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PATRIOT Acts: I & II: The New Assault on Liberty?
November 13, 2003
Ivan Eland, David Cole, Margaret Russell, James Bovard

Contents

David Theroux President, The Independent Institute

Welcome to our Independent Policy Forum this evening. The Independent Policy Forum is a regular series of lectures, debates, and seminars that we hold here at our conference center in Oakland or elsewhere in the Bay Area. And our program this evening examines a topic increasingly in the news, fortunately. It’s entitled “PATRIOT Acts I & II: The New Assault on Liberty?”

The event is also featuring, as many of you also know, two important books that we strongly recommend that each of you get. The first one is called Enemy Aliens, by David Cole. And the second one is a book called Terrorism and Tyranny, by James Bovard.

For those of you who are new to the Independent Institute, hopefully you picked up a packet when you registered. You’ll find information in there about our many publications [including our quarterly journal The Independent Review] and events and media projects. We invite you to become a member of the Independent Institute, and receive new books, and essentially receive information about the many activities that we’re involved in.

Our website is Independent.org. You’ll find an enormous amount of information on that, which is updated on a regular basis. And we also invite you to receive our weekly e-mail newsletter, which is called The Lighthouse.

To chair this evening’s program, I want to introduce our Senior Fellow, Dr. Ivan Eland, who is director of a new program we started here earlier this year called the Center on Peace & Liberty. He received his Ph.D. in national security policy from the George Washington University and has been Director of Defense Policy Studies at the Cato Institute. He’s been Principal Defense Analyst at the Congressional Budget Office and Evaluator-in-Charge for National Security and Intelligence of the U.S. General Accounting Office, and investigator for the House Foreign Affairs Committee. He is editor of the book Putting “Defense” Back in U.S. Defense Policy and many other studies.

Ivan will introduce our speakers and give you more information about the Center’s program.

Ivan Eland Senior Fellow and Director, Center on Peace & Liberty, The Independent Institute. Author, Putting “Defense” Back Into U.S. Defense Policy.

Thanks, David. Thanks, everyone, for coming tonight. We have a great panel of speakers. I’m going to make a few brief remarks, and then I’ll turn it over to our panel of experts. I’d first like to thank Brigid O’Neil, who organized the forum and recruited the excellent panel and speakers, and I’d like to thank the other staff members of the Independent Institute. Everyone here at the Independent Institute helps us out with these forums, and they do a great job. So I just wanted to thank everybody for helping out here.

Our experts are going to go in-depth into the restrictions on civil liberties since 9/11, but I thought I might put the whole topic in a broader context. Oftentimes we focus on what the government does when it restricts civil liberties, but there’s a causal chain there, and few people go back on the causal chain to see what leads to all this. And usually when we have restrictions of civil liberties there’s a perceived security threat, whether it’s crime or whether it’s terrorism—which is, of course, a crime, but we think of it a bit differently. But nonetheless, there’s some sort of a threat there.

But what’s often lost, I think, is that many times government action has caused the problem in the first place. And, of course, who gets the most resources when there’s a crisis? The government gets more resources to fix the problem. So there’s kind of an endless cycle where the government contributes heavily towards creating the crisis, then demands more power to solve the crisis, makes the crisis worse, and then demands even more power. And so we get into this endless cycle. And I think the war on drugs is a non-terrorist example of this, where the war on drugs raises the price of drugs. It caused people to go out and commit crimes to get money to buy the drugs. And then, of course, we have the crime wave, which leads to the restrictions of the civil liberties.

And in the area of terrorism, what we see is that 9/11 did not happen in a vacuum. Very frankly, heavy-handed U.S. meddling around the world has caused the blowback of catastrophic terrorism. Bin Laden has said that he attacks the United States because we had troops in Saudi Arabia, in the Muslim holy sites, we have supported the Saudi government, which he thinks is corrupt, etc. So this is an example, I think, of where the U.S. government tends to serve its own interests, and the vested interests that support the government, rather than the people that it’s supposed to serve, and that’s, of course, the American public.

After the 9/11 crisis, the executive branch used the crisis to go on a war footing and grab more executive power. And, of course, it then exacerbated the problem by going after an unrelated country, by invading Iraq. It seemed to me that if they are protecting the people of the United States, they would try to minimize terrorism rather than maximize it. But, of course, we’ve seen a rash of terrorist incidents in every place from Morocco, to Saudi Arabia, to Indonesia after this, and it’s probably only a matter of time before we have another terrorist attack here.

Of course, this will probably lead to calls for more government power. We’ll go on another war footing if this one hasn’t expired by then. And so in short, overseas intervention and wars are ultimately one cause down the chain of restrictions on civil liberties.

And, of course, we never really ask ourselves whether the last round of government restrictions prevented the terrorist attacks. They passed an act called the 1996 Anti-Terrorism and Effective Death Penalty Act under the Clinton Administration in response to the first World trade Center bombing and the Oklahoma City bombing. Oftentimes after a crisis like this, the Congress has to pretend to the public that it’s doing something about the problem. But the legislation that they passed wouldn’t have prevented the attacks, and, of course, it didn’t prevent the 9/11 attacks. So, we never go back and ask ourselves whether these restrictions on civil liberties have been effective in the past, and perhaps we ought to start doing that.

Murdering people, destroying property, causing injury were illegal long before these specialized terrorist laws came along. So, do we really need special, draconian terrorism legislation? That’s the question. I think the government probably had adequate investigative and prosecutorial avenues available to fight terrorism even before 9/11. We’ve heard that the bureaucracies didn’t really cooperate in the intelligence area. Whenever a crisis occurs, what we doing, effectively, is increase the budget for these agencies, whereas we ought to ask them what were they doing and were they competent in the first place?

In the many times we’ve gotten increased government power, the powers haven’t been restricted to fighting terrorism. They’re broader. In fact, now we have the Homeland Security Department investigating child porn. Well, child porn is a problem, but I’m not sure it should be done at the federal level, and I’m not sure it’s a national security threat. Certainly, it’s a social problem, and certainly something needs to be done about it, but is it really a security issue? So these agencies expand their powers and use crises to do that.

I think the erosion of civil liberties gives the terrorists another victory. Of course, their first victory was their blowing up the buildings or knocking them down with aircraft and killing all the people. But bin Laden is a very shrewd operator. He’s actually said that one of his goals is to change U.S. society. Well, he’s done that. And if we have further attacks, he may do it again.

I think some of these techniques aren’t even advocated by some of the FBI agents and the law enforcement people—racial and ethnic profiling, for instance. Many of the agents say that ensnaring innocent people crowds out more effective law-enforcement techniques. And they burn bridges with ethnic communities that could provide intelligence for you against the terrorists.

I’m just trying to put this in a bit broader perspective tonight. I’ve written an article, which is available free of charge upstairs, for Mediterranean Quarterly. It’s called “Bush’s Wars and the State of Civil Liberties,” and in that article I summarize the provisions of the USA PATRIOT Act, the executive actions since 9/11 that have also restricted civil liberties, and we’re loosely calling this PATRIOT Act I, that is a further erosion of civil liberties. I think I’ll stop there.

I’ll proceed now to introduce the speakers. Our first speaker is David Cole. He’s a professor of law at Georgetown University Law Center, and he’s the legal affairs correspondent for The Nation, and a columnist for the Legal Times, and a commentator on National Public Radio’s program All Things Considered. He’s also the author of the books Enemy Aliens and Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. Let me just hold that book up once more here. I know David already held it up. But this is the book that you all should get.

Our second speaker is Margaret Russell. Margaret Russell is a professor of law at Santa Clara University. She serves on the ACLU National Board, and is the past chair of the ACLU of Northern California. She also was the director of Public Interest Programs and the Assistant Dean of Student Affairs at Stanford.

Our third speaker is James Bovard, and he is also the author of many books, and of course he’s the author of Terrorism and Tyranny, Trampling Freedom, Justice and Peace to Rid the World of Evil. He’s also a policy advisor at the Future of Freedom Foundation, and he’s the author of five books in total, and a past recipient of the Free Press Association’s Book of the Year Award for his book, Lost Rights. So I think we’ll just go in order there, and I won’t further interrupt the proceedings. So go ahead, David.

David Cole Professor of Law, Georgetown University, author of Enemy Aliens and Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security.

Thank you. I’m delighted to be here. I was told we should be brief so that we can hear from you and have a participatory discussion. And I thought that was a good entreaty, particularly since one of the first lessons I learned in the wake of 9/11, is that when you speak on the subject of civil liberties in the war on terrorism, you should speak briefly.

