For much of the nation, National Security Agency leaker Edward Snowden’s revelations about massive government surveillance of U.S. citizens came as a shock. For American Civil Liberties Union (ACLU) president Susan Herman, they were vindication. In 2010, while many of the latte liberals who pay ACLU membership fees were still reveling in the election of Barack Obama, the supposed anti-Bush, and Edward Snowden was still gainfully employed, Herman was busy penning a book warning us that the new president had done little if anything to reverse the expansion of government powers that began with the passage of the PATRIOT Act under Bush. When Herman made that argument, she was issuing a wake-up call to her base as much as anyone else.
If her book came too early in Obama’s first term to rouse folks from their post-election reverie, the alarms sounded by Edward Snowden might do the job. It’s a point Herman makes in a new foreword and epilogue included in the paperback release of Taking Liberties: The War on Terror and the Erosion of American Democracy, which the Centennial Professor of Law at Brooklyn Law School will be promoting when she delivers a talk hosted by the Santa Barbara Chapter of the Southern California ACLU in Goleta on March 13. It’s also a point she made in a joint interview with The Santa Barbara Independent and Mission & State.
It became clear during the course of the interview that some of the most pressing concerns in Santa Barbara County — overcrowded prisons, expanding police powers, immigration policy — reflect conversations that are taking place at the national level. And the impetus for reform in all these areas cuts across traditional party lines. This is crucial, because, with hyper-partisan elected officials dug into their trenches, if change is gonna come, it’s gonna come from the people. What follows is an edited version of a wide-ranging discussion with Herman in which she elaborates on that and much more.
Let’s do the housekeeping first. Are there any additions to the paperback version of the book? I have a new forward and a new epilogue. I actually started writing this book about halfway through President Obama’s first term, because I found that a lot of people thought that all of the problems of the PATRIOT Act and everything they had been worried about during the Bush era had all gone away because now Obama was president.
One of the things I’ve been saying is that people seemed to have hit the snooze alarm until Edward Snowden came along. The chief point of the book was to talk about the impact of all these anti-terrorism measures on ordinary Americans. That is one message — that this hasn’t changed just because we have a different president. The second message is that this is not just about people in Guantanamo, terrorists … So, I don’t talk Guantanamo, or torture. I do talk about the things that really affect us.
It’s really about us, and it’s about how the government has really changed so many of the things that we used to think were our rights. And I think that one reason why this is so important is that we are at a moment right now where it is actually possible that there might be some change.
Has the post-9/11 landscape and the PATRIOT Act really defined an organizing principle for the ACLU in terms of its current mission? It’s been tremendously important. We have a number of priorities, and it’s sort of like Sophie’s choice to say which is the most important. We also have a major campaign on now about over-incarceration; we’re very concerned about the inequality and discrimination. But the national security issues have really been a major part of what we’ve been trying to look at and to accomplish since 9/11.
Given the politicized nature of court appointments in recent times, is the legal system still a reliable forum in which to fight civil liberties issues? That’s a great question, and I think it’s probably something I’d like to talk about at this event. The ACLU has always regarded going to the courts and litigation as one of our most important tools. And that’s really had tremendous successes in promoting civil liberties and discrimination, but there’s been a particular problem challenging government surveillance measures in the post-9/11 government surveillance [era], because, for one thing, the courts have not been willing to hear a lot of the claims that we want to make about why some of this surveillance is unconstitutional.
So, the courts have this standing doctrine, and what they say is that you don’t have standing to challenge a covert surveillance program unless you can prove that the government has subjected you to covert surveillance. We’ve had some successes, but the Supreme Court in a major case, Goldclapper v. Amnesty International, ruled that our plaintiff did not have standing to make the claims that they wanted to raise. So, we’re trying again.
Explain the legal concept of standing? Standing is a legal doctrine, and what it says is, the courts don’t hear all complaints from everybody. And the Catch-22 in challenging covert surveillance is that if the government doesn’t tell you that you’re under surveillance, you can’t then challenge the program. Reporters, journalists, scholars who are writing books find that they can’t get people from other countries to talk to them about what’s happening in their countries, because they’re afraid that the government is going to be listening in. So one of the concerns that we have is that it really changes who we are as a culture to know that the government is able to watch so much of what we do.
How do we draw the line at what’s too much surveillance? How do you interpret what the Constitution teaches us? My No. 1 answer is that when we talk about we drawing the line, we should be drawing the line. It should not be the president, in secret. So, the fact that we know more about what the government is doing enables us to have a conversation about what you say is a difficult issue. But the fact that for the past seven years we have not been part of that conversation, because we didn’t know what the government was doing, I think that itself is a threat to the Constitution.
My second response is that, of course, the government should be able to do things to fight terrorism. But, with all the surveillance going on, I think you have to look at both sides of the costs and benefits. I think there are greater costs here to all this massive surveillance than people have been thinking about. That gets to the “Why should I care?” question. So, what I would like people to have more information about and think about is, What, really, are the costs to our constitutional value? People tend to think of this as only about our privacy, but I think a lot of our constitutional value is at stake on one side.
