so, michael moore, thank you for being on "in depth." we appreciate it. >> guest: thank you so much for having me. thank you for c-span, so fortunate for our nation to have this network, and have booktv, to encourage people to read. it's our best defense against ignorance. thank you tran with this program airs at midnight. ..

>> our internet viewers are welcome to send questions or comments at any time. speaker at&t heritage.org, hosting our discussion this afternoon, mr. meese is our ronald reagan distinguished physicalow in public policy and chairman of our center for legal and judicial studies and served ronald reagan as the 75th 75th attorney general in the united states. join me in welcoming ed mees. mr. meese? >> thank you, john, and thank you, ladies and gentlemen. we have been over the last week celebrating or commemorating is a better term -- the events of the 11th of september 2001. it was the first attack on a city or cities, actually, in the

mainland of the united states, since the war of 1812. it was a -- perhaps one of the most traumatic events in the lives of many of the people that are here to me it ranks with an event that i was witnessing as a younger person, pearl harbor. but it caused a tremendous burden to fall on our law enforcement agencies, on our first responders, the fire services and so on. it was obviously a tragic event for so many families in this country, and i think that every citizen that felt this personally in one way or another, if not -- nothing more than observing what went on, on television, for those fateful hours. but it also had a tremendous impact on our legal system, and on our judicial system and that's something that is still

going on today, as many of the issues that began on the 11th 11th of september, 9/11, continue today to be lit gated -- lilt -- litigated in the courts, and one of the important contributions contribl scholarship is the book that we're talking about today, confronting terror, 9/11 and the future of american national security. which has essays by leading voices in law and policy. it was edited by dean rueter, and john yoo, one of our speakers today, and we have in our audience both dean rueter and one of the contributors to the book. would they stand and let's commemorate them being here. [applause] >> our first speaker today will

be -- and our speakers will speak briefly because we want to open is up to discussion among them and the audience as rapidly as possible. our first speaker is john yoo. john is a professor of law at the university of california at berkeley. the school of law there. he is received his own education, his bachelors degree, summa cum laude di, in american history from harvard university. he served a period of time between college and law school as a newspaper reporter here in washington, dc. he then went on to yale law school, where he received his jad and articles editor of the yale law down. he served in all three branches of the federal government. he was a clerk for a judge of the united states court of appeals for the district of columbia. he was also a clerk for subsequently for justice clarence thomas on the united

states supreme court. in the legislative field, he was a general counsel of the senate judiciary committee, and as an executive branch member, he served as a deputy assistant attorney general in the office of legal counsel at the united states department of justice. and his issues there where he work were primarily involving foreign affairs, national security, and separation of power, but particularly where he was a very key member of the office of legal counsel in dealing with the issues related to national security and particularly the attack on 9/11. professor yoo has been a visiting professor at several law schools and has received numerous fellowships and awards and honors during his career. he is a visiting scholar at the american enterprise institute, and has received the paul bader award for excellence in local scholarship and teaching from the federalist society for law and public policy.

he has also testified before the jew dish committees of the senate and the house, and has advised the state of california on constitutional issues. he is the author of three books, "the powers of war and peace. the constitution and foreign affairs after 9/11. wow wow, "war by other means "and "crisis in command" the history of executive power from george washington to george bush, join me in welcoming professor yoo. >> shame on heritage foundation. you don't deserve to be here. you are wrong. ten years later america is undermining civil liberties. how dare you even be here in public. get out of here and shame on you.

heritage foundation. [applause] >> i was just going to say the speaker just speaking does not represent the heritage foundation. >> i'd like to thank ed, who is a graduate of berkeley law school, for making me feel at home. [laughter] >> brings back some of his own memorieses of his time at berkeley as well. i want to thank you for inviting me to speak and for arranging this panel, and i'd really like to think thank nadine -- strossen. i couldn't think of a better way to think back on the last ten years, and as general meese

