Civil Liberties In Times of Terror
Speech By Justice Richard B. Sanders

Delivered March 9, 2002
Washington State Libertarian Party Convention
Bellevue, Washington


I have just been handed an urgent message: “This is a terrorism alert.” Please however keep your seats. I know you are afraid, but try to act normal. Finish your desserts. As our President said: “A terrorism alert is not a signal to stop your life. It is a call to be vigilant.” I cannot tell you when, where, how, or if it will happen: only to be vigilant. It is said in times of terror we must trust our government. Trust me, my friends, I am from the government.

Attack on Freedom

We have often heard “eternal vigilance is the price of liberty.” As I speak, our government says it is fighting a war for freedom, “Enduring Freedom” it calls it, not only in Afghanistan and many other countries but right here at home. But frankly I am not optimistic the battle for freedom will be won if left only to the government. Freedom needs our help, especially in these days. To quote that great sage of the American scene, Clint Eastwood, “Abuse of power isn’t limited to bad guys in other nations. It happens in our own country if we’re not vigilant.”

But you need not take my or Dirty Harry’s word for this, let us harken to the words of our leader and Commander-in-Chief, President George W. Bush. On September 11, 2001, he told us, “Freedom itself was attacked this morning by a faceless coward, and freedom will be defended.” In his speech to the Joint Session of Congress on September 20, 2001, he told us, “I ask you to uphold the values of America, and remember why so many have come here. We are in a fight for our principles and our first responsibility is to live by them.” And then he added, “The advance of human freedom . . . now depends on us.”

Yes, Mr. President, I agree. It does depend on us.

And when you said on October 1, 2001 that “I also want to talk about the battle we face, the campaign to protect freedom . . . .” I join you as well. In fact I want to do just that, right now.

Role of Judiciary to Preserve Freedom

Mr. President, our founding fathers believed that judges have a role to play in the fight to preserve freedom. James Madison said judges would be an impenetrable bulwark against every excess of the legislative and executive branch when it comes to protecting those liberties secured to the people by the Bill of Rights. And Hamilton wrote in The Federalist Papers that the judiciary, as a separate and independent branch of government would be a force to protect our legal rights from anyone who would take them away and protect our constitutional rights from infringement by our own government as well.

Mr. President, I think the judiciary is a valuable resource in the struggle to protect freedom. We should use it.

Warrantless Searches Incompatible With Freedom

For example, if there is probable cause to believe a passenger or someone else in an airport is engaged in criminal activity or has evidence of a crime on his person, the law allows authorities to seek a search warrant from an independent judiciary. However it is a first principle that the Fourth Amendment prohibits unreasonable or warrantless search and seizure. This is a principle worth fighting for. And Governor Locke, our state constitution speaks of our right to privacy in even stronger terms. Its text makes no exception for those who drive their cars on ferryboats when it comes to warrantless and random searches.

And then there is a suggestion that we be compelled to carry national identity cards. I see no enumerated constitutional power to implement this. However this practice, if it comes to pass, will not seem strange to Russians who are still required even after the fall of communism to carry internal passports on their persons at all times.

No Declaration of War

Another first principle: The Constitution requires that war be declared only by Congress, not the President acting on his own. After the Japanese attacked Pearl Harbor President Roosevelt followed the Constitution and asked Congress for such a declaration. And he got it. He did it the old fashioned way.

Times have changed but the reason behind our Constitution has not.

Our founding fathers did not view war lightly. They fought and survived a very bloody war. They knew the terror of war, the cost of war in lives and fortune, in human suffering, in injustice to the innocent. James Madison explained the meaning of this principle embedded in our Constitution:

Of all the enemies to liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The Constitution expressly and exclusively vests in the Legislature the power of declaring a state of war [and] the power of raising armies . . . . A delegation of such powers [to the President] would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments. The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.[]

We remember with shame the imprisonment of American citizens of Japanese ancestry by President Roosevelt under the war powers. And we must be concerned that a poll taken shortly after the events of September 11, 2001, revealed that fully one-third of our fellow citizens would support imprisonment of Arab Americans as we once did the Japanese Americans. Mr. President, our founders knew the popular passions of war, and the sometime political advantage of it. But as you said, principles must come first. We must heed the warning of Alexander Hamilton:

Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of less free.[]

And when we say we are fighting a war on terrorism, let us never forget the terror that war brings, lest by our actions we do not multiply terror rather than bringing the terrorist to justice.

