At a moment when our country stands at a potentially transformative political moment–an opportunity to realize the ideal of a nation governed by the rule of law, the Massachusetts ACLU held its annual Bill of Rights dinner to honor the courage of those who protect our rights as defined in the Bill of Rights and the Constitution.

It was an evening of powerful personal and political testimony. James Yee, a former US Army Captain who served as Muslim Chaplain for the US prison camp in Guantanamo Bay, Cuba spoke of how he stood up to the chain of command in defense of Muslim prisoner’s basic rights. Kerry Kennedy, a human rights activist, and niece of Senator Edward Kennedy, celebrated the Massachusetts Senator’s long-running and tenacious defense of human rights and civil liberties and spoke movingly of how Kennedy had defended dissidents around the world who were now members of their country’s government. And Baratunde Thurston, a self-described “vigilante pundit” and “conscious comic,” author and blogger, had 600 people in downtown Boston laughing mightily as he skewered the follies of times past, present and future.

The evening was spirited, moving, and inspiring for its celebration of conscience and dedication to causes won, and not yet won. I was privileged to be a part of it. My keynote remarks follow.


Katrina vanden Heuvel
Remarks to the 28th Annual Bill of Rights Dinner
ACLU Foundation of Massachusetts
Boston, Massachusetts
May 28, 2009

In 1918, two years before he founded the ACLU, my godfather, Roger Baldwin, went to prison. As a leader of the American Union Against Militarism, he refused to sign up for the World War I draft. A judge sent him to jail for a year.

At the time, most people assumed Baldwin wouldn’t actually have to serve his sentence. After all, he had friends in high places, and some of them offered to write to President Wilson personally and have him pardoned. Baldwin turned them down.

Later that year, a clerical error took two months off his sentence, and Baldwin was the only one who noticed. So what did he do? He wrote the judge in his case to say, “Listen, there’s been a mistake,” and he served those two months.

Why did he refuse to leave prison early? Was it simply that he was contrary? Well, maybe a little. But at the heart of Roger Baldwin’s philosophy, at the heart of the ACLU, at the heart of America, is an absolute faith in the Rule of Law. In a democracy, nobody has a get out of jail free card.

Over the past 80 years, there is no single organization that has done more to protect the rule of law for more people in more places in more ways than the ACLU. As the great Molly Ivins once wrote, “The ACLU exists to protect every citizens’ rights as defined in the Bill of Rights and the Constitution of the United States.

I imagine some of you even received the letter she wrote shortly before she died, in which she announced that she was remembering the ACLU in her will and hoped others would do the same. “Just think,” she wrote, “about all the hell the ACLU can raise with your money. I can’t think of anything I’d rather do with my worldly goods than fund folks who will be a pain in the ass to whatever power come to be.”

I am pretty sure that somewhere, Molly and Roger Baldwin are probably driving somebody crazy right now. But if they could be here, I know how proud they would be to see James Yee receive the 2009 Baldwin Award for his strength and courage in standing up to the entire chain of command at Guantanamo in defense of Muslim prisoners’ basic human rights. I know how delighted they would be to see Kerry Kennedy carry on the work of her Uncle, Senator Edward kennedy and her father, Senator Robert Kennedy. And I know they’d both find a kindred soul in Baratunde Thurston and his work–as his book says–to keep Jerry Falwell away from his Oreo cookies.

At the Nation, of course, we are proud of the many, many battles we have fought together over the years. I like to think we help keep each other strong. And we have been honored to join the ACLU in recent years in trying to bring a little more sunlight into the black hole of the Bush Administration. A year ago, we were especially proud to join with the ACLU in a lawsuit filed in the US District Court of New York challenging the constitutionality of the FISA Amendments Act, also known as the Warrantless Wiretapping Act: which simply argued that it is possible to defend this country from terrorists while also protecting the right and freedoms that define our nation.

Roger Baldwin always believed that no matter how dark things get, America will always find a way back into the light. From his prison cell, he wrote a friend: “Time will justify the strength of those of us who do not yield to blind authority and mob opinion.”

The past eight years have taken this country to some dark places: to Guantanamo Bay, to secret CIA jails, to the “Salt Pit,” where an Afghani prisoner died of hypothermia, chained naked to a wall outdoors.

But when President Bush told us that only illegal prisons could keep us safe, you, the members of the ACLU, did not yield. When too many in Congress were too scared to stand up to the Patriot Act or to warrantless wiretapping, you did not yield. When too many in the media turned a blind eye to abuses of power around the world, you did not yield.

And then, after eight long years, we elected a President whose first act was to ban torture; who declared eloquently in his Inaugural Address that “we reject as false the choice between our safety and our ideals;” “who said at the National Archives just last week that, “those who argued for these (torture) tactics were on the wrong side of the debate, and the wrong side of history. We must leave these methods where they belong–in the past.”

