Freedom And Security - Speech By Al
Gore Nov. 9th
Constitution Hall in
November 9, 2003
Thank you, Lisa, for that warm and generous introduction. Thank you Zack, and thank you all for coming here today
I want to thank the American Constitution Society for co-sponsoring today’s
event, and for their hard work and dedication in defending our most basic public
And I am especially grateful to Moveon.org, not only for co-sponsoring this
event, but also for using 21st Century techniques to breathe new life into our
For my part, I’m just a “recovering politician” – but I truly believe
that some of the issues most important to
And perhaps the most important of these issues is the one I want to talk
about today: the true relationship between Freedom and Security.
So it seems to me that the logical place to start the discussion is with an
accounting of exactly what has happened to civil liberties and security since
the vicious attacks against America of September 11, 2001 – and it’s
important to note at the outset that the Administration and the Congress have
brought about many beneficial and needed improvements to make law enforcement
and intelligence community efforts more effective against potential terrorists.
But a lot of other changes have taken place that a lot of people don’t know
about and that come as unwelcome surprises. For example, for the first time in
our history, American citizens have been seized by the executive branch of
government and put in prison without being charged with a crime, without having
the right to a trial, without being able to see a lawyer, and without even being
able to contact their families.
President Bush is claiming the unilateral right to do that to any American
citizen he believes is an “enemy combatant.” Those are the magic words. If
the President alone decides that those two words accurately describe someone,
then that person can be immediately locked up and held incommunicado for as long
as the President wants, with no court having the right to determine whether the
facts actually justify his imprisonment.
Now if the President makes a mistake, or is given faulty information by
somebody working for him, and locks up the wrong person, then it’s almost
impossible for that person to prove his innocence – because he can’t talk to
a lawyer or his family or anyone else and he doesn’t even have the right to
know what specific crime he is accused of committing. So a constitutional right
to liberty and the pursuit of happiness that we used to think of in an
old-fashioned way as “inalienable” can now be instantly stripped from any
American by the President with no meaningful review by any other branch of
How do we feel about that? Is that OK?
Here’s another recent change in our civil liberties: Now, if it wants to,
the federal government has the right to monitor every website you go to on the
internet, keep a list of everyone you send email to or receive email from and
everyone who you call on the telephone or who calls you – and they don’t
even have to show probable cause that you’ve done anything wrong. Nor do they
ever have to report to any court on what they’re doing with the information.
Moreover, there are precious few safeguards to keep them from reading the
content of all your email.
Everybody fine with that?
If so, what about this next change?
For America’s first 212 years, it used to be that if the police wanted to
search your house, they had to be able to convince an independent judge to give
them a search warrant and then (with rare exceptions) they had to go bang on
your door and yell, “Open up!” Then, if you didn’t quickly open up, they
could knock the door down. Also, if they seized anything, they had to leave a
list explaining what they had taken. That way, if it was all a terrible mistake
(as it sometimes is) you could go and get your stuff back.
But that’s all changed now. Starting two years ago, federal agents were
given broad new statutory authority by the Patriot Act to “sneak and peak”
in non-terrorism cases. They can secretly enter your home with no warning –
whether you are there or not – and they can wait for months before telling you
they were there. And it doesn’t have to have any relationship to terrorism
whatsoever. It applies to any garden-variety crime. And the new law makes it
very easy to get around the need for a traditional warrant -- simply by saying
that searching your house might have some connection (even a remote one) to the
investigation of some agent of a foreign power. Then they can go to another
court, a secret court, that more or less has to give them a warrant whenever
Three weeks ago, in a speech at FBI Headquarters, President Bush went even
further and formally proposed that the Attorney General be allowed to authorize
subpoenas by administrative order, without the need for a warrant from any
What about the right to consult a lawyer if you’re arrested? Is that
Attorney General Ashcroft has issued regulations authorizing the secret
monitoring of attorney-client conversations on his say-so alone; bypassing
procedures for obtaining prior judicial review for such monitoring in the rare
instances when it was permitted in the past. Now, whoever is in custody has to
assume that the government is always listening to consultations between them and
Does it matter if the government listens in on everything you say to your
lawyer? Is that Ok?