I learned that lesson when I read in December of 2001 that a college in Sacramento had invited a newspaper editor to come speak at the college’s midyear commencement ceremony, and she decided to speak on the subject of civil liberties and the war on terrorism, and she was booed and hissed off the stage. And The New York Times did a story about it, and being the paragon of objective journalism, they went out and interviewed the students. And one of the students explained the reason that she was booed and hissed off the stage was not the content of what she said, but the fact that she went on for too long. [Laughter]

So The New York Times being, at least at that time, the paragon of investigative journalism, went out and got the video tape, and taped it, and found that she spoke for eight minutes and that the boos started at four. [Laughter]

Now, I’m going to trust that you are a much better behaved crowd here, and you didn’t have to come here because your parents paid for your college education, so hopefully, I can go a little longer than four.

I am going to talk about PATRIOT I and PATRIOT II, but I want to put it in a little broader context as well. And I want to go back for just a second to a prior period of time in the United States where we similarly faced a threat of terrorism, and that is [the year] 1919. The Communists had taken over in Soviet Union and the Eastern Bloc countries, there was mass unemployment in the United States. Sixteen hundred strikes in that year alone across the country involved four million workers; several of them turned violent.

This was punctuated by a series of terrorist bombings—first, mail bombs delivered to people like Supreme Court Justice Oliver Wendell Holmes, to the Attorney General, to several senators and mayors, and then a suicide bomber, who blew himself up, and blew the front off of the private residence of Attorney General Palmer in Washington, D.C.

We responded. The government responded to that series of terrorist attacks in a way that, I think, is illustrative with respect to the way we’ve responded to the 9/11 attack. They did not go out and capture the terrorists. In fact, the terrorists were never found and brought to justice. Instead what they did was use immigration law to target foreign nationals, and to sweep up thousands in coordinated raids around the country, known to this day as the Palmer Raids. And they were charged not with terrorism, but with technical immigration violations, and with guilt by association.

And writing about that after the fact, Louis Post said—he as the acting secretary of labor at the time—he, actually, was an incredibly brave man who stepped in and overturned over 1,500 of the deportation orders on various grounds, and was called up on impeachment charges for having done so. Writing about that period, he said, “The dominion caused by the bombings turned in the direction of a deportation crusade with all the spontaneity of water seeking out the course of least resistance.” With all the spontaneity of water seeking out the course of least resistance.

And to me, we have similarly, since September 11th, sought out the course of least resistance. We have talked about the need to recalibrate the balance between liberty and security. And I think that’s a legitimate set of questions to ask. But for the most part, we have not been asked to give up our liberties in the name of a promise of greater security. Rather, what the government has said is we will give up their liberties—they being foreign nationals, and especially Arab and Muslim foreign nationals—for your security.

That’s easy for a politician to strike the balance because, of course, foreign nationals don’t vote. And when the government has done that, for the most part, we have stood silently by. When, by contrast, the government has asked us, the citizenry, to sacrifice our liberties in the name of national security, we have been much less willing to do so. So we have adopted, essentially, a double standard here. We’re willing to give up others’ rights, but not our own.

I want to just lay out the case for this double standard. And it really begins with the detention campaign, the preventive detention campaign undertaken by John Ashcroft after September 11th. Some of you may remember it. He made a speech to the Conference of Mayors in New York in October of 2001, looked around the room, saw that Lloyd Bentsen was nowhere to be seen, and then compared himself favorably to Robert Kennedy. And he said, just like Robert Kennedy, who had arrested a mobster for spitting on the sidewalk, “So too I, John Ashcroft, will use every law in my power, including immigration law, to lock up suspected terrorists, keep them off the street, and prevent the next terrorist attack from occurring.”

What do we know about that preventive detention, anti-terrorism campaign? Since September 11th the government has locked up over 5,000 foreign nationals in anti-terrorism initiatives—over 5,000. Of those 5,000 how many have been charged as being a member of al-Qaida? Zero. How many have been charged with being involved in September 11th? Zero. The only person charged with al-Qaida and September 11th is Zacharias Moussaoui, and he was, of course, picked up before September 11th and before the preventive detention campaign began.

How many of those people have been charged with any terrorist crime? Three. And of those three, two were acquitted of the terrorist charges. One person was convicted of conspiring to provide material support to some unspecified terrorist act in the unspecified future. That’s it for 5,000 people detained.

Yet many of these people were detained initially without any charges, locked up in the United States. You ask, “Why am I locked up? There are no charges.” They were locked up in secret. Your wife sees that you haven’t come home. She calls the FBI, the INS, the local police. They tell her they’ve got no record. You’re sitting in jail behind them, but they tell her they’ve got no record because the arrests were secret and are secret to this day.

Many of these people were eventually charged with some sort of immigration violation. All of those were tried in secret. Their immigration hearings were closed to the public, to the press, to members of the family. Some of these individuals admitted that they violated immigration law and said, “I’ll leave.” And usually, that’s the end of a case, because the only purpose of an immigration case is to deport people who are unlawfully here.

But when the purpose is not to enforce the immigration law, but to use the immigration law as a pretext to lock people up (though we lack objective evidence of probable cause of criminal activity)—it’s a problem when they say they’re willing to leave. So we resolve that problem by adopting the hold-until-cleared policy. After the immigration cases were resolved and people were told by the judge they could leave, the FBI wouldn’t let them leave until the FBI convinced itself that they were innocent of any connection to terrorism. Virtually everybody in that group of 5,000 was found to have no connection to terrorism whatsoever, not only not charged, but to have no connection.

Now if John Ashcroft had gone out and locked up 5,000 U.S. citizens after 9/11, and at the end of the day could come up with one conviction for any kind of crime related to terrorism, I think he’d be out of a job. But because these were foreign nations we have largely stood silently by.

Guantánamo. The government’s argument with respect to the people on Guantánamo is that the government can hold them there because they are foreign nationals and not on U.S. soil. Therefore, they have no rights; therefore, we can hold them indefinitely, incommunicado, without charges, without hearings, without access to lawyers or their family for the rest of their lives. For the rest of their lives because they’re foreign nationals.

The military tribunal order—which says that we can try those people, and any other foreign national who is accused of terrorism, in a trial where you can be convicted and executed on the basis of evidence that you cannot see, and that your chosen lawyer cannot see—that military tribunal order applies only to non-citizens. Why? There’s no legal reason that it applies only to non-citizens. The Supreme Court has upheld the use of military tribunals for citizens as well as non-citizens as recently as World War II.

The reason was political. It’s easier to apply it only to non-citizens, because then we can say, as Dick Cheney did the day the order was issued, that when a foreigner comes here and attacks us, he doesn’t deserve the same rights and guarantees that an American citizen does. Message: Americans, your rights aren’t at stake here. We’re taking their rights.

Ethnic Profiling. The government’s defense of ethnic profiling is interesting. They say, and I quote Mike Chertoff, the head of the criminal division in the Justice Department, testifying in Congress, “We are adamantly opposed to ethnic profiling. We do not engage in ethnic profiling.” Next sentence: “What we do is target foreign nationals based on country of passport.” And then you look at what countries of passport, and they are Arab and Muslim countries. The defense again, we’re targeting foreign nationals. Which brings me to PATRIOT I and PATRIOT II.

PATRIOT I and PATRIOT II are problematic laws. Patriot I, when it was enacted six weeks after September 11th, received only one negative vote in the senate. The vote was 98 to 1. I don’t think Strom Thurmond voted. The only person who voted against it was Russ Feingold from Wisconsin.

It has since become a dirty word in a wide spectrum of circles. Last week Al Gore said we should repeal it. Newt Gingrich said we should too. Bob Barr, Dick Armey and every Democratic presidential candidate have criticized the PATRIOT Act. In the Democratic presidential candidate speeches, their criticism of the PATRIOT Act gets the biggest applause line. We have turned around. I mean, in this country no one was against the PATRIOT Act when it was enacted. Today many, many people are against it in both parties.

And what are the reasons that we’re against it? We’re against it because of the surveillance provisions—the library provision, the sneak and peak provision, the authority to do searches and wire taps without probable cause of criminal conduct. In other words, we’re against it because of the provisions that might affect us.

You don’t hear about the other provisions, what I consider much worse provisions in the PATRIOT Act. Provisions that allow the government to keep foreign nationals out of this country based purely on their speech, reviving ideological exclusion. Provisions that allow that government to deport foreign nationals based on their innocent associations with groups that John Ashcroft doesn’t like, and that give John Ashcroft, the Attorney General, the power to detain foreign nationals without charges and without making it shown to a court that they’re dangerous or a threat to national security. Those are the most damning provisions of the PATRIOT Act, and yet, we don’t hear about them because they don’t affect us.

