Bigthink - User Ideas Feed

Re: What should Americans be most concerned about?

Bigthink — Tue, 18 Mar 2008 18:08:57 +0100

Be concerned about the rights you think have nothing to do with you, Strossen says.

Transcript:

I would say that you need to be concerned about violations of rights that you might think have nothing to do with you because they are only affecting those other people in particular, non-citizens, people who are accused of terrorism, people whose ideas you dislike, people you dislike and so you think what does it matter to me if their rights are being violated. What does it matter if government is invading privacy? Oh, I have nothing to hide. Why should I care? My message is you do care. I mean you must care. You have an absolutely profound stake in the government's power and abuse of power because once it can exercise that power against anyone, then no one is safe and I can give you so many examples of people including conservative Republican government officials who said why do we need a Bill of Rights? Why do we need the ACLU to enforce it? You are going to be accused of anything if you are not guilty. Your privacy isn't going to be invaded unless there is some reason to suspect you and then something happens in their lives and they do find themselves on the wrong side of the law unjustifiably. This happened with a couple of people for example in the Regan administration including his attorney general Ed Meese, who was being suspected or investigated for some kind of…I can't remember what it was…some kind of…I don’t even want to say it…but some kind of fraud I believe and he was ultimately never indicted, but he was suspected and suddenly sort of got the civil liberties religion and said when you are on the other side of the law, you suddenly do understand the importance of having these rights. So, I don’t want people to have to reach that point before they understand how essential it is that they never will be in that position.

Recorded On: 2/14/08

Re: Should illegal immigrants get the same rights as Americans?

Bigthink — Tue, 18 Mar 2008 18:08:02 +0100

The framers of the Constitution were careful to use the word "persons,"says Strossen.

Transcript:

The ACLU from the beginning has always defended the rights of all persons against abuses by the United States government. I said this way at the beginning. So, it is not limited geographically. It is limited by who the government officials are. So, even if an American citizen in this country were abused by a Mexican government official, I mean we would maybe go after the US government for not sufficiently protecting against Mexican official. But it doesn’t matter what the person's citizenship is or where they are located. Our government is always accountable to constitutional standards and other legal standards including under international law regardless of where our home it is using its power. We are and so, one of the first issues that the ACLU dealt with right at the very beginning of its existence was rights of immigrants. I mean there were the Palmer Raids and people who were treated as having no rights among other reasons because they were non-citizens and here we have a very strong constitutional leg to stand on. If you look at provisions in the Constitution, some of them do apply to citizens, but the most fundamental rights are explicitly granted to persons and so when you know that the framers in two different clauses of the very same amendment, one of them talks about citizens and the other one talks about persons. They were deliberately saying it doesn’t matter what your citizenship status is. You still are entitled to fundamental due process rights, to fundamental equal protection rights. They may not be exactly the same process that is due to a citizen, but they certainly are there and I don’t know a single Supreme Court justice who has disagreed with that position. You can fight about the details of exactly what the rights are that are due, but…so that is something that we have always taken a decision on, where there is more debate now and is an issue that is before the Supreme Court in the last case arising out of Guantanamo that it heard arguments on in December and that is when the United States government acts against anybody outside of our territorial jurisdiction and then becomes more pointed if you are talking about a non-citizen and the ACLU actually filed a brief in that case in which we argued specifically that the Constitution is not limited geographically and in particular there are great writ of habeas corpus that allows somebody to go before a judge to challenge the fact that he or she is being detained by the government is something that should pertain regardless of geography and regardless of citizenship. The lower court had reached the opposite holding and the brief is very persuasive if you look at all the precedents where something occurs and who the victim is, is a factor, but it is not conclusive.

Recorded On: 2/14/08

Re: How do we combat terror without violating civil rights?

Bigthink — Tue, 18 Mar 2008 18:08:00 +0100

We do what we've always done: use our criminal justice system.

Transcript:

We do what we have always done…we use our criminal justice system, which is very effective. I mean one of the points that the ACLU has been making over and over again, we started on 09/11 itself by saying, creating a safe and free campaign is to belie this assumption that is not at all demonstrated in reality that somehow you have to choose between protecting civil liberties, human rights on the one hand and national security on the other hand. Nothing can be further from the truth. If you look at the…because the black hole of Guantanamo we have not had to this date a single prosecution of anybody who is even alleged to have any connection to the 09/11 terrorist attacks and then you look…so this is parallel system of lawless detention without access to courts with no access to lawyers, military commissions, and then you have the criminal justice system in the United States where we have a proven track record of putting away terrorists for years including terrorists post 09/11 and it is really interesting if you look at what has been sad and written by judges and prosecutors in that system. They say that is the most effective way and we haven’t revealed state secrets because there is a Classified Information Protection Act. There are methods for protecting jurors and other who are involved in the case and there have been terrorists who have been put away for the rest of their lives. So, they are being prevented from returning to the battlefield and they are also being prevented from being turned into victims or murderers

the way those in Guantanamo are, who then just become posters for recruiting more people to Al Qaeda. We have our top military and intelligence officials have been saying this so called war on terror is really a war of ideas where the United States needs the moral authority and in Guantanamo and the military commissions, we are squandering our moral authority providing fodder for Al Qaeda to go out and recruit more terrorists and we haven’t achieved a single conviction. This is the worst of all possible worlds.

