First Unitarian Society of Minneapolis

Being Liberal in a Post-Liberal World

The signs are both acute and systemic; liberty is no longer the foundation of government in the United States, nor the moral premise of political thinking at the highest levels around the world. Let us begin close to home...

CNN has reported that in a recent survey, when told of the exact text of the First Amendment, more than one in three high school students said it "goes too far" in the rights it guarantees. Only half of the students said newspapers should be allowed to publish freely without government approval of stories. These results reflected both ignorance and indifference, with almost three in four students saying they took the First Amendment for granted or didn't know how they felt about it. It was also clear that many students do not understand what is protected by the bedrock of the Bill of Rights. Three in four students said flag burning is illegal; it's not. About half the students said the government can restrict any indecent material on the Internet; it can't. When asked whether people should be allowed to express unpopular views, 97 percent of teachers and 99 percent of school principals said yes. Only 83 percent of students did. The survey, conducted by researchers at the University of Connecticut, is billed as the largest of its kind. More than 100,000 students, nearly 8,000 teachers and more than 500 administrators at 544 public and private high schools took part in early 2004. "These results are not only disturbing; they are dangerous," said Hodding Carter III, president of the John S. and James L. Knight Foundation, which sponsored the $1 million study. "Ignorance about the basics of this free society is a danger to our nation's future."

Perhaps the students may be pardoned for their less than scintillating clarity about the protections encoded in the Bill of Rights, when it is taken into consideration the kind of examples to which they are being exposed. For instance, just this past Wednesday at Kennedy High School in Bloomington, Minnesota, not far from here, the student organization Youth Against War and Racism had obtained permission and a reservation to set up a table with literature opposing war in general and military recruitment in particular during the lunch hour, when military recruiters were also scheduled to have a table seeking to attract young people to join the armed services. But their literature was removed and their table taken down by school officials, after principal Ronald Simmons was visited by representatives of the American Legion on Tuesday morning, who told him that if the counter - recruitment table was permitted, the American Legion would withdraw donations to the Bloomington public schools. Principal Simmons also got a call from the District Superintendent, Gary Prest, who, following his own meeting with Legion representatives, instructed Kennedy High to shut down the action of Youth Against War and Racism. Despite the fact that in December, the Bloomington School District's own lawyer gave his opinion that the student organization had the right to set up their information table when military recruiters were allowed access to the students, the school and district administrations both yielded to financial blackmail by the American Legion. The freedoms of speech, press, and assembly might be taught in the abstract at Kennedy High, but what is done in practice is a different curriculum altogether.

On a national level, the same signs are visible in even more ominous form. Two weeks ago, on February 10, after thirteen days of deliberations, a federal jury in New York City returned a guilty verdict in the case of 65-year-old attorney Lynne Stewart. The jury found Stewart guilty on five counts of defrauding the government, conspiracy, and providing support for terrorism. Stewart will be sentenced on July 15; she may serve up to thirty years in prison. While appeals are expected to consume years, in the meantime, Stewart will lose her right to practice law and face hard prison time. Her conviction for "supporting terrorism" notwithstanding, it is acknowledged that Stewart never provided any financial support, weaponry -- or any other concrete aid -- for any act of terrorism, and no act of terrorism is alleged to have resulted from anything she did.

Stewart was appointed by a federal court to represent Egyptian Sheik Omar Abdel Rahman as his attorney. Rahman was convicted of conspiring to commit acts of terrorism in New York City in the months after the 1993 World Trade Center bombings, a conspiracy with which no one suggests that Stewart had anything to do. Rahman, blind and diabetic, is currently serving a life sentence in federal prison hospital in Colorado (previously, he was serving his sentence in Minnesota). Stewart continued to represent Rahman as his lawyer after he was convicted, and his appeals were denied, in an effort to improve the terms of the Sheik's confinement, and to try to convince the U.S. to return him to his home country, Egypt. For a time, the government simply denied Stewart any access to her client. But in 2000, the Justice Department said that attorney/client visits could resume if Stewart would agree to certain restrictions on their meetings. She was not told that after she signed the Special Administrative Measures forbidding Rahman to engage in various kinds of communication, the government began surveillance of her visits, first under the 1994 Foreign Intelligence Surveillance Act warrant targeting her client, and then under specific regulations that allowed them to target her. On October 31, 2001, - a few weeks after 9/11 - Attorney General John Ashcroft secretly amended the Special Administrative Measures regulations, without notice to the public, such that the Bureau of Prisons was permitted to conduct videotape and audiotape surveillance of attorneys' communications with people in federal custody. These regulations apply not only to convicted persons, but also to defendants awaiting trial, and even detainees against whom no charges are even pending. No warrant or judicial oversight is necessary for this surveillance to occur, nor is specific notice to the attorney or the client that they will be monitored required according to the regulations. The surveillance permission is broad: It can done "to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism."