The proposals that would affect us, we have said, we’re not interested in. National ID card. We’d all have to carry one, so it was killed by Congress in the Homeland Security Act. Operation TIPS, where the government was going to go out and recruit 11 million citizens to spy on the rest of us and then report on the suspicious activities to the Justice Department—killed by Congress in the Homeland Security Act. Total Informational Awareness, where we were going to create this computer program and sit John Poindexter down in front of it, so that he could monitor all of the computer accessible data about all of us, all of the time, to look for patterns of terrorist activity—killed. We didn’t want the government looking at our records, much less the Pentagon, much less John Poindexter doing that. And so it was killed by Congress just last month.

So when we’re asked to sacrifice our rights we say, wait a minute. We’re not so ready to do so, but when we’re asked to sacrifice others rights, we are quite willing to do so.

And let me just close by suggesting that that is an ill-advised strategy. Why? Because what you see when you look at history is that this is always the form that incursions first take in national security crisis. The government always targets foreign nationals first, always makes the argument that the threat is foreign, that they don’t deserve the same rights that we do, that Americans are different. And that Americans’ rights are not at stake. And yet, history shows that what is done to foreign nationals is a precursor for what will be done to citizens.

Take the Palmer Raids, rounding up of thousands of foreign nationals using immigration law. The architect of the Palmer Raids was not Attorney General Palmer. It was a young man just out of law school, George Washington Law School, whose first job in the Justice Department was regulating enemy aliens during World War I. His second job was heading up the Radical Alien Division of the Justice Department. He planned this entire campaign. His name was J. Edgar Hoover. And I argue in my book, first jobs can be habit forming. He spent the rest of his career heading up the FBI, seeking to extend these measures to citizens; and in the McCarthy Era, he succeeded; and guilt by association became the watchword; and tens of thousands of Americans went to jail, lost their jobs, were blacklisted because of their political affiliations. Every significant form of political oppression that has been directed against citizens started out as an anti-alien measure.

Finally, it’s wrong. It’s wrong to target foreign nationals in this way. Foreign nationals are entitled to the same basic human rights that we are. The rights of the Bill of Rights are not limited to citizens. They extend to persons, to people, to the accused. Everyone has the same interest in not being locked up arbitrarily. So let me close with a quote from a Jewish philosopher, Hermann Cohen, whose quote I use as the epigraph for my book: “The alien was to be protected, not because he was a member of one’s family, clan or religious community, but because he was a human being. In the alien, therefore, man discovered the idea of humanity.”

To me the greatest challenge that we face in the wake of 9/11 is whether we can reclaim that idea of humanity. Thank you. [Applause]

Margaret Russell Chair, ACLU of Northern California, past Vice President ACLU National Board, Professor of Law, Santa Clara University.

Thank you, that was wonderful. And it is wonderful to be here. Well, I can tell that the Independent Institute is probably not on Attorney General Ashcroft’s speaking tour. It doesn’t seem to be one of the stops.

I have to say that I wasn’t very familiar with the Independent Institute before the last couple of months, and I feel tremendously reassured, actually, to be part of this program. I felt quite upbeat driving over here tonight even given the topic of the forum, because I realized that there is exemplified, I think, in the PATRIOT Act debate and reaction, a real truth about a non-partisan—non-political, in terms of political parties—commitment to liberty and commitment to equality that is reflected in the kind of turnout we have tonight. And that is tremendously reassuring, because we do need that voice in this day and age.

About a week ago I got a telephone call from a former student of mine at Santa Clara, and he was very concerned and left a couple of voicemail messages. I called him back, and it turned out that he had been contacted by the FBI here in Oakland. And all that they would tell him was that they wanted to talk to him, that he shouldn’t worry. The agent said, “You don’t need to flee the country or anything. You are not suspected of anything, but we just want to ask you a couple of questions. We’re doing an investigation.” So needless to say, he was very concerned.

He is a United States citizen of Iranian descent. He was on the eve of studying to take the Professional Responsibility Exam, which is part of the examination process that law school graduates go through before they can be sworn into the bar, the California bar among others. And he just repeated over and over how concerned he was, despite the fact that he could think of nothing that he had done that was wrong. He could think of nothing that anyone he knew had done that was wrong. But he remembered from having taken my constitutional law class that there might be a problem here, and so he called to ask for some advice about how he should answer these requests.

And what also bothered him about these requests is that, at least superficially, they were very informal. The FBI agent said, “We would you like to meet with us in a coffee shop. We can come by your house some evening.” And never anything formal. No office, no suggestion that it was a formal meeting.

So I tell that story as an example of what the USA PATRIOT Act, and other post-September 11th responses, have created in this country, which I think is truly a climate of fear. And although the student who called me is a person of color—not an immigrant, but the son of immigrants—his story resonates with many people who do not fall into those categories. The sense of fear that is experienced when you get the call that suggests that you’ve done something wrong, but you don’t know what it is. And perhaps the only thing that you’ve done wrong is to associate with other people.

As I said, his story was certainly special, but not unique. It has been experienced by many, many people, particularly, as David Cole pointed out, immigrants, particularly non-citizens, particularly people of color. And this student is actually relatively fortunate in that he’s studying to become a lawyer. He spent at least 28 weeks studying constitutional law, and he knows his rights to a certain extent. But many of the people who have been detained, who have been questioned post-September 11th, have very little or no exposure with the law. They don’t know lawyers; they can’t afford lawyers; they don’t know the Constitution. And so, they turn to the rest of us, I think, people like us, for a sense of reassurance and understanding that the Constitution means something in this country.

Now even if you’re a lawyer, even if you know lawyers, you know that lawyers can’t solve very many problems, but particularly when a law is the source of a problem; and the USA PATRIOT Act is an example certainly of such a law. So I thought what I would talk to you about, in this short period of time, is a current challenge that has been filed by the ACLU, the national office, against the USA PATRIOT Act, and then to talk about some other work that’s been done on a legislative and local organizing level to resist the USA PATRIOT Act, and especially the PATRIOT Act II, the Domestic Security Enhancement Act.

The lawsuit was filed in Michigan in July of this year. And I don’t know how many people are familiar with it, but basically a group of about six organizations in Michigan filed suit in Federal court, challenging one particular provision—Section 215—of the USA PATRIOT Act. The organizations that filed the suit include the Muslim Community Association of Ann Arbor, which operates a mosque and school in Ann Arbor, Michigan; the American Arab Anti-discrimination Committee, a national civil rights organization based in Washington D.C.; the Arab-American Center for Economic and Social Services, a human services organization in Dearborn, Michigan, that operates a medical clinic and other services for refugees; the Bridge Refugee and Sponsorship Services, based in Knoxville, Tennessee, with offices in Michigan; the Council for American-Islamic Relations, which is a national organization also that has a grassroots membership in Michigan; and the Islamic Center of Portland, Oregon, which operates a mosque and also has a connection to Michigan.

These are the organizations. They represent individuals who have been affected in ways, post-September 11th, that clearly reflect the application of the USA PATRIOT Act in a way that targets them, in part based on race, ethnicity, citizenship status, and particularly freedom of speech and association, the activities that they have been engaged in.

And the challenge is under the First Amendment as well as the Fourth and Fifth amendments. [The lawsuit is a challenge] to Section 215, which allows the FBI, in a very broad way, to obtain records and other “tangible things” of people, even if they’re not suspected of criminal activity, whether they’re citizen or non-citizen. And these records can include papers, documents, files, obviously, and anything else as long as the FBI certifies to a FISA judge—a Foreign Intelligence Surveillance Act judge—that they are seeking this information as part of an ongoing foreign intelligence, counter-intelligence or international terrorism investigation.

Now what’s so significant about this section is that it relaxes and, I would argue, even eliminates completely any sense of duty and obligation for the FBI to certify to obtain a Section 215 Order based on something resembling probable cause. A relevant provision of the FISA Act—the Foreign Intelligence Surveillance Act—referred to the need to show specific articulatable facts that would give a reason for the FBI to obtain such an order. This has no such requirement.

In addition, under Section 215, these kinds of orders to search, to seize can be conducted in complete secrecy with no obligation to inform the target of the investigation ever that they are the target of investigation—and a mandate that anyone who is served with a 215 Order, such as a bookstore owner, a librarian, etc., a mandate that they not disclose ever that they have been served with such an order. This applies, as I mentioned, to citizens and non-citizens, although you can imagine who are going to be targeted the most.

And Section 215, I think, has some obvious implications that are very clear on the face of it, and it is being challenged on its face under the First Amendment. But what I think it also reflects is something that our other speakers have written about and talked about, which is this presumption that the government, that the Attorney General’s office, that the FBI and the CIA do not have to demonstrate a reason under the Constitution for gathering the information that they are trying to gather.