Recorded On: 2/14/08

Re: Should people be required to vote?

Bigthink — Tue, 18 Mar 2008 18:07:57 +0100

Voting should be easier, Strossen says.

Transcript:

I think we should make voting much easier. I hasten to add I completely oppose what I sometimes hear advocated that people should be required to vote, but people should be encouraged to vote. We should be able to vote by mail, we should be able to vote by email. I have…if somebody is going to say well there are technology problems, I mean…please I know that those can be solved and if there is a will to do it and there are states in their countries that use those approaches. To the contrary, we are moving in the opposite direction, making it harder and harder and one of the very scary cases before the Supreme Court is the Indiana voter id law which requires so strictly certain forms of government issued photo id ostensibly to protect against impersonation fraud at the ballot box even though the state acknowledged that there was no one single documented instance of such fraud and it clearly seems that it was intended to disenfranchise people who are believed to be more likely to vote Democratic, but the ACLU was representing the people who are most disproportionately, adversely impacted by this law which our elderly people, disabled people, poor people, people living in inner cities and our brief included stories you just wouldn't believe of people who are so persistent in getting their birth certificates, and it was so expensive to get their birth certificates if they had been born in a different state and then there was a catch 22 they couldn't their birth certificate unless they had a passport and people would just spend so much money and so much time, this is not the way to encourage people to vote and it is not necessary because there was no problem. It is not solving a problem. It is creating a problem.

Recorded On: 2/14/07

Re: Do women still face discrimination in American politics?

Bigthink — Tue, 18 Mar 2008 18:07:02 +0100

Strossen is shocked by how underrepresented women are in the media.

Transcript:

It is not my specialty to study women in politics, but I have shared many podiums with women who do and I am shocked that at the statistics I hear about how women are so under represented in the national media for example, there is a whole organization called the White House Project which focuses on getting women not only into the White House but other top positions of political power and they have worked with universities that have studied for example the major talk shows which show that just the shockingly overwhelming preponderance of men as speakers and debaters even when women are the most relevant experts. So, for example if you have a women in Congress who is chairing a key committee, how often she will not be invited and instead it is some man who has a less significant position. Now, anecdotally I can tell…so as I say I haven’t studied these issues, others have and what their studies reveal is quite scary, what I have observed myself anecdotally is myself as a speaker and I am…by definition if I am speaking somewhere it is a woman speaking, but I can't tell you how many conferences I am still speaking at, especially if it is on issues such as national security, but I guess that is seen as a man's issue. I recently spoke at a conference at a very prestigious military university and it was a two day conference with panels all day long, each for two days, each panel had several speakers and a moderator, and in the entire conference, I was the only female who was either a speaker or a moderator. I was a speaker and at… and I noticed it and a lot of people don’t even notice it. After I spoke, a lot of the military officials came up to me and said oh, you must really feel like a fish out of water and I knew they were saying because you are a civil libertarian and we are military, and I said, yes, it was rather strange to be the only woman and they all had this…were taken aback because they hadn’t even noticed it and I had a very disturbing incident a few years ago, speaking on a campus in Virginia State University there and they had a lecture series that I noticed had been created by female faculty members and I said why… and I was speaking at it and I said why did you do this and they said, well, because we did a survey of all the speakers that were invited by all the departments and the president and almost all of them were men and when there were women, they were invited to speak about women's topics such as during Women's History Month. Now, that doesn’t happen to me, but I can never know…it turns out that I will often be the only woman or one of very few women to be speaking on a normal topic on campus. So, I guess there still really is a problem that we are stereotyped as not being able to deal with certain tough guy's issues.

Recorded On: 2/14/08

Re: How should the government enforce the Constitution?

Bigthink — Tue, 18 Mar 2008 18:06:59 +0100

First of all, Strossen says, the government shouldn't violate individual rights.

Transcript:

First of all, the government should not violate individual rights itself and that includes so the government should not presume that people are…the government should not invade people's privacy unless there is a specific basis for suspecting that that particular individual has committed a crime or is about to engage in a crime and even if the government has basis, individualized suspicion about a person, it still has to go, that is the executive branch of government still has to go before a judge to get a warrant, so you have got the checks and balances, the kind of procedural protection as well as the substantive protection and that deals with a whole lot of issues post 09/11, where the presumptions have been turned on their head. We are all suspects. We are subject to random mass, dragnet surveillance without any judicial review.

Recorded On: 2/14/08

Re: What is the best way to interpret the Constitution?

Bigthink — Tue, 18 Mar 2008 18:06:57 +0100

We don't need the government to give us rights we inherently have.

