US Civil Liberties in September 11’s Wake: A Roundtable Discussion with Jamie Fellner, Elisa Massimino and Michael Ratner – Human Rights Dialogue – PDF

2002 US Civil Liberties in September 11’s Wake

Dialogue: Let’s start with the situation immediately following the September 11 attacks. It was a frightening time—all the more so here in New York. People who had never really thought about patriot­ism were breaking out flags, bumper stickers, and pins to demonstrate their support. How did you as human rights activists make sense of your roles?

Michael Ratner: One of the hardest things for us to do in that first six months after the attacks was to argue for the government to analyze critically what had happened and why. People who suggested in the first few weeks after the attacks that the United States should examine its foreign policy in the Middle East were attacked by the administration, the media, and the public. I definitely was not as direct in my criticisms as I am today. Instead, I addressed other areas of concern—ones that were not as contentious, such as pushing the government to launch an investigation of intelligence failures before passing new laws.

Elisa Massimino: We knew from the beginning that we would have to join forces and build a coalition. Two days after the attacks, we all participated in a coalition meeting, dubbed “In Defense of Freedom,” with representatives from more than 100 groups rep­resenting a broad spectrum of groups that disagreed on an enormous number of issues. But we agreed on the fundamentals.

Dialogue: What were those fundamentals?

Massimino: We agreed that it is wrong for the gov­ernment to target people based on their race, reli­gion, national origin, or immigrant status. We agreed that security could be ensured without abridging the Constitution. We rejected the asser­tion that proposals put forward as “antiterrorist” necessarily bring greater security. We believed that it was important to reaffirm the right of peaceful dissent. We worked together and drafted a statement by the end of the meeting. The understanding we forged that day has made us more effective in addressing the chal­lenges that have emerged over the last year.

Jamie Fellner: This coalition was unprecedented. I have never seen anything like it in all my years of human rights work.

Ratner: I recently talked to one of the organizers, Kit Gage, and she was still amazed that everybody was able to pull this group together so quickly in light of the shock of September 11. It was remarkable.

Dialogue: Did you have any models to fall back on?

Ratner: This environment was not totally unprecedented. We saw some parallels with the 1980s when a similar group was in the Pentagon and the State Department under Reagan. The government launched a big program to spy on Central American activists. There are also historical parallels with the McCarthy era, but nothing quite like this.

Feliner: Going back to your earlier question, I want to say that all three of us are Americans. We live in this country. We work for organizations that are predicated on internationalist ideals. The United States was a primary force behind codifying those ideals in treaties. So when our home was attacked, it was not as though any of us did not feel it. But I am worried about the repercussions of the poli­cies developed in response to September 11. I don’t feel that by criticizing I am unpatriotic—I consider it deeply patriotic to ask the United States to live up to the finest ideals in its tradition. We do what we do because it is both the right thing and because there is a strain in United States history and culture that affirms val­ues to which we are all personally and professional­ly committed.

Dialogue: As more time passed, how did your groups address the U.S. public’s willingness to trade civil rights for increased security?

Fellner: In the months following the attacks, our con­cerns for the protection of civil rights were not shared by the public. That’s nothing new: we are often on the wrong side of these issues from the public’s perspective. Elisa, Michael, and I all work for organizations whose efforts on human rights abuses taking place in the United States are often not well received. Even some Human Rights Watch supporters in the United States who are concerned about what happens to Chinese dissidents have a different criterion when it comes to abuses at home. Although the post—September 11 policies, such as extreme cases of government secrecy, repressive legislation, and denial of free speech and due process are not something we have had to confront in the U.S. in recent years, dealing with them is not so different from the work the organization has been doing in other countries. We are doing what we always do. However, I never thought I would be writing up an informational pamphlet for distribution in the United States about why torture is unacceptable.

Dialogue: Have you put extra emphasis on your public education campaigns?

Ratner: The Center for Constitutional Rights is primari­ly a litigation organization, but after September 11, we realized that litigation is limited without the support of the public. Therefore, we have been trying to do more public education and outreach—everything from print­ing “Know Your Rights” pamphlets to participating in more radio and television interviews. We have circulated briefing papers with sto­ries more personal in approach. We have pub­lished books about the USA PATRIOT Act and the military tribunals.

Massimino: Explaining things to a broader public is much more important now For the past year, all three of us have been doing talk shows and call-in radio shows, and we understand that the public is afraid. At the Lawyers Committee, we have redoubled our efforts in public education. I have spent far more time talking to people outside Washington and New York than I ever have before. While direct input to policymakers is criti­cal, it would have been a mistake to invest all of our attention there. Policymakers will not take up these dif­ficult civil liberties issues unless they believe there is a constituency that cares about them. Winning the support of the public is imperative.

Dialogue: Give us some of the details on your approach.

