Censorship, Detention, Surveillance: These Are The Times

What the ACLU of Wisconsin Has Been Doing Lately
A Report from Chris Ahmuty, ACLU/WI Executive Director

October 24, 2001

Since the horrendous events of September 11th, the ACLU and its members, just like other Americans, have been confronting a new set of realities. Civil liberties have rarely been discussed so much in the media or by average Americans. If only that discussion wasn't premised on the false notion that civil liberties and security are not compatible. In many forums the ACLU has had to step forward to call for a reality check. We're asking what will really work to make us truly more secure without making a scapegoat of civil liberties.

By coincidence, the ACLU's top leaders, including our new national Executive Director Anthony Romero, were meeting in Washington with ACLU supporters from around the country on September 11th. They recognized the importance of a thoughtful and principled response to the many anti-civil liberties proposals that arose almost instantly.

The national ACLU Legislative Office deserves a round of thanks from all ACLU members. The staff in Washington, D.C. under the direction of Laura Murphy instantly took up the fight for civil liberties not only on Capitol Hill, but in the national media. This resource was vitally important because the national ACLU headquarters office in lower Manhattan was closed for the week after the 11th and it was without telephone service or email for more than two weeks. Given Ms. Murphy's letters to Congress and ACLU legislative memos analyzing proposals, ACLU affiliates had high quality information with which to educate not only their states' Members of Congress, but the public as well.

Civil Liberties in the Heartland

At the state level ACLU affiliates have also had to respond. Here in Wisconsin we have thrown ourselves into this crisis for our country and for civil liberties.

The issues facing us in Wisconsin have come in waves. Different rights have surfaced as concerns in a predictable fashion over time.

Initially, concern for the hijackers' victims mixed with concern for the ACLU employees in New York, many of whom travel through the World Trade Center on the way to our office. Fortunately, no ACLU staffer was injured, and tragically our concern turned to the injured and the survivors of those who died out East.

Then given America's history during times of crisis, the ACLU/WI's attention turned to those Wisconsin residents whose rights and well-being were also in jeopardy - namely Muslims, Arab-Americans and South Asians, including Sikhs; those innocent Wisconsin residents who might be the object of misplaced rage. Beginning on the 12th the ACLU/WI phoned some of our contacts in these communities. We discovered that contacts we've had for years and years were not with the current generation of leadership. So we established additional contacts and were relieved to hear that while there was considerable fear and apprehension among many initially, there were no instances of hate crimes in Wisconsin. Still we knew that harassment and other forms of discrimination were occurring. Indeed, the ACLU/WIF's Legal Director Micabil Diaz witnessed a pick up truck driver on a Milwaukee expressway make an obscene gesture toward a van filled with Muslim women and girls.

On September 21st at the Islamic Society Center in Milwaukee State Senator Gary George (D-Milwaukee) held a Judiciary Committee hearing on racial profiling. Coincidentally, the hearing had been scheduled weeks before September 11th. The hearing was held before a large crowd and nearly all the Committee's members were present. Senator George expanded the scope of the hearing to take testimony not just on the racial profiling bill co-sponsored by Senator Gwen Moore and State Representative Leon Young, but also on racial, ethnic or religious harassment, including "vigilantism" as Senator George put it.

Because racial profiling is one of the ACLU of Wisconsin's top legislative priorities I would have been testifying at the hearing in any case, but when I testified two interesting things happened. First, based on our long experience fighting the racial profiling of motorists and airline passengers, I was able to credibly point out that racial profiling is a bad law enforcement practice that won't make us any safer. If there is reasonable suspicion that a crime has occurred or is about to occur then race is appropriate as an identifier. However, profiling to prevent crime doesn't work as we know from the so-called "War on Drugs." Second, when I was done with my testimony, I went to the Islamic Center's office to call a taxi, but the folks in the office insisted on producing one of the cab drivers who was at the Center and on giving me a free ride back to the ACLU/WI office. Once again, people had discovered that it's good to have the ACLU around, because you'll never know when you may need its support. From our perspective, it's gratifying to be appreciated.

Out of Sight and Out of Mind?

