studied any First Amendment history, you know that the Supreme Court during World War I was not sympathetic to the argument that there was anything wrong with criminalizing people for speaking out against the war, or for expressing their own ideas about whether or not the draft was a good thing. During World War I, the Supreme Court in a series of cases with Oliver Wendell Holmes at first with the majority said, well, that's just not covered by the First Amendment.
So it's surprising to us, I think, that the Supreme Court did not have the view of the First Amendment that we have today that the purpose of the First Amendment is to protect unpopular speech as well as popular speech. But it was after World War I, and I think it's no coincidence that the founding of the ACLU and the recognition, the growing recognition of the Supreme Court, that the First Amendment should mean that people can express different ideas were moving along at the same track.
I'll give you one example of what I think is quite an impressive case that the Supreme Court decided a war later, during World War II. There's a case called West Virginia versus Barnette. Has anyone heard of that one? OK, this was a case about a flag salute. And in 1943, the Supreme Court decided that children going to school in West Virginia had a right under the First Amendment to choose not to salute the flag.
Now I think this was pretty amazing, because among other things this all came up actually on Flag Day, June 14th-- the argument in the court and so forth. And it was pretty amazing, I think, that the Supreme Court, in the middle of a war, was able to look at the First Amendment arguments. And having come a long way since World War I was able to say First Amendment values-- the fact that we have to have people able to express their own opinions in a democracy-- trump the desire of West Virginia to promote national unity, even during a time of war, by having everyone pledge allegiance to the flag.
Now if you're ever looking for a place where you want your ringing phrases and your really eloquent expressions of what the First Amendment is all about, I think you still can't do much better than Justice Robert Jackson's opinion for the court in West Virginia versus Barnette. It's really very moving. Let me read you just a couple of excerpts of what he said, because I think this really begins to crystallize the vision of the First Amendment that the ACLU had been fighting for after World War I, which is now pretty much our shared vision.
Justice Jackson said, "the very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of public political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." He said, "freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." And finally, last thing I'll quote to you, "authority here is to be controlled by public opinion, not public opinion by authority."
So that begins to be the idea of the First Amendment that is familiar to us. Now if you go on the ACLU website, ACLU.org-- which I hope you all will at some point because there are a lot of very interesting things there-- one of the things that you'll find if you look at the legal part, the Supreme Court part, is there's something you can click on called the 100 greatest hits. And it sort of takes you through the 20th century, and it lists some of the very many cases in which the ACLU played a part. A lot of the names, I'm sure, would be familiar to you.
So here's one of the first. This was not a Supreme Court case, but I'm sure you've all heard of the Scopes Trial. So in 1925, there is a Tennessee school teacher who agrees-- actually, he knows that he's going to be violating a Tennessee statute that prohibits the teaching of evolution in science class. The Tennessee statute requires that everybody has to teach the story of creation as it is given in the Bible, period. So Mr. Scopes, our schoolteacher, stands up in class, and he teaches evolution because he thinks, as does the ACLU, that, in fact, he should have the right to academic freedom, to express views in the classroom, even if they're not what the school board in Tennessee or even the state of Tennessee wants him to be talking about.
Well, if you've-- anyone ever see the film Inherit the Wind? It's kind of not that inaccurate account of the Scopes trial with Clarence Darrow played by Spencer Tracy. Clarence Darrow actually was engaged by the ACLU to argue on behalf of Mr. Scopes in that trial, and that case never went to the Supreme Court. It was the Tennessee Supreme Court that actually held that-- they reversed the conviction, so it never needed to get to the Supreme Court.
Now one of the things that Roger Baldwin used to say is that no victory ever remains won. So just a couple of years ago, the ACLU of Pennsylvania had to litigate a case in Dover, Pennsylvania when the Dover School Board declared that all everybody should have to teach in science class the principle of intelligent design, OK? Well, the federal judge in that case-- the ACLU brings the case and sues-- and the judge in that case said, well, intelligent design is not a scientific theory. That's religion-- belongs in the churches, belongs in homes, but it doesn't belong in public school where that's what you have to teach children.
So, again, you look at the famous case, the great case in 1925, and then you look 80 years later at the fact that this similar principle had to be litigated again. Nothing worthwhile remains won.
I'll give you a few other examples of the breadth of the cases that the ACLU has litigated throughout the 20th century. One major case during World War II, [INAUDIBLE] of sticking to times of crisis, is the Korematsu case. I'm sure many of you who've heard of that one.
The ACLU was the only national organization that argued against the government's decision to exclude Fred Korematsu from his home in California, because General Dewitt had decided that the entire West Coast should be cleared of Japanese-Americans just in case any of them were going to be disloyal. There wasn't much evidence that, in fact, the Japanese-Americans on the West Coast were disloyal to the extent to justify this massive exclusion of people from their homes. And frequently after people were sent to relocation centers, they ended up in internment camps actually being detained.
During World War II, in addition to the Japanese-Americans there were also Italian-Americans and German-Americans who also were of a heritage from the countries with which we were at war, but those people were not treated the same way. They were looked at individually. And, in fact, there were Italian-Americans and German-Americans who were detained as well in internment camps, but not very many. And they were at least treated as individuals to see whether or not it was believed that individually those people were disloyal, but that did not happen with the Japanese-Americans.
Now you may be aware of the fact that the Supreme Court ruled that what happened to Fred Korematsu was constitutional. They said this is not a denial of equal protection, because, after all, national security. The government, General Dewitt, was saying we need to exclude all the Japanese-Americans, citizens of the United States, from the West Coast because we just don't know. We can't really tell who might be disloyal, and the stakes are too high.
So the Supreme Court upheld the program. There were dissenters in the case, among whom were Justice Murphy, who said, sounds to me like racism. Sounds to me like you're treating the Japanese-Americans differently from the Italian-Americans and German-Americans, and the Supreme Court should not tolerate this. The Supreme Court should rule that what the government wants to do here, even if they say it's in the interests of national security, is not permissible.
Well, some 40 years later this case was also re-litigated, but this time in the other direction. What happened was that Fred Korematsu and some of the people who were the descendants of people who had been in the internment camps brought a case in California to argue that the government had overreacted. That they had misled the Supreme Court about the information that they had as to the disloyalty of the Japanese-Americans, and that, therefore, Fred Korematsu's conviction for violating the exclusion order, upheld by the Supreme Court in 1944, should be reversed.
Well, that happened. The court expunged the conviction. And after that in 1988, Congress looked back on this whole period, and they passed what they called the Civil Liberties Act of 1988, which apologized to the Japanese-Americans for having treated them in this way, recognizing 40 years after the fact that it was an overreaction. That it was not a good idea. That it was not warranted, and coming up with modest reparations for the families and descendants of the families. It was something a $20,000 per family.
I'll give you one more example of a case that the ACLU was involved in, because this, again, is an issue that comes back. Does Korematsu come back? Yes, he does.
Fred Korematsu, much to his credit-- he's lived a long and wonderful life-- and he had an amicus brief, a friend of the court brief as you were hearing about in the introduction, filed in his name in which he argued on behalf of Guantanamo detainees, and also Mr. Hamdi, Yaser Hamdi, who was a citizen who was detained. And what Fred Korematsu said is, same issue. The battles don't stay won.