Or, to take another change -- and thanks to the librarians, more people know
about this one -- the FBI now has the right to go into any library and ask for
the records of everybody who has used the library and get a list of who is
reading what. Similarly, the FBI can demand all the records of banks, colleges,
hotels, hospitals, credit-card companies, and many more kinds of companies. And
these changes are only the beginning. Just last week, Attorney General Ashcroft
issued brand new guidelines permitting FBI agents to run credit checks and
background checks and gather other information about anyone who is “of
investigatory interest,” - meaning anyone the agent thinks is suspicious -
without any evidence of criminal behavior.
So, is that fine with everyone?
Listen to the way
“This is the destiny of democracy, as not all means are acceptable to it,
and not all practices employed by its enemies are open before it. Although a
democracy must often fight with one hand tied behind its back, it nonetheless
has the upper hand. Preserving the Rule of Law and recognition of an
individual’s liberty constitutes an important component in its understanding
of security. At the end of the day they (add to) its strength.”
I want to challenge the Bush Administration’s implicit assumption that we
have to give up many of our traditional freedoms in order to be safe from
Because it is simply not true.
In fact, in my opinion, it makes no more sense to launch an assault on our
civil liberties as the best way to get at terrorists than it did to launch an
In both cases, the Administration has attacked the wrong target.
In both cases they have recklessly put our country in grave and unnecessary
danger, while avoiding and neglecting obvious and much more important challenges
that would actually help to protect the country.
In both cases, the administration has fostered false impressions and misled
the nation with superficial, emotional and manipulative presentations that are
not worthy of American Democracy.
In both cases they have exploited public fears for partisan political gain
and postured themselves as bold defenders of our country while actually
weakening not strengthening
In both cases, they have used unprecedented secrecy and deception in order to
avoid accountability to the Congress, the Courts, the press and the people.
Indeed, this Administration has turned the fundamental presumption of our
democracy on its head. A government of and for the people is supposed to be
generally open to public scrutiny by the people -- while the private information
of the people themselves should be routinely protected from government
But instead, this Administration is seeking to conduct its work in secret
even as it demands broad unfettered access to personal information about
American citizens. Under the rubric of protecting national security, they have
obtained new powers to gather information from citizens and to keep it secret.
Yet at the same time they themselves refuse to disclose information that is
highly relevant to the war against terrorism.
They are even arrogantly refusing to provide information about 9/11 that is
in their possession to the 9/11 Commission – the lawful investigative body
charged with examining not only the performance of the Bush Administration, but
also the actions of the prior Administration in which I served. The whole point
is to learn all we can about preventing future terrorist attacks,
Two days ago, the Commission was forced to issue a subpoena to the Pentagon,
which has – disgracefully – put Secretary Rumsfeld’s desire to avoid
embarrassment ahead of the nation’s need to learn how we can best avoid future
terrorist attacks. The Commission also served notice that it will issue a
subpoena to the White House if the President continues to withhold information
essential to the investigation.
And the White House is also refusing to respond to repeated bipartisan
Congressional requests for information about 9/11 – even though the Congress
is simply exercising its Constitutional oversight authority. In the words of
Senator McCain, “Excessive administration secrecy on issues related to the
September 11 attacks feeds conspiracy theories and reduces the public’s
confidence in government.”
In a revealing move, just three days ago, the White House asked the
Republican leadership of the Senate to shut down the Intelligence Committee’s
investigation of 9/11 based on a trivial political dispute. Apparently the
President is anxious to keep the Congress from seeing what are said to have been
clear, strong and explicit warnings directly to him a few weeks before 9/11 that
terrorists were planning to hijack commercial airliners and use them to attack
Astonishingly, the Republican Senate leadership quickly complied with the
President’s request. Such obedience and complicity in what looks like a
cover-up from the majority party in a separate and supposedly co-equal branch of
government makes it seem like a very long time ago when a Republican Attorney
General and his deputy resigned rather than comply with an order to fire the
special prosecutor investigating Richard Nixon.
