Rabbi Charles P. Sherman
Temple Israel, Tulsa, Oklahoma
October 24, 2003
Freedom Is For All People
You might be surprised to know that clergy are regularly solicited, inveigled, and pressured to devote a sermon to a particular subject or a Shabbat to a certain cause. I frequently receive such blandishments from global and national Jewish and non-Jewish organizations; I reject almost all such requests. About six months ago, however, something caught my eye.
This weekend of October 24-26 was to be set aside as "Witness for Civil Liberties Weekend" – to bring together all kinds of people out of profound concern that the legitimate security needs of the United States of America be balanced against the rights and freedoms of its residents. There was a very impressive list of sponsors, including my Central Conference of American Rabbis, The Interfaith Alliance, Baptists, Friends, Lutherans, Mennonites, Methodists, Muslims, Presbyterians, Sikhs, Unitarian Universalists, etc. What a diverse group and the promise of good resource materials.
Why this weekend? Because this Sunday marks the second anniversary of the passage of the USA PATRIOT Act and the last day before the Muslim holiday of Ramadan – a fitting time for people of all faith traditions to celebrate the freedoms we hold dear, and to consider how to insure that these freedoms are truly for all people, regardless of citizenship, nationality, race or religion. I signed on and, therefore, my subject for this evening’s message: "Freedom Is For All People."
At Selichot, on Rosh Hashanah and again on Yom Kippur, we sang or read the Hebrew prayer called "Ashamnu." I pointed out that it is an acrostic using the sequence of the first letters of words to form an alphabet with an embedded message. The Ashamnu says that we have sinned from alef to tav or, in English, from A to Z. The editors of our machzor created an acrostic prayer in English to capture the style, if not the literal meaning, of the traditional Ashamnu. I find that prayer very effective. Yet every year when we get to the X-sin, "xenophobia," I detect snickering. Some people simply don’t know what the word means, and it does seem a stretch in the context of a prayer. But I happen to believe that there are few sins more immediate and more pressing upon our society than xenophobia – the dislike of the unlike, the fear of strangers.
For Yom Kippur, the holiest day of the year, the Sabbath of Sabbaths, our rabbis selected a passage from Deuteronomy 29 for the morning Torah reading. It is that powerful image of the entire community standing at Sinai before God – men, women, children and "even the stranger in your camp." These gerim, or strangers, were not Israelites, but they were participants in the covenant between God and the Jewish People.
And then on the afternoon of Yom Kippur, we read from Leviticus 19, more about the ger – the stranger, the alien – in the Jewish community. "When strangers live with you in your land, you must not oppress them. The strangers who live with you shall be to you like citizens. You shall love them as yourself, for you were strangers in the land of Egypt."
As Jews, we are commanded repeatedly and distinctly to treat strangers fairly, to consider them citizens, to love them as ourselves. This seminal teaching of Judaism is based on the fact that we were strangers in the land of Egypt, with direct knowledge of what it is like to be unlike. The authors of these texts and subsequent commentators understood how easy it is to take advantage of a minority group, and they applied an ethical imperative which still speaks to us today.
As a nation still recovering from the trauma of the 9/11 tragedy, as a nation – perhaps even as a world – plagued by fear of terrorism, we have compromised our imperative of welcoming the stranger. We have let our suspicion of others sabotage America’s vaunted value of being a haven to the oppressed of the world.
Like so many of your parents, grandparents or great-grandparents, my grandparents came to these shores from Russian and Hungary, not just to escape pogroms, but in search of freedom and better lives. They survived a difficult voyage to become strangers in a new land that adopted them, and which they in turn eagerly embraced. I think of them and their enormous loyalty to America, which gave them a new life and new hope, as I reflect on the many immigrants who helped to build and continue to strengthen our nation today. Deuteronomy 27:19 says "cursed is the man who withholds justice from the alien, the fatherless or the widow. "Then all the people shall say, Amen!"
I do not hesitate to describe the attacks of September 11, 2001, as mass murder, an abominable evil. And yet that does not justify, to my mind, that everything done in reaction to those events is, therefore, good. There are people and governments in the world who believe that in the struggle against terrorism, ends always justify the means. But that is also the logic of terrorism. I prefer the words of Louis Brandeis: "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding."
In November of 2001, President Bush issued an executive order establishing military tribunals to try non-United States citizens accused of "aiding or abetting acts of international terrorism," rather than relying on United States courts. Such tribunal hearings would be held behind closed doors, not subject to public scrutiny. The jury would be comprised of United States military officers. Evidence used could be kept secret even from the defense. There would be no appeal, and the death penalty could be meted out on a mere two-thirds majority vote. There is no provision for this in American law, and we have consistently opposed such tribunals for United States citizens abroad.
