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tv   Book TV  CSPAN  October 8, 2011 7:00pm-8:15pm EDT

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good afternoon. thank you for joining us at the heritage foundation. as director of lectures and seminars it's my privilege to welcome everyone to the lahood northpark comco clich lois linen auditorium and those on the web site as well. we would ask everyone to make that last courtesy check that sells phones have been turned off especially for those recording today. we will of course post program within 24 hours on the homepage and our international viewers are welcome to send questions or comments simply e-mail bling at speaker@heritage.org. hosting the discussion is mr. meese who served in public policy and chairman of the center for legal and judicial
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studies and of course he served ronald reagan as the 75th attorney general of the united states. please join me in welcoming of to attend a -- ted meese petraeus the mccuish of the celebrating were commemorating is a better term the defense of september 11th, 2001. it was the first attack on cities in the mainland of the united states since the war of 1812. was perhaps one of the most traumatic events in the lives of the people here. to me it ranks with an event i was witnessing as a youngster person, pearl harbor. but it caused a tremendous burden to fall on our law enforcement agencies and first
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responders of the fire servicers and so on. if in russia -- it was tragic and one person felt this in one way or another this not nothing more than of the serving what went on on television for those fateful hours but it also had a tremendous impact on our legal and judicial system and that is something that is still going on today. as many of the issues that began on the 11th of september, 9/11 continue today to be litigated in the courts and to have a good deal of legal scholarship. one of the very important contributions to the legal scholarship on the subject is the book that we are talking about today, confronting terror, 9/11 and the future of american national security, which has
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essays by leading voices in law and policy. it was edited by dean reuter and john yoo, one of the speakers today, and we have in our audience both dena and paul who's one of the contributors to the book. let's commemorate them being here. [applause] our first speaker today will be -- and our speakers will speak briefly because we want to open this up to discussion as well as to the audience as rapidly as possible, but our first speaker is john yoo. john is a professor of law at the university of california berkeley at the school will fall could law. he received his bachelor's degree summa cum laude in history from harvard university. he served reporter here in
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washington, d.c.. he then went on to yale law school where he received his jd and was the article editor of the journal. he served in all three branches of the federal government. he was a clerk for judge laurence silberman of the united states court of appeals for the district columbia. he was also a clerk subsequently on the united states supreme court and on the legislative field he was a general counsel of the senate judiciary committee as an executive branch members he served as a deputy assistant general in the office of legal counsel at the united states department justice and his issues there where he worked primarily involving foreign affairs, national security and separation of power but particularly he was a key member of the council in dealing with
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the issues related to national security and the attack on 9/11. professor yoo has been visiting professor of several law schools and has received numerous fellowships' and honors during his career. he's a visiting scholar at the american enterprise institute and has received the paul beaver award for excellence and legal scholarship and teaching from the federalist society for law and public policy indus testified before the judiciary committee's between the senate and the house and has advised the state of california on constitutional issues and is the author of three looks, the power of war and peace subtitled the constitution in foreign affairs after 9/11. war by a other means, an insider's account of the war on to your coming and crisis in command, the history of excessive power from george washington to george w. bush.
