Kate Martin 73 is leading the struggle to balance national security
with civil liberties...
One morning last summer, only 11 months after what some
historians are now calling the worst crime in American history,
veteran trial lawyer Kate Martin 73 walked into a federal courtroom
in Washington and discovered that shed just won a headline-making
legal battle against the United States of America.
It happened on Aug. 2, 2002, when U.S. District Judge Gladys Kessler ordered
the Department of Justice (DOJ) to release the names of nearly 1,200 suspects
it had arrested in the wake of the Sept. 11, 2001, terrorist attacks on
the World Trade Center and the U.S. Pentagon. Judge Kesslers message
to Attorney General John Ashcroft could not have been clearer: Unquestionably,
the publics interest in learning the identities of those arrested
and detained is essential to verifying whether the government is operating
within the bounds of the law.
As Kate Martin expected, the lawyers for the DOJ responded to the decision
with icy disdain.
Robert McCallum, assistant attorney general for civil rights, did not
mince words while noting that the judges ruling would significantly
weaken the U.S. war on terrorism. Kesslers decision, said McCallum,
impedes one of the most important federal law enforcement investigations
in history, harms our efforts to bring to justice those responsible for
the heinous attacks of Sept. 11, and increases the risk of future terrorist
threats to our nation.
But Martin was equally adamant, insisting that the ruling represented
an important victory for civil liberties during a period in which our
Constitutional rights to due process are being challenged as never before
by the ongoing U.S. campaign to root out and punish terrorists. This
decision is a complete repudiation of the attorney generals policy
of rounding up hundreds of individuals in secrecy, Martin told reporters
immediately after the decision was announced.
Added the longtime civil liberties lawyer, who has served since 1995 as
the executive director of the Center for National Security Studies (CNSS),
a nonprofit and nongovernmental public interest group that seeks to balance
national security needs with civil liberties: The [Kessler] opinion
is vindication of the basic principle that you cant have secret
arrests. Secret arrests are undemocratic.
Although the case remains on appeal at this writing and the names of the
1,200 detainees have not yet been made public, Martin is convinced that
the decision sent exactly right the message to the Department of
Justice and to the American public. And the message is that we can
balance the needs of national security with the due-process guarantees
provided for all of us under the Constitution of the United States.
According to Kate
few Quotable Quotes from the director of the Center
for National Security Studies
On the importance
of protecting both national security and civil liberties:
Certainly, there is no greater government responsibility today
than to work to prevent future terrorist attacks like those on September
11. The attorney general and the FBI director share the enormous
responsibility of carrying out an effective investigation to prevent
more attacks. Of equal importance is Congress responsibility
to conduct oversight of that investigation to protect our security
and to protect the Constitution.
[From testimony before the U.S. Senate Judiciary Committee, Nov.
On the trade-off between national security and civil
The polls all say that the public is willing to trade personal
freedom for security, but thats based on the assumption that
there really is a trade-offthat giving up some liberties will
make us more secure. In fact, however, history shows that
there really isnt any trade-off; theres no proven connection
at all between giving up freedoms and increased security.
On her love of the law as an intellectual challenge:
To my surprise, I discovered in law school [at the University
of Virginia] that I had a kind of aptitude for the subject. You
know, some people in law school really like to read the cases and
do the legal reasoning, and that was me. Right from the beginning,
I fell in love with the intellectual approach to case law.
On her opposition to the Vietnam War and the definition of patriotism:
Those of us who protested against the war were often called
unpatrioticbut we eventually came to see that
we were the real patriotsthe ones who questioned what the
U.S. was doing in Vietnam, and who questioned whether it was right
for so many people to be killed.
On President Bush and executive authority:
This administration has been using authorities which they
argue are inherent in the president under the Constitution, as he
meets his responsibility to defend the national security. But these
authorities dont actually exist. And when they arrested 1,000
people in secret, immediately after 9/11, there were no congressionally
passed laws authorizing the secret detention of U.S. citizens picked
up in the United States.
On the potential for human rights abuses stemming from DOJ arrests:
There is every reason to fear that the cloak of secrecy is
shielding extensive violations of completely innocent individuals.
These violations include imprisonment without probable cause, denial
of the constitutional right to bail, interference with the right
to counsel, and abusive conditions in detention.
[From testimony before the U.S. Senate Judiciary Committee, Nov.
TheNerve To Take On John Ashcroft
The 2002 lawsuit against the Justice Departmentin which 20 different
U.S. civil rights organizations signed onto Kate Martins briefis
only the latest in a long series of legal actions initiated by the Pomona
College alum in recent years, as she pursues her continuing legal quest
to help balance national security requirements against the need to preserve
the Constitutional freedoms we all enjoy.
Make no mistake, however: Kate Martin becomes quite vehement when pointing
out that her organization is as interested in defending the nations
security as it is in defending freedom of speech and other civil liberties
guaranteed by the Bill of Rights.
Im not a pacifist, she will tell you bluntly, and
Im convinced that there are times when war is absolutely necessary.
