Remarks of James W. Ziglar
Distinguished Visiting Professor of Law
the George Washington University Law School

To the Membership Meeting of the American Civil Liberties Union

June 14, 2003
The Onmi-Shoreham Hotel
WashingtonN, D.C.

THANK YOU.   IT HAS BEEN A PLEASURE GETTING TO KNOW YOUR ORGANIZATION DURING THE PAST YEAR, AND I HOPE THAT I WILL HAVE AN OPPORTUNITY TO WORK WITH YOU IN THE FUTURE TO ADVANCE ISSUES ON WHICH WE AGREE.

I WOULD ALSO LIKE TO THANK YOU FOR THE HONOR OF SPEAKING TO YOUR INAUGURAL MEMBERSHIP MEETING.  I WAS SURPRISED TO LEARN THAT YOUR ORGANIZATION HAS NEVER HAD A MEETING OF ITS FULL MEMBERSHIP BEFORE NOW—ESPECIALLY SINCE MY FRIENDS IN THE VAST RIGHT WING CONSPIRACY HAD ME CONVINCED FOR MANY YEARS THAT THE ACLU WAS A VAST LEFT WING CONSPIRACY—HOW CAN YOU CONSPIRE EFFECTIVELY IF YOU NEVER GET TOGETHER?

I AM ESPECIALLY HONORED TO BE HERE BECAUSE, NOTWITHSTANDING MY DISAGREEMENT WITH THE ACLU ON SOME ISSUES SUCH AS PROPERTY RIGHTS AND GUN RIGHTS,  I FIND MYSELF IN AGREEMENT WITH YOU ON A NUMBER OF OTHER ISSUES, PARTICULARLY AS THEY RELATE TO THE FIRST, FOURTH, FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION.

THE ACLU HAS SERVED AN IMPORTANT ROLE OVER MANY YEARS BY ALWAYS BEING THERE TO DEFEND CIVIL LIBERTIES, EVEN WHEN YOUR CLIENTS WERE DESPICABLE PEOPLE WHO WERE INVOLVED IN DESPICABLE CAUSES.  AFTER ALL, IT IS THE EXPRESSION OF THAT MINORITY VIEWPOINT THAT THE BILL OF RIGHTS—AND OUR COURT SYSTEM—WERE DESIGNED TO PROTECT.  I HAVE NOTHING BUT ADMIRATION FOR YOUR UNWAVERING DEVOTION TO PROTECTING THE BILL OF RIGHTS.  I JUST WISH I COULD CONVINCE YOU TO SEE SOME OF THE OTHER ISSUES MY WAY.   BUT SINCE YOU ARE ONLY 83 YEARS OLD, I THINK THERE IS STILL HOPE.

WE COME TOGETHER AT A TIME IN AMERICAN HISTORY WHEN THE NEED IS GREAT FOR ORGANIZATIONS SUCH AS THE ACLU— AND PEOPLE WHO ARE PASSIONATE ABOUT CIVIL LIBERTIES— TO UNITE IN DEFENDING THOSE LIBERTIES.  WE MUST REMIND AND EDUCATE THE AMERICAN PEOPLE THAT OUR VERY EXISTENCE AS A FREE SOCIETY DEPENDS ON AN EVER-VIGILANT, UNCOMPROMISING DEFENSE OF CIVIL LIBERTIES.

YOU PROBABLY ARE WONDERING WHY SOMEONE WHO HAS BEEN A LIFELONG CONSERVATIVE WOULD APPEAR AT YOUR CONVENTION.   AND I DO PROUDLY CONSIDER MYSELF A CONSERVATIVE IN THE BARRY GOLDWATER MOLD.   BARRY GOLDWATER UNDERSTOOD THAT FREEDOM—IN HIS OWN WORDS— “DEPENDS ON EFFECTIVE RESTRAINTS AGAINST THE ACCUMULATION OF POWER IN A SINGLE AUTHORITY.”

BUT HIS MOST ELECTRIFYING AND INSPIRING WORDS WERE SPOKEN AT THE 1964 REPUBLICAN CONVENTION WHEN HE SAID:

“I WOULD REMIND YOU THAT EXTREMISM IN THE DEFENSE OF LIBERTY IS NO VICE!  AND LET ME REMIND YOU ALSO THAT MODERATION IN THE PURSUIT OF JUSTICE IS NO VIRTUE!”