Transcript:

It doesn’t have an official name, but this is part of why I say it is who is looking at it rather than what it says and I think of those Escher drawings where the fish kind of shade into birds and somebody said this very well, Richard Macedo who was at that time a professor at Harvard political scientist, said some people look at the Constitution and see islands of individual liberty in a sea of government power, other people look at it and see islands of government power in a sea of individual liberty and I personally don’t understand one of those perspectives, but the other one is very clearly there that we…and I alluded to it earlier. We do not need the Constitution to give us rights. We are a government that is founded on the precept that all people have inherent human rights and that governments responsibility is to protect those rights. The purpose of the Constitution with respect to individual liberty was not to dole out a few liberties that happened to be named in the text of the Constitution, but rather as the Preamble says to secure the blessings of liberty that we already had. The Constitution rather created a government of strictly limited powers. Congress has only those powers that are here and granted, and the reason why there was no Bill of Rights in the original Constitution was not because the framers opposed human rights, but because they had created a government whose powers did not include the power to infringe our rights in the first place. So, why did they need to give a catalogue of some of the rights that the government had no power to infringe. In fact, there was a potential downside to doing that of creating a negative implication that if the right were not articulated that somehow the government had the power to infringe on it which is why the Bill of Rights included the 9th Amendment to make it even clearer than it had already been, that the fact that some rights are resided doesn’t mean that the government has the power to invade any other preexisting, inherent, natural human rights.

Recorded On: 2/14/08

Re: If you could make one amendment to the Constitution, what would it be?

Bigthink — Tue, 18 Mar 2008 18:06:04 +0100

Women are persons, too, Strossen says.

Transcript:

When you say what amendment to the Constitution, the one that of course flashed into my mind, maybe it is not so obvious, was the one that has been pending ever since I think it was first introduced back in the early in the 20th century, the so called Equal Rights Amendment for Women, but that really shouldn't have been necessary because the 14th Amendment which was added after the Civil War already granted equality and all the privileges and immunities of citizenship to all persons. Women are persons. Why do we need our own constitutional right? In fact I would say we didn’t even really need the Bill of Rights or the 14th Amendment. I mean those were sort of making like crystal clear what had already been crystal clear from the beginning and so it is kind of who is enforcing it rather than what the language is.

Recorded On: 2/14/08

Re: How can American citizens protect their civil liberties?

Bigthink — Tue, 18 Mar 2008 18:06:00 +0100

You don't need lots of money or connections to move the political machine, Strossen says.

Transcript:

Every person in this country and not only citizens, but in particular non-citizens at this time really has to be aware of the issues and I mean this is not different from what it has always been…really has to be aware of the issues, has to lobby members of Congress or members of their state legislature or city council, whatever their arena of government is and one thing that has been amazing to me is I have been actively engaged is how much of an impact a small group of people can have. I guess it is the silver lining to the cloud of most people in our country or too many people in our country not even voting, let alone doing something more active and it really was astounding to me. I think a lot of people think that you have to have a lot of money or some special access and yet so many elective officials really listen to what their constituents say. That should not…in my own view, that should not be completely determinative because a lot of my issues are probably supported only by a minority of people, but you know that it is enough to get it on the radar screen to get your issues attended to seriously and certainly, one of the things that ACLU is doing is public opinion surveys and focus group polling to tell members of Congress that contrary to their story types and their fears, people do value privacy and are very angry at the domestic spying and are very angry that the telephone companies are getting off the hook and one want Guantanamo to be shut down and don’t want kangaroo courts. It is very interesting because right after 09/11, and for a couple of years after 09/11, people kept saying that they were happy to give up their freedoms in order to preserve national security. That is not the case anymore and that has not been the case for several years and it is not the case on these specific issues. So, if people make that demonstratably clear by sending the emails and the phone calls to their members of Congress or other politicians, they really can have an impact. [Inaudible] I would like to say you are going to have an impact if you don’t do something. So, do you want to have…make the affirmative choice to have the impact?

Recorded On: 2/14/08

Re: What would the Supreme Court look like if McCain is elected?

Bigthink — Tue, 18 Mar 2008 18:05:57 +0100

A Republican president will probably be beholden to the right wing of his party, Strossen says.

Transcript:

I think that any Republican who is elected no matter what his or theoretically her own views would be is going to feel beholden to the right wing of the party in terms of judicial appointments, particularly the US Supreme Court and that has been the pattern in recent history. So, George Bush I, was I think by his own lights [Inaudible] not as extreme in his negative views of human rights or constitutionally enforceable rights and yet, he tried very hard running to the right, in the other sense of the word [Inaudible] right to appoint justices that he thought were going to cut back on for example reproductive freedom. It turned out that he was wrong in his predictions, but it was not by design. You may remember John Sununu, the father of the present senator from New Hampshire, said that David Souter was a home run for the anti-abortion movement. Well, that was not by Bush's design…I mean that was his design. It didn’t prove to be prophetic. So, I think that any Republican would probably try to appoint justices who would provide the fifth vote to overturn Roe and a whole host of other cases that are protective of individual rights. With the Democrats, I think what we would get from either…from anybody who is elected…basically what we got from Bill Clinton. I think the legal director of the ACLU put it very well when he said Bill Clinton was a wishy washy liberal and the justices he appointed were… I have great respect for all of them…so I hope it doesn’t sound disrespectful, but they were…the appointees of Bill Clinton were not the idealogical counterparts of the appointees by Bush and Regan. They are much more moderate, much more centrest and we don’t have a forceful exponent across the board for individual liberties that we had in William Brennan or Thurgood Marshall or even Harry Blackman for that matter and it is ironic because if you know the Presidents who appointed those, all of the…with the exception of Marshall, the other two were appointed by Republican Presidents, but now it has become so politicized and I think the Democrats don’t dare appoint somebody who is an outspoken defender of individual rights and the Republicans don’t dare appoint somebody who is not an outspoken opponent.