At the hearing some testifiers expressed concern about the way the FBI was pursuing its investigation - but at that time no one had specific government abuses to report. However, even before the hearing we were troubled by the unprecedented secrecy with which the investigation into the hijackings was occurring. For instance, two local attorneys alerted us to the fact that INS detainees in the Waukesha County Jail were prohibited visitors, including visits from their lawyers. We naturally confirmed this information with the Jail. Then ACLU/WIF Legal Director Micabil Diaz contacted local immigration attorneys before calling the INS Regional Office in Chicago. Mike learned that the INS imposed the ban on visits on September 11th via a verbal directive.. Supposedly the ban was to last a day or two, which is reasonable enough even though none of the INS detainees in the Waukesha County Jail had anything remotely to do with the investigation (most had Hispanic surnames). However, because of mis-communication, an oversight, or some other reason, the ban wasn't lifted until September 18th - the day we called the jail. Whether our calls had anything to do with rectifying this foul up, we'll never know, but the incident does illustrate how someone has to hold even well intentioned - but secretive - bureaucrats accountable.

Individuals as well as bureaucrats have to know the law, if they are to be responsible citizens. If innocent Muslims and Arab-Americans do not understand their rights, they may not be willing or able to exercise their responsibilities to cooperate with investigators. That's one reason the national ACLU produced a new eight panel brochure entitled "What to Do If You're Stopped by The Police, The FBI, The INS, Or the Customs Service." In question and answer format, it's intended audience consists of non-citizens. The ACLU of Wisconsin immediately printed off a large quantity and has been distributing them through community and student groups and lawyers.

State Legislation

If only Wisconsin state legislators had as good an understanding of civil liberties as some non-citizens. Unfortunately, the ACLU/WI will be monitoring and opposing some so-called "anti-terrorism" proposals in the Wisconsin Legislature. State Senators Welch and Zien and State Representative Huebsch have announced that they will introduce legislation to provide for the death penalty for "terrorists" in Wisconsin. Senator Zien says it will be a deterrent. Tell that to a suicidal hijacker.

The Wisconsin Attorney General has announced that he will be introducing a series of anti-terrorism measures, which are likely to be more serious. The ACLU/WI will carefully evaluate each proposal from a civil liberties stand point once bills are drafted. As with federal legislation, we will agree to proposals only when they will truly and constitutionally make us safer, not just because the proposals are labeled "anti-terrorist" measures.

Engaging in Dialog

The ACLU/WI's main emphasis has been public awareness around post-September 11th issues for all communities in Wisconsin. The ACLU of Wisconsin has been trying to influence the debate about what to do next in a host of ways.

The number of media requests for comment has been phenomenal. We have carefully tried to avoid commenting on wild speculation. Even so, we've had plenty to say about the real impact of the horrendous events of September 11th. The ACLU/WI like national ACLU and affiliates across the country has tried to be a voice for calm deliberation.

The ACLU/WI has given (often live half hour or hour long) interviews on radio and TV stations including: WMCS (Milwaukee), WHAD (Wisconsin Public Radio statewide), WOJB (WPR - Reserve), WORT (Madison), WIBA (Madison), WIZM (LaCrosse), all the Milwaukee TV stations and TV13 in Eau Claire. I appeared on the premiere show of "Inside View" on public television in Milwaukee along with a former agent in charge of the Milwaukee FBI office.

The print media has been insatiable. One of the best opportunities to get our message out was a September 23rd op-ed piece in the Sunday Crossroads section of the Milwaukee Journal Sentinel. This commentary can be found on our web site at www.aclu-wi.org.

JS Online commentary link: "Preserving liberties is hard, but necessary, work"

New content on our web site has gone up. The statistics recording traffic on the site tell an interesting, if somewhat, ambiguous tale. Immediately after September 11th web traffic to our site virtually ceased, presumably as people were glued to their TVs. Then beginning the following Monday traffic started to increase steadily so that now the average number of hits daily has increased by more than 75% and the number of visits by nearly 50%.

Out and About

In the real world as well as the virtual world, the ACLU/WI has been seeing many people. Audiences even weeks after September 11th are enthralled. Some previously scheduled meetings changed their programs to be relevant. For instance, the Legal Association of Women in Madison invited Frank Tuerkheimer from the UW Law School and me to speak about terrorism and civil liberties at its monthly meeting. Attendance was double the usual number - up to about 75 lawyers.

Another example was the much more ambitious event put on by the Wisconsin Academy for Sciences, Arts and Letters - their Bill of Rights Forum. Planned long before September 11th this two-day conference in Milwaukee responded to events by asking some presenters, such as Attorney General Jim Doyle and Senator Russ Feingold to comment on responses to the hijackings. Organizers asked me to fill in for a panelist at the last moment. And, an additional four member panel was put together specifically on that topic for Saturday morning. Greg Nojeim, Associate Director of the national ACLU's Legislative Office, and ACLU/WI Board member Athan Theoharis, an historian from Marquette University who has studied FBI surveillance, represented the ACLU extraordinarily well on the additional panel.

