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tv   Book TV  CSPAN  November 12, 2011 3:30pm-4:45pm EST

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we will, of course, post the program within 24 hours on our home page for everyone's future reference, and our internet viewers are welcome to send questions or comments at any time, simply e-mailing us at, hosting our discussion this afternoon is edwin meese. mr. meese serves as our ronald reagan distinguished fellow in public policy and chairman of our center for legal and judicial studies and, of course, he served ronald reagan as the 75th attorney general of the united states. please join me in welcoming ed meese mr. meese? [applause] >> thank you, john, and thank you, ladies and gentlemen. we have been over the last week celebrating or commemorating is a better term the events of the 11th of september, 2001. it was the first attack on a city or cities, actually, in the
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mainland of the united states since the war of 1812. it was a, perhaps, one of the most traumatic events in the lives of many of the people that are here. to me, it ranks with an event that i was witnessing as a younger person, pearl harbor. but it caused tremendous burdens to fall on our law enforcement agencies, on our first responders of the fire services and so on. it was, obviously, a tragic event for so many families in this country, and i think that every citizen felt this personally in one way or another the nothing more than observing what went on on television for those fateful hours. but it also had a tremendous impact on our legal system and on our judicial system. and that is something that is still going on today as many of
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the issues that began on the 11th of september, 9/11, continue today to be litigated in the courts and to have great, a good deal of legal scholarship. and one of the very important contributions to this legal scholarship on this summit is the -- subject is the book that we are talking about today, "confronting terror: 9/11 and the future of american national security." which has essays by leading voices in law and policy. it was edited by dean outer and john yoo, one of our speakers today, and we have in our audience both dean and also paul rosenswag who is one of the contributors to the book. would they stand, and let's commemorate them being here. [applause] >> paul's in the back. >> our first speaker today will be -- and our speakers will
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speak very briefly because we want to open this up to discussion among them as well as to the audience as rapidly as possible. but our first speaker is john yoo. john is a professor of law at the university of california at berkeley at the school of law there known as bolt hall. he has received his own education, his bachelor's degree summa cum laude in american history from harvard university. he served a period of time between college and law school as a newspaper reporter here this washington d.c. here in washington d.c. he then went on to yale law school where he received his jd where he was article of the yale law journal. he has served in all three branches of the federal government. he was a clerk for judge lawrence sutherland, he was also a clerk subsequently for justice clarence thomas on the united states supreme court.
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in the legislative field, he was a general counsel of the senate judiciary committee, and as a executive branch member he served as a deputy assistant attorney general in the office of legal counsel at the united states department of justice. and his issues there where he worked primarily involving foreign affairs, national security and separation of powers, but particularly where he was a very key member of the office of legal counsel in dealing with the issues relating to national security and particularly the attack on 9/11. professor yoo has been a visiting professor at several law schools and has received numerous fellowships and awards and honors during his career. he is a visiting scholar at the american enterprise institute and has received the paul bader award for excellence in legal scholarship in teaching from the federalist society for law and public policy.
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he's also testified before the judiciary committees of both the senate and the house and has advised the state of california on constitutional issues. he's the author of three books; "the powers of wars and peace," "war by other means: an insider's account of war on terror," and "crisis of command." please join me in welcoming professor yoo. [applause] >> thank you. >> shame on you, mr. yoo! what are you doing here? shame on heritage foundation. >> shut up! >> you don't deseven to be here -- deserve to be here, you are wrong! ten years later, how dare you even be here in public! get out of here and shame on you, heritage foundation!
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>> i just -- [inaudible] your right to free speech, john. [applause] >> i was just going to say that the speaker just speaking does not represent the heritage -- [laughter] >> i'd like to thank ed who's a graduate of berkeley law school for making me feel at home. [laughter] by bringing back some of his own memories of his time at berkeley as well. i would like to thank general meese for inviting me to speak and for arranging this panel, and i'd really like to thank nadine strossen who is a contributor in the book, also to having this debate here, and we also just had one last week at her institution at new york law school. i couldn't think of a better way to think back on the last ten years and as general meese said, commemorate what we've all been through and to look towards the
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future of national security policy. i just want to be very brief because, as general meese said, i look forward to hearing what nadine's going to say and turning it over to your questions, but i look back over the last ten years and draw three lessons. one, the most important lesson, is that the most important thing to happen in the united states in the last ten years was nothing. the last ten years never saw another successful terrorist attack in the united states, and one -- and i think the most important question to ask is why and whether it was worth it. to me, the most important decision was one that president bush made as commander in chief and chief executive under the constitution on the very night of 9/11 which was to treat the 9/11 attacks as an act of war. i think the way we thought about it in the justice department at that time was that if any country had attacked us in the same way on september 11th as
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al-qaeda did, no one would have had any doubt we were at war. the only difference was al-qaeda was not a nation state, and the important legal and constitutional issue was could we be at war with a non-nation state? and i think president bush made that decision for the country that night. and that was an important decision because once you make that call, then the united states can turn to the laws and rules of warfare to deal with al-qaeda and the threat of terror itch. all -- terrorism. all of those, i think, were on display not just in our invasion of afghanistan, the use of troops and drones to wipe out much of al-qaeda's existing leadership at the time of 9/11, but also was put fully on display, i think, in the successful operation to kill osama bin laden over the summer which i think of as president obama's greatest foreign policy/national security achievement in the last two and a half years. there you saw intelligence
