Udi Ofer is the Director of the New York Civil Liberties Union's Bill of Rights Defense Campaign. Fighting tooth and nail to protect the rights and liberties of New Yorkers in post 9/11 society, Udi spoke to Gothamist about the actions being taken by the NYCLU on the anniversary of the RNC, the lawsuit against the City regarding the Subway Search Program and the status of the USA PATRIOT Act.
If you're interested in getting involved with these issues, contact information follows the interview.
What is the New York City Bill of Rights Defense Campaign?
The New York City Bill of Rights Defense Campaign (NYCBORDC) is a non-partisan volunteer driven project of the New York Civil Liberties Union. It was formed in response to the post-9/11 government attacks on civil liberties and civil rights. We are living in a special period in American history. Since the terrorist attacks of September 11, 2001, basic constitutional rights have been needlessly sacrificed in the name of national security. The mission of the NYCBORDC is to restore and defend those rights.
The NYCLU just released a report on police practices during last year's RNC. Can you give some highlights?
Our report found that the performance of the police was decidedly a mixed one. While hundreds of thousands of people were able to make their voices heard, the right to protest was severely undermined by the mass arrests of hundreds of peaceful demonstrators and bystanders, the pervasive surveillance of lawful demonstrators, and the illegal fingerprinting and prolonged detention of nearly 1,500 people charged with mostly minor offenses.
The report contains a set of recommendations. One is the establishment of an independent City agency to oversee the planning and management of large demonstrations. Interestingly, the NYPD has and continues to defend all of its actions during the Convention and has insisted that it made no mistakes.
The Charge or Release Bill is an outgrowth of what happened during the RNC. What is this legislation about?
Introduced by Council Member Bill Perkins, the Charge or Release Bill, or Intro. 649, would mandate that individuals arrested in New York City are arraigned within 24 hours of arrest. The legislation will solve one of the serious problems highlighted during the Republican National Convention when hundreds of protesters were held far in excess of 24 hours and often charged with minor violations.
When the NYCBORDC decided to study this issue following last year’s convention, we quickly learned that holding arrestees for longer than 24 hours is routine in many parts of the City, particularly in communities of color. We studied arrest processing statistics from October and November 2004 and were shocked to learn that more than 16,000 arrestees were held for longer than 24 hours in New York City. During those two months alone, a shocking 62 percent of arrestees in the Bronx—the borough with the largest minority population—were held for longer than 24 hours, the highest percentage among the five boroughs. The lowest percentage was in Queens, where 22 percent of those arrested were held longer than 24 hours.
The purpose of the Charge or Release bill is straightforward: No one should be held for longer than 24 hours without seeing a judge. Whether it’s demonstrators at the RNC, or people arrested daily in New York City, everyone is innocent until proven guilty, and should be treated as such.
Until the bill is passed what sort of action can people who have been held more than 24 hours take?
Individuals could file a lawsuit, and should share their stories with us to assist our lobby efforts to pass the Charge or Release bill. In fact, I encourage people to contact us and get involved with our efforts.
Are you getting resistance when it comes to passing the bill?
The bill is currently in the City Council’s Public Safety Committee, which is chaired by Peter Vallone Jr. He is yet to schedule a hearing for the bill. That’s outrageous, particularly since the bill already has 17 co-sponsors in the City Council. I encourage people to call Council Member Vallone and ask him to schedule a hearing for the Charge or Release bill. You can contact his office at (212) 788-6963.
Another focus of your work right now is the USA Patriot Act. What is the status of the Act?
When Congress passed the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001) in the weeks immediately following September 11, 2001, it recognized that it was granting broad and unprecedented powers to law enforcement, and so it included an expiration date to approximately ten percent of the Act. Those sections are due to expire at the end of this year.
In response to the expiration both the House and Senate have passed bills to reauthorize those sections. The Senate's bill was a bi-partisan effort that makes modest but important steps toward reforming the Patriot Act, though some significant flaws remain. The House bill, by contrast, does not offer any meaningful reforms, makes some parts of this flawed law even worse, and makes all but two provisions of the Patriot Act permanent.
How do you feel about Congress voting to renew the Patriot Act? Is there anything redeeming in this legislation?
The Patriot Act as a whole has some important provisions that should not be repealed. For example, it increases funding for the employment of translators by the FBI, and includes expedited payment for public safety officers involved in prevention, rescue, or recovery efforts related to a terrorist attack.
