>> it is my privilege to welcome everyone. to welcome those joining us on our heritage.org web site as well. we ask everyone to make that

last courtesy check that cellphone are turned off especially those recording our events today. we will post the program within 24 hours on our home page for everyone's future reference and internet viewers are welcome to send questions or comments at any time by e-mail in assets speakers@heritage.org. hosting our discussion this afternoon is our ronald reagan distinguished fellow of public policy and chairman for the lead judicial studies who served ronald reagan as 70 fifth attorney general of the united states. please join me in welcoming ed meese. [applause] >> thank you. we have been over the last week celebrating or commemorating is a better term the events of the eleventh of september 2001.

it was the first attack on a city or cities in the mainland of the united states since the war of 1812. it was one of the most traumatic events in the lives of many of the people here. toomey it ranks with an event i witnessed as a younger person, pearl harbor. it cause tremendous burdens to fall on our law enforcement agencies and first responders, fire services and so on. it was obviously a tragic event for many families in this country and every citizen felt this personally in one way or another. nothing more than observing what went on on television during those fake flowers. it also has a tremendous impact on our legal system and judicial system and that is something

that is still going on today as many of the issues that began on the eleventh of september, 9/11 continue to be litigated in the courts and a good deal of legal scholarship. one of the important contributions to the legal scholarship is the book we are talking about today, "confronting terror: 9/11 and the future of american national security". it has essays by leading voices in law and policy. it was illustrated by dean witter and john yoo, one of our speakers today. we have in our audience paul rosensw rosenswag. we commemorate them being here. [applause]

our first speaker today -- terrace speakers will speak briefly because we want to open it up for discussion among them as well as to the audience as rapidly as possible. our first speaker is john yoo. john is a professor of law at the university of berkeley's school of law. he received his bachelor's degree in american history from harvard university. he served in period of time between college and law school as a newspaper reporter in washington d.c.. he went on to yale law school where he received his ph.d. where his articles editor of the yale doc -- journal. he served in all three branches of the federal government. he was a clerk for judge laurence silberman of the court of appeals for the district of columbia.

he was a clerk for justice clarence thomas in the united states supreme court. in the legislative field was general counsel of the senate judiciary committee. as executive branch member he served as deputy assistant attorney general in the office of legal counsel when the department of justice. and his issues involve foreign affairs, national security and separation of powers particularly when he was a key member of the office of legal counsel dealing with issues related to national security and particularly the attack on 9/11. professor yoo has been visiting professor at several law schools and received numerous fellowships and awards and honors during his career. he is visiting scholar at the american enterprise institute and received the pallbearer award for excellence in legal scholarship and teaching for the

federalist society for law and public policy and testified before the judiciary committee's of the senate and the house and has advised the state of florida constitutional issues and is the author of three books. the powers of war and peace subtitled the constitution of foreign affairs after 9/11. war by other means, and insider's account of the war on terror. and crisis in command, history of executive power from george washington to george w. bush. please join me in welcoming professor yoo. [applause] >> shame on you! what you doing here? shame on heritage foundation! you don't deserve to be here! ten years later america undermine civil liberties! how dare you be here in public! get out of here and shame on

you, heritage foundation! [applause] >> the speaker just speaking does not represent the heritage foundation. >> i would like to thank ed who is a graduate of berkeley law school for making me feel at home. bring back some of his son memories of his time at berkeley as well. i would like to thank ed meese for inviting me to speak and arranging this panel. i would like to thank nadine strossen who is a contributor to the book and having this debate and we had one last week in new york at new york law school. i couldn't think of a better way to think back on the last ten

years and commemorate what we have been through and look towards the future, national security policy. i want to be very brief. i look forward to hearing what nadine strossen will say and turning over questions and answers but back to the last ten years and draw three lessons. the most important lesson is the most important thing to happen in the last ten years was nothing. the last ten years never saw another successful terrorist attack in the united states. the most important question is why and whether it was worth it. to me the most important decision was one that president bush made as commander-in-chief on the night of 9/11 which was to treat the 9/11 attacks as an act of war. the way we thought about it at that time was if any country have attacked us in the same way