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please join me in welcoming professor yoo. [applause] >> what are you doing here? shame on heritage foundation. you don't deserve to be here. you are wrong. ten years later [inaudible] how dare you even be here in public? get out of here and shame on you, heritage foundation. >> the right to free speech, john. [applause] >> i was going to say the speaker just speaking does not represent the heritage foundation. [laughter] >> i would like to thank ed who is a graduate of berkeley law school for making me feel at home. [laughter] bring back some of his own
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memories at berkeley as well. but i would like to thank general and taught for inviting me to speak for a of arranging this panel and was a contributor in the book to having this debate here and we also had last week at the institution in new york law school i can't think of a better way to think back on the last ten years as the general meese said commemorate what we have all been through and to look towards the future of the national security policy to of the hope to. i look forward to hearing what nadine is going to say but obviously looking back at the last ten years to draw three lessons one, the most important lesson is that the most important thing happened in the united states the last ten years was nothing. the last ten years never saw another successful terrorist
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attack in the united states, and one -- i think the most important question to ask is why, and whether it was worth it. to be the most important decision was one that president bush made as commander in chief and the constitution on the very night of 9/11 which was to train as an act of war. i think the way we thought about it in the justice department at that time is that if any country had attacked us in the same way of the debris left in the house al qaeda no one would have had any doubt that we were at war. the only difference was that al qaeda was not a nation state. and the important legal and constitutional issues could we be at war with a non-nation state? and i.t. president bush made that decision for the country that might and that was an important decision because once you make that call, then the united states can turn to laws and rules of the warfare to deal
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with al qaeda and the threat of terrorism. all of those i think were displayed not just in our invasion in afghanistan and the use of troops and more drones to wipe out much of al qaeda's existing leadership of the time of 9/11 but was put on display and the successful operation to kill osama bin laden over the summer which i think as president obama's greatest foreign policy of the national security achievement the last two and a half years. their use of intelligence provided by people who didn't the team under the laws of the war. electronic surveillance producing more intelligence all put together to locate where osama bin laden had been hiding and then the use of military force to go out and kill him. under the rules of the criminal-justice system which led demonstrations of both political parties used in their approach to terrorism before 9/11 we instead invited osama
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bin laden and sent people to try to arrest him after he had committed a crime they switched to the approach of war made our policy forward looking to try to stop people like osama bin laden terrorist groups before they could attack. the second lesson i would draw from the last ten years and also helps us to look forward is that 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 followed at the time they were put into place we intentionally prohibited or agencies and law enforcement agencies from sharing in communicating information. if you read the commission report carefully, some of the commissioners believed that wall was actually instrumental preventing us from identifying
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the hijackers known by the cia to be in the country before 9/11 could with. things like the patriot act enhanced interrogation of the top al qaeda leaders and enhanced electronic surveillance all allowed us to gather more information the ability to use force to wage the war more quickly and so urgently than ever before. so again, i will use the osama bin laden operation as an example. there was a brilliant military operation which all americans were proud but what people don't realize i believe is 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. our military has been changed
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and trained to capitalize on intelligence almost immediately on a daily basis and that is something that could not happen in 2001. this is something nadine and i may agree on some things like speaking on the panel rather than the lectern and the scope of the free speech we are going to disagree on the civil liberties. the third thing is the predictions there would be a civil liberties catastrophe because the war on terrorism turned out not to be accurate. i think people could have that fear at the beginning because the civil liberties problem we have seen in the civil war, world war i and world war ii salles infringement of personal liberty and free speech we didn't see things like that in fact what i would say is in the last ten years political activity actually blossomed to
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of both and you don't need to see people in the heritage foundation to prove it. i don't draw them out like i used to be in you certainly don't draw them out like you used to. laughter could the general said to be how many protesters are out there and i think someone said there were four. he said four is almost an insult. [laughter] but i think in the last ten years it's not because anything the government did because of technology, because of social media, twitter, political speech is actually exploded in the last ten years, it's not receded and the result you see all around us may be the most important one is how contested the political elections are. i think the most important check on any of the power think about what we've seen the last ten years, the president switch hands between the political parties, the senator thinks which hands twice and the house which several times during the
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last ten years so we've seen the most important means to checking any infringement on civil liberties which is what mean political speech and organization in order to operate in the last decade the exclusion of rights and liberties rather than to. i know we all do have to suffer some accommodations to security and we all see mostly at the airports but the thing to ask here and i will conclude is if 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 kind of searches we see at the airports when you look at the benefits and in closing have and the benefits of the last ten years no attack has occurred then worth of those costs? so thank you very much. [applause]