Massimino: We found it extremely useful to talk about trade-offs. But if people believe that the choice between liberty and security is a zero-sum game, if they are pre­sented with the choice abstractly, liberty loses every time in this environment. When we started asking which measures would actually make people safer and which specific liberties people were willing to give up, we found more common ground, and the hysteria began to evapo­rate. I have done my own ad hoc polling on the military commissions by surveying cab drivers. I started by ques­tioning the basic idea of military tribunals, and people would say, “You just don’t trust the military.” Then when I asked more detailed questions—Is it okay if the trials are held in secret? Is it okay if the detainee does not have a lawyer?—the responses changed to, “Oh, that’s not really what I think of when I think of this country,” or “That wouldn’t be fair.”

When framed in specific terms, people are at least willing to ask the questions and respond to the equation a little bit differently. But to get there you have to engage with people and start from where they are mentally—and right now they are extremely nervous and anxious for the government to protect them. The need for public education is still very great.

Ratner: Let me just add that I think pub­lic education is crucial, but as long as people do not feel safe in this country, it can only go so far. If people believe there is going to be another al-Qaeda attack, it will be incredibly difficult to roll back the repressive measures that Congress has enacted. This climate will persist for a while.

I am not pessimistic, however. We must continue fighting these measures because we can make some small in-roads. We were able to limit military tribunals to some extent, and we may be able to open immigration hearings.

It is worth the fight to educate the public, but the fear is very real. If you were to ask New Yorkers whether they would support some measure that would make their family more secure in the face of an imminent terrorist attack, most would say yes. Even I would. That is a serious problem.

Dialogue: Do you feel that human rights organizations should do anything to address that public fear, and if so, can they?

Massimino: We all recognize the government’s respon­sibility to increase security.

Fenner: Being a human rights activist does not mean wanting to be insecure. When it comes to trading civil liberties for more security, human rights activists are not absolutists. For example, I do not have a problem if every single person in the airport has to be patted down. It is an infringement of my liberty. It is a hassle. But I have no problem sac­rificing my liberty for security in this case. Where I do have a problem is if the government is searching people on an irrational and discriminatory basis. I want to ask: Is the measure justified? Is it tailored? Is it proportionate? Is it nondis­criminatory? People like to think that rights activists are absolutist. There are very few absolute rights. Torture is intol­erable—freedom from it is an absolute right. But in terms of liberty there is room for trade-offs.

Massimino: I think it is important to support an affir­mative agenda on security. But there are limits to how specific human rights groups can get in promoting secu­rity measures; that is not our area of expertise. My organization has focused on fostering discussion about these proposals and encouraging people to ask questions about how they will make us safer, in addition to how they will affect people’s rights. I think that posing ques­tions like these is a stronger way to shift the debate—and one that brings us into common cause with everybody.

Ratner: A hallmark of the new security measures is that they stand outside the system of checks and balances. There is no way to check what the executive is doing with the Guantanamo detainees or with surveillance techniques like wiretapping. This is not smart govern­ment, and it does not make us more secure.

Massimino: Pushing the idea of smart government is an important strategy in this environment. There is a lot of clear evidence of government failures prior to September 11, such as failures of intelligence agencies to talk to one another or to follow up on tips, failure to allocate money to the right places and to use money wisely, and basic failures of security in the airports. The public has this sense that the government has not kept them safe, and yet there is also a competing, deep desire to believe that the government knows what is best and will be able to protect us.

So the message that we have found resonates with people is the idea of checks and balances. Our system of checks and balances not only keeps one branch of government from overreaching, but ultimately makes for better policy. We have found we can garner public support by showing people that checks and balances actually lead to higher security. When you have a USA PATRIOT Act and there is no debate in Congress, what you get are old proposals that were floated and rejected in the past when they were evaluated on their merits. But these proposals gain new life when people think policymakers and the public won’t look at them too closely. Checks and balances force government to adopt more effective security policies.

Dialogue: Is it possible that recent public debate on civil liberties and the stepped-up work your groups have done in public education have helped raise awareness of human rights in the United States?

Massimino: Jamie, what you folks at Human Rights Watch have done with your Opportunism Watch pro­gram has done a lot to raise awareness of human rights in the United States. The program makes com­parisons between human rights abuses that have occurred in the United States after September 11 and human rights abuses of governments in other coun­tries. When you point out the similarities between the military tribunals here and the military tribunals in Indonesia, people realize the gravity of the situation. Showing the American people that abuses now occurring in the United States parallel those seen in Northern Ireland, Turkey, Indonesia, or India is a way to make Americans rethink domestic abuses in human rights terms.

Ratner: That is a good point. I have argued we should start to call the USA PATRIOT Act the “United States Internal Security Act.” One of the heaviest criticisms of the military tribunals is that the United States condemned such tri­bunals in Nigeria, Peru, and a number of other countries. Making these connections is a tactic we use all the time.

Fellner: While Opportunism Watch does help Americans make those important links, we still have difficulties using human rights language here in the United States. I had a long conversation with a donor concerned about criminal justice issues, which my program at Human Rights Watch has worked on substantially. When I asked her if she would be interested in receiving a grant proposal from us, she replied, “Oh, we don’t fund human rights.” I thought to myself, this is exactly the dilem­ma we face. Sometimes we are all forced to down­play human rights language because, while we are trying to educate people about human rights, we are also trying to get a message to resonate with the American people. Often, when we use human rights language in terms of our work in the United States, Americans just stop listening.