on september 11th as al qaeda did no one would have any doubt we are at war. the only difference was al qaeda was not a nation state. the important legal and constitutional issue was could we be at war with a non nation's state? president bush made that decision for the country that night. that was an important decision because once you make that call the united states can turn to the laws and rules of warfare to deal with al qaeda and the threat of terrorism. all of those were not just our invasion of afghanistan and the use of troops and drones to wipe out much of al qaeda's existing leadership at the time of 9/11 but could flee on display in the successful operation to kill osama bin laden over the summer which i think of as president obama's greatest foreign policy

and national security achievement. you saw intelligence provided by people who didn't -- had been detained under the laws of war. electronic surveillance producing more intelligence pulled together to locate where osama bin laden had been hiding. and the use of military force to go out and kill him. under the rules of the criminal justice system which administration of both political parties used in their approach to terrorism before 9/11 we invited osama bin laden and tried to arrest him after he 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 the united states before they could attack. the second lesson i would draw from the last ten years is after 9/11 we treated intelligence and

information differently. we tried to broaden the scope of intelligence. to take one example before 9/11 because of civil liberties concerns which were quite valid at the time we intentionally prohibited our intelligence agencies and law enforcement agencies from sharing and communicating information. if you read the 9/11 commission report carefully some of the commissioners believe that law was actually instrumental in preventing us from identifying the identity of hijackers known 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 the law between law-enforcement and intelligence allow us to analyze that information more effectively. that was tied to the ability to

use force, to wage war more broadly and quickly than ever before. i use a osama bin laden operation as an example. that was a brilliant military operation which all americans are proud of but what people don't realize is the military carries out operations like that every day in afghanistan and iraq. think about 1980. jimmy carter could not carry out even one operation like that. our military has been changed and trained to capitalize on intelligence on a daily basis. that could not have happened in 2001. suspect nadine and i agree on some things like speaking from a panel rather than a lectern and the scope of free speech. we will disagree about civil liberty. the third thing is the

prediction that there would be a civil liberties catastrophe because of the war on terror turned out not to be accurate. people had that fear at the beginning because of the civil liberties we saw in the civil war, world war i and world war ii i infringement on personal liberty and free speech. we didn't see things like that. in the last ten years political speech and political activity blossomed. you don't need to see four people in funny outfits in front of the heritage foundation to prove it. you don't draw them out like you used to. how many protesters are out there? someone said four. four is almost an insult. i would say four is an insult. in the last ten years is not because of anything the government did because of

technology or social media, twitter. political speech has exploded in the last ten years. it has not reseeded. the result is all around us but the most important is how contested political elections are. the most important check on any of these, think of what we have seen. the presidency switched hands between political parties. we have seen the senate switch hands twice and the house switched several times in the last ten years. we have seen the most important means in the political process which you need political speech and organization to operate and in the last decade we have seen an improvement in the exclusion of rights and liberties. we all have to suffer some accommodation to security. we all see this at airports.

the thing to ask is airport surge --searches bother people the most. isn't that actually somewhat reasonable? when you look at the benefits. look at the benefits of the last ten years. the fact that note attack has occurred been worth those costs. thank you very much. [applause] >> our other member of the panel is professor nadine strossen. she is a professor of law at new york law school and one of the nation's leading experts on the subject we are talking about today, constitutional law and civil liberties and international human rights. from cf1 o civil liberties and

international human rights. from 1991 through 2008 she served as president of the american civil liberties union and the first woman to hold that position and did an excellent job leading that organization. she is now a member of aclu's national advisory council. she has made thousands of public presentations before diverse audiences. she was the most active of any aclu officers 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. she also was indefatigable meeting chapters of the aclu as she went around with speaking for. she has spoken in many foreign countries. i think she made over 5,000 campus appearances as i understand. her writings have been published in many scholarly and general-interest publications.

