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The ACLU: Demon or Deliverer? An Interview with Nadine Strossen

By John W. Whitehead
March 30, 2006

“I think we have a secular society in which people who have deeply held religious beliefs of any kind are looked at with some suspicion. For example, if somebody had a religious view against abortion, I think it’s the religion that’s looked at with special suspicion rather than the same belief but based on a secular reason.” —Nadine Strossen, 1992 Rutherford Interview

Whether protecting the right of Ku Klux Klan members and neo-Nazi groups to march in a parade or defending a Nevada brothel’s right to advertise its services in a city newspaper, over the course of its 80-plus-year history, the American Civil Liberties Union has taken on a panoply of important controversial cases. Its involvement in such landmark Supreme Court cases as Brown v. Board of Education (1954), which banned school segregation, and Roe v. Wade (1973), which legalized abortion, have further added to its reputation as a group that does not shy away from a fight.

Claiming to have more than 500,000 “card-carrying” members and supporters, the ACLU has declared itself the “nation’s guardian of liberty.” As such, the ACLU has been on the front lines in challenging government officials on civil liberties issues. Indeed, the ACLU has been a vocal critic of various actions by the government since 9/11 that arguably undermine the Constitution. These include the USA Patriot Act, the centerpiece of the Bush Administration’s war on terrorism. Yet it is the ACLU’s self-appointed role of church-state watchdog that has made it the object of censure from groups to the right of the political spectrum.

Soundly criticized for allowing its left-leaning ideology to influence how the group deals with religious freedom issues, the ACLU’s track record at times seems to support its critics’ charges that at least when it comes to issues involving Christian expression in public, free speech concerns often seem to go by the wayside. A case in point is one involving The Rutherford Institute where the ACLU threatened to sue a Virginia City Council for allowing a council member to end his invocations “in Jesus’ name.” However, when Rev. Hashmel Turner refused to give in to the ACLU’s threats by altering his prayers at council meetings, the Fredericksburg City Council passed a policy banning Christian prayers of any kind. That’s when Institute attorneys filed a First Amendment lawsuit in federal court in defense of Rev. Turner’s right to pray “in Jesus’ name” at City Council meetings.

One thing is clear: ACLU president Nadine Strossen seldom avoids a fight, and she clearly takes to heart a motto emblazoned on one of the group’s T-shirts: “You have the right NOT to remain silent.” Strossen became the group’s first woman president in 1991 and the youngest to hold that post (she was 40 when elected). Since that time, she has championed many controversial causes, including the anti-censorship of pornography, which she expounds on in her book Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights.

Named among the National Law Journal’s “100 Most Influential Lawyers in America,” Strossen has been a prominent figure in the civil liberties field for over 20 years. A Phi Beta Kappa graduate of Harvard Law School, author of over 300 published works and currently a Professor of Law at New York Law School, Strossen has written, lectured and practiced widely in the areas of constitutional law, international human rights and civil liberties. 

In an interview with John W. Whitehead, Strossen responds to criticism of the ACLU’s so-called “agenda to secularize America” and speaks about the ACLU’s positions on issues such as intelligent design, gay marriage, abortion and the Bush Administration’s war on terror.

John Whitehead: According to press releases issued late last year, the ACLU was being targeted by various Christian groups in an attempt to get the, and I quote, “left-leaning liberal attack group [to] back off of terrorizing communities and individuals who seek to affirm America’s Judeo-Christian values.” Part of this campaign involved the Reverends Rob Schenck and Patrick J. Mahoney hand-delivering 20,000 petitions to ACLU headquarters in Washington, D.C. Another effort, headed by the Musclehead Coalition, accuses the ACLU of continuing to wage a War on Christmas and encourages the public to flood your offices with two tons of “Merry Christmas” cards. It seems as if the ACLU is the group that the Right most loves to hate. Why is that? Is any of the vitriol sent your way deserved or do you believe the ACLU is just a convenient scapegoat for right-wing media and fundraising campaigns?

