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This story was originally published December 05, 2003 in the San Francisco Daily Journal.
SAN FRANCISCO - As a gay Latino, Anthony Romero is an important voice for a wide cross-section of minorities.
To civil libertarians, Romero, the 38-year-old executive director of the American Civil Liberties Union, is also an important voice for Americans among the broad majority whose privacy rights are under attack.
Last month, Romero flew from ACLU headquarters in Manhattan to Palo Alto to collect Stanford Law School's inaugural award for the public-interest lawyer of the year.
Romero had taken the helm of the national organization just days before the Sept. 11 terrorist attacks. During his acceptance speech in Palo Alto, he recalled sitting in his office a few months later watching Attorney General John Ashcroft's Dec. 6, 2001, report to the Senate Judiciary Committee.
Romero cited an excerpt of the report often quoted by civil libertarians.
"To those who pit Americans against immigrants," Ashcroft said, "and citizens against non-citizens; to those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of good will to remain silent in the face of evil."
"What was remarkable about that [statement] was not just that our country's highest ranking law enforcement official had the temerity to stand up and to say that, if you question me, I'm going to question your patriotism," Romero told the audience of law students, lawyers and professors. "That was audacious and galling enough. But what was truly galling was the silence, was the reticence, was the complicity of some of our greatest political leaders, who sat there silently at the Senate Judiciary Committee hearing and did not question his patriotism as being contrary to some core American values."Romero described how he waited for such a response from the committee members.
"I'm waiting for the charge, the shot - not across the bow, the shot right between the eyes - and there was nothing at all to come from our greatest political leaders," he said. "That, for me, was one of the darkest moments of this last two years."
Romero's comments reflect the increasing rancor between the ACLU and the Justice Department. Under Romero, the ACLU is waging a "Safe and Free" campaign to pierce what ACLU lawyers describe as a veil of secrecy behind which the Justice Department is transforming the American legal system.
The ACLU seeks to repeal sections of the anti-terrorist USA Patriot Act, approved Oct. 26, 2001, by votes of 98-1 in the Senate and 357-66 in the House. The bill's name is an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.
The Justice Department has counterattacked with its own "Life and Liberty" campaign aimed at dispelling, as the department says on its Web site, "major myths" about the Patriot Act being spread by the ACLU.
Mark Corallo, director of public affairs at the Justice Department, said Romero's campaign "relies on the average Americans' lack of understanding of the criminal justice system to make the case that the Patriot Act takes away their civil liberties." The ACLU's "Safe and Free" initiative is "a campaign of misinformation about the Patriot Act," Corallo said.
"Mr. Romero and the ACLU opposed the Patriot Act from the beginning, as they've opposed most anti-terrorism legislation and major anti-crime legislation of the past few decades," he said. "Anything which law enforcement gains as a tool to combat crime or terrorism, the ACLU generally opposes."
Romero said his commitment to his cause is rooted in his personal experience of the American dream.
Romero was raised in a Bronx public housing project by immigrant parents. He said his father was discriminated against when he sought a promotion at the hotel where he worked. Romero's father turned to his union, which hired a lawyer who won him the promotion.
With the additional income, Romero's family moved to a working class neighborhood in New Jersey. His mother bought her first set of new furniture, and his father bought the family's first car, a used 1969 Pontiac Tempest.
"My father polished it every week. It was like his own little jewel," Romero recalled during his Stanford speech. Romero and his sister got their first eight-track stereo and a single cartridge, the soundtrack to "Grease."
"I always loved John Travolta," he joked.
The upgrades "were the first taste I got of what a difference you can make in people's lives by being a public-interest lawyer," Romero told his Stanford audience.
Romero became the first member of his family to graduate from high school. He later graduated from Princeton University's Woodrow Wilson School of Public Policy and International Affairs, and in 1990 from Stanford Law. He is the first Latino and first openly gay man to serve as executive director of the ACLU.
During his recent Stanford visit he participated in another first: the launch of the law school's Latino alumni association. Fred Alvarez, a partner at Wilson Sonsini Goodrich & Rosati in Palo Alto, is co-chairman of the association. At Alvarez's request, Supreme Court Justice Carlos R. Moreno and Fresno City Attorney Hilda Cantu-Montoy, both Stanford Law graduates, also attended the opening.
"When many of us went to Stanford Law School, we had no vision of where any of us could end up," Alvarez said. "Even when Anthony graduated there weren't too many role models like the executive director of the ACLU. It just helps to elevate people's vision of where they can go if they see Latino graduates of the law school operating at very prominent levels."
Steven Shapiro, the ACLU's national legal director, said Romero deserves full credit for developing the "Safe and Free" campaign.
"He is ultimately responsible for setting the tone and substance of the ACLU's response to the administration's response to 9/11," Shapiro said.
Shapiro said it's a mistake to focus exclusively on the Patriot Act. He views the law as a metaphor for "a host of civil liberties violations that have occurred post 9/11."
Shapiro cited the 1,200 noncitizens, mostly Muslim men, who have been subjected to FBI interrogation in secret without lawyers.
He also noted the examples of U.S. citizens Jose Padilla and Yaser Hamdi and the 600 foreign nationals captured during the war in Afghanistan who have been held indefinitely and incommunicado at the Guantanamo Bay Naval Base in Cuba.
All were classified as "enemy combatants" so they could be detained without charges or access to a lawyer, Shapiro said. Regarding the Patriot Act, the ACLU opposes many elements of the law, but the "Safe and Free" campaign has zeroed in on two key sections.