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provided by people who'd been detained under the laws of war, electronic surveillance producing more intelligence all put together to locate where osama bin laden had been hiding, and then the use of military force to go out and kill him. under the rules of the criminal justice system which administrations of both political parties had used in their approach to terrorism before 9/11, we would have instead indicted osama bin laden and tried to arrest him after he had committed a crime. the switch to the approach of war made our policy forward looking, to try to stop people like osama bin laden and terrorist groups from attacking in the united states before they could attack. the second lesson i would draw from the last ten years and also helps us to look toward is that -- forward, is that after 9/11 we treated intelligence and information differently. we tried to broaden the scope of
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intelligence available and to deepen it. so to take one example before 9/11 because of civil liberties concerns which i think were quite valid at the time that they were put into place, we intentionally prohibited our intention agencies and our law enforcement agencies from sharing and communicating information. um, if you read the 9/11 commission report carefully, some of the commissioners believe that that wall was actually instrumental in preventing us from identifying the identity of two hijackers who were known by the cia to be in the country before 9/11. things like the patriot act, enhanced interrogation of three top al-qaeda leaders, enhanced electronic surveillance all allowed us to gather more information, but pulling down that wall between law enforcement and intelligence allowed us to analyze that information more effectively. and then that was tied to the ability to use force to wage war
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more broadly and quickly and surgically than ever before. so, again, i'll use the osama bin laden operation as an example. that was a brilliant military operation in which i think all americans were proud, but what people don't realize, i believe, is that the military now carries out operations like that every day in afghanistan and iraq. think about just 1980. jimmy carter could not carry out even one operation like that. our military's been chained -- changed and trained to be able to capitalize on intelligence now almost immediately on a daily basis, and that's something that could not have happened in 2001 even. the third lesson, i isn't this is where -- although nadine and i, i think, agree on some things rather than speaking from the panel and on the lectern, i think we're going to disagree a lot about civil liberties. [laughter] here's where i'll close. i think the third thing is that the predictions that there would be this civil liberties
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catastrophe because of the war on terrorism turned out not to be accurate. i think people could reasonably have that fear at the beginning because of the civil liberties problems we've seen in past wars, the civil war, world worli and world war ii saw infringements on personal liberty, on free speech. we didn't see things like that. in fact, what i would say is in the last ten years political speech and political activity actually blossomed. you don't need to see four people in funny outfits in front of the heritage foundation to prove it. although i would say i don't draw them out like i used to, and you certainly don't draw them out like you used to -- [laughter] general meese actually said to me how many protesters are out there, and someone said four. he said, four's almost an insult. [laughter] he said, almost. i would say four is an insult. [laughter] but i think in the last ten years it's not because of anything the government did because of technology, because of social media, twitter, all kinds of -- political speech has
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actually exploded in the last ten years, it's not receded. and the result you see it all around us, but maybe the most important one is in the how contested are political -- our political elections are. elections, i think, are the most important check on any abuses of power. think about what we've seen in the last ten years. we've seen the presidency switch hands between the political parties, we've seen the senate, i think, switch hands twice and the house has switched several times all during the last ten years. and so we've seen, um, the most important -- the most important means to checking any infringements on civil liberties, i think, comes through the political process which you need political speech and organization in order to operate, and there i think in the last decade we've seen a great improvement, exclude of rights and liberties. now, i know we all view has to suffer some accommodation to security, we all see it mostly at the airports. but i think the thing to ask and then i'll close is if airport
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searches are the things that bother people the most about the balance between civil liberties and national security, i'd ask people to think isn't that actually somewhat reasonable, the kinds of searches we see at the airports when you look at the benefits? and in closing, how did the benefits of the last ten years, the fact that no attack has occurred, hasn't it been worth those costs? so thank you very much. [applause] >> thank you, john. our other member of the panel here is professor nadine strossen. she is a professor of law at new york law school and one of the nation's leading experts really on the subjects that we're talking about today, constitutional law, civil liberties and international human rights. from 1991 through 2008, she served as president of the american civil liberties union. she was the first woman to hold
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that position and did an excellent job of leading that organization. she is now a member of aclu's national advisory council. professor strossen has made, literally, thousands of public presentations before diverse audiences. as president of the aclu, she was probably the most active of any of their officers in going around the country talking about civil liberties. i had the privilege of being on a number of presentations with her over the years and enjoyed them very much, and she also was indefatigable in meeting with chapters of the aclu as she went around with these speaking tours. she's also spoken in many foreign countries. i think she made over 5,000 campus appearances, if i understand correctly. her writings have been published in many scholarly and general interest publications. she has more than 250 published works and two books.