said, commemorate what we have been through and look towards the future of national security policy. i want to be very previous, and i look forward to hearing what nadine has to say. looking back at the last ten years and draw three lessons. the most important lesson is that the most important thing that happened in the united states in the last ten years was nothing. the last ten years never saw another successful terrorist attack in the united states. and one -- i think the most important question to ask is, why, and whether it was worth it. to me, the most important decision was one that president bush made as commander-in-chief and chief executive under the constitution on the night of 9/11, which was to treat the 9/11 attacks as an act of war. i think the way we thought about it in the justice department at that time was that if any country had attacked news the same way on september 11th as

al qaeda did, no one would have had any doubts that we were at war. so, the only difference was al qaeda was not a nation state, and the important legal and constitutional issue was, could we be at war with a nonnation state? and i think president bush made that decision for the country that night. that was an important decision because once you make that call, then the united states can turn to the laws and rules of warfare, to deal with al qaeda and the threat of terrorism. all of those, i think, were on display not just in our invasion of afghanistan, the use of troops and drones to wipe out much of al qaeda's existing leadership at the top on 9/11, and also was put fully 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 in the last two and a half years.

there we saw intelligence provided by people who didn't get detained under the laws of war, electronic surveillance producing more intelligence, all pulled together to locate where bin laden had been hiding, and then the you of military force to go out and kill him. under the rules of the criminal justice system, which administrations of both political parties had used in their approach to terrorism before 9/11. we would have instead invited osama bin laden and send out people to try to arrest him after he had committed a crime. so, they switched to the approach of war made our policy 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, and also helps to us look forward, is after 9/11, we treated intelligence and information

differently. we tried to broaden the scope of intelligence available and to deepen it. so to take one example, before 9/11, because of civil liberties concerns -- which were quite valid at the time they were nut place. we intentionally prohibited or intelligence agencies and law enforcement agencies from sharing and communicating information. if you raved the 9/11 commission report carefully, some of the commissioners believe that wall was actually instrumental in preventing us from identifying two hijackers known by the cia to be in the country before 9/11. things like the patriot act, enhances interrogation of three top al qaeda leaders, enhanced electronic surveillance all allowed us to gather more information but pulling down that wall between law enforcement and intelligence allowed to us analyze that information more effectively. that was tied to the ability to use force, to wage war more

quickly and surgically than ever before. so, between, i'll use the osama bin laden operations as an example. that was a brilliant military operation in which i think all americans were proud. what people don't realize is that the military now carries out operations like that every day. in afghanistan. and iraq. think about just 1980. jimmy carter could not carry out even one operation like that. our military has been changed and trained to be able to capitalize on intelligence almost immediately on a daily basis and that's something that could not have happened in 2001. >> the third lesson -- i suspect this is where -- nadine, i think, and i agree on some things like speaking from a panel rather than a lectern, and we're going disagree about civil liberties. i think the third thing is that the predictions there would be

this civil liberties catastrophe because of the war on terrorism turned out not to be accurate. i think people could reasonably have that fear at the beginning because of the civil liberties problems we have seen in past wars, the civil war, world war i and world war ii, saw infringements on personal liberty, on free speech. we didn't see things like that. what i would say is in the last ten years, political speech and political activity actually blossomed. you don't need to see four people in funny outfits in front of the heritage foundation to prove it. i would say, i don't draw them out like i used to, and you certainly don't draw them out like you used to. general meese said to me, how many protesters, i think someone said four. he said, four is almost an insult. [laughter] >> he -- i think in the last ten years, it's not because of anything the government did, because of technology, because of social media, twitter, all

kinds of -- political speech has explosioned in the last ten years, and the results you see all around us and maybe the most important one is in how contested our political elections are. elections are the most important check on any abuse of power. think about what we have seen in ten years. we've seen the presidency switch hand between political parties, seen the senate switch hands twice and the house has switched several times during the last ten years. so we have seen the most important -- the most important means to checking any infringement on civil liberties is you need political speech in order to operate and a great improvement in exclusion of rights rather than now. we all do have to suffer some accommodation to security. we all see it mostly at the airports. but i think the thing to ask is

if the airport searches are the things that bother people the most about the balance between civil liberties and national security, isn't that actually somewhat reasonable? the kinds of searches we see at the airports when you look at the benefits, and in closing, how does the benefits of the last ten years, the fact that no attack has occurred, been worth those costs? so, thank you very much. [applause] >> thank you, john. our other member of the panel there is professor nadine strossen, a professor of law at new york law school, and one of the nation's leading experts really on the subject that we're talking about today, constitutional law, civil liberties and international human rights. from 18991 through 2008, she served as president of the american civil liberties union.