In an even more brazen move, more than two years after they rounded up over
1,200 individuals of Arab descent, they still refuse to release the names of the
individuals they detained, even though virtually every one of those arrested has
been "cleared" by the FBI of any connection to terrorism and there is
absolutely no national security justification for keeping the names secret. Yet
at the same time, White House officials themselves leaked the name of a CIA
operative serving the country, in clear violation of the law, in an effort to
get at her husband, who had angered them by disclosing that the President had
relied on forged evidence in his state of the union address as part of his
effort to convince the country that Saddam Hussein was on the verge of building
And even as they claim the right to see the private bank records of every
American, they are adopting a new policy on the Freedom of Information Act that
actively encourages federal agencies to fully consider all potential reasons for
non-disclosure regardless of whether the disclosure would be harmful. In other
words, the federal government will now actively resist complying with ANY
request for information.
Moreover, they have established a new exemption that enables them to refuse
the release to the press and the public of important health, safety and
environmental information submitted to the government by businesses – merely
by calling it “critical infrastructure.”
By closely guarding information about their own behavior, they are
dismantling a fundamental element of our system of checks and balances. Because
so long as the government’s actions are secret, they cannot be held
accountable. A government for the people and by the people must be transparent
to the people.
The administration is justifying the collection of all this information by
saying in effect that it will make us safer to have it. But it is not the kind
of information that would have been of much help in preventing 9/11. However,
there was in fact a great deal of specific information that WAS available prior
to 9/11 that probably could have been used to prevent the tragedy. A recent
analysis by the Merkle foundation, (working with data from a software company
that received venture capital from a CIA-sponsored firm) demonstrates this point
in a startling way:
· “In late August 2001, Nawaq Alhamzi and Khalid Al-Midhar bought tickets
to fly on American Airlines Flight 77 (which was flown into the Pentagon). They
bought the tickets using their real names. Both names were then on a State
Department/INS watch list called TIPOFF. Both men were sought by the FBI and CIA
as suspected terrorists, in part because they had been observed at a terrorist
· These two passenger names would have been exact matches when checked
against the TIPOFF list. But that would only have been the first step. Further
data checks could then have begun.
· Checking for common addresses (address information is widely available,
including on the internet), analysts would have discovered that Salem Al-Hazmi
(who also bought a seat on American 77) used the same address as Nawaq Alhazmi.
More importantly, they could have discovered that Mohamed Atta (American 11,
· Checking for identical frequent flier numbers, analysts would have
discovered that Majed Moqed (American 77) used the same number as Al-Midhar.
· With Mohamed Atta now also identified as a possible associate of the
wanted terrorist, Al-Midhar, analysts could have added Atta’s phone numbers
(also publicly available information) to their checklist. By doing so they would
have identified five other hijackers (Fayez Ahmed, Mohand Alshehri, Wail Alsheri,
and Abdulaziz Alomari).
· Closer to September 11, a further check of passenger lists against a more
innocuous INS watch list (for expired visas) would have identified Ahmed
Alghandi. Through him, the same sort of relatively simple correlations could
have led to identifying the remaining hijackers, who boarded United 93 (which
In addition, Al-Midhar and Nawaf Alhamzi, the two who were on the terrorist
watch list, rented an apartment in San Diego under their own names and were
listed, again under their own names, in the San Diego phone book while the FBI
was searching for them.
Not to put too fine a point on it, but what is needed is better and more
timely analysis. Simply piling up more raw data that is almost entirely
irrelevant is not only not going to help. It may actually hurt the cause. As one
FBI agent said privately of Ashcroft: “We’re looking for a needle in a
haystack here and he (Ashcroft) is just piling on more hay.”
In other words, the mass collecting of personal data on hundreds of millions
of people actually makes it more difficult to protect the nation against
terrorists, so they ought to cut most of it out.
And meanwhile, the real story is that while the administration
manages to convey the impression that it is doing everything possible to
For example, there is still no serious strategy for domestic security that
protects critical infrastructure such as electric power lines, gas pipelines,
nuclear facilities, ports, chemical plants and the like.
They’re still not checking incoming cargo carriers for radiation. They’re
still skimping on protection of certain nuclear weapons storage facilities.
They’re still not hardening critical facilities that must never be soft
targets for terrorists. They’re still not investing in the translators and
analysts we need to counter the growing terror threat.