Nadine Strossen: The ACLU is not the number one target of this kind of vitriol, John. The number one target is the United States Supreme Court, and right behind that is the ACLU. We are usually given a lot of credit by our detractors as being very influential in the Supreme Court decisions. What underlies the criticism of both the Court’s decisions and the ACLU’s role in advocating those decisions in the area of the First Amendment is a real misunderstanding of what the Supreme Court has held and what the ACLU has asked the Court to hold. The most recent example of that is McCreary County v. American Civil Liberties Union of Kentucky, which the Supreme Court decided in the summer of 2005.

JW: The Ten Commandments case.

NS: Exactly. The Supreme Court agreed with the ACLU that particular courthouse displays of the Ten Commandments by the local government in a way that was designed to promote the specifically religious message of the Ten Commandments violated the First Amendment. That decision was attacked immediately by detractors as being “hostile” to religion; as being antithetical to religion in general and Christianity in particular. Among the many manifestations of that unjustified criticism, Congressman Ernie Istook (R-Okla.) held a press conference very soon thereafter in which he announced that he was again introducing his constitutional amendment with more than 100 co-sponsors on both sides of the aisle to restore protection to religion under the Constitution.

The Supreme Court, the ACLU and other civil libertarians that advocate First Amendment cases are extremely respectful of religion, as is the First Amendment itself.

JW: Do you think that is just a political ploy?

NS: I do not get into people’s motives. Istook may really misunderstand the decision. However, there is no doubt that there is a certain political leeway and political power to be gained. That is also true for the organizations that make those criticisms by demonizing the Supreme Court and by demonizing the ACLU. The argument is that together the ACLU and the Supreme Court have conspired to reduce constitutional protection for religion. Sometimes I even hear that the Supreme Court at the instigation of the ACLU has driven religion out of the public square altogether. Of course, if people believe that has happened, it becomes a big motivation for such groups to support politicians or organizations that are allegedly trying to restore religion to the public square.

The reality is that the Supreme Court, the ACLU and other civil libertarians that advocate First Amendment cases are extremely respectful of religion, as is the First Amendment itself. The First Amendment gives special treatment to religion. It singles it out in two clauses, even above and beyond the general language of the First Amendment Free Speech Clause. Moreover, virtually everyone agrees that the freedoms of the press and speech would protect religious speech, including prayer, worship services and the like. Some of the Court’s earliest cases defending the rights of ministers and of others to engage in religious speech in public places were ACLU cases. We have always defended other rights of religious speech under the Free Speech Clause. But again, above and beyond that, the First Amendment contains two clauses that specifically deal with religion. So religion is singled out. There is one clause protecting free exercise of religion, which means that you may not only speak your religious beliefs and convey them through words, but you may also enact them in practice. Again, the ACLU has vigorously defended that clause from the beginning. 

Ironically, I have been attacked by some of the Christian organizations lately for defending the free exercise of religion, specially defending the rights of fundamentalist Mormons to engage in polygamy. I have to say here that no rights are absolute. That is true for freedom of speech, and it is also true for the free exercise of religion. If, for example, your religion believed in human sacrifice, you would not be allowed to exercise that because there is a countervailing interest of great importance in protecting human life. The same point can be made about polygamy.  It could be limited to protect the safety and rights of all the participants, and to ensure that all participants were consenting adults.

I would put a challenge to Pat Robertson to show me some documentation. The quote is fabrication. Removing “all vestiges of religion” from American life would violate the Constitution and the ACLU’s civil liberties principles. 

JW: There is this notion among fundamentalist Christian evangelicals that the ACLU is out to remove Christianity from the public marketplace of ideas. For example, Pat Robertson said this on his CBN television program: “They have announced that—I mean, there’s no question about it. Nadine Strossen said, ‘Our goal is to secularize the American marketplace. We’re going to take all vestiges of religion, all vestiges.’” Is this true?