The Supreme Court might have held in 1944 mistakenly that it was all right-- that it was constitutional to take Fred Korematsu out of his home simply because of his ancestry. The courts 40 years later in Congress figured out that had been a mistake. But, Fred Korematsu said, if we're going to be locking people up on the accusation that they're terrorists, that's the same thing that happened to me. I think they should get due process. So Fred Korematsu got the correspondence and had an amicus brief filed in his name, because he saw a lot of what was happening in the past just the first decade of the 21st century as being quite similar to what had happened to him.
The final example I'll give you is Loving versus Virginia. Now this is the most wonderfully named case. Richard and Mildred Loving-- that really is their name-- were living in the state of Virginia, and it was a crime for them to get married because he was white and she was black. The Supreme Court held that it was a denial of equal protection. That it was unconstitutional for the state of Virginia to prohibit them from getting married because of their races.
But you want to guess what year that happened in? Can you believe 1967? It wasn't until 1967 that the Supreme Court finally got around to recognizing that that's racism. That it has to be a denial of equal protection. That a state can prohibit people, even the Lovings, from getting married because they're of two different races.
Do the battles stay won? Well, Mildred Loving, quite recently she died within about the last year. But before her death some enterprising lawyers went to her and said, we're having a problem now that we think is kind of similar. We wonder if you're going to see it this way.
There are people of the same sex who want to marry each other, and states are all over the place or prohibiting them from marrying who they love. Do you think that's similar? Would you be willing to be a spokesperson?
And she said, yes. She said, I get it. Absolutely. And she became a spokesperson for same sex marriage, also recognizing that although the circumstances are different, the general reaction to the lack of empathy to see that people may have differences, differences of color, differences of whatever, but that, in fact, that there's something wrong with not treating people equally.
OK, so that gives you a very smattering. And, again, if you want more greatest hits, ACLU.org will take you through many, many very interesting cases all over the map.
Now at the ACLU we often say that our actual client is the Bill of Rights. Now this sometimes makes us unpopular. And sometimes when I speak, people say to me, well, why is the ACLU so unpopular? What are you doing wrong?
And I think we're unpopular because of what we're doing right. If you think about it, we defend the rights of people who say unpopular things and who take unpopular positions, or who for some reason are lightning rods and are drawing dislike or adverse reactions. And the reason for that is that the people who are saying popular things, the people who are saying things that the majority of people in the country agree with, don't generally need defending.
It's the people who are saying, I don't like the draft. I don't like the war. What about same sex marriage? What about evolution? What about not intelligent design? Those are the people who need defending.
Same thing in the area of religion. We don't-- we have plenty of clients who are Christian, and we do bring a lot of cases on behalf of people who are Christians or who are Jews. But more often the people who come to us because they feel that they don't have the opportunity to exercise their religions fully or they feel marginalized are people who are not of predominant faiths, who are of faiths that a smaller number of people adhere to in this country.
The other important principle about the ACLU that I would also mention is that we try very hard to be nonpartisan. We try to just take cases for Christians or Jews or Buddhists or Muslims in the same way that we are not politically partisan and we do not favor or disfavor Republicans or Democrats. Now, I'm leading to my main topic for the day. I want to tell you that President Obama is now learning that the ACLU truly is nonpartisan, OK?
A lot of people thought during the past eight years that the ACLU's criticism of the Bush administration were about George Bush, and that they were about a Republican administration. And that once the Democrats came in that would be it, and we wouldn't have any more problems. Well, I have to tell you that's not yet the case.
So my main topic today is to tell you about what the ACLU has been doing during the past eight years, and how we see the landscape changing now that we do have some new people both in the White House and in Congress. So during the first decade of the 21st century, one of the major things that we found ourselves doing was to provide a counter balance to what we thought were really abandonments of some of our fundamental American principles in the name of the war on terror. I'll give you several different examples, some of which I think will be familiar to you.
First, detentions. This is the thing that Fred Korematsu thought was a lot like what happened to him. So you all know that the Bush administration tried to establish what they hoped would be a law-free zone in Guantanamo, Cuba, and that the ACLU was one of the organizations that argued that it's really simply unfair to lock up hundreds of people indefinitely without a fair hearing on the mere suspicion that they might be terrorists.
Now, I'm sure you know that the Supreme Court agreed, and the Supreme Court did rule in a series of cases that there does have to be some sort of process at Guantanamo, and that Guantanamo is not a law-free zone. That it is an area-- it's not actually Cuba, but there's a lease where we may pay Cuba $1 a year, which they don't even cash the check. But, in fact, it is American-controlled territory.
So the Supreme Court did hold a series of cases, agreeing with the ACLU that you do have to have some fair process before you can just lock people up indefinitely. But you might not know-- putting together all the facts about just how bad the situation had been. Originally there were between 700 and 800 detainees at Guantanamo, and originally most of them came from Afghanistan. That was not always the case. After that, Guantanamo became a kind of collection point for people who were terrorist suspects from all over the world, but the original population at Guantanamo had been captured in Afghanistan during the war in which we were fighting the Taliban.
But what you might not know is that 95% of the people in Guantanamo who had come from Afghanistan had not been captured by American troops. They had been captured by the Northern Alliance, who were essentially bounty hunters. So what happened was the Northern Alliance was picking up people and turning them over to the Americans.
Now the Bush administration always acknowledged that there were innocent people at Guantanamo. They didn't know how many, but they knew it had to be, because the Northern Alliance-- you can imagine-- it wasn't a fully trustworthy process. They had reasons of their own.
Sometimes it was grudges. Sometimes carelessness. Sometimes wanting to curry favor with the Americans. But they turned over a lot of people, and not all of them had anything to do with terrorism at all.
So what were the percentages? Well, you know that if you've been following the news recently that many hundreds of those people have been released. At this point, we're down to about 150 people at Guantanamo. Most of the people were released-- they were released back to their own countries or to some other country on condition of some sort of supervision, or there were all sorts of individual deals made.
And some day, perhaps someone-- Seymour Hersh or someone-- will write the story of all the deals that went on behind the curtain. And what ended up happening, however-- we don't really know all the story-- any of the stories really much about how people got from Guantanamo back to Yemen or England or Saudi Arabia. But clearly there was a difference, depending on what country people were from and the relationship of that country with the United States.
So hundreds of people have gone back to their own countries. How many of those people were terrorists? Well, it's hard to know, because a lot of those people never had any sort of hearing, so nobody ever tested the evidence against them.
But there have been a lot of people now trying to study, well, what happens when those people go back to their own countries? Do they join Al-Qaeda? Do they take terrorist actions?
Well, there's one documented case of somebody who did leave Guantanamo and joined Al-Qaeda. You'll find other figures about who left Guantanamo and did something that's considered to be terrorism. The high watermark is 14%. But what a lot of people will tell you is that that figure counts as terrorists anybody who makes a contribution to an Islamic nursery school, or other things that are just a very broad definition. The other thing that may be occurring to some of you is that if some people leave Guantanamo and go-- even if they do join Al-Qaeda, does that necessarily mean that they were members of Al-Qaeda before they were in Guantanamo?
But one very sad argument that I just saw that was somebody from the Obama administration was making is that there's this one young man from Yemen who they're considering deporting. And evidently, the people in the administration don't think that there's really very much evidence that this person had been involved in terrorism at all, but they do think that now that he's spent seven or eight years in Guantanamo, he has been radicalized and now hates the United States. And if he's released to Yemen, might well cause problems.
So what do you do with the morality of that situation? I think it's really an untenable situation, and that's what happens when you abandon your principles. We ended up with all these people there and just wanting to lock them up indefinitely.