she has 250 published works and two books, one in title defending pornography, free speech, sex and the fight for women's rights and another speaking of race, speaking of sex, hate speech, civil liberties. she has received numerous awards and honorary degrees and was selected as united states outstandin's ramerican and j.c. international young persons of the world award. she graduated from harvard college. both are speakers had their undergrainternate degrees at th same is the tuition and harvac. law school where she was editor of the law review. please would join me in welcomin's rnadine strossen. [applause] >> thank you. it is nice to have a reunion. ed was my most frequent sparring

partner on calvinist topics because we disagree on just about everything with one exception. i want to know the exception because it is relevant to the incident that happened here. freedom of speech. i always agreed to defend freedom even for controversial expression which some perspectives includestorohn yoos controversial views. i am sorry i didn't get to a is nise the protesters. i would have told them standing there silently with placac.s eng nt would have been protected free speech as we defend it at nc. york la school. when i was invited to share the podium with pohn and ed i wrote back and said their 2:1 isn't

exactly fair. i am. cf1 o ng to frame this. i don't think you could ever be outmatched. seriously i am happy to have participated in the book that done and being edited and one of the things i want to flag as the book illustrates is the question about security and freedom post 9/11. they did not divide advocates or government officiaand e along ideological or partisan lines. and to emphasize if one does not have liberty in order to advance security and conversely that

giving up liberty is not even always effective and can be f1 o ounterproductive. to the essential. oal of protecting national security. from the beginning we worked f1 o losely with some of the most conservative government officiaand e and citizens organizations as well as the most liberal. one of the reasons the aclu has been non-partisan is violation of and support of civil liberties across all party and ideological lines. the book d alonstrates what i a saying in addition to my piece from the american civil liberties union. the most hard-hittin's rpiece o enouncin's runnec unjustified violations of civil liberties as being counter to national security was authored by former coneroessman bob barr who was a republican m alber of congress from georgia who worked

with the cia and in the united states attorney before going into politics. from his perspective of law enforcement and intelligence he too has denounced many of the post 9/11 measures as the worst of both worlds. that makes me jump totorohn's last point which is the one i disagree with the most. i won't yield my opposition to some of those points you made under points one and two but leapin's rto the third point its perplexing to me that just as john said the most visible manifestation of government overreach that was u7 ustified and unnecessary which promotes the greatest outcry among

citizens is airport st veening which is perplexing because it is the tip of an iceberg. i fly a couple thousand miles the year and don't consider this -- i don't want to die as a result of a terrorist attack anywhere in particular on an airplane. i joined many security experts who said a lot of searches our security theaters designed to give people an illusion of security rather than actual security. what is more troubling to me are the many violations of our privacy and first amendment freedoms that are not being y bfficiently protested precisey because they are being carried out in set vcf1 o and most people are laboring under the illusion that if you are not suspected of terroriunj, huge not want to be

accused enemy combatants locked son in. uantanamo that you have nothing to fear. unfortunately nothing could be and srther from the truth becau the new surveillance powers that were unleashed post 9/torn starting with the patriot act including thanks to whistlonelowing and investiloste reporting was not the far reaching. overinnent y brveillae proeroam. we know there was a supersecret o omestic spl png p national security agency. what the aclu and bob barr and conserroutive organizations -- let me mention conservative citizens. rosons collaborating with the aclu and civil libertarians in looking at those f1 o omplaints including. unner's rights organizations and the eagle forum and americans for tax reformienthe american

conservative union to name just incs mw have concurred that the problem with these surveillance techniques is they. ive grs terinnent unchecked power t invade our privacy, intercept international telephone communications by american can citizens without suspicion of wrongd cf1 o ng. illelosl standard demands casually and loosely some basis for believing or y bspecting tht the intercepted communication cght be relevant to an ong cf1 o ng investigation. the role of the court in surveillance court has rounishe to the disappearing point.

