ACLU National Town Hall

Nothing changed on 9/11.

Redact history like a FOIA document. With crossed out names and places, each age looks much like the last.

Once again, there is a Republic under siege. The fear of outer enemies does coarser damage than the enemies themselves. People feel safer without freedom. They wrap themselves so tightly in the flag it becomes a blindfold, and then a gag, and then a noose. Cutting them free is the worst treason, so how do you convince them to save themselves? How do you save the Republic?

I spent tonight at the Colorado History Museum, a fitting venue to hear a discussion of the NSA surveillance controversy by a panel well equipped to put it in a historical context.

Former Colorado First Lady, Dottie Lamm, moderated the second ACLU National Town Hall. The panel included Sen. Gary Hart, ACLU Executive Director Anthony Romero, former Reagan Deputy Attorney General Bruce Fein, and ACLU Colorado Legal Director Mark Silverstein.

Sen. Hart talked from a perspective that included his service on the Church Committee (a Senate Committee set up after Watergate to investigate the abuses of power by the FBI and CIA) and his work on the Hart-Rudman Commission (which on Jan. 31, 2001 issued a report stating "Americans will die on American soil, possibly in large numbers.") He saw 9-11 more as an excuse than a turning point, and reminded the audience of how the Project for a New American Century had laid out the plan to seize the Iraqi oil fields long before a casus belli could be invented.

September 11 was a criminal act, he argued, and if we can put it into that context we should be able to curb some of the worst offenses of this administration. The problem began when Congress endorsed Bush's position that the hijacking was an act of war. By affixing that label, the President could claim emergency powers, and as this is an endless war the President can keep them forever.

Bruce Fein underlined this idea of 'permanent war', and the abdication of Congressional power. When he and I spoke, I used the term 'unitary executive' to describe the resulting situation, and he objected to the idea that vesting power in the Executive branch was what we were really observing. He felt that it was a collapse into a single undifferentiated branch of government that could be called the "monopoly of power."

Mr. Fein is a treat to listen to. He quotes Burke, Locke, and Rousseau, uses words like 'effete' and 'plucky' to describe things you wouldn't think of as either, and loves breaking into manic monologue. His style is energetic, condescending, and charming in a way you might expect if Matthew Lesko started channeling Lord Acton.

At the same time he was speaking in Denver, the Washington Post was running an Op Ed by him that could have been tonight's transcript.

He offered a number of ways we could reverse the damage caused by this President, but they all hinged on the US Congress stepping up and offering resistence. He did not give a lot of indications on how that would be possible; at least not in the near term. The problem, he felt, began with our failure to educate recent generations with a sense of civic duty. Hope for him lay on a horizon where people reclaimed their obligation to fight for a just and limited government. Still, when Anthony Remero referenced a future  twenty years out, Fein objected saying we did not have that much time to save our freedoms.

Romero was talking about the length of time it may take for us to know the extent of the Bush-Cheney wiretapping. He stated that the truth would inevitably be revealed, but he also conceded it might be slow in coming. One thing he indicated might influence the time table is how well we can communicate that Civil Liberties are a nonpartisan issue. He was looking for people on both sides of the political aisle who were concerned about discarding the rule of law. People who hated seeing, as Fein put it, "a coronation not a inauguration." Here, Senator Hart was also in alignment with them. He said that we had a Congress that did not think they had sworn an oath to defend the constitution, but instead thought they had sworn to defend the President. He criticized the Republicans who had no love for the Republic, and the Democrats who put career ahead of Democracy, and how they interacted to create a situation where things like the NSA spying could be tolerated.

When discussing the wiretapping, Mr. Silverstein brought a number of recent cases to my attention. The first, involving the Denver Police Department, illustrated the power of the Freedom of Information Act, and he outlined how tugging on threads in that case had led the ACLU to understand how ready the FBI and other federal bodies are to cast a broad net when looking for 'terrorists' in peaceful domestic groups. He also referred to a disclosure by an ATT Worldnet employee that ATT without warrant or cause has channeled massive amounts of emails and phone calls into NSA databases.

The extent of this sort of shotgun approach to intelligence was something that several panel members wanted to uncover. Director Romero summed it up when he said, "NSA is not about connecting dots. It is about collecting more dots." He urged the audience to make demands on their government to disclose the extent of the spying and to make demands on the companies whose services they use.

Senator Hart also stressed how this was not targeted investigating. This is a technological approach that sucks up "tens of thousands, hundreds of thousands, or millions" of communications and then filters them for key words, and it is done by a government that cannot be trusted to choose its targets wisely. The former Senator told a story about when he was the least senior member of a commision looking into FBI surveillance and he suggested that all of the Senators on the commission should request to see their own FBI files. There was a pause, and then Barry Goldwater said, "Goddamnit, I don't want to know what they got on me." Ominously Hart added that their may be members of Congress whose timidity to confront this issue comes from being intimidated by the dangerous system itself.

This lack of courage reminds me of a story that Bruce Fein had told earlier in the evening. It was set in the moment when Benjamin Franklin had emerged from the Constitutional Convention of 1787, and he was asked, "Well, Doctor, what have we got? A Republic or a Monarchy?" Franklin replied, "A Republic, if you can keep it."

It makes me wonder if we will find the courage to make the demands we need to make to keep our constitution whole. As one good historian said tonight, "You can loose a Republic on the installment plan as easy as by a coup d'état."