"WHEN CIVIL LIBERTIES FACE A CRISIS"

A Sermon by the Rev. Bruce Clear

Sunday, March 30, 2003

All Souls Unitarian Church

Indianapolis, Indiana

There are a few songs, poems or images that always seem to choke me up a bit. One such image, and one such poem, is found on the Statue of Liberty in the New York Harbor. Few things, it seems to me, more appropriately and efficiently summarize our nation than that statue and that poem, with this famous line:

"Give me your tired, your poor, your huddled masses, yearning to breathe free."

That line captures, I believe, the two central qualities of our country that distinguish us from most of the rest of the world. First, we are primarily a nation of immigrants, a blending of people from all over the world. Some, of course, came voluntarily, but all came here with a dream in their hearts. Second, in some aspect, every dream of everyone in this country involves some form of freedom - the "yearning to breathe free." Whether refugees, entrepreneurs, slaves or any other reason, all who came here held deep in their heart some dream of being free. Were we ever to loose the centrality of freedom, we would lose the heart and soul of our nation.

When people ask me to explain about Unitarian Universalism, I often begin with the central concept of "freedom" in religion. What is valued most, I might say, is the right of each individual to pursue his or her own religious journey, his or her own quest for truth, without the coercion of creed. Freedom also entails respecting someone else who has chosen a different path, and not imposing your answers on theirs.

Freedom is central to Unitarian Universalism, and it is also, of course, the defining characteristic of our American tradition. If there is one item that summarizes the essence of the American way, it is the Bill of Rights of the Constitution, and even more specifically, the First Amendment.

Not a few people have noticed the similarity between what is central to Unitarian Universalism and what is central to the American political system: both place freedom above practically any other value. It is not surprising that several of the nation's founders came from the Unitarian tradition. And over the years, a few observers have noticed how closely the Unitarian religious values are aligned with American political values. Back in the 1950s, in the face of the McCarthy witch-hunt hearings, a Unitarian minister in Washington D.C., A. Powell Davies, actually wrote a book that paralleled Unitarian values with American principles of liberty. The book was entitled, The Real American Religion.

I offer this introduction to illustrate why the topic of civil liberties is so close to the heart of our religious tradition. There are many reasons for this. We are, by the numbers, a minority religion in this country. As any minority can testify - whether it is a religious minority or a racial minority or a political minority - one's existence is directly dependent upon the legal protections of freedom.

I don't know if it feels this way to you, but to me it seems that our country has been in a continuous state of crisis for a year and a half, since September of 2001. Actually, you might stretch that to be two and a half, if you count the unprecedented disputed election of 2000.

I am old enough to recall a similar time where the sense of crisis seemed never to end: the late 1960s and early 1970s, particularly from1968 until about 1973. The country was still slowly healing from the wound of the Kennedy Assassination when it was shocked by the killing of Martin Luther King, and then soon after, the late President's brother Sen. Robert Kennedy. At the same time, the war in Vietnam was at its peak, and there was every evidence that we were caught in a quagmire, the death counts were rising, and there seemed to be no way out.

The voices of protest were growing, families were divided, and the generations grew further and further apart emotionally. These divisions led to violence and repressions. Some protest marches turned violent. Similarly, some police turned their guns on protesters, and at Kent State University in Ohio, pulled the trigger, killing unarmed students.

It was in this atmosphere of crisis that the highest levels of government, feeling their political survival threatened, conspired to breach constitutional rights. The FBI and CIA were persuaded to spy on American citizens, using burglaries and illegal wiretaps to gather evidence. The White House drew up what it called an "enemies list," and authorized the Justice Department to go after them with anything they can, enlisting the IRS for harassment of those "enemies." The final straw, though, was of course the botched burglary of the offices of the opposition political party. Suddenly, it became apparent that these encroachments on constitutional rights had nothing to do with protecting the nation from its enemies, and nothing to do with insuring public safety or security. It was an obvious attempt to protect and preserve their own partisan political power. And the house of cards, as we all know, came tumbling down.

It is no profound revelation to observe that our civil rights are most in jeopardy when the country faces a national crisis. It is in times of crisis that people are more willing to have second thoughts about allowing "too much" freedom. It is during these times that the urge to trade freedoms for safety becomes too tempting for many.

