A Statement by Members of the Free Expression Network
Historically, in times of crisis in the United States, an understandable desire to protect the nation has led to efforts to curtail civil liberties, particularly the freedom of speech. In hindsight, these efforts have invariably proved to be both unwise and unnecessary. The issue is not just of historical interest. In response to the events of September 11, 2001, the USA PATRIOT Act was passed with little debate, and dramatically expanded the investigative powers of the federal government at the expense of Constitutional freedoms. Today, six months after its enactment, is an appropriate moment to pause and consider whether the erosion of legal principles and individual rights is justifiable.
Under the PATRIOT Act and other recent government actions, there have been many instances where the flow of information to the public about government policies and activities has been restricted, debate on important matters suppressed, dissent chilled, and individuals threatened with legal sanction solely for their views or associations.
While the undersigned members of the Free Expression Network support legitimate law enforcement activities designed to bring to justice the perpetrators of the September 11 attacks and to prevent future threats to our security, we oppose doing so in ways that fundamentally threaten democracy, by allowing government broad power to monitor and investigate the personal opinions of its residents, and by restricting the free flow of information beyond the need to protect national security. We also condemn all efforts to demonize or punish dissent.
We list below some of the events that collectively form a troubling pattern, reminiscent of past judgment errors committed in the name of a worthy cause:
With the passage of the USA PATRIOT Act, the federal government has assumed broad powers to investigate the opinions of individuals suspected of being a threat, creating the danger that Americans will be afraid to communicate freely over the Internet, to purchase the books they want
to read, or to use libraries to obtain information they need.
· Government investigators can now obtain court orders to monitor online communications upon an extremely low legal standard – with only a government official’s assertion of relevance – and without effective judicial oversight.
· Investigators can also obtain orders compelling booksellers or librarians to turn over private information about their customers and patrons; a bookseller can be ordered to turn over a list of the books a customer has purchased; a librarian can be compelled to report what books a patron has borrowed and, if the library has computers, what Web sites he or she has visited. These orders can be issued following secret hearings at which a special court hears only the government’s case. The law also forbids booksellers and librarians to make public even the fact that they have received such orders. The Colorado Supreme Court recently addressed the free speech implications of government searches of book purchases, and recognized the general “right to purchase books anonymously, free from governmental interference.”
· On October 30, 2001, the Attorney General issued regulations permitting warrantless monitoring of attorney-client communications without judicial review under certain circumstances in cases involving terrorism.
Access to Government Information
Citing national security concerns, the government has restricted access to a wide range of information. The drive for government secrecy, moreover, is part of a much larger effort to insulate government decision-making from the press and public scrutiny.
· By memorandum dated October 12, 2001, the Attorney General restricted public access to documents under the Freedom of Information Act. Federal officials handling FOIA requests are now under instructions to deny requests on any “sound legal basis;” previously, information could only be withheld if government officials could show that disclosure would cause “substantial harm.”
· Information previously readily available in the public domain is now being withheld at the sole discretion of federal agencies. The Government Printing Office has ordered over one thousand libraries that serve as federal depositories to destroy government records that federal agencies say could be “sensitive,” and at least 15 government agencies have removed information from the Internet.
· On November 1, 2001, President Bush blocked the release of presidential papers, despite the mandate of the Presidential Records Act of 1978; although this dispute began before September 11, the President is now defending his action in part based on the need to protect “national security.”
· Homeland Security Director Tom Ridge has consistently refused to testify before Congress, and other members of the Bush Administration have invoked executive privilege or other secrecy claims in situations unrelated to national security. For example, the General Accounting Office, Congress’ investigative arm, sued the White House over its refusal to provide documents relating to the energy task force overseen by Vice President Cheney, and the LA Times recently reported that the Justice Department is refusing to turn over documents to Congress relating to Attorney General Ashcroft’s stated desire to have the FBI destroy records of all gun sales within 24 hours, rather than the current 90 day period, a change in policy which a GAO report indicates may allow illegal gun purchases to go undetected.
· Administration officials have openly limited the ability of the press to cover the war and prevailed on the news media to censor statements by Osama bin Laden and other information; and the Defense Department disbanded a planned Office of Strategic Information only after a government employee revealed publicly the intent to use the office to disseminate false information to the American people, and America’s allies as well as its enemies.
· An estimated 1200 people were initially detained in connection with the investigation of terrorist activity, and an undetermined number are being held now. Many have been held in virtual secrecy, without disclosure of their identities or the grounds for detention. Government officials have vigorously opposed disclosure of information about detainees in several pending lawsuits. The government also asserts that national security justifies keeping immigration proceedings involving detainees closed to the press and public.
· Under the rules governing military tribunals, certain information deemed to implicate national security may be kept secret even from defendants, jeopardizing their ability to mount an effective defense.
Freedom of Association
Since September 11, a wide range of lawful political association has been deemed suspect and subject to government scrutiny. Ill-defined grounds for suspicion will likely lead to a repetition of past abuses of investigative authority.
· Lawful aliens who associate with members of “terrorist” organizations are subject to deportation; the definition of terrorism is so broad that a member of Congress has proposed that the Justice Department investigate two AIDS activists who allegedly harassed and threatened health officials for “terrorism” under the provisions of the USA PATRIOT Act.
· The Attorney General reportedly wants to relax the standards governing investigation of domestic political activities, which have been in place since the 1970s, and were adopted to prevent abuses connected with the then-routine surveillance of civil rights groups and anti-war protestors.
Suppression of Speech and Dissent
These governmental acts have also created a climate chilling to speech, debate, and dissent in the very places intended to foster discussion and dialogue – schools, colleges and universities, and newspapers. On college campuses, and in high schools and even elementary schools, students and teachers face discipline if they question official US policy in response to terrorism. Sidewalk speakers have been attacked, journalists fired, and writers and entertainers publicly chastised for being insufficiently “patriotic,” i.e. for expressing a dissenting opinion.
· In the immediate aftermath of the September 11 attacks, colleges and universities disciplined faculty members for speech deemed inappropriate or unpatriotic, including Sami Al-Arian, a tenured professor at the University of South Florida whose dismissal is sought because of comments he made on a television show, Prof. Kenneth Hearlson of Orange Coast College in California, who was suspended and officially reprimanded, and Prof. Richard Berthold, who was subjected to disciplinary action at University of New Mexico.
· Three newspaper editors have lost their jobs for criticizing American policy. In September, Tom Gutting, the city editor of the Texas City Sun, and Dan Guthrie, a columnist for the Grant’s Pass Dial in Oregon, were dismissed for writing columns that criticized President Bush for not returning to Washington immediately after the September 11 attacks. In February, Tim McCarthy, editor of the weekly Courier in Littleton, N.H., was fired over his criticism of the Bush administration’s war on terrorism.
· Other voices openly call for the suppression of discussion and debate on college campuses, by characterizing anyone who questions government policies as “unpatriotic.” The American Council of Trustees and Alumni issued a report in November, 2001, listing 117 allegedly anti-American statements made on college campuses following the terrorist attacks. The report called professors “the weak link in America’s response to the attack.” In March, 2002, the Americans for Victory Over Terrorism released its list of “objectionable” statements from professors, legislators, and writers who, it claims, “misunderstand…[American] ideals and their practice.” Among others, former President Jimmy Carter is criticized for his comment that President’s Bush’s use of the phrase “axis of evil” was “overly simplistic and counter-productive.” While entitled to express their views about these statements, ACTA and AVOT appear more interested in suppressing criticism of the government than hearing dissenting opinions and encouraging discussion and dialogue. Since both organizations have close ties to the Administration, the appearance of government coercion and power is also of concern.
The pattern of these events shows significant erosion of fundamental rights and legal principles, not always confined to any realistic claim of necessity for national security purposes. These rights and principles are essential to our system of government, and the best advertisement for democracy outside our borders. We call on our political leaders to resist proposals that unduly and unwisely restrict the very freedoms that we as a nation now collectively seek to preserve. The hasty measures that were taken in the immediate wake of the attacks of September 11 should now be reconsidered, and we should reaffirm the right to free expression, open government, discussion and debate that have kept us strong and free for more than two hundred years.
April 26, 2002
American Booksellers Foundation for Free Expression
American Civil Liberties Union
Electronic Frontier Foundation
Electronic Privacy Information Center
Feminists for Free Expression
First Amendment Project
National Coalition Against Censorship
Online Policy Group
PEN American Center
People For the American Way
Washington Area Lawyers for the Arts