we now know thanks to one revision that was made to the patriot act in one of its authoriclu tions the inspector general of the justice department has to do surveys and rlatorts on hr y these nc. pr have been used. report after report the inspector. eneral has concltune the so-called national security letter which. ives the fbi pr yr to certify on its own to demand records on its own without. cfo ng before any court that that has been subject to random abuse and e ne hat i am asking for with the diverse colleagues is very straightforwac. and simple, consistent with john's point that we have to enlosge in

f1 o ost-benefit balance in. no civil libertarian has argued freedom of speech and religion -xinwhat we insist on is what te constitution insists on. namely there is a prey bmption n favor of privacy and liberty and grs terinnent can oveerrome tha presumption only if it satisfied what we lawyers call strict scisatiny to show that the measures necessary to advance

national security. let's assume in the immediate aftermath of the terrorist attacks which were terrifying and infuriating, which did make all of us fearful of another attack, let's assume there wasn't enough time for analysis then. i will assume for the sake of argument congress was justified in rushing through the patriot act in 45 days with no hearings or debate. the time is long past to do what bob par -- bob barr called for which was before we can fix whatever problems led to this national security catastrophe we have to understand what the problems where. data analysis was not undertaken until long after words with bipartisan citizens', 9/11

commission did its analysis and also joined intelligence committees in the house and senate and their reports did not conclude, none of them concluded the problem had anything to do with lack of sufficient power to engage in surveillance to gather information. the analysis's problem was the failure was in lack of sufficient ability to put together lack of sufficient analysis of the information not only because of this notorious wall to which john has eluded but because of such basic problems as lack of sufficient translators, lack of sufficient computing capability, bureaucratic turf battles among different agencies. last week on the occasion of the tenth anniversary the bipartisan cochairs of the 9/11 commission

former new jersey governor tom keane, former indiana congressman lee hamilton, a democrat, issued a report in which they said what are the ongoing problems in terms of national defence? they named three problems of which the second of the three was insufficient analysis of the extent to which post 9/11 measures have unduly abused and shrunk privacy and civil liberties. they saw this as the second of the three major problems posed 9/11. why should we give up freedom and privacy if it is not necessary in order to advance national security? the other two major problems they noted and i couldn't be happier than anybody else. both of my institutional homes are within blocks of ground

zero. the aclu national headquarters and new york was coal 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. i am very fearful of what would happen. speaking on many panels not if but when there is another attack, because the other two conclusions of hamilton and cane is we do not have sufficient coordination among first responders locally at the scene of any catastrophe and we don't have adequate communication capability among first responders. those situations which and necessarily enhance the number

of casualties on 9/11 on not sufficient steps have been taken. likewise at the federal level face a various not sufficient coordination among multiple federal agencies that are responsible for national security. basic steps that have nothing to do with sacrificing civil liberties have not been taken where the necessary sacrifices have been made in terms of civil liberties. [applause] >> i am going to invite our panelists to engage in discussion with each other for a few minutes and we will open up for questions from the audience. please have your questions in mind. both of you have talked about significant steps either right or wrong that we took in response to the 9/11 attacks.

let me ask you to respond to the extent you wish to what nadine has mentioned. can you give more concrete examples of specific steps you feel have been in the wrong direction? >> thanks for that great presentation. >> can i bring that comment too? >> i won't say i wrote it. one lesson i learned from government. what i didn't hear is a claim that the president and congress were in disagreement. one thing you heard about the bush and administration was a lot -- unilateral executive acting on his own. look at the record. one thing that is clear the last ten years is congress pretty much supported lot of his