History has shown the tendency for sacrificing liberty to security, especially in times of crisis. You could go back further, but let's begin with the French Revolution. In the anarchy following the Revolution, the government organized what was called the "Committee of Public Safety." The purpose of the Committee was to end the various revolts against the new democratic state. Appointed to head the Committee of Public Safety was Maximilien Robespierre. Robespierre was committed to seeing order restored to society, and insuring public safety and security. As a means to that end, he created revolutionary tribunals to investigate the political loyalties of dissenters. The way to establish national security, he decided, was a rather liberal use of the French guillotine. By the end of his command, nearly 50,000 people had been executed, and history has named this era the "Reign of Terror." It has always been significant for me to note that this famous political slaughter took place under the official policy of protecting public safety.

Something similar in spirit, though quite different is severity, was happening on this side of the Atlantic. In 1798, there was anxiety in this new democracy, the United States of America. There was - how history always seems to echo itself - particular fear and hatred of France. In the atmosphere of fear, Congress passed what came to be known as the Alien and Sedition laws which made it a crime to criticize the President or Congress. The law only lasted a year and a half, but a number of people were imprisoned and fined for speaking contemptuously of the government.

The anxiety following the First World War was felt throughout society, and sporadic political violence rose to a crisis level. Ideological anarchists were voicing their philosophy. Labor strikes led to violent demonstrations and sometimes riots. When in 1920 a bomb exploded in front of the home of Attorney General A. Mitchell Palmer, the call for national security reached its height. The F.B.I. sent 500 agents out to find anyone suspicious, and in the end nearly 1,000 people were arrested. Arrest warrants were not issued, suspects were treated with brutality, the officers conducted unreasonable, and therefore unconstitutional, search and seizures, and people were detained for long periods without charges. These became known as "The Palmer Raids," and it turned out that the majority of people arrested and detained were hard-working, law-abiding people. They just happened to be mostly immigrants from Eastern Europe, the region which was the source of much of the anarchist philosophy.

And of course we are all aware of the 110,000 of Japanese- Americans, law-abiding citizens, who were incarcerated during World War II without recourse to any due process or trials. Their freedoms were summarily denied under the call for national security.

It is clear that it is in times of crisis that the rights of Americans are in greatest jeopardy. This is also true of our current time of crisis. In the 1920s, the anarchist and labor union scare led to the large-scale violation of rights in the name of security. In the 1940s, again rights were sacrificed to security. In the 1950s, the Red Scare eroded personal freedom during the days of the McCarthy hearings. And then there was Watergate.

On and on it goes. In the face of crisis, human rights and civil liberties take a back seat. My concern is that now, as our country continues facing a crisis labeled first, "terrorism," and next, "Iraq," that our civil freedom, the very soul of what our country is all about, is again put to the test.

There are anecdotal stories, for example. There are the continuing examples of ethnic profiling - when airlines removed passengers solely on their race or dress, because it makes other passengers "uncomfortable." There is the story of two Somali shop-owners in Seattle whose business was invaded by government agents, their inventory confiscated, and who suffered a loss of nearly $300,000. They did nothing wrong, but it seems their business was located in the same building as another suspicious Middle Eastern business, and these two men happened to be of the wrong race and religion. More recently, at a mall in Guilderland, NY, a father and son wore T-shirts saying, "Peace on Earth," and "Give Peace a Chance." Mall security guards ordered them to remove the shirts, and when they refused, charged them with trespassing.

These anecdotal stories do not necessarily prove a trend, but the stories seem to keep coming. Alongside these stories, however, is the more objective evidence of new laws and Executive Orders being passed and issued in the name of "public safety." It is worth taking a close look at some of these.

The most famous, and perhaps the most far-reaching of such laws, is the "USA Patriot Act" passed hurriedly in the weeks following September 11. In the somewhat understandable race to reassure the American people of their safety, these laws were passed with very little debate or even review. Be that as it may, it is still the law, as valid as any other law until tested in court.

The gist of this USA Patriot Act is that in the interest of stopping terrorism, many of the constitutional rights of citizens and non-citizens are suspended. Government actions which under normal circumstances would be illegal are permitted if the purpose is to catch a terrorist.