LIKE BARRY GOLDWATER AND RONALD REAGAN, I BELONG TO THE “REPUBLICAN WING” OF THE REPUBLICAN PARTY.

THE LINGERING IMPACT OF SEPTEMBER 11 WILL CONTINUE TO TEST OUR METTLE AS A NATION DEVOTED TO THE PRINCIPLES OF LIBERTY, JUSTICE AND EQUALITY OF OPPORTUNITY.  AS HAS OCCURRED SO MANY TIMES IN OUR HISTORY, SOME WELL-MEANING, BUT MISGUIDED, PEOPLE WILL ATTEMPT TO CONVINCE THE AMERICAN PEOPLE THAT IT IS NECESSARY TO GIVE UP SOME PORTION OF OUR CIVIL LIBERTIES TO PROTECT OURSELVES AND THE COUNTRY.   THE WORDS OF JUSTICE LOUIS BRANDEIS ARE WORTH REPEATING HERE WHEN HE WARNED THAT:

“THE GREATEST DANGERS TO LIBERTY LURK IN INSIDIOUS ENCROACHMENT BY MEN OF ZEAL, WELL-MEANING, BUT WITHOUT UNDERSTANDING.”

DAVID McCULLOGH, THE PULITZER PRIZE-WINNING PRESIDENTIAL BIOGRAPHER, IN HIS RECENT DELIVERY OF THE ANNUAL JEFFERSON LECTURE FOR THE NATIONAL ENDOWMENT FOR THE HUMANITIES, EXPRESSED GREAT CONCERN ABOUT THE NATIONAL AMNESIA FROM WHICH WE SUFFER.   HE PUT IT VERY SIMPLY WHEN HE SAID:

“FOR A FREE, SELF-GOVERNING PEOPLE, SOMETHING MORE THAN A VAUGE FAMILIARITY WITH HISTORY IS ESSENTIAL IF WE ARE TO HOLD ONTO AND SUSTAIN OUR FREEDOM.”

SINCE SEPTEMBER 11, THE DISCUSSION OF CIVIL LIBERTIES SEEMS ALWAYS TO BE PREMISED ON THE HISTORICALLY FALSE ASSUMPTION THAT CIVIL LIBERTIES AND SECURITY ARE, AND ALWAYS HAVE BEEN, AT WAR WITH EACH OTHER—AND THAT WE MUST  “RE-BALANCE”, i.e., “GIVE-UP” SOME OF OUR FREEDOM TO BE SAFE.  I CRINGE EVERY TIME I HEAR THAT DISCUSSION.   THOSE FREEDOMS THAT WOULD BE SO CASUALLY TOSSED ASIDE ARE THE VERY REASON THAT WE ARE THE MOST OPEN, THE MOST POWERFUL, AND THE MOST SECURE SOCIETY IN THE HISTORY OF MAN.  

OUR CIVIL LIBERTIES ARE OUR STRENGTH, NOT OUR WEAKNESS.  WE ARE A NATION BASED ON A PROPOSITION, NOT ON BLOOD OR HISTORY.   THAT PROPOSITION IS SIMPLE:  WE DERIVE OUR UNIQUE IDENTITY, OUR OVERWHELMING STRENGTH, AND OUR SECURITY AS A NATION AND AS INDIVIDUALS FROM THE MOST PRECIOUS, AND YET THE MOST FRAGILE, OF NATURAL RIGHTS:  FREEDOM AND JUSTICE.

IN 1774, THOMAS JEFFERSON SAID:

“THE GOD WHO GAVE US LIFE, GAVE US LIBERTY AT THE SAME TIME”.

THIS BELIEF, THAT WE ARE BORN FREE, WITH UNALIENABLE RIGHTS, RATHER THAN RIGHTS PROVIDED BY THE GOVERNMENT, IS THE CORNERSTONE OF AMERICAN FREEDOM AND DEMOCRACY.