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one entitled "defending pornography: free speech, sex and the fight for women's rights." and another entitled, "speaking of race, speaking of sex." she has received numerous awards and honorary degrees and was selected as both the united states jay see's one of the outstanding ten americans award. she graduatedfy beta phi beta kappa, both or our speakers had their undergraduate degrees at the same institution and magna cum laude from harvard law school where she was editor of the law review. please welcome me in -- join me in welcoming nadine strossen. [applause] >> thank you so much, ed, and it's really nice to have a reunion. ed was my most frequent sparring partner on countless topics because we disagreed on just
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>> um, seriously, i am very happy to have participated in the book that john and dean edited, and one of the things that i want to flag at the beginning is as the book illustrates the questions about security and freedom post-9/11 are not questions that divide advocates or, for that matter, government officials along ideological or partisan lines. from the get go when the aclu framed what we immediately called our safe and free campaign emphasizing that one does not have to give up liberty in order to advance security and conversely that giving up liberty is not even always
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effective and often can be counterproductive to the essential goal of protecting national security. from the beginning we have worked extremely closely with some of the most conservative government officials and citizens' organizations as well as some of the most liberal. one of the reasons the aclu has always been staunchly nonpartisan is because it crosses all party and ideological lines. so the book also demonstrates what i'm saying in addition to my piece and anthony romero's from the american civil liberties union. i think the most hard-hitting piece denouncing why unnecessary, unjustified violations of civil liberties as being counter to national security was authored by former congressman bob barr who was a republican member of congress from georgia who had worked with the cia and been a united states
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attorney before going into politics. so from his perspective of law enforcement and intelligence he, too, has denounced many of the post-9/11 measures as being the worst of both worlds. and, of course, that makes me jump ahead to john's last point which is the one i disagree with the most. i'm not going to yield my opposition to some of the points that you made under points one and two. but leaping ahead to the third point, it is kind of perplexing to me as a staunch civil libertarian that just as john said, the most visible manifestation of government overreaching that has been unjustified and unnecessary post-9/11 which has provoked the greatest outcry among citizens is airport screening and searching. it's perplexing to me because to me it's just the tip of an
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iceberg. i fly a couple hundred thousand miles a year, i don't consider this -- i certainly don't want to die as a result of a terrorist attack anywhere, in particular on an airplane, but for -- i join the many security experts who have said that, unfortunately, a lot of those searches are security theater, that they are designed to give people an illusion of security rather than actual security. be but what's more troubling to me are the be many violations -- are the many violations of our privacy and of our first amendment freedoms that are not being sufficiently protested precisely because they are being carried out in secret. and, therefore, most people are laboring under the illusion that if you are not suspected of terrorism, if you're not one of the accused enemy combatants who has been locked up in guantanamo or at bagram, that you have
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nothing to fear. unfortunately, nothing could be further from the truth. because the vast new surveillance towers that were unleashed post-9/11 starting with the patriot act including as we now know thanks to whistle blowing and investigative reporting was not even the most far-reaching government surveillance program, we know now that there was a supersecret domestic spying program, but the national security agency. what the aclu and bob barr and conservative organizations, by the way, let me mention in this audience some of the conservative citizens' groups who have collaborated with the aclu and civil libertarians in making these complaints include gunners' rights organization, phyllis schlafly's forum, americans for tax reform, the american conservative union to name just a few all have
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concurred that the problem with these dragnet surveillance techniques is that they give government unchecked power to invade our privacy to, among other things, intercept international telephone communications, e-mail commune caigs by american citizens without any suspicion of any wrongdoing whatsoever. to be very precise, the legal standard now simply demands that very casually and loosely that there be some basis for believing or suspecting that the intercepted communication might be relevant to an ongoing investigation. the role of the courts, even the supersecret foreign intelligence surveillance court, has vanished to the disappearing point. we now know thanks to one revision that was made to the
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patriot act in one of it reauthorizations the inspector general of the justice department has to do surveys and reports on how these new powers have been used in report after report the inspector general has concluded that the so-called national security letter or nsl power which gives the fbi power to certify on its own to demand records on its own without going before any court, that that has been subject to rampant abuse and misuse. now, what i am asking for along with these very diverse, idealogically diverse colleagues is something very straightforward, very simple, consistent with i don't john's t that we have to engage in a cost benefit balancing. i completely agree with that. no civil libertarian, to the
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best of my knowledge, has argued that freedom of speech, freedom of religion, privacy are absolute rights. rather, what we insist on is what the constitution itself insists on, namely that there is a presumption in favor of privacy and liberty, and government can overcome that presumption only if it satisfies what we lawyers call strict scrutiny. to show that the measure is actually necessary in order to advance national security. national security certainly is a compellingly important goal. but just because a measure is labeled as being for the sake of national security. and i don't question, i will not question the good faith of government officials who believe that these measures might be effective in promoting national security, but a belief is not enough. okay, let's assume for the sake of argument ten years later that way back in the immediate
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aftermath of the terrorist attacks which were terrifying, which were infuriating, which did make all of us reasonably fearful of another attack, let's assume that there wasn't enough time for analysis then. i disagree with that, but i'll assume for the sake of argument congress was justified in rushing through the patriot act in 45 days with almost no hearings or debate. but time is long past due to do what bob barr called for then in his role as a member of congress, and that is before we can fix whatever problems have led to this national security catastrophe, we have to understand what the problems were. and that analysis was not undertaken until long afterwards when the bipartisan citizens' 9/11 commission, very respected, did its analysis and also the joint intelligence committees of
