Civil Liberties in a Polarized Time: An Interview with Nadine Strossen

“In Congress, no matter how strongly I agree with somebody on some issues, I’m going to strongly disagree on others. But, it is this stance that has enabled the ACLU to work in odd bedfellow coalitions to advance our agenda.”

Nadine Strossen was not only the first female President of the American Civil Liberties Union—but also its youngest, leading the organization from 1991 to 2008. She has used her platform to forward the cause of civil liberties in the United States from Fourth Amendment issues to calling for drug liberalization. Currently a professor at New York Law School, Professor Strossen continues her work in policy by sitting on the Council on Foreign Relations, a think tank dedicated to U.S. international affairs. On July 24th, Professor Strossen joined Merion West’s Erich Prince to discuss issues of civil liberties, from post-9/11 security to drunk driving checkpoints to the future of the “War on Drugs.”

The ACLU sometimes finds itself taking policy positions that fall outside of the typical partisan divide. Some policies the ACLU supports are favored by folks on the libertarian right. Other positions, such as your organization’s stance on abortion, are clearly favored by Democrats. Is the ACLU trying to steer clear of 2018’s sharply partisan politics?

The ACLU, by its own nonprofit corporation charter, is strictly non-partisan. We never take positions for or against a particular candidate, official, party or organization. Rather, we take positions on civil liberties issues, and therefore for any individual or group, we would issue either criticism or praise on an issue-by-issue basis. One of the many wonderful things about that stance is that no matter who you are or no matter how strongly I disagree with you on some issues, there are always some issues that are deeply important to both of us where we share common concerns. Hopefully, then, we can work together to advance those concerns.

In Congress, no matter how strongly I agree with somebody on some issues, I’m going to strongly disagree on others. But, it is this stance that has enabled the ACLU to work in odd bedfellow coalitions to advance our agenda. I think that really enhances our effectiveness as an advocacy organization. It also enhances credibility in a non-political forum such as the United States Supreme Court.

I say “non-political” in the sense of striving to adhere to neutral principles. They know that if we take a position, it is not because of whose partisan or ideological ox is gored in a particular case. They may still disagree with our position, but they know that we’re trying our best to do what all government officials are supposed to do, which is to neutrally defend all freedoms for all people—that includes who they are and what they believe politically, religiously, or any other basis.

I want to ask you about this trade-off that’s frequently described. It was perhaps articulated best by the late Charles Krauthammer. He’s describing a trade-off between liberty and security, as if there’s an almost inverse relationship—as one increases, the other one decreases. Is this a trade-off that you believe exists or is this a false binary?

One way that I can approach it is just by telling you that within a day or so, very soon after the 9/11 terrorist attacks, the ACLU adopted a mantra that was key to our efforts and continues to be. Although, unfortunately, post 9/11 has become the new normal in terms of mass surveillance and other ongoing massive violations of civil liberties. That is now pretty much taken for granted by too many members of the public. But, our mantra was “safe and free.” In other words, our position is that you do not have to choose. I have debated government officials in the immediate aftermath of 9/11 when people were more concerned about those supposed trade-offs.

You might remember that one of the first heads of the DHS [Department of Homeland Security] said, “Look, we would not want to live in a society that had such perfect security that there was no freedom. Nobody would want that.” A lot of the measures that were touted as advancing national security, in fact, have been completely, vigorously—and I think convincingly—denounced by security experts as not being effective and as even being counterproductive in many ways. So, some of the top security experts—including Bruce Schneier—have been so harshly critical of all kinds of surveillance and other post 9/11 measures because they constitute what he and others have called “security theater.” They give people a false illusion of security. In fact, they’re not making us any safer.

To take a source that hopefully will have more widespread respect—although unfortunately it didn’t have much impact: the bipartisan commission that was appointed too long after the Patriot Act and others that had just sailed through with almost no debate at all—this bipartisan commission of experts was headed by one prominent former Democratic official and one prominent former Republican official. They analyzed the actual causes of the 9/11 attacks.

Having too much privacy, having “too much liberty” was not any of the causes that contributed. It was much more mundane factors such as inadequate computer systems, not enough translators, and poor communications among enforcement officials. Basically five years later, there was a report card about how many of the recommended steps had been taken, and there were failing grades on just about every measure because all the efforts went into suppressing freedom, at the cost of things that would really enhance our security.

There are often a lot of criticisms leveled at the TSA in terms of there not being overwhelming evidence that the agency effectively thwarts attacks and about some of these new X-Ray machines or certain intensive pat-downs. Is the TSA one example of what you’re describing, of something offering the guise of making a safer environment and doesn’t actually follow through?

In this age of hyper-partisanship, it’s making me nostalgic for the wake of 9/11. There was one committee in the House of Representatives before the Patriot Act was being enacted. This committee came up with an alternative that was much more narrowly focused on demonstrated causes of counterintelligence failures, and it did not have the massive cutbacks on privacy and freedom. It was endorsed unanimously by a committee that included support from the extreme left to the extreme right—everyone from Barney Frank on the left to Bob Barr on the right. So, it shows that this was not a matter of ideology. This was a matter of people who were not being panicked and stampeded into doing something or the appearance of doing something.

In addition to the example that you provide about the TSA, every single time that there is an effort to smuggle dangerous devices, such as explosives and other harmful materials onto airplanes, they get through. The actual effectiveness rate is appalling, and a think tank, I think a conservative-oriented one or one that focuses on economic issues, did a study of the so-called airplane security measures. They found that they were actually causing more loss of life because they added so much more money to the cost of an airplane ticket. In particular, young families with children were driving instead of flying, and there were many more automobile deaths as a result.