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thank you, john. other members of the panel here is professor nadine strossen. she is the professor of law at the new york law school and one of the nation's leading experts on the subject we're talking about today, constitutional law, civil liberties and international human rights. from 1991 through 2008 she served as president of the civil liberties union and was the first woman to hold the position and did an excellent job of leading the organization and she is now a member of the aclu national at pfizer council. professor strossen has made thousands of presentations before diverse audiences and as the president of the seal you she was the most active of any officers going around the country talking about
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celebrities. if the pleasure of joining her own presentations and destroy them very much and she also was in devotee double meeting with different chapters of the aclu meeting with different tours and she's also spoken on many foreign countries i think she made over 5,000 campus appearances if i anderson quickly. her writings were published in scholarly and general-interest publications and she has more than 250 works in a one is defending pornography, and another speaking of race, speaking of sex, hate speech, civil rights and civil liberties they were selected as both the united states jaycees one of the top standing award and also the gcm turn nationals outstanding persons of the world she
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graduated phi beta kappa from harvard college, both of our speakers of their undergraduate at the same institution and matt mechem lavitra harvard law school where she was editor of the law review. please join me in welcoming nadine strossen. [applause] think you. it's nice to have a reunion. it was my most frequent partner on countless topics because we disagree on just about everything. with one exception and the exception i just want to briefly note because it is relevant to the incident that happened here freedom of speech we always agree to defend freedom even for controversy will expression which for some perspective includes john yoo controversial views and i want to say i'm sorry i didn't get to advise the protesters i would have told them standing there silently
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with placards expressing their viewpoint would have been protected free speech as we defended of new york law school on friday. when i was invited to share the podium with both john and ed i immediately wrote back and e-mail and said it isn't exactly fair. i have an e-mail from mr. yoo the could month in 2000 -- >> i didn't sign that memo. >> yes i am going to frame this. it says nadine, i don't think you could ever be a match. [laughter] seriously i'm very happy to have participated in the book that john and dena edited and one of the things i want to flag at the beginning is are the questions
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between security and freedom post 9/11 are not questions that defies advocate or for that matter government officials along a theological or partisan lines. from the get go with the aclu framed what we immediately called our safe and free campaign emphasizing that one does not help you 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 role 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 we have been staunchly non-partisan as the violations of and support for civil liberties cross all party
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and a local wines. the book also demonstrates what i say is in addition to my peace and anthony romero from the civil liberties union the hard hitting piece denouncing by unnecessary and unjustified violation of civil liberties s counter to national security was offered by former congressman bob barr who was a republican member of congress from georgia who worked with the cia of the united states attorney before going into politics so from his perspective law enforcement and intelligence he has denounced many of the post 9/11 measures as being the worst of both worlds so that makes me jump ahead to john's last point which is the one that i disagree with the most so i will yield some of my opposition said he made under
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points one and two but leaping ahead to the first point it is kind of perplexing to me as a staunch libertarian that just as john said, the most visible manifestation of the government overreaching that has been unjustified and unnecessary post 9/11 that has provoked the outcry among citizens is airports screenings. it's perplexing because the tip of an iceberg life like a couple hundred miles a year and don't consider this i don't want to die as a terrorist attack anywhere in particular on an airplane but i join the many security experts that have said that unfortunately a research as our security designed to give people an illusion of security rather than actual security but
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what is more troubling to me are the many violations of our privacy and of our first amendment freedoms are not sufficiently being protested precisely because they are being carried out in secret and therefore and laboring under the illusion that if you are not suspected of terrorism if you are not one of the accused enemy combatants who have been locked up in guantanamo and bob rm you have nothing to fear unfortunately nothing could be further from the truth because couple that new surveillance that we are unleashed post-9/11 starting with the patriot act in putting as we now know things to the whistle blowing and investigative reporting was not even the most far reaching government surveillance program. we know now that there was a supersecret domestics by program
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by the national security agency. what the aclu and bob barr and conservative organizations by the way mengin in some of the citizens that have collaborated with the speed making these complaints and include gunners rights organizations, phyllis schlafly's eagle forum, americans for tax reform, the american conservative union to name just a few all have concurred that the problem with the dragnet surveillance techniques is they give the government unchecked power to invade our privacy among other things to intercept international telephone communications e-mail and indications by american citizens without any suspicion of any wrongdoing whatsoever.
