University of Virginia’s Symposium on Wartime Politics -- Sunday, April 14, 2002

I’m so pleased to be here at the University of Virginia, an institution that has a rich and storied past, and makes such a tremendous contribution to higher learning in our country.

The issue you have been examining through this symposium, politics in a time of war, offers an invaluable perspective on the situation of the United States today.

Times of armed conflict create a complicated political context; the need both to preserve our liberty and heighten our security pose real and difficult challenges in a democracy like ours. I know in this symposium you have not simply discussed wartime in the context of the current conflict in Afghanistan.

You have looked to history to inform our understanding of the working of American politics in the last seven months. I think that is not only useful, but necessary if we are to understand the implications of the actions we take as a nation in response to the tragic events of September 11th.

There is no way to overstate the sense of grief and anger that all of us felt at the attacks on the World Trade Center and the Pentagon. We all also had our own initial reactions, and my first and most powerful emotion was a solemn resolve to stop the terrorists. And that remains my principal reaction to those terrible and tragic events.

In those first days after September 11th, I turned to history as a guide about how the Congress should respond. In fact, by sheer coincidence, about a month before September 11th, I had introduced a bill that related directly to the legacy of wartime politics. On August 3rd, 2001, I introduced a bill to set up a commission to review the wartime treatment of Germans, Italians, and other Europeans in the United States during the Second World War.

That bill came out of heartfelt meetings in which constituents from my home state of Wisconsin told me their stories. They were German-Americans, who came to me with some trepidation. They had waited 50 years to raise the issue with a member of Congress. They did not want compensation. They came to me with some uneasiness. But they had seen the government’s commission on the wartime internment of people of Japanese origin, and they wanted their story to be told, and an official acknowledgment as well.

Many Americans are by now aware that during World War II, under the authority of Executive Order 9066, our government forced more than 100,000 ethnic Japanese from their homes and into camps. But I think many Americans are surprised to learn that, to this day, more than 50 years after the Second World War, there has been no official recognition of the ordeal of thousands of German Americans during and after the Second World War. There has been no justice for innocent ethnic Germans living in America who were branded ``enemy aliens'' by their own government. The U.S. government limited their travel, imposed curfews and seized their personal property. Thousands were interned in camps, often separated from other members of their family, living in miserable conditions. Many of these families, including American children, were later shipped back to war-torn Europe in exchange for Americans held there, and suffered terribly.

And there has been no justice for European Latin Americans, including German and Austrian Jews, who were actually repatriated or deported to hostile, war-torn European Axis powers, often as part of an exchange for Americans being held in those countries.

The legislation that I have introduced proposes an independent commission to look at U.S. policies during World War II, including the policies regarding German and Italian Americans, and European Latin Americans.

Now some may say, indeed we may hope, that today we have come a long way since those days of infringements on civil liberties. But there is ample reason for concern. I have been troubled by the potential loss of commitment to traditional civil liberties in the past seven months, and how these infringements on our liberties echo the mistakes in our nation’s past.

As I have said, my first and most solemn resolve is to fight terrorism. But for the past to truly inform the present, we must take seriously the lessons that history has taught us. That is why the first caution I issued from the Senate floor following the attacks was that we must continue to respect our Constitution and protect our civil liberties in the wake of the attacks. As the chairman of the Constitution Subcommittee of the Judiciary Committee, I recognize this is a different world with different technologies, different issues, and different threats. Yet we must examine every item that is proposed in response to these events to be sure we are not rewarding these terrorists and weakening ourselves by giving up the cherished freedoms that they seek to destroy.

The second caution I issued was a warning against the mistreatment of Arab Americans, Muslim Americans, South Asians, or others who are perceived to be Arab or Muslim. Already, one day after the attacks, we were hearing news reports that misguided anger against people of these backgrounds had led to harassment, violence, and even death.

This second caution was informed by another piece of legislation I began working on prior to September 11th. Since early 1999, I have been working on another bill that is poignantly relevant to recent events: legislation to prohibit racial profiling, especially the practice of targeting pedestrians or drivers for stops and searches based on the color of their skin. Before September 11th, people spoke of the issue mostly in the context of African-Americans and Latino-Americans who had been profiled. But after September 11, the issue has taken on a new context and a new urgency.

Even as America addresses the demanding security challenges before us, we must strive mightily also to guard our values and basic rights. We must guard against racism and ethnic discrimination against people of Arab and South Asian origin and those who are Muslim.

We who don’t have Arabic names or don’t wear turbans or headscarves may not feel the weight of these times as much as Americans from the Middle East and South Asia do. But for these Americans, as for Japanese Americans, German Americans and others during the Second World War, wartime politics can have different and even dangerous implications.