In some of the myths that have been spoken by Attorney General Ashcroft on his speaking tour in defense of PATRIOT Acts I and I, he has actually said, “Oh well, the Act, it doesn’t necessarily apply to citizens, so don’t worry about it.” And the Act talks about persons—U.S. persons—meaning persons in the United States. Moreover, he says, “Well, you should really trust that this will not be abused, because if the FBI says it is seeking this information for an ongoing investigation, that’s really enough.” But the presumption in the statute is that if the FBI says it, it is deemed to be so, and that that should be accepted by the judge, which exactly reverses the presumption that constitutionally you’re suppose to create and respect.

Now, what does this create for all of us? I can identify many problems. There are lots of problems of inequality and due process. I want to focus on how this affects our freedom of expression. And I do mean all of us, no matter how protected or unprotected you think you are with respect to the current climate.

Even if you do not tend toward paranoia, wouldn’t it concern you to think that this order actually extends to gather information about the books you read, about your subscription habits? About any other records—medical records, banking records, economic—anything that is deemed to be relevant to an ongoing investigation, that not necessarily focuses on you, but on someone that you know?

Now it may be the case that the student who called me is being questioned subject to a Section 215 order, and that information is being gathered about him, even though, as he says, “I haven’t done anything wrong. I can’t even imagine why they would even be contacting me.”

A year ago, that is Fall Semester, 2002, I taught a seminar on civil liberties problems, post 9/11. And just to give you an example of how this chilling effect actually operates, in fact, I ordered a number of books for the seminar, including David Cole’s previous book on terrorism and the constitution, and I don’t think [James Bovard’s] book was out yet, but of course it would have been assigned. And I remember just going up to the cash register at my local megastore with a huge stack of books about terrorism, by Alan Dershowitz, and David Cole, and Barbara Olshansky, and I was just so proud of myself—a great professor, had a big stack of books.

And I got to the counter and all of a sudden I saw myself through someone else’s eyes—chilling effect. It greatly concerned me. During the course of the semester a couple of students told me that they were a little leery of getting on public transportation with David Cole’s book, because it has “terrorism” right on the front. What are they doing reading about that? Especially the students of color felt that way. So I think that this First Amendment challenge is a very important one.

The status of the case is that there has been a motion to dismiss based on the argument that these organizations really haven’t demonstrated that they have suffered the injury or that their members have suffered the injury to give them standing to challenge it. In the meantime, there are other attempts to get rid of PATRIOT Act and to forestall PATRIOT Act II. So let me just mention two in which the ACLU and many other organizations are involved, and then close.

The first is called the SAFE Act—standing for Security And Freedom Ensured—sort of borrowing from the acronym creativity of the USA PATRIOT Act itself. And this was introduced in October of this year, October 2nd, by a bipartisan group of senators, and it’s a bill to amend the USA PATRIOT Act, to place reasonable limitations on the use of surveillance, the issuance of search warrants for other purposes. Its short title is called the Security and Freedom Ensured Act of 2003. And the purpose of it is basically to focus on some of the key provisions that have garnered the most criticism, some of which have been mentioned—the roving wiretap provision, the search warrant provision, the lack of any kind of probable-cause standard before records and other papers can be gathered—and to move this along, so that perhaps there will be some kind of legislative change even if the lawsuit is not successful, or even if the lawsuit does not reach resolution any time soon.

Next, on the local grassroots level, many of you are probably aware that there have been cities and local governments that have discussed the merits of passing resolutions against the PATRIOT Act. And I just want to mention that a couple of northern California communities have done that and explain why that is actually very helpful, and why I think it’s legitimate. Santa Cruz, Sebastopol, Fairfax, Arcadia, San Francisco, Richmond, Cotati, Sonoma, El Cerrito, Los Gatos—I don’t see Oakland and Berkeley on the list, but certainly they must be on this list. And the overall number in California is actually in the high one hundreds. Several states, as well, have passed resolutions, and some people have disparaged this as just a waste of time and local resources. But I do want to mention one possibility, if you are interested in organizing along these lines, or encouraging this in your local community.

And it is this. In Mountain View a couple of months ago the city asked essentially for a policy report to be presented about why cities should take a position on the USA PATRIOT Act. What impact does it have on the city? And a colleague of mine, a professor at Stanford named Tino Cuellar, worked on a wonderful report that was presented as a policy that went through the local impacts—in addition to the impact it would have on law enforcement, etc., on local resources such as public libraries—it also argued that there is an independent value in and of itself in protecting the constitutional rights of citizens of a particular community, and that should be considered to be something tangible, a local impact that has to be recognized. So those are some efforts that I think have really sped things along.

Let me close by mentioning a couple things about the Act in the larger context of constitutional law that I don’t think can be stressed enough. Freedom of speech is certainly important; equality, due process. But even if the USA PATRIOT Act were repealed tomorrow, even if Patriot II never came down the pike, we would still be in a pretty dire situation with respect to civil liberties in that we have now a presumption coming from the current administration, the Attorney General, and others that meaningful judicial review is something that can really be dispensed with. And the Guantánamo Bay cases that have just been accepted for review in the U.S. Supreme Court are an example of this.

In Section 215 of the Act, as I mentioned, there is this sort of assumption that you can just go to the FISA judge, and say you have a reason, and the wand will be waved, and you will have the right to seek. But that really is part of a much larger pattern that seriously threatens checks and balances—the notion that you should trust the Executive Branch because of the war on terrorism. These statutes aren’t even written to be reviewed by a court, if you really think about it. The vagueness of the language means that they’re not intended to be interpreted, and it’s because judges are not suppose to have any meaningful wall. And then, of course, you have the question of what judges there are once you get into the judiciary, but that’s another topic.

I really wanted to end with going back to first principles, to James Madison’s notion of courts being this impenetrable bulwark against the other branches, against overreaching—it sounds like very dramatic language, but it is especially vividly meaningful today—and then to end with a quote from [former Supreme Court] Justice [Robert H.] Jackson, more recently, about the purpose of the Bill of Rights, the independence of the Bill of Rights, the fact that they exist and should be enforced by courts independent of the will of the people through legislatures in enacting laws such as the USA PATRIOT Act.

Justice Jackson said, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

So let us hope that even if the PATRIOT Act and PATRIOT Act II disappear in the next year or so that we will continue to be reminded of fundamental freedoms and the role of courts in protecting them. Thank you. [Applause]

James Bovard Journalist, Policy Analyst, author of Terrorism and Tyranny: Trampling Freedom, Justice and Peace to Rid the World of Evil

I want to thank David for inviting me out here. It’s great to come out to Oakland. You know, there’s such a different spirit here than there is in Washington, D.C. And I’ve only been here for a couple of days, but from my conversations, I think it’s safe to conclude that the average taxi driver out here knows more about the PATRIOT Act than the average member of Congress in Washington. [Laughter]

It’s just fascinating to me getting a ride in from airport, and all of a sudden the person starts making these astute comments, while there is this problem and that problem. And the average congressman—I mean, even some of the good ones, some of the co-sponsors of the ACLU-sponsored Act—Senator Craig, he was quoted in The Washington Post a few weeks saying, “Well, I’m not aware of any victims of the PATRIOT Act.” You know, there are many people who have George Bush’s reading habits. That’s part of the problem here. George Bush commented about six weeks ago that he’s careful not to read the papers because he doesn’t want to have a biased source of news, and instead of relying on the papers, he just talks to Condi Rice and Andrew Card, his Chief of Staff. And Bush said that those two sources were objective, and Bush could trust them. So, it’s rather amusing.

John Ashcroft, in his recent PATRIOT Act salvation tour, which was one of the biggest PR fiascos in Justice Department history—I mean, it’s fascinating that Ashcroft would think that by traveling around the country, and speaking only to closed audiences of prosecutors and law enforcement and FBI agents, not allowing any print media to question him, that that would somehow spur so much public enthusiasm for the PATRIOT Act. Instead it became this complete farce, and he was hounded a few places by some main street press reporters. It was like he was dodging a subpoena, dodging some of these journalists.

But it was probably prudent, because if you look at the text of his speech, one of Ashcroft’s lines he kept using was: “America is more secure today than two years ago, and it’s safer and freer than at any time in the history of human freedom.” He keeps stressing: “The lives and liberties of all Americans are protected by the PATRIOT Act.” And it’s amazing to see how brazen the Justice Department is on these things. It’s almost as if they think that all Americans watch only Fox News, and no one is going to be able to put two and two together on these things.

It’s interesting how the Bush administration moved so rapidly to capitalize after 9/11 by basically going to the closet of the Justice Department and taking all these old provisions and bills that Congress had completely rejected when Janet Reno was Attorney General. And even Ashcroft himself—he had a wonderful quotation in 1997. He said, “Americans don’t need a Big Brother to read all their e-mail, to track of all of their medical records, and to know everything that they’re doing.” I mean, he was very vigilant on privacy before he became Attorney General.

