Our march toward justice has been long and not without setback, but as the Rev. Dr. Martin Luther King, Jr. once reminded us, “the arc of the moral universe is long, but it bends toward justice.” His words have special resonance for me today, the 217th anniversary of the ratification of the Bill of Rights, as this dark period in history draws to a close. Under the guise of safety and security, we have endured continual assaults on the basic principles on which this country rests: civil rights and liberties, open and limited government and a basic respect for the rule of law. Come January, Americans could have an opportunity to restore the vitality of our Bill of Rights, and resume the struggle to turn America into the place that Dr. King dreamed of where “justice runs down like waters, and righteousness like a mighty stream.”

From the moment he takes office, President-elect Barack Obama will have the power to close the Guantánamo Bay prison, shut down the military commissions, stop abusive interrogations and prohibit the rendition of people to countries where they are likely to be tortured. These practices are a disgraceful perversion of everything good and decent this country stands for.

Indeed, our nation’s founders fought a revolution to escape England’s secret courts and gruesome brutality. They sought to create a society that prohibited the government from holding someone in jail indefinitely without charge, that allowed the accused to challenge the state’s evidence against him or her, and that protected citizens from intrusive and unwarranted searches and seizures. These principles have played a vital role in making America a country “of laws and not of men.”

But just over two centuries later, the Bush administration decided that it was above the law – at Guantanamo Bay, in the military commission process, and in the torture and rendition of those in our custody. We have imprisoned people at Guantanamo whom even the Department of Defense admits have no connection to terrorism or Al Qaeda. And, the president has refused to shut down the CIA’s secret “black site” prisons or to acknowledge the illegality of water torture.

When our nation’s founders ratified the Bill of Rights 217 years ago today, they knew that justice could not be served in secret, and that conviction and punishment doled out in the shadows inexorably leads to illegitimacy. Our commitment to civil liberties and the rule of law are not just the measure by which the world judges us but they are also the foundation on which our freedom and democracy rest. President-elect Obama has the power, on his first day of office, to restore the Bill of Rights and bend the moral arc a little closer towards justice. We, as Americans, must make sure he doesn’t get led astray.

I realize why Americans are all too eager to awake from the strange nightmare that has been the Bush administration – it has seemed interminable. How far away does 2004 seem right now? Or 2003 for that matter? When I started working at the ACLU, John Ashcroft was still the Attorney General. Had someone told me then that Ashcroft would be redeemed as a defender of (certain) liberties in a melodramatic near-deathbed showdown with nefarious minions of Cheney, I would have laughed. The man who insisted the "Spirit of Justice" wear a robe? Surely you jest.

And yet this nightmare has been more brief than it seems. Only eight years ago the idea of the U.S. employing torture, spying on citizens, and issuing "national security letters" to librarians seemed like the realm of Orwell. Fitting then, that our current Attorney General keeps a portrait of the author of "1984" above his desk.

Dahlia Lithwick, in this week’s issue of Newsweek, chronicles some of the challenges ahead for the upcoming Attorney General. In addition to releasing the DOJ memos that authorized illegal conduct, Lithwick weighs in on whether the DOJ should be the agency in charge of investigating itself. For guidance, she points to former Attorney General and Nuremberg war crimes prosecutor Robert Jackson. Jackson said the AG should be a person who "tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes."

Strangely enough, the other portrait currently hanging in Mukasey’s office is the very same Robert Jackson. Irony, it seems, is far from dead.

We’re also looking S.3061, the reauthorization of the Victims of Trafficking and Violence Protection Act (PDF), to move in the Senate this week. Which is timely, because we just joined a lawsuit that deals with that very law.

Tuesday, November 18

Today the Senate Judiciary Committee holds its (and it’s a mouthful): "Return of subpoenas regarding legal analysis and advice from the Department of Justice Office of Legal Counsel related to the Bush administration’s terrorism policies, including detention and interrogation policies and practices" hearing. Attorney General Michael Mukasey was ordered to produce all torture documents for this hearing. Will he comply? Stay tuned.

But it sure does set an important tone: passing a law is not the best way to handle every situation. On MTV, Obama called municipal ordinances that ban baggy pants "a waste of time."

"Having said that," Obama said, "brothers should pull up their pants. You are walking by your mother, your grandmother, your underwear is showing. What’s wrong with that? Come on."