OK, so 150 people now remain. What happened between the 500 and some people who were released, and then there were some 200 and some-- 250 or so likely within the last year. Well, what happened was that one of the things that the Supreme Court ruled in the series of cases that I was talking about was that, first, that the people in Guantanamo were entitled to some sort of process. So there's now this hearing called a Combatant Status Review Tribunal, which is a kind of pretty minimal process.
But people were given these Combatant Status Review Tribunals. You can-- if anyone's interested in this, I can tell you where to find it-- but you can see transcripts of a lot of those proceedings and see what the kind of evidence was. There are a couple of people who've done analyses of those transcripts and think that those hearings were really pretty feeble.
So what happened after that-- in the most recent case, a case called Boumediene versus Bush, the Supreme Court ruled that the people in Guantanamo-- because it's not a law-free zone and, in fact, is within American jurisdiction-- are entitled to come into American courts and to have American courts review the legality of their detention in what's called a habeas corpus proceeding. That's a very traditional proceeding that's always been used since the times of merry old England for people who wanted to challenge whether or not it was legal for the King or the president whoever to lock them up.
So what's now happening-- and this process is still going on-- is that some of the Guantanamo detainees, the ones who are still there and have not yet been repatriated or sent someplace else-- are now coming into American court, all in the District of Columbia, because that's where the government is, so that's where all these cases are heard. They're coming before different judges, some of whom were appointed by Republican presidents, some of whom were appointed by a Democratic presidents. Some of these judges are very conservative.
One Judge, Richard Leon, was somebody who originally had some cases from Guantanamo detainees, and his ruling was they don't have rights. The Geneva Conventions don't apply, et cetera. Well, when Judge Leon and the other judges in the District of Columbia looked at the evidence before the Combatant Status Review Tribunals, in, I believe the current figure is 26 out of the 31 cases that have been reviewed, they're saying to the government, is that all you had? That's it? Let them go.
They're finding the evidence extremely unreliable. They're often finding the evidence to have been coerced. So what was happening in Guantanamo simply is not passing muster with the kind of due process that's being applied in American courts.
I'll tell you one more story about an ACLU client, Mohamed Jawad. You may have heard about this young man, because he's the one who nobody knows how old he was when he was picked up. You've heard about him?
The youngest figure that's given-- apparently they don't keep very good age records in Afghanistan. He might have been 12. He might have been 15. In any event, he was quite young when he was picked up.
So he spent seven years in Guantanamo, because somebody said that he was present in an area, a battle area in Afghanistan, and threw a hand grenade at American troops. Well, it turned out this was not highly reliable evidence, and the best evidence that the government had was Mohamed Jawad's confession that he had thrown a hand grenade at American troops. However, how was that confession obtained? He was subjected to "harsh interrogation techniques."
He was tortured. He was told that his family would be killed if he didn't confess. And this is a teenage kid, and he confessed.
The lieutenant colonel, Colonel Darrel Vandeveld who was the prosecutor in this case, looked at the evidence. He was the prosecutor. That was his job to prosecute this case.
He looked at the case and he said, I cannot ethically bring this prosecution. This evidence is flimsy. This evidence is coerced. I'm going to resign if you make me do it, so he resigned.
And he has now-- if you want to look on the ACLU website, one of the things that you will find is a joint letter from Anthony Romero, the Executive Director of the ACLU, and Lieutenant Colonel Darrel Vandeveld, saying, this is shocking what passes for due process in Guantanamo. This is just not right.
So where is the Obama administration on this, OK? So are we ready at this point to perhaps close the ACLU office and put up that nice banner that says, mission accomplished? I'm thinking not quite yet.
So on day one, in fact, President Obama did exactly what the ACLU had asked him to do. We, of course, weren't the only ones. This is part of the change we can believe in.
The ACLU had a program called Restoring America. And one of the things that we asked the new president-- first, before we knew who it would be, and then when we knew it would be Barack Obama-- we said, on the first day, could you please set a new tone for the administration? Could you, number one, say you're going to close Guantanamo? Number two, renounce torture and "harsh interrogation techniques?" And number three, stop all the secrecy. Open up the government a little so that we can know what's happening in places where secrecy is not absolutely necessary.
So President Obama did that. One of his first executive orders expressed his intention to close Guantanamo. When the Jawad case came up, however, the government started equivocating some. They weren't so anxious to have Jawad released, and the judge in the District of Columbia looking at his case, Ellen Huvelle, really got finally very impatient and just insisted that Jawad had to be sent to Afghanistan. And finally, the administration did agree.
What's going to happen to the 150 people remaining at Guantanamo is not yet clear. You may have read this morning that Congress just yesterday agreed that it might be permissible to have Guantanamo detainees on American soil so that they can be tried in American courts, and that the Obama administration is working hard to see if they do have sufficient evidence to convict some of the Guantanamo detainees of actual crimes. Because if you've been throwing hand grenades at American troops and you're not an official-- it's not an official war so you're not a combatant, you can be charged with a crime.
You can be charged with attempted murder. You can be charged with conspiracy. So there are a lot of ways in which you can charge people in court.
Well, what President Obama has not committed to do is he has not committed to either try people-- give them a really fair proceeding to figure out whether they have done something or conspired to do something dangerous-- or whether to release them. He's still allowing for the possibility of preventive detention, so that's why we're not quite ready for the mission accomplished banner.
I don't think it helps a whole lot if somebody like Mohamed Jawad, instead of being kept for eight years in Guantanamo, is kept for eight years in a Naval brig in South Carolina or Bagram Air Force Base, which seems to be coming the new Guantanamo. A lot of people are collecting there. Preventive detention is preventive detention, no matter where it is. So closing Guantanamo is one thing, but actually figuring out what to do with all the people is quite another.
OK, one more thing about Guantanamo. The other thing that President Bush did in addition to thinking that Guantanamo was a place where you could lock up anybody who you thought was scary and just keep them there forever, unless they could show you that they were not dangerous-- how do you prove that negative? That's really tough. And so a lot of people were released.
But the other thing that President Bush said was that he issued an order establishing military commissions, and saying that if we wanted to try people for war crimes, what we could do is instead of sending them to regular court, we could have a military commission in Guantanamo where you would have people from within the military, and you wouldn't have quite the process that you would have in an American court.
The defendant could be excluded from the proceedings. Information could be kept from the defendant that the defendant wouldn't be able to confront. There wouldn't be a unanimous finding of the panel and these people within the military, and there was very limited right to appeal.
So I'm sure you know that for years, bar associations and all sorts of people, academics, have been critiquing the military commissions and talking about how this really is not fair, and how this is just really-- because this is not really a "war" within the classic meaning that a military commission is really not appropriate. So what the ACLU did about that-- we have not very often in our history done trials. We usually do appeals. We work in the Supreme Court. In fact, the 100 greatest cases are an indication that the ACLU is the most frequent litigant in the Supreme Court except for the government itself.
But in light of what was going on in Guantanamo, and in light of the fact that there were these proceedings that we just didn't think looked as if they were going to be fair, we decided to commit actually a pretty substantial amount of organizational resources to making sure that the Guantanamo detainees who were going to be charged in military commissions would have a real, effective representation by counsel. These were people who are being charged with capital offenses, and the government simply had not allocated the budget or the resources to do what you need to do in a capital case to really figure out what's going on. So we started this project, which we called the John Adams project.
Why John Adams? Well, John Adams was the second president, as I'm sure you know. Anybody see the-- you read the David McCullough book or see the PBS special? OK, so that John Adams.
