New York City Council Committee On Governmental Operations Regarding Res. 909-A

October 20, 2003 I am Donna Lieberman, executive director of the New York Civil Liberties Union (NYCLU). I am joined today by Udi Ofer, director of the NYCLU’s Bill of Rights Defense Campaign. The NYCLU is the state affiliate of the American Civil Liberties Union. Since 1951 the NYCLU has been our state’s leading advocate on behalf of New Yorkers’ civil rights and civil liberties as articulated in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. We present testimony today in support of City Council Resolution 909, which calls upon local, state and federal officials to affirm and uphold our fundamental rights and liberties in the face of aggressive antiterrorism initiatives undertaken by the federal government since September 11, 2001. Following that infamous day, the government acted with extraordinary speed to create expansive new police powers in the effort to combat terrorism. This new authority, we were told, was a necessary response to the emergency precipitated by the acts of international terrorism targeted at New York and Washington, D.C. It has become increasingly clear, however, that in assuming these sweeping new police powers, the government acted on a dangerous and discredited precedent in seeking to suspend constitutional rights in the name of preserving them. It is now well documented that these new powers – authorized by the U.S.A. PATRIOT Act, presidential directives, F.B.I regulations and court rulings – have seriously undermined long-recognized constitutional protections afforded individual privacy, lawful political expression, and due process of law. Government officials have been conducting detentions without charges, perusing personal records and monitoring private communications without legal basis, engaging in widespread ethnic and religious profiling, and conducting secret judicial proceedings. With Resolution 909 the members of the New York City Council assert that it is not necessary to violate fundamental freedoms in order to secure the public safety. We can be safe and free. The resolution calls for greater accountability and transparency in the exercise of new post-9/11 executive powers. It represents a reasonable and principled response to the unprecedented expansion of state police powers in the past two years. Resolution 909 is a restatement of the principles at the heart of American democracy, and the provisions in this resolution call for nothing more than what appears in the United States Constitution. Resolution 909 is no more controversial than the Bill of Rights. The New York City Bill of Rights Campaign has led the effort to bring this resolution before the City Council. This campaign is part of a rapidly growing national movement whose purpose is to hold government accountable for the infringements of rights and liberties since 9/11. Three states and over 190 counties, cities, towns and villages have passed similar resolutions calling upon government officials to affirm and uphold civil rights and civil liberties. Large cities such as Chicago and Philadelphia, and small towns such as Sunset Valley, Texas (pop. 365) and Ridgway, Colorado (pop. 713) have passed similar resolutions. This national movement cannot be divided into coasts or regions, urban or rural settings. It is an unprecedented grassroots campaign that is spearheaded by ordinary Americans who refuse to stand by idly as their rights are taken away. This movement bridges the usual political divide in American politics. Nationally, the American Conservative Union, Gun Owners of America, and the American Eagle Forum have joined the American Civil Liberties Union, the Center for Constitutional Rights, and People for the American Way in calling for a restoration of civil liberties and civil rights. Former Republican Congressman Bob Barr is joined by Democratic Congressman Jerrold Nadler in submitting written testimony before this committee in support of Resolution 909. In New York City, alone, over 80 organizations have endorsed Resolution 909, representing tens of thousands of New Yorkers. Endorsing organizations include DC 37, NAACP, New York Public Library Guild, National Association of Korean Americans and dozens more. I would urge Council members as they deliberate on Resolution 909 to consider the present political moment in historical context. The fact is we have a long, inglorious history of suspending civil rights and civil liberties under so-called emergency circumstances. And in many, if not most, cases history has proven that the suspension of civil rights and civil liberties was terribly misguided; democratic principles were trashed and lives were ruined.

• Just after World War I, in 1919, what was then called the Bureau of Investigation responded to the “Red Scare” by investigating and arresting persons deemed in any way subversive. In New York City the first of the notorious “Palmer Raids” (named after A. Mitchell Palmer, the attorney general at the time) targeted members of the Union of Russian Workers, who federal agents knew were vulnerable to deportation under federal immigration laws.
• The U.S. Supreme Court validated the evacuation and internment of Japanese during World War II, explaining its ruling by noting just how difficult it is to segregate the “disloyal from the loyal.”
• During the infamous “witch hunt” of the 1950s, the House Un-american Activities Committee issues subpoenas to compel witnesses to admit any association they or others had with the Communist party.