IT IS DISINGENUOUS TO SUGGEST, AS I HAVE HEARD ON OCCASION, THAT LIMITING AND NARROWING CIVIL LIBERTIES IS ACCEPTABLE IN THE CURRENT ENVIRONMENT SINCE  WHAT IS BEING SUGGESTED IS NOT AS EXTREME AS HAS OCCURRED IN THE PAST.   THE OVERWHELMING MEANS THAT THE GOVERNMENT HAS AT ITS DISPOSAL TODAY TO INVADE AND INTIMIDATE SUGGESTS TO ME THAT WE MUST BE EVEN MORE VIGILANT IN DETERRING GOVERNMENT OVERREACHING.   IT SEEMS THAT THE INSATIABLE APPETITE FOR MORE POWER BY THOSE WHO ALREADY HAVE IT IS ALWAYS JUSTIFIED BY “NECESSITY”---SOMETHING WE HEARD RECENTLY IN A CALL FOR EXPANSION OF THE USA PATRIOT ACT.       WE SHOULD NEVER FORGET THE WORDS AND WISDOM OF WILLIAM PITT, WHO NOTED THAT:

“NECESSITY IS THE PLEA FOR EVERY INFRINGEMENT OF HUMAN FREEDOM.”
 
 JUST LAST WEEK, A COLUMNIST IN THE WASHINGTON TIMES, JAY AMBROSE, OBSERVED THAT:
“THOSE WHO WOULD USE GOVERNMENTAL POWER TO CONTROL THE REST OF US ARE ALWAYS QUICK TO ASSURE US IT IS FOR OUR OWN GOOD.”

ALTHOUGH THE “NICETIES” OF THE LAW SEEM SOMETIMES TO ESCAPE THE ATTENTION, OR ARE DEEMED IRRELEVANT BY SOME WHO HAVE SWORN TO FAITHFULLY EXECUTE THE LAWS, I WOULD SUGGEST THAT THE “NICETIES” OF THE LAW GIVE SUBSTANCE AND MEANING TO OUR CONSTITUTIONAL RIGHTS.    THOSE NICETIES HAVE PROTECTED US IN THE PAST--- AND THEY ARE CRUCIAL TO PROTECTING US IN THE FUTURE.

ALL ONE HAS TO DO IS READ THE BILL OF PARTICULARS IN THE DECLARATION OF INDEPENDENCE TO APPRECIATE WHAT HAS FASHIONED THE AMERICAN SPIRIT AS WE KNOW IT.   I BELIEVE THAT WE STILL HAVE THE WILL, AND THE GRIT, TO REJECT THE YOKE OF OPPRESSION—SHOULD IT EVER OCCUR AGAIN ON OUR SHORES.

BUT WE NEED NOT GO THERE BECAUSE THE GENUIS OF OUR FOUNDERS HAS PROVIDED ALL OF THE MECHANISMS THAT WE NEED TO PEACEFULLY PROTECT OUR LIBERTIES AND PRESERVE THE SAFETY AND SECURITY OF THE COMMONWEAL.  THE RESPONSIBLE, MATURE AND DILIGENT EXERCISE OF THE CONSTITUTIONAL DUTIES OF THE THREE SEPARATE BRANCHES OF GOVERNMENT IS SUFFICIENT TO RIGHT THE SHIP OF STATE WHENEVER IT VEERS OFF COURSE.  IN UNDERTAKING THE RESPONSIBILITIES DELEGATED IN ARTICLES I, II, AND III OF THE CONSTITUTION, THOSE WHO OCCUPY POSITIONS OF AUTHORITY IN EACH BRANCH MUST BE MINDFUL THAT PROTECTING AND DEFENDING— NOT DISRUPTING AND PREVENTING— THE VISION OF OUR FOUNDERS, AS EMBODIED IN THE CONSTITUTION, AND PARTICULARLY THE BILL OF RIGHTS, IS THE SPECIFIC AND PRIMARY DUTY THEY SWEAR TO UPHOLD.  IF THEY FAIL TO FULFILL THEIR DUTY, WE, THE PEOPLE, HAVE THE ABILITY AND CONSTITUTIONAL DUTY TO REMOVE AND REPLACE THEM THROUGH PEACEFUL AND DEMOCRATIC MEANS.