Well, John Adams before he became president was a lawyer, and what John Adams decided to do was he represented the British soldiers who were charged in the Boston Massacre, OK? The British soldiers. Imagine how popular that made him at the time. The revolution was growing, and this was the enemy. It was the British soldiers who had shot people in the Boston Massacre.
John Adams later said that that was the thing that he had done in his professional life that he was the proudest of, and to us that really represents American ideals. You're not defending terrorism. You're not defending crime. What you're doing is defending the principle of due process, and that's what John Adams was all about.
William Blackstone, the great English jurist who became a foundation of so much of American law, once said that the reason that we have such high standards in American criminal courts is that he said that we should be willing to let 10 guilty people go free to avoid convicting one innocent person. So that's why we insist on proof beyond a reasonable doubt. We want to make sure that we're not incarcerating innocent people.
Well, when you think about the numbers that I was just telling you in Guantanamo-- if there were 700 some people there, one person who was released certainly has gone to work with Al-Qaeda. Those figures are not so good. It's not just we're not-- being willing to release 10 guilty people to avoid convicting one innocent. We've really reversed. We have totally shifted that risk.
And it may be as extreme as we're willing to incarcerate 100 innocent people to avoid letting one guilty person go. Now is that a moral choice that we should be willing to make as the United States of America? OK, so that's the area of detention.
To me, a lot of the basic Bill of Rights principles that we spend a lot of time defending really come down to the golden rule in some ways. You don't lock people up without giving them a fair hearing, because you wouldn't want that to happen to you. You don't prohibit other people from practicing their religion, because you wouldn't want them to do that to you. You don't tell people that they can't say things that you don't agree with, because you wouldn't want them to prevent you from saying something that they don't agree with. So it's the basic golden rule.
Well, another place where we really, I think, fell short of the golden rule in the past eight years, which I've already alluded to, is the area of harsh interrogation techniques. Now I'm sure that you all are aware of the fact that some very high level lawyers and other officials in the Bush administration, particularly during the first term early on, authorized harsh interrogation techniques, including waterboarding, constant light-- 24 hours a day of light-- heat, banging people's heads against the wall, humiliation, the dogs, sexual humiliation.
Now it seems to me if you look at the definitions of torture in our statutes, in the International Convention against torture, some of these things, like the waterboarding, are torture by any definition. Others of them are just really very extreme. It doesn't sound that extreme that-- noise and light doesn't sound that extreme.
There was a film about Guantanamo called The Road to Guantanamo. Did anybody see that one? Well, I watched this film, and they had a sample for like 10 seconds. They were showing a cell in which there were strobe lights flashing and there were loud noises, and I couldn't stand it for more than two seconds watching it on film. I had to turn away and close my ears.
It's really very excessive, and there are a number of people in Guantanamo who after being subject to that-- those techniques-- really their minds are no longer in such good shape. And we also know it wasn't certainly just Guantanamo. It was Iraq. We don't know what's now happening at Bagram Air Force Base.
So the waterboarding and other things, I think, pretty clearly amounted to torture by any definition. So then you know that what the Bush administration did was to change the definition of torture to try to avoid having American personnel who engaged in this sort of conduct be able to be liable in any way. So has this kept us safer?
Well, what a lot of the experts will tell you-- there's one former FBI agent, Ali Soufan, who's been writing a lot about this, and he says, you torture people, they're going to say anything. Mohamed Jawad-- if you tell him you're going to kill his family is going to say, yes, I threw a hand grenade at the American troops.
One of the prime candidates, one of the high value detainees, Abu Zubaydah, was waterboarded over 80 times, and he talked and talked and talked. And Jane Mayer wrote an interesting book, The Dark Side, in which she traces a lot of what was being done in interrogations. And it's been pretty clearly established that most of what Abu Zubaydah said after all this waterboarding was just false. It's just not reliable.
So in addition to compromising our principles I think that we are not accomplishing anything. And even worse, I think what we're accomplishing is alienating the rest of the world and really losing our credibility as having the moral high ground of-- that we don't believe in human rights violations.
So how do we know what was going on in those backrooms and in the torture? How do we know about the Office of Legal Counsel memos? Well, here again, we come back to the ACLU.
And did some of you see in the New York Times recently, a few weeks ago, there was a story about two young ACLU lawyers, Jameel Jaffer and Amrit Singh? Didn't see that? OK, well you might want to-- you could check it out online, look at their pictures, because I think it's a great story. And you can imagine who you think should play their parts in the movie, sort of like All the President's Men.
So Jameel and Amrit and some of the other lawyers at the ACLU office are sitting around, and starting in the fall of 2001 there is so much that we don't know about what's going on. We don't know who the government is detaining. We don't know where they're keeping them. We don't know if there are abuses going on. We don't know-- you could list all day what we don't know.
So they have the idea that Congress has passed this statute quite a while ago called the Freedom of Information Act, and what the statute says is in a democracy, information should be free. People should be entitled to know what the government is doing. So we have a classification system where sometimes the government can classify documents and say this needs to be secret for a really good reason. We don't want to compromise the privacy of certain people. This really is a national security problem.
Nobody wants to argue that the government should tell us everything that they're doing, but the presumption in the Freedom of Information Act is that the information should be shared with the American public unless there's a really good reason not to share it, and the courts are in charge of deciding if there's a very good reason. So Jameel and Amrit said, well, how about if we just bring a Freedom of Information Act suit? We'll just ask the government to give us all these documents.
We'll just ask them to tell us where they have everybody locked up. We'll just say, please give us the Office of Legal Counsel memos. And then the court will say, well, that's not within the exception, and there we'll be.
Well, one of their senior colleagues said, oh, how naive. Aw, to be young again. He said, you really think the court is going to do that? You really think the court-- when the government says national security that the court is going to be willing to overrule that, and say, sure, you can have the documents. He said, I'll give you $1 for every page you actually get out of the government.
Well, guess what? He had to renege on that promise. Jameel and Amrit wrote a book called The Administration of Torture, which has a lot of the initial documents-- this is even before the Office of Legal Counsel memos-- and it has a lot of pages. So this would be hundreds of thousands of dollars if he hadn't reneged on the bet. So that's how we know a lot about what the government has been doing.
So President Obama-- President Obama did say in his day one executive order, he said, we want to have a more open government. However, there are some recent instances where the courts have required the Obama administration to turn over government records and materials, and President Obama has said no, he won't. OK, we're going to see whether or not the Supreme Court considers one of the issues on which he's fighting the accountability.
The other issue on which I have to say we very much disagree with President Obama is that you know that it has been his position that we should not be looking back in time to see who is responsible for the policies that led to torture. And I think it really cannot be gainsaid at this point that there were American agents torturing people by any reasonable definition of the word.
Now, you remember in Abu Ghraib when the horrible photographs first came out and we discovered that there were things going on that would really have to embarrass us as Americans, what happened was that very low level soldiers were being prosecuted. Lynndie England and Sabrina Harman and individual people. Well, what we now know-- at the time what the Bush administration was saying was, well, what can you do? Those are just a few bad apples.
What can you do? You have a couple of individual soldiers doing this. Not our fault. Well, it turns out that they were really hearing about these techniques from the highest levels as we now know, and we just don't think that it's fair for the low level soldiers to be prosecuted when what they were doing was following up the chain of command. They were following a policy that was set.
President Obama says we don't want to look back. We just want to turn the page. We don't want to get into what happened before. We promise we're not going to do that anymore, and, therefore, it's OK.
We don't have to have a special investigator. We don't have to have commissions. We don't have to have prosecutions.
