DEFENDING "THE BLESSINGS OF LIBERTY”
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Sen. Russ Feingold in Ann Arbor, Veteran’s Day 2001
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.:: By John-david Morgan ::. l 10.11.04
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After voting against the USA Patriot Act in October 2001, Feingold embarked on a short tour of college campuses around the country, giving a Veteran’s Day speech at University of Michigan, and speeches at the University of Iowa and the University of North Carolina. The engagements had been scheduled before the terrorist attacks of 9/11, which only increased speculation that Feingold was testing the waters for an outsider’s run at the 2004 Democratic presidential nomination. It was not lost on the nation’s pundits that he had chosen to stump in the first caucus state, Iowa, and two potential battleground states.
The appearances gave Feingold the opportunity to present to the public, in full, his defense of civil liberties against the Patriot Act; they also served as a forum to introduce his social justice agenda to young voters looking for independent, progressive alternatives to the centrist ideologies and strategizing that he believes are killing Democratic Party populism. The following is a selection of excerpts from the speech Feingold delivered at the University of Michigan in Ann Arbor, Veterans Day, Nov. 7, 2001.
ON CIVIL LIBERTIES AND THE USA PATRIOT ACT
Why would I vote against it? It’s a time of major crisis. It’s about our very lives, all of our lives. It is about self-defense. Didn’t you say, Senator Feingold, that 90 % of the bill was okay? All of this is true, but it is also true that the USA Patriot Act upsets the critical balance of power between law enforcement and big government versus civil liberties and our need to protect ourselves. Not only was the process outrageous, in which there were almost no amendments and no debate allowed. Let me assure you it wasn’t just that. It was the merits of the bill as well.
Two quick examples: the provisions of this bill were not necessarily tailored to the terrorism issue. For example, if you use a computer at work or here at the university and it turns out that you violated one of the rules of the university or an employer, under this bill the government can then come in to your dean or supervisor and ask to monitor the person who used that computer indefinitely, regardless of any evidence of criminal action, let alone terrorism. One other example I want to share is sometimes referred to as the "sneak and peek" provision, which is the ability of law enforcement, given by this bill in much broader circumstances, to be able, without giving you notice, to actually come into your house and look around without you knowing it, and not telling you until perhaps much later that they were there. This bill seems to take a very rare practice and makes it standard procedure in violation of our 4th Amendment protection against unreasonable searches and seizures.
But Senator Feingold, the bill sunsets in four years, and in four years we could get rid of these provisions. Tell that to the Japanese-Americans, Italian-Americans, and German-Americans who were incarcerated for years in World War II. Tell them its okay to violate the Constitution for four years and then stop. It’s not okay.
[But] ... what about the spirit and the necessity of this time of unity? Well, I submit to you that unity is not the same as unanimity, certainly not in a democracy and, especially -- especially when the fundamental protections of the Bill of Rights are at stake.
These are the kinds of times when we
"If we lived in a country that allowed government to hold people in jail indefinitely only based on what they write or think, or based on mere suspicion that they were up to no good -- then, no doubt, no doubt, the government would discover and arrest more terrorists. But that probably would not be a country in which people would want to live. That would not be a country that we could, in good conscience, ask our young people to fight and die for. That country would not be America."
have made serious mistakes in the past. Our national consciousness still bears the stain and the scars of those events: the Alien and Sedition Acts; the suspension of habeas corpus during the Civil War; ... the internment of Japanese-Americans, German-Americans and Italian-Americans during World War II; the blacklisting of supposed communist sympathizers during the McCarthy era; and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King, Jr., during the Vietnam War. We must not allow these pieces of our past to become prologue. Even in our great land, wartime has sometimes brought us the greatest tests of our Bill of Rights.
Of course, given the enormous anxiety and fears generated by the events of September 11th, it would not have been difficult to anticipate some of these reactions, both by our government and by some of our people. And, of course, there is no doubt, that if we lived in a police state it would be easier to catch terrorists. If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country that allowed government to hold people in jail indefinitely only based on what they write or think, or based on mere suspicion that they were up to no good -- then, no doubt, no doubt, the government would discover and arrest more terrorists. But that probably would not be a country in which people would want to live. That would not be a country that we could, in good conscience, ask our young people to fight and die for. In short, that country would not be America.
AN UNCONSTITUTIONAL ACT
Now, I know striking the balance is not easy, especially now. And I know that perhaps I could be wrong. In fact, during those first few hours after the attacks, I kept remembering a sentence from a case I studied in law school ... and these were the words: "While the Constitution protects against the invasion of individual rights, it is not a suicide pact." I took these words as a challenge to my concerns about civil liberties at such a momentous time in our history; that we must be careful not to take civil liberties so literally and allow ourselves to be destroyed.
But upon reviewing the case itself, Kennedy versus Mendoza-Martinez, I found, that Justice Arthur Goldberg had made this statement, but then he ruled in favor of the civil liberties position in the case, which was about draft evasion. He elaborated: "It is fundamental that the great powers of the Congress to conduct war and regulate the Nation’s foreign relations are subject to the constitutional requirements of due process. The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history -- for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action. The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." Justice Goldberg concludes, "In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution."
So this challenge of the balancing of our security and civil liberties, therefore, goes all the way back to our nation’s revolutionary generation and all the way to this day, to your generation. ... [To the audience] Help us avoid overreactions, and help us avoid gutting the very foundations of our nation.
ON RACIAL PROFILING
Originally, this issue was called driving while black, but then some Latino Americans said, "Hey, what about driving while brown?"
Originally, [racial profiling] was called driving while black, but then some Latino Americans said, "Hey, what about driving while brown?" Then we found out it wasn’t just about driving. What about walking around, or going through the airport?
Then we found out it wasn’t just about driving. What about walking around, or going through the airport? On September 11 we saw immediately ... that some of our Arab-American and Muslim citizens have had that same experience. On a Northwest Airlines flight, three Arab Americans cleared security, got on a plane and the passengers and the pilot voted them off the plane anyway. The CEO of Northwest Airlines -- and I give him great credit for this -- actually apologized directly to me for this unfair treatment given to his customers.
That is a very dangerous aspect of what’s going on. Some say the bill [the Conyers-Feingold legislation to ban racial profiling] is dead now. I say it’s not. These events will help us all understand there are differences between legitimate law enforcement and racial profiling. It is legitimate law enforcement for a police officer to pull over someone who matches the description of a suspect and is driving a car that the suspect was driving. It is not legitimate law enforcement to have 75% of the people pulled over on the New Jersey turnpike be African-American without probable cause or even reasonable suspicion. That’s racial profiling; that’s not law enforcement. And the same thing goes for Arab-Americans and Muslim-Americans. Do not give in to this idea that we now need this practice in post-September 11th America.
ON THE DEATH PENALTY
The second issue [in addition to the effort to ban racial profiling] is the movement to abolish the death penalty in the United States. I oppose the death penalty in all cases and in 1999, I introduced a bill to abolish the death penalty and I only got one cosponsor, Senator Carl Levin of Michigan. We cannot allow the spectacle of constant executions, especially in places like Texas, be swept under the rug simply because we’re facing a national crisis. We know that already over 90 individuals who were on death row have been released [note: the number of death row inmates exonerated has since climbed to over 100]. And we should shudder to think how many people have been sent to their deaths who were innocent. I fear if we don’t keep the focus on the death penalty, many more mistakes will be made. At the minimum, we have to enact the legislation, get a few more cosponsors to pass a national moratorium on the death penalty in all states in this country, and at the federal level as well. •
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