The administration is still not investing in local government training and
infrastructures where they could make the biggest difference. The first
responder community is still being shortchanged. In many cases, fire and police
still don’t have the communications equipment to talk to each other. The CDC
and local hospitals are still nowhere close to being ready for a biological
The administration has still failed to address the fundamental
disorganization and rivalries of our law enforcement, intelligence and
investigative agencies. In particular, the critical FBI-CIA coordination, while
finally improved at the top, still remains dysfunctional in the trenches.
The constant violations of civil liberties promote the false impression that
these violations are necessary in order to take every precaution against another
terrorist attack. But the simple truth is that the vast majority of the
violations have not benefited our security at all; to the contrary, they hurt
And the treatment of immigrants was probably the worst example. This mass
mistreatment actually hurt our security in a number of important ways.
But first, let’s be clear about what happened: this was little more than a
cheap and cruel political stunt by John Ashcroft. More than 99% of the mostly
Arab-background men who were rounded up had merely overstayed their visas or
committed some other minor offense as they tried to pursue the American dream
just like most immigrants. But they were used as extras in the
Administration’s effort to give the impression that they had caught a large
number of bad guys. And many of them were treated horribly and abusively.
Consider this example reported in depth by Anthony Lewis:
“Anser Mehmood, a Pakistani who had overstayed his visa, was arrested in
“After two weeks Mehmood was allowed to make a telephone call to his wife.
She was not at home and Mehmood was told that he would have to wait six weeks to
try again. He first saw her, on a visit, three months after his arrest. All that
time he was kept in a windowless cell, in solitary confinement, with two
overhead fluorescent lights on all the time. In the end he was charged with
using an invalid Social Security card. He was deported in May 2002, nearly eight
months after his arrest.
The faith tradition I share with Ashcroft includes this teaching from Jesus:
“whatsoever you do unto the least of these, you do unto me.”
And make no mistake: the disgraceful treatment suffered by many of these
vulnerable immigrants at the hands of the administration has created deep
resentments and hurt the cooperation desperately needed from immigrant
communities in the
Second, these gross violations of their rights have seriously damaged
And the handling of prisoners at Guantanomo has been particularly harmful to
So the mass violations of civil liberties have hurt rather than helped. But
there is yet another reason for urgency in stopping what this administration is
doing. Where Civil Liberties are concerned, they have taken us much farther down
the road toward an intrusive, “Big Brother”-style government -- toward the
dangers prophesized by George Orwell in his book “1984” -- than anyone ever
thought would be possible in the United States of America.
And they have done it primarily by heightening and exploiting public
anxieties and apprehensions. Rather than leading with a call to courage, this
Administration has chosen to lead us by inciting fear.
Almost eighty years ago, Justice Louis Brandeis wrote “Those who won our
independence by revolution were not cowards. . . . They did not exalt order at
the cost of liberty.” Those who won our independence, Brandeis asserted,
understood that “courage [is] the secret of liberty” and "fear [only]
Rather than defending our freedoms, this Administration has sought to abandon
them. Rather than accepting our traditions of openness and accountability, this
Administration has opted to rule by secrecy and unquestioned authority. Instead,
its assaults on our core democratic principles have only left us less free and
Throughout American history, what we now call Civil Liberties have often been
abused and limited during times of war and perceived threats to security. The
best known instances include the Alien and Sedition Acts of 1798-1800, the brief
suspension of habeas corpus during the Civil War, the extreme abuses during
World War I and the notorious Red Scare and Palmer Raids immediately after the
war, the shameful internment of Japanese-Americans during World War II, and the
excesses of the FBI and CIA during the Vietnam War and social turmoil of the
late 1960s and early 1970s.
But in each of these cases, the nation has recovered its equilibrium when the
war ended and absorbed the lessons learned in a recurring cycle of excess and
There are reasons for concern this time around that what we are experiencing
may no longer be the first half of a recurring cycle but rather, the beginning
of something new. For one thing, 2this war is predicted by the administration to
“last for the rest of our lives.” Others have expressed the view that over
time it will begin to resemble the “war” against drugs – that is, that it
will become a more or less permanent struggle that occupies a significant part
of our law enforcement and security agenda from now on. If that is the case,
then when – if ever -- does this encroachment on our freedoms die a natural
It is important to remember that throughout history, the loss of civil
liberties by individuals and the aggregation of too much unchecked power in the
executive go hand in hand. They are two sides of the same coin.