she what's first woman to hold that position, and did an excellent job of leading that organization. she is now a member of aclu's national advisory council. professor strossen has made literally thousands of public presentations before dye -- die veers audiences. she was the most active of officers at the aclu in going around the country and talking about civil libertiesed. i had the privilege of being on a number of presentations with her over the years and enjoyed them very much, and she also was in defatiguable in meeting with chapters of the aclu as she went around on speaking tours. she has also spoken in many foreign countries. she made over 5,000 campus appearances, if i understand correctly. her writings have been published in many scholarly and general interest publics. she has more than 250 published

work and two books, one entitled "defending pornography," and another titled holiday pate speech, civil rights and civil liberties." she has received numerous awards and honorary degrees and was selected as both the it's jay see's, one of the ten outstanding young americans award, and the jay cee outstanding person of the world award. she graduate. identify -- identify beta kappa and mag in cum laude diof the harvard law school. join me in welcoming nadine strossen. [applause] >> thank you so much, ed, and it's really nice to have a reunion. ed was my most frequent sparring partner on countless topics

because we disagreed on just about everything, with one exception, and the exception i just want to briefly note because it's relevant to the incident that happened here, freedom of speech. ed and i have always agreed to defend freedom, even for controversial expression, which from some perspectives includes john yo o's con crow very shall lieus and i'm sorry i would have told the protester, a a poster with your views would have been protected. when i was invited to share the podium with both john and ed, i immediately wrote back an e-mail and said, two to one isn't exactly fair. whereupon i have an e-mail from are in yoo -- i am going to

frame this. it says, nadine, i don't think you could ever be out matched by the two of us. seriously, i'm very happy to have participated in the books that john and dean edited, and one of the things i want to flag at the beginning is as the book illustrates, the questions about security and freedom post-9/11 are not questions that survive the test or government officials along ideological or partisan life. from the echo when the acu flamed our safe and free campaign, emphasizing that one does not have to give up liberty in order to advance security and, conversely, that giving up

liberty is not even always effective and often can be counterproductive to the essential goal of protecting national security. from the beginning, we have worked extremely closely with some of the most conservative government officials and citizens organizations as well as some of the most liberal. one of the reasons the aclu has been stomply nonpartisan is that violations of and support for civil liberties cross all party and lines. the book demonstrates what i'm saying. in addition to my piece and anthony romero from the american civil liberties union, i think the most hard-heth piece denouncing why unnecessary, unjustified violation of visual liberties as being counter to national security was authored by former congressman bob bard, who was a republican member of congress from georgia, who had worked with the cia and been a

united states attorney before going into politics. so, from his perspective, of law enforcement and intelligence, he, too, has denounced many of the post-9/11 measures as being the worth -- worst of both worlds and that makes me jump ahead to john's last point, which is the one i disagree with the most. i'm not going to yield my opposition to some of the points you made under points one and two. but leaping ahead to the third point. it is kind of perplexing to me as a staunch civil libertarian that the most visible manifest stationation -- man fessation of government overreaching that is unjustified and has provoked the greatest outcry among citizens us airport screening and searching. it's perplexing to me because

it's just the tip of an iceberg. i fly a couple hundred thousand miles a year. i don't consider -- i don't want to die as a result of a terrorist attack anywhere in particular on an airplane, but for -- i join the many security experts who have said that, unfortunately, a lot of those searches are security theaters. they're designed to give people an illusion of security rather than actual security. but what's more troubling to me are the many violations of our privacy and of our first amendment freedoms that are not being sufficiently protested precisely because they are being carried out in secret. and, therefore, most people are laboring under the illusion if you're not suspected of terrorism, not one of the accused enemy combatants looked