Recorded On: 2/14/08

Rating the Presidential Candidates on Civil Liberties

Bigthink — Tue, 18 Mar 2008 18:05:04 +0100

All the national candidates capitulate on civil liberties, Strossen says.

Transcript:

I really can't speak broadly on…and I don’t mean to disappoint you, but I am… part of the reason why I don’t follow their positions in detail…there are two reasons, one is I know that on most of the issues, most of them are not good and I just can’t remember… I mean the candidates that have been a affirmatively good on civil liberties are always very obscure candidates. I would say on the whole Dennis Kucinich and Ron Paul have on the whole been the best on the most civil liberties and I sort of have come to take for granted that mainstream candidates who are seeking their party's endorsement or the national vote, feel that they have to capitulate overall on civil liberties issues. I mean the last Democratic president we had and I constantly amazed that he is always bashed as is his wife for being so liberal, when to me, they were…I mean and liberal has been equated with ACLU inaccurately, but that goes back to at least George Bush against Michael Ducacus[Phonetic]. You know that Clinton even during these days of his candidacy that Hillary is now going through, do you remember how he…or you were too young…but some in the audience might remember that he left New Hampshire during high primary campaign season to fly back to Arkansas where he was Governor to preside over the execution of a mentally retarded prisoner and that spoke volumes and then by the way before 09/11, the worst terrorist attack on US soil, was the 1995 Oklahoma City bombing and Clinton and his attorney general reacted exactly the same way Bush and his attorney general reacted after 09/11. They passed…pushed through Congress something that was called the 1996 Anti-Terrorism and Effective Death Penalty Act. So, I am sorry if I sound a little bit cynical. I just don’t have very high hopes about anybody who is running for President on the issues of…it used to be war and crime, and it is the still war on drugs and now it is the war on terror. The second reason why…so some are little bit less bad on some issues and some are a little bit less good on some issues. You know McCain would be horrible for reproductive freedom for example, I don’t think he will be good for Supreme Court appointments which by the way that is my single most important issue when I look at a Presidential candidate because…before I get to that, speaking of the three branches of government, the other reason why I am somewhat less focused on the President than a lot of my friends are is because I have this sense that there is a lot of damage that has been done that can only be undone by Congress and it doesn’t really matter who the President is if Congress doesn’t have the will to repeal some of the terrible legislation or to pass some positive legislation.

Recorded On: 2/14/08

Re: What is torture?

Bigthink — Tue, 18 Mar 2008 18:05:00 +0100

Is waterboarding torture?

Transcript:

Waterboarding is torture by the way and it is defined as such by seven different laws that the United States is bound by. I can't give an explanation beyond one that would apply to any post 09/11 issues, which is that over and over and over again we have an administration that is saying, this strategy is necessary in order to protect America against terrorism to keep America safe and there seems to be an assumption that if something is…first of all that it really is necessary and secondly that the ends justifies the means. If it keeps us safe, then we should do it. So, we have an administration that is one part of the equation that has taken that position not only on waterboarding, but on all kinds of abuses, but secondly, we have a Congress that too spinelessly goes along with those assertions including Democrats and I saw an editorial cartoon not too long ago on another issue where you can say why? Why has it taken so long and it still hasn’t happened to put an end to the national security agency engaging in warrantless domestic spying and Congress still hasn’t ended it. So, there is this editorial cartoon that shows NSA spies aimed at you and me, not suspected of anything let alone terrorism and there are these two Democratic donkeys on the floor representing the House and the Senate and one of them says to the other, cowering on the floor, one of them says to the other you know what?...remind me why we are not opposing this and the other one says we don’t' want to appear weak.

Recorded On: 2/14/08

Re: Does the Patriot Act protect the U.S.?

Bigthink — Tue, 18 Mar 2008 18:04:57 +0100

There are 100 provisions of the USA PATRIOT Act that the A.C.L.U. does not dispute, Strossen says.

Transcript:

