Peter Erlinder on "The Status of Civil Liberties since 9/11" Saturday, September 14th, 2002

At 10 a.m. on Saturday September 14th about 40 people filled a room at Van Cleve Community Center in Minneapolis to hear Peter Erlinder speak. His talk was titled: “The Status of Civil Liberties Since 9/11”. Erlinder spoke for about one hour, followed by a 45-minute question and answer period.

The event was part of the “Coffee With” series sponsored by Women’s International League for Peace and Freedom (WILPF). WILPF provided bagels, cream cheese, juice and coffee to attendees free of charge. In fact, the entire event was free.

C. Peter Erlinder is a Professor of Law at William Mitchell College of Law in St. Paul. According to his professional biography, he is a frequent litigator or consultant, often pro bono, in cases involving the death penalty, civil rights, claims of government and police misconduct and criminal defense of political activists. He is also a frequent news commentator and a past National President of the National Lawyers Guild.

Erlinder began with a moment of silence for those killed on September 11, 2001.

He opened his talk with an overview of some landmark moments in legal history that precede passage of the US PATRIOT Act of 2001. One of the most significant legal challenges to civil liberties in recent history was the 1971 US v US District Court for Michigan. This case arose because of a prior case (US v. Sinclair) before the District Court in Michigan involving the White Panthers. The White Panthers learned that their organization was being wiretapped by the federal government. The US Attorney General, John Mitchell, said the wiretap was legal. Judge Damon Keith of the District Court for Michigan said the wiretap was a violation of the White Panthers’ 4th Amendment rights. US v US District Court was the Justice Departments attempt to force the Michigan District Court to overturn its ruling.

US v US District Court for Michigan went to the Supreme Court. In an interesting side development, William Rehnquist, who had just been appointed to the Court, had to recuse himself from the case because in his previous position at the Justice Department he had helped to write the opinions authorizing the White Panther wiretaps.

The Supreme Court sided with the Michigan District Court in June 1972 saying electronic surveillance without a warrant from a judge is illegal. If the Supreme Court had not sided with the District Court, the Watergate break-in may not have been the big scandal it became because the Nixon administration would have been within the law when they bugged the Democratic National Committee offices at the Watergate.

However, US v US District Court had a loophole that was later exploited by the current Bush administration. It allowed an exemption for surveillance of domestic foreign spies. After the Oklahoma City bombing in 1995, the Clinton administration enacted the Anti-Terrorism and Effective Death Penalty Act of 1996. The Anti-Terrorism Act said people in the U.S. or within the territorial jurisdiction of the U.S. who support organizations that engage in terrorist activity or threaten national security could be imprisoned for up to 10 years. National security was defined as foreign relations, national defense and economic interests. Support included giving money to organizations considered terrorist.

After the historical legal overview, Erlinder moved into a timeline of events since September 11, 2001.

1. September 11-hijacked domestic airliners crash into the World Trade Center towers in New York and the Pentagon in Virginia. A third hijacked plane crashes in a Pennsylvania field but its intended target is believed to have been the Capital in DC. Thousands are killed.
2. September 14-Congress gives President Bush the authority to use military force. Bush declares a national emergency and calls up 50,000 reservists.
3. September 20-Bush announces creation of a new Cabinet-level Office of Homeland Security with Tom Ridge, Governor of Pennsylvania, as the head.
4. September 24-Seizure of the assets of foreign organizations believed to have ties to terrorist groups. Two of these organizations in Minneapolis (Aaron Money Wire Service and Global Service International) only recently had their assets returned to them after protests from the Canadian and Swiss governments. There was no apology from the US government.
5. October 26-Congress passes the US PATRIOT Act (Erlinder said it sticks in his throat to call it that).