NS: I never ever said that, John. I would put a challenge to Pat Robertson to show me some documentation. Some have told me to write Robertson because that is a misquote. The quote is fabrication. There is no basis for that whatsoever. I have never ever said anything remotely approaching that. What is so interesting is that the first time Robertson made that allegation, that I am aware of,  was on some national network news program where he paraphrased something I had allegedly said in terms not quite that extreme, but also completely wrong. But Robertson indicated that I had said that in a debate – a particular debate that took place at Regent University in honor of its 25th anniversary.  I have the transcripts.   I never said any such thing, either on that occasion, or any other, because it is contrary to my beliefs.  Removing “all vestiges of religion” from American life would violate the Constitution and the ACLU’s civil liberties principles. 

The ACLU was the lead advocate of the Religious Freedom Restoration Act.  We were also the drafters of the Religious Land Use and Institutionalized Persons Act. The Supreme Court later struck down the Religious Freedom Restoration Act. And what I find so ironic is that this legislation was necessary because we literally do not have free exercise protection under the Constitution anymore because of a decision that was written not by one of the so-called liberals upon the Supreme Court. It was written by Justice Antonin Scalia. What is so interesting is that those who have a very narrow view of the Establishment Clause also tend to have a very narrow view of the Free Exercise Clause.  Justice Scalia is a prime example.

JW: Scalia’s opinion in Employment Division v. Smith was one of the worst Supreme Court decisions of the modern era.

NS: I agree!  Conversely, the ACLU has a very strong view of both the Establishment Clause and the Free Exercise Clause. Those two positions tend to go hand-in-hand.

JW: But the two clauses also tend to conflict at times.

NS: Sometimes there is tension. However, as you know, there is sometimes tension between all kinds of rights under the Constitution. So that does not make the religion clauses unique. Some, for example, argue that you cannot oppose sexual harassment in the workplace because it is inconsistent with freedom of speech. But, on the other hand, there is equality. Thus, there has to be balance. The right to free press may conflict with the right to a fair trial or due process. So you have to balance those throughout. 

JW: There is also the recent book entitled ACLU versus America, which poses the ACLU as the enemy to Christians, parents and “patriots.” Those issues include abortion, Christmas displays, the rights of parents to control the upbringing of their children and marriage. Of the total ACLU resources, how much is spent on these issues?

NS: First of all, we don’t spend any time at all attacking the rights of Christians or the rights of other people you mention. We defend all fundamental freedoms for all people, including Christians, parents, and patriots.  We absolutely defend the rights of individuals to celebrate Christmas in any way they choose.  In your own state of Virginia, we had a case not too long ago where we were defending a client who called herself “the Lone Ranger of the Manger.” She was an individual who put up her own displays of the Nativity scene during the Christmas season in public parks and public places where either Christmas displays or other displays were welcomed by private individuals. And we won the Pinette case in the Supreme Court in 1995 where we defended the right of private individuals to put up crosses that were labeled “Christmas  crosses” in front of the State Capitol building in Columbus, Ohio. The ACLU was defending that, and the city argued that it violated the Establishment Clause.

JW: How could these people get it so wrong?

NS: Again, it may be people like Pat Robertson putting words in my mouth that I never said. Some of the people who hear such false charges are not skeptical enough to double-check what is alleged. Likewise, Bill O’Reilly was recently giving purported examples of cases where schools were supposedly censoring Christmas carols and so on. For some of these cases, It turned out that it was a total fabrication.
JW: Throughout the book ACLU versus America, the authors claim that the ACLU undermines the principles established by the so-called founding fathers. For example, the authors paint a picture illustrating the founding fathers as creating a nation that is fundamentally Christian. First of all, do you agree that America was a Christian nation? Do you think these debates or distinctions are relevant today? If so, why and how?

NS: America was not founded as a Christian nation. This is very clear when you study the Constitution itself. Let’s start with the Declaration of Independence, which is the original founding document. Although it does have references to the Creator, it has absolutely no reference to Jesus Christ or any other references to Christianity. Furthermore, it says that all men are created equal. In a modern sense, that certainly suggests that the document discriminates against women—that is, if you are reading the language literally.

JW: Women at that time did not have equal rights. They couldn’t vote, for example.