But the Patriot Act also strips New Yorkers of basic constitutional rights, including the right to free speech, privacy, and due process. The provisions that strip us of our rights must be reformed. Unfortunately, none of the bills currently before Congress adequately fix the Patriot Act. While the Senate bill is a step in the right direction, it fails to address some of the biggest problems.
What sections of the Act do you find the most threatening?
Where should I begin? There are about a dozen sections that are the most threatening to basic rights and freedoms. Here are three examples: Section 215, which violates the First and Fourth amendments, grants the FBI unprecedented authority to seize your personal records without proof of any criminal activity and in complete secrecy. Section 213, which violates the Fourth Amendment, allows the government to search your home and seize your property in regular criminal proceedings without telling you for months or years. And section 802, which violates the First Amendment by defining “domestic terrorism” so broadly that it includes activists engaged in nonviolent civil disobedience. By the way, section 802 is one of the reasons that many conservatives are against the Patriot Act. They know that this provision could be used in the future against the anti-choice movement.
Since it’s federal legislation, is there anything that can be done on the State level?
Yes! All politics is local. New York’s federal lawmakers play a special role in the debate on protecting civil liberties in the fight against terrorism. New York faced the brunt of the September 11th attacks, and continues to be a prime target for another attack. New York City has also bore the brunt of overzealous and counterproductive antiterrorism measures. It’s estimated that in the Midwood section of Brooklyn alone between 12,000-15,000 residents have fled or have been deported due to government counterterrorism initiatives. We need to continue to lobby our lawmakers to make sure that they vote the right way. We’ve succeeded in some respects. Notably, 17 of the 19 members of the New York State congressional delegation who voted against the House bill to reauthorize the Patriot Act live in jurisdiction that have passed a Bill of Rights resolution. In New York City, 12 out of the city’s 13 representatives in Congress voted against the bill.
What is the NYCBORDC doing with regard to the Patriot Act?
So much. The NYCBORDC has been working non-stop to educate the public about the Patriot Act and lobby lawmakers to vote in favor of Patriot Act reform. On June 15th, we hosted a community meeting and brainstormed ideas for educating the public and elected officials on the Patriot Act and related post-9/11 measures.
Next we held a rally outside of the main branch of the NY Public Library. More than 500 people attended it. A representative from Congressman’s Anthony Weiner’s office made a surprise appearance at the rally and announced the Congressman’s support for the SAFE Act and Civil Liberties Restoration Act, two pieces of legislation that would fix the Patriot Act.
We also brought together 85 organizations to send a letter to the New York congressional delegation asking lawmakers to vote against legislation to renew sections of the Patriot Act scheduled to expire.
And we’ve also sent 1,729 faxes to 131 lawmakers asking them to reform the Patriot Act.
And there’s more. NYCBORDC members have taken to the streets for a “Call Congress Campaign.” Our members leafleted at various city parks and urged the public to call their representatives from their cellular phones. NYCBORDC members have also leafleted outside New York City subway stations and the Staten Island Ferry.
And did I tell you that we’re starting a comedy troupe? I’ll save that for the next interview.
The NYCLU has stepped up regarding the subway searches, calling them unconstitutional. On what grounds are they unconstitutional?
The NYPD is violating the Fourth Amendment rights of subway commuters by enforcing a policy of searching the bags of those seeking to enter the subway system without any suspicion of wrongdoing. Long-established constitutional principles hold that individuals retain the right to move about on our public streets freely without police intrusions. Police officers, as a general matter, may not search individuals in the absence of individualized suspicion.
Yet under this program, tens of thousands of innocent New Yorkers trying to move about the city have been searched by the police without any suspicion of wrongdoing. Meanwhile, those who want to plant a bomb remain free to enter the system without being searched.
Do you think the Subway Search Program is an effective way of deterring terrorism?
No!!! Sorry for yelling, I think that I had too much coffee, but this question gets to me. No one in their right mind would think that this policy deters terrorism. Under the program, there are police checkpoints at a small number of entrances where people are selected for search supposedly according to a numerical formula. If you don’t want to be searched, then you are allowed to refuse and walk away. Then, you are free go to the next subway stop, where there will most likely be no checkpoint, and enter the subway system.
Whether this is an effective public-safety program is key since suspicionless searches can be constitutional only if they are clearly effective. These suspicionless searches are not.