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to be precise the system demands that very casually and loosely there be some basis for believing or suspecting the intercept a communication might be relevant to an ongoing investigation. the role of the court even the 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 reauthorization the inspector general of the justice department has to do service reports on how they are accused and report after report by the inspector general has concluded that the so-called national security letter which gives the fbi power to survive on its own
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to demand on its own without going before any court that has been subject to rampant abuse and misuse. now what i'm asking for along with these very diverse and ideologically diverse colleagues is something straightforward and simple consistent with john's point that we have to engage in across benefit analysis. i agree no civil libertarian to the best of my knowledge has never argued that freedom of speech or religion and privacy are absolute rights. rather what we insist on is what the constitution itself insists on namely that there's a presumption in favor of privacy and liberty and government can overcome the presumption only if it satisfies what we call strict scrutiny to show that the measure is actually necessary to
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advance national security. national security is a compelling her goal but just because a measure is labeled as being for the sake of national security -- and i will not question the good state of government officials who believe that these measures might be effective in promoting national security but they believe which did make almost reasonably fearful of another attack let's assume that there wasn't enough time for analysis. i disagree with that but i would assume for the sake of argument converse was justified rushing for the patriot act and 45 days with almost no hearings or
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debates. the time is long past due to do what bald called for in his role as a member of congress and that is before we can fix what ever problems have led to this national security catastrophe, we have to understand what the problems were and that analysis was not taken until one after when the bipartisan citizens', 11 commission very respected in its analysis and also the joint intelligence in the house and senate and the reports did not complete, none of them concluded that the problem had anything to do with a lack of sufficient power to engage in surveillance to gather information. rather the analysis had to do or the analysis of the problem was that the failure lay in the lack of sufficient ability to put together a lack of sufficient analysis of the information not
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only because of this notorious wall to which john has a looted but also because of such basic problems such as lack of sufficient translators and computing capabilities, bureaucratic turf among the different agencies. last week on the occasion of the tenth anniversary, the bipartisan co-chairs of that commission former new jersey governor tom kean, former indiana congressman lee hamilton a democrat wrote a series of op-eds that they said what are the ongoing problems and we still have a 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 abused and elated
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and trumped privacy and civil liberty. they saw this as the second of the three major problems post 9/11. why should we give up freedom and privacy if it is not necessary in order to get a chance national security? the other major problems they noted by the way, and i couldn't be happier than anybody else with of my institutional homes are within blocks of the headquarters and new york law school by lost friends including a new york firefighter who was an active leader as well in a catastrophe i could not be happier we haven't suffered another tax attack however i and fearful of what was happening and i have to say speaking on many panels with national security experts not if but when there is another attack because
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the effort to conclusions of mr. hamilton and kaine were that we still do not have sufficient coordination among first responders locally at the scene of any catastrophe. and we still don't have adequate communications team to the capabilities and to those situations which enhance niederhuber kaput taha -- of the federal level they say there is not sufficient coordination among the multiple federal agencies that are responsible for national security so basic steps have nothing to do but sacrifices a celebrity have not been taken whereas on fortunately unnecessary sacrifices have been made in terms of civil liberties. [applause]
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>> i'm going to invite our panelists to engage in a discussion with each other for few minutes and then we will open up for questions from the audience so please, have your questions in mind. i feed both of you have talked about significant steps either right or wrong that they took in response to the 9/11 attacks. let me ask you to respond to the extent you wish nadine with mengin and for your part can you give more concrete examples of significant steps that you feel have been in the wrong direction? >> again i'm not going to tell you i wrote or signed it.
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i guess one thing i would like to point out about nadine's description although i am not saying you're not critical of it i didn't hear the claim the president and congress were in disagreement. i see one thing you heard about the bush administration and the claim is that you had a unilateral executive acting on its own. i think we look to the record and one thing that does come in the last two years is that congress in every chance it had supported the policies so the authorization needs a military force which the court interpreted as the authority to detain. the congress passed the patriot act by huge majorities. congress tried to strip the courts of jurisdiction to place in guantanamo bay and ultimately supported warrantless wiretapping and changes to the foreign intelligence surveillance act