But perhaps of even more daunting consequence was October, 2001 passage of the USA PATRIOT Act – Uniting and Strengthening America by Providing Appropriate Tools for Intercepting and Obstructing Terrorism. That is what USA PATRIOT stands for. This act provides for the indefinite detention of non-citizens – not just for terrorism, but even for visa violations. Indefinite means, of course, without limit. Over 1,100 immigrants are currently being held under this provision, not one of whom has been charged with a terrorist act, and only a few charged as material witnesses.
The USA PATRIOT Act greatly diminishes judicial oversight of telephone and internet surveillance, expands the government’s freedom to conduct secret searches (without the person searched ever knowing) and provides broad access to sensitive business records without any evidence of a crime.
It implies that the Federal government may suspend many basic due process protections when it chooses, and not just for cases where it suspects terrorism, but anytime it is considered "relevant to an on-going criminal investigation."
Attorney General John Ashcroft has authorized federal law enforcement agencies to eavesdrop on the private communications between a defendant and their attorney, where there is suspicion they may be conspiring in further acts of terrorism. Now that may sound reasonable enough – we have got to stop terrorists after all – but existing law already provides for eavesdropping in such cases, when a court determines there is probably cause. But in the new scenario, the Attorney General has unilateral discretion. The Attorney General, you remember, is the prosecutor. So, as it stands, when the prosecutor has suspicions, he may suspend legal safeguards. In such circumstances, therefore, no safeguards remain.
As we would expect, there have been vigorous objections raised by civil libertarians. Attorney General John Ashcroft has dismissed these concerns. He said: "To those who scare peace-loving people with phantoms of lost liberty, my message is this – your tactics only aid terrorists, for they erode national unity and diminish national resolve." Well, Mr. Attorney General, you may feel that this sermon aids, if not abets terrorists – which I guess places me under the jurisdiction of a secret military tribunal, because I believe that we are on a wrong-headed course which assaults basic civil liberties that I cherish and I believe you should too.
At times of national uncertainty and fear, we must guard against an erosion of civil liberties. Benjamin Franklin warned us – "They that give up essential liberty to obtain a little temporary safety, deserve neither liberty or safety." The right to dissent is fundamental to our democracy, and alternative voices are especially necessary when the push for a national consensus is strong. Congress must deliberate carefully when considering expanding the powers and budgets of national security agencies. The failure to protect civil liberties now may have serious consequences for the future.
Today, in the name of patriotism, many in our nation are suspicious of innocent immigrants who seek what our grandparents sought – freedom and a better life. I believe that some of the laws and administrative edicts recently issued are not about patriotism but about nativism. They are laws not of protection but of suspicion. They are laws that tear at our nation’s commitment to welcome the stranger and replace that welcome with mistrust. These laws have compromised the civil liberties of thousands of legal residents and immigrants, and they have created new fears and suspicions. As Americans we must be concerned about civil rights. We must be concerned with the legal protection of the accused and the un-accused. We must be concerned with public suspicion turning into harassment.
And as Jews we must listen to the words of Torah. "When strangers live with you, you must not oppress them . . . Love them as yourself, for you were strangers in the land of Egypt." Today, more than ever before, we are commanded to know the heart of the stranger.
The debate over terrorism, security and civil liberties involves assessing risk and making choices about how much risk we are willing to tolerate. We live in a dangerous world; that is not debatable. We must determine, however, how much risk we are willing to bear in order to live in a free and open society. As Jews and as Americans, we have a duty to question our leader. Do the actions of our government reflect the values that we hold dear? Do the laws passed during this time of crisis protect us? Or do they merely protect the illusion of security while undermining the very principles for which we are fighting?
Jewish tradition has much to offer in seeking a balance between individual rights and the community’s need to protect itself. The Bible and the Talmud outline rules for protecting the privacy of one’s home, granting protection against intrusion by creditors, neighbors and agents of the government.
Not only is physical intrusion prohibited, but also surveillance of private space was deemed to be a violation of privacy rights. Later codes extended privacy rights to private correspondence, with decrees prohibiting reading another’s mail. These codes recognized that preventing crimes might require the discovery of confidential information; however, even when imminent harm was suspected, violating another’s privacy was permitted only in very limited circumstances.
And set against all these privacy rights is the overriding principle of pikuach nefesh – saving a life. Nearly any commandment can be violated if the result is saving a human life. We invest law enforcement agencies with considerable power to protect our communal welfare. When lives are at stake, we want to use all means possible to save those lives, even if it mean relinquishing some of our individual freedoms.
But how do we strike a balance between the values of privacy and individual rights and the need to protect society? September 11 sparked a debate in this country about "recalibrating" the existing balance to give greater latitude to law enforcement agencies to fight terrorism, even at the risk of some of the civil liberties we enjoy in our American democracy. As Jews, we understand the need for vigilance and swift action in the face of a terrorist threat. The Israeli experience teaches us this, as well as our own very real and legitimate concerns that Jews and Jewish institutions are at particular risk.