I BELIEVE THAT NOTHING IS MORE NOBLE OR IMPORTANT THAN FIGHTING FOR THE RIGHTS THAT OUR FOUNDERS CALLED “UNALIENABLE.”   BUT I ALSO BELIEVE THAT RIGHTS AND LIBERTIES CARRY WITH THEM A HEAVY BURDEN OF RESPONSIBILITY TO AND FOR OTHER INDIVIDUALS AND THE COMMON GOOD.

WE SHOULD BE VERY CAREFUL IN OUR DEFENSE OF CIVIL LIBERTIES NOT TO OVERREACH, OR TO AUTOMATICALLY ASSUME THAT EVERY ACT OF GOVERNMENT IS A BREACH.  FREEDOM IS NOT A LICENSE FOR ANARCHY.  NOR ARE FREEDOM AND LIBERTY STUMBLING BLOCKS TO SECURITY.  WE SHOULD ALWAYS REMEMBER JAMES MADISON’S ADMONITION THAT LIBERTY SHOULD NOT BE USED TO UNDERMINE LIBERTY.    THE CONSTITUTION, AFTER ALL, IS NOT A SUICIDE PACT.

I REALIZE THAT THIS SESSION OF YOUR PROGRAM WAS ADVERTISED AS DEALING WITH IMMIGRATION ISSUES.   ALTHOUGH IT MAY SEEM SO AT THE MOMENT, I HAVE NOT IGNORED THIS THEME.  INDEED, I WOULD LIKE TO PUT IMMIGRATION IN AN HISTORICAL CONTEXT BECAUSE WE SEE HISTORY REPEATING ITSELF IN THE POST-SEPTEMBER 11 ENVIRONMENT.    AND, AS DAVID McCULLOGH HAS WARNED US, WE MUST NOT FORGET OUR HISTORY.

I FIND IT INTERESTING THAT SOME HISTORICAL REVISIONISTS—THAT’S MY POLITE PUBLIC TERM FOR THEM— HAVE ATTEMPTED, IN THE POST-SEPTEMBER 11 ENVIRONMENT, TO DEBUNK THE NOTION THAT WE ARE A NATION BUILT BY IMMIGRANTS.  YOU CAN RUN, BUT YOU CAN’T HIDE FROM OUR HISTORY.  AND THE FACT IS THAT IMMIGRATION IS DEEPLY EMBEDDED IN OUR HISTORY.  IN FACT, I WONDER HOW MANY AMERICANS REALIZE THAT RESTRICTIONS ON IMMIGRATION BY KING GEORGE WAS ONE OF THE REASONS FOR THE DECLARATION OF INDEPENDENCE.  IN THE PREAMBLE TO THE DECLARATION, WHICH CONSTITUTED A BILL OF PARTICULARS AGAINST THE CROWN, THE SIGNERS NOTED THAT:

“HE (KING GEORGE) HAS ENDEAVOURED TO PREVENT THE POPULATION OF THESE STATES; FOR THAT PURPOSE OBSTRUCTING THE LAWS FOR NATURALIZATION OF FOREIGNERS; REFUSING TO PASS OTHERS TO ENCOURAGE THEIR MIGRATIONS HITHER, AND RAISING THE CONDITIONS OF NEW APPROPRIATIONS OF LAND”

 THE SIGNERS ALSO NOTED, IN A NOT—SO—VEILED THREAT, THAT, AS TO THEIR BRITISH BRETHERN:

“WE HAVE REMINDED THEM OF THE CIRCUMSTANCES OF OUR EMIGRATION AND SETTLEMENT HERE.”

 IMMIGRANTS FORMED THIS NATION OUT OF A DESIRE FOR INDEPENDENCE AND FREEDOM; IMMIGRANTS HAVE BUILT THIS NATION AND ENRICHED ITS CULTURE AND STRENTHENED ITS RESOLVE TO REMAIN FREE; AND IT WILL BE THE IMMIGRANT OF THE FUTURE THAT WILL RENEW AND REFRESH THAT SPIRIT.