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both the house and senate. and their reports did not conclude, none of them concluded that the problem had anything to do with lack of sufficient power to engage in surveillance, to gather information. rather, the analysis had to do or the analysis' problem was that the failure lay in lack of a sufficient ability to put together, lack of sufficient analysis of the information. not only because of this notorious wall to which john has alluded, but also because of such basic problems as lack of sufficient translators, lack of sufficient computing capability, bureaucratic turf battles among the different agencies. last week on the occasion of the tenth anniversary, the bipartisan co-chairs of ha 9/11 commission -- that 9/11 commission, former new jersey governor tom cain, former
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indiana congressman lee hamilton, a democrat, issued a report. they wrote a series of op-eds in which they said, well, what are the ongoing problems that we still have in terms of national defense? they named three problems of which the second of the three was insufficient analysis of the ec tent to which post -- extent to which post-9/11 measures have unduly abused and evaded and trumped privacy and civil liberties. they saw this as the second of the three major problems post-9/11. why should we give up freedom and privacy if it's not necessary in order to advance national security? the other two major problems they noted, by the way, and i couldn't be happier than anybody else. both of my institutional homes are within blocks of ground zero, the aclu's national headquarters and new york law
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school, i lost friends including a new york firefighter who was very active aclu leader as well in that catastrophe. i could not be happier that we have not suffered another attack. however, i am very fearful of what would happen, and i have to say speaking on many panels with many national security experts not if, but when there is another attack because the other two conclusions of mr.s hamilton and cain were that we still do not have sufficient coordination among first responders locally at the scene of any catastrophe. and we still don't have adequate communications capability among first responders. and those situations which are necessarily enhanced the number of casualties on 9/11, they say not sufficient steps have been
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taken. likewise, at the federal level they say that there is not sufficient coordination among the multiple federal agencies that are responsible for national security. so basic, basic steps that have nothing to do with sacrificing civil liberties have not been taken whereas, unfortunately, unnecessary sacrifices have been made in terms of civil liberties. ..
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>> decks, general. thank you. the great presentation. first, i just wanted -- >> thank into. >> you can, but again, this signed it. one lesson i learned from government. one thing i would just love to point out about description, and here, not saying you're not critical. at the into the claim that the president and congress were in disagreement. i think one thing that you heard about the bush of illustration, and the claim was the had a unilateral executive acting on his own. we look at the record, one thing that does come clear the last ten years and certainly in the last two years is that congress every chance it had pretty much supported the policies you're
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criticizing. you have the authorization of use of military force which the court eventually entered as the authority to detain him. the patriot act as passed by a huge majority. the congress tried to strip the courts of jurisdiction over hideous voice in guantanamo bay, and congress ultimately supported wiretapping and changes to the foreign intelligence surveillance act. so one thing that has a chance to analyze tin years that's a good development is you have the president of congress pretty much in agreement. in fact, if anything in the last two years or president obama has tried to change national policy describing congress reacting by trying to stop them, cutting off funds, move anyone from vons, into the united states, for example. more directly in response to nadine's points about privacy. there is an important legal aspect and an important policy aspect. policy aspect is, i do think that the surveillance branch serves as a good illustration of
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the difference between crime and war because i think under criminal-justice approach you need to have probable cause at a specific target, someone that may have committed a crime or is about to commit a crime. to give that proved a judge and not just issues a warrant, that is very different, i think, the war approached. in the war approach to have an enemy in you try to intercept all other communications so that you can figure out what targets they tried to attack, the tactics and strategies. think about what happened immediately in the days after september 11th we were confronted with this kind of problem. afterwards we knew that the tax originated from afghanistan, but from the terrorist organization. we did not have warrants and files for every single member of the organization. we did not know who they all were. it seemed as a policy matter what you would want to do is put an electronic net around afghanistan and intercept every phone call and the amount going into and out of afghanistan, and another where was going.
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that is where we knew there were . if that is the best way to gather intelligence on an enemy, i would say that is fundamentally incompatible with the criminal-justice approach of building a file and getting a warrant because he tried to sit through billions of communication because of the new technologies, to try to find those needles in a haystack. and so i think you do return to this approach, you will be able, actually, to fight a war against this kind of enemy effectively. i think that is the legal opinion. , what's called intelligence is a rough time changes of physicians of all the enemy, and read all the things to let the lead firm wars are judges. the less the same but the privacy issue, and the one for surveillance. i certainly understand the concern that the government is doing this in secret. at the same time we now have to the ministrations.
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both parties have been in charge and have been doing it. as far as i know the inspector or executive branch or congressional hearings have not produced any cases or may allegations were the executive branch has been abusing the information it got from the surveillance to do what nixon did which is the reason why we have the on the first place, to try to take them permission to use his political enemies or linkage to embarrass people in public. as far as i can tell, the professionals and our intelligence agents have been very scrupulous and how they use the of the mission they have been getting this right. i think there is -- i mean, there's the possibility of invasions of privacy and harm, but i don't think that -- even though the programs of been leaked and a lot of the investigations in the have not been any cases of that happening >> very interesting point. to your first point, some interesting that what you see as positive, namely that two branches of government have gang that celebrities across to the
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ministrations and to different political parties. by the way for my chapter in the book, the third branch of the federal government, i think, also has came again. that may do away with the separation of power. i don't think so. i think it shows that there has been insufficient attention, particularly by congress not serving its oversight function, one of the conservatives that ims, may he rest in peace, who was such a strong civil liberties advocate on these issues until the day he died was william safire. i remember in one of his columns including about some of the surveillance programs, sapphire said what congress has been engaging in should be called under site, not oversight. and i explained in my chapter where the courts of been doing too little, too late as well.