This was a conviction reflected in his first 100 days, in which he announced plans to shutter Guantanamo . . . in which he ordered the release of the infamous torture memos of the Bush Administration, and said as plainly as he could, quote, “I know some have argued that brutal methods like water-boarding were necessary to keep us safe. I could not disagree more.”

Of course, the President said those words on May 21st, an hour before the dark lord of water-boarding himself, Dick Cheney, embarked on what has rightly been called his “tortured logic tour.” After years of living in undisclosed locations, the Vice can be found everywhere and anywhere. In a speech at the American Enterprise Institute, he said that water boarding–which was torture when Americans did it to Filipino prisoners in 1898, and was torture when Japanese soldiers did it to Americans in 1945–suddenly was a legal part of what he called “asking questions.”

We now know that “enhanced interrogation techniques” produced false confessions: confessions which were used to justify the War in Iraq. Just last week, Colonel Lawrence Wilkerson–the former chief of staff to Secretary of State Colin Powell–went on the Rachel Maddow Show and said that one of the main uses of the Bush-Cheney era torture was to persuade detainees to “confess” to ties between Saddam Hussein, al Qaeda, and 9/11.

I know how happy it makes Democrats to see Dick Cheney and Rush Limbaugh compete to be the face of the Republican Party. But it’s gruesome to watch, and while it may ensure that the GOP stays around 30% of the electorate, a healthy democracy needs at least two modern, tolerant, reasonable parties.

Somehow, I think Cheney believes that speaking out now in defiance will somehow make us forget that the attacks on 9/11 happened on his watch, or that he ignored every piece of credible evidence about bin Laden beforehand.

And yet, here he is, lecturing us, as he did last week, that “when just a single clue that goes unlearned or one lead that goes un-pursued can bring on catastrophe, it’s no time for splitting differences. There is never a good time to compromise when the lives and safety of the American people hang in the balance.”

To Dick Cheney, I say: “there is never a good time to compromise America’s highest ideals. As the ACLU has believed for its entire history, time and again, our values have been our best national security asset.”

Nobody envies President Obama as he tries to undo the illegal and shameful Bush-Cheney detainee policy. At the Nation, we believe that America will never truly find its balance again until we get off the permanent war footing we are on today. Another thing Cheney did last week was mock the Obama Administration for not using the phrase, “War on Terror.” Let’s not forget that Donald Rumsfeld and the rest of the neo-cons didn’t call it the war on terror either. They called it “the long war.” Because that’s what Bible-quoting Christian soldiers like Rumsfeld want more than anything: a war without end; a permanent vacation from the Constitution.

It’s this fear of never-ending war that led Roger Baldwin to form the American Union Against Militarism, and then the ACLU. And he was right: this century’s greatest abuses of civil liberties, from Japanese internment to Abu Ghraib, have occurred while our nation was at war.

The collateral damage to our liberties has never been clearer than it’s been the past eight years. This permanent military paradigm has been used as justification for almost anything, from unlawful spying on Americans, to illegal detention policies, to hyper-secrecy to equating dissent with disloyalty.

Dick Cheney can complain as he did last week that his illegal surveillance campaign was secret until it ended up on the front page of the New York Times: but they never seemed to understand that how we defend America is just as important as what we defend. If permanent war footing allows us to permanently suspend our constitutional rights, America will have lost a lot more on 9/11 than even the terrorists could have imagined.

Terrorism is a brutal tactic which must be condemned. But fighting terror requires genuine cooperation with other nations in policing; in lawful, targeted intelligence work; and in smart diplomacy. We need to confront the danger of inflating a very real–but limited–threat of terrorism into an open-ended global war. We need a blueprint for how to exit this “long war.” Because until we break with this paradigm, we will confront plans for what President Obama called in his National Archives speech “prolonged detention.”

This idea, as Senator Russ Feingold wrote the President “is a hallmark of abusive systems that we have historically criticized around the world.”

In 1987, Justice William Brennan gave a remarkable speech in Jerusalem to the Hebrew University Law School. Listen to what he argued. And I quote, “Our history has taught us how difficult it is to establish civil liberties against the backdrop of security threats. But while difficult, it is our work to build bulwarks of liberty that can endure the fears and frenzy of sudden danger–bulwarks to help guarantee that a nation fighting for it survival does not sacrifice those national values that make the fight worthwhile.”

This is the never-ending task of the ACLU. With each passing week, we see that our work to reclaim our moral compass–not just for the sake of our position in the world, but for the sake of our own national conscience–is not over. When President Obama strives to keep us true to our values, we are right to support him. And when he is tempted to compromise those values, it is still our responsibility to hold him to account.

I spend a lot of time in Washington, doing battle on those Sunday talk shows. One thing I am sick of hearing from all the Beltway pundits is that somehow, it’s only the ACLU or the President’s left-wing base that is demanding accountability. Really? When did supporting and defending the Constitution become the concern of the limited few? As Molly Ivins wrote, “the ACLU works solely through the legal system: without advocating violence, terrorism, or any other damn thing except the Bill of Rights. Since when did that become extremism?

