2010 Report: Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration >>

Freedom Under Fire: Dissent in Post-9/11 America (Text Version)

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This report was made possible by generous grants from The Ford Foundation, The John D. and Catherine T. MacArthur Foundation, the Open Society Institute, and. The Rockefeller Foundation.

THE AMERICAN CIVIL LIBERTIES UNION is the nation's premier guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and freedoms guaranteed by the Constitution and the laws of the United States.

AMERICAN CIVIL LIBERTIES UNION OFFICERS AND DIRECTORS

NADINE STROSSEN, President

ANTHONY D. ROMERO, Executive Director

KENNETH B. CLARK, Chair, Executive Advisory Council

RICHARD ZACKS, Treasurer

ACLU

National OFFICE

125 Broad Street, 18th Floor

New York, NY 10004

(212) 549-2500.

www.aclu.org.

Table of Contents

Foreword

Introduction

In the Streets

On Campus

In the Mall

On the Waterfront

On the Sidewalks

In the Park

In the Public Square

At Presidential Appearances

At Vice-Presidential Appearances

On Military Bases

In the Schools

In the Marketplace

Under Surveillance

At the Airport

Conclusion

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FOREWORD

There is a pall over our country. In separate but related attempts to squelch dissent, the government has attacked the patriotism of its critics, police have barricaded and jailed protesters, and the New York Stock Exchange has revoked the press credentials of the most widely watched television network in the Arab world. A chilling message has gone out across America: Dissent if you must, but proceed at your own risk.

Government-sanctioned intolerance has even trickled into our private lives. People brandishing anti-war signs or slogans have been turned away from commuter trains in Seattle and suburban shopping malls in upstate New York. Cafeterias are serving "freedom fries." Country music stations stopped playing Dixie Chicks songs, and the Baseball Hall of Fame cancelled an event featuring "Bull Durham" stars Tim Robbins and Susan Sarandon, after they spoke out against the war on Iraq.

Compounding the offense is the silence from many lawmakers. There is palpable fear even in the halls of Congress of expressing an unpopular view.

Why should this disturb us? Because democracy is not a quiet business. Its lifeblood is the free and vibrant exchange of ideas. As New York Times columnist and author Thomas L. Friedman has pointed out, the war on terror is also a war of ideas. How are we going to convince holdouts in other countries about the importance of free speech and civil liberties if we show so little faith in our own?

With U.S. forces deployed overseas, and concerns about safety and freedom at home, we ought to be having as robust a debate as possible.

But if this report describes a shadow across America, we can also find much to cheer in the multitudes fighting to push it back. One could even see, countering the vehemence of the government's response, signs of the opposition's success.

Cities from Honolulu to Portland, Me. and one state (Hawaii) have adopted resolutions affirming their constituents' free speech, privacy and due process rights, even against federal incursions. As this report went to press, more than 100 cities and counties had taken such stands, and dozens more were preparing to do so. I heartily urge members of communities interested in taking similar action to contact the nearest ACLU affiliate, or to visit our Web site (www.aclu.org/safeandfree), for sample resolutions and strategies for getting them passed.

The California Police Chiefs Association and police departments from Detroit to Austin have also come out publicly against a blurring of the lines between federal and local law enforcement. Many have refused to become extensions of the FBI or the Immigration and Naturalization Service - bravely risking their shares of a promised $1.5 billion in federal anti-terrorism funds - for fear of jeopardizing their primary, crime-fighting roles in immigrant communities.

The American Library Association says the FBI is treading on the rights it is supposed to uphold. Libraries from Buffalo to Santa Cruz have posted signs to warn patrons that records of the materials they view and borrow may wind up in the hands of federal agents. Some are shredding some library records, in an effort to preserve patrons' privacy.

Not only has the government failed to suppress dissent; the protest movement has actually picked up steam. For every person who has grown wary of speaking out, this report indicates there are many demanding to be heard. The number of "card-carrying" members and supporters of the ACLU surged in the fall of 2001, after Attorney General John Ashcroft accused his critics of disloyalty, rising to more than 400,000 in 2003.

Yes, some government officials, including local police, have come down hard on protesters, as this report makes clear. But in most of the cases that have come to light, protesters have stood firm. Lawsuits alleging excessive force, wrongful arrest and denial of due process have been filed on behalf of hundreds of protesters in New York and Washington alone. Undaunted by suspensions, arrests or other actions taken against them, a high school student in Michigan, a pair of college students in Iowa, a shopkeeper in Colorado and two grandmothers in Tampa are among those stepping forward to challenge those who would violate their First Amendment rights.