I think there were some provisions in the Patriot Act that were positive. There were a 100…and they are not the ones that are being debated…so, you know this is a very important point…John Ashcroft was attorney general at the time and said he actually used the word…hysterical…when he criticized the critics and you may remember that he actually used [Inaudible]42.09 in the Senate in which he suggested that we were unpatriotic or even traitors, and yet, who is exaggerating here…a 350 page law passed in 45 days with almost no debate, almost no hearings…it amended many other laws, so even reading the 350 pages wasn’t enough, you would have to cross-reference the other laws, most members of Congress said they didn’t even have time to read it, well, the ACLU spent a lot of time studying it, a lot of people. There are 160 separate provisions. Of those provisions, we have criticized about a dozen. Now, those dozen are very important to the violations of rights, are very important, but I think to say it is hysterical to have that measured criticism and for the others either to say they are benign or even some of them positive…I mean for example, I recall that there were provisions in the Patriot Act that increased funding for the FBI to beef up its computer system that is long overdue, increased funding for border guards at the northern border, which is completely under financed and under protected, securing cockpit doors in airplanes…these are all positive measures and coincidentally, are the kinds of measures that were recommended by the Bipartisan 09/11 Citizens Commission, by the joint report of the intelligence committees of the House and Senate, which only long after the Patriot Act was passed said let us look at what the actual causes were of this national security disaster. We can't possibly solve the problem unless we diagnose what the problem is and instead and these were the provisions that we object to. Without any demonstration that there were any part of the problem, just scapegoating civil liberties and that too often is the instinct of I have to say not only political reaction, what I think is a psychological reaction on the part of many people that assume that freedom is somehow antithetical to security and yet nothing can be further from the truth. We have so many security experts that agree with us that we absolutely need for example transparency, that openness not only is consistent with freedom and democracy, but it also helps to promote national security, because the information sharing and by the way, one of the other real major concerns we have on the subject of freedom of information is protecting whistle blowers who are just so important in this era and journalists also, who have brought to light government abuses that we have not been told about or we have been lied to about that have really undermined national security as well as freedom and yet journalists are being subject to subpoena in record numbers and threatened with prison, in some cases imprisoned, and whistle blowers in the national security field have no protection. They are amazing people. You should interview them. One of the…I mean sadly, whistle blowers that have lost their jobs in some ways, we have been beneficiaries, in ways we wouldn't want to, but Mike German who was a clear, long FBI officer working on anti-terrorism issues and he complained about strategies that were undermining the effectiveness of some counter-terrorism operations and he just got deep six for that. He finally gave up and now he has been working for the ACLU.

Recorded On: 2/14/08

Re: Is privacy a 20th-century concern?

Bigthink — Tue, 18 Mar 2008 18:04:05 +0100

Strossen looks to Louis Brandeis's very broad definition of privacy.

Transcript:

I don’t know exactly what he means by that even though I have read his writing and I have debated him, but if he is saying that it doesn’t exist as a constitutional right, it shouldn't exist as a constitutional right, it doesn’t exist as a technological reality, I disagree with any or all of those propositions. I would go back to a judge that I admire even more than I admire Judge Posner, namely Louis Brandeis in a famous case in the early 20th century who said and he said it far more eloquently than my paraphrase, but basically that privacy is the greatest right…the one that is most valued by people and he had this very encompassing concept of privacy, which I share and it is…but he summed it up very succinctly when he said "the right to be let alone" and I think that is really a nice way of summarizing pretty much all of civil liberties and human rights, which is that you as an individual have the right to self determination and autonomy free of intrusion by the government or for that matter by private sector, interlopers, free of intrusion in any way, whether it is intrusion in watching you, whether it is intrusion in listening to you, monitoring you, whether it is intrusion in interfering with your ability to make private decisions for yourself and they are all interrelated and I think it is no coincidence that George Orwell's 1984, which I re-read every few years and it really stands the test of time and it is one of those books that takes on new and enhanced meaning every few years that I read it in light of what has happened since the last time I read it. If people who haven’t read it recently might not remember this, it is not that the government is engaging in torture or abuse or kangaroo court military commissions or some of the dramatic violations we are seeing now, the damage is done simply by the omnipresence of Big Brother and the notice that Big Brother is watching you. That is doesn’t cause killings, it doesn’t cause even the physical or psychological damage of torture, but it is the dehumanization, the loss of individual dignity when you know that you are never going to get beyond the government's radar screen and that has a chilling impact on how you conduct your life. You know what you read, what you see, whom you see, whom your relationship, so I couldn't disagree with him more.

Recorded On: 2/14/08

Re: Has the government become more transparent since 9/11?

Bigthink — Tue, 18 Mar 2008 18:04:01 +0100

Secrecy was a problem in the Bush administration before the attacks, Strossen says.

Transcript:

Well, the post 09/11 issues are obviously profound and rather than going into the details of specific issues, I would say you have raised one of the overarching issues, which is government secrecy and government accountability. Secrecy was a problem with the Bush administration even before the terrorist attacks. It already had cut back on Freedom of Information Act and transparency in many ways and the silver lining to that cloud is that recently Congress did pass and the President did sign legislation to bolster protection for…to bolster the enforceability of the Freedom of Information Act although stay tuned…the President has taken other action that apparently is pulling the teeth out from that law. So, definitely, it has got to be a major priority, not only for the next administration, but I really, really have to stress, Congress' responsibility for all of this. Much as any President might want to exercise dictatorial powers that is not the way our system works, as I have to keep reminding my Liberal friends who love to demonize George Bush and before our current Attorney General, John Ashcroft, was a real lightning rod, that they did not single handedly pass the USA Patriot Act. Laws do not get passed that way and some of the worst abuses have been committed with Congress, by Congress, not just by executive order or Congress has been too lackluster in countering the President's abuses of power, even and I say this to my Democratic friends, even under Democratic leadership. Why has Congress still not restored habeas corpus? Why has Congress not passed legislation to end the military commissions that Bush created with his executive order? Why has Congress not passed legislation to shut down the Guantanamo facility? Why is Congress now moving toward immunity for the telephone companies that violate our privacy? So, nothing is going to change overnight just by having a new President, but what I would hope for is that the executive branch and/or the legislative branch of government will really enforce the rule of law that there will be oversight by Congress, meaning oversight, for what the administration is doing, not just accepting and what any administration is doing in the name of the War on Terror, not just accepting assertions that we need this power in order to keep America safe…no, you don’t have to go into…you don’t have to reveal secrets of individual cases, but just on a statistical basis, demonstrate that the existing powers and for example the Foreign Intelligence Surveillance Act, have not been effective or sufficient in particular cases and make the case rather than just rolling over and rubber stamping whatever power grab the President is asking for.