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the executive branch of government. even assuming for the sake of argument, though, that there were no separations of powers, checks and balances, that still would not reduce my concern about the civil liberties violations at stake. and, again, to enforce the fourth amendment basic privacy concept, basic limitations on government power to engage in search and seizure. as you well know, no wartime exception to the fourth amendment, and a national emergency exception to any constitutional right provision with the sole exception of the suspension caused, which allows congress to suspend the writs of habeas corpus in certain specified emergency situations. that played was stressed by another 80 logical coalition standing up for civil liberties
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in another case, the opinion by anson and scalia and john paul stevens. they stress the importance of the fact that our framers at a time when our nation was a very fragile, when our national security was far more in danger and jeopardy than it has been since september 11th, despite the horrific nature of those attacks. the framers made a deliberate decision not to make a general work time or national security exception to our individual rights. moreover, i believe that the board -- fourth amendment, among others, is well designed to protect national security as well as personal security. john used the metaphor of a needle in a haystack, and what we have been doing since september 11th is adding more and more pay to the stack, which makes it much harder to find that terrorist needle, and that is a complaint that has been made by fbi agents, as you know,
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john, my others have complained precipitously about the overwhelming amount of communications that intercepted me cases are coming into them. there are indulging. they just don't have the ability to process thralldom. likewise, the data mining program has been criticized by intelligence experts and security experts and saying that, you know, this is based on some kind of junk science, the notion that somehow we can find patterns. instead, the fourth amendment by requiring some individualized suspicion, some judicial second-guessing is to find out only to protect personal privacy, but also to be sure that our precious resources on limited national security resources are intelligently and strategically targeted whether is basis for suppression.
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i don't think their is a dichotomy between using as other war between using a word paradigm or criminal justice paradigm. i would use another cliche, the devil is in the details. what the aclu and others have been critiquing is the notion that we are in a perpetual global war on tear that converts the entire world, including our country far away from any battlefield into a place where the president and others may use wartime powers. so we are trying to draw those distinctions. i know in your chapter in the book you did refer to the fact that the aclu and the center for constitutional rights have brought a lawsuit challenging the president's alleged power to
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engage in targeted killing, so i think you have some sympathy, at least, from some perspective. and just one final point. john is taking the position that unfortunately too many courts have taken in assuming that your fourth amendment right to privacy are not violated the unless or until the illegally and constitutionally privacy-invading information and to indications that have been seized from you is used or misused against you, leaked into the public domain, used in a prosecution. some of us believe that you have of right to privacy, to be free from government interception and the aclu has gone to court arguing that we have standing that there is a current, even if we don't know that the information is being used, that the mere fact, you reasonably
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believe that you are subject to government spying has a demonstrable chilling effect on to vacations, and in those cases our clients include economic researchers who do work on terrorism or in countries where terrorism is rampant. include journalists who have written about the war on terrorism. include lawyers who are defending people accused of terrorism. the communications rights of those sort chilled. this is my focus of months of real -- give vital information about what our goven our name.
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>> in order to give equal time, do you have a vote? >> very briefly, i don't want to be misunderstood in saying that the fourth amendment hon. or less use of force amendment fleiss car. vote when a court has ever said the union to get a warrant to fox her recife. aw doom unborn the government has intercepted a communications without judicial warrants going all the way back to abraham lincoln trying to intercept the cells telegraphs. so never been, and you need to get a warrant from a head just have that kind of interception of electronic surveillance. >> i know this time is moving along, so at this point let's open it up to questions from the audience.
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okay. in the front row here. please identify yourself and then ask your question. >> you're always first or roger. >> speaking for myself. i want to just pick up on this. the point you make drying the distinction between war and were never law-enforcement. is it your view may be that we could have used a law-enforcement model right from the beginning after 9/11, and i raise that because the fourth amendment generally contemplates an approach to law enforcement, whereas for is an approach to keep that from happening in the first place, certainly in the case of terrorism. drawing this distinction.
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allowing us to do data mining. however imperfect it may be. at least enables us to try to find that needle in a haystack. as richard posner, a judge in the 72nd and said, the problem in monetary known terrorists but trying to determine who is a terrorist in the first place, especially when you're dealing with such a thing what's going on in this country. >> and roger is dissenting from the reports and have been written by the cato institute. many of the same critiques that i have made. thank you for giving me the opportunity to repeat the aclu has not taken, never, from the beginning has never taken a blanket position that someone's -- some more time powers including to intercept and, i notice it was interesting that john referred to in the communications, nor have we
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insisted, as some pundits have distorted our position that you have to read miranda rights to what we object to with some support from the united states supreme court and the detention cases, as you know, is converting this country and the entire world and soup of battlefield. extending not only the power under the excise act to communications by american citizens within this country, but, indeed, removing the fis the court altogether from some of these surveillance powers. if you look at the proposals of aclu actually making, including, i think, the most recent set of concrete proposals on surveillance came out last year in connection with the renewal of patriot and its powers, but we use that as an opera to the
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to critique surveillance and general, we are making what i considered to be very modest proposals that are designed to effectuate national security as well as individual privacy concerns, and that is to have some judicial checking mechanism , to take away the unilateral power of the government to just say, trust us. we know we're doing. second, to have more on that type direct causal max's between the nature of the communication and the terrorist threat, the concern obviously the fight a -- to cite a cliche, extraordinary, dangerous, would warrant an extraordinary powers. what has happened now is that what had been extraordinary and exceptional is extending far to vastly over far too many communications that have several
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degrees removed from the terrorist problem, and that is one of the themes that echoes through all of the inspector general reports, not that the information that was intersession will -- intercepted was being aired an appropriately publicly, but that it was too far removed from the terrorist threat that was said to justify this extraordinary government power. >> your comments. >> i want to add something to his question. not just the one distinction, which i think is also important, but the nature of the enemy is different. i think it is easier to apply a electronics surveillance signals intelligence with no warrants when you have an enemy that is located one country and has regular armed forces and is fighting out of the open. the other problem we have is and then it does not abide by any of the rules. there is guns themselves as civilians to launch surprise attacks on civilian targets without warning.