The government eavesdropped on Stewart's communications with Rahman - and these communications, along with her subsequent communications with the media, are the basis for her conviction. Prosecutor Andrew Dember argued that Stewart and her co-defendants - Mohammed Yousry, an interpreter (Stewart herself neither speaks nor understands Arabic), and Ahmed Abdel Sattar who sometimes assisted her as a law clerk - effectuated a virtual "jail-break," in which Rahman did not actually get sprung from prison, but did get his messages of violence out to the world. Yet no actual act of violence, terrorist or otherwise, has ever been linked to any statement or communication any of them made. Yousry, the translator, was convicted on the same charges as Stewart; the clerk, Sattar, was convicted of conspiracy to murder civilians. It is worth noting that former U.S. Attorney General, Ramsey Clark, also represented Rahman, also signed the Special Administrative Measures, and did everything that Lynne Stewart did, yet presumably because of his high profile, no charges have brought against him. Testifying on her behalf at Stewart's trial, Ramsey Clark said, "I don't know of anything that Lynne did that I didn't do. This case would never have been brought except for the fear generated, and the advantage that the Bush administration was taking of it, by the events of September 11, 2001. In ordinary times and circumstances, it would be recognized that everything that Lynne did was exactly what an effective attorney representing a client zealously would be obligated to do."

The Ashcroft eavesdropping regulations are unprecedented in the way they interpose the government between a client and his or her attorney, and thus violate the Sixth Amendment guarantee of a criminal defendant's right to counsel.. How can a defendant be expected to speak openly and candidly with counsel, and contribute to his own defense, when the government is listening on every conversation? More disturbingly, defense attorneys who represent alleged terrorists - or even detainees who are merely suspected of some connection to terrorism - now know that the government may listen in on their attorney-client communications. They also know that this eavesdropping may give rise to evidence that may be used in their own prosecution for terrorism. If the attorneys are prosecuted, they can expect, at trial, to be conflated with their clients - just as Stewart was.

The Ashcroft Justice Department has demonstrated disdain for attorneys, and Sixth amendment protections, and the Gonzales Justice Department likely will be even worse on this score. Referring to the Stewart verdict, Gonzales was quick to warn that he would "pursue both those who carry out acts of terrorism and those who assist them with their murderous goals." This hyperbole serves only to further the implication that a terrorist's lawyer, by zealously representing her client, at the same time aids and abets terrorism.

The larger issue is not whether terrorism fears caused the jury to reach an irrational verdict, which could be overturned on appeal - as may well be the case. The larger issue is that those who face terrorism-related charges will now be entitled to a defense crippled by government intimidation. Hundreds of prisoners alleged to be terrorist combatants sit in cages and cells in Guantanamo Bay, Cuba. Every one, according to the Supreme Court, has the right to challenge his detention in federal court, through the ancient writ of habeas corpus. But how many attorneys will risk their licenses - and life in prison - in order to protect those rights?

And the news is no better on the international scene. Mamdouh Habib, an Australian citizen, is finally home, after more spending more than three years in captivity, most of it at the infamous U.S. facility at Guantanamo Bay. Though he was never charged with any crime, and has been released, it appears that his troubles are by no means over. Habib was originally detained in Pakistan in October 2001, and following interrogations by Pakistani, American and Australian intelligence officials he was sent, on US orders, to Egypt for six months where he was held incommunicado and tortured. In May 2002, he was transferred to Afghanistan and then Guantánamo Bay where he remained, without any charges filed and without access to his family or a lawyer, for almost three years. Rather than oppose what would appear to be blatant violations of democratic rights, the Australian government, having embraced Washington's so-called "war on terror", made clear to the Bush administration that it could do whatever it liked with both Habib and David Hicks, another Australian citizen also incarcerated in Guantánamo. Australian government ministers consistently defamed Habib and Hicks as "terrorists", while denying mounting evidence that US authorities abused the two Australians and other prisoners in Guantánamo.

Official notification that Habib would be freed came on January 11, a few days after a US court released an affidavit from the Australian citizen describing how US authorities illegally transferred him from Pakistan to an Egyptian jail. The statement provided a detailed account of his abuse in Egypt and how he had been forced to sign various "confessions". He also revealed that Australian authorities had witnessed him being physically abused by American interrogators in Pakistan. Accompanied by his American lawyer Joseph Margulies, Habib returned to Sydney in a private jet chartered by the Australian government on January 28 - the U.S. military refused to transport him, or even to allow him to fly over U.S. airspace on a commercial flight. He appeared to have lost weight during his illegal three-and-a-half year incarceration.

Australian Prime Minister John Howard and Attorney General Philip Ruddock, while publicly acknowledging that he cannot be charged or prosecuted with any crime, continue to insist that Habib is an Al Qaeda supporter and dangerous. Along with other basic democratic rights repudiated as part of the "war on terror", the Howard government has replaced the presumption of innocence with a new category — free but permanently under suspicion. Ruddock has made clear that Habib will be refused a passport and subjected to permanent surveillance by the Australian Federal Police, the Australian Security Intelligence Organization and other agencies. Government officials also have been "back grounding" journalists, feeding them gossip and unsubstantiated allegations against Habib and his family.