NS: What I am emphasizing is that if you are looking at the literal language, the focus is on the equal rights of all “men”. Thus, even if you interpret that narrowly – reading “men” to mean males, and not people – you could say that maybe we were created as a male nation. However, the Declaration of Independence doesn’t say that all Christians are created equal. The point is that if it reflected a discrimination against anyone, it was against  women – including Christian women – and not against non-Christians.  Looking at the Constitution, the only reference to religion in the entire document is in Article VI, which states that there shall be no religious test for office. That completely contradicts any contention that America was founded as a Christian nation. Then, in 1791, when the Bill of Rights was added, we got the First Amendment.

The Constitution was attacked during the ratification process as a godless document. This is because, from the perspective of these critics, it  did not have sufficient references to God or to Christianity. And there were attempts to amend the Constitution to put in references to Christianity, all of which were defeated.

JW: Which promotes the freedom of religion.

NS: Exactly. It was unprecedented in human history for any governing foundational documents not to contain very explicit specific religious references. In fact, the Constitution was attacked during the ratification process as a godless document. This is because, from the perspective of these critics, it  did not have sufficient references to God or to Christianity. And there were attempts to amend the Constitution to put in references to Christianity, all of which were defeated. So historically to argue for a Christian America doesn’t make sense. It is certainly nonpersuasive as a matter of principle.  It contradicts the notion of equality, regardless of religion, that is  reflected in both the Declaration of Independence and Article VI of the Constitution.

JW: The Constitution on its face does not reflect that particular viewpoint.

NS: Exactly. As a matter of reality, the original settlers—not Native Americans but those who immigrated here from overseas—were predominantly Christian. In fact, they were predominantly Protestant. I don’t hear too many people say that, based on these historic facts,  this country was founded as a Protestant nation and that somehow Catholics and other Christians should be second- class citizens.  It is equally unjustified to argue that, because most early settlers were Christian, we are in some sense “a Christian nation.” 

It is completely illogical to assume that someone who worked with the ACLU in, for example, 1920 controls something that ACLU lawyers are doing on another  issue three-quarters of a century later. That is completely illogical. Think of what the organization itself does; not what particular individuals who are or were associated with the organization may believe.
ACLU founder, Roger Baldwin

JW: In the book ACLU versus America, the authors suggest that several of the leaders in the ACLU are/were interested in eugenics (as a means to build the perfect human race). Indeed, this is what Hitler used, in part, when he tried to build his “perfect race.” The authors use this to say that it is the foundation of the ACLU’s position on abortion. In fact, they seem to infer that the ACLU is really hurting the poor and minorities (which the ACLU claims to support) through their abortion position because they are encouraging citizens who are poor and/or a minority to have an abortion. How do you respond to this—is this accurate?

NS: There are so many inaccuracies in those statements, I hardly know where to start. But first let me say that it is completely illogical to assume that someone who worked with the ACLU in, for example, 1920 controls something that ACLU lawyers are doing on another  issue three-quarters of a century later. That is completely illogical. Think of what the organization itself does; not what particular individuals who are or were associated with the organization may believe. By the same logic, I could say that the long-time vice-chair of the ACLU’s National Advisory Council is a Catholic priest. Does that mean that the ACLU is secretly a Catholic organization? Of course not. In his capacity with the ACLU, that person advocates the positions that the organization takes on civil liberties issues, and not his/her personal beliefs on other issues. Roger Baldwin (whom I believe is the key early leader you’re referring to) did the same thing in his capacity when he was ACLU executive director. Neither Baldwin nor any other ACLU leader has ever advocated eugenics as an ACLU policy.  When you look at what we actually do, we defend not only a woman’s right to choose an abortion, but also other civil liberties issues including religious freedom. The overarching issue is individual freedom of choice for mature consenting adults. If a woman wants to have a baby, whether she is poor or not, she should have the right to have that baby,  free from government pressure not to. The ACLU in New Jersey and other states has brought groundbreaking litigation to support that right.  And in some cases, we collaborated with so-called right to life organizations in challenging welfare laws that cut back on welfare grants that were given to women when they had a certain number of children. If a woman had a certain number of children, she was not getting an additional grant for them. Our view and that of the anti-abortion groups was that the government was putting pressure through its welfare policies on poor women to have abortions, even if they would not otherwise have chosen to have an abortion.