But the PATRIOT Act treats every citizen like a suspected terrorist and every federal agent as a proven angel. George Bush and Ashcroft pulled off the biggest bait and switch in American constitutional history. Instead of targeting terrorists like Bush and Ashcroft claimed, the PATRIOT Act extends all these new surveillance and seizure powers to anyone suspected of violating any of the 3,000 different crimes in the federal statute book. That’s why you have the PATRIOT Act being used in cases of obscenity, on drugs, on white collar, on racketeering. The PATRIOT Act was recently used to confiscate a telemarketing firm’s bank accounts because it was accused of fraud. They didn’t have any evidence. And it would have been very difficult to seize those bank accounts, what with the normal federal prosecution. But the PATRIOT Act is great because it saves a lot of paperwork from these federal agents that want to do these searches and do these seizures.

The Bush administration converted 9/11 into a trump card against American privacy, and one example of this is Carnivore. Carnivore is the FBI’s e-mail wiretap system. Americans first learned about this in the summer of 2000, and people were horrified to think that Janet Reno and Bill Clinton could have that kind of power to intercept and read everybody’s e-mail. And there were some comical elements because it turned out that the reason the FBI used the name Carnivore for this wiretapping system was that the FBI thought that nobody would ever find out about it. From a simple PR perspective, the name Carnivore—it just doesn’t look good in the papers. But the PATRIOT Act changed the name. It’s no longer Carnivore. It’s now I think the DSC 1000 or the DCS 1000. So thank God, they’ve taken care of that problem.

It was a long-standing principle in American jurisprudence—it was not always obeyed, but it was a principle—as Supreme Court Justice Oliver Wendell Holmes wrote in 1921: “The use of the mails is almost as much a part of free speech as the right to use our tongues.” And yet with this Carnivore system, that has completely trumped any right to e-mail privacy.

With the way the system works, the government can get a warrant to track one person’s e-mail—one person. And the FBI goes in, compels their Internet service provider to attach this black box to their computer system, and an FBI agent only has to push one button on that Carnivore system, and it can automatically copy all the e-mail of all the customers. This is sort of like having a search warrant for one house, and you go and you search the house, and you figure just to be sure, let’s search all the houses in a five-mile radius.

And the Bush administration and Congress were explicitly dishonest in how they sanctified this. In the PATRIOT Act, it was described as if it was a pen-register wiretap. And a pen-register wiretap is like a very light wiretap, where you’re only tracing the incoming and outgoing phone numbers. Well, this is not quite what copying all of someone’s e-mail is, but the Feds went ahead and misrepresented it that way, and so far it has not been struck down, even though there has been a lot of concern about how these things are being misused.

Something else that they have. You know, there’ve been so many searches. According to Ashcroft early this year, federal agents have issued over 18,000 counter-terrorism subpoenas and search warrants in the last two years. In many cases, FBI agents have gone in and snared the information simply through intimidation.

There was controversy over the library searches, and the American Library Association surveyed its members and almost 10 percent of them said that they had been contacted months after 9/11 to give out information on their library users. And there were a number of newspaper stories about FBI agents going in and getting this information, but Ashcroft in September said that they’d never used a Section 215 to get library records. Well, they’re getting them somehow.

And one of the ways they’re doing it is something called National Security Letters. A National Security Letter is an FBI subpoena which allows an FBI agent to come in and demand that a person surrender their business records, their e-mail, their phone records—almost any kind of personal records. And the person that receives a subpoena is muzzled forever, prohibited from disclosing it; if the person discloses that they’ve received a subpoena, they can get several years in prison. And these are things that are not being counted. We don’t know how many of these National Security Letters have been issued, and there is no judicial control on this. There are parts of the PATRIOT Act that trample the Fourth Amendment; this is something which it simply pretends doesn’t exist. And to have these FBI agents at the field level office being able to do this is, it’s a complete mockery.

Now Ashcroft has often insisted that we don’t need to worry about the PATRIOT Act violating our civil rights because it’s controlled by courts. But a lot of it’s going to the Foreign Intelligence Surveillance Court. Now the Foreign Intelligence Surveillance Court is a secret court; it meets in a closed, secret part of the Justice Department Headquarters. No non-government employees are ever allowed to go there, and no defense attorney is ever allowed to appear and argue against granting a search warrant.

Now since this court was created in 1978, the FBI has requested 14,000 search warrants. This court’s been very consistent. It’s given 14,000 search warrants. Even though a couple years ago the court became very aggravated because it turned out that the FBI admitted they had lied and misused a lot of the data for many of these search warrants. And there was a big protest; and there was a court decision that walked through some of these abuses by the FBI.

Well, Congress never heard about that because Ashcroft’s Justice Department said that Congress had no right to see the decision of the secret court about the FBI abuses. And this is a court that is supposed to be protecting our freedom now, but instead it’s usually very servile; and the playing field is completely stacked against the American people here.

Now the PATRIOT Act overturned one of the most important Supreme Court decisions of the last five years. Back in 1998 that flaming liberal Clarence Thomas wrote a decision which struck down the Customs Service policy of confiscating all the cash of people leaving the U.S. who fail to notify the government they were taking more than $10,000 with them. This was a very arbitrary policy. Thomas, joined by four other justices, said that it was a violation of the Excessive Fines Clause of the Eighth Amendment. This was a landmark decision because it was one of the first times that the Supreme Court recognized that crushing penalties for mere paperwork violations were unconstitutional.

As soon as this came down, the Customs Service and the Justice Department started working to get it overturned. And in the PATRIOT Act, Congress created a new crime called bulk cash smuggling. By amazing coincidence this is almost exactly the law that the Supreme Court struck down. You’ve had over 600 people who’ve had all of their cash taken away from them when they were traveling if they failed to fill out this one little customs form. And it doesn’t take any evidence of wrongdoing, because that was the issue in the 1998 case. It was a Syrian-American guy flying out of LAX, taking several hundred thousand dollars with him to pay off some family loans. Well, a federal district court, federal appellate court, both concluded that the money was honestly acquired. But the Justice Department kept insisting that that didn’t matter, this person violated the law. It was almost like some kind of modern version of some type of Fugitive Slave Act, that someone’s taking their own money out of the country. I’m sure Huckleberry Finn would have a good line on that.

And the Customs Service, in their testimony, talks about all these as victories over terrorist financing. There is almost no evidence in the vast majority of these cases of any terrorist link, but what the government does is say, “Well, there was a Mideast connection to a lot of this money.” What that meant was, the person whose money was grabbed may have been flying to Cairo, Riyadh or Tel Aviv. That’s the standard of evidence that they’re using, and that is how pervasive the dishonest propaganda is here.

A lot of people have said that the PATRIOT Act has problems, but it’s important to make us safe. Well, there was no shortage of federal power before 9/11. The Feds had all the clues that they needed and yet they failed. It was the biggest law enforcement and intelligence failure since Pearl Harbor, and the Feds have reaped a huge amount of new power because of this.

And talking with people, it’s this whole idea of creating security for freedom. People act like there’s some type of altar which the exchange can be made at, or some type of higher being which is going to guarantee us that if we sacrifice our freedom, then—abracadabra—we will deserve to be more secure.

Well, in areas where people have sacrificed their freedom since 9/11, the primary effect has been to make it easier for the government to hide its mistakes. There have been a lot of cover-ups. There’s been a lot more secrecy. Ashcroft has tried to gut the Freedom of Information Act, and they have done so much stonewalling in the White House.

Americans have not even seen the tip of the iceberg of post-9/11 abuses; there have been some great stories out, some fascinating stories. Colleen Riley, the FBI agent in Minneapolis, who blew the whistle on how the headquarters screwed up, wrote a letter earlier this year and talked about how FBI agents were under intense pressure to round up more detainees after 9/11 as bragging points for the FBI PR. And there was so much pressure that some of the FBI agents started to just go to telephone books to try to find Arab and Muslim names of people that could be brought in and interrogated. This is their idea of focusing law enforcement resources.

Agencies like that—that screwed up so massively—giving them more power isn’t going to make us safe. And it’s appalling that there’s so little interest in Congress in doing good oversight. It’s one of the most profound failures of American democracy in post-9/11. Congress has basically played ostrich or just took a dive, like some kind of prizefighter taking a dive in the first round. And most Congressmen are so afraid to even ask questions at these hearings. It’s amazing to see what these administration officials are getting away with. There are some good Congressmen who’ve tried very hard, people like Ron Paul, and Russ Feingold, and Charles Grassley’s done some very good work on the FBI. Conyers has done some very good work. But as a group, Congressmen have completely defaulted on their oath of office. These people took an oath to uphold the Constitution and somehow most of them act like 9/11 nullified that oath. And that’s a failure of our democracy. People have got to put more pressure on these people. I’ve rambled on enough, so I’ll draw the curtain of mercy. [Applause]

Questions and Answers

Ivan Eland

I’d like to thank our speakers. That was a great set of presentations. And now we get to the fun part, the question and answer. And I forgot to mention one thing in my talk at the beginning. The Center for Peace and Liberty has been set up to study the ill effects of war, both on domestic and in foreign affairs, and, of course, one of our functions is to look at the domestic effects of war, and that’s why we’re having this forum on civil liberties. But we also do look at the ill effects of aggressive U.S. policies and excessive foreign interventions on other countries as well. So I just thought I’d mention that before the question and answer period, because I forgot to do it beforehand.