Now you may know that Attorney General Eric Holder took the position, and who knows what discussions he and President Obama have over dinner. But he said, I am appointing a special prosecutor, and the special prosecutor is going to investigate whether or not there were any people who actually violated the rules that they were getting from the higher ups.
Well, that's good. That's something, but it's not enough to us because it doesn't really get at what's wrong with the policies that were being created at the highest level. And to me, you can't go on until you look back.
If we really want to not do this again in the future, if we want to really have a country in which we do not countenance human rights violations taking place in our name in which we're not going to torture people, I think you have to look back and explore how this happened. And we have to have a conversation as a country about whether we really mean we don't want to do this, or whether, as in the Korematsu case, we want to do it when we want to do it and then apologize later.
OK, you can't just say you're sorry and move on. If you really are committed to the idea that we're not going to do this anymore, you have to have accountability. And to the ACLU, it means a real investigation. It means probably a commission with a multi-congressional panel, not just one committee, really trying to look into what happened.
One argument is, well, isn't this partisan? Well, I don't think it is partisan. It doesn't matter if it was Democrats or Republicans who ordered what happened. The people who ordered what happened should have to be accountable for their decisions.
So Anthony Romero says at this point that perhaps the A in ACLU should stand for accountability, because that's one of our main arguments right now. One of the things we're really spending some time on is to try to convince President Obama, Attorney General Holder, and people in Congress that we can't just move on. It's not enough to say, oh, well, we're sorry. We won't do it again.
One more example of the secrecy and the problems that we've had in addition to instances in which we do now know that American agents did torture people-- there were a number of cases in which American agents did not themselves commit any acts of torture but turned people over to other countries with the full knowledge and expectation that those people were going to be tortured and detained in another country.
One client of the ACLU is a man named Khaled El-Masri. You may have heard his case. He is a German of Lebanese descent who was on vacation in Macedonia.
He's on a bus in Macedonia, and he is picked off the bus in Macedonia, flown to Afghanistan, held for five months, interrogated under harsh conditions many hours a day. A horrible abusive treatment. Turns out, what do you know? It's all a big mistake. His name is similar to somebody else's name, and he's the wrong guy.
Now at some point, people realized-- Condoleezza Rice actually was relatively public about this in saying, whoops. But it was very hard to figure out what to do with him. So I've heard El-Masri talk about his experience, and what he describes as he was then sent from Afghanistan when they decided that he really was an innocent guy. He didn't know anything about terrorism to tell them, despite all these many hours of harsh interrogation techniques, so what they did was they put him on a plane again and they sent him to Albania.
He's in the hills of Albania, and they say to him, OK. Get out of the car and walk that way and don't look back. He said he thought they were going to shoot him, but they didn't. That was their way of releasing him. And instead, he was picked up by the Albanian police.
So ultimately his position-- he was released and now he's back to his life, and seems remarkably in good shape considering. But the one thing that he really wants is he wants an apology. He wants somebody in the American government to say it was a mistake. Sorry.
Nobody will say that to him. So he brought federal litigation in the Fourth Circuit, which is where he needed to bring it, and he argued that this had all happened to him. In his complaint, he said, I want an apology. He's not looking for a million dollars. He just wants somebody to say, we made a mistake. Sorry.
Well, the Bush administration claimed the state secrets privilege. They said, we can't even litigate this case, because to litigate this case we would have to tell you whether or not we have an extraordinary rendition program. Whether or not we do in fact send people to other countries-- that's the meaning of extraordinary rendition-- send people to other countries knowing that they're going to be tortured. And we can't tell you that, because to tell you that would compromise national security.
Well, the Fourth Circuit said, oh, OK. Case dismissed. So Khalid El-Masri has never had his day in court. We are now litigating on his behalf in the Inter-American Commission, because at least he wants somebody to recognize what happened to him.
There's another man, Maher Arar, who is a Canadian who had a similar story about how he had been kidnapped and detained and treated abusively. And because he was Canadian, he actually has had some redress. The Canadians appointed a commission to look into what happened in his case.
They concluded that, in fact, his story was completely true, and like Khaled El-Masri, there's a lot of documentation. There's documentation of the flights that took him here and there. And so what Mr. Arar got was not only did he get an apology from the Canadian government, they gave him $9.5 million. Only Canadian dollars, but still.
Maher Arar also tried bringing a case in the American courts and got his case dismissed. His is still pending, so maybe there's some hope for him. The Supreme Court, by the way, declined to hear Khaled El-Masri's case. They denied cert after Khaled El-Masri tried to appeal the dismissal of his case.
So the final case I'll tell you about like this is a case of a man called Binyam Mohamed who brought a case in California. He's also an ACLU client in part, and he claimed an extraordinary rendition story-- very similar.
He was sent to Jordan. The people in Jordan sent him to Syria. He was tortured. He was detained. He was abused. We had airplane records, et cetera.
So because the Fourth Circuit said, well, you can't sue the government, what is happening in that suit is it's a suit against the Jeppesen Dataplan Program. And those are the people who actually did all the flight support. They actually flew him around.
So the Bush administration defended. They said, well, dismiss this case, too, because of the state secrets privilege. The government doesn't want this case against Jeppesen Dataplan heard, because if it's heard then we might be revealing the extraordinary rendition program-- if there is one-- and therefore, it would compromise national security.
So while this case is pending, President Obama is elected. And very shortly after his election there is an argument in the Ninth Circuit Court of Appeals in this case. And everyone thought, well, President Obama has said he doesn't believe in torture. This must now be a new ballgame.
So the Obama administration lawyers are trying to figure out what to do in this case, and they don't tell anybody what their position is going to be. So if you're a lawyer or you know any lawyers, imagine when you're walking into court and you don't know what the other side is going to say. So during the argument, one of the judges pretty early on says to the government lawyer, well, government lawyer, has anything happened recently that might cause the government to change its position in this case?
And the lawyer said, no, Your Honor. And the judge just looked at him and said, say what? So the Obama administration did take the same position.
Now what I want to tell you is that I think that President Obama has been so far dealing with a lot of litigation that's been in the pipeline. I think it remains to be seen after they kind of clear out all those cases that were already pending, and perhaps they were sensitive about telling lawyers who had been taking a certain position in a case we're turning the tables on you. But perhaps he will find his way to different positions. But I think that, again, not quite mission accomplished.
Attorney General Holder announced just very recently that he's been reviewing the state secrets privilege, and he says, well, I'm in charge of the Department of Justice now, and we're not going to claim the state secrets privilege in just every case. We're only going to claim it in cases where it's really warranted, and we won't do that lightly. We'll really consider whether or not national security is at issue.
And if we claim that national security is at issue, well, the court can review that and they can ask us for the documents on which our claim is based. Notice anything missing? They didn't say they'd give the court the documents, OK?
So there's still-- this is, to me, it's just another version of what I hear is trust us. We have different people now in the White House and in the Department of Justice, so now you should just trust us. And we don't need to have the courts reviewing what we're doing, because-- just trust us. We're fine.
I was having dinner over the course of the summer with a woman who is not an ACLU member, but knowing about my recent ACLU position, she said to me, so tell me what the ACLU is up to lately, but don't tell me about that Guantanamo stuff. She said, I'm so tired of hearing about that. Why should I care about that?
So I told her some reasons why I thought she should care about that, like the golden rule. And she said, oh, but has it occurred to you that they're not even Americans? So-- gasp, right?