policies you are criticizing. the authorization to use military force which the court interpreted and congress passed the patriot act by a huge majorities and congress tried to strip the court's jurisdiction twice in guantanamo bay and congress supported warrantless wiretapping and changes to the surveillance act. one thing that change the law is you have president and congress in the agreement. in the last few years where president obama tried to change national policy, congress tried to react by cutting off funds to move anyone from guantanamo to the united states. a more direct response to the point of privacy there is an important legal aspect and policy aspect. the policy aspect is warrantless

surveillance program serves as the -- under criminal justice approach you need to have probable cause at a specific target, someone that may have committed a crime or about to commit a crime but give that to a judge. that is different from the war approach where you have an enemy and try to intercept all their communication to figure out what target they will try to attack and what their tactics and strategies are. think of what happened after 9/11 when we were confronted with this problem. after 9/11 we knew the attack the originated from afghanistan from the al qaeda terrorist organization but we didn't have warrants for every member of the organization. it seemed as a policy matter you want to put an electronic net around afghanistan and intercept every e-mail going in and out of

afghanistan because that is where we knew al qaeda was. if that is the best way to gather intelligence that is incompatible with the criminal-justice approach of building a file and getting a warrant. you are trying to sift through billions of communications to try to find those needles in a haystack. if you return to this approach you won't be able to fight a war against this and effectively. the legal underpinning is one of the reasons because in work you have signal intelligence trying to intercept communications of the enemy and we don't think of the need for war in different judges. last thing i will say about the privacy issue and warrantless surveillance is i understand the concern that the government is doing this in secret.

we now have two administrations in charge of this. as far as i know the inspector general's horrid -- congressional hearings have not produced any cases were made allegations where the executive branch is abusing the information it got from surveillance which is a reason we had the law in the first place to take that information against political enemies or embarrass people in public. the professionals and intelligence agents have been scrupulous in how they use the information. there is a possibility of invasion of privacy but i don't think even though the programs have been leaked there hasn't been any cases yet of that happening. >> interesting point. to your first point, what you see as positive, that two

branches of government have gained up on civil liberties across two administrations and political parties and i throw in for my chapter the third branch of the federal government also has caved in on civil liberties. that may do away with the separation of powers problem. i don't think so because i think it shows there have been insufficient attention particularly by congress has not served its oversight function. one of the conservatives that i missed who was such a strong civil liberties advocate on these issues until the day he died was william safire and i remember in one of his columns including these surveillance programs he said what congress has been engaging in should be called a undersite, not oversight. i explained in my chapter why

the courts have been doing too little too late. even assuming for the sake of argument there were no separation of powers checks and balances problems, that still would not reduce my concern about the civil liberties violations. to and force the fourth amendment basic privacy concept, basic limitations on government power to engage in search and seizure there's no wartime exception to the fourth amendment and no national emergency exception to any constitutional right or provision with the sole exception of the suspension caused which allows congress to suspend the writ of habeas corpus in certain specified emergency situations. that point was stressed by an ideological bedfellows standing

up for civil liberties in the opinion by antonin scalia and john paul stevens they expressed that our framers that a time when our nation was very fragile and our national security was far more in danger and jeopardy's and it has been since sept. eleventh despite the aura effect nature of those attacks the framers made a deliberate decision not to make a general wartime or national security exception to our individual rights. moreover i believe the 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. what we have been doing since 9/11 is adding more and more hay far as to the stack which makes it much harder to find that terrorist needle. that is a complaint that has

been made by fbi agents. others complained vociferously about overwhelming mountains of communications coming in to them which they say don't have the ability to process through all of them. likewise the data mining program has been criticized by intelligence experts and security experts and this is based on junk science. the notion that somehow we could find patterns. instead the fourth amendment by requiring some individual suspicion, some judicial second-guessing designed to protect personal privacy and also to be sure that our precious resources, limited national resources are intelligently and strategically

targeted where there is basis for suspicion. i don't think there is a dichotomy between using a work paradigm or criminal justice paradigm. 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 terror 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. we are trying to draw those distinctions. in your chapter in the book you refer to the fact that the aclu and the center for constitutional rights have brought a lawsuit challenging

the president's alleged power to engage in targeted killings. you have some perspective. one final point. john is taking the position that too many courts have taken in assuming your fourth amendment rights to privacy are not violated unless or until the unconstitutional privacy invading information communications 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 you have a right of privacy, to be free of government interception and the aclu has gone to court arguing that there's a concrete harm even if we don't know that the information is being used.