up in guantanamo, that you having in to fear. unfortunately nothing could be further from the truth, because the vast new surveillance powers that were unleashed post-9/11, starting with the patriot act, including as we now know, thank whistle blowing and investigative reporting, was not even the most far-reaching government surveillance program. we know now there was a supersecret domestic spying program by the national security agency. what the aclu and bob barr and consecutive organizations -- let me mention in this us aend the conservative citizens groups who collaborated with the aclu in making these complaints, include gunners rights organizations, phyllis schlafly, americans for tax reform, the american conservative union to knick name

just a few, all have conferred that the problem with these dragnet surveillance techniques is that they gave government unchecked power to invade our privacy, to, among other things, intercept international telephone communications, e-mail communications, by american citizens, without any suspicion of any wrong-doing whatsoever, to be very precise, the legal standard now simply demands that, very casually and loosely, that be some basis for believing or suspecting that the intercepted communication might be relevant to an ongoing investigation. the role of the courts, even the supersecret foreign intelligence surveillance court, has vanished to the disappearing point. we now know, thanks to one revision that was made to the

patriot act in one of its reauthorizations, the inspector general of the justice department has to do century x-rays reports on how these new powers have been used. in report after report, the inspector general has concluded that the so-called national security letter or nsl power, which gives the fbi power to certify on its own, do demand records on its own without going before any court, that has been subject to rampant abuse and misuse. now, what i am asking for, along with these very diverse colleagues, is something very straightforward, very simple, consistent with john's point, that we have to engage in a cost benefit balanceing.

i completely agree with that. no civil libertarian has ever argued that freedom of speech, freedom of religious, privacy, are absolute rights. rather, what we insist on is what the constitution itself insists on. namely that there is a presumption in favor of privacy and liberty, and government can overcome that presumption only if it satisfies what we lawyers call strict scrutiny. to show that the measure is actually necessary in order to advance national security. national security certainly is a compellingly important goal, but just because a measure is labeled as being for the sake of national security -- and i don't question -- i will not question the good faith of government officials who believe that these measures might be effective in promoting national security, but a belief is not enough. okay, let's assume for the sake of argument ten years later that

way back in the immediate aftermath of the terrorist attacks, which were terrifying, which were infuriating, which did make all of us reasonably fearful of another attack, let's assume that there wasn't enough time for analysis then. i disagree with that but i will assume for the sake of argue. congress was justified in rushing through the patriot act in 45 days with almost nor hearing or debate. the time is long past due to do what bob barr called for them in this role as a member of congress, and that is before we can fix whatever problems have led to this national security catastrophe, we have to understand what the problems were. and that analysis was not undertaken until long afterwards when the bipartisan citizens, 9/11 commission, very respected, did its analysis and also the

joint intelligence committees of both the house and the senate, and their reports did not conclude, none of them concluded, that the problem had anything to do with lack of sufficient power tone gauge in surveillance, to gather information. rather, the analysis had to do -- the analysis was that the failure lay 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 alluded, but also because of such basic problems as lack of sufficient translators, lack of sufficient computing capability, bureaucratic turf bat until the different agencies. last week on the occasion of the tenth anniversary, the bipartisan coe -- co-chairs of the commission, tom keen,

republican, lee hamilton, a democrat, issued a report, they wrote a series of op eds in which they said what are the ongoing problem wes have in terms of national defense. 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 evaded and shrunk privacy and civil liberties. they saw this as the second of the three major problems post-9/11. why should we give up freedom and privacy if it's not necessary in order to advance national security? the other two major problems they noted, biffle -- by the way, and i couldn't be happier than anybody else. both my institutional homes are within blocks of ground zero,

the aclu national hawks and the new york law scamp i lost friends, including a new york firefighter who as an active aclu leader as well, in that catastrophe. could i not be happier that we have not suffered another attack. however, i am very fearful of what would happen -- and i have to say, speaking on many panels with many national security experts, not if but when there is another attack, because the other two conclusions of messers hamilton and keen, were that we still do not have sufficient coordination among first responders locally, at the scene of any catastrophe, and we still don't have adequate communication capability among first responders, and those situations, which are unnecessarily enhance the number

