Freedom and Security

Editor's note: The following speech was delivered at a MoveOn event, Sunday, November 9, 2003, at DAR Constitution Hall, Washington, DC.

Thank you, Lisa, for that warm and generous introduction. Thank you Zack, and thank you all for coming here today.

I want to thank the American Constitution Society for co-sponsoring today's event, and for their hard work and dedication in defending our most basic public values.

And I am especially grateful to Moveon.org, not only for co-sponsoring this event, but also for using 21st Century techniques to breathe new life into our democracy.

For my part, I'm just a "recovering politician" – but I truly believe that some of the issues most important to America's future are ones that all of us should be dealing with.

And perhaps the most important of these issues is the one I want to talk about today: the true relationship between Freedom and Security.

So it seems to me that the logical place to start the discussion is with an accounting of exactly what has happened to civil liberties and security since the vicious attacks against America of September 11, 2001 – and it's important to note at the outset that the Administration and the Congress have brought about many beneficial and needed improvements to make law enforcement and intelligence community efforts more effective against potential terrorists.

But a lot of other changes have taken place that a lot of people don't know about and that come as unwelcome surprises. For example, for the first time in our history, American citizens have been seized by the executive branch of government and put in prison without being charged with a crime, without having the right to a trial, without being able to see a lawyer, and without even being able to contact their families.

President Bush is claiming the unilateral right to do that to any American citizen he believes is an "enemy combatant." Those are the magic words. If the President alone decides that those two words accurately describe someone, then that person can be immediately locked up and held incommunicado for as long as the President wants, with no court having the right to determine whether the facts actually justify his imprisonment.

Now if the President makes a mistake, or is given faulty information by somebody working for him, and locks up the wrong person, then it's almost impossible for that person to prove his innocence – because he can't talk to a lawyer or his family or anyone else and he doesn't even have the right to know what specific crime he is accused of committing. So a constitutional right to liberty and the pursuit of happiness that we used to think of in an old-fashioned way as "inalienable" can now be instantly stripped from any American by the President with no meaningful review by any other branch of government.

How do we feel about that? Is that OK?

Here's another recent change in our civil liberties: Now, if it wants to, the federal government has the right to monitor every website you go to on the internet, keep a list of everyone you send email to or receive email from and everyone who you call on the telephone or who calls you – and they don't even have to show probable cause that you've done anything wrong. Nor do they ever have to report to any court on what they're doing with the information. Moreover, there are precious few safeguards to keep them from reading the content of all your email.

Everybody fine with that?

If so, what about this next change?

For America's first 212 years, it used to be that if the police wanted to search your house, they had to be able to convince an independent judge to give them a search warrant and then (with rare exceptions) they had to go bang on your door and yell, "Open up!" Then, if you didn't quickly open up, they could knock the door down. Also, if they seized anything, they had to leave a list explaining what they had taken. That way, if it was all a terrible mistake (as it sometimes is) you could go and get your stuff back.