And as a single mom with a nine-year-old daughter [Sophie],
Im well aware of the enormous dangers we face here in Washington,
if a terrorist were to detonate a nuclear bomb or something like that.
Im also deeply troubled about the horrors that were inflicted
on all of us back on Sept. 11, 2001. Obviously, we must do everything
we can to track down and convict and sentence the criminals responsible
for the devastating attacks that day. But arresting people in secret,
or tapping their telephones without allowing them the due-process protections
guaranteed by the Constitutionsorry, but I simply dont see
how eroding our liberties will help defeat terrorism!
Describing the purpose of the legal center, Martin is careful to note
that its the only nonprofit human rights and civil liberties
organization whose core mission is to prevent claims of national security
from eroding civil liberties or constitutional procedures.
During her 12 years at the 30-year-old advocacy group, which until 1994
was associated with the American Civil Liberties Union, Martin has either
launched or joined more than a dozen lawsuits aimed at forcing the federal
government to release information that was allegedly being kept needlessly
secret, or at compelling federal law-enforcement and intelligence agencies
such as the FBI and CIA to desist from investigative techniques that allegedly
ran roughshod over Constitutional rights.
In the weeks that followed 9/11, this attorney general and his investigators
rounded up 1,200 people and had them arrested and then detained in secret,
she says with a weary sigh. Most of those people were later released,
and it soon became clear that they had no involvement with terrorism,
whatsoever. Yet many spent weeksand in some cases monthsin
jail, without being allowed to consult with attorneys or even being publicly
The Department of Justice keeps saying over and over again that
they arent targeting Muslims or Arabs simply because of their religion
or their ethnic identities. But if you push them and push them, you begin
to realize that this is precisely what they are doing. Despite all the
rhetoric to the contrary, this administrationled by this attorney
generallooks at Muslims and Arabs as terrorists. And theyve
put entire communities under suspicion in the United States.
She pauses for a moment, exasperated, and then performs a familiar gesture:
throwing back a lock of her jet-black hair. Shes a tiny woman, barely
five feet tall, and for a moment its easy to wonder where Kate Martin
finds the raw nerve necessary to take on executive-branch heavy-hitters
such as the hard-nosed John Ashcroft, or the relentlessly glowering FBI
director, Robert Mueller.
But thats her job, she says, while impatiently conceding: Theres
no denying that its an extremely difficult assignment, trying to
identify these terrorists and catch them before they strike. But thats
the challenge that the Justice Department has been given, to find these
criminals and arrest themwithout bending the Constitution or violating
the rights of ordinary citizens. Its a tough balancing act, but
were here to keep reminding them that it has to be achieved.
And what happens when the balance is lost?
Just think about Watergate, says Martin with a wry grimace.
I mean, the notion of an Imperial Presidency in the
name of national security was certainly an idea that was pushed during
the Nixon years. President Nixon made that argument, and he seemed to
believe that national security could justify twisting the Constitutioneven
to the point of doing things like burglarizing a psychiatrists office,
in order to attack the credibility of a dissenter [Daniel Ellsberg].
If we allow the Constitution to be eroded in the quest for security,
the consequences will harm us all. These arguments about the separation
of government powers and civil liberties and the Bill of Rightsthey
arent just abstract, academic questions issues debated by legal
scholars. The way we think about them and the decisions we make about
them have a real impactsometimes a life-or-death impacton
what takes place in this country day in and day out.
Plato and the Vietnam War
Kate Martin how she became one of Americas most controversialand
highly regardedcivil liberties attorneys, and shell tell you
that her amazing odyssey from ardent Vietnam War opponent to champion-defender
of the U.S. Constitution probably got its start on the campus of Pomona
College about 30 years ago, while she was reading Plato with this
extraordinary philosophy professor, Fred Sontag.
As I recall, we started by asking ourselves what it meant to be
a good person, says Martin, while relaxing for an hour in her office
on downtown 19th Street. And from there, we went on to ask about
the relationship between the individual and how a government or a state
should be run.
You have to remember that all of this was happening against the
backdrop of the Vietnam War, she says with a sigh. I arrived
on campus in 1969, and the Moratorium March in Washington took place in
November. Then, by the spring of my freshman year, we were bombing Cambodia,
and the killings took place at Kent State. Of course, Pomona wasnt
Cornell; it was a small school, so we didnt have the kinds of massive
shutdowns you saw in other places around the country, although I do remember
that there was a strike, and the college was closed for a few days.
Well, as you can imagine, this was an extraordinary time to be a
college student. And to be able to ask questions about philosophy and
governmentto read The Republic with Fred Sontag in class
every day, or take a course on Zen mysticism with Margaret Dornish in
Religious Studieswell, those were just very thrilling experiences
for a college freshman.