JW: Are you saying that you are opposed to forced abortion?

NS: Absolutely. We are opposed to even subtle coercion, and I am sorry to say that we lost that case involving the welfare law that we believe exerted undue pressure against having children. The courts did not agree with us that it violated the woman’s constitutional rights. Thus, the ACLU takes a stronger view of the constitutional rights of poor women to choose not to have abortions than the current law permits.

JW: What about the intelligent design issue, which is now prominent? There was a recent Pennsylvania case that held against intelligent design being taught in public schools.
NS: That was an ACLU case.

JW: The Rutherford Institute attempted to intervene in the case on behalf of some parents and students on the issue of the right to know and the right to receive information about intelligent design. Our motion to intervene was denied by the federal judge who eventually ruled that intelligent design is religious and, therefore, cannot be taught. However, what about the science teacher—whether it be a Christian, a Muslim or even an atheist—who believes there are some problems with the theory of evolution, such as the gaps in the fossil records and so on? And that teacher wants to mention that there are other theories such as intelligent design. Does that teacher have a right to do that?

NS: The teacher has the right to raise issues from a scientific perspective. It is clear what the constitutional law is on this issue. Maybe some people want to change what the law is. But the law is clear that if  the government is acting through the public school biology teacher and the purpose or the effect  is religious, this is promoting religion. It is unconstitutional.

JW: Which was the case essentially in Pennsylvania. 

NS: Yes, so that is why you have to ask if intelligent design is essentially a religious theory or essentially a scientific theory.

JW: If intelligent design has some scientific component, can it be raised in the classroom?

NS: If it is a legitimate scientific theory, then, of course, it can be raised in the science classroom. But that is a big “if.” I understand that the overwhelming consensus of experts is to the contrary. 

There are many scientists who believe in God, but that doesn’t mean somehow they can teach in science classes that God created everything.

JW: Isn’t this Scopes in reverse? People were teaching creation in the schools, and evolution wasn’t allowed.
NS: No, I don’t think anyone would argue that evolution doesn’t have a scientific basis.  Of course, as is true for other scientific theories, evolution has flaws. It has gaps, but nobody would argue that it is primarily religious.

JW: We have been contacted by teachers who teach evolution and know there are flaws in the evolutionary theory. They want to be able to explain to their students that there are other theories, such as intelligent design. And there are scientists who really believe in intelligent design.

NS: There are many scientists who believe in God, but that doesn’t mean somehow they can teach in science classes that God created everything. It doesn’t mean that they can teach that.

JW: Does it make it non-scientific because they think God might have created the world?

NS: Yes, that is a matter of faith. 

JW: I am saying that they have scientific evidence but they also believe God.

NS: As long as there is a primary secular purpose and a primary secular effect  –  in this case, science – then it wouldn’t matter.  Whether or not they believe in God, they could teach what they know in their capacity as scientists, but not what they believe – or don’t believe – as a matter of religious faith.

JW: I believe these teachers have a primary secular purpose. Therefore, can they teach the scientific basis of intelligent design? Can they raise this alternate theory with the students when it is relevant? Can the teacher be honest with the students and say that intelligent design is a credible theory and the teacher happens to believe it?

NS: It is problematic because the courts have made it clear that we must be very sensitive in public school classrooms to any endorsement of religion by the government. This is especially so when you are talking about relatively young children. We are dealing with compulsory education laws that bring the children to the school. They see the teacher as a role model. There is a lot of peer pressure. I think that it is quite problematic to have any teacher in any class expressing his or her own religious viewpoint. 

JW: The children know what is going on.

NS: John, would you be comfortable with a teacher who is an atheist saying she doesn’t believe there is a God? I think that is equally inappropriate and equally unconstitutional.