Now, on the other side, the basic idea of the PATRIOT Act is, “Let’s just give the government lots and lots and lots of tools, because if they have all these tools, maybe they’ll catch a terrorist.” But after a dozen years, I think that it is appropriate to start looking seriously at whether any of this has been effective. There’s been a lot of questions about whether this massive surveillance by the NSA is accomplishing very much at all.
It’s only if you can really look at both sides of that equation that we can start coming to terms with the decision of how we really want to draw that line.
There are a lot of esoteric arguments against the expansion of powers that you speak of, and they come out when people use words like “values.” Is it tough to harness action around such soft things as values and constitutions when people might still feel threatened, and also when people might say, “Well, you know the government’s always been doing this; now we just have it out in the open”? People have not tended to feel mobilized, to really look hard at what the government is doing, because they think that only soft values are at stake. But I think that’s not true. One of the things that I try to make available in my book is ways for people to know that it does make a difference, and it is about them … I mean, how many people have you heard joking that the NSA is watching? I think it really changes who we are as a society in a profound way. It’s really about who we are as a society.
The second thing, in terms of mobilizing people right now, I think people were very upset about Edward Snowden’s revelations, and people are beginning to think more, think about what it is we unleashed a dozen years after 9/11. I think we’re in a better position to evaluate what actually might be effective and what might work.
But the other thing that’s going on is that there’s a very interesting ally to civil libertarians these days, and that is business. It turns out that all of this NSA spying is very bad for the American telecommunications and Internet businesses. For one thing, there are other countries that are beginning to question whether they really want to use American-run services. I’ve read that there’s a threat that we could lose billions of dollars a year if Israel and France, or whoever, decide to have their own Internet and telecommunications developed and don’t use American companies.
Changing gears a bit, in California, we’re seeing a major shift in our jails and custody operations with the AB 109 realignment. What are you noticing in terms of who we incarcerate and the trends of the court systems in levying those sentences? I think there is something of a sea change in the political landscape on the issue of over-incarceration, and I think part of that has been because of economics. A number of states are beginning to wake up to the fact that it is not a good bargain to take money that you could be spending on education and spend it instead on prisons. If you spend money from a state budget on education and on keeping kids in school, and having them succeed in school, they will be less likely to go to prison.
When people don’t have the money to spend on a failed policy, they’re going to be more likely to look at the failed policy and think of something better to do.
Does that sea change in terms of the punitive state extend to other aspects of what you might put under the umbrella of the security state we’ve been in? Do you think there’s a larger cultural change going on in questioning some of these values? I think we would have to talk a lot more on whether there are overarching connections, but what I see in the national security area is really quite different. Because the whole premise has been that it’s not about punishment, but it’s about prevention. And that is a very different idea from the criminal justice system — that you’re not waiting for someone to commit a crime and then punishing them, but you’re attempting to figure out who might commit a crime so you can lock them up. And I talk about that in my book, about the material-support laws that try to punish people who haven’t really done anything, so I think that it’s a different kind of problem.
I would say that it’s very timely to be having these discussions. Partially because of Edward Snowden’s revelations, there is now, certainly in both Congress and the White House, there’s a lot of consideration going on now about what we should change and how much. And there’s a real possibility that we’re going to get some new legislation that will amend the PATRIOT Act powers, and there’s a real possibility that the president will cut back on the surveillance program that he’s been using. But I think that’s not going to happen unless their constituents weigh in, and we’re not going to be able to do that unless we have the information. That again is why I’m so eager to really talk to people about these issues, just so that people can get as much information as would be useful in making up their own minds so that they can be part of this whole; it should be a very public conversation.
Is the ACLU concerned with issue of equal education as a civil right? The federal courts have not been very open to those arguments, so what we’ve done — because the ACLU has affiliates in all 50 states — is where the federal Constitution is not useful, we work with state constitutions. We’ll lobby legislatures, whatever is going to be effective and accomplish the goals.
Separate-but-equal is one thing, but not-separate but unequal is also a very important issue … Now, unfortunately, even though there’s no formal racial segregation anymore, there are a lot of schools that are still effectively segregated, or that have a lot of poor children that are not equal. So, I think that separate-but-equal was the idea that if you wanted to have racially segregated schools, at least they should be of equal quality. [Brown v. The Board of Education, Topeka, Kansas] was about tearing down the racial divide, but it’s not something that made enough of a difference in terms of the quality divide.
How do we go about cleaning up or making sense of our nation’s immigration policy? The ACLU does support some immigration reform. We think that people should have a path to citizenship. We have an immigrants’ rights project, which in California is based in San Francisco. We very much believe that immigrants should not always be treated as if they have no rights whatever. We think there are many different contexts in which we look to reduce the level of discrimination against immigrants.
We had an officer-involved shooting here in Santa Barbara, and what was really striking was the difficulty of getting access to information about it. There’s a lack of an independent oversight committee. Are you noticing that on a larger scale? I think it’s really interesting and important for people to know that problems that appear locally also appear all over the country. We just had a board meeting in Phoenix where we just won major lawsuits against [Maricopa County, Arizona] Sheriff Joe Arpaio and his style of policing.