A second reason to worry that what we are witnessing is a discontinuity and
not another turn of the recurring cycle is that the new technologies of
surveillance – long anticipated by novelists like Orwell and other prophets of
the “Police State” -- are now more widespread than they have ever been.
And they do have the potential for shifting the balance of power between the
apparatus of the state and the freedom of the individual in ways both subtle and
Moreover, these technologies are being widely used not only by the government
but also by corporations and other private entities. And that is relevant to an
assessment of the new requirements in the Patriot Act for so many corporations
– especially in the finance industries – to prepare millions of reports
annually for the government on suspicious activities by their customers. It is
also relevant to the new flexibility corporations have been given to share
information with one another about their customers.
The third reason for concern is that the threat of more terror strikes is all
too real. And the potential use of weapons of mass destruction by terrorist
groups does create a new practical imperative for the speedy exercise of
discretionary power by the executive branch – just as the emergence of nuclear
weapons and ICBMs created a new practical imperative in the Cold War that
altered the balance of war-making responsibility between Congress and the
But President Bush has stretched this new practical imperative beyond what is
healthy for our democracy. Indeed, one of the ways he has tried to maximize his
power within the American system has been by constantly emphasizing his role as
Commander-in-Chief, far more than any previous President -- assuming it as often
and as visibly as he can, and bringing it into the domestic arena and conflating
it with his other roles: as head of government and head of state – and
especially with his political role as head of the Republican Party.
Indeed, the most worrisome new factor, in my view, is the aggressive
ideological approach of the current administration, which seems determined to
use fear as a political tool to consolidate its power and to escape any
accountability for its use. Just as unilateralism and dominance are the guiding
principles of their disastrous approach to international relations, they are
also the guiding impulses of the administration’s approach to domestic
politics. They are impatient with any constraints on the exercise of power
overseas -- whether from our allies, the UN, or international law. And in the
same way, they are impatient with any obstacles to their use of power at home
– whether from Congress, the Courts, the press, or the rule of law.
Ashcroft has also authorized FBI agents to attend church meetings, rallies,
political meetings and any other citizen activity open to the public simply on
the agents’ own initiative, reversing a decades old policy that required
justification to supervisors that such infiltrations has a provable connection
to a legitimate investigation;
They have even taken steps that seem to be clearly aimed at stifling dissent.
The Bush Justice Department has recently begun a highly disturbing criminal
prosecution of the environmental group Greenpeace because of a non-violent
direct action protest against what Greenpeace claimed was the illegal
importation of endangered mahogany from the Amazon. Independent legal experts
and historians have said that the prosecution -- under an obscure and bizarre
1872 law against “sailor-mongering” -- appears to be aimed at inhibiting
Greenpeace’s First Amendment activities.
And at the same time they are breaking new ground by prosecuting Greenpeace,
the Bush Administration announced just a few days ago that it is dropping the
investigations of 50 power plants for violating the Clean Air Act – a move
that Sen. Chuck Schumer said, “basically announced to the power industry that
it can now pollute with impunity.”
The politicization of law enforcement in this administration is part of their
larger agenda to roll back the changes in government policy brought about by the
New Deal and the Progressive Movement. Toward that end, they are cutting back on
Civil Rights enforcement, Women’s Rights, progressive taxation, the estate
tax, access to the courts, Medicare, and much more. And they approach every
issue as a partisan fight to the finish, even in the areas of national security
Instead of trying to make the “War on Terrorism” a bipartisan cause, the
Bush White House has consistently tried to exploit it for partisan advantage.
The President goes to war verbally against terrorists in virtually every
campaign speech and fundraising dinner for his political party. It is his main
political theme. Democratic candidates like Max Cleland in
When the Republican leader in the House of Representatives, Tom DeLay, was
embroiled in an effort to pick up more congressional seats in Texas by forcing a
highly unusual redistricting vote in the state senate, he was able to track down
Democratic legislators who fled the state to prevent a quorum (and thus prevent
the vote) by enlisting the help of President Bush’s new Department of Homeland
Security, as many as 13 employees of the Federal Aviation Administration who
conducted an eight-hour search, and at least one FBI agent (though several other
agents who were asked to help refused to do so.)