JW: We underplay our children today. They are smarter and more intelligent than we give them credit for. They know about intelligent design. It’s all over the news.  And the teacher says, “I have looked at the whole matter. I believe that evolution is science, and I believe that intelligent design is a bunch of bunk. I hope you kids don’t get misled by it.” Can the teacher say this?

NS: If the motivation is scientific and the teacher is saying there is no legitimate scientific basis for intelligent design, that is completely appropriate. However, if the teacher said “I am an atheist, and intelligent design is a religious theory, and  I reject it for that reason,” that would be inappropriate and unconstitutional.  I think that public schools may neither endorse religion nor disfavor religion. 

JW: But you are talking about an individual teacher. What about academic freedom?

NS: The individual public school teacher is a government official and representative of the government. That teacher has no freedom to violate a student’s rights. This is a very good example of a general point I made earlier. Often, different constitutional rights are in tension with each other. And the teacher’s academic freedom does not extend to violating the student’s rights, including the student’s right to be free from government indoctrination for or against any religious belief. 

JW: Students need to be informed, and I believe teachers should talk about some of these subjects. After all, there is a huge debate on intelligent design, and young people need to know what is going on. 

NS: Are you saying that they should be informed about it as a cultural phenomenon?

JW: No. I am saying talking about it in a science class.

NS: I don’t think in a science class for the reasons I have already stated. However, I think it could well be discussed, depending on the exact context, in other subjects, such as a course in comparative religion.

JW: What about all the intelligent design discussion on the news. Can a biology teacher mention it? 

NS: It would be completely appropriate for a teacher to talk about it factually and summarize what the court held in the Pennsylvania case. 

JW: There has been some discussion about a constitutional amendment to ban gay marriage. What’s your position?

NS: The ACLU has long defended the right of individuals to choose a marriage partner, including somebody of the same gender. It is a long-standing policy. 

JW: So you disagree with President Bush’s attempts to ban gay marriage?

NS: We would certainly oppose that constitutional amendment. It is none of the government’s business to impose limits when consenting adults are involved.
JW: The argument of pro-family organizations is that traditional marriage is the foundation of American society. To allow gay marriage totally undermines the fabric of society, therefore leading to eventual chaos and the breakdown of morality.

NS: It is odd for organizations that describe themselves as “pro-family” to want to deny equal rights to certain families. The truth is that we have many families in this country where the parents are the same gender and where they have adopted kids or foster kids, as well as the biological kids of one of the parents. They are loving, devoted parents. Yet, they don’t have equal rights to take care of their own kids or to live together as a constructive family unit.

JW: This brings me to a basic argument against the ACLU—that it defends minority rights versus the majority.

NS: That’s the whole basis of the entire Bill of Rights. The majority have the most rights, as it should in a democratic society, through the elected representatives,  to make public policy. Yet the framers rightly agreed that there are some rights which are so fundamental that no majority may take them away from any minority. That is true, by the way, for religious minorities. We must remember that fundamentalist Christians are not the majority, and Evangelical Christians are not the majority,  in every community. That is why their rights are sometimes violated. Fortunately, the First Amendment is there and the ACLU is there to defend their rights. This is because they are a minority. They wouldn’t need that defense otherwise. If you are in the majority, then your interests and rights are going to be protected through the majoritarian processes of government. 

JW: There are those who argue that the ACLU is fighting for the KKK and White Separatists but that it doesn’t support pro-life advocates.

NS: Absolutely false. I can give you many examples. Take, for instance, the recent case in the Supreme Court that involved a Colorado statute, Colorado v. Hill. The ACLU, with others, wrote a brief arguing against a statute that was clearly targeted at the leafleting, picketing and other free speech and First Amendment rights of anti-abortion demonstrators. Jay Sekulow of the American Center for Law and Justice always makes a point of talking about how the ACLU is absolutely true blue on the free speech rights of anti-abortion demonstrators. 

JW: What about pornography? You draw a distinction between mature people who can see and produce pornography and children. But how do you protect children from seeing pornography?