For example, the constitution provides within its clause concerning unreasonable search and seizure that courts must authorize telephone surveillance and other invasions of privacy, and then only if there is probably cause that they will find evidence of a crime. That right is treated differently, though, if the authorities decide they are going after terrorists. In that case, probable cause is no longer needed and court authorization is diminished.

Such surveillance can extend to a suspect's use of the Internet or libraries, as well as other records from banks, credit agencies, and medical records. Again, the otherwise necessary requirement of judicial oversight is reduced or removed. Agents are also permitted to infiltrate mosques and churches and other houses of worship.

After Watergate, in the wake of shocking abuses of power when the White House ordered the CIA to spy on Americans, Congress passed laws to protect citizen rights. Under those laws, the CIA can only spy on foreigners, not Americans, and it is the FBI who has the authority to investigate citizens within our borders. Those rules are revoked, now, when it comes to terrorists. The CIA now is invited back into the business of spying on Americans.

The constitution provides strong protection to those suspected of a crime. As Americans, we learn at a young age to say with pride that in this country a person is "innocent until proven guilty." That is true because the constitution requires everyone enjoy the right of "due process" of law, not to be held an unreasonable amount of time without charges being made, and to have such rights as a right to counsel and a right to face your accusers. Under new laws, those rules, those rights, don't count if the crime you are suspected for is aiding terrorism.

Since September 11, thousands of people have been detained in custody for many months without charges being filed or without granting the right of legal counsel. Under the USA Patriot Act, certain people can be held indefinitely without ever being convicted of a crime. It is true that most of the people being detained are non-citizens immigrants, but it has been long established by the Supreme Court that constitutional rights extent to all people within the shores of the United States. The Fourth Amendment of the constitution provides, "No person (not no citizen) shall. . . be deprived of life, liberty or property without due process of the law." Until now, it seems.

The importance of this right is easily established. The legal provision for "habeas corpus" is that you can't just arrest someone and throw away the key without some accountability for doing so.

One of the most infamous cases of crimes against humanity since the Nazi concentration camps of World War II took place in Argentina in the early 1980s. Thousands of people, mostly men who opposed the regime, simply "disappeared" from the face of the earth. It later was discovered that the military routinely kidnaped them, flew them out over the ocean, and pushed them out of the airplane. These thousands became known, collectively, as "los desaparecidos," "the disappeared."

I was a witness to the legacy of some of this in 1986 when I visited Nicaragua during the war there. There was an actual museum in several large towns devoted to "the disappeared." It seems the CIA decided to hire the Argentinian military to train the contras for war, and part of the result was the disappearance of thousands of people throughout the country, never to be heard from again.

I say all this not because I think this is what is happening in our country with suspected terrorist sympathizers, or that it is going to happen soon. I do not. But I say all this because it illustrates why it is important to have such safeguards as the legal doctrine of "habeas corpus," which prohibits detaining people in secret, or indefinitely, without bringing charges before a judiciary, and why there is danger in passing laws which ignore such important safeguards.

In our time of crisis, the word "terrorism" seems to be a magic word to void what otherwise should be protected civil liberties. It is interesting, then, to understand how the law deals with the word "terrorist."

The USA Patriot Act creates a federal crime it calls "domestic terrorism" that broadly extends to "acts dangerous to human life that are a violation of the criminal laws" if they "appear to be intended. . . to influence the policy of a government by intimidation or coercion," and if they "occur primarily within the territorial jurisdiction of the United States."

It has been pointed out that this definition of terrorism is vague enough that it could include many forms of civil disobedience. Much of the civil rights movement of the 1950s and 60s - sit-ins at the lunch counter, occupation of a university office and so forth - could be considered "domestic terrorism" under these rules.

Saying this isn't too far fetched. Both right wing and left wing movements have voiced their opposition to this law. Operation Rescue, the militant anti-abortion organization which pickets at abortion clinics, opposes the law because they see how they could be defined as terrorists. Likewise, the vocal environmental group Greenpeace, which sometimes confronts and tries to stop ocean polluting ships by placing themselves in front of the ships, has concerns that it might come under the definition of "domestic terrorists."

