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Spring 2003
Volume 39, No. 3
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Lawyer-activist 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 she’d 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 Kessler’s message to Attorney General John Ashcroft could not have been clearer: “Unquestionably, the public’s 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 judge’s ruling would significantly weaken the U.S. war on terrorism. Kessler’s 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 general’s 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 can’t 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.”

 

The World According to Kate
A 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. 28, 2001.]

On the “trade-off” between national security and civil liberties:
“The polls all say that the public is willing to trade personal freedom for security, but that’s based on the assumption that there really is a trade-off—that giving up some liberties will make us more secure. In fact, however, history shows that
there really isn’t any trade-off; there’s 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 ‘unpatriotic’—but we eventually came to see that we were the real patriots—the 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 don’t 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. 28, 2001.]

The“Nerve” To Take On John Ashcroft
The 2002 lawsuit against the Justice Department—in which 20 different U.S. civil rights organizations signed onto Kate Martin’s brief—is 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 nation’s security as it is in defending freedom of speech and other civil liberties guaranteed by the Bill of Rights.
“I’m not a pacifist,” she will tell you bluntly, “and I’m convinced that there are times when war is absolutely necessary. And as a ‘single mom’ with a nine-year-old daughter [Sophie], I’m well aware of the enormous dangers we face here in Washington, if a terrorist were to detonate a nuclear bomb or something like that.

“I’m 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 Constitution—sorry, but I simply don’t see how eroding our liberties will help defeat terrorism!”

Describing the purpose of the legal center, Martin is careful to note that it’s “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 weeks—and in some cases months—in jail, without being allowed to consult with attorneys or even being publicly identified.

“The Department of Justice keeps saying over and over again that they aren’t 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 administration—led by this attorney general—looks at Muslims and Arabs as terrorists. And they’ve 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. She’s a tiny woman, barely five feet tall, and for a moment it’s 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 that’s her job, she says, while impatiently conceding: “There’s no denying that it’s an extremely difficult assignment, trying to identify these terrorists and catch them before they strike. But that’s the challenge that the Justice Department has been given, to find these criminals and arrest them—without bending the Constitution or violating the rights of ordinary citizens. It’s a tough balancing act, but we’re 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 Constitution—even to the point of doing things like burglarizing a psychiatrist’s 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 Rights—they aren’t 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 impact—sometimes a life-or-death impact—on what takes place in this country day in and day out.”

Plato and the Vietnam War
Ask Kate Martin how she became one of America’s most controversial—and highly regarded—civil liberties attorneys, and she’ll 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 wasn’t Cornell; it was a small school, so we didn’t 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 government—to read The Republic with Fred Sontag in class every day, or take a course on Zen mysticism with Margaret Dornish in Religious Studies—well, 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 Cong.

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 Joyce’s 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 Sontag—today the author of 27 books on philosophical and religious topics and still teaching at Pomona after 50 years—says 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 Union—and a frequent co-plaintiff with Martin on lawsuits aimed at bringing the DOJ to heel—says that she has always been “extremely courageous, I think, in her refusal to accept the government’s arguments about the vital importance of national security, compared to ensuring civil liberties.

“Kate has been a colleague for a very long time, and there’s no question that she’s a very talented lawyer. She’s 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 Nixon’s 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 our liberties.”

The legal victories racked up by the CNSS in recent years clearly support Halperin’s assessment of Martin’s 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 Constitution.
  • 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 surveillance.

“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 aren’t the only threat that America now faces, says Kate Martin. Ask her to meditate on this country’s future for a moment, and the University of Virginia–trained 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 frowns.

Then she’ll 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 they’re doing. If that’s the way they’re trying to find a potential terrorist, they have no idea!

“I don’t want to sound alarmist, but I think we’re 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 pilot’s license.”

She sighs and shakes her head. “I saw a story in The Washington Post the other day, about some Pakistanis who’d lived in New York. These were U.S. citizens, and they’d been living there for many years and doing quite well. But now they were so worried
that they were about to be jailed—they were trekking through the snow to make a border crossing into Canada, hoping to make a new life as refugees.

“It’s heartbreaking, and it’s also unnecessary. We can do better than that in America. We don’t have to trade our freedoms for security—what kind of trade-off is that?

“Look, I know I’m 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. That’s our job at the Center, as I see it—working to shore up those safeguards everywhere we can. And I think I’m 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 we’re 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.