Civil Rights Concerns in the Metropolitan Washington, D.C., Area in the Aftermath of the September 11, 2001, Tragedies
Dissenting Statement by Stephen Kurzman, DC SAC Member
Re: Inter-SAC Report on September 11 Aftermath
I cannot in good conscience sign the proposed report in its present form, because it is seriously unbalanced. In the “Observations” section the report simply adopts the broadest, most critical conclusions of the non-governmental witnesses, without any analysis of the difficult balancing required between national security and civil liberties in particular, different types of cases (for example, distinguishing between temporary visitors, permanent residents, citizens, and enemy combatants) or of the remedies that are available to those who are aggrieved (such as habeas corpus, criminal complaints, unlawful arrest suits, or suits to quash search warrants).
The report dismisses in one sentence here and there the repeated, extensive, and widely publicized efforts by government officials, from the President of the United States on down, to prevent violence, harassment or discrimination against the affected communities and individuals. The report also peremptorily dismisses the testimony of the government witnesses at the forum and ignores the enormous domestic security challenge facing federal, state and local governments and all inhabitants of the U.S.
The forum itself had the same unreal quality. For example, there was repeated testimony protesting against the March, 2002, raid by U.S. Treasury agents in Northern Virginia on businesses, nonprofit organizations, and four homes, all apparently related to one person, but no mention of the fact that the raid was conducted under court-ordered search warrants accusing the respondents of funding terrorist groups. There was reference to a meeting with the Secretary of the Treasury to protest the raid and disappointment with the lack of follow-up but no reference to legal action available if the raid was unjustified.
Similarly, criticism of reporting requirements for temporary visitors from certain countries as “ethnic profiling” is not balanced by recognition of the problem posed by entry under temporary visitor visas, and subsequent violations of the terms of those visas, of individuals who have and would harm us, particularly from countries that have been listed as sponsoring terrorism or harboring terrorists. Yet the report highlights testimony on topics, such as U.S. policy toward the Middle East and the alleged motivations of radical Islamist terrorists, which are irrelevant to the subject the witnesses were asked to address.
Nor does the report reflect the relevant court decisions and indictments during the nine months since the forum. Consideration of these developments might have moderated the report’s suggestion that the anti-terrorism tactics so far employed are unconstitutional and ineffective and will inevitably lead to a repeat of the World War II internment of Japanese-American citizens or the other deplorable, crisis-era civil liberty lapses in our nation’s history. It already appears that this time the courts are not reflexively coming down on the national security side but are looking closely at each case and trying to achieve a proper balance.
The USCCR and its SAC’s, along with non-governmental groups and individuals, could play a useful role in speaking up for civil rights and civil liberties in specific, questionable cases. For example, challenges are being litigated currently about the constitutionality of denying counsel and court review to U.S. citizens declared to be enemy combatants and whether it matters that they have been captured on a foreign battlefield or in the U.S. But in discussing these and other tactics against terrorism within the constraints of the law and the Constitution, thoughtful analysis of the particulars and balancing of the competing goals are required. Sweeping generalizations, on either side of these difficult issues, do not, in my judgment, advance the debate.
Finally, the draft report, like the forum on which it is based, is fundamentally flawed because of its overly-ambitious scope. SAC’s across the country were asked by the Commission to investigate what happened to the affected populations in their jurisdictions following September 11, 2001, and what the relevant government bodies did to respond. Our Inter-SAC Committee could have provided a useful body of data if we had confined ourselves to that important subject. But, even though we represent only three jurisdictions, our committee instead went far beyond that charge, trying to educate the American public about the religion of Islam, an enormous and complex subject in itself, and to cover post-September 11 impacts on the affected populations throughout the country, all in a day and a half of testimony. The unfortunate result is that, except for one useful piece of testimony on the demographics of the Washington metropolitan area and the incomplete references to the Northern Virginia raid, the record is very slim about our area of the country. As a result, what happened in our three jurisdictions affecting civil rights and civil liberties and what the various government agencies have done here is, sadly, not apparent in the draft report.
January 25, 2003
Editorial Committee’s Clarifications to the Dissenting Statement by Stephen Kurzman
After reviewing the opinion written by the colleague who cast the solitary dissention in the 37 to 1 vote, the Inter-SAC Editorial Committee concluded that unless supplemented by clarifying information, the dissenting opinion misrepresents and thereby likely undermines the report. Therefore, the Editorial Committee, consisting of six members—the chairperson and one member each from the District of Columbia, Maryland, and Virginia Advisory Committees (SACs)—decided to issue a joint statement of how it went about planning and implementing its April 2002 forum and what its purposes were to place the dissention in context. This statement of clarifications first describes the procedures and decision-making process followed throughout the project and then comments on five substantive points.
In early November 2002 the three SACs in the Washington metropolitan area decided to undertake a joint inter-SAC project on civil rights issues in the aftermath of the 9/11 attacks and formed the 9/11 Inter-SAC Committee. Its first step was to form the Inter-SAC Planning Committee, consisting of the chairperson and an additional three members from each SAC, charging it with the responsibilities of planning a community forum on behalf of the three participating SACs and also soliciting input from other members. The final plan for the forum, developed and adopted step-by-step by the Planning Committee, was shared with all members of the three participating SACs to ensure that the plans reflected as diverse viewpoints as possible. This plan included five issue-specific panels and identified advocates, community representatives, and federal, state, and local agencies that would be invited to participate.