• For the next two decades the government ran a counter-intelligence campaign (COINTELPRO) that involved harassing, burglarizing and eavesdropping on government critics and so-called subversives – with little regard as to whether the targets might be involved in unlawful activity.

But if you read the history of these outrages, there is always a counter-narrative in which wiser voices respond to the hysteria. To those who claim the times are so perilous and the risk of harm so great that we cannot tolerate democratic principles of freedom, there are other voices that say: we do no accept the argument that in order to preserve democracy, we must suspend individual freedoms. With Resolution 909 the City Council also rejects this argument; and instead asserts that our government can and must respond to the threat of terrorism in a manner that respects constitutional freedoms. In order to understand the need for Resolution 909, it is necessary to understand the scope and the consequences of the government’s war on terrorism. The executive branch has been afforded vast new powers that seriously undermine the system of checks and balances that are essential to our democratic form of government. Judicial oversight has been restricted, both through new laws and court rulings, in deference to the executive branch. A majority of those in Congress have assumed the role of cheerleader or have fallen silent. This realignment of power within the federal government has a direct effect on law enforcement in New York City. The Justice Department and the Department of Homeland Security are reportedly prosecuting the war on terrorism in close collaboration with local police departments. To what extent is the NYPD coordinating its antiterrorism activities with federal law enforcement officials? There is ample evidence that individual rights have been compromised in the effort to protect against acts of terror. The City Council must therefore assume a more active role in monitoring the NYPD’s antiterrorism initiatives. I will now briefly summarize the factual record that gives rise to this concern. Detention of Arab, Muslim and South Asian men In the days, weeks, and months following September 11, federal agents rounded up hundreds, if not thousands of Arab, Muslim and South Asian men, holding many for weeks without charges, in solitary confinement, and as direct suspects of the September 11 attacks based principally, or solely on their religion, ethnicity or national origin. None were ever charged with anything related to terrorism, but rather with minor violations of immigration laws, such as not filing a change of address within 10 days. Initially the 9/11 detainees were held under a communications blackout, and prohibited from receiving telephone calls, visitors, or mail. Family members of the 9/11 detainees in many instances did not find out what happened to their relatives until weeks following the detention. They describe their family members as having disappeared. The communications blackouts ranged from several days, to several weeks. Not only were family members unable to find out where their relatives were held, but detainees were denied access to counsel. When lawyers or family members called the Bureau of Prisons to inquire whether a particular person was housed there, staff workers denied that person’s presence in the facilities, even if they were indeed housed in the prison. Many detainees reported that they were denied legal calls, and phone logs confirmed the accusations. Sometimes guards walked by a cell and asked, “are you okay?” If the detainees responded “yes,” then the guard interpreted that as the detainee stating that he doesn’t need to place a legal phone call. On June 2, 2003, the Inspector General’s Office of the Justice Department released a report on 762 of the September 11 detainees. The report found that the FBI’s interest in the detainees “often was based on little or no concrete information tying the detainees to the September 11 attacks or terrorism.” And according to the Inspector General’s report, detainees held at the Brooklyn facilities were subjected to “a pattern of physical and verbal abuse.” Complaints of physical abuse ranged from painfully tight handcuffs to allegations that they were slammed against the wall by prison staff. Verbal abuse included taunts such as “you’re going to die here,” and “you will be here for 20-25 years like the Cuban people.” Ethnic and religious profiling Federal agents have been employing ethnic and religious profiling on a widespread basis since September 11. Thousands of people of Arab, Muslim or South Asian descent have been detained, interrogated, fingerprinted, or subjected to deportation proceedings based principally, or solely, upon national origin or religious belief. Under the National Security Exit-Entry Registration System (NSEERS), also known as the special registration program, males age 16 to 45 from 25 Arab, Muslim and South Asian countries who came into the United States on temporary visas and who still have nonpermanent status in the United States have to register with the United States government at least once a year. Registration includes being fingerprinted, photographed, and questioned under oath by INS officers. Over 82,000 men voluntarily complied with the special registration program, and more than 13,000 are now in deportation proceedings. Yet the program yielded no charges of terrorist activities against any of the men who registered, but did yield serious violations of civil rights and liberties. Scores were detained for days because of immigration bureaucracy that prevented the INS from verifying their legal status in the United States. An example is the case of Mohammad Sarfaraz Hussain, a high school student in Queens