 YET, NOTWITHSTANDING THIS RICH HERITAGE, SOME VINTAGE AMERICANS SEEM TO BE AMBIVALENT, OR PERHAPS SCHIZOPHRENIC IS A BETTER TERM, ABOUT RECENTLY ARRIVED IMMIGRANTS AND IMMIGRATION IN GENERAL.   IN GOOD TIMES, WE HAVE BEEN WELCOMING, AND IN BAD TIMES WE HAVE TURNED A COLD SHOULDER, AND WORSE.   WHEN IT COMES TO VIOLATIONS OF CIVIL LIBERTIES, IT SEEMS THAT IMMIGRANTS HAVE BORNE THE BRUNT OF MANY TRANSGRESSIONS.   IT ALSO SEEMS THAT WE ARE CONSISTENTLY REMORSEFUL AFTER THE FACT AND THEN ATTEMPT TO PROVIDE RETROSPECTIVE RELIEF.  I HOPE THAT WE CAN LEARN SOMETHING FROM OUR HISTORY, AND FROM ANCIENT HISTORY, IN ORDER TO INFORM OUR FUTURE AND AVOID THE MISTAKES OF THE PAST.

 HUMAN HISTORY IS REPLETE WITH EXAMPLES OF ANTI-IMMIGRANT BEHAVIOR—AND THOSE WHO HAVE BEEN ANTI-IMMIGRANT HAVE CONSISTENTLY BEEN ON THE WRONG SIDE OF HISTORY AND HUMAN RIGHTS.

I WOULD POINT OUT TO THOSE WHO USE THE BIBLE TO CLAIM THE MORAL HIGH GROUND ON SO MANY TEMPORAL ISSUES THAT THEY SHOULD NOT IGNORE THE BOOK OF LEVITICUS IN WHICH IT TELLS US THAT AFTER THE JEWS LEFT EGYPT IT WAS NECESSARY FOR GOD TO ADMONISH THEM ON MATTERS RELATING TO FOREIGNERS.  IN LEVITICUS 19, VERSES 33 AND 34, THE LORD SPEAKS TO THE JEWS SAYING:

“AND IF A STRANGER DWELLS WITH YOU IN YOUR LAND, YOU SHALL NOT MISTREAT HIM.  THE STRANGER WHO DWELLS AMONG YOU SHALL BE TO YOU AS ONE BORN AMONG YOU, AND YOU SHALL LOVE HIM AS YOURSELF; FOR YOU WERE STRANGERS IN THE LAND OF EGYPT.”  

OUR OWN HISTORY IS FILLED WITH AN ABUNDANCE OF ANTI-IMMIGRANT SENTIMENT.  EVEN SOME OF THE SIGNERS OF THE DECLARATION OF INDEPENDENCE, SUCH AS BENJAMIN FRANKLIN, DEMONSTRATED A FEAR OF THE ARRIVING FOREIGNERS—IN FRANKLIN’S CASE, IT WAS THE GERMANS WHO HE FEARED WOULD “GERMANIZE AMERICA.”

THE LATE 1700’S BROUGHT US THE ALIEN AND SEDITION ACTS, WHICH, AMONG OTHERS, WERE BASED ON A FEAR OF THE FRENCH REVOLUTION BEING EXPORTED TO AMERICA.   THE FEDERALIST PARTY DIED AS A RESULT OF ITS ASSAULT ON CIVIL LIBERTIES AND POLITICAL OPPONENTS IN THAT PERIOD.

 IN THE 1850S, THE ANTI-CATHOLIC, ANTI-IMMIGRANT KNOW-NOTHING MOVEMENT GREW OUT OF A GENERAL CRISIS IN SOCIETY, WITH AMERICA ON THE VERGE OF CIVIL WAR AND ITS NATIONAL UNITY RAPIDLY DISSOLVING.

THE FIRST RED SCARE DURING WORLD WAR I ACCELERATED INTO THE PALMER RAIDS AFTER A SERIES OF BOMBINGS ON WALL STREET AND IN WASHINGTON, D.C.    PALMER, THEN THE ATTORNEY GENERAL AND A MAN WHO LUSTED AFTER THE PRESIDENCY,  USED SWEEPS AND ROUND-UPS AGAINST SUSPECTED “REDS” AND SUMMARILY DEPORTED THOUSANDS OF ALIENS, OFTEN WITH LITTLE EVIDENCE OF ANY ACTUAL WRONGDOING AND NO DUE PROCESS.  BY THE WAY, PALMER NEVER DID FIND THE TERRORISTS RESPONSIBLE FOR THE BOMBINGS EVEN WITH ALL OF HIS VIOLATIONS OF CIVIL LIBERTIES.
 