What's the status of the law suit?
There will be an evidentiary hearing in the next month or two.
The NYCBORDC is non-partisan. Are you ever accused of being partisan?
Being that we live in New York City, and live under a Republican Mayor, Governor, and President, and since our job is to be critical of government measures, we get accused of being anti-Republican, which translates into being pro-Democrat. But I have little doubt that with a Democrat Mayor, Governor, or President, we would still have plenty of work to do.
Unfortunately, in times of crisis, Democrats and Republicans alike are all too willing to sacrifice civil liberties in the name of national security. It was President Franklin D. Roosevelt who ordered the internment of 110,000 Japanese Americans during World War II. More than 70,000 of those interned were United States citizens.
What do you think of the job Bloomberg is doing?
Since it’s an election year, let me be clear that the NYCLU and NYCBORDC are both non-partisan. We don’t take a position on whether someone should vote for or against Mayor Bloomberg or any other elected official.
That being said, constitutional rights have been severely undermined on numerous occasions over the last few years. On February 15, 2003, when millions of people across the world were protesting the war in Iraq, New Yorkers were prevented from engaging in their First Amendment rights. Tens of thousands of people were prevented from even making it to the rally, and hundreds of protesters were arrested just trying to get there. Also, the use of pens and barricades at the rally significantly limited the ability of demonstrators to walk around.
During the Republican National Convention, again demonstrators were treated like criminals. The police engaged in indiscriminate mass arrests, such as the arrest of 227 demonstrators soon after their anti-war march began on August 31st. On October 6th, the Manhattan District Attorney threw out those arrests at the request of the NYCLU. Protesters charged with minor offenses were fingerprinted, which is not allowed under New York law. The practice raised concerns about whether the NYPD was seeking to build a database of the fingerprints of political activists.
Also, we have a situation in New York City where federal initiatives are impacting New Yorkers in troubling ways and the City is not reacting. In particular, Arab and Muslim communities in New York City have been devastated by federal programs (sometimes with local assistance), and the Mayor has been silent about it. Thousands of New York’s Arabs, Muslims, and South Asians have been detained, interrogated, or deported based solely or primarily on their ethnicity or religion. The Metropolitan Detention Center in Brooklyn is infamously known as the center where hundreds of detainees arrested after 9/11 were “subjected to a pattern of physical and verbal abuse.” This Justice Department’s own Inspector General reached this conclusion.
It’s time for New York City to find out what’s happening under its own roof. I think that the Mayor should appoint a special commission to investigate the human and economic impact of post-9/11 antiterrorism measures on New York City’s residents.
What about Commissioner Kelly?
He just doesn’t get it. The NYPD continues to refuse to take any responsibility over the wrongful treatment of demonstrators at the RNC. Everyone has seemed to recognize that mistakes were made, except the NYPD commissioner.
How about Betsy Gotbaum? How closely do you work with her on issues?
We played a softball game against the Public Advocate’s office about a month ago. She’s a good pitcher!
How did you end up at the NYCLU?
On September 11, 2001, I was about to begin my second day of work as a Skadden Fellow at a domestic violence organization in Westchester County. My job was to represent battered immigrant women in immigration and welfare proceedings. I loved it. But on 9/11 everyone’s world changed, including my own. After learning about the post-9/11 round ups of innocent immigrants, passage of the Patriot Act, and the government’s suppression of dissent, I realized that I needed to change the course of my life and applied for a job with the NYCLU.
Also, I grew up both in New York City and Israel, so terrorism is not a new concept for me. I grew up with the threat of terrorism. At the same time, I believe strongly that civil liberties and national security do not conflict, and that we could protect both at the same time.
Given the current state of affairs regarding personal freedom and civil rights in this country, how do you feel about the future?
The American people have a fascinating relationship with civil liberties. We love to glorify the ideals of the Constitution and the Bill of Rights. We all take pride in them. Think about it, if you asked a person on the street what makes the United States great they would probably reference freedom of speech or religion. Yet the American people are all too willing to sacrifice those rights in the name of preserving them. Future generations will study this period as a dark one in the history of constitutional law. I don’t think that we’re going to get out of this period anytime soon. My mission in life is to make sure that this period lasts for as short a time as possible.
If you're interested in volunteering with the NYCBORDC, you can email them at email@example.com or call them at (212) 344-3005 ext.268.