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the piggyback all of their activities on things that appear to be innocent civilian activity like travel and communications and so on. so the problem is that in terms of military surveillance, you would actually be privileging them making it harder to sell them because they don't follow the normal rules of war if we were to acquire that we use a judge's and worn-based approach to intercepting. the second thing, even with those problems i think there are other branches that try to figure out a way to maintain some level of judicial scrutiny. i was this note that the appeals court did uphold the pitcher backed. the aclu in the winter of 2002. pointed this distinction. military intelligence gathering that is permitted by the pitcher and act and the president's got to check to the constitutional. even congress's renewal of the fisa act and eds approval of the one the surveillance program has
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to be approved as a program on d by federal judges, too. so the problem is that because we are fighting this covert war, our government does not want to reveal too much in public that would give al qaeda an advantage in defeating the tactics being used to surveil them. i don't think it's a problem to cover up government misdeeds of the programs from the american people. the problem is people that our conscience that if you're visiting in public, al qaeda is very capable and resourceful and try to pick up on anything we are doing in response, which is why after it was reached during the first world trade center trial the ones themselves a we have the ability to answers to tough antisepsis personal cellphone. he stopped using cell phones within 48 hours and never use them again. think the government is worried about making that kind of mistake through revelation the second time. >> down here. >> thank you.
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[inaudible] >> dr., you made two references to the wall -- law that prohibited until is is is is is from sharing information. where specifically in what law or regulation and/or supreme court decision to this law come? where is that? >> the wall refers to something that the courts and the justice department itself of most corporate in building. and so i did not think it was our riding of the statute as it was, what they did is said, well, the fis a statue requires us to meet a certain standard in order to get a warrant. because of the way that standard was raised, it basically not to get too technical, but what is the purposes of trying to get the surveillance. the justice department in cooperation with orders issued by the fisa court, that means that you something from law enforcement, you should give it to intelligence agencies, and if you get a warrant and information through the
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intelligence process you should not give it to the law enforcement agencies, unless you really think that someone is about to commit a crime. the thing about this that was striking is that it was never reviewed by the supreme court, never reviewed by any appellate court. it was really a career prosecutor and the justice part in the trial in fisa court. the second thing, this was not just a 9/11 change. this was something that the clinton administration had also wished to change back after the oklahoma city bombings, something that people in the justice department had known about as a problem, and there have been different proposals over the years to try to change it, but it really wasn't until the 9/11 attacks, the cost of that was really brought on to people. >> i want to chime and to agree with the first part of what he said. i also have seen testimony from expert law enforcement saying it
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was not the law that was the problem. it goes the way the lawlessness interpreted which had to do with a cultural problem within the organizations. remember the whistleblowing complaint, fbi director mullet when she says she was begging for authority to wiretap a laptop. she believed fervently and explained why she had that authority long before the patriot act, and she blamed bureaucratic ineptitude and errors and fear of taking action, not in the law. that's important because the cultural problems, and a ticket this was the critique, those problems persist despite the legal changes. >> in the front row here.
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he is. >> victoria consent. it was the country case that set up the wall. before that twa 47. we had to take down a fisa tap because the career people at the justice apartment told me it has now become a criminal case and it is illegal to keep the attack up. a title three. >> the thing that 9/11 showed was you could not maintain a distinction because it was built on this idea that came from the previous cold war that our four national security stretches from abroad and domestic things of be primarily criminal. the enemy could infiltrate into the country plans hijacked in
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the united states. that tended distinction between foreign and domestic also works >> this was in the 1980's and piggybacked. that is, the patriot act was not just on an 45 days. goodness. there will want to the justice department obtained
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could not get a warrant. at that time it was against the law. >> nice to see you again, victoria. the point that you make in my view cuts the other way, and it has been made by many critics of the patriot act. there was an opportunist -- opportunistic taking advantage of people's willingness to do anything that might help fight international terrorism al qaeda to give them powers that had been seeking forever. the information indicates that these far-reaching patriot act provisions have not been used to fight international terrorism but have been using garden variety criminal cases including the ongoing war on drugs, fraud, bribery and so forth.