NS: This is what is so ironic. We are wrongly accused of not defending parents’ rights or the role of parents, as you said earlier. But it is the parent’s right and responsibility to make decisions about what his or her child may or may not see. And various parents have very different standards as to what is appropriate, when it is appropriate and in what context it is appropriate for young kids to see various materials relating to sex. That is very much the parent’s prerogative. The government may not take that right away from the parents by having a blanket rule about what may or may not be seen by children.

JW: The ACLU just filed a lawsuit against President Bush because he allowed the NSA to conduct secret spying and bypass the FISA laws in conducting warrantless electronic surveillance of Americans. Where do you think the country is headed? Do you believe that with the President bypassing a law, the White House is erecting an imperial presidency? Do you think we are in danger of losing our freedoms?

NS: We are always in danger of losing our freedoms.

JW: Is it worse now than it was under Bill Clinton?

NS: It’s hard to compare. We certainly had enormous challenges under Clinton. That is why the ACLU has always been a nonpartisan organization, because civil liberties violations cross all party lines and all ideological lines. In all fairness, there wasn’t a 9/11 under Clinton. But there was the Oklahoma City bombing, which at that point was the worst national security disaster and the worst terrorist attack on U.S. soil in history. Clinton and his Attorney General, Janet Reno, reacted pretty much the same way that Bush and John Ashcroft reacted. They immediately proposed a so-called anti-terrorism law that went way beyond terrorism to deal with all kinds of other issues. In fact, it cut back vastly on the rights of completely innocent Americans. There are particular things that Bush is doing now that Clinton did not do. However, I don’t think it is particularly useful to say this is worse. Is it worse than the internment of Japanese Americans in World War II? Is it worse than the imprisonment of Christian ministers during World War I for saying the war was contrary to Christian values? What is fair to say,  and what is sufficient to say,  is that Bush’s bypassing of federal law to conduct spying is a terrible violation of core governmental principles, individual freedoms and also our checks and balances system under the Constitution. President Bush has advocated such a broad construction of his inherent executive power under the Constitution. He has also assumed a very broad construction of the authorization of the use of military force that Congress adopted shortly after the terrorist attack. In this respect, I have to ask if there is anything that he thinks is not authorized under either the Constitution or the authorization of the use of military force. Is there any limit that he thinks Congress or the courts can put on his power? I don’t see any answer to that. If he says he has the power to engage in torture, or if he says he has the power to spy without any traditional judicial or Congressional oversight on the communications of innocent Americans, then what power does he not have? If he has the power, as he claims, to decree any American citizen a so-called enemy combatant and to be locked away forever without access to a court, without access to a lawyer, what power does he think is beyond his reach?

 JW: If Bush did break the law with the NSA surveillance, is that grounds for impeachment?
NS: In my opinion, most of the American public thinks that Congress could consider this grounds for impeachment, in its discretion.  This public awareness of Congress’s latitude here is in large part thanks to the Clinton episode and his impeachment. The constitutional standard for impeachment is “high crimes and misdemeanors,” and this has a very vague definition. When Gerald Ford was in Congress, he said it best when he remarked that a ground for impeachment is whatever Congress says it is. Impeachment is a political judgment. But certainly breaking a federal statute, and  violating Constitutional checks and balances, as with Bush, could be considered a high crime and misdemeanor by Congress. After all, with Bill Clinton’s escapade being considered a high crime and misdemeanor, I would say that this is surely at least as serious.

JW: Are you optimistic about the future of freedom?

NS: Absolutely. Not only because the ACLU, our members and other civil liberties organizations, including The Rutherford Institute, are so vigorous. But we must be willing to defend even those organizations that are exercising their free speech rights to engage in defamation against the ACLU, such as the Alliance Defense Fund. I am saying that with a smile because we absolutely defend their right to speak. We would never bring a libel action, even if what somebody is saying is patently false and defamatory about the ACLU, as are many of the claims that you have cited. We think they have a First Amendment right to say it. And as much as I disagree with how they are exercising their First Amendment rights, I think that in the mix it is good for democracy. It is also good for freedom. We are exercising our rights to defend individual liberty, and to try to affect government policy in ways that we believe are maximizing individual freedom. I think that is all to the good and signs of a healthy democracy.