It seems clear that the former constitution law professor understands why we should not legislate against personal freedom of expression. Hopefully, the president-elect will also use the bully pulpit to influence many other small issues and leave the legislation to the big stuff.

The historic election of Barack Obama is groundbreaking for a host of reasons, not least of which is the illustration it provides of the status of race in the United States in 2008. The election of an African American is stunning considering the tragic history of race in this country. After all, despite the enactment of the 15th Amendment in 1870 which prohibited racial discrimination in voting, it was still necessary to pass the Voting Rights Act in 1965 in order to address the wholesale disenfranchisement of black voters which occurred despite the specific protections promised by the Constitution nearly a century before. So recent was this broad denial of voting opportunity that a significant number of people casting their votes in support of Obama were earlier precluded from voting entirely on the basis of their race.

Nor is voting the only area in which we have witnessed enormous changes. As commentators have pointed out, Virginia’s anti-miscegenation laws had not yet been struck down at the time Barack Obama was born. Given that history, it is truly extraordinary that Obama carried a state in which his parents, had they elected to live there, would have been considered criminals solely by virtue of their being married and of different races

Obama’s election therefore represents a milestone in this country’s battle against discrimination. It is a victory not only for persons of color but for all Americans. Indeed, one of the most striking things about the election was seeing a crowd of Obama supporters which included people of every race and ethnicity, every age and every economic level. This inclusiveness bodes well for the nation’s future.

In the days ahead, much of Obama’s success will depend upon his ability to carry that inclusiveness forward in order to assure that all citizens enjoy equal opportunities — both for their own benefit and the benefit of the country as a whole.

Much of the work of the ACLU, and its Racial Justice Program in particular, has concentrated on trying to assure that the promise of equality and opportunity exemplified by Obama’s election is extended to all Americans. Examples of this are many. In the area of voting, one of Obama’s greatest achievements was to inspire and encourage the broadest possible participation in the electoral process. Likewise, the ACLU’s efforts to restore the opportunity to vote to persons convicted of crimes who have discharged their debt to society by completing their sentences is an attempt to make it possible for those people to become productive participants in democratic society.

Obama’s path to the presidency is the result in large part of his taking full advantage of educational opportunities provided to him. Much of the ACLU’s work seeks to make opportunities available to all children regardless of race or ethnicity or economic status through the removal of barriers which unfairly impede the progress of many students. Through its work attempting to increase graduation rates, reduce racial, ethnic and economic isolation, address inequity in educational resources and attempting to assure safety in schools while keeping children in classrooms and out of the criminal justice system, we hope to provide all students with the opportunity to realize their potential and become contributors to society as a whole.

Through its work combating racial and ethnic profiling and its efforts to assure fairness in the criminal justice system, the ACLU seeks to restore public confidence in the law enforcement and criminal justice system in much the same way that the recent election re-affirmed the democratic process and helped restore the perception of the integrity of the process to people in this country and abroad.

A number of observers, including Sen. John McCain in his concession speech, described Obama’s success as a sign that we as a nation have overcome our unfortunate racial history. Despite the remarkable advance which Obama’s success represents, far too many people remain hampered by unequal opportunities for us to declare final victory over inequality. But progress is undeniable and the path we must pursue to assure that all Americans enjoy the opportunity to realize their potential as individuals and citizens is clear. Having seen Barack Obama pass through the door of opportunity, it would be tragic to permit it to close for so many others.

President-elect Barack Obama will become chief executive of a nation that has been greatly weakened — in particular, our freedoms, our values, and our international reputation have been significantly undermined by the policies of the past eight years. Presidents have enormous power not only to set the legislative agenda, but also to establish policy by executive order, federal regulation, or simply by refocusing the efforts and emphases of the executive agencies. President-elect Obama must use all of these tools to restore our freedoms and move the country forward.

In preparation for the transition to a new presidential administration next year, I asked my staff to look at what a new president could do to begin to reverse the damage that has been done in the past 8 years to this great nation. What I got back — from experts on a wide variety of subjects from throughout the ACLU — was very revealing. And it brought home just how off-track our presidential campaigns have become.

As you can see here: www.aclu.org/transition, some of the items were self evident for us: stop torture, close Guantanamo, shut down the military commissions, end "extraordinary renditions" in which suspects are kidnapped by the CIA and sent to countries where they are tortured. All of these practices are abominations — violations of our nation’s dearest principles and a blotch on America’s good name. Those are actions the next president, whoever he turns out to be, should take on his first day in office.