So what I want to tell you is that there are, in fact, a lot of anti-terrorism policies that do affect Americans as well, and this is a book that I now have a proposal and project that I'm going to be writing, called Ordinary Americans and the War on Terror. And there are a number of ways in which ordinary Americans are affected by the War on Terror. There's all this surveillance under the Patriot Act. We've heard from the librarians and so forth. Hundreds of thousands of people, in fact, are under surveillance by the government, even if there's no basis for suspecting they've done anything wrong.
There are all these laws that criminalize "material support of terrorism." The law says you can be convicted and serve 10 or 20 years if you have provided expert advice or assistance to a terrorist group. A number of interesting people have been caught by this, including a guy who is a webmaster for an Islamic group who was convicted of-- actually, he wasn't. He was acquitted by the jury, but he was charged with material support of terrorism.
So that's my basic story about why we're not ready for the mission accomplished sign. Now just before we go to the question period, which we're going to have a little time for, I just want to tell you a couple of other examples of what the ACLU is up to not involving the federal government and the War on Terror.
You may have heard of a case that we won on the Supreme Court last year on behalf of a 13-year-old in Arizona, Savana Redding, who was strip searched because the school officials were looking to see if she had a prescription strength ibuprofen on her. Well, she did not have a prescription strength ibuprofen on her, but she did have, as one reporter said, angry parents and a lawyer. So she won that case.
There was a case argued yesterday by ACLU lawyers about a cross in the middle of the Mojave Desert. We think that there are actually better ways to respect and celebrate war veterans than to put up a symbol of only one religion. We also just won a case in a lower court that's about pregnant women who were shackled in Arkansas when they were giving birth, OK? Pretty awful, OK? Court held that that was unconstitutional.
Arkansas has another very interesting program called Act One. One of our plaintiffs, Sheila Cole, is a grandmother whose grandchild is in the custody of the state, because the child's parents were not able to take care of the child. Sheila lives in Oklahoma, and what she'd like to do is adopt her grandchild, but she is not permitted to under Arkansas law because she lives with another person to whom she is not married.
OK, that's the Arkansas law. It was designed, as they said, to blunt the homosexual agenda. Another blunting of the homosexual agenda is in the Tennessee schools that have tried to block all LGBT sites, which means that lonely, gay teenagers in Tennessee have nothing that they can look at to try to get any sort of support.
And finally, we are suing the patent office because they have been granting patents on genes. Not J-E-A-N-S, designer jeans, but G-E-N-E-S, the parts of your body. Do companies deserve a patent on tests that they plan to figure out whether or not people have defects on those genes that lead to hereditary breast cancer? Sure.
Should they be allowed to patent a part of your body so that nobody else can ever look at that gene without their permission? Meaning scientists can't do other experiments and find other tests. Women can't get a second opinion. The tests are incredibly expensive.
OK, so in all of these areas, it's been the Supreme-- the ACLU's job to kind of push back against the federal government and against all these states, which just have-- again, to me it's just all blatant violations of the golden rule.
I was once debating a very conservative person-- we were debating about the Patriot Act-- and he said, I want to surprise you at the beginning. I don't want to say bad things about the ACLU. I want to say that I think the ACLU does have a role to play, and I think the ACLU is like the canary in the mine.
We all know that the canary is like much more sensitive than a person would be about when the air starts getting thin. So he said, that's the ACLU. Maybe you're overly sensitive to when rights are disappearing or being tramped on, but it serves a function.
Well, I thought that was a very nice comment, except for the fact that to perform that service the canary has to die. So I'm going to stop there, and I'm going to see what questions you have. What do you want to talk about other than canaries? Oh, thank you.
[APPLAUSE]
OK, sir. First hand up.
AUDIENCE: My name is Jack [INAUDIBLE] second year [INAUDIBLE]. Thank you very much for coming. I was wondering if you'd care to comment on the alterations or lack thereof [INAUDIBLE] Patriot Act that they re-validated [INAUDIBLE].
SUSAN HERMAN: Well, President Obama's position on that is not yet clear. He said he's somewhat open to some limitations. At this point, the limitations would be helpful. It's a little bit more oversight, a little bit more court involved then, so it's helpful. But it is baby steps. Not clear whether they're going to be supported.
And, again, not quite as far along as we'd like to see. Senator Feingold just this morning was quoted as making comments that the Obama administration is declining to release documents that he says were improperly classified that would give important information to the public as well as to Congress about how much the Patriot Act in its present form is necessary or required in the title of the act. So it remains to be seen.
Already the act that-- the amendments that are being proposed are already pulled back from where they had been in Senator Leahy's original bill. So again, you want to see the details I won't try to get into those given our limited time today, but ACLU.org will give you the complete rundown. We have an entire report called Reform the Patriot Act.
We just don't know. President Obama, again, he's said the right things. He's said some great things. He said he doesn't-- he thinks that the Bush era paradigm of we don't have to choose between our safety and our freedom, he says it's just not true.
He says what we need to do is we need to enlist our basic values if we're going to fight terrorism, and the path lies together. Well, we'll see. We'll see whether he follows through. Yes?
AUDIENCE: [INAUDIBLE]
SUSAN HERMAN: Right.
AUDIENCE: [INAUDIBLE] citizens of [INAUDIBLE] and what you said [INAUDIBLE]
SUSAN HERMAN: The combatant status review tribunal, right, right.
AUDIENCE: My question is, is the ACLU actually looking [INAUDIBLE] now, during the past eight years of the Bush administration, there have been a lot of vexation and discussions [INAUDIBLE] not actually allowing torture but actually sanctioning that [INAUDIBLE] US Army could [INAUDIBLE] so when you [INAUDIBLE] do you realize that that might actually go back to the Congress [INAUDIBLE]
SUSAN HERMAN: OK. First on the Guantanamo detainees. The point is that originally when these people were sent to Guantanamo, they were characterized as enemy combatants. President Obama has said that he's rejecting that term.
That was a very calculated term that was designed to say, you're not somebody we're just going to charge with a-- brief background. The Geneva Conventions say if you're at war with somebody and you capture-- when we were at war against Nazi Germany, if you capture a German soldier, they are considered a prisoner of war. They're covered by the Geneva Conventions. And what that means is that you're not permitted to charge that person with a crime, because they were supposed to kill American soldiers. That was their job.
So the Geneva Conventions, the rules of war-- which always seem something like an oxymoron to me-- but the rules of war say this is the game we're playing. You're trying to kill us. We're trying to kill you. Therefore, if we capture your people, we're not going to charge them with a crime. But what we will do is we will detain them until the war is over.
So what the Bush administration was trying to do is to play on the war status, and say, well, you're not really covered by the Geneva Convention, because you're an illegal enemy combatant, but you're still an enemy combatant. And, therefore, we can detain you until the war is over. How long that's going to be, who knows.
Is the ACLU arguing that this hybrid is impermissible? Of course. We've been arguing that for eight years, and we've been arguing it as hard as we can to say either try them for a crime, because you can because Al-Qaeda is not Nazi Germany.
It's not like we have a deal with this other nation state that we won't charge their people and they won't charge ours. It is different, so charge them with crimes. You're allowed to do that.
Accountability. Yeah, we don't know what's going to happen. It seems to me that one reason why we need a good commission and a good real investigation of what's happened is I would think that Congress would be very concerned, because they pass these statutes, some of which are supposed to be implementing our international treaties, and some of which criminalize torture. And the definitions have been tortured, let's say. So it seems to me that Congress would want to think about whether there are ways that they can refine their definitions so that in the future whatever we think is the appropriate thing would or would not happen. Yes?