AND DURING WORLD WAR II, WE ALL KNOW THE TRAGIC STORY OF JAPANESE IMMIGRANTS AND U.S. CITIZENS OF JAPANESE ANCESTRY BEING ROUNDED UP AND PLACED IN INTERNMENT CAMPS ON THE WEST COAST OF THE UNITED STATES.

 PREDICTABLY, AMERICA IS PRESENTLY EXPERIENCING SOME ANTI-IMMIGRANT SENTIMENT.   SO FAR, IT SEEMS TO BE LESS INTENSE THAN IN THE PAST, BUT TO IGNORE THE CURRENT SENTIMENT WOULD BE TO IGNORE REALITY AND MISS AN OPPORTUNITY TO STRIKE A BLOW FOR CIVIL LIBERTIES AND COMMON SENSE.

YET WHILE THE PAST MAY BE PROLOGUE, THE HISTORY OF OUR TIMES IS STILL TO BE WRITTEN. THE KEY TO OUR FUTURE, HISTORY SUGGESTS, IS WHETHER AMERICANS ARE CONFIDENT IN THEMSELVES, AND WHETHER THEY VIEW IMMIGRATION AND THEIR FREEDOMS AS A SOURCE OF STRENGTH— OR AS A SOURCE OF WEAKNESS.  I VOTE FOR STRENGTH.  

I AM TOLD THAT EVERY GOOD SPEECH SHOULD LEAVE THE AUDIENCE WITH SOMETHING TO THINK ABOUT OR SOMETHING TO DO.   SO IN THAT VEIN, I WANT TO LEAVE YOU WITH SOME FOOD FOR THOUGHT.

AS A RESULT OF SEPTEMBER 11, WE HAVE WITNESSED A MAJOR RESTRUCTURING OF OUR GOVERNMENT SECURITY AGENCIES WITH THE FORMATION OF THE DEPARTMENT OF HOMELAND SECURITY.  EQUALLY DRAMATIC WAS THE ATTORNEY GENERAL’S ANNOUNCEMENT OF A CHANGE IN THE MISSION OF THE DEPARTMENT OF JUSTICE FROM “INVESTIGATION AND PROSECUTION” TO “DISRUPTION AND PREVENTION.”  IT SEEMS RATHER CLEAR THAT WE NOW HAVE AT LEAST TWO MAJOR FEDERAL AGENCIES ENGAGED IN COUNTERTERRORISM ACTIVITIES AS THEIR FIRST PRIORITY.   ALSO, BASED ON REPORTS OF INTENSE COMPETITION BETWEEN THESE DEPARTMENTS, WE NOW HAVE TWO FEDERAL AGENCIES VYING TO BE THE TOUGHEST KID ON THE BLOCK IN COMBATTING TERRORISM.   I’M NOT SURE THAT COMPETITION OF THAT SORT IS HEALTHY FOR THE LONG-TERM PROTECTION OF CIVIL LIBERTIES.

I’M GLAD THAT OUR GOVERNMENT IS TAKING THE THREAT OF TERRORISM SERIOUSLY—IT IS A SERIOUS THREAT.  HOWEVER, THERE ARE OTHER VALUES THAT MUST BE PROTECTED IN OUR SOCIETY AND OTHER LAWS THAT MUST BE ENFORCED IN ORDER TO PRESERVE, PROTECT AND DEFEND THE CONSTITUTION.

THE TRANSFORMATION OF THE DEPARTMENT OF JUSTICE INTO A PRIMARLY OPERATIONAL ENTITY WITH A FOCUS ON DISRUPTION AND PREVENTION RAISES THE QUESTION AS TO HOW IT PERCEIVES ITS RESPONSIBILITY TO INSURE THAT THE LAWS ARE FAIRLY AND JUSTLY ADMINISTERED, AND THAT THE RIGHTS EMBODIED IN THE CONSTITUTION ARE PROTECTED.