of casualties, they say not sufficient steps have been taken, and at the federal level they say there's not sufficient coordination among multiple federal agencies that are responsible for national security. so, basic, basic steps that have nothing to do with sacrificing civil libertiesed have not been taken, whereas unfortunately unnecessary sacrifices have been made in terms of civil liberties. [applause] >> i'm going to invite our panelists to engage in a little discussion with each other for a few minutes and then we'll open it up for questions from the audience. i think both of you have talked about the significant steps, either right or wrong, we took in response to the 9/11 terror attacks. let me ask you, john, to respond

to the extent you wish to what nadine mentioned, and nadine, can you give more concrete examples of significant steps you feel have been in the wrong direction. john? >> thank you, general. thanks, nadine, for that great presentation. first i -- >> can i frame that comment, too? >> you can but again i'm not going to say i ever wrote it or signed it. one lesson i learned from government now. i guess one thing i just like the point about nadine's description of the last ten years. what i didn't hear, i didn't hear the claim that the president and congress were in disagreement. i think one thing you heard about the bush administration or the claim was that you had a unilateral executive acting on its own, and i think we actually look at the record, one thing that does come clear in the last ten years, and certainly in the last two years, is that congress, every chance it had, supported his policies that

you're criticizing. so the authorization for the use of military force, which is thability to detain, congress passed the patriot act by huge majorities. a congress actually tried to strip the courts over habeas corpus over guantanamo bay, and congress supported tapping, so one thing that has changed in the last ten years is you have a president and congress pretty much in agreement. in fact if anything in the last two years, where president obama has tried to change national policy off sort of war approach, which i described in congress has actually tried to react by trying to stop him, by cutting off funds to move anyone from guantanamo bay into the united states, for example. more directfully response to anyway deep's -- nadine's points about privacy. the policy aspect is i think that the warrantless surveillance program serves as a

good illustration of the difference between crime and war. anywhere a criminal justice approach you need to have probable cause a specific target is someone that may have committed a crime or is about to commit a crime, and you have to give that proof to a judge, and that judge issues a warrant. that's very different this the war approach. the war approach, where you have an enemy, and you try to intercept all their communications so you can figure out what targets they're going to try to attack, what they're tactics and strategies are. you think about what happened immediately in the days after 9/11 when we were confronted with this kind of problem. after 9/11 we new the attacks originated from afghanistan but from the al qaeda terrorist organization. but we didn't have warrants, and files for every single member of the al qaeda terrorist organization because we didn't know who they were. as policy matter what would you want to do is put it a net around afghanistan and intercept every phone call and e-mail going into and out of afghanistan, no matter where it was going.

that's where we knew al qaeda was. if that's really the best way to gather intelligence on an enemy, i would say that's fundamentally incompatable with the criminal justice approach of building a file for a tarring, getting a warrant. you're trying to sift through billions of communications because of the new technology to try to find those needles in a hay stack. so i think if you do return to this approach, you won't be able to actually fight a war against this kind of enemy effectively. i think the legal underpinning, it's about war, and in war you have intelligence, trying to intercept the communications of all the enemy, and we don't really think about the need for warrant or for judges. if it's military signals intelligent another thing about the privacy issue and warrantless surveillance. i certainly understand the concern that the government is doing this in secret. at the same time we now have two administrations of different

political parties that have been in charge of this and have been doing it and as far as i know, inspector generals or the executive branch or congressional hearings have not produced any cases or made allegations where the executive branch has been abusing the information it got from a surveillance to do what nixon did, which is why we had the law in the first place to try to take that information and use it against political enemies or leak it to embarrass people in public they're professionals in our intelligence agencies have been scrupulous in how they use this information. so there's the possibility of invasions of privacy and harms but i don't think that even though the programs have been leaked and there have been a lot of investigations, there hasn't been any cases yet of that happening. >> very interesting point. so, to your first point, john, it's so interesting what you see as positive -- namely, that two branches of government have a

gang up on civil liberties across two administration two different political parties and i throw in from my chapter in the book, the third branch of the federal government 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 has been insufficient attention, particularly by congress has not served its oversight function. one of the consecutive conservatives that i miss, may he rest in peace, who was such a strong civil liberties advocate on these issues until the day he died, was william saphire, and i remember in one of his columns, including about some of these surveillance programs, saphire said, what congress has been engaging in should be called undersight, not oversight. so, -- i explain in my chapter why the courts have been doing too little too late as well.