who was placed in deportation proceedings after fulfilling his registration requirement. Mr. Hussain was a varsity basketball player, with four U.S. citizen siblings. He filed a green card application with the INS in April 2001 that was still pending. Only after Congressman Ackerman become involved did immigration authorities stop the deportation proceedings. The round up of the September 11 detainees and the special registration program have had a devastating impact on immigrant neighborhoods throughout the country. In the Midwood section of Brooklyn alone, the Pakistani government estimates that 15,000 have left for Canada, Europe or Pakistan. Stores report business being down by 40 percent, and the local mosque being one-third empty, after previously being overcrowded during Friday prayers. Vast expansion of government search and seizure powers Since 9/11, we have also witnessed an extraordinary expansion of government search and seizure powers. The Fourth Amendment to the United States Constitution protects our “persons, houses, papers, and effects” from arbitrary government intrusion. It requires that government searches are reasonable and based on probable cause to suspect criminal activity. U.S. Supreme Court Justice Louis Brandies termed this Amendment as “the most comprehensive of rights, and the right most valued by civilized men.” The USA PATRIOT Act, which was passed just 45 days following September 11, allows the executive to do an end-run around the courts and the Constitution’s Fourth Amendment requirements. It allows the FBI to go on a fishing expedition into a citizen’s reading records and favorite Internet sites without having to provide any individualized evidence of suspicion, as required by the Constitution. In order to fully appreciate the impact of the USA PATRIOT Act on Fourth Amendment rights, it is vital to understand that under the USA PATRIOT Act, the jurisdiction of the secret Foreign Intelligence Surveillance Court was significantly expanded. Created in 1978 by the Foreign Intelligence Surveillance Act (FISA), the FISA Court was meant to adjudicate cases that dealt with foreign nationals and foreign intelligence. Proceedings in the FISA Court are ex parte, and conducted in total secrecy. Under the USA PATRIOT Act, this secret court now adjudicates cases involving U.S. citizens, and cases that are unrelated to terrorism. One example of the secret court’s expansion and its impact on Fourth Amendment rights is Section 215 of the USA PATRIOT Act, which allows the government broad and unfettered access to the private records of U.S. citizens, including private medical, financial, Internet, and library records. To obtain these records, the government does not have to prove probable cause or even reasonable suspicion, but simply that the information is relevant to an ongoing terrorism investigation, an extraordinary low standard for such vast powers. The government may obtain such information by submitting a request before a secret FISA court, under secret proceedings that involve only one party, the government itself. And all orders include a gag provision, prohibiting the source of the information, whether it’s America On Line or the public library, from informing anyone that the FBI approached them. For example, the FBI may request the name of every person who ever borrowed a book from the New York public library titled “Islamic Fundamentalism.” The librarian is prohibited from informing anyone that the FBI made such a request. Another example of the USA PATRIOT Act’s circumvention of the Constitution’s Fourth Amendment requirements is Section 213, which permits the government so-called “sneak and peek” searches. Within the Fourth Amendment’s prohibition of unreasonable search and seizures is a notice requirement, which dates back to English common law. Prior to passage of the USA PATRIOT Act, prior notice could be denied only under a very narrow set of circumstances, such as when officers have reasonable suspicion that giving notice would be dangerous or futile. Section 213 of the USA PATRTIOT Act allows federal agents to conduct a search without giving notice to the subject of the search until weeks, months, or years following the search. The standard for delaying the search is extraordinarily low; all that the government has to show is “reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result.” And this new power is not limited to antiterrorism investigations, but applies to regular criminal cases as well. Surveillance of lawful political activity In May 2002, Attorney General Ashcroft unilaterally amended FBI guidelines to permit FBI agents to spy on people engaged in activities protected by the First Amendment. The former FBI guidelines were imposed in 1976, following the Senate Church Committee’s finding of abuses by the FBI in its domestic spying activities. Under the new guidelines, the FBI may spy on public events such as religious services and political rallies, surf the Internet, and mine commercial databases as part of its broader mission to prevent terrorism. According to House Judiciary Chairman James Sensenbrenner, Republican from Wisconsin, “I get very, very queasy when federal law enforcement is effectively…going back to the bad old days when the FBI was spying on people like Martin Luther King.” Suppression of dissent The above infringements on civil liberties have been complemented by a general suppression of dissent by the government. The USA PATRIOT Act defines domestic terrorism so broadly that organizations from Greenpeace to Operation Rescue may be deemed domestic terrorists. A Philadelphia Inquirer article revealed that in the first two months of 2003, the Justice Department filed charges against 56 people and labeled them as “terrorism” cases. The investigation found that at least 41 of the cases had nothing to do with terrorism. Eight of the people charged were Puerto Ricans protesting the Naval bombing on the island of Vieques. Ari Fleischer, in October 2001, said that Americans should “watch what we say and what we do.” In NYC, tens of thousands of people were denied a permit to hold a peace rally, and in the private sector, security officers at the Crossgates Mall in Albany arrested an individual who refused to take-off a t-shirt with a print stating “Give Peace a Chance.” Further antiterrorism initiatives proposed by the Bush Administration Under legislation that the government seeks to introduce to Congress in the near future, the Bush administration is proposing even further infringements on civil liberties. Under the Domestic Security Enhancement Act (Patriot II), the Bush Administration is proposing to allow the government to obtain credit records and library records without any court oversight whatsoever, not even by the secret FISA court. In addition, the government would no longer be required to disclose the identity of anyone, even a U.S. citizen, detained in connection with a terror investigation, until criminal charges are filed, no matter how long it takes. Finally, Patriot II would provide incentives for neighbor to spy on neighbor by granting blanket immunity to businesses that phone in false terrorism tips, even if their action are taken with reckless disregard for the truth. And the Defense Department in 2002 decided to join the host of privacy invasions envisioned by the Justice Department, and introduced a national information gathering program titled the Total Information Awareness project (TIA), headed by John Poindexter of Iran-Contra fame. The Total Information Awareness project would provide the government with unfettered access to personal data on U.S. citizens, including high school transcripts; political and religious contributions; driving records; book purchases; medical records; phone, e-mail, and internet search logs; and much more. These government searches into the personal information of U.S. citizens would require no judicial approval, and not be subjected to legal challenge by the subject of the search. The role of the City Council in protecting New Yorkers’ rights and liberties The people of New York City have suffered deeply from the catastrophic events of September 11. Many new Yorkers have also been grievously harmed by the overzealous and misguided police actions that followed. It is therefore incumbent upon New York City Council members to affirm that fundamental individual freedoms cannot be surrendered; that to do so is to surrender the foundational principle of our democracy. Resolution 909 makes this affirmation, calling upon federal, state and local authorities to –

• Safeguard New Yorkers’ constitutional right to legal representation when arrested and charged with a crime. These are fundamental rights that cannot be suspended at the whim of a president.
• Protect New Yorkers from intrusive and unconstitutional surveillance. The USA PATRIOT Act jeopardizes New Yorkers’ rights of privacy and due process. Resolution 909 states that the government cannot lightly suspend the requirement of showing of probable cause before subjecting individuals to intrusive surveillance or arrest.
• Uphold New Yorkers’ First Amendment right to engage in lawful political and religious activities. The USA PATRIOT Act defines “domestic terrorism” so broadly that organizations and individuals engaged in constitutionally protected political activity can be prosecuted as “terrorists.” Resolution 909 directs the New York Police Department to respect the right of individuals to engage in activities protected by the First Amendment.
• Protect New York’s immigrant communities from overzealous and divisive police practices. Local police have increasingly become involved in enforcing federal immigration laws. But this practice seriously undermines trust of local police in immigrant communities. Crime victims and witnesses to crime are reluctant to speak with the police. Enforcement of federal immigration law has traditionally, and appropriately, been a federal responsibility. Resolution 909 states that enforcement of federal immigration law is best left to federal authorities.
• Refrain from engaging in criminal investigations based on racial, national origin, or religious profiling. Since 9/11, thousands of immigrants have been subjected to interrogation, detention and deportation based solely, or principally, upon their national origin or religious belief. Existing NYPD policy directs police officers not to engage in racial profiling. Resolution 909 calls upon the police department to rededicate itself to its own guidelines, and prohibit investigations based solely on a person’s race, religion or national origin.
• Maintain government’s accountability to the rule of law and to the people. Congress passed the USA PATRIOT Act with almost no debate. Never has a U.S. president signed so sweeping and far-reaching a piece of legislation with so little deliberation by the legislature. The plain fact is that since September 11, the federal government has undermined the checks and balances that are essential to a healthy democracy. Resolution 909 seeks to restore the proper distribution of power among the executive, legislative and judicial branches of government.

It is time for the New York City Council to take a stand in the national debate over the appropriate balance between national security and civil rights and civil liberties. It is time for New York’s City Council members to vote up or down on the proposition that there is no national security exception to the Constitution’s guarantee of individual freedom.