THE EXECUTIVE BRANCH HAS A CONSTITUTIONAL DUTY, JUST AS THE LEGISLATIVE AND JUDICIAL BRANCHES, TO OBSERVE, PROTECT AND DEFEND THE CONSTITUTION AND THE LAWS OF THE UNITED STATES.   IN THE PAST, THE DEPARTMENT OF JUSTICE HAS BORNE THE PRIMARY RESPONSIBILITY WITHIN THE EXECUTIVE BRANCH FOR FULFILLING THAT RESPONSIBILITY AND HOLDING OTHERS WITHIN THE EXECUTIVE BRANCH ACCOUNTABLE IN CARRYING OUT THEIR CONSTITUTIONAL DUTIES.

I FEAR THAT IF THE MISSION OF THE DEPARTMENT OF JUSTICE IS NOW PRIMARILY TO DISRUPT AND PREVENT, THEN THE QUESTIONS THAT WILL BE ASKED IN THE DEPARTMENT WILL NO LONGER FOCUS ON WHETHER AN ACTION IS SAFELY WITHIN THE BOUNDS OF THE CONSTITUTION AND LAWS, BUT HOW CLOSE CAN THEY GET TO THE LINE, OR HOW MUCH CAN THEY GET AWAY WITH.   THE RECENT REPORT OF THE INSPECTOR GENERAL ON THE TREATMENT OF POST-SEPTEMBER 11 DETAINEES, AND THE DEPARTMENT OF JUSTICE’S REACTION TO THAT REPORT, IS STRONG EVIDENCE THAT SUCH AN ATTITUDE ALREADY PERVADES THE DEPARTMENT OF JUSTICE.

THE INCREASINGLY AGGRESSIVE TACTICS OF THE JUSTICE DEPARTMENT WERE ALSO HIGHLIGHTED BY FORMER SENATOR JACK DANFORTH IN A RECENT OP-ED IN THE NEW YORK TIMES.  SENATOR DANFORTH WROTE THAT:

“(W)HEN GOVERNMENT ACTS, AS IT MUST, THERE IS ALWAYS THE QUESTION OF HOW FAR IT SHOULD GO, AND WHERE THE LINE IS DRAWN BETWEEN EFFECTIVE ACTION AND OVERREACHING.  THERE HAS LONG BEEN A TENDENCY AT THE DEPARTMENT OF JUSTICE TO CROSS THAT LINE.”

 SENATOR DANFORTH GOES ON TO POINT OUT THAT:

“IT’S IMPORTANT TO NOTE HOW MUCH GOVERNMENT POWER IS IN THE HANDS OF RELATIVELY INEXPERIENCED PEOPLE, AND HOW LITTLE COUNTERWEIGHT THERE IS TO THIS POWER.” 
   
HE CONCLUDES BY OBSERVING THAT:

“THE CHALLENGE FOR AMERICA HAS ALWAYS BEEN TO FIND THE RIGHT BALANCE BETWEEN A GOVERNMENT THAT IS POWERFUL ENOUGH TO PROTECT US, BUT NOT SO POWERFUL THAT IT CAN OPPRESS US.”

I HASTEN TO ADD THAT MY FEAR IN THIS REGARD TRANSCENDS POLITICS AND PERSONALITIES—NO ATTORNEY GENERAL, WHETHER DEMOCRAT OR REPUBLICAN, SHOULD BE INVESTED WITH THE POWER, REAL OR IMAGINED, TO IGNORE, BEND OR BREAK THE RULE OF LAW. 

I JOIN WITH THOSE WHO BELIEVE THAT IT IS TIME TO RESTRUCTURE THE DEPARTMENT OF JUSTICE TO REMOVE IT FROM THE OPERATIONAL REALM.   I BELIEVE IT IS APPROPRIATE TO NARROW THE SCOPE OF THE DEPARTMENT’S MISSION TO PROSECUTING CRIME AND PROTECTING THE RIGHTS AND LIBERTIES OF ALL AMERICANS.   THE FBI, THE DEA, AND THE ATF SHOULD BE HOUSED ELSEWHERE, ALTHOUGH NOT NECESSARILY AT THE DEPARTMENT OF HOMELAND SECURITY WHICH ALREADY HAS OVER 170,000 EMPLOYEES.