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want to move beyond latria surveillance because among a vote -- of the problems we don't have enough information. secrecy, the cloak of secrecy that has deprived even congress of sufficient information to gauge how these powers are being used. however, we do have information about other savannah's powers of the government has been using, various government agencies have been using post 9/11, and i want to get back to that because augusta dow's third point which i heard in it before about how freedom of speech is driving. well, in fact, police surveillance and the department of defense surveillance and other federal government agencies have been engaging in surveillance admittedly of citizens groups that a simply exercising their first amendment freedom. the aclu did a report last year about this, in which we compiled
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information that we had gathered through freedom of information act requests, nationally and locally, putting together a compilation from the 33 states and the district of columbia where these kinds of surveillance activities have been documented. absolutely no threat. no evidence of any event interconnection. any terrorist organization. and just in alphabetical order, some of the organizations that have been subject to the surveillance, american indian groups, middle eastern groups, bookstores, civil rights, human rights, and immigrants rights groups, environmental animal rights groups, state groups, media, peace groups, political parties, right wing and conservative groups, including anti-choice groups, and i know bob and i testified before congress about some of these powers, and he was particularly concerned of anti-choice groups
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being subject to surveillance. student groups in the veterans groups and unions. so when we do have information we do know that the government is doing what it has repeatedly done target dissident and minority citizen voices using these powers that are designed to go after international terrorism. >> and the question. right here in the middle. >> just turned, recent graduate. i have a question. how we frame what the executive and congress had done with respect to the war on terror domestically. since you both have referred to the fact that we are dealing with the non state actor and a conflict that is not necessarily confined to one place, how do we understand the powers of the executive and congress can exercise within the united states? do we understand them as carrying out war-related
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functions went in the united states and if so what implications does that have on the power that the executive can exercise, particularly with respect to american citizen. >> first, i would say, i don't want to be misunderstood to say that if we still choose the war approached the terrorism, ten years, that this was civilian law enforcement somehow. you have seen it when people that could captured in the united states, but it almost always with one are two exceptions have been tried by the criminal-justice system anyway. and so i think only one or two cases did the executive branch detain anyone as a military detainee, and i think those were both ultimately transferred to a criminal prosecution anyway. so i think even though i do think -- the addition of war powers as adding on to the tools already available to the civilian criminal-justice system, but it just should not
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be limited to the civilian criminal justice system. in terms of other things like use of force, i guess, is what you're really asking about. look back to september 11th. september 11th and the days afterwards, we had fighter jets circling washington d.c. with -- virus and they had orders of their words a civilian airliner that was going to be directed at other target i imagine they had orders to shoot them down. i was reading stories in the post that the first set of fat jokes that went up even had ballistic missiles and are planning on crashing the fighter jets into the civilian airliners to stop them from getting the capital. that is the use of force by the military, not the rules of the use of force that would normally be used by civilian and criminal law enforcement. so i think we have excepted that if the enemy tries to make a battlefield of the united states that we should not have our one hand tied behind our back and limit ourselves just to use the police and fbi.
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we might need to use the military. at the same time it has been extremely restrained as a matter of practice. if you look around, the people who are primarily carrying out the domestic fight on terrorism are still the fbi and police. that is a policy choice not tested by law. >> and i would agree with what john has said. and i don't dispute the example that he gave on fighter jets and the immediate aftermath of the attack, but, again, the devil is in the details, and we have been looking at it point by point issue by issue basis. by the way, i should refrain from generalizing about the patriot act because it has 160 different provisions of which the aclu has criticized about a dozen. and some we have actually endorsed. with respect to the war versus criminal-justice paradigm, let me give you an example. we have opposed it and come back to my familiar theme of it is counterproductive as it is my relative of civil liberties, and that is the use of a military
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commission. in fact, actually, non use of the military commission despite all of the above by members of congress and others about the proposal to try the self-proclaimed mastermind of the 9/11 attack and federal criminal court. in fact, the federal criminal court has succeeded in convicting hundreds of accused terrorists, whereas the military commission system has brought about only a couple of convictions of only a couple of very low level protagonists. so, to me, one of the sad things in terms of bringing to justice to and years later, what everybody agrees was -- well, maybe not everybody agrees, but the consensus that torture is, was, and will continue to be illegal, unconstitutional, immoral, and violative of domestic and international law.
