Outgoing ACLU President Nadine Strossen

During the nearly 18 years that Nadine Strossen served as president of the American Civil Liberties Union (ACLU), the organization has been a staunch advocate in some of America’s most polarizing legal battles, including fights over Internet free speech, abortion and the separation between church and state. The ACLU’s membership nearly doubled during her tenure, which ended when she stepped down earlier this year. Strossen spoke to TIME about her toughest sparring partners, the tension between national security and civil liberties and why the upcoming election is even more important than people may realize.

Your father was a Holocaust survivor, and your organization famously represented Neo-Nazis’ right to march in Skokie, Ill. Is it difficult to stomach these types of cases, in which the ACLU’s principles mean you have to represent this type of group?

Absolutely not. The neutral defense of fundamental freedoms is at the core of the civil liberties agenda, which is looking beyond the immediate factual contest to understand that what is being fought for is a general principle that we have to defend every time it’s threatened. As experience shows, if government ever has the power to violate one right for one person, then no right is safe for any other person.

Is this neutrality something your detractors don’t understand?

I can’t think of an example where I’ve not been able to at least get someone to understand where I’m coming from. They may ultimately disagree, but they disagree from a position of respect and understanding. It takes a little bit of explanation [to show] that we’re defending the First Amendment, that [the Constitution] is the long-term beneficiary.

Do you ever find yourself developing a kinship with ideologues of different stripes?

Absolutely. For all of our differences on how particular issues should be resolved, activists across the spectrum have more in common with each other than we do with members of the public who don’t care about these issues. Take the head of the Christian Coalition’s legal arm, Jay Sekulow. He cares passionately about exactly the same issues I care passionately about. Obviously we deeply disagree on abortion and gay rights. But we have strong agreement on freedom of speech and free exercise of religion. The ACLU absolutely defends the free speech rights of anti-abortion protestors.

You have a history of debating prominent people who disagree with you— Justice Antonin Scalia, William Buckley, Ann Coulter. Do any of these people stick out as the most skilled advocate for positions you disagree with?

He’s not on the same level of prominence, but Jay Sekulow of the American Center for Law and Justice, who I mentioned. He gets a lot of credit — or blame, depending on where you’re coming from — for how case law has changed on issues like separation of church and state. Of the people who you’ve mentioned, I’d say the one I’ve always enjoyed the most is Antonin Scalia. My second favorite over the years was Ed Meese, the attorney general under Ronald Reagan.

What are some of the most memorable or important cases during your tenure?

What stands out in my mind is the advent of the whole cyber-world. Cyberspace was a term that started circulating in the public in the early 1990s, and the ACLU had a cyber-liberties task force from the beginning. We advocated for free speech and privacy in that venue the same way we did in others. But it was a struggle. The government was advocating for a second-class First Amendment and constitutional status for the Internet. That was very frightening. Nobody had any idea how it was going to go and I’m very proud that we won, 9-0, in a Supreme Court case called Reno v. ACLU.

The other major cluster of cases and initiatives are post-9/11 issues. We immediately started what has been our mantra since then: safe and free. We knew this would be seen as an inevitable trade-off; we’d have to choose [between them], and freedoms would be the sacrificial lamb, so to speak, if we were going to have national security and fight terrorism.

How have the Patriot Act and the emphasis on national security impacted ordinary Americans’ lives in ways they don’t realize?

People don’t realize that the NSA has the power to engage in surveillance of our email and telephone communications without any kind of notice. You’re never going to get a search warrant or an after-the-fact notice that your communications have been intercepted. I think people would be really shocked if they understood the dragnet nature of the surveillance. This shroud of secrecy has been thrown over basic government operations, denying people basic information they are entitled to. As we know less and less about our government, they know more and more about us.

How should the next Administration and the next Congress manage the tension between security and civil liberties?

There are so many guidelines for this. They’re based on actual study and analysis of what led to the catastrophe on Sept. 11. Not a single one of the recommendations has anything to do with expanding the government’s surveillance power. That was not what the problem was. The problem was the government had not effectively acted on the enormous amounts of information they had already amassed under its already enormous surveillance power. One of the points the Sept. 11 Commission made was that excessive secrecy actually undermined national security because it was hard to get information out. With congressional oversight and judicial review you can channel the government’s resources more effectively. National security experts say that the whole premise of NSA domestic spying and data-mining is junk science. It’s the worst of both worlds: the government is being bogged down listening to communications between innocent people, and they’re not channeling resources toward those who really act in a suspicious manner. Law enforcement and security experts criticize demographic profiling for the same reasons.

How important is the upcoming election in light of the fact that the next president is likely to have at least one Supreme Court appointment?

If you look at the record of the recent past, every case on national security, for example, has been divided 5-4. Abortion is up for grabs. Affirmative action and racial justice are [major] issues. The longest a president can serve is a tiny fraction of the [average Supreme Court justice’s tenure]. The amount of power that the Supreme Court has is much greater, for better or for worse. We’re one vote away from flip-flopping on the law of the land on issue after issue.

You recently described the criminal justice system as “in a terrible state.” Why?

The U.S. has the highest percentage of its population behind bars of anybody in the world. Most of the people are locked up for non-violent drug offenses. Really every drug policy expert will say that this is a public health problem. Because it’s been dumped onto the criminal justice system, it becomes a problem of crime and violence. The rational way to treat this problem is through prevention, not criminal punishment. So it’s not doing anything to stem the use and abuse of drugs, but it does continue to generate violent crime and to decimate minority communities.

So is your prescription complete decriminalization?

Absolutely.

Of all drugs?

Absolutely. That’s not to say there can’t and shouldn’t be stringent types of regulations to prevent abuse, protect minors and protect health. But it would be better from a public health perspective, and it would vastly improve the criminal justice system — among other things, by freeing up space and resources for others who are actually engaging in violent crime.

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