I’m going to take the prerogative of asking the first question and then I’ll throw it open to the audience. My question to our panelists is, which provision either in the PATRIOT Act or the executive actions after 9/11 do you think is most pernicious? In other words, if you had to repeal either an executive action or a provision of the PATRIOT Act, what would it be? In other words, what’s the worst that’s happened?

James Bovard

Well, there are a lot of individual things in the PATRIOT Act which are mortifying, but one of the things that concerns me most is that in May of 2002, Ashcroft canceled the restrictions on FBI surveillance of anyplace in the American public or almost any public group. These are restrictions that were put in place in 1976, after Congress found out what the FBI had done with COINTELPRO.

The FBI was engaged in a massive subversion effort targeted at white hate groups, black nationalist groups, New Left groups, and other targets. And they completely trampled the rights of these people. They had all kinds of entrapment efforts. They were sending poison pen letters to people’s husbands and wives, trying to wreck marriages. They were getting teachers and professors fired for going to antiwar protests. They were wrecking antiwar protests. It’s a chapter in American history that people should look at. There was some wonderful stuff in the [San Francisco] Chronicle recently by Seth Rosenfeld—excellent stories. And this is the kind of stuff the FBI did.

And these restrictions on FBI surveillance intrusion were put in place to stop those kinds of outrages. Ashcroft not only canceled all of those restrictions and unleashed the FBI, but at the time, he said, he bragged that the FBI has a 94-year history of being champions and defenders of Americans’ liberties. It’s hard to make this stuff up.

Ivan Eland

Margaret, do you want to comment on that?

Margaret Russell

Yes, well, I think all of us had the initial reaction of, gee, there are 10 examples in our list of five worst, so how do we cram them all in? Certainly Section 215 and the threats to freedom of speech, I think is one of the worst. And another that I’ll mention is this whole very degrading registration process focusing on people from about 20 different countries—that is just so humiliating. And I’ve spoken to many people affected by that. I think that’s another action I would mention.

Ivan Eland

David?

David Cole

I would say the immigration provisions, which I talked about earlier, which I think are the most draconian in terms of civil liberties abuses that we would never tolerate if applied to ourselves. And so those are the ones. I also think that the PATRIOT Act has become a symbol for the way the government has responded. But much of what the government has done that is so objectionable is not authorized by the PATRIOT Act. All of the preventive detention stuff that I talked about is not authorized by the PATRIOT Act. It is simply the exploitation of preexisting immigration law for purposes that it was never designed to serve.

So I think even a total repeal of the PATRIOT Act, which Al Gore called for on Sunday, would not respond to the substantial amount of abuse that has occurred since September 11. Most of the abuse is actually outside of, rather than inside, the PATRIOT Act.

Ivan Eland

Now we’ll turn it over to the audience here. And this gentleman right here.

AUDIENCE MEMBER 1

I want to add what I think is a worse example, which I’m surprised nobody’s talked about. And that’s the President saying that somebody is an enemy combatant. And then we have an American citizen and another person flown into a brig somewhere in Virginia, gets no access to a lawyer, no trial, nothing, on the President’s designation. That means anybody in this room—the President could say that David was an enemy combatant and that’s the last we’d ever see of him. That seems to me to be the worst infringement on our rights. It affects everybody.

David Cole

I think that’s right. And I think it’s an example of what I was talking about in targeting foreign nationals first, and then using this as a precursor to extend to American citizens. It was first used not with the American citizens, but with the people on Guantánamo. And they too are labeled as enemy combatants, denied access to a lawyer, denied access to courts, held incommunicado, held indefinitely. And the government’s argument was, we can do this to them because they’re foreign nationals. But then it discovered that one of them was a U.S. citizen, and then it picked up José Padilla at O’Hare Airport, and it found that it didn’t have anything they can really charge him with, and so they extended this exact same practice to U.S. citizens.

And now they defend the practice under “war power,” and they say that it makes no difference whether you’re a U.S. citizen or a foreign national. So this is an example where the government has already crossed the line from foreign nationals, the way that it started, to U.S. citizens. But I can assure you that if history is any guide, each of the measures that have been deployed against foreign nationals will be ultimately extended to U.S. citizens. And it’s only when they’re extended to U.S. citizens that we will begin to recognize that they’re wrong.

Ivan Eland

Okay, let’s go back here to this gentleman here.

AUDIENCE MEMBER 2

What concerns me is, why are the campuses so quiet? It’s almost as if you need to be a meteorologist to see which way the wind is blowing these days rather than the way it used to be.

Ivan Eland

Margaret, do you want to comment on that?

Margaret Russell

Well, I guess we’ve all done such a good job raising this current generation. [Laughter] I’ll say a little bit about law school environments. There is an organization called The Federalist Society that some of you may have heard about a lot. And they’ve really picked up a lot of steam on a number of law school campuses in an interesting way. And they started actually around the time that I was in law school. I think they started in 1982. I graduated in 1984. And they often present themselves as the discriminated-against minority in campus life. But they have a way of influencing the debate so as to neutralize people who otherwise, I think, would feel very comfortable about being vocally activist in opposition. They neutralize the debate by saying, “We’re so marginalized, the Federalist Society is so discriminated against.” And so what I’ve noticed in my law school and other law schools is a real flattening of any sense of debate in favor of this notion of on the one hand, on the other hand, “Let’s be as ostensibly neutral as possible.” So I think that’s one influence. As far as undergraduates, I’m not as sure.

James Bovard

I wonder if I can comment on that?

Ivan Eland

Oh, sure.

James Bovard

You know, it is possible that young Americans, or Americans in general, nowadays have much less enthusiasm for freedom than they used to have. I hope not, but it’s a possibility.

Ivan Eland

Let’s go right here in the back to this gentleman in the dark shirt here.

AUDIENCE MEMBER 3

In reference to the timidity of the justices in this country—and a lot of the judges who have given over a whole lot of power to the Executive Branch—what is your prediction of what the federal courts or the Supreme Court will do, now that they’ve granted a hearing on the Guantánamo Bay case on the two issues. Do the courts even have jurisdiction over Guantánamo Bay? And assuming that they say they do, will they give back some of the Constitutional rights that you would expect anybody that’s being detained would have—a right to counsel, a right to access to family members, a right to garner a defense, a right to jury trial, those sort of things?

Ivan Eland

David, do you want to start on that?

David Cole

I vowed never to make a prediction about the Supreme Court after Bush vs. Gore, when every prediction I made, at every step along the way, was exactly wrong. So whatever I predict you should disregard entirely. [Laughter]

I think that all they’re going to address is whether the court has jurisdiction. That’s the only question that they’re going to address, because the lower courts simply threw the cases out, on jurisdictional grounds, on the theory that these people—foreign nationals --have no rights, and are not on U.S. soil, and therefore, can’t seek habeas corpus jurisdiction. That’s the question that the court will take up.

I think it will probably also take up, now that it has taken up this question, it will probably also take up the question of the U.S. citizen enemy combatants. The Hamdi case is up there on a petition for review. My guess is that they’ll grant that. The Padilla case (who is the guy picked up at O’Hare Airport) is being argued on Monday in the Second Circuit on an expedited appeal and so that will be decided relatively quickly. My guess is that they will take that. And so we’re going to have the court addressing this question across the board.

And there is something very unsettling about the government’s position, if you are a court. The government’s position is that it can lock up human beings indefinitely without legal limitation and without legal recourse. That is an extraordinary assertion of power, and we’ve seen now that it is not limited to foreign nationals, but extends to U.S. citizens. And, if anything, it seems to me the breadth of that assertion of authority is what has pushed the court to take this case on the Guantánamo detainees.

Having taken it, however, they’re going to be very nervous about the prospect of U.S. courts second guessing military detentions in the course of a military conflict. And so the best that I think we can hope for is something that says that the courts have some role to play here, leaving open the possibility for a very deferential review down the line. That’s the best that we can hope for.

This is not an activist court, at least on individual rights. On state’s rights it’s been activists, but when it comes to human beings rights it’s not particularly activist. And so I’m not optimistic about the outcome.

Ivan Eland

Anybody else want to comment on that?