Yet as Jews we also know, firsthand, what can happen when government agencies have too much power, when law enforcement operates without checks and balances, when courts are stripped of their moderating influence and when individual liberties are subject to the whims of a fearful public. Will the Department of Homeland Security and the new anti-terrorism laws really make us safer? Or do they merely create the illusion of security? Will the new technologies unleashed on the American public help intelligence agents find and detain the terrorists? Or will they merely turn us all into suspects? When do we willingly relinquish our civil liberties for the greater good of our communal security, and at what point do we say dayenu – enough is enough? The answers to these questions will shape the society we shall bequeath to our children. This much I know. When anyone’s freedom is undermined, everyone loses something very precious. And if people of faith have nothing to say, then politicians will decide for us what is good and what is evil, which nations God blesses and which God punishes.
President John Quincy Adams once wrote that "Civil liberty can be established on no foundation of human reason which will not, at the same time, demonstrate the right to religious freedom." Civil liberties and religious freedom are intertwined – always. Muslims in America today fear not only for their privacy, but some even for their lives. Some are in jail, even though no charges have been filed against them. As people of faith, Christians and Jews should be concerned about this development, for religious freedom does not mean much if the followers of one faith have less freedom than others. Religious freedom cannot be compartmentalized, extending some rights but abrogating others under the stress and fear of what may happen next. One scholar of religion observed that "civil liberties scarcely thrive where religious liberties are disregarded, and the reverse is equally true."
Under new guidelines established in May, 2002, the FBI now has the authority to "monitor internet sites, libraries and religious institutions without first having to offer evidence that criminal activity is occurring. People of faith have more at stake in the preservation of civil liberties than we may realize.
Fear is a powerful opinion shaper. It clouds the mind and compromises the spirit. Once fear takes hold, freedom is easy to relinquish. In an atmosphere of anxiety and distrust, we gladly give up something to feel a little safer. We become less sensitive to the indignities that others must face as well. Yet such trade-offs belie everything we as people of faith believe about humanity. Our religious tradition is grounded in trust and respect for others, equally children of God.
There is a need for trust in all our relations with one another whether we are crossing the street or flying over the ocean. Clearly there is also a need for security, judiciously applied and respectfully carried out. How to find the right balance between trust and security is a question every one of us must ponder. It is fundamental to the meaning of how we are to live with one another. Where shall we place our faith? In the outward display of unity and control of public dialogue, or in our diverse humanity and the open search for truth? There is a choice to make.
As people who belong to a free religious community, the choice is compelling and personal. Our faith is rooted in freedom – the freedom to seek, to doubt and to grow without fear. We cannot do this without an open mind and a free society. We cannot do this unless others can do it too. We Reform Jews must remember that our particular religious philosophy has flourished most and best in this great land of religious freedom. When people are divided, as we are in these difficult times, we must remember that our faith always leads us back to our trust in humanity, our confidence in the work of community and our vision of a society in which all people are safe and free.
I am persuaded by David Kaylor that we have two visions struggling today for dominance in our nation. One vision sees problems in the world as being due to evil in those out there, and it advocates supreme military power as the key to our future. It advises that some nations are evil and that we are good. It advocates using our military power whenever it will advance our standing in the world, even using preemptive wars against nations that might pose a threat to us. It advocates projecting military power in such a proportion that never will any other nation dare to challenge us. This vision says that might makes right. We will use our power to dominate and control the world. We will continue to consume far more than our share of the earth’s resources, and we will gather into our coffers far more than our share of the earth’s wealth.
The other vision sees the cause of world problems not just out there, but also in here. In this vision, the evils that threaten include racism, poverty, materialism and militarism. The answer to these problems does not lie in military might, but in removing the conditions of poverty, insecurity and injustice which are the fertile soil in which the seeds of terrorism and conflict grow and develop. Following this vision, we would use fewer of our resources on military solutions and more resources to combat the underlying problems – the injustices, the inequities, the frustrations that give rise to war and terrorism.
I believe that the second vision is much closer to the ideals of Judaism. Supporting justice for the poor, helping the oppressed go free, removing the causes of strife, working for reconciliation provide us all a way to live in God’s good world. We will either learn to live that way or there is ultimately no hope for humankind. Dr. Martin Luther King, Jr. asked which will it be – chaos or community? " In the final analysis," he said, "the rich must not ignore the poor because rich and poor are tied together. . . All life is inter-related. The agony of the poor impoverishes the rich; the betterment of the poor enriches the rich. We are inevitably our brother’s keeper because we are our brothers’ brother."
Building respect among various peoples and cultures has never been more important. To heal as a nation and as individuals we must continue coming together across racial, ethnic, religious and cultural divides. We must listen to one another’s points of view, working together to build a world free of fear, hatred and intolerance.
If we continue to search for a vision that derives from God, we shall find ways for that vision to be expressed in our national life and in our relation to other nations. God bless America in finding and following that vision. Amen
In preparing this message, I have utilized materials distributed by Witness for Civil Liberties Weekend, particularly the writings of Rabbis Marla J. Feldman and Fred N. Reiner, Reverends Mark Gallagher and Judith Meyer, and David Kaylor.