unduly did he everring to the executive branch of government. even assuming for the sake of argument there were no separation of powers checks and balances problem, that still would not reduce my concern about the civil liberties violation at stake. and again, to enforce the fourth amendment's basic privacy consents basic limitations on government power to engage in search and seizure, john, there's no wartime exception to the fourth amendment. there's no national emergency exception to any constitutional right provision, with the sole exception of the suspension clause which allows congress to suspend the writ of habeas corpus in certain specified emergency situations. that point was stressed by another ideological odd bell fellows coalition standing up

for civil liberties in the hamdy case in the opinion by scalia and stevens, they stressed the importance of the fact that our framers, at a time when our nation was very fragile, when our national security, i submit, was far more in danger and in jeopardy than it has been since september 11th, despite the horrific nature or 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 that the fourth amendment, among others, is well designed to protect national security as well as personal security. john used the metaphor of a need until a haystack. what we have been doing since 9/11 is adding more and more hay to the stack, which makes it much harder to find that terrorist needle, and that is the complaint that has been made

by fbi agents, as you know, john, among others, have complained about overwhelming mountains of communications that intercepted communications that are coming into them. which they say are deluging, they don't have the able to process all of. the likewise, the data minding program has been kris sized -- criticized by intelligence experts and security experts and saying that this is based on some kind of junk science. the notion that somehow we can find patterns. instead, the fourth amendment, by requiring some individualized suspicions, some judicial second-guessing, is designed not only to protect personal privacy but also to be sure that our precious resources are limited national security resources, are intelligently and strategically targeted where there is basis

for suspicion. john, i don't think that there is a dichotomy between using -- an either/or tec betweening a war paradigm or criminal justice paradigm, and the devil is in the details and what the aclu and others have been critiqueing is the notion that we are in a perpetual global war on terror that converted the entire world, including our country, far away from any battlefield, into a place where the president and others may use wartime powers. so we are trying to draw those distinctions, and i know, john in your chapter in the book, you did refer to the fact that the aclu and the center for constitutional right have brought a lawsuit challenging the president's alleged power to

engage in targeted killings. i think you had some sympathy, at least from some perspective, and then just one final point. john is taking the position that unfortunately too many courts have taken, in assuming that your fourth amendment right to privacy are not violated unless or until the illegally unconstitutionally privacy invading information and communications that has been seized from you is used or misused against you. leaked into the public domain, used in a prosecution. some of us believe that you have a right to privacy to be free from government interception, and the aclu has gone to court arguing that we have standing, that there is a concrete harm even if we don't know that the information is being used, that the mere fact that you

reasonably believe you're subject to government spying, has a demonstrable chilling effect on communications, and our clients in those cases, included academic researchers who do work on terrorism, or in countries where terrorism is rampant, journalists who have written about the war on terrorism, include lawyers defending people accused of terrorism, and they can demonstrate they're sources have dried up because there's a fear of interception, thus violating privacy rights and not only the first amendment communications rights of those who are chilled, but also the first amendment right of we, the people in a democracy, to get vital information about what our government is doing in our name. >> in order to give equal time, john, you have a rebuttal?

>> just very briefly. i don't want to be misunderstood in saying that the fourth amendment only protects you from misuse of information. it does definitely protect you from the search. my point was that the fourth amendment applies differently in war, which is why no court has ever said you need to get a warrant to conduct surveillance of military opponent in wartime it's just that the fourth amendment's warrant and justice process works by criminal enforcement but in wartime the government has intercepted the communications of enemy without judicial warrants, going back to abraham lincoln trying to intercept the telegraphs. so, it's never been thought you would need to get a warrant from a judge to conduct that kind of interception of electronic surveillance in war. >> i notice our time is moving along so at this point let's open it up to questions from the audience. okay. in the front row here.