James Bovard

Yes. It’s hard to know what the result is going to be, but it’s going to be fun between now and then to watch Ashcroft sweat. [Laughter]

Ivan Eland

Okay, I’ve got a couple of questions from our satellite rooms upstairs, and I want to make sure that we have people give our panelists a thorough grilling here. So I’ve got an interesting question. This is in regard to the statement that Robert Kennedy arrested the Mafia for littering or spitting on the sidewalk, I guess. They heard it as littering. But anyway, is it not necessary to enforce all laws even in nontraditional manners? If we could act more like Robert Kennedy, the PATRIOT Act would be deemed unnecessary. What’s wrong with that logic?

James Bovard

I’m not sure I follow it, but the --

Ivan Eland

Well, he’s saying, if we enforced existing laws, on a technical basis, we wouldn’t need additional specialized laws.

David Cole

The reality is that we can’t have full enforcement of all laws of any kind, and especially immigration laws. And we are a country that, number one, relies economically on illegal immigration, so we have always passed very extensive laws restricting immigration and putting extensive conditions on immigration, and we’ve always underfunded INS so that these laws cannot be fully enforced. And that’s a reality.

And it’s also a reality that if they were fully enforced, not only would it be a hardship for our businesses, like Wal-Mart, that depend on illegal aliens to keep prices down for us. [Laughter] But also, it would be incredibly inhumane, because the only sanction that immigration law recognizes for a violation, no matter how technical the violation, is deportation from this country. And many people who have lived here for very long periods of time, who have become part of the communities, who have some technical immigration violation—deporting them, separating them from their kids who are often U.S. citizens because they are born here, etc., is just totally inhumane. So we’ve always had this contradiction in our immigration law.

In theory, yes, no one should break the law, and everyone should be caught who breaks the law. But that’s not the way it works. And so in some sense, prosecution is always selective. What is problematic is when prosecution is selective on the basis of protected status and protected activities like ethnic identity and religious practice, when we start engaging in zero tolerance immigration enforcement not against the illegal immigrants across the board, but against Arabs and Muslims only. That, it seems to me, is morally and constitutionally wrong. And I think it’s also been proven thus far to be highly ineffective. We have, not through this kind of enforcement, identified al-Qaida members, identified real terrorists, made this country safer.

Ivan Eland

Okay, you’ve had your hand up right here. Just wait for the microphone a second.

AUDIENCE MEMBER 4

My question for the panel is, what are your legal rights if you refuse to be searched at an airport? And secondly, are you aware of the status on several lawsuits challenging searches at airports?

James Bovard

As far as legal rights, the primary legal right you have is the legal right not to fly, because that’s how it’s going to work out. [Laughter] That’s the long and the short of it. But it’s actually worse than that, because there was a new regulation put in place shortly after 9/11, that if someone even raises their voice to one of these TSA agents, federal agents doing the screening now, that person could be arrested for that. And there have been a number of cases where people say a single harsh word to the person who had been hassling them, in their perspective, and boom, the person is handcuffed and led away.

Someone asked me recently if I felt more secure when I’m travelling and going through airports, and I said, “The chances of me being arrested are much higher in airports now with regulations like this.” So there are some lawsuits I think, but I don’t think that they’ve gotten very far, and I don’t expect them to go very far, unfortunately.

Margaret Russell

Can I just mention two suits of relevance, not strictly about searches? Because I think you are right, it would be, well, you cannot fly. In Northern California, there was filed by the ACLU a suit challenging the no-fly list that had been discovered and was being used against individuals in a very strange manner. I mean, two of the plaintiffs are co-editors of a newspaper called Peace Times. And they got to the airport ready to board their plane, and they find out that they can’t fly because they’re on a special list. “What list?” they say. “Oh, well, it’s sort of a no-fly list.” So the gist of that suit is really to get information under the Freedom of Information Act about what this list is, how people get on it. That’s one suit.

A second issue, not a lawsuit (which you can find more information about on the ACLU website, ACLU.org, with a quiz) has to do with the Administration’s floating of this idea of ranking people by security color—red, yellow, green, etc.—so that when you arrive at the airport and get ready to fly—based on certain indicia, not completely revealed—you may be ranked as stop light, go, maybe. If you go take the quiz on the website, you’re asked a series of questions to give you information about people who have been stopped, and what they know about the reasons for why they’ve been stopped.

David Cole

I have a very different perspective on the airport situation. I think it’s a good thing that many of us get searched when we go through the airports. I do feel safer because the government is subjecting us to much more careful screening than they were before. I think that’s a good thing. And I think that actually putting aside the ethnic profiling, which is targeted, the kind of general approach to airport security has been one in which we’ve struck the balance in a fairly reasonable way. We have tried to increase security, but we’ve done it in ways that try to minimize the burdens on travelers. Why? Because this affects all of us. We all want to be safe on planes, but we all also want to maintain our dignity and not have to show up at the airport three hours in advance.

So here, you have the citizenry’s interest both in security and in liberty, and I think we’ve done a fairly okay job with those across-the-board measures. I think that’s an example of how we need to respond. I think it’s wrong to say we don’t need to do anything different after 9/11. I think we do have to do things differently, but we have to think about them smartly, and we also have to be willing to share the burdens equally. And so to me the airport is actually an example of something where the government has done it right. Now, it obviously has not made travelling entirely safe, and it’s impossible to make travelling on airplanes entirely safe. But I think it has done some fairly important moves in checking baggage, etc., in checking people more thoroughly. And I think the across-the-board thing is something we should herald, not something we should criticize.

Ivan Eland

Anybody else want to comment on that?

James Bovard

I’d have a lot of comments on that. As afar as sharing the burdens equally, it’s not really progress to make a large number of people miss their flights. Shortly after 9/11, the Transportation Secretary said he would set a goal of five minutes for waiting. At National Airport last week there were 45-minutes lines. Coming out through Dulles Airport yesterday, the lines were 20–25 minutes. A lot of people were missing their flights and they were not more secure because of it.

And not only that, but TSA is a joke. TSA is one of the biggest farces of this war on terrorism. It was fascinating to see how a college kid, 20-years old, can fly on Southwest and send e-mails to the TSA telling them what he had done, telling where this stuff [box-cutter knives he smuggled onto planes] was hidden, exactly what planes it was on. And it takes the TSA five weeks to respond. Five weeks! And they were saying, “Well, we have a lot of e-mail coming in.” [Laughter] Maybe they should hire people who read English, I don’t know. [Laughter]

Ivan Eland

Well, I have a little comment on that too. I think we have to look at some of these provisions and not just assume that the government is taking the right steps. You’re mentioning some of it. The other thing is, there are a lot of security problems in the luggage handling and the employees. If you’re a terrorist, you try to find the weakest link in the system. And so, of course, the passengers have been frisked and had their luggage rifled through and everything else. So they’re not going to take that route. That’s not to say the terrorists are god-like, but certainly they’re going to try to move around the system and find weaknesses in the system. So I’m not sure that the government always takes the right approach.

If you remember, after September 11th they had 18-year-old kids at airports with assault rifles. That didn’t make me feel very happy, because if you’re going to have somebody at an airport at least have somebody with a pistol, because you don’t want to mow down all the passengers while you’re trying to get one terrorist running through the airport. I don’t think there’s ever been a terrorist that tried to forcibly go through the checkpoints, so it didn’t make any sense. And, of course, they eventually figured out that it was kind of scaring people. [Laughter] I was scared. They said there weren’t any bullets in the gun, and I was just hopeful that there weren’t.

AUDIENCE MEMBER 5

Let’s face it, our airport security is a fiasco, it is false security, it is only window dressing. The main source of designing the hassles, the constant harassment of people going through as passengers, is the past. Every cockeyed thing that has been done for the last 30 years by a terrorist is designed into our current system, and nothing from the future.

Let me give you an example. There is, as far as I can tell, no added security to the fuel terminals and fuel trucks of our airports. All that terrorists would need is a truck, four guys, and a few guns. They take the truck through a gate. They smash their way through, shoot the people on these low-lying fuel trucks that you see, and they know when there are loaded planes at the terminal. They drive one up under the wing of a plane, drive it into the wheel, so the plane can’t move, and blow the thing; and you’ve got four burning aircraft right there. A perfect example of a simple, easy way they can do it, completely bypassing this window dressing that is resulting primarily in the bankrupting of various different airlines. There is a word for where we are headed with our airline system. It is Aeroflot. I have flown on it, I don’t like it, and that’s where we’re headed.

Ivan Eland

Okay, thanks for the comment. We’re going to put you on Ashcroft’s terrorist list after that little plan there.

Margaret Russell

I just hope no one has to get on a flight tonight.

Ivan Eland

Okay, this guy here right in the back here.