Justice System Protects the Innocent

Justice and law are found in the courts. It is true, not every criminal is brought to justice. But not every war finds the criminals either. Our justice system reserves punishment for those who are proved guilty to the satisfaction of a jury of their peers, in open and public court, after they have been accorded the benefit of counsel with whom they can consult in secret. Our justice system does not kill thousands of innocents in the hope of executing the suspect without trial. Our justice system preserves the confidentiality of communications between attorneys and clients. Our prisons are not built to warehouse people held without charge. Our prisoners are housed in buildings with four walls and ceilings, they are not isolated in cargo containers or placed in cages out of doors. And they are called what they are: prisoners, not “detainees.”

Independence of Judiciary Protects Freedom

And it is also a first principle that our justice system must be independent of the executive branch. When American citizen Lorie Berenson was brought to trial for terrorism several years ago in Peru before a secret military court, our government protested the outrage. We demanded a public trial before a civilian criminal justice court where full rights of legal defense would be afforded the accused terrorist. This is what America stands for-not kangaroo courts in a Banana Republic.

Legislative Crack Down on Civil Liberties

First principles of freedom are also deeply offended by recent legislation passed summarily by Congress called the USA Patriotism Act. This act weakens the privacy protections of every American by allowing government searches and seizures with less judicial oversight. Warrants issued on probable cause were good enough for George Washington and Thomas Jefferson; why shouldn’t they be good enough for us? This is the foundation of the freedom which we have taken our oath to protect. We note with pride that our Congressman Jim McDermott was one of the handful who tried to protect us from this legislation as did Republican Congressman Ron Paul of Houston, former candidate of the Libertarian Party for President. And we must be vigilant of similar legislation presently pending in Olympia.

Warrantless Search and Seizure by Executive Fiat

At 7:30 a.m. on November 7, 2001, federal custom agents acting under the strength of an executive order issued by President Bush on September 23, 2001, without a warrant, and without any probable cause that a crime had been or was being committed, swooped down without warning on a small grocery-gift shop and money exchange subtenant in Seattle. Everything was seized. Shelves were torn off the wall. Money was confiscated. Refrigerators were trucked away. Groceries were taken to the dump. An agent said perishables would be food for seagulls. The perpetrators of this act were, however, not Osama bin Laden operatives. This terror inflicted on this Somali grocer came from our own government.

War is Terror

Let us also recall the war itself. Estimates of casualties of the innocent run in the thousands. Collateral damage is a word often used for this. And it is true, I believe, war must lead to much of this. But for those on the ground, collateral damage is terror and death.

In late February 2002 the Pentagon Office of Strategic Influence was disbanded amidst reports it would spread lies to garner popular favor in other countries for the war on terror. On the other hand, our press, the eyes and ears of a free people complain it is not protected in its efforts to factually report what is happening. Let us consider the Hellfire missile attack.

News reports disclose three Afghan civilians were targeted by an American hell fire missile fired from an unmanned predator drone airplane in the middle of the night and blown to bits. A Washington Post reporter was dispatched to the scene to investigate and was told by an American military officer to leave or be shot. Nearly three weeks after the names of the victims were actually published in the Washington Post, Secretary Rumsfield was still claiming in the February 24, 2002, edition of Meet the Press that he didn’t know who they were. The press, however, had reported their names: Mir Ahmad, Daraz and Jahan Gir. They were peasants gathering scrap metal to support their families. Ahmad had two wives and five children. And what will these children believe after they grow up without a father? Are we breeding the very hate against America upon which Osama bin Laden relies to find recruits?

Judicial Alternative

On the other hand, our judiciary doesn’t shoot now and ask questions later. Police investigate, prosecutors charge a crime if the facts support it, and courts mandate the criminal charges be proved at a trial with admissible evidence beyond a reasonable doubt.

So yes, I agree with President Bush that freedom is a first principle that we must live by and never abandon. And I agree we all have a role in this. And the judge, as well, must do his part and speak his mind, if only in dissent.


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