first? >> please identify yourself and then ask your question. >> you're always first, roger. >> thank you. i'm roger from the kato, speaking for myself, not kato. i want to pick up on the last comment john made, drawing the distinction between war and law enforcement. is it your view, nadine, that we could have used the law enforcement model right from the beginning after 9/11? and i raise that because the fourth amendment generally contemplates an ex-post approach to law enforcement. war is an approach to keep the untoward event from happening in the first place so in the case of terrorism. that's i think why we have drawn

this distinction that allows us to do data mining, however imperfect it may be, could ate least enables us to try to find that needle in the haystack as riched posed from the seventh circuit says the problem is not so much monitoring known terrorists, it's trying to determine who is a terrorist in the first place, especially when you're doing such things as -- >> and roger is dissenting from some splendid reports rent by the kato institution, that have many of the same critiques i made, and thank you, roger, for giving me the opportunity to repeat the aclu has not taken, never from the beginning has never taken a blanket position that some wartime powers, including to intercept -- it was interesting that john referred to enemy communications.

nor have we encysted, as some pundits have distorted our position that you have to read miranda rights to people who are captured on the battlefield. what we object to, with some support from the united states supreme court and the detention cases, as you know, roger, is converting this country and the entire world into a battlefield, extending the -- not only the power under the fisa act, to communications, by american citizens, within this country, but indeed, removing the fisa court altogether from some of these surveillance powers. if you look at the proposals that the aclu has actually made, including the most recent set of concrete proposals on surveillance came out last year in connection with the renewal of patriot act powers, but we used that as an opportunity to

critique surveillance in general. we're making what i consider to be very mod test proposals that are designed to effect wait national security as well as individual privacy concerns. and that is to have some judicial checking mechanism, to take away the unilateral power of the government to just say, trust us, we know what we're doing, we're going engage in these dragnet sweeping surveillance. second, to have more of a tight direct causal nexus between the nature of the communication and the terrorist threat. the concern, obviously, to cite a cliche, extraordinary dangers would warrant extraordinary powers, but what has happened now is that what had been extraordinary and exceptional is extending far too vastly over far too many communications that

have several degrees removed from the terrorist problem, and that is one of the themes that echoed through all of the inspector general reports. not that the information that was intercepted was being aired inappropriately. publicly, but that it was too far removed from the terrorist threat that was said to justify this extraordinary government power. >> i want to add something to roger's question. it's not just the war on crime, which is the nature of the enemy is different. so, think it's easier to apply an electronics surveillance when you have -- the other problem after 9/11 is that an enemy that doesn't fight by in the 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 civilians, like travel and things like that. so no term0s of military surveillance, you would actually be privileging them, making it harder to surveil them because they don't follow the normal rules of war if we were required to use judges and warrant, based approach to intercepting. the second thing is, even with those problems, the other branches have tried to figure out a way to maintain some level of judicial scrutiny. so i just note that the fisa appeals court did uphold the patriot act, after a challenge bill the aclu in the winter of 2002, and pointed to this distinction. this is military intelligence gathering that's per -- permit bid fisa and the patriot act and by the president as commander in chief, and congress' renewal of the fisa acts and its approval of the warrantless surveillance

program has to be approved as a program in whole by federal judges, too. so, the problem is that because they're fighting this covert war, our government doesn't want to reveal too much in public that would give al qaeda an advantage, and defeating the tactics being used to surveil them. so i don't think it's a problem to cover up government misdeeds. the problem is people are conscious if you reveal something in public, al qaeda are very capable and resourceful and try to pick up on anything we're doing and sons to it, which is i would, after it was leaked during the first world trade center trials, that we had the ability to intercept osama bin laden's personal cell phone, he stopped using cell phones within 48 hours and never used them again. so i think the government is worried about making that kind of mistake through revelation a second time. >> down here. >> thank you.