These two pieces of legislation informed my approach to the congressional response to September 11th. That is why I found the antiterrorism bill originally proposed by Attorney General Ashcroft and President Bush to be so troubling, and why I cast the lone vote against that legislation in the United States Senate.

Protecting the safety of the American people is a solemn duty of the Congress; we must work tirelessly to prevent more tragedies like the devastating attacks of September 11th. But the Congress will fulfill its duty only when it protects both the American people and the freedoms at the foundation of American society.

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 the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists.

But that probably would not be a country in which we would want to live. That would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that would not be America.

Preserving our freedom is the reason that we are now engaged in this new war on terrorism. We will lose that war without firing a shot if we sacrifice the liberties of the American people.

That is why I believe that The Patriot Act does not strike the right balance between empowering law enforcement and protecting civil liberties. That does not mean that I opposed everything in the bill when it came before the Senate last fall. Indeed many of its provisions are entirely reasonable, and I hope that they will help law enforcement to more effectively counter the threat of terrorism.

For example, it was entirely appropriate to legislate that, with a warrant, the FBI be able to seize voice mail messages as well as tap a phone. It was also reasonable, even necessary, to update the federal criminal offense relating to possession and use of biological weapons. It made sense to make sure that phone conversations carried over cables would not have more protection from surveillance than conversations carried over phone lines. And it made sense to stiffen penalties and lengthen or eliminate statutes of limitation for certain terrorist crimes.

There are other non-controversial provisions in this law which I supported – those to assist the victims of crime, to streamline the application process for public safety officers benefits and increase those benefits, to provide more funds to strengthen immigration controls at our Northern borders, expedite the hiring of translators at the FBI, and many others.

In the end, however, my focus on this bill during the debate, as Chair of the Constitution Subcommittee of the Judiciary Committee in the Senate, was on those provisions that implicate our constitutional freedoms. And it was in reviewing those provisions that I came to feel that the Administration’s demand for haste was inappropriate; indeed, it was dangerous.

Our process in the Senate, as truncated as it was, did lead to the elimination or significant rewriting of a number of audacious proposals that I and many other members found objectionable.

For example, the original Administration proposal contained a provision that was dropped that would have allowed the use in U.S. criminal proceedings against U.S. citizens of information obtained by foreign law enforcement agencies in wiretaps that would be illegal in this country. In other words, evidence obtained in an unconstitutional search overseas was to be allowed in a U.S. court.

So the bill that the Senate passed, and that was ultimately signed into law, was certainly improved from the bill that the Administration sent to us originally. But again, in my judgement, it did not strike the right balance between empowering law enforcement and protecting constitutional freedoms.

Unfortunately, there are a number of examples I could offer where I believe this law violates our personal liberties. These are not the kinds of infringements that we can rationalize away, thinking that they might happen to people the public rightly or wrongly deems suspicious. They threaten the civil liberties of everyday people – in their homes, on their computers, and at their university library.

For instance, the computer trespass provision might permit an employer to give permission to the police to monitor the emails of an employee who has used her computer at work to shop for Christmas gifts. Or someone who uses a computer at a library or at school and happens to go to a gambling or pornography site in violation of the Internet use policies of the library or the university might also be subjected to government surveillance – without probable cause and without any time limit.

Another provision would greatly expand the circumstances in which law enforcement agencies can search homes and offices without notifying the owner prior to the search. The longstanding practice under the Fourth Amendment of serving a warrant prior to executing a search could be easily avoided in virtually every case because the government would simply have to show that it has “reasonable cause to believe” that providing notice “may” “seriously jeopardize an investigation.”

Just think about the possibility of the police showing up at your door with a warrant to search your house. You look at the warrant and say, “yes, that’s my address, but the name on the warrant isn’t me.” And the police realize a mistake has been made an go away. If you’re not home, and the police have received permission to do a “sneak and peak” search, they can come in your house, look around, and leave, and may never have to tell you.

Another provision that troubles me a great deal is one that permits the government under the Foreign Intelligence Surveillance Act, known as FISA, to compel the production of records from any business regarding any person if that information is sought in connection with an investigation of terrorism or espionage.

Now we’re not talking here about travel records pertaining to a terrorist suspect, which we all can see can be highly relevant to an investigation of a terrorist plot. FISA already gives the FBI the power to get airline, train, hotel, car rental and other records of a suspect. The Patriot Act allows the government to compel the disclosure of anyone – perhaps someone who worked with, or lived next door to, or went to school with, or sat on an airplane with, or has been seen in the company of, or whose phone number was called by the target of the investigation.