In order to maximize SAC involvement in the forum, all members of the three participating SACs were invited to sit on as many panels as they wished. The Planning Committee also designated one member from these volunteers to serve as the panel moderator. Each panel subcommittee, consisting of a moderator and volunteer members, prepared questions and issues for invited panelists to address.
As the project progressed to the report-drafting stage, the Inter-SAC Editorial Committee was formed to serve as the collective editor with attendant prerogatives. Although the Editorial Committee was small, every effort was made to ensure maximum input from all members of the three SACs, by sharing three draft versions of the report and each time soliciting input.
Mr. Kurzman served on both the Planning Committee and the subcommittee for the “Understanding Islam in America in the Aftermath of 9/11” panel. Every SAC member was given ample opportunity and urged to participate in decisionmaking regarding project planning and report drafting, although at times decisions were made by majority rule when consensus was not possible.
The Planning Committee considered whether the project should limit its focus to local issues or provide a wider perspective and a context to help the SAC members, forum attendees, and readers of the resulting report. Opinions varied, with some arguing that the forum should go as far and deep as looking into the root causes of anti-Arab, anti-Muslim, and anti-American sentiment, while others preferred to remain focused on local issues. After lengthy debate, the Planning Committee ultimately decided by majority vote to include three background panels, “Understanding Islam in America in the Aftermath of 9/11,” “National Crises, Civil Rights Protections, and Civil Liberties: A Historical Review,” and “Implementing the USA Patriot Act of 2001: Civil Rights Impact.” These panels were intended to provide background information to help better understand the civil rights issues discussed at the forum. The wide scope of the project was a deliberate decision of the Planning Committee.
3. Mission of the Advisory Committees and the purpose of the forum
The Planning Committee recognizes that government agencies and law enforcement officials face a delicate task of attending to national security concerns while providing due civil rights protections. It becomes more difficult when national security is violated or continually threatened. However, the responsibility of the SACs is to highlight civil rights concerns and issues where they exist. It is beyond the mandate of the SACs, and the scope of this project, to enter into lengthy discussions of the difficulties involved in protecting national security while respecting the civil rights of its population. Neither was it the intent of the forum to be a critical arbiter of the citizen complaints or to be an apologist for the actions of federal government agencies. Consistent with the idea of serving as the “ears and eyes” for the Commission, the purpose of the forum was to gather information on the fears and concerns of minority communities affected by the 9/11 attacks and public officials’ responses to the concerns expressed and their preventive or ameliorative actions.
4. Efforts by government agencies
The Planning Committee made extensive efforts to learn of and report on the actions taken by federal and local government agencies to prevent violence, harassment, discrimination, and other civil rights violations of the affected communities in the District of Columbia, Maryland, and Virginia. A total of 13 public officials (seven federal and six local government officials) were invited to participate in the forum to ensure that these preventive measures were fairly conveyed to the public. However, several of the invited government and elected officials (two federal and one local official) did not attend the forum.
The representatives of the federal government who were present provided the Inter-SAC Committee with a wealth of information. For example, two representatives from the U.S. Department of Justice (DOJ) discussed the department’s investigation of civil rights abuses by both DOJ employees and private individuals against Arabs, persons of Islamic and Sikh faiths, and those perceived to be of Middle Eastern descent. The representative from DOJ’s Community Relations Service described the department’s efforts not only to convey directly its concerns for civil rights to affected communities, but also to assist victims of harassment and violence. In addition, public officials from local governments (including police chiefs and administrators) from Maryland and Virginia discussed their collaborative work with federal agencies to investigate threats of terrorism, pursue terrorist suspects, and protect civil rights and liberties. Two representatives from the U.S. Department of Transportation also discussed the department’s efforts for civil rights protections for persons traveling by air in the United States within the context of domestic security challenges, describing both the system by which persons are identified as possible threats and safeguards the government uses to prevent discrimination.
5. Post-forum developments
The report is a summary of panel presentations that took place in April 2002. The information contained in the report results from the testimony of those panelists that the members of the District of Columbia, Maryland, and Virginia SACs chose to invite to the forum. The report highlights individual testimonies received, and reflects the views and opinions of the panelists who attended. The Planning Committee never intended to go beyond this limited goal. As much as it might be useful to compile major post-9/11 court decisions and provide a pertinent legal analysis, to do so is neither the purpose of the report nor within its intended scope.
This Inter-SAC report is only one component of the Commission’s work on post-9/11 civil rights issues; other SACs have held fact-finding briefings both before and after the April 2002 forum. The Commission continues to report on the various developments concerning post-9/11 civil rights concerns.
6. Reference to the raids in Northern Virginia
An appropriate footnote has been added in chapter 3 of the report to indicate that U.S. Treasury agents conducted the raids under search warrants. It also provides a description from news accounts of the raids and their psychological impact on one family subjected to a raid. More germane to the report, however, is the fact that the repeated references by panelists to the U.S. Treasury agents’ raids underscore how large the event looms in the minds of the Muslim community, whether or not the raids occurred with valid search warrants.
May 1, 2003