Recorded On: 2/14/08

Decriminalizing Drugs

Bigthink — Tue, 18 Mar 2008 18:03:57 +0100

Strossen worries about disproportionate drug penalties and the disproportionate effect they have on minority communities.

Transcript:

I would say the whole criminal justice system and the extent to which it has been bogged down by this endless, so called war on drugs which is still… we still have a mandatory minimums that are much too high. We still are incarcerating people who are not victimizing anybody else directly, who are committing non-violent offenses of possession and it is having an enormously disproportionately adverse impact on racial minority communities in particular. I haven’t looked at the statistics recently, but they are just huge percentages of African American men who are in the toils of the criminal justice system and increasingly that is spilling over to women; so, that has an enormous impact on families and communities and without improving public safety. In fact to the contrary, because there are so many harsh mandatory minimums for these non-violent drug offenses that some violent offenders have to be let out of prison in order to create room for them.

I think that we absolutely should decriminalize all substances for mature, mentally competent adults. I think the model of regulation is the one that is endorsed by the public health community in terms of the public health concerns. I think they are more on drugs as a demonstrated disaster in terms of its not preventing people becoming addicted and abusing drugs. It is creating far more problems than it solves in terms of violence and crime, jacking up the prices of the substances and one of the things that really surprised me was after 09/11, I in retrospect naively I guess thought that the war on terror would displace the war on drugs in one important sense at least and that is that we were going after all of the other sources of financing for terrorists, so why the heck aren’t we going after the drugs that are so profitable only because of the world wide criminalization and that is funding Al Qaeda and terrorist networks around the world, but as if it has become to kind of mixed metaphors a sacred cattle and this is one of those issues where I can’t think of a Democratic leader who is willing to speak out on these issues. It is one of those sort of like Nixon goes to China kind of thing where you have very conservative Republicans who have solid credentials as being tough on crime, who have been coming out for a long time advocating decriminalization. The entire national review a generation ago had an issue about this and there have been Republican conservative governors and so forth that have advocated it, but it is something that most politicians, especially Democrats will not touch will a 10 feet pole and I think it is deeply damaging to our country and this ties back to another issue that you raised…you know what is that people aren’t thinking about. I don’t even really hear much discussion about this or the fact that the United States has by far the largest prison population per capita in the world. We just take it for granted now and there is a prison industrial complex where so many communities have…and individuals and corporations, have an economic stake in maintaining this inside our country and again, when you add to that the fact that it is so skewed racially, I think it is an enormous issue of racial and justice as well as criminal and justice.

Recorded On: 2/14/08

Re: Why does opinion of the A.C.L.U. seem to split along party lines?

Bigthink — Tue, 18 Mar 2008 18:03:07 +0100

Strossen has found support on both sides of the aisle.

Transcript:

I am not sure that there actually is a partisan divide if you talk to people who…and I don’t mean to sound at all condescending…but working with members of the Supreme Court across the entire ideological spectrum, I know that there is enormous respect for the ACLU not only from Justice Ginsburg who worked for the ACLU before she became a federal court judge, but also you may be surprised from Justices Thomas [Phonetic] and Scalia [Phonetic], who never worked for the ACLU before joining the federal bench, but who really respect what we are trying to do even if they disagree on particular issues. I have a letter that I cherish from Justice Scalia who is a friend of mine, but this was when we had first met and he said something about I really respect your principled adherence to…and he always has to have a little dig…so, it was … I really respect your principled adherence to your "sometimes incorrect." Maybe he had even said often incorrect… positions, but I know that you sometimes do that at great cost in terms of publicity or economics in terms of support, but you are doing it because that is what you believe the principles calls for and if you look at articles that have been done about supreme court justices and which briefs they read and give credence to, the wait…there is just an overwhelming support for the conclusion that after the US government, the ACLU has the greatest credibility including in the chambers of the justices who can be expected to come out differently because they believe that we are making the strongest possible argument that would have to be refuted in any case, but all of them agree with us on some issues. Likewise, if you talk to members of Congress, some of the most conservative Republicans really, they all work with us on some issues. They all want our support where we agree and given that we are strictly…I haven’t said…I haven’t had a chance to say this yet strictly nonpartisan and nobody would dispute that we never and never have and never will endorse or oppose a candidate, an official, a party or group; rather we take positions on an issue by issue basis, issuing praise or criticism as the case might be and there is literally nobody with whom we don’t strongly agree on some issues and strongly disagree on others and fortunately we have enough influence that those…that they all want us to work with them on the issues where we agree. So, I think if you talk to the real and there is also I have to say this… there is also real difference between how people operate in directing interactions with let us say a lobbyist or lawyers or other leaders versus what they say in their fund raising material. I mean I have had this discussion quite a few times with Jay Sekulow, who is the Chief Counsel of the American Center for Law and Justice, the litigating arm of the Christian coalition and we collaborate on so many issues, free exercise of religion, freedom of speech for anti-abortion protesters, even some of the post 09/11 privacy issues where many conservative groups have been allies of the ACLU and yet you read his fund raising letters or you listen to his radio show, and he is demonizing the ACLU. So, I think that to some extent I am not a Pollyanna, but I do have [Inaudible] campaign activist without that [Inaudible], but I think it has to…the inflated criticism that you hear in some public arena such as let us televised debates or fund raising letters, some political speeches, where people are playing to their own audience trying to get a raise out of them, but I think you have to see the ACLU bashing as a compliment, that people see us as being very effective that we sometimes use that effectiveness on issues that they disagree with and so, attacking ACLU can become a synonym for attacking gay rights, reproductive freedom, religious freedom, you name…the hot abortion women's rights.

Recorded On: 2/14/08

Re: Does the A.C.L.U. avoid property rights and 2nd Amendment cases?

Bigthink — Tue, 18 Mar 2008 18:03:02 +0100

There is no right to bear unregulated arms, Strossen says.

Transcript:

Well, on the right to bear arms, the ACLU's position is that there is not a fundamental civil liberty to unregulated gun ownership and that is separate and apart from the big constitutional law debate that is going on now in a case before the Supreme Court and it is important for people to know that the only past Supreme Court decisions that have discussed this issue and the vast majority of scholarship and lower courts and historians conclude that the Second Amendment was intended only to protect the right to bear arms in the context of a well regulated militia. For us, that is of interest, but it is a separate question from should…do we think that a statute should be passed to protect unregulated gun ownership and the answer is no. To me, that is not so surprising because we even when it comes to something that we are classically associated with such as freedom of speech, we don’t say that there can never be any restrictions. Actually no right is absolute except freedom of thought and freedom of belief, but once it gets out of your hand and into the world, the government may justifiably impose limits in very narrow circumstances. So, if the government over regulated or discriminatorily or arbitrarily enforced regulations on gun ownership, we would be there. I mean that would be consistent with our general concepts of due process and in fact we have often collaborated including post 09/11 with the National Rifle Association Guns Owners of America, The Second Amendment Foundation, because particular actions that have been taken by the government against their members do in fact violate many rights, including to take some examples that come from earlier during the Clinton administration, the Waco and Ruby Ridge were well publicized examples of really a shocking government over reaching by federal agencies that were violating their Fourth Amendment rights against search and seizure using dipropionate force, shooting to kill people who are simply suspected of exercising what is after all a legally protected right to bear arms and there have been many examples of people's privacy being violated because they are exercising their now lawful right to own guns. The gun owners organizations have worked very closely with the ACLU in opposing government surveillance, the so called REAL ID act that would create a national identity card in effect. There is a lot of overlapping issues even beyond that core issue of what to extent can the government directly regulate gun ownership.

Recorded On: 2/14/08

Re: Where do civil liberties come from?

Bigthink — Tue, 18 Mar 2008 18:02:57 +0100

Civil liberties are human rights, Strossen says.

Transcript:

Civil liberties are inherent human rights. Some people use the terminology natural rights. I think a resonant passage that many people can relate to is the Declaration of Independence with one amendment you can guess, when it says all men are created equal and endowed by their Creator with certain unalienable rights, that among this are life, liberty, so forth and that the purpose of government is to secure these rights and that concept is repeated in the Preamble to the Constitution, which sets forth the purposes of the new government and one of them is to secure the blessings of liberty to ourselves and our posterity and again, it doesn’t say to provide liberty, to grant liberty, to bestow it, no. We already are entitled to that by virtue of being born human. Rather than giving us liberty, government's purpose is to protect the liberty that we already have now. It is one thing to say that on paper and I really for all the shortcomings, I do think it really was…and obviously we were nowhere close to those ideals when the declaration was penned and yet it is so significant that those worthy aspirations of this new government was the first time in history that a government was dedicated to those libertarian and egalitarian ideals and the ACLU founders recognized that these rights were not going to be self executing, that government officials were not necessarily spontaneously going to fulfill that responsibility to protect people's rights rather than suppressing their rights and had this radical idea that they would actually do what is necessary to help people who first of all be aware of what their rights are and secondly to do what is necessary to protect them through every possible means. I think we are best known for litigation, but from the beginning we have been extremely active in legislative arenas as well and in the public forum.To define what is a civil liberty is quite similar to what the United States Supreme Court does when it tries to interpret the word liberty which appears in a couple of crucial passages in the Constitution including in the Bill of Rights, but I do have to stress one difference, which is the ACLU is not the American Constitutional Law Union. People will often ask me, why aren’t you doing more to enforce the Second Amendment or how we interpret the Second Amendment, the right to bear arms and for us the question is should something be a fundamental human right, and if the Constitution is a tool that we can use to enforce it, fine, but if the Constitution does not [Inaudible] to those purposes, then we will look for another tool and let me give you one concrete example and then I will come back to the more abstract question. So, for example, and this is surprises many people, there is no constitutional right to be free from racial discrimination by any entity or individual aside from the government. The Constitution only applies to governmental actions and so, therefore until we had the 1964 Civil Rights Act, private employers, private restaurants, private corporations, landlords…you name it…were completely free to discriminate in the most blatant ways on any basis they chose, including race. The Constitution simply did not apply. The ACLU therefore lobbied very hard for the Civil Rights law because we believe that there is a fundamental civil liberty to be free from racial and other forms of demographic discrimination when you are dealing with major aggregations of private power in the employment, in the work place, in housing and so forth. So, civil libertarians will debate and disagree among ourselves over particular issues and it is certainly true that abortion to the best of my knowledge was not expressly on the ACLU radar screen until sometime in the, I believe, 1960s and I do know this that the ACLU was the first national organization to call for a woman's right to choose an abortion, to be protected under the Constitution. I think it is an organic outgrowth of work that we had from the beginning. One of our earliest clients back in the 1920s, our first decade of existence, was Margaret Sanger. We also represented Emma Goldman and these were two women who were advocating what I think is exactly the same right which is a woman's right to information and decisional autonomy about her reproductive options and medical information and assistance to carry out and informed choice in those areas.

Recorded On: 2/14/08

Re: What does the A.C.L.U. stand for?

Bigthink — Tue, 18 Mar 2008 18:02:03 +0100

Description: Why do we need the A.C.L.U. if the government is supposed to protect our rights?

Transcript:

American Civil Liberties Union and I say that because I see graffiti including by the way fund raising letters from some anti-liberties organizations that say ACLU stands for everything from Always Causing Legal Unrest to All Criminals Love Us to and this one is really pernicious…the Anti-Christian Liberties Union, but it was a name…it was an organization that was founded in….well, its predecessor was in 1918 the American Union Against Militarism, redubbed the ACLU as a split off organization in 1920 and if I have to summarize it in a sound byte, I know you are giving me more than a sound byte, we really defend all fundamental freedoms for all people against violations by government officials in the United States. I mean that is American officials, wherever their violations might be. Unfortunately, in the recent past, we have seen violations committed all over the world by American government officials, but we would not try to substitute for Amnesty International for example in criticizing human rights violations by other governments.I think that there is a lot that can be done within the government to protect individual rights that certainly is a responsibility of the Department of Justice to enforce the law and what is more prominent of our law than the US Constitution. That said, would you want to trust any attorney general that we have ever had in history or any Department of Justice. Some have been better than others, and especially, when we had an attorney general in the World War II era who had gone through the ACLU leadership. He was actually the one who founded the Civil Rights Bureau of the Justice Department and to this day, it still does very important positive work in some areas, but ultimately the question is who is watching the watchdogs and you definitely need to have independent organizations that are not in any way beholden to political pressure, that are independent, that are nonpartisan to not only provide extra enforcement but also different perspectives, because quite frankly, there are different perspectives and one of my favorite statements about the spirit of liberty comes from Learned Hand, who gave… a great judge from New York Federal Judge, who gave a speech called The Spirit of Liberty. I believe this quote comes from that speech in which he said, liberty is never too sure of itself. He probably said it a little bit more elegantly, but that was the idea that you have to question, you have to be open to different perspectives to debate. So, I truly respect people who have a very different view on abortion who believe that the fetus at least at some point should be respected as a person under the Constitution that is entitled to independent rights and if you had that view, then you should be advocating for it and then there are people who have different perspectives when there are rights that conflict and I guess that would be an example for those. Exactly. Here, of course, civil libertarians can and do disagree with each other when the ACLU national board gets together four times a year for meetings that are two solid days each, from in the morning till the evening, Saturday and Sunday, 83 of them by the way, most of whom are lawyers and so it is pretty intense to preside over those debates. One of the things that we do is to debate issues where there is not consensus among us. We may have…obviously we have consensus as to the general values, but for example how do you reconcile a defendant's right to… a criminal defendant's right to fair trial and due process of law on the one hand with freedom of the press and the public's right to know under the First Amendment. On the other hand, if they come in conflict, some criminal defendants believe that their right to a fair trial will be jeopardized by open access to the media. Other people believe that a defendant's right to fair trial right is actually enhanced by having the media there, shining the spotlight on the trial, so even sharing the exact same goals, you can come out differently as to how they should be reconciled in particular cases and one thing I would say that the ACLU tries to do and is one of the reasons why I have devoted my life to the ACLU rather than the many other wonderful organizations that address these issues is that we are the only one that is equally devoted to all fundamental rights for all people. There are other organizations that focus on particular rights such as First Amendment rights or rights of particular groups of people such as journalists or racial minorities or women and for those organizations it is always clear, when there is an issue of tension or conflict between rights which ones will predominate for them. For us, it is not clear. We come at it the same way one would hope the government would, which is not an automatically preference one set of rights or rights of one set of people, but to do our best to maximally respect and accommodate all rights that are in tension with each other. It is one of the reasons for example that for us is a no brainer to defend the rights of anti-abortion protesters even when they are demonstrating outside the clinics of our usual client, Planned Parenthood when it comes to abortion issues, but the Reproductive Freedom Movement usually departs from the ACLU when we are defending rights of picketers outside the clinics and I have to say we draw the line at harassment and obstruction, but we draw the line much closer to freedom of speech than those who are…whose sole mission is reproductive freedom would do.

Recorded On: 2/14/08