These democratic stirrings encourage us. We recall that although some of the greatest names in American liberalism (President Franklin D. Roosevelt and Supreme Court Justices Earl Warren and Hugo Black) supported the Japanese internments after Pearl Harbor, history has exonerated the people of good hearts and minds who opposed them.

Dissenters who take unpopular positions in their own times are often seen as heroes later on. We believe that when future generations look at what was done to our core freedoms and values after 9/11, the voices of dissent will stand out as the true defenders of democracy.

Anthony D. Romero

Executive Director, ACLU

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INTRODUCTION

In the tense time following the. September 11, 2001 terrorist attacks on New York and Washington, Attorney General John Ashcroft mocked government critics and assailed their patriotism, calling their concerns "phantoms of lost liberty." And the American Civil Liberties Union shot back with a national ad campaign asserting our right to be "safe and free."

"The nation's highest ranking law enforcement officer is using his bully pulpit to shut down dissent and debate," ACLU Executive Director Anthony D. Romero charged, declaring that free and robust debate is the engine of social and political justice.

But Ashcroft's words were just the opening volley in a war of intimidation. White House spokesman Ari Fleischer also warned Americans to "watch what they say." Conservative commentators like Bill O'Reilly suggested prosecuting war protesters as "enemies of the state." Since 2001, hundreds have been arrested for exercising their constitutionally protected freedoms, and some have lost their jobs or been suspended from school. Many have called on the ACLU for assistance.

We need to stop and consider the direction in which we are going, for we are in danger of allowing ourselves to be governed by our fears rather than our values. We are not the first generation to face this challenge.

Since the administration of President John Adams, who feared that sympathy with the radical ideas of the French Revolution would throw America into upheaval, there have been attempts to silence dissent. The Alien Act of 1798, which gave Adams the power to deport any non-citizen he judged dangerous, was never enforced, but his Sedition Act was used to suppress freedom of the press. President Abraham Lincoln suspended the writ of habeas corpus during the Civil War. And President Woodrow Wilson used the Espionage Act of 1917 not to catch spies but to mount a full-scale assault on free speech.

Faced with strong domestic opposition to the First World War from citizens who believed he was less interested in "making the world safe for democracy" than in protecting the investments of the wealthy, Wilson encouraged "patriotic citizens" to report on neighbors they suspected of disloyalty. His Justice Department prosecuted more than 2,000 critics of the war and judges were quick to hand down harsh punishments. In 1918, Congress also enacted a Sedition Act, restricting criticism of the government, the Constitution, the flag and the military.

The decades that followed ushered in some of the most shameful chapters in American history: the World War II internments of Japanese Americans; the McCarthy hearings; the Pentagon Papers, Watergate and FBI spy scandals. All involved government restrictions on speech, the press and freedom of movement. All were popular at the time, and are now seen as abhorrent to the national interest.

This is the latest in a series of special reports issued by the ACLU - along with Insatiable Appetite (April 2002), Civil Liberties After 9/11 (Septembermber 2002), and Bigger Monsters, Weaker Chains (January 2003) - on government actions since 9/11 that threaten fundamental rights and freedoms without making us safer. While not intended to be a comprehensive analysis of dissent since 2001, this report, drawn from recent and pending ACLU case files, does. suggest how challenging it has become to oppose the current administration.

Dissent since 9/11 has taken three principal forms: mass protests and rallies, messages on signs or clothing, and other acts of defiance by communities and individuals. These have ranged from silent vigils in parks to the passage of resolutions by dozens of local governments protesting federal measures that threaten fundamental freedoms.

Some government officials, including local police, have gone to extraordinary lengths to squelch dissent wherever it has sprung up, drawing on a breathtaking array of tactics - from censorship and surveillance to detention, denial of due process and excessive force. Police have beaten and maced protesters in Missouri, spied on law-abiding activists in Colorado and fired on demonstrators in California, and campus police have helped FBI agents to spy on professors and students in Massachusetts. Ashcroft's Justice Department has further asserted the right to seize protesters' assets and deport immigrants under anti-terrorism statutes rushed through Congress after the attacks, and debated whether to revoke U.S. citizenship in some cases.

Some of the most insidious government practices, such as the compiling of political dossiers on protesters arrested in New York, didn't come to light until they were exposed and challenged by the ACLU.

The cases described here present a disturbing post-9/11 picture of life in America's streets, malls, parks, schools, airports and harbors.

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