the mere fact that you believe your subject to governments' buying has a chilling effect on communications. our clients in those cases include researchers who do work on terrorism or in countries where terrorism is rampant. include journalists who have written about the war on terrorism and lawyers who are defending people accused of terrorism. they can demonstrate their resources and communications have dried up because of reasonable fear of violating privacy rights in not only the first amendment communications rights but also the first amendment right of we the people to get vital information about what our government is doing in our name. >> to give equal time, do you

have a rebuttal? >> very briefly i don't want to be misunderstood in saying of the fourth amendment only protect you from this use of information. it protect you from the surge. applies differently in war. no court said you need a warrant to conduct surveillance of the military component in wartime. the fourth amendment process works for criminal targets by a law-enforcement. traditionally in wartime the government has intercepted communication of enemy without judicial warrant going back to abraham lincoln trying to intercept telegraphs. it was never thought he would need to get a warrant from a judge to conduct that kind of interception of electronic surveillance. >> time is moving along. let's open up to questions from

the audience. in the front row here. please identify yourself and ask your question. >> you are always first. >> speaking for myself and not the cato institute and just want to pick up on this last point john made. drawing the distinction between war and ordinary law enforcement. is it your view that we could have used the law enforcement model right from the beginning after 911? i raised that because the fourth amendment contemplates an ex post approach to law enforcement wears -- to keep the event from happening in the first place.

that is why we have drawn this distinction that allows us to do that. however imperfect it may be it enables us to try to find that needle in a haystack as a judge from the seventh circuit said the problem is not so much monitoring known terrorists but trying to determine who is the terrorist in the first place especially when dealing with such things in this country. >> roger is descending from many of the critiques i made. thank you for giving me the opportunity to repeat that aclu has never taken a blanket position on wartime powers including to intercept. interesting that john referred

to enemy communications nor have we insisted as some pundits people captured on a battlefield. what we object to with some support from the supreme court in the detention cases is converting this country and the entire world into a battlefield, extending not only the power under the pfizer act to communications by american citizens with in this country but removing the court altogether from some of these surveillance powers. if you look at proposals the aclu has made including the most recent set of proposals on surveillance came out last year in connection with the renewal of patriot act powers but we use

that as an opportunity to critique surveillance in general. we were making what i consider modest proposals designed to effectuate national security as well as individual privacy concerns. that is to have some judicial checking mechanisms, to take away the unilateral power of government to say trust us, we are going to engage in these dragnet sweeping surveillance. second to have more of a tight direct cause old naxos between the network and a terrorist threat. the concern to site a cliche, extraordinary dangers warrant extraordinary powers. what has happened is what had been extraordinary and exceptional is extending too

vastly over communications with several degrees removed from the terrorist problem. that is one of the themes that echoes through the inspector general reports. now that the information that was intercepted was being aired in appropriately, it was too far removed from the terrorist threat that was said to justify this power. >> your comments? >> i want to add something to roger's question. not just the war on crime which is important but the nature of the enemy is different. it is easier to apply electronic surveillance with no warrants with an enemy located in one country with regular armed forces fighting in the open. the other problem after 9/11 is an enemy that doesn't fight by rules so they disguise themselves as civilians to launch surprise attacks on

civilian targets without warning. and they piggyback their activities on things that appear to be innocent activity like travel and communication. the problem in terms of military surveillance is you would be making it harder to survey them because they don't follow the normal rules of war if we were to require judges and warrant based approach. the second thing is even with those problems the other branches are trying to maintain some level of judicial scrutiny. i will know the appeals court upheld the patriot act in winter of 2002 and point to this distinction. this is a military intelligence gathering and the president's constitutional authority and