AUDIENCE MEMBER 6

Given that you all would like to trash the PATRIOT Act, are there any other provisions that you would use to tighten up security in light of what happened on 9/11? Would you want to just keep things the way they were, as inept as they were, prior to that event?

James Bovard

Actually, there are a few provisions in the PATRIOT Act that are not necessarily bad things. There are a few minor things that update some of the wiretap laws that may account for some new technologies. Those are not necessarily subversive of the Fourth Amendment or people’s privacy. So, I mean, there are little bits and pieces, there are some that are simply minor adjustments that are not horrible things, and those kinds of things are not threats to our freedom and could be left on the books.

David Cole

I think there’s actually a fair amount in the PATRIOT Act that’s not objectionable. It’s a 342-page bill. And even if you read the 342 pages you won’t get it, because it says—on page one it says Section 375 of Article 1 will be amended to change an “and” to an “or.” So you’ve got to get the whole U.S. Code and put it down. But when you actually look at it, there’s plenty in there that’s not particularly controversial from a civil liberties perspective. A lot of it is money-laundering provisions, which the banks complain about because they have to report a lot more than they had before. But it’s not a civil liberties problem particularly.

The provision for roving wiretaps I don’t find to be that problematic. It is simply saying that in the era of cell phones, where people can buy a new phone any time they want to, if you show that someone is doing that, you can get a roving wiretap, which permits you to tap phones that person might reasonably use. That seems to me to be reasonable. We already had it for drug crimes, etc.

And I also think that the provision that authorizes the prosecutors in grand jury investigations that come across evidence that's relevant to international terrorism, to share that information with the CIA, etc., is a perfectly reasonable provision.

And I think, of course, we have to do more. It’s wrong to be simply critical and say we don’t need to do anything more. But I think you need to think about what’s smart in responding to the threats that we face. And simply giving the government broader powers to gather more information,—without adequate objective showings of criminal suspicion—is not the way to go. And so the surveillance provisions that do that, I think, are problematic. As I said before, the immigration provisions are very problematic.

But I think it’s overkill to say that the whole thing is wrong. What Al Gore said was that even though there are provisions in it, we should just repeal the whole thing because it was passed in such a cockamamie way that we should start from ground zero. And that argument I can see as making sense, but I don’t think it will ever hold water. The only hope we have, really, is to target the provisions that are most controversial and try to amend those, which is what the SAFE Act does.

AUDIENCE MEMBER 7

Do you have any comments on money laundering?

James Bovard

Yes, I do. There is a chapter here in Terrorism and Tyranny on the money laundering cases. The PATRIOT Act had a provision which said that if you’re running a money-forwarding service and you don’t have a state license, then that’s a federal felony. And they used this to go after a lot of Somalis and Somali-Americans who were transferring money back home. And they went in, did these raids, they confiscated people’s life savings, and they greatly disrupted the transfer of money from Somali expatriates for their relatives back home. There are probably some people who died because of that. And there were a lot of innocent people who got smeared.

And the first person to be convicted under the PATRIOT Act was a Somali guy who had been investigated by the FBI the previous year to see whether there was any terrorist connection to his money-forwarding service. The FBI found nothing. They had no evidence on the guy except that he had started to fill out the paper work to get this state license and he had not finished it, and that’s how they nailed him. And it was a fascinating scene in the federal court because the federal Judge, who handed down the sentence, he was outraged because the federal prosecutor came in there and wanted a very harsh sentence for this guy—far harsher than what the sentencing guidelines called for—and because the prosecutor portrayed the guy as a terrorist financier. And the judge was furious. He said, “There is no evidence of this. I mean, this is outrageous what you’ve done to this guy.”

AUDIENCE MEMBER 8

So what was the sentence?

James Bovard

The sentence, I think it was maybe 32 months or somewhere like that. But the prosecutor wanted a much longer sentence. But there’s a really wonderful quote from the Judge, which I don’t recall right now. [Laughter] But it’s in chapter five.

Ivan Eland

David?

David Theroux

One thing I might add here is the way the current system with TSA works is, of course, that everyone who flies is a suspected terrorist. You’re searched without due process, etc., etc. You have no property rights. They can rifle through your luggage, etc., etc. The idiocy of the situation can be contrasted with the situation in most other fields in which people essentially are pre-screened. In other words, an airline faces insurance risk. Airports face insurance risk. They want to minimize the risk for the people who are using those facilities.

There’s absolutely no reason at all why people could not apply for pre-screening, they’re approved before they enter the airport, they can pay a fee, there could be a competitive market for this kind of thing, and there’s a huge demand for it. It’s no different from credit ratings or anything else. But the government essentially proscribes this because everyone has to go through this Orwellian system of being searched without limit whenever you try to fly. The problem basically is, the government doesn’t know who the terrorists are or where to find them, and so we are all suspects. That’s the absurdity of the situation.

Ivan Eland

We’ve got another question from upstairs. How do you think the U.S. should handle the terrorist problem if not through the PATRIOT Acts I and II? Are there other things that we could do to make ourselves safer?

James Bovard

Yes. Well, first and foremost is to stop creating so many new terrorists. [Applause] U.S. foreign policy is breeding terrorists. If you look at what’s happening in Iraq—I think back a year ago, Americans were not being attacked in so-called terrorist attacks in Iraq a year ago. American troops were not dying there. Italian troops were not dying there. The Jordanian embassy had not been blown up. But there are far more killings going on now that we’ve gone there and we have made ourselves a magnet for intense hatred with our policies, and our policies before the Bush invasion with the sanctions, our heavy intervention in the Middle East. There are some neo-conservatives who are calling for World War IV as a way to finally solve the terrorist problem. Well, it’s not going to solve any problems. It’s going to kill a lot more people and make a lot more enemies. The most important thing which we can do is to stop all the unnecessary foreign interventions, stop breeding so much foreign hatred.

Ivan Eland

Just to amplify that point, when the neo-conservatives and others who are proponents of profligate U.S. interventions overseas—they always say, “Well, we’re attacked for who we are.” But if you look at the public opinion polls in the Arab and Muslim world, poll after poll says that the people in those countries like our culture. They like our economic and political freedoms. But the snag to all that, the question that always gets a really low rating is, what about our foreign policy and particularly toward the Middle East? So whenever you hear the President say they hate our freedoms, the polling doesn’t indicate that they hate our freedoms. In fact, we’re looked on as a model in that area. We’re not looked on as a model in the foreign policy area.

David Cole

I would just add that in my book I look at the foreign reactions to the double standard that we’ve employed at home. And I think that the flipside of the unilateral foreign policy—in which we say we can do whatever we want because we play by our own rules because we have the biggest guns—is the approach at home where we say we want certain rights for ourselves, but we’re willing to deny them to these other human beings who happen not to have U.S. passports.

Well, that becomes a tremendous point of critique for mainstream newspapers and government officials around the world, and that undermines the legitimacy of what we’re doing in trying to protect ourselves, and I think, contributes to this anti-Americanism which, I agree with James, is really the greatest threat to national security that we face today.

Ivan Eland

Okay, let’s go with this gentleman over here. This has got to be our last question because we’re running out of time here.

AUDIENCE MEMBER 9

Didn’t we already have an original PATRIOT Act, and wasn’t that called the Bill of Rights? I see the PATRIOT Act of today actually trashing the “original” PATRIOT Act, which is the Bill of Rights. And if we’re all given our full rights, as stated in the Bill of Rights, then we would be much safer today, and we wouldn’t have to be worrying about these new pseudo-PATRIOT Acts making us unsafer. So I was wondering what you thought about the original PATRIOT Act actually being the Bill of Rights? And we should be guaranteed these as natural rights, not privileges that the government can grant and take away.

James Bovard

It sounds pretty radical. [Laughter]

Ivan Eland

Anybody else got a comment on that? Okay, well, with that we’ve run out of time. I’d like to thank everybody for coming. And David wants to say something before everybody leaves.

David Theroux

I want to thank again Ivan and Brigid for organizing our event this evening. And I also want to particularly thank all of our speakers for joining with us. If you would join me in a round of applause. [Applause] I want to encourage you all to get both copies of our books that are featured tonight. These are very serious issues. The repercussions, the implications are enormous. You’ll also find other books upstairs relating to many of these questions.

I also wanted to point out one other book if I could, which I have mentioned to some of you in the past. It’s a book called Crisis and Leviathan. It’s written by another one of our Senior Fellows, Robert Higgs, who also edits our journal, The Independent Review. If you want to understand the nature of state power and how that relates to crisis, especially war crisis, this is the book that you should read.

So thank you, again, for joining with us in making this a very successful event. Again, the books [Enemy Aliens and Terrorism and Tyranny] are upstairs, and I know our authors would be happy to autograph copies. Thank you and good night. [Applause]



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