1. Defines domestic terrorism as activities that previously would be considered civil disobedience.
2. An individual can be detained if they intend to commit a terrorist act. Not only can the individual be detained, you can also be detained if said person was a guest in your home. You should know what they intend to do.
3. Foreigners with opinions contrary to the U.S. government can be denied entry into the U.S. There is a chance that this provision could be extended to foreign-born educators and teachers.
4. Police searches can be without notice and without justification. They don’t have to tell you what they are looking for.
5. Expands powers of the FISC (Foreign Intelligence Surveillance Court). This is a “secret” court that the CIA (Central Intelligence Agency) goes to for approval of its warrants. The Foreign Intelligence Surveillance Act (FISA) created the FISC court in 1978. Its meetings have never been open to the public and its records (if there are any) are not open to the public either.
6. Documents and information about you can be seized only on assertion of government need. These documents can include: Internet account information, bank records and library patron records.
7. Any foreign organization that uses violence or political means to attain its goals can have its assets seized. Erlinder said this criteria could be applied to any government on Earth
8. Government does not have to prove people are a threat. Can hold these people in prison without trial for 30 days, then renew for 60 days ad infinitum (forever).
9. The Constitutional right to a speedy trial is gone
10. Conversations between a client accused under the PATRIOT Act and their lawyer can be taped. A side effect of this will be the difficulty of finding attorneys willing to take on these cases.

• The new Office of Homeland Security is exempt from the Freedom of Information Act (FOIA) and the Whistleblower Act.
• The Justice Department has decreed that all Immigration Court proceedings involving people detained after 9/11 are closed to the media and the public.
• Charlie Weaver, Minnesota Commissioner of Public Safety, persists in trying to implement the requirement that Minnesota Driver’s Licenses contain information on the immigration status of the holder. In effect, creating a National ID card. No one has seen evidence, if he has any, of this being necessary for national security as Weaver claims. In June, Judge Kenneth Nickolai, Minnesota’s chief administrative law judge, gave Weaver the approval to implement the changes he wants to make to Minnesota Driver’s Licenses. The MCLU (Minnesota Civil Liberties Union) and the National Lawyers Guild (NLG) have filed motions challenging the judges ruling.

Courts are beginning to challenge provisions implemented since 9/11. For example: In Cincinnati, the 6th Circuit Court of Appeals said that Immigration Court proceedings must be open to the public (Detroit News v Ashcroft). The Circuit Court of Appeals judge who ruled on the Immigration Court case was Judge Damon Keith, the same judge in US v US District Court case of 1971 who stood up to the Nixon administration and said illegal wiretaps are a violation of the 4th Amendment. Judge Damon Keith is a real, American, hero, Erlinder said.

Erlinder says there is a 4th Branch of government. The 4th Branch is the people. It is the 4th Branch that gives the other three branches power and authority. He puts his faith in the 4th Branch.

In the beginning days of the Civil Rights Movement, many individuals thought the movement was not about them and they did not get involved. When people realized the Civil Rights Movement was about the rights of all people, not just Black Americans, more people became involved and affected change. Our future is resting on the involvement of this powerful 4th branch of government, you and I.

Janice LaDuke was baptized at St. Joan of Arc but her parents left St. Joan's in the early 70's and went to a "less radical" Catholic church instead. She's very glad to have found her way back to St. Joan's in 1994!! Janice is a librarian by profession and has been working in the library of a healthcare consulting firm since 1997. In her spare time, she enjoys listening to all kinds of music and working on her home near Como Lake in St. Paul. Janice is also Echo Thoren's assistant every Sunday at the 11:00 a.m. service.

Further reading and information: Women’s International League for Peace and Freedom (WILPF), Minnesota Metro Branch. PO Box 14752 Minneapolis MN 55415 651-458-7090 Altera Vista a 1-hour peace and justice program airing at midnight on Fridays on regional cable Channel 6 (also Channel 17, Minneapolis, 5 p.m. Fridays; Channel 15, North Suburbs, 3:30 p.m. & 11:30 p.m. Sundays) taped the Erlinder talk. As of this writing, the Erlinder program is expected to air on September 27th. Wilderness Connections will have tapes of the Erlinder talk available for $7.50. For more information contact Leslie Reindl at leslier99@hotmail.com. Send check to Wilderness Connections, 1233 Ingerson Rd, St. Paul MN 55112. Peter Erlinder has authored two recent Commentaries in the Minneapolis StarTribune. Articles are obtainable for $1.95/article on the StarTribune website (www.startribune.com) or any library that has access to back issues of the StarTribune. “Congress Must Thwart Justice’s Power Grab” September 27, 2001 “With Revelations about Sept. 11, the Rational for PATRIOT Act is gone” May 22, 2002