The first, Section 215, allows the FBI to approach a federal judge and "make an application for an order requiring the production of any tangible things," which could include personal records from Internet service providers, newspapers, doctors, libraries and booksellers.
The ACLU argues such searches violate Fourth Amendment protections against unreasonable searches and seizures.
Section 215 prohibits those served with such orders from reporting them to anyone, including the targets. That violates the First Amendment's guarantee of free speech, according to Romero.
Corallo said the main objective of the Patriot Act is to lower the legal barriers that previously blocked FBI intelligence agents and criminal agents from sharing information.
Even before the Patriot Act, he said, federal prosecutors could obtain personal records through grand jury subpoenas.
"The judicial check is very much in place," he said.
The problem, in the ACLU's view, involves the judges responsible for approving such surveillance orders. The Patriot Act amends the 1978 Foreign Intelligence Surveillance Act, or FISA, to expand the types of search warrants federal agents can get from the 11 federal judges who sit on a special FISA court.
FISA judges, appointed by the chief justice of the Supreme Court, meet at the Justice Department.
Stanford Law Dean Kathleen Sullivan, a noted constitutional scholar, has written about the Patriot Act in a recently published book, "The War on Our Freedoms: Civil Liberties in an Age of Terrorism."
"The FISA court has been described as the attorney general's playground," she wrote, "only rarely denying or modifying surveillance applications."
The Patriot Act amended FISA "to permit FISA surveillance orders to issue whenever 'a significant purpose' of the surveillance is obtaining foreign intelligence information, rather than requiring that the purpose or the 'primary purpose' be such spy activity as had been required before," she continued.
Sullivan and the ACLU fear federal agents will apply the loosened FISA standards to normal criminal activity.
In an interview, Sullivan said she believes the Patriot Act was "carefully crafted to try to take constitutional law into account."
"But the danger is that liberty can be taken away in small bites," she said, "to the point where a lot of damage has been done without our noticing."
Corallo said objections to Section 215 led the Justice Department in September to declassify the number of times the law had been used in any investigations.
"The number of times it has been used? Zero," he said. "It has never been used, but here they are running around saying the FBI is trampling on your rights."
Romero insists the Justice Department can't argue the investigative powers Section 215 affords are vital to fighting terrorism and also that no harm has been done because it hasn't been used.
"Which one is it?" Romero asked. "If the Justice Department hasn't used [its Section 215 powers], maybe it ought to give them back."
The ACLU also has targeted Section 213, which allows the government to conduct "delayed notice" searches - or what Romero calls "sneak and peek."
The law expands the government's authority to search private property without notice to the owner.
Corallo said Section 213 was submitted jointly by Sens. Orrin Hatch, R-Utah, and Patrick Leahy, D-Vermont, to address conflicting search warrant requirements in different federal appellate jurisdictions.
Delayed-notice searches have been upheld in various federal circuit court and Supreme Court decisions, he said.
"I don't see Anthony Romero attacking Sen. Patrick Leahy, who offered that provision," Corallo said. "We only see him attacking John Ashcroft because it's good for their fund-raising letters."
The ACLU says it has taken on, either directly or in friend of the court briefs, 35 cases involving alleged civil rights abuses since the Sept. 11 attacks. The cases are pending in various courts nationwide.
The ACLU's most direct challenge to the Patriot Act is Muslim Community Association v. Ashcroft, 03-72913, contending Section 215 of the Patriot Act violates the Fourth Amendment. Oral arguments in the case took place Wednesday in U.S. District Court in Detroit.
Besides Ashcroft and timid politicians, some civil libertarians worry about public complacency.
Richard C. Leone, president of the Century Foundation and co-editor of "The War On Our Freedoms," suggests people simply don't realize what's going on.
According to one poll, Leone wrote in the book, 58 percent of Americans believe civil liberties have remained unchanged since Sept. 11, leading him to suggest "the limited reaction by elected officials and the media has left most citizens unaware of the changes that are under way."
Another explanation, he wrote, may be that Americans suffer from bewilderment or paralysis in the face of violent events and the greater potential for violence since Sept. 11, "including the anthrax attacks, Afghanistan, the shoe bomber, the Washington-area sniper attacks, Iraq, North Korea, and even the [space shuttle] Columbia disaster."
Corallo offers a different explanation. He noted 75 percent of Americans approved of the Patriot Act in a recent poll, and fewer than 20 percent opposed it.
"Somehow the less than 20 percent are getting 90 percent of the media attention," he said.
According to Romero, "Free and Safe" has spawned a grassroots campaign in which 221 communities in 35 states representing 27.8 million people have adopted resolutions opposing sections of the Patriot Act.
Some of the California communities that have passed resolutions are San Francisco, Palo Alto, Arcata and Lake County.
"You see this resurgence of energy, the beginnings of debate and a rumbling, which I think if we can do our jobs, we can nurture that debate, that dialogue," Romero said at Stanford.
Civil libertarians have high hopes for a pending Senate bill, S.1709. Called the Safe Act - for Security and Freedom Enhanced - it would soften Sections 213 and 215 of the Patriot Act.
Corallo contends the municipalities that passed resolutions opposing the Patriot Act are left-leaning and unrepresentative of the country as a whole.
As for the Safe Act, he said, "As Congress continues to review the Justice Department's implementation of the Patriot Act they will continue to approve and affirm the department's usage of the act, and will not see a need to weaken the act's important provisions."
Copyright © 2003 Daily Journal Corp. Reposted with permission. This file cannot be downloaded from this page.