AUDIENCE: I know the ACLU was present at the recent protests in Pittsburgh against the G-20, so I'm wondering if you're familiar with the case of Elliott Madison?
SUSAN HERMAN: Not particularly.
AUDIENCE: He was arrested in a hotel outside of Pittsburgh for twittering to-- basically, it was a phone number you could-- a twitter you could get [INAUDIBLE] updates about [INAUDIBLE]. And he was arrested for and accused of twittering police movements, specifically if-- that the order to disperse was given, he sent out twitters that said police have ordered protesters to disperse.
A few days later, his house in New York City was raided. Over the course of 16 hours, police went through his and all of his housemates' things, just [INAUDIBLE] helicopters overhead. It was a really big deal. And he's now facing several felony charges for this. And so I was wondering if the ACLU or yourself had a position on his case and the larger implications of live reporting of a protest.
SUSAN HERMAN: OK, live reporting of a protest-- I mean, that's our bread and butter First Amendment issues.
AUDIENCE: Right.
SUSAN HERMAN: We have 50 affiliates around the country and hundreds of lawyers doing all sorts of things, so I can't tell you-- I think there's been some ACLU involvement in part of the protests. And certainly, we've taken First Amendment positions that you have to be able to report on what's happening.
There's been a long string of litigation-- the New York Civil Liberties Union, very state we're in, after the Republican Convention in New York City brought a case against the NYPD for their treatment of the demonstrators and won really a very major victory there. And I'll actually tell you an interesting ACLU story. When the next Republican Convention came to Minneapolis, the Minnesota Civil Liberties Union got all the work that the New York Civil Liberties Union had done, and the head of the Minnesota ACLU sat down with the chief of police in Minnesota and said, you guys better not do what they did in New York, because you don't have enough insurance.
So absolutely in terms of the rights of demonstrators. When I was actually at the march, the anti-war march before we invaded Iraq, and my daughter was one of the many NYCLU volunteers handing out brochures that the NYCLU had printed up called Know Your Rights While Demonstrating. And I can tell you those were going like hotcakes. Every demonstrator wanted at least two copies.
So absolutely. That's core what we do. Sir?
AUDIENCE: Do you foresee any progress being made on repealing Don't Ask Don't Tell under the Obama administration?
SUSAN HERMAN: Yeah, interesting question. Yeah, I think President Obama is very fluid on a lot of those issues. I just was reading yesterday he just appointed a gay Ambassador, which is great. He talked about when he was campaigning-- he talked about wanting to repeal DOMA.
One thing I've been discovering-- it used to be my basic image that the military were kind of anti-civil liberties, and what I discovered at the US Army War College and other places is that a lot of people in the military were really in the front ranks of those resisting torture. And I think at this point, you talk to a lot of the senior military leaders, and they wouldn't have a problem with that. So I think it really is politics.
I don't know. I don't know. Yeah, I think at this point, President Obama has a lot on his plate, and I think he's really worried about where to spend his political capital. Do I think in his heart of hearts he'd like to repeal that? Yes, I do.
You know, Harry Truman, by the way-- did you know this-- was the one who integrated the army after World War II? He just did it by executive order under his presidential powers as commander in chief, and that's how that happened. So the president does have power to do some things, so we'll see. Sir?
AUDIENCE: If I ask the question, I'll have the advantage and I'll know what the question is.
SUSAN HERMAN: OK. I won't have to repeat if for your benefit.
AUDIENCE: Would you just comment on the [INAUDIBLE] for corporations have the right [INAUDIBLE]?
SUSAN HERMAN: OK. Do corporations have the right to spend money in elections? OK, campaign finance has been a real tough issue for the ACLU for nearly a quarter of a decade now. I can tell you that this-- as a civil libertarian, one thing that I really like to say, because I'm on very solid ground here, is that this is an issue as to which reasonable people differ. And I know that, because my reasonable colleagues on the ACLU board have been differing over this issue for decades. And the board is close to split down the middle in terms of what the appropriate theory is.
And I think that to me I would summarize some of the divide as being on the one hand, some people have a kind of libertarian notion of the First Amendment that the more speech, the better. And if corporations are going to spend money and cause more speech to be out there, that's great. Whereas other people have a concept of the First Amendment that's more equality driven. That it's more about the reason that free speech is important is that we want everybody to participate in the electoral process, and that, therefore, the conclusion would be if corporations can drown out everybody else that they should not have special constitutional privileges.
The ACLU, because the board is currently in the middle of considering this question once again, we're not sure what we think about corporations. This is a work in progress [INAUDIBLE] let you know. October 24th we're scheduled to talk about that again. The Supreme Court, unfortunately, beat us to the issue.
So in the current case, the ACLU did not file a brief in either direction on the issue of whether corporations have speech rights, because we're thinking about it. And what I can promise you, which is a good civil libertarian answer, is that we have a very full, fair, and open process in which all points of view will be heard, and we'll talk a lot about it and then we'll take a vote. So to be continued. Sir?
AUDIENCE: Thinking about the [INAUDIBLE] that you described as any American citizen who is found to be providing counsel or money to a terrorist organization could be either arrested or prosecuted. I'm not sure which one it was that you described. That seems like a very ambiguous definition if you just look at what is or is not a terrorist organization. That changes from person to person and country to country, and I can easily see how [INAUDIBLE] contacts could be doing work with an organization that could, in time of strife, also be funding some kind of defense for themselves that would also be able to labeled as terrorism.
SUSAN HERMAN: Right.
AUDIENCE: And I'm wondering is there a website that we can we can check on to see if we might be providing counsel [INAUDIBLE]?
SUSAN HERMAN: Well, I'll tell you. There's a lot of answers to that question. There are a couple of websites, and it is expected that you all know exactly what's on them. One is the Department of State website under which 47 organizations, I believe, have been designated foreign terrorist organizations.
Now if you, as an American citizen, donate money to one of the organizations that has been designated as a foreign terrorist organization, you can be convicted of that if you know you're donating to the organization, even if you had no intention to donate to anything illegal that they're doing. You just wanted to support the nursery school.
The story that I'll tell you there is about a woman who's actually not an American citizen, but I think it's a really interesting story. Roya Rahmani was Iranian. She was living in Iran, and she hated the fundamentalist regime that's there now. So she was protesting against the regime as hard as she could, because she wanted to see Iran move to a more democratic state.
So she started to get some kickback from the-- some pushback from the administration and ended up having to flee the country. She had such a compelling case that, in fact, she was going to be persecuted if she went back to Iran, that the United States granted her political asylum. Now I'm sure some of you know that's not a very easy standard to meet. She had to really show that this was a really dangerous situation.
So here she is in the United States now, having been granted political asylum. Well, she brought her principles with her, and she still wanted to fight for Iran's-- to move to greater democracy, so she donated some money and was working with an organization called the PMOI-- I won't try to pronounce all the names for you, but that's their initials-- as a way to try to fight the fundamentalist regime. She was prosecuted and convicted-- Actually, she ended up pleading guilty of providing material support to terrorism, because she made a contribution to this organization because the Secretary of State designated this organization as a foreign terrorist organization.
She said when she was charged with this, and this is potentially 10, 20 years in prison, she said, well, wait a minute. I think you're wrong. That's not a terrorist organization. What they're trying to do is they're working for peaceful change and the democratization of Iran.
According to the courts under current law, she is not permitted to defend herself by raising that claim, OK? Once the Department of State says that's a foreign terrorist organization-- conclusive. She is not permitted to litigate that.