By locating the Democrats quickly with the technology put in place for
tracking terrorists, the Republicans were able to succeed in focusing public
pressure on the weakest of the Senators and forced passage of their new
political redistricting plan. Now, thanks in part to the efforts of three
different federal agencies, Bush and DeLay are celebrating the gain of up to
seven new Republican congressional seats in the next Congress.
The White House timing for its big push for a vote in Congress on going to
White House political advisor Karl Rove advised Republican candidates that
their best political strategy was to “run on the war”. And as soon as the
troops began to mobilize, the Republican National Committee distributed yard
This persistent effort to politicize the war in
Yet that is exactly what the Bush Administration is attempting to do – to
use the war against terrorism for partisan advantage and to introduce far
reaching controversial changes in social policy by a “side wind,” in an
effort to consolidate its political power.
It is an approach that is deeply antithetical to the American spirit. Respect
for our President is important. But so is respect for our people. Our founders
knew – and our history has proven – that freedom is best guaranteed by a
separation of powers into co-equal branches of government within a system of
checks and balances -- to prevent the unhealthy concentration of too much power
in the hands of any one person or group.
Our framers were also keenly aware that the history of the world proves that
Republics are fragile. The very hour of
And even in the midst of our greatest testing,
This Administration simply does not seem to agree that the challenge of
preserving democratic freedom cannot be met by surrendering core American
values. Incredibly, this Administration has attempted to compromise the most
precious rights that
Years ago, during World War II, one of our most eloquent Supreme Court
Justices, Robert Jackson, wrote that the President should be given the “widest
latitude” in wartime, but he warned against the “loose and irresponsible
invocation of war as an excuse for discharging the Executive Branch from the
rules of law that govern our Republic in times of peace. No penance would ever
expiate the sin against free government,”
So what should be done? Well, to begin with, our country ought to find a way
to immediately stop its policy of indefinitely detaining American citizens
without charges and without a judicial determination that their detention is
Such a course of conduct is incompatible with American traditions and values,
with sacred principles of due process of law and separation of powers.
It is no accident that our Constitution requires in criminal prosecutions a
“speedy and public trial.” The principles of liberty and the accountability
of government, at the heart of what makes
Second, foreign citizens held in
If we don’t provide this, how can we expect American soldiers captured
overseas to be treated with equal respect? We owe this to our sons and daughters
who fight to defend freedom in
Third, the President should seek congressional authorization for the military
commissions he says he intends to use instead of civilian courts to try some of
those who are charged with violating the laws of war. Military commissions are
exceptional in American law and they present unique dangers. The prosecutor and
the judge both work for the same man, the President of the
Next, our nation’s greatness is measured by how we treat those who are the
most vulnerable. Noncitizens who the government seeks to detain should be
entitled to some basic rights. The administration must stop abusing the material
witness statute. That statute was designed to hold witnesses briefly before they
are called to testify before a grand jury. It has been misused by this
administration as a pretext for indefinite detention without charge. That is
simply not right.
Finally, I have studied the Patriot Act and have found that along with its
many excesses, it contains a few needed changes in the law. And it is certainly
true that many of the worst abuses of due process and civil liberties that are
now occurring are taking place under the color of laws and executive orders
other than the Patriot Act.
Nevertheless, I believe the Patriot Act has turned out to be, on balance, a
terrible mistake, and that it became a kind of Tonkin Gulf Resolution conferring
Congress’ blessing for this President’s assault on civil liberties.
Therefore, I believe strongly that the few good features of this law should be
passed again in a new, smaller law – but that the Patriot Act must be
As John Adams wrote in 1780, ours is a government of laws and not of men.
What is at stake today is that defining principle of our nation, and thus the
very nature of
The question before us could be of no greater moment: will we continue to
live as a people under the rule of law as embodied in our Constitution? Or will
we fail future generations, by leaving them a Constitution far diminished from
the charter of liberty we have inherited from our forebears? Our choice is