now, dr. yoo, you made two references to the wall that prohibited intelligence agencies from sharing information. where is specifically in what law, regulation, and/or supreme court decision, did this wall come? where is that -- >> the wall refers to something that the courts and the justice department itself almost cooperated in building, and so i didn't think it was the right reading of the statute as it was. they said the fisa statute requires us to meet a certain standard in order to get a warrant, and because of the way the standard was phrased, basically not to get too technical but was the purpose as to why you're trying to get the surveillance. the justice department, in cooperation with orders issued by the fisa court, said that means if you get something for law enforcement you should be giving it to intelligence agencies and if you get -- or if

you get information under fisa, you shouldn't give it to the law enforcement agencies unless you really think someone is about to commit a crime, or harm is imminent. the thing about this is it was never reviewed by the supreme court, never reviewed by any appellate court. it was career prosecutors and the justice department in the trial fisa court. the second thing i'd say about this, this wasn't just a 9/11 change. this was something that the clinton administration wished to change back after the oklahoma city bombings, something that people in the justice department had known's as a problem but it wasn't until the 9/11 attacks that the costs of that wall really brought home to people. >> i want to chime in to agree with the first part of what john said, that i also have seen testimony from expert law enforcement within the attorney general of more than one

administration saying, it was not the law that was the problem. it was the way the law was misinterpreted, which had to do with a cultural problem within the organizations, and remember colleen rowelly's whistle-blowing complaint to fbi director mueller when she said she was begging for authority to wire tapp zachariah moussaoui's laptop, and she had that ability before the patriot act, and she blamed bureaucratic ineptitude and errors and fear of taking action, not any law, and that's important because i think those cultural problems -- i take it this was the critique or messers cane and hamilton and those problems persist despite the

legal changes. >> in the front row. >> hi. is was the humphreys case, do you remember john? that set up the wall, because when i was in the reagan-meese justice department, before that it was twa47. we had to take down fisa tap because the career people at the justice department told me it's now become a criminal case and it's illegal to keep any tap up. unless we get a title -- >> just to expand on that point. the thing that 9/11 showed you couldn't maintain that distinction anymore because it was built on this idea that came from the previous cold war that our foreign national security threats would be from abradford and domestic things were primarily criminal and would be law enforcement matter, and what 9/11 showed was the enemy could inkill freight into the --

infiltrate in the country and could hit targets in the united states. so when you can cross the border that easily to carry out attacks, that kind of distinction between foreign threats and domestic breaks down. >> this is in the 1980s and piggybacks a point i want to make with you, anyway -- nadine, and that is the patriot act wasn't just done in 40 days. we in law enforcement knew what issues were there and these things that had hearings and i had wanted to -- after this incident, had wanted to go to congress and get it corrected. my goodness. as soon as they learn about this i'm sure they'll want to correct it, and god rest her soul, one woman said, they'll make it worse so the executive branch was worried about clarifying these things until there was an incident. so things like the lope wolf, which was these people at the justice department obeying the

law with mouse -- mose saw we. he wasn't a member of a terrorist organization so they couldn't get a warrant. at that time against the law, which he was running. >> nice to see you again, victoria. the point you make in my view, cuts the other way and has been made by many critics of the patriot act, which was there was an tunistic takinged a vong of people's willingness to do anything that might help fight international terrorism and al qaeda to give the justice department, fbi, so forth, powers they had been seeking forever e forever, not only to deal with terrorism but to deal with garden variety crime, and the information indicates these patriot act provisions have not been idea to fight international terrorism but have been used in garden zoo variety criminal cases including the ongoing war on drugs, fraud, bribery and so

north. 2009 move beyond electronic surveillance because we don't have enough information, the cloak of secrecy is deprived even congress of sufficient information to gauge how these powers are being used. however, we do have information about other surveillance powers that the government has been using, various government agencies have been using post-9/11, and i want get to back to that because it goes to john's third point, which i heard him make before, how freedom of speech is thriving. in fact, police surveillance and department of defense surveillance and other federal government agencies have been engauging in surveillance, admittedly of citizens groups that are simply exercising their first amendment freedom. the aclu did a report last year in which we compiled information

thea -- that we gathered through freedom of information act, put together a compilation where these surveillance activities have been documented based on absolutely no threat. no evidence of any potential connection to al qaeda or any terrorist organization, and just in alphabetical order, the organizations that have been subject to the surgicallance, american indian groups, arab muslim and middle eastern groups, book stores, civil rights, human rights and immigrants rights group, environmental animal rights groups, faith groups, meet ya, peace groups, political parties, right wing and conservative groups, including antichoice groups, and i know bob barr and i testified before congress about some of these powers and he was particularly concerned about antichoice groups being subject to