I WOULD SUGGEST THAT THE FBI BECOME AN INDEPENDENT AGENCY SIMILAR TO THE STRUCTURE ESTABLISHED FOR THE CIA AND THE EPA.  THE FBI WOULD NOT TAKE ITS DIRECTION FROM THE ATTORNEY GENERAL AND, WITHIN THE BOUNDS OF THE LAW, WOULD DETER AND DETECT  CRIMINAL ACTIVITY OF EVERY NATURE.  THE DEPARTMENT OF JUSTICE’S ROLE WOULD BE TO ACT AS A LEGAL ADVISER TO THE NEW INDEPENEDENT AGENCY, AND WOULD PROVIDE OVERSIGHT OF THE FBI’S PRACTICES AND PROCEDURES TO ENSURE THAT THE CIVIL LIBERTIES OF ALL AMERICANS ARE BEING RESPECTED.   THE DEPARTMENT WOULD PROSECUTE CASES DEVELOPED BY THE FBI, AS WELL AS THE DEA AND THE ATF.  THIS FORMAT IS NOT NEW TO THE DEPARTMENT SINCE IT OPERATES IN A SIMILAR MANNER WITH THE INTERNAL REVENUE SERVICE AND THE SECURITIES AND EXCHANGE COMMISSION.

I REALIZE WHAT I AM SUGGESTING IS NOT SIMPLE.  IT WOULD REQUIRE A CHANGE IN THE STRUCTURES AND CULTURES OF SOME DEEPLY-EMBEDDED BUREAUCRACIES.   BUT THE GOAL OF HAVING MORE CHECKS AND BALANCES IN THE ADMINISTRATION OF JUSTICE AND PROTECTION OF CIVIL LIBERTIES IS, IN MY VIEW, CRITICAL AT THIS JUNCTURE IN OUR HISTORY.  IT IS SOMETHING THAT SHOULD BE EMBRACED BY BOTH LIBERALS AND CONSERVATIVES.

 IN CLOSING, THE ATTACKS OF SEPTEMBER 11 HAVE PROVIDEDTHE  CLIMATE FOR A MUCH NEEDED NATIONAL DISCUSSION ON GOVERNMENT POWER, CIVIL LIBERTIES, AND IMMIGRATION.  DURING THE 21 MONTHS SINCE THE ATTACKS, I BELIEVE THAT THE AMERICAN PEOPLE HAVE SLOWLY BEGUN TO MORE FULLY APPRECIATE THE FREEDOMS THEY ENJOY.  AS WE ALL WORK TO PRESERVE, PROTECT, AND EXPAND THOSE FREEDOMS, WE STRENGTHEN THE VISION OF AMERICA AS A BEACON OF HOPE FOR THOSE WHO YEARN TO BE FREE.  AND, AS THE DISCUSSION OF IMMIGRATION POLICY GAINS MOMENTUM, IT IS CRITICAL THAT THE AMERICAN PEOPLE UNDERSTAND THAT IMMIGRANTS COME HERE TO JOIN US AND ENERGIZE US IN THE NEVER-ENDING PROCESS OF BUILDING AND IMPROVING OUR GREAT NATION.  THEY REFRESH AND INVIGORATE OUR SOCIETY BY PROVIDING REAL LIFE EXAMPLES OF THE POWER OF ENTREPRENEURIAL ENERGY AND, MOST IMPORTANTLY, THE INCREDIBLE POWER OF FREEDOM. 
 
 THE PESSIMISTS AMONG US WANT US TO JUDGE ALL IMMIGRANTS BY THE ACTIONS OF TERRORISTS.   THEY ALSO BELIEVE THAT OUR FREEDOMS ARE OUR WEAKNESS.  THEY ARE WRONG, AND I AM CONFIDENT THAT HISTORY AND THE AMERICAN PEOPLE WILL, ONCE AGAIN, SHOW THEM THE POWER OF FREEDOM.

 THANK YOU FOR ALLOWING ME TO BE WITH YOU TODAY.