So having lost-- her case went back and forth. The Ninth Circuit Court of Appeals ruled against her-- having lost and not being permitted to defend herself, she pleaded guilty. She's awaiting sentencing, OK? Do I think that's fair? No, I don't.
The other website that you might want to be very much aware of is the Department of Treasury website, because they have all sorts of watch lists. And, in fact, it's a real trap. There are a lot of Americans-- a lot of charities are having problems with the Department of Treasury website, because you're supposed to attest to that you don't hire anybody or do business with anybody on this watch list, and some of the names on the watch list are John Brown. A lot of people are going to have these names.
Same for the no-fly lists that the Transportation Security Administration has. Names on the list-- T. Kennedy. Teddy Kennedy was once stopped, OK? So there's a lot of stuff there.
Who's a terrorist organization? I'll tell you one more story about the material support laws. And this is a big one, because the Supreme Court finally is going to handle one of these issues.
There's an organization called the Humanitarian Law Project, and they started litigating about the constitutionality of the material support statutes in 1998. This is even before 9/11. What they do is they work with organizations like the Kurds in Turkey who have a lot of trouble-- if you know about the Kurds in Turkey-- and the Tamil Tigers in Sri Lanka. Insurgent groups. They have some doctors who provide medical care to people, no matter what their political positions are in any of these issues. And-- this is the real kicker-- they also counsel these groups on how to seek-- to further their goals peaceably through the UN instead of using violence.
They are concerned that they will be considered under these statutes to be providing "expert advice or assistance" to terrorists. So for years now, they've been litigating-- could you please tell us whether or not what we're doing is criminal? The Ninth Circuit gave them something of a victory, and the Supreme Court has just agreed to hear this case.
Again, disappointingly, the Obama administration is pushing, we need the breadth of that dragnet. Because just in case there is a terrorist who we couldn't otherwise catch, it's worth having that broad of net, even if it's going to catch the Humanitarian Law Project and all sorts of people who are doing completely law abiding, and, in fact, I think quite positive things. So yeah. There's a lot to that.
You might be interested if you're concerned about this-- the ACLU recently issued a report about the impact of these laws and the Department of Treasury regulations on Muslim charities. It's a tenant of the Muslim religion that you have to give charitably, and there are a whole lot of people who are terrified at this point. They don't want to give money to anybody, because they just don't know what they'll be buying into. Sir?
AUDIENCE: [INAUDIBLE] international. We have the treaties [INAUDIBLE] Has the ACLU considered using [INAUDIBLE] because it's torture, [INAUDIBLE] using foreign courts or international tribunals to charge these people [INAUDIBLE] rather than just leaving [INAUDIBLE] to US law?
SUSAN HERMAN: The question, if people couldn't hear in the back, is whether the ACLU has considered using international or foreign tribunals. Yes. Khaled El-Masri, the German Lebanese man, his case is now before the Inter-American Commission on Human Rights. We've been looking into a lot-- we have the Human Rights Program that uses the Universal Declaration of Human Rights as a source for many things. We've been to Geneva to argue about that.
You may be aware-- this is not the ACLU's doing, because we don't really do things with just different countries. But there are people in Spain and Germany and Italy who have investigations or have had prosecutions going of American officials. And what people say now is Donald Rumsfeld has to be pretty careful of where he goes on vacation.
So was that the last one, or do we have time for one more? OK. Last question. Go ahead.
AUDIENCE: You mentioned Abu Ghraib before, and of course recently president Obama's administration asked to suppress the second round of photos that were coming out. Can you tell us about the ACLU's position on that, and that kind of leads into the trickier question of [INAUDIBLE] has as much power when it comes to national security. So does the ACLU see that there's a flaw in our process and how we evaluate what is and what is not involved in national security?
SUSAN HERMAN: OK. Well, it's good to have a difficult question for the last, because it's complicated, so I'll try to do it justice in two minutes. The ACLU-- the Freedom of Information Act request that we made was not for photographs. It was for documents. And what happened was that when the documents were being gone through, it turned out that there were all these photographs. There are 47 photographs that the judge in the case-- the court ordered to be released.
Now what that means is that these were things that had not been classified. They had not gone through the classification process. And the claim that the Bush administration was making under the Freedom of Information Act-- there are these exemptions. As I was saying before, the presumption is for disclosure. The court is supposed to see whether or not material is within a particular exemption in order to say, you don't have to disclose it.
The court had decided that this was not on the ground that the Bush administration was claiming. It had nothing to do with national security. They said it was about the privacy of the people in the pictures, OK? So the court looked at the arguments that were actually made and looked at the fact that these were not classified in any way, and the court said, it's under the Freedom of Information Act. Turn them over.
There's been some movement in Congress where people have been saying, well, maybe we should pass a statute saying this is an exception to the Freedom of Information Act, too. But right now, that's what's in the statute. The court has ordered the administration to turn over the photographs.
This is not something we particularly asked for, but the allegations that President Obama is making-- the idea that perhaps somebody will see these photographs and become angered and retaliate American troops-- seems to me-- fortunately, being nonpartisan, we have a lot of people in the ACLU tent. And one of my colleagues on the national board is a former Colonel in military intelligence, a lifelong Republican named Michael Pheneger, And he was talking to me about this before I went to the US Army War College to talk to the people who were very concerned about this issue.
And what he said is, first of all, he said, it's just an excuse. He said if people want to retaliate, the people who would order that kind of retaliation, they have all the photographs they need already. Horrible photographs. This would just be an excuse. This is not going to cause anything.
Plus, the bottom line here in terms of our principles-- there's a very interesting report, if you don't have enough homework already that I've given you. The International Council on Jurists has recently had a very interesting panel called the Eminent Jurist Panel. Eight people headed by Arthur Chaskalson, who had been the chief judge of the South African Constitutional Court who went around the world for three years and interviewed people in all countries that had recently had problems with terrorism, and talked to them about what did you do changing your laws in response to terrorism, and how did that work out for you?
And what they found-- their findings are very strong. What they say is that the countries that do best internally, externally, in the future, are the countries that stick to their principles. That if you start changing your laws in response to anything that's happening, it's just a recipe for disaster and lack of respect.
So let me give the last word, since I've been talking to you about the military. Two marine generals, Charles Krulak and Joseph Hoar-- they're now retired-- and they say as to torture and as to the use of torture, they say, the rules must be firm and absolute. If torture is broached as a possibility, it will become a reality. This has had disastrous consequences.
This war, they say, will be won or lost not on the battlefield, but in the minds of potential supporters who have not yet thrown in their lot with the enemy. If we forfeit our values by signaling that they are negotiable in situations of grave or imminent danger, we drive those undecideds into the arms of the enemy. This way lies defeat. Thank you.
[APPLAUSE]
President of the American Civil Liberties Union (ACLU) Susan Herman asserts that President Obama and his administration are shying away from some of its promises.
"Are we ready to close the ACLU office and put up a nice banner that says, 'Mission Accomplished?' Not quite yet," says Herman. She cites instances where the Obama administration is maintaining "War on Terror" policies which violate civil liberties.
On behalf of the ACLU, Herman has recently petitioned the Obama administration to close Guantánamo and to cease torture tactics and secrecy.
Susan Herman was elected President of the American Civil Liberties Union (ACLU) in October 2008, after having served on the ACLU National Board of Directors for twenty years, as a member of the Executive Committee for sixteen years, and as General Counsel for ten years.