The ACLU/WIF's Legal Director Micabil Diaz also helped to put on an urgent special seminar on "Immigration Law (and its Consequences) in a War on Terrorism." A special committee of the Federal Defender Services of Eastern Wisconsin, the ACLU/WIF, the National Lawyers Guild, and the Wisconsin Public Defender put on this seminar on October 12, which drew nearly 50 lawyers.

And additional programming is in the works. For instance, on Thursday, November 15th the Milwaukee Area Chapter will be sponsoring a panel discussion on "Keeping America Safe and Free in Times of Crisis."

Watch What You Say Is No ACLU Watchword

It was inevitable that First Amendment rights would be implicated. In some cases old police practices were given a new urgency, such as the practice of the Milwaukee Police Department to videotape most peace, labor and social justice demonstrations.

The Pledge of Allegiance also has become an issue because coincidentally a new law has just gone into effect in Wisconsin expanding its use. The law requires public and private schools to offer the Pledge or the National Anthem daily in grades K-12. Fortunately, the law contains a provision making participation voluntary for any student. Because of this broad exemption the ACLU believes that the law is probably constitutional. The real question then is an educational one: how can educators use this requirement to teach their students about free speech in a democracy? Several teachers (and even a school district attorney) have contacted the ACLU/WI on this issue and we are trying to respond with our best possible suggestions.

And the Beat Goes On

If rising civil liberties issues have come in waves since September 11th, then perhaps the ongoing program of the ACLU/WI is a strong current. But it is a current not so strong as to be unaffected by September 11th.

For instance, the ACLU/WIF is co-counsel in the challenge to the awful conditions at the Supermax prison in Boscobel, Wisconsin. The litigation team is comprised of Ed Garvey and other private attorneys from Garvey & Stoddard of Madison, Attorney David Fathi of the ACLU's National Prison Project, Micabil Diaz from the ACLU/WIF, Dean Howard Eisenberg of Marquette Law School, and Attorney Robyn Shellow of Milwaukee. The team, besides writing motions and other pleadings, has been gathering evidence to prove that conditions at the Supermax constitute cruel and unusual punishment. Not only did the team have to take the events of September 11th in stride, they had to find a new expert witness, because one of experts whom we had lined up refused to fly any time in the foreseeable future. Fortunately, the case has remained on track. In fact, on October 10th Judge Barbara Crabb of the Federal Court for the Western District of Wisconsin, granted most of our requests in our motion for a preliminary injunction.

Another strong current at the ACLU/WI is our work with young people. On September 27th the ACLU/WIF's Youth and Civil Liberties Council went ahead and presented Youth Government Day II. This all day event at UW-Milwaukee was designed to raise the high school students' awareness of our government and the role of civil liberties. More than 150 high school students from the Milwaukee area attended. In preparing for YGDII the planners spent some extra time with the facilitators of the many sessions given the questions the students were likely to have. The event was a success where the importance of educating young people about the value of civil liberties and our government was reaffirmed. In the long run - this kind of work will be necessary to ameliorate the damage done to civil liberties in times of crisis.

No one knows the full impact of September 11th on civil liberties and American Freedom in the long run. Much will depend on how we response as a nation, as institutions, and as individuals and families. We can debate why the hijackers may have attacked us, but it is highly unlikely they had any regard for the rule of law in a constitutional democracy. As civil libertarians who do believe in American values, we have to take up the burden of defending freedom. In the months ahead we can reconcile increased security and civil liberties, if we wish. It will be the ACLU/WI's job to remain true to its mission so that our constitutional system will remain strong.

We Will Celebrate Again

We've held our own since September 11th. The 24th Annual Bill of Rights Celebration will be held on Saturday evening, January 19, 2002 in Milwaukee. ACLU national Board President Nadine Strossen will be our speaker and we'll see if Senator Russ Feingold can join us. We anticipate by January 19th we will be in a mood to commiserate, if not, celebrate.

As always your comments are welcome.

Since September 11th ACLU has sent out a few email alerts, e.g. on Congressional matters. Even in times of crisis we're careful not to overburden you with email. If you'd like to receive a limited number of updates and alerts from ACLU, you may email me at Liberty@aclu-wi.org.

Chris Ahmuty
ACLU of Wisconsin
Executive Director