What you were saying before about the problem of too much executive power being a very big problem at the federal level and the local level — the issue of oversight is built right into the Constitution. The president isn’t supposed to act all by himself and make a policy decision without Congress and the courts. We just find a wide variety of issues all over the country that very often, whether it’s an executive or a mayor or sheriff, [the executive] will just want to make all the decisions. And I think one of the essential ideas of the Constitution is that that’s not a good idea. It’s very good to have some checks and balances.
Speaking of Arizona, the big news the other week was the Arizona governor [Jan Brewer] vetoing what would’ve allowed businesses to discriminate against homosexuals. How do you explain us getting to a point where a bill like that could actually get to a governor’s desk? Another thing I’ve done as president of ACLU is, I encouraged our communications department to create a major program around Constitution Day. Now on September 17, I don’t know if you knew this, this is Constitution Day. Every school that accepts federal funding is required to do a program about the Constitution … to me, that’s where our main work lies, because I think that there are a lot of people who really don’t know what’s in the Constitution.
To give you one example, a recent poll shows that 51 percent of people polled believe that the U.S. was created as a Christian nation. Whereas our fundamental DNA in the First Amendment is that we have the right to choose our own religions. So I think that one reason that laws that infringe on people’s liberties come into being is that there hasn’t been enough education about the Constitution and about these fundamental values — very often those are not about what a majority of people think, but about what somebody who feels differently can do. So the whole idea of the First Amendment to me is about minority rights. That even if most of my neighbors are Christians, if I am a Muslim, if I am a Jew, if I am a Buddhist, I have the same right to have my religious choice respected.
And it seems to me that what happens in a place like Arizona is that people talk to their neighbors, and they all agree with each other about what the right things to do are, and they haven’t thought through what it would feel like to have a different point of view. And for some reason it’s just basically lack of empathy, or the Golden Rule.
And I think that’s where these juggernauts of legislation that come along, where people say, “Well, everyone I know agrees with this, this is fine,” and they just, they haven’t thought through enough about our fundamental idea that we’re a pluralistic country and that people should have the right to make their own decisions, instead of having the government, or most of their neighbors make their decisions for them. So, that to me is just the genesis of so many bills that do limit people’s rights or discriminate.
Now I think what happened in Arizona is very encouraging, because, first of all, I think there’s been an amazing sea change of views about who lesbians and gays are. Ten years ago it was unimaginable that the courts would be deciding this many cases in favor of not discriminating against people who are lesbian and gay. It’s really amazing what’s happened. But I think the other element, the other thing that’s happened in Arizona was the economics went along with the civil liberties. It turns out that people who are gay and lesbian spend money.
In what direction are you trying to steer the ACLU? Our mission is very broad, and we do work in a number of areas in equality and justice, democracy and freedom, and our mission will continue to be to represent the fundamental values of the Constitution. Our slogan is “Freedom can’t defend itself.” And we are coming up on our 100th anniversary in 2020, and we’re really thinking a lot about your question, because our idea is that because our Constitution is so fundamental to who we are, it’s important that the ACLU — as an organization that is devoted to making sure that those constitutional ideas remain alive — it’s really important that the ACLU should be a permanent fixture of the American landscape.
I wrote this book after I became president of ACLU, and one reason that I did that was to use the platform to try to speak to more people about what the ACLU does. National security is a very important issue to us, but I think that what happened was that after 9/11, in watching all the power beginning to flow to the president without any checks and balances, there were a number of people who became very alarmed about that, and the ACLU membership really soared as more and more people were convinced and really wanted us to push back. And what I said about what happened after 9/11 was that people were really beginning to understand that the kinds of things we had been saying all along were right.
So, to me, speaking about our assumptions about how we should just trust the government to do whatever was going to keep us safe, and we shouldn’t really worry about our rights, and we don’t have any privacy anyway, and why should I care if I’m not doing something wrong — those are the fundamental reasons why, throughout our history, we have allowed people’s rights to be violated. I think that, fundamentally, people really have to feel committed to who we are as a society. Sometimes I think it’s also important for us to rise above our personal day-to-day routines and think about who we are as a society and what kind of society we’re going to be made into in future generations.
We should still be able to dissent, is that what you’re saying? Exactly. Dissent is always patriotic. That’s where we started out, you know, with World War I dissent that, even if somebody wanted to stand up and say there shouldn’t be a draft, the government can’t say, “Oh, well, that’s really a dangerous idea. We’re fighting a war, and therefore we get to lock you up for saying there shouldn’t be a draft.”
The American Civil Liberties Union SoCal Santa Barbara Chapter spring forum presents Susan Herman, president of the American Civil Liberties Union, in a talk “Government Surveillance, Secrecy, and Retaliation against Whistleblowers: Civil Liberties in the National Security Era” on Thursday, March 13, 7 – 9 p.m., at Embarcadero Hall, 935 Embarcadero del Norte, in Isla Vista. The event is free and open to the public, free parking, wheelchair accessible.
Alex Kacik contributed to this story.