Our other priorities are nearly as clear: steps such as ending warrantless spying on Americans, fixing the nation’s broken watch list system, banning discrimination against sexual minorities in federal employment, stopping the monitoring of peaceful political activists, and restoring the Justice Department’s Civil Rights Division as a meaningful body.

But what is really striking is when you move down to the next level. I received dozens and dozens of action items from throughout our broad, multi-issue organization — issues that are never going to make the front page of the newspaper, but which can have a dramatic effect on the lives of Americans.

Let me give you just one example. Until recently, residents of public housing were to be evicted from their homes whenever criminal activity took place in those units — without exception. But one result of this "get tough" law was that women who were victims of domestic violence were being evicted from their units because of the crime that took place there — the domestic violence — even though they were the victim of the crime!

Congress fixed this absurdity in the 2005 Violence Against Women Act (VAWA). But today, more than two years after enactment, the Bush Administration has still not acted to implement the fix. The Department of Housing and Urban Development has not issued regulations interpreting and explaining the law, and has distributed inaccurate information about how it applies. As a result, many public housing authorities remain unaware of the new law and have not trained their staff on the new protections.

It’s a fair bet you’re never going to see that issue raised in a presidential debate, or read about it on a bumper sticker, or on the front page of your newspaper. Probably not in the back pages either. I worry that even the "big" issues like closing Guantánamo, shutting down the military commissions, and prohibiting torture and rendition will literally be thrown under the bus in a new administration. As I read over the list of requests our staff has compiled, it is striking how many issues are like this — vital, important issues that affect many lives, but which we have a dim hope of ever setting directly before the American people.

The country’s civil liberties "to do" list really brings home just how sweeping the power of the president of the United States is. The often obscure actions of various deputy assistant secretaries will together probably make as much difference to Americans as the new president’s actions on the headline issues of our times. We need leadership at the top. And President Obama ought to act swiftly on day one by picking up his pen and signing executive orders that shut down Guantánamo and the military commissions and ban torture and rendition. Once he crosses those off of his "to do" list, we can pick up on the many other things that need to get done. But leadership needs to start on day one.

Are you a high school senior, preparing to graduate and attend college? Are you passionate about protecting your civil liberties and promoting equality? Do you believe in supporting democracy and preserving your individual rights, guaranteed by the Constitution? Well, then we have an opportunity for you!

The ACLU’s Youth Scholarship Program is a great way for young civil libertarians to show off their stuff and pay for school at the same time. The ACLU will pick 16 individuals from across the U.S. to receive a college scholarship for $12,500. Plus, winners will attend two Youth Activist Leadership trainings in NYC and Washington D.C., where they will meet other members, lawyers, and staff of the ACLU who work diligently in promoting and protecting our civil liberties.

What makes a student activist? Just look at things you do in your everyday life! How do you express your commitment to protecting the rights of all Americans? Do you fight for your First Amendment rights, promote the rights of LGBT, speak out against civil liberties violations, or promote awareness of our rights through education?

If this sounds like you, contact your local ACLU affiliate to apply! You’d better hurry; many affiliates stop taking applications in mid-November!

More scholarship information can be found at StandUp!, ACLU’s Youth website.

Hard to believe this could happen, right? What about if you aren’t white? Is it easier to believe then? Well, it happened to Guillermo Olivares, 25, a U.S. citizen born in Los Angeles. And it happened to him over and over again.

On as many as five occasions, border agents denied Olivares entry into the U.S. at the Tijuana border crossing when he attempted to come home after he was illegally deported. He even resorted to crossing illegally…but was caught and deported again.

His ordeal began in 2000, when Olivares, then 16 or 17 years old, was returning to the U.S. with a cousin, who did not have papers to enter the U.S. Instead of denying entry to just the cousin, border agents denied entry to Olivares as well, claiming that Olivares wasn’t who he said he was and that his birth certificate was not real. The agents, however, never attempted to corroborate the birth certificate or his identity. Instead, the agents told Olivares he would be detained if he did not admit to being someone else. So Olivares did what any teenager fearful of being locked up would do: he told them his name was Guillermo Romero, a variation of his actual name, Guillermo Olivares Romero, and he was returned to Mexico.

One week later, Olivares’ mother traveled to Tijuana to retrieve her stranded son. The two crossed the border without incident when Olivares’ mother presented border agents a copy of Olivares’ birth certificate, certified by the county registrar.