One place we need to continue to raise our voices, I believe, is the need for a commission to find the truth about the abuses and the crimes of the past eight year. If we are indeed in the early stages of a long war, we cannot go forward with a foundation built on lies. We cannot look forward with integrity if we are unwilling to look back responsibly.

We need a non-partisan, independent commission to find out who did what, when they did it, and why. Only an independent commission given authority to compel testimony, assign responsibility and propose prosecution will be in a position to achieve accountability. President Obama speaks eloquently of his desire to “move on”–perhaps out of a belief that investigating the abuses of the past eight years will be an obstacle to dealing with the crises of today. And there are immense challenges: an economic crisis, an environmental crisis, a healthcare crisis, conflicts in Afghanistan and Pakistan. But as Paul Krugman pointed out, “would investigating the crimes of the Bush era really divert time and energy needed elsewhere? .”

I believe America is capable of uncovering the truth and enforcing the law even while it goes about its other business. And as to the danger of undermining the political consensus the President needs to pursue his agenda: what political consensus? Cheney’s “Tortured Logic Tour”–replete with his family on the talk show circuit–suggests there is little political consensus to be achieved from failing to establish a commission– which is about justice, not vindictiveness.

This commission–let’s call it the 9/12 commission–needs to be non partisan and independent–and it needs to have subpoena power. It should be led by people who have national respect and experience–perhaps even military experience. I think of Major General Antonio Taguba, who was pressured to resign by the Bush Administration in 2007 following the 2004 leak of his report detailing abuses by the US Armed Forces in Abu Ghraib prison. To build credibility with the rest of the world, maybe James Yee should be included on the commission, too.

As General Taguba declared in the preface of the 2008 Physician for Human Rights Publication, “Broken Laws, Broken Lives:” There is no longer any doubt as to whether the Bush Administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account. Taguba is also a man who understands that the real so-called “bad apples” were at the top of the civilian chain of command in Washington.

Such a commission should investigate torture memos written by John Yoo, Jay Bybee, and Steven Bradbury–and if the legal reasoning behind those memos is as faulty and pathetic as it seems, those lawyers should be disbarred and possibly, impeached.

The commission must investigate reports that, even by their own outrageous standards, Bush Administration officials broke the law. Call Colonel Wilkerson and ask him to restate under oath that the Bush Administration first authorized “harsh interrogation” during the spring of 2002–when its principal priority for intelligence was not aimed at preempting another terrorist attack–but rather discovering a smoking gun linking Iraq and al Qaeda.

Now, some people, including some in the Obama administration, are worried that we could be setting a bad precedent by trying these officials. But if we don’t try them, we set a precedent that is far worse: make the rule of law is meaningless.

And let us hold President Obama to his word on another issue as well: ending the military commissions. Today, President Obama justifies military commissions by telling us that they’ll only be used in a few cases.

But the flawed military commission system presents a larger problem: open-ended detention without trial. This has been discussed by the administration only in the context of the current detainees at Guantanamo Bay. But as Senator Feingold wrote last week, “from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future will be powerful.”

I believe President Obama knows that just because you only violate a few peoples’ rights, that doesn’t make it okay. His Justice Department argued that federal courts have a long tradition of keeping us secure; through history, they have had experience in dealing with accused terrorists. But he is under tremendous pressure from his own military establishment, and assault even from the Cheney Corps and torture apologists. He will need us–ACLU members, citizens who support and defend our Constitution, people who understand torture is not only illegal, but immoral and provides unreliable evidence and information and opens our troops to retaliation. We must push the President in the right direction, and support him when he does the right thing: the same role this organization has played for decades.

In 1981, 63 years after this nation first locked Roger Baldwin up, it granted him the highest honor a civilian can receive, the Presidential Medal of Freedom. He was 98 and he couldn’t make the trip to Washington. So my father, William vanden Heuvel, had the honor of presenting him with the medal at the New Jersey nursing home where Roger spent his last weeks. Watching this weathered man–a man who had spent a lifetime taking two steps forward and one step back–my father later said, “It could have been Jefferson or Thomas Paine or Samuel Adams speaking to their countrymen.”

At that speech, one of his last, Roger Baldwin said something which perfectly summed up the faith, at once conditional and absolute, that he had in this country: “If America has a claim to glory among the nations, it is her service to human liberty.”

This service to liberty is our nation’s soul. It is what makes us great. The battle to reclaim our soul is just beginning. We are still finding our way out of dark places. Think about how hard it will be to just close Guantanamo. This fight is far from over.

But if Roger Baldwin could see us today, could see us standing strong for our values no matter who the President is, no matter how powerful the opposition is, no matter how tired or frustrated we feel, I think I know what he would say: Time will justify our strength. Thank you.