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not a single torture victim has had his or her day in court in the united states, and not a single self-proclaimed perpetrator or accused perpetrator of the september 11 the tax has been brought to justice. i take each of those is equally a betrayal of safety and freedom and justice. >> well, with that i see our hour has come to a close. i think it illustrates in this discussion how complex in many ways these issues are and how in some ways unique because of the nature of these attacks we have never faced up to these kinds of issues before, particularly when as the panelists have pointed out, the attackers are trying to make a battlefield out of our home grounds here in the united states. so we thank both of our panelists for brain these issues to our attention, and please
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join me in appreciation. [applause] [applause] thank you for being with us. >> is there a nonfiction opera but you would like to see featured on book tv? send us an e-mail at or tweet us at twitter dot com / book tv. >> on your screen is that tower in the center of the university of texas at austin campus. and book tv has been on vacation here at the university of texas conducting interviews with some of their professors you are also authors. every sunday during the month of november we would be bringing you those interviews at 1:00 p.m. eastern time as part of our university series. [applause] >> welcome back in july of 1926, 85 years ago this month, this country was celebrating its sesquicentennial, 150th
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national birthday. here in texas i imagine it was quite a big deal, but in fort worth texas, just away from here, the festivities were overshadowed somewhat by a brewing local battle that involve political, religious, business, and civic leaders. the catalyst of this particular battle was a preacher. the issues were both public and personal, and the citizens found themselves polarized. some talked about conspiracy and others about troublemakers. and on july the 17th, 1926, it all came to a head when a successful businessman, someone three well-connected to the movers and shakers of the town went to pay a visit on the local pastor. but this was not just any pastor far from the typical man of the cloth, he was a multifaceted person, ruling over a religious empire. more than just a preacher, he presided over the largest protestant powers -- congregation in america, in many
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ways america's first mega church. he was a radio broadcasting pioneer and star of the publisher of its popular at the times political tablet lives -- newspaper and as you nine -- by may be on leader of a movement in near its apex, movement of fundamentalism. as the business market with the teacher, the language became hostile and a few moments give way to a thunder of four gunshots. he fell and was left for dead. no one in the church office, and there were 20 people working there, approached the one demand to offer help. some police arrived. increase the local hospital, he preaches last breath. dexter elliott chips, known as the to just about everybody. the preacher was the rev. dr. john franklin norris, well known as j. frank norris, where the texas tornado or to many in four words simply as that man. and the story of what happened
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that day 85 years ago and for the following six months or so is likely what i call the most famous story you have never heard. and the story reached all the way here to austin because eventually the trial, which was one of the most celebrated trials of the decade, a decade that was known for famous trials like this and, of course, leopold and loeb and sacco and vanzetti and so forth. this trial was one of the most captivating at the time. it has been lost to history, a footnote in books and a story that has made it into some places, but never received its full treatment to my think. the context, of course, is the 1920's, which i always found to be a fascinating time. it was a time just after the world changed when the soldiers that to my you know, here, we have just this year in march the last living soldier of world war one, 110 years old, buried at
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arlington national cemetery. there are no more, and, of course, fewer that we see every day from the grid generation of world war two. in the 1920's people came back from world war one, and they had it changed you, somewhat to my tank, and caused by what they saw in europe and what we know about the 1920's as you have to things happening at the same time. one is this tremendous revolution in manners and morals . they are casting of restraint. you have women voting, and you have a lot of independence. you have a bit of a sexual revolution that goes on. you have all the media things to come along, radio begins to become a very popular medium. eventually becoming the media of the day. tabloid newspapers are still very strong. movies, the film industry had been around for a few years, but really reached its -- got its traction in the 1920's.
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and along with that, the cult of celebrity gamelan. what andy warhol later described as 50 minutes of fame really existed long before that in the 1920's. the sports figures, golfers, baseball players and movie stars became famous. over against that you have this reaction to the revolution. and it was described in an odd word that was created at the beginning of the decade by warren harding iran in 1920 when he said we want to give back to what he called normalcy. there is no such word. he was not -- he was the first republican to make up words, but he said normalcy, getting back to the way that things used to be, and a lot of people, that resonated with them. a lot of the values were changing. yeah number of things that come along at the same time. one was a movement called fundamentalism. when you hear or fundamentalism
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what you used to think of is its associated an awful lot with the islamic fundamentalism, and terrorism. of course also people going in with christian fundamentalism and often making the mistake of using evangelicalism and fundamental changes, not completely interchangeable, but fundamentalism was a reaction to the modern world, and it began as a theological movement that was a reaction to some of the laws of changes taking place in mainstream protestantism. but it became a cultural thing. it was something for people to get involved with. and i think it's hard for us to imagine the day, but it was such a pervasive movement in the 1920's that the famous sage of baltimore, a man by the name of h. l. mencken, the baltimore journalist, said in the middle of the 1920's that what if he were to even egg from pullman car anywhere in america you're bound to hit a fundamentalist and the head. and there are millions of people that embraced it. it was much more than religious.
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it was a call for reaction to the way things changed. another movement that was very big, at least for a time in the 1920's commensurately even here in the state of texas was the ku >> klan. it had seen a revival. many manifestations up into our time, many of them marginal, but the most significant emergence of that particular movement were, of course, during reconstruction with the original plan. but in about 1915 there was a regrouping of the clan. by the time you come into the 1920's this crew very patriotic. very pro-american, very anti-immigrant, very anti foreigners and the thing faugh mcgraw-hill. for a moment in time there is a blending together a lot of account -- commonality. this is something that evangelicals have a difficult
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terminology. one of the reasons i have had a difficult time repudiating this is because they've had a difficult time in announcing that it was in fact. >> you can watch this and other programs online at >> book tv is on twitter. follow as for regular updates on our programming and news on nonfiction books and authors. twitter dot com / book tv. >> this weekend on book tv on c-span2, on afterwards, the reactionary mind off the record robin and columnist discuss the history of conservatism from edmund burke to sarah palin. in no higher honor connolly's a rice recounts her years in the bush of ministers in his national security adviser and secretary of state. and from back to work, former president bill clinton on the current state of the american economy in his plan for recovery. look for the complete schedule.
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sign up for an alert. weekend schedules in your in box. [applause] >> well, it sure is good to be here in harvard square. it is kind of nice to get out of washington these days. the white house reaction to the book was vigorous. my trip here tonight is being sponsored by the witness relocation program. [laughter] no one will find him in harvard square, that's for sure. i used to live up here. my wife is here. our kids were born here. all those key moments of life unfolding happened here in harvard square, many of them.


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