Kit Gage's "Citizen Hearing" Testimony
Wednesday, October 13, 2004

I appreciate the opportunity to participate in this important forum. I direct the First Amendment Foundation, a 20 year old non-profit advocacy group defending the right of political expression and dissent, and NCARL, a 45 year old civil liberties group founded to abolish the House UnAmerican Activities Committee.

The 9/11 attacks were heinous, and horrible. We should do what is possible to bring justice to bear on anyone who had anything to do with planning or carrying them out. We should do what is possible to understand our own weaknesses and repair them - our structural and infrastructural defenses and our intelligence and analysis. We should try to avoid future attacks, but should recognize that we may not ever be able to stop them entirely, no matter how hard we try. We must respond vigorously to new terrorist threats, but in a comprehensive, careful, balanced, targeted and effective way. We must not void the Constitution and Bill of Rights in this pursuit or our effort will be for naught.

Let’s take a short test to see how the U.S. has fared in this effort since 9/11/2001-
Do the following government policies and actions follow the above guidelines?

1. Is the quality of our intelligence improved by abusing and humiliating detainees hastily arrested at home or abroad?

2. Does it make our constitutional system more secure if we make deportable anyone who provides humanitarian aid to any organization engaged in a civil war?

3. Does it improve our security if we allow the Attorney General to label as "terrorist" any immigrant involved in a domestic dispute or armed bar room brawl, tossing them in mandatory detention without a hearing to show he’s dangerous?

4. What if we try immigrants in secret - isolated from the press, family or public and keep them in jail even after a judge rules they should be released -- does that make our country safer?

5. Do we enhance our ability to fight terrorism if we resurrect the old McCarran Walter law and keep visitors out of the country just because they disagree with U.S. foreign policies - and even if they never advocate any violent activity?

6. How balanced is it if law enforcement can wiretap and search peoples’ homes or offices in criminal (not just terrorism) investigations, without probable cause of a crime, and then allow that evidence to be used in a criminal case without the normal right to challenge its reliability?

7. Is it consistent with constitutional protections when we allow secret searches in cases having nothing to do with terrorism? Is it effective when we allow the government to engage in fishing expeditions with no real expectation that the data being gathered have any connection to people suspected of terrorism?

8. Won’t it at the very least be counterproductive for the government to engage in profiling based on the color of one’s skin? And even more so, to haphazardly detain thousands of people in the name of terrorism when none can be convicted of a terrorist crime?

9. Can we say we are being faithful to our constitutional values if the Executive asserts unilateral authority to lock up any human being anywhere in the world on the President’s say-so, while rebuffing all attempts to provide meaningful judicial review?

Our government didn’t do too well on this quiz, did it?

The U.S. reaction to terrorist attacks is, unfortunately, not surprising in an historical perspective. All around the world as well as in the U.S., countries that are threatened respond by shutting down dissent and disagreement with their policies as a way to fight the threat. As well they often target particular ethnicities and races. These tactics are always a mistake. They alienate people whose eyes and ears and overall support are needed to track down and eliminate killers. We have limited law enforcement and intelligence capacity – mass interrogation, investigation based on First Amendment activity, mass arrest, and mass detention sap their ability to target and try to eliminate what are really a small number of dangerous characters.

The First Amendment Foundation’s roots go back to the days of the House UnAmerican Activities Committee, which we opposed, and we have a close understanding of the risks to democracy of such policies. We believe we should learn from this history and avoid making once again the mistakes that have been so damaging for our rights in the past. For more information on this long history, you might consult our soon to be updated book Terrorism & the Constitution by David Cole and Jim Dempsey.

Of course our government requires strong tools to try to prevent and punish terrorism. But strong tools in particular must be subject to safeguards on their use -- objective standards and independent judgment. Judges cannot be rubber stamps or kept out of the process of governance entirely, as has been the trend. Congress’ oversight authority and responsibility to carefully legislate must not be voided or short circuited.

Perhaps most of all, the people cannot be kept out of governance. It is ultimately our job to help our government and keep them and ourselves on track to keep us safe. Without significant government transparency, that task is impossible. We have a long way to go to get ourselves back on the right track to fight terrorism.

Communities around the country (see BORDC.org, ACLU.org and grassroots-america.org) are organizing to help take back the Bill of Rights through bill of rights resolutions and other mechanisms. It’s timely and it’s time for you to help. Thank you.