When Phyllis Schlaffly's Eagle Forum, Gun Owners of America, and the American Civil Liberties Union have all joined to question the legitimacy of this Act, then we have reason to raise our eyebrows.

The government assures us that these restrictions are necessary to win the war on terrorism, and once that is finished, they can be lifted. But one wonders, in this new kind of war, will it ever be over? It is not possible to imagine someone signing a pact of surrender on behalf of all terrorists.

One other part of the proposed act, that got quite a bit of publicity but apparently didn't make it through Congress, was Attorney General Ashcroft's call for a "Terrorism Information and Prevention System," with the acronym TIPS. It was suggested that the government recruit people who routinely enter private residences - telephone repair workers, cable system installers, and other utility workers - and ask them to report to the government anything suspicious they see. The specter of a nationally organized citizen spy network was so chilling, it couldn't get out of Congress. Conservative Senator Odin Hatch said this about the TIPS proposal: "We don't want to see a '1984' Orwellian type situation here where neighbors are reporting on neighbors."

In addition to this, Mr. Ashcroft proposed a "Total Awareness Information System" in which all computer data about citizens - credit card companies, medical records, library records and so on - would be fed into one central federal information system that could keep track of the personal habits of each citizen. Fortunately that Big Brother proposal didn't make it. Yet.

Gradually, provisions of the USA Patriot's Act are being tested in courts, and many provisions are failing the test of constitutionality. A New Jersey state court ruled that the identity of people detained in state facilities and held on secret charges must be disclosed. A federal court in Detroit declared unconstitutional Ashcroft's decision to try, in secret, people detained for immigration violations. These court tests remain provisional, until all avenues of appeal are exhausted.

Perhaps the most frightening aspect of this new law is not so much the law itself as it is the fanaticism with which it has been defended. Attorney General Ashcroft has said that those who oppose this act are "giving ammunition to America's enemies." At another time and place our Attorney General said this about those critical of the USA Patriot Act: "To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists, for they erode our national unity. . . ."

We do live in a time of crisis, and that means we must be extra vigilant in protecting personal freedoms, which history has shown are exceptionally vulnerable under such conditions. And we know it is true now.

The Freedom Foundation regularly surveys public opinion on issues of the First Amendment. The relationship between freedom and security can be seen dramatically in following their polling results. In the year 2000, before the terrorist attacks, only 22 percent of the people polled felt that the First Amendment "goes too far" in guaranteeing rights to Americans. The next year, that figure rose to 39%. In 2002, 49 percent, virtually half of those polled, believed the First Amendment "goes too far" in protecting our freedoms.

We easily learn lessons of freedom, but we easily forget them as well - especially in the face of fear. When we speak of defending America's freedom, we can only mean that to the extent that we are concerned more about protecting our freedoms than anything else. I may be naive, but I still believe in a formula of means and ends - that if we pursue a just and noble purpose using unjust methods, then the end that we seek will be destroyed.

Or as Anthony Romero, the Executive Director of the American Civil Liberties Union said, "Defending liberty during a time of national emergency is the ultimate act of. . . patriotism." I close with an observation by the former Supreme Court Justice William O. Douglas, who ends his comments with a reading from Rabindranath Tagore, the Nobel winning poet from India:

"Our freedom is the product of countless episodes, the gradual accretion of precedents, the slow growth of habits and attitudes. No one event has marked its victory, no one event, its decline. It has been retained or lost, depending on the intensity of the efforts continuously to renew it - in our villages as well as in our capitals. Its vigor or decline has often been marked by a pattern of deeds so small as hardly to be seen in the mosaic. . . . If liberty is to prevail, the prayer of Rabindranath Tagore must be our ideal:

Where the mind is without fear and

the head is held high'

Where knowledge is free;

Where the world has not been

broken up into fragments

by narrow domestic walls;

Where words come out

from the depth of truth;

Where tireless striving stretches

its arms toward perfection;

Where the clear stream of reason has

not lost its way

into the dreary desert sand

of dead habit;

Where the mind is led forward by

Thee into ever-widening

thought and action;

Into that heaven of freedom,

my Father, let my country awake."