As a fresh-faced 18-year-old from the Midwest, Martin had been raised
in a bookish family heavily influenced by her father, a longtime physics
professor at the University of Indiana. But her mother was keenly
sensitive to the political issues of the day, she recalls, and dinnertime
was frequently punctuated by explosive debates on the legitimacy of the
Vietnam War, while American fighter jets streaked across the TV screen
and Walter Cronkite described the nightly body count of Viet
A self-described lifelong idealist, the youthful Martin brought
enormous energy to what she now describes as the priceless gift
of a liberal arts education. A relentless reader and writer, she worked
her way through James Joyces gargantuan Finnegans Wake in one course,
in between fierce bouts of wrestling with ideas of Kant and Hegel and
Plato and Nietzsche in others.
Professor Sontagtoday the author of 27 books on philosophical and
religious topics and still teaching at Pomona after 50 yearssays
he remembers Martin as a quiet but deep student who wrote
and talked a lot about the relationships between personal ethics and government,
and who seemed quite committed to public service.
One Constitutional Victory After Another
How effective has Kate Martin been at balancing the seemingly conflicting
needs of national security with those of Constitutional freedom? Steven
Shapiro, the highly regarded legal director of the American Civil Liberties
Unionand a frequent co-plaintiff with Martin on lawsuits aimed at
bringing the DOJ to heelsays that she has always been extremely
courageous, I think, in her refusal to accept the governments arguments
about the vital importance of national security, compared to ensuring
Kate has been a colleague for a very long time, and theres
no question that shes a very talented lawyer. Shes also a
powerful advocate for civil liberties and one of the most knowledgeable
people in the country about how we can preserve both our freedoms as citizens
and our national security.
Adds Dr. Morton Halperin, a co-founder of CNSS back in 1974 who launched
the civil liberties organization after his own office telephone was illicitly
wiretapped by his boss, Richard Nixons Secretary of State, Henry
Kissinger: Kate Martin has for many years played a leading role
in organizing opposition to infractions on civil liberties in the name
of national security. Since 9/11, her leadership and commitment to principle
have been particularly important.
Kate is a great litigator and her deep understanding of the issues
has helped many of us think through the difficult questions faced by the
nation as it seeks to deal with the terrorist threat without violating
The legal victories racked up by the CNSS in recent years clearly support
Halperins assessment of Martins expertise. Among the most
significant civil liberties victories have been the following:
- In a Supreme Court battle 12 years ago, Martin & Co. prevented
the first Bush administration from denying appropriate foreign intelligence
information to Congress, thus helping to protect the vital separation
of powers between branches of government, as enumerated in the
- CNSS helped restore minimal privacy and due process rights in new
security clearance investigations procedures by the federal government.
- A successful lawsuit forced the CIA to release its intelligence budgets
for 1997 and 1998. This litigation made public thousands of documents
that would have remained secret otherwise.
- The CNSS has written numerous briefs for the Supreme Court that clarified
and defined issues ranging from secrecy and classification of national
security information to access to intelligence information and government
We Must Not Trade Freedom For Security!
No one who witnessed the destruction of the World Trade Center or the
attack on the Pentagon needs to be told that these are extraordinarily
dangerous times. But the international terrorists arent the only
threat that America now faces, says Kate Martin. Ask her to meditate on
this countrys future for a moment, and the University of Virginiatrained
lawyer (she spent a decade as a private-practice litigator before joining
the CNSS in 1988) will start by sending you one of her darkest, most troubled
Then shell throw back a lock of her hair and begin to growl: You
know, I just got a report the other day of the FBI asking a mosque for
a list of all its members. To me, that says the FBI has no idea what theyre
doing. If thats the way theyre trying to find a potential
terrorist, they have no idea!
I dont want to sound alarmist, but I think were facing
a significant threat right now, in terms of potentially losing some of
our Constitutional safeguards in this country. Really, I do think this
attorney general has shown a disturbing lack of regard for the Constitution
in his actions and in his rhetoric.
And I also think the Justice Department under his leadership has
been engaged in what can only be understood as an effort to target immigrants,
not terrorists. And that is very discouraging to me, because real lives
are at stake here. There are people in this country whose lives have been
uprooted and perhaps even ruined for no other reason than the fact that
they were Muslims, and maybe had a pilots license.
She sighs and shakes her head. I saw a story in The Washington
Post the other day, about some Pakistanis whod lived in New
York. These were U.S. citizens, and theyd been living there for
many years and doing quite well. But now they were so worried
that they were about to be jailedthey were trekking through the
snow to make a border crossing into Canada, hoping to make a new life
Its heartbreaking, and its also unnecessary. We can
do better than that in America. We dont have to trade our freedoms
for securitywhat kind of trade-off is that?
Look, I know Im not in danger of being arrested, no matter
how much I might criticize John Ashcroft. But there are millions of people
in this country who are in danger of being jailed, merely because
of their religion or their ethnic backgrounds, unless we can hold the
line on their Constitutional safeguards. Thats our job at the Center,
as I see itworking to shore up those safeguards everywhere we can.
And I think Im very lucky, very privileged to be allowed to do this
kind of work.
The United States has always been a beacon of freedom to the world.
If were going to win the war against the forces of fanatical religious
fundamentalism, it will be because we remain true to the basic values
contained in the Constitution and the Bill of Rights.
Tom Nugent is a freelance journalist who lives in Hastings, Michigan.