congress's renewal and approval of the warrantless surveillance program approved by federal judges too. because we are fighting this covert war our government doesn't want to reveal too much in public that we give al qaeda an advantage in defeating tactics to survey them. it is not a problem to governor -- cover government misdeeds but people are conscious if you reveals something in public al qaeda is resourceful and try to pick up on anything we are doing and respond which is why after it was leaked after the first world trade center trial that we can intercept osama bin laden's cellphone he stopped using cellphone within 48 hours and never used them again. the government is worried about making that mistake for revelation a second time.

>> down here. [inaudible] >>y two references to prohibiting intelligence agencies from sharing information. in what law or regulation or supreme court decision did this come? >> that refers to something the court and the justice department cooperated in building. they said the statute requires a certain standard to get a warrant. because of the way it was phrased not to get too technological was the purpose why you are trying to get the surveillance. the justice department with orders -- if you get something from law enforcement you should give it to intelligence agencies or if you get a warrant and get

information under fiza you should not give it to law enforcement unless you think someone is about to commit a crime. what was striking is it was never reviewed by the supreme court. it was career prosecutors in the justice department. the second thing, this wasn't just a 9/11 change. the clinton administration also wished to change back after the oklahoma city bombing. something the justice department knew about but not until the 9/11 attacks that the cost of that law were brought on people. >> i want to agree with the first part of what john said. i also have seen testimony from

expert law enforcement in the attorney general of more than one administration saying it was not a lot -- the law that was the problem but the way it was misinterpreted which had to do with a cultural problem within the organization. remember colleen raleigh's whistle-blower complaint to director miller? she was begging for the authority to wiretap zacarias moussao moussaoui's laptop. she said she had that authority and she blamed bureaucratic ineptitude and fear of taking action. that is important because those cultural problems i take as our critique, those problems persist. >> in the front row.

>> it was the humphrey case that set up the wall. when i was in the reagan justice department, before that gw a 47. we had to take down fiza cap because they said it has become a criminal case and it is illegal to keep any tap up. >> 9/11 show you couldn't maintain that distinction because it was built on this idea from the cold war that foreign national-security threats would be from abroad and it was primarily criminal and

what 9/11 showed was the enemy could infiltrate the country and planes were hijacked in the united states. when you can cross the border to carry out attacks, that distinction between foreign down. >> this was in the 1980s anti-black -- piggyback -- there was an incident.

was these people at the justice terrorist organization that one could identify so they could get a warrant. her whistle-blower in was against the law. >> nice to see you again. the point you make cuts the other way and has been made by many critics of the patriot act which is there was an opportunistic taking the advantage of people's willingness to do anything that might fight international terrorism and al qaeda to give the justice department powers they had been seeking forever not only to deal with terrorism but garden variety crime. information indicates these far reaching patriot act provisions had not been used to fight international terrorism but in garden variety criminal cases including the ongoing war on drugs, fraud and so forth.

i want to move beyond electronic surveillance. we don't have enough information. the cloak of secrecy that deprived congress of sufficient information to gauge how these powers are used. we do have information about other surveillance powers the government has been using post 9/11. i want to get back to that because it goes to john's third point about how freedom of speech is thriving. police surveillance, department of defense and federal agencies engaging in surveillance of citizens' groups that are exercising first amendment freedoms. the aclu did report about this

in which we compile the information we 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 surveillance activities have been documented. no threat or evidence of any potential connection to al qaeda or any terrorist organization. in alphabetical order some organizations subject are american indian groups, arab muslim and released in groups, bookstores, civil-rights and dividends rights, animal rights, media, peace groups, political party, right wing and conservative groups and and i police groups. we testified before congress about these powers and he was