In 2006, when Olivares was serving time in state prison for probation violations, an agent from Immigration and Customs Enforcement (ICE) visited him in prison and informed him that ICE believed he was a citizen of Mexico and planned to deport him. Olivares protested that he was an American citizen. They refused to listen to him, and Olivares, unaware of his rights, felt he had no choice but to say he was Mexican and sign some papers that were never explained to him. In the spring of 2007, ICE deported Olivares to Mexico.

Again Olivares’ mother traveled to Tijuana to retrieve her son. Despite the certified copy of his birth certificate, border agents told Olivares that he was Mexican and sent him back to Tijuana. Frustrated, Olivares went to live with his mother’s family in Jalisco, Mexico.

Over a year later, in June 2008, Olivares’ father became gravely ill. Anxious to see his ailing father, Olivares returned to Tijuana. He and his mother tried multiple times to cross the border with a certified copy of his birth certificate, but again border agents turned him away, insisting that he was lying.

Finally, in August of this year, desperate to see his father before he passed away, Olivares crossed the border illegally. But the agents arrested and deported him again, despite his protests that he was a U.S. citizen. He was deported on September 2, 2008; the day his father died.

A few weeks later, fed up of being denied his fundamental rights as a citizen, Olivares again attempted to cross the border and presented his certified birth certificate. This time Olivares refused to be badgered into signing any papers and demanded to see a judge. Border agents put him into removal proceedings and imprisoned him in the Otay Mesa Detention Center in San Diego. When the ACLU of Southern California sent the detention center a certified copy of his birth certificate — the same evidence of citizenship that Olivares had presented over and over again — ICE released him.

During the course of Olivares’ odyssey, not once did ICE agents attempt to corroborate his claims to citizenship. They ignored his government issued birth certificate. They dismissed his efforts to provide them his Social Security number. They did not even consult the government’s own criminal records, which would have confirmed that Olivares is a U.S. citizen. Instead, they judged his immigration status on the basis of race on the theory that if he looks "Mexican," and speaks like a "Mexican," then he must be Mexican.

This story speaks volumes about an immigration agency that is systematically abusing its power to enforce our nation’s immigration laws. With very few checks on its authority, ICE routinely disregards the constitutional rights of those caught in its enforcement web, including U.S. citizens and legal permanent residents, often using race as its only evidence of immigration status. Across the country, there are increasing reports of U.S. citizens who have been illegally deported and detained in ICE custody. Such practices will continue so long as ICE can make discriminatory and baseless determinations about a person’s legal status, without affording the procedural protections required by the Constitution.

My first thought after the election was that the ACLU could certainly teach the country a lot about how to run a presidential election. All efforts were made to allow every one of the eligible voters (the 83-person National Board of Directors) to participate in the process and vote. There was no negative campaigning; the debates were only about the issues; and every vote was counted.

My second thought was about the awesome responsibility of leading the ACLU through the challenging times to come. Since the beginning of Anthony Romero’s tenure in 2001, we have experienced exponential growth of our membership, our national and affiliate staffs, and our budget. Both the turbulent economy and the Obama/McCain election will require us to have new conversations about how we can best advance our mission: to protect and restore our civil rights and civil liberties.

We are approaching the centennial of the ACLU in 2020. My chief goal as President will be to make sure that the ACLU is a permanent fixture in the country’s landscape going into our second century.

I have received many congratulatory calls and emails from people I have known in all aspects of my life. My young friend Lucas Hartstone-Rose, who has been living in Ghana, talked about the importance of the ACLU not just in protecting our own rights, but in setting an example for the rest of the world. “Not only has the unlawful imprisonment of detainees, in Guantánamo Bay, without due process, and subject to what is clearly cruel and unusual punishment, hurt us at home, but it’s really undermined our ability to persuade other governments to respect people’s rights.”

I hope to help lead the ACLU to do the work we have always done in promoting liberty, equality, fairness, and tolerance. And I hope to reach out to new communities in this country which have not always understood that our work is also on their behalf, to new generations of civil libertarians, and to the global community of which we are part, whether we intend to be or not.

Some memories are bittersweet, like our work on the Lily Ledbetter Act, and some are just bitter (FISA!). From legislation honoring Emmet Till to our work on bills that would ensure a federal reporters’ shield, the WLO has been up to our elbows in lawmaking this year.

I urge you to check out our wrap-up, and then pour a sip out on the sidewalk for the Fourth Amendment.