In addition, the Australian attorney general has threatened to charge the former Guantánamo detainee under the Proceeds of Crime Act if he receives payment for any media interview or book about his experiences. The legislation, which was originally introduced to seize drug money and other illegal earnings from convicted criminals, was amended last year, with Australian Labor Party support, to include anyone detained overseas on terrorism allegations. This law applies, irrespective of whether the individual has even been formally arrested, let alone charged or found guilty of terrorist-related crimes. It is impossible that these amendments were designed for any other purpose than to prevent Habib, and others such as Hicks, who remains imprisoned at Guantanamo, from publicizing their stories to the widest audience.

The dissipation of commitment to liberty as the foundation of the social contract that makes government legitimate may be exemplified by actions of the current federal administration and events here in the U.S., but it is not a product of George Bush, John Ashcroft, Dick Cheney, Karl Rove, and the neo-conservative agenda. In fact, I would submit that it is a much larger phenomenon, international in scope, and that President Bush and company are a product of it, rather than the reverse. It is possible, I think, that this shift of ground represents the most significant cultural watershed since the Enlightenment, when the move from religious authority to secular science and political systems predicated upon the rights of individuals paved the way for everything we know as the modern world. At its root, the change we are witnessing constitutes a failure of nerve and a loss of faith, which is why it is appropriately the concern of religion. I would contend, as I always have, that to be a religious liberal does not inherently mean being a political liberal in the sense of a complete platform of issues. Intelligent and fair-minded people may disagree about matters of practical policy, and the best ways to go about achieving greater goals and instituting larger values. Nevertheless, I do think that liberalism is inherently and inescapably related to the notion of liberty, and freedom of religion is but one right among several that must be established not only in conviction but in a system of laws if general justice, individual integrity, and genuine democracy are to prevail in a nation or a trans-national culture.

The remembered trauma of September 11, 2001 has crystallized this failure of nerve in our own country; like a precipitating pebble, it has given a sudden structure to our collective fears and the desire for protection. The Bush administration's PATRIOT act agenda has only been implemented because the American people at this moment in our national life are more eager to be safe than we are to be free, and liberty and safety lie necessarily in a polar tension with one another. The founders of this nation understood from personal experience how short was the path connecting protection to oppression, and how impossible it is, once you have traded any measure of liberty for the assurance of safety, to ever retrieve your freedom again. They were willing - indeed, they were determined - to take the gamble that living in freedom was worth living with risk. They could not be sure, because the experiment had never been tried at the level they proposed to implement it, but they were convinced that liberty would prove the better bargain in the long run. Today their descendants seem to need only to have the word "terrorism" waved in front of them, and they rush to heap upon the altar fire of "security" every foundation stone of freedom that our ancestors bled and labored to lay for us. Our school children think that news stories should be approved by the government; our lawyers see that they themselves will be prosecuted for defending unpopular clients; our neighbor nations, who should be holding us to account for violating the civil liberties that our systems share, instead silence the victims and witnesses to our misdeeds.

Those who say that this nation was built upon faith are correct - but it wasn't the faith of Jesus or the Bible, as they contend. No, it was faith in the human capacity to live in uncertainty, so that we might also dwell in possibility. It was faith that the full unfolding of our greatness requires that we have room, even room to fall hard if need be. It was faith that we can do without protection in order to have liberty; that we are made not for safety, but to push back the boundaries of our understanding and abilities. It was faith that freedom affirmed is terror conquered, while freedom abandoned is terror's triumph.

Where is that faith today, my friends? If it abides not among us, here in the heart of humanism and the Enlightenment's legacy, then it is homeless indeed. We, who are not ashamed to be named "liberal" in the service of that liberty which we announce as the foundation of all integrity and the birthright of every human soul, can no longer assume the eventual, inevitable triumph of our vision. All around us, people are shrinking back into lesser lives, giving up their own freedoms and ours, in exchange for a promise of protection that can never truly be kept. We have a role, you and I; we have an opportunity and a responsibility - not to buy it, not to fall for it, not to give in to the offer of protection from the risks and yes, even the terrors of life. We need to carry this witness to our school children, and to the principals and the district superintendents and the even the members of the American Legion. We need to carry it to our lawyers; to all the accused and the detained and the intimidated, that Big Brother shall not have the final word. We need to carry it to our government, and to our neighbors in the nations of the world, that some of us still keep faith with freedom, that the heritage of liberty is not altogether undone.

Sixty years ago, the German pastor and concentration camp survivor Martin Niemoller wrote:

'First they came for the Communists, but I was not a Communist, so I said nothing.

Then they came for the Social Democrats,

but I was not a Social Democrat, so I did nothing.

Then came the trade unionists, but I was not a trade unionist.

And then they came for the Jews, but I was not a Jew, so I did little.

Then when they came for me, there was no one left to stand up for me.'

Let us not, in the latter years of this benighted century, be composing a sorry litany that begins

"First they called them terrorists, but I was not a terrorist, so I said nothing.

Then they called them enemy combatants, but I was not an enemy combatant, so I did nothing..."

And ends, in shame and tragedy,

"At last, when they called us 'liberals', there was no one left..."