So switching gears a little bit, but also on the subject of the Fourth Amendment, I want to ask you about the issue of sobriety and drunk driving checkpoints. There was the 1990 Supreme Court case Michigan Department of State Police v. Sitz, which ruled that the state’s interest in preventing automobile deaths was outweighing some of these concerns about privacy or unreasonable searches and seizures. What do you make generally of this issue of police sobriety checkpoints?

Do you know that I wrote a whole law review article about this? This is an interest that is very dear to my heart. Even before the Supreme Court decided this case, I co-authored a law review article strongly opposing these roadblocks for two reasons. One, that it is completely inconsistent with the plain meaning and original intent of the Fourth Amendment, which requires at the absolute minimum some degree of evidence to raise suspicion that a particular person being seized and searched is committing, has committed, or is about to commit a crime. Any kind of mass search is, therefore, inherently antithetical to the core meaning of the Fourth Amendment. So that was number one.

Point number two was covered by my co-author Jim Jacobs, a professor at NYU Law School who is a criminologist, and he dealt with the ineffectiveness of drunk driving roadblocks and, in fact, their counter-productiveness in terms of actually meaningfully dealing with the very serious problem of drinking and driving. So again, it’s the worst of both worlds. I think it’s very important in addressing any civil liberties issue to understand what the driving motivation is for people who are advocating a cutback on the civil liberties or the constitutional right at issue.

You’ve pretty much covered the two foremost ones, which are national security and personal safety. There is also health and welfare. The best interests of children come up very often. Also, in the context of hate speech codes and in laws, which I’ve been writing and speaking against in the recent past: to promote other rights, countervailing rights. Even if those goals are only pretextual, they’re always recited. In most cases, there is a genuine belief that these rights-restricting measures are really important to promote important goals like national security and personal safety.

I don’t agree with Patrick Henry’s, “Give me liberty or give me death.” I believe that I have to be alive to be able to enjoy my liberty. I think it’s really important for civil liberties activists to explain why these measures are either ineffective—or even if they are effective—there are alternative measures that are at least as effective and also consistent with liberty. We don’t strictly have to do that as advocates of the ACLU. We’re not specifically a public policy organization. But that’s what people care about—people don’t care about freedom in the abstract.

So for my last topic, I wanted to ask you about drug policy. It seems that a lot of the public discourse or a lot of the so-called “changing opinion” is focused on liberalization towards marijuana. What is the experience of going a step further and saying it shouldn’t just be marijuana and that the principle applies to other drugs, even drugs that are considered stronger than marijuana?

Well, absolutely. That’s always been my personal position and the position of the ACLU organization. Basically, any consenting adult should be able to choose whatever he or she does with his or her own body. That would include ingesting, inhaling, or inserting any substance and any object. I believe that people have the right to kill themselves, including if they want to do it slowly with tobacco or some kind of dangerous illegal drugs. They should be able to do that. In terms of criminalization, those in the public health field say that is not an effective way to deal with public health issues that definitely arise from certain substance abuse. I’ve read a lot that suggests that marijuana, for one, has less toxic impacts on individuals than other substances, including alcohol.

Many years ago when the crack cocaine epidemic first came to public light, there was a call for the ACLU to re-examine that tried and true position. And we did. It would be unjustifiable for an organization devoted to free speech and free thought not to reexamine even the most tried and true positions. As a result of studying all the information that we could find about this problem, we resoundingly reaffirmed our traditional position that criminalization was neither a principled nor an effective way to deal with whatever the adverse consequences were of crack cocaine or any other substance.

Lastly, what do you see as the intersection of states and municipalities that are engaging in drug liberalization policies with employers in those jurisdictions wanting to impose some sort of requirements when it comes to drug policy among people hired?

Again, this is bringing back memories, and I’m so happy that the issues that the ACLU has been advocating on for a long time are now finally gaining traction. That’s really a very heartening development. I was beginning to be despondent that I would never see any kind of repeal of drug prohibition in my lifetime. When you consider how quickly the prohibition of alcohol turned around, this “War on Drugs” is going on forever and ever and ever—like the “War on Terrorism.” I was beginning to think that these were just permanent states. So those developments are very encouraging.

The negative is that many years ago, we started to see employers impose various conditions on what we considered to be the private sphere of employees’ lives and conduct. This included not only banning various illegal substances but also legal substances. There were bans on alcohol and tobacco, and some employers were saying you can’t engage in dangerous sports such as skiing—and that you can’t ride a motorcycle.

The rationale was that it was going to drive up insurance costs for the employer and for other employees. So that’s certainly a rational reason. But, as lawyers like to say, “The point proves too much.” If anything that could have any impact on the workplace could be regulated, that becomes a recipe for complete totalitarian control 24/7, 365, wherever you are. We were arguing that even when you are on that job or on the premises of your employer, you should have certain fundamental rights. Even more strongly, you have those rights when you are not at work.

Employers should not be able to use economic leverage to try to usurp your liberties. Now, this is a point where I disagree with my libertarian friends over at the Cato Institute because their view is that that’s the right of the employer if it’s a private sector employer, who is not bound by the Constitution. Their answer is that, “If you don’t like those conditions, go get another job,” which I think is very unrealistic given who really wields the power.

Obviously, changing economic times can give realistic options in theory, but I think there’s a real danger that once some employers start enforcing these conditions they’re just going to become ubiquitous. You should not have to forfeit your fundamental freedom and your basic life choices as the price of earning a living.

Nadine, I really appreciate you joining us for this conversation. Thank you for a very interesting conversation.

It was wonderful to do it. Thank you so much.