And under this provision all business records can be compelled, including those containing sensitive personal information like medical records from
hospitals or doctors, or educational records, or records of what books someone has taken out of the library. This is an enormous expansion of authority, under a law that provides only minimal judicial supervision.

Columnist Nat Hentoff has called attention to the fact that the law also prevents booksellers and librarians from disclosing that a search has been
conducted. The law states: "No person shall disclose to any other person ... that the Federal Bureau of Investigation has sought or obtained" these records.

The Capital Times, a newspaper in Madison, Wisconsin, recently wrote about this provision now that it has become law. The article quotes Barbara Dimick, director of the Madison Public Library, saying of the provision, quote, "We're real jittery. It puts us in a hard position. We want to tell people who use the library that records are confidential and they can use materials without fear of intimidation. That's being usurped now by federal agents."

At a university like this one, at the local Charlottesville library, or at the local doctor’s office, the FBI could compel personal and sensitive records of a person who came into the slightest contact with someone sought in connection with an investigation of terrorism or espionage.

These examples offer some idea of how the USA Patriot Act may threaten civil liberties not just of some distant person outside our acquaintance, but of someone we know, or someone here this afternoon. This anti-terrorism law highlights the march of technology, and how that march cuts both for and against personal liberty. Justice Brandeis foresaw some of the future in a 1928 dissent, when he wrote:

“The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. . . . Can it be that the Constitution affords no protection against such invasions of individual security?”

We must grant law enforcement the tools that it needs to stop the threat of terrorism. But we must give them only those extraordinary tools that they need and that relate specifically to the task at hand.

The words of Justice Brandeis, the stories of Japanese and German Americans, the incidents of racial profiling in our communities – we must draw on all these words, and these experiences, as we evaluate our approach to securing both our safety and our liberty in the wake of September 11th.

It is how we learn from that past that matters; how we move forward in a way that refuses to compromise our heritage of basic rights. So what can the past tell us about how to secure a future that is both safe and free? I think some of that answer is clearly to unite as a nation to combat terrorism, while adhering to the Constitution’s processes. I also think that another part of the answer comes not just from what we do here at home, but what we can do abroad.

As a the Chairman of the Constitution Subcommittee, I look our reaction to September 11th though the lens of preserving constitutional freedoms and being mindful of our past. As a member of the Foreign Relations Committee, and the Chairman of the Africa subcommittee, I look at the threat of terrorism with an eye to how we might change the future.

There are some crucial steps that government can take to combat terrorism.. But there is another crucial element that must be the charge of individuals Americans. That charge will be to introduce ourselves to the rest of the world, to at least have a hand in shaping the world's perception of America and Americans, rather than leaving that to propagandists eager to make America a scapegoat for their country's ills.

I had an opportunity to take up this charge in February, when I traveled to Kenya, Tanzania and Mozambique. I was able to respond to the reporter on Zanzibar - where the population is almost entirely Muslim - when he asked why our efforts to combat terrorism seemed to focus on Islamic states. I was able to tell him, clearly, that the U.S. is not hostile toward Islam, that we respect that great religion and are proud of our many Muslim-American citizens. I was able to talk to people in government, people in the political opposition, human rights advocates, legislators, doctors and lawyers and professors, about the fight against terrorism. I hope that, in at least some cases, I was able to counter misinformation and misunderstandings. I know that I came away with a richer understanding of Africa's stake in the global struggle.

I believe that the more Americans who are committed to reaching out across political boundaries – to communities of different cultures and to communities of different faiths – the more powerfully we can combat the forces of terror by robbing them of their sources of sustenance: suspicion and resentment and powerlessness.

In a time of conflict, we seek above all to secure our safety, and that instinct to protect ourselves will always be obeyed. But safety may not always be secured by turning inward, and security cannot be guaranteed by simply curtailing freedom. It is by seeking understanding abroad, and securing liberty at home, that we may ultimately preserve the safe and free American society that all of us cherish.

If the history of wartime politics teaches us anything, it is that measures that seem just, or at least permissible, in a time of conflict, can have damaging and lasting repercussions. The experience of German Americans and Japanese Americans during the Second World War offer a stark example of how deeply communities may be scarred by wartime politics, and how quickly freedoms may be curtailed when a threat is perceived.

While the lessons of history have not fully informed our response to September 11th, we have, I think, learned a great deal in recent months, about our strength as a nation and our faith in each other as Americans. Where our policymaking may have stumbled, our spirit has triumphed.

There is time yet to do the work that needs to be done, to restore freedoms.