Tikkun Speech Notes – PDF

2002 Tikkun and WRL Speech Notes


Michael asked me to speak about civil liberties in our post 9/11 world.

I have been doing that non-stop since 9/11-speaking, writing and litigating. Almost every day there is some new assault on what I understood to be our fundamental rights; it is happening here in the US and it is happening abroad: in the UK, in France; in India; it is a worldwide phenomenon.

We were having this discussion the other day at my office at CCR; thinking and developing idea for litigation-legal challenges. What case could we bring on behalf of the detainees? Detainees whose names and locations we did not know. What could we go into, and on behalf of whom to challenge the inhumane treatment that is occurring at GITMO? How do we challenge the wiretapping of attorneys and clients? How do we challenge surreptitious entries into homes, entries that we will never know occurred?

We knew these issues would be difficult to litigate and win. We understood that during time of war, of serious threats, the courts would not really protect us-would not really strike down most of the infringements on our rights. We were aware of our history-the jailings of those who merely spoke against the draft during WWI; the concentration camps for Japanese-citizen and non-citizen– upheld during WWII; and military tribunals here in the United States upheld during that war.; and the difficulty of winning anything during the height of the McCarthy period.

We were aware and amazed by a chilling speech that Justice O’Connor gave at NYU Law School a few days after September 11: Here is what she said:

“We’re likely to experience more restrictions on our personal freedom than has ever been the case in our country”; “the attacks will cause us to reexamine some or our laws pertaining to criminal surveillance, wiretapping, immigration and so on.”

-remember those words-more restrictions than has ever been the case in our country This from a the judge who will be sitting on the legality of many of these measures only time that has happened in history of the court.

She went on and appeared even more prescient: ” it is possible we rely more on international rules of war than on our cherished constitutional standards for criminal justice in responding to threats to our national security”

She was predicting the use of military tribunals a month before President Bush issued his order.

So while we knew we would bring cases and represent everyone we could in challenging the new repressive actions and laws, we were not pollyannaish about our chances in the courts.

Then a very politically aware lawyer at the meeting spoke up–He said, that no matter the number of cases we filed, we would only win small victories around the edges, that this would be so as long as the current situation, particularly in the Middle East continued he said the region was roiling-that U.S. actions in that region particularly regarding its unqualified support of Israel, its bombing of Afghanistan and its actions in Saudi Arabia

and elsewhere-would continue to anger people and fertilize the ground where the terrorists of the future took root.

Recent pictures of GITMO detainees only makes terrorist threat greater

My friends message was clear: the threat of terror would continue unless and until fundamental changes were made in US foreign policy and actions; and until that happened, we had little hope of ending the draconian restrictions on our rights at home. We cannot separate the struggle for regaining our civil liberties here from creating a more just world abroad-it is one struggle and that is not just rhetoric. You and I and our children will not be safer and not be freer until the world is as well.

Martin Luther King saw this when he gave his famous Riverside Speech on April 4, 1967-the speech in which he connected the civil liberties struggle at home with the necessity of speaking out against the horror of the US war in Vietnam. But even speaking against the war in Vietnam he said was not enough because ” the war in Vietnam is but a symptom of a far deeper malady within the American spirit.’ King said there needed to be a” true revolution in values that would cause us to question the fairness and justice of many of our past and present polices.” Referring overseas military and poverty

As we are all aware this is not the course, the US has embarked upon. It has not questioned the fairness and justice of its polices; those policies are continuing.

In fact to question those policies whether in the middle east or at home is to be disloyal-how people were attacked, or as Atty Gen. Ashcroft said is to aid the terrorists


Govt reaction instead: a war abroad and a war at home; long war and permanent

Abroad: Congress authority: resolution: any nation, state, person, organization-blank check-who will be next; see Philippines; Somalia; Iraq. End terrorism with war; end terror with terror. Short and long term alternatives: UN-missed him; fundamental changes

At home-draconian response-create a fortress America-curtail our rights­ believe stop terror with building of a surveillance state, a national security state -some might even say a police state-1. Border and flights 2. Continue to generate enemies unless fundamental changes in US policies

Not saying there should be no changes: see why failed and do what is ness-no invest yet.. airlines. coordination

I want to make 3 or 4 general statements about this war at home and then give you some of the details of the new fortress america

  • Unique circumstance-possibly worse than other times: war abroad, but also a serious attack at home + Ashcroft-really want to tum the clock back
  • Attacks at this point are primarily against non-citizens-middle eastern and otherwise: round-up-detentions; questioning; key provisions of USA Patriot Act; military tribunals; indefinite detention laws . 20 million non-citizens and dividing our community; us and them
  • Bypassing of the checks and balances of our const. Eg. President-blank check for war-choose countries and no need go back to congress; military order same: president chooses who goes before; atty client wiretapping- ashcroft instead of court; immigration judges: ashcroft: they work for me. Tremendous accretion of executive power-moving toward police state.
  • Dissent/information: Govt: Ari Fleisher : watch what you say; Ashcroft; Reporters in war; Non govt: Teach-ins; Univ.; Media: Cnn and war; FOIA
  • (Jewish dissent: Am jewish congress; am jewish committee President of am heb congreg-israel done a pretty good job–

Military tribunals: Peruvian Option

I want to 1st address an issue I have been doing a lot of work on: military tribunals: Nov. military order: what it allows: non-citizens, detention and trial, president chooses, rumsfeld commr., fact and law, death penalty, no appeal


Imagine credibility of verdicts-no extradition Counter

Success-limits, here and question is abroad POW issue-more resilience

Detainees: Chilean Option-Disappeared­

How long and no attys Information and number

Detain for a reasonable time-new reg.

Stories-normal; Egyptian; doctor with same name; complaint by landlord==tenant Today-Passaic; attys

Israeli Option

A few suspected and not talk; use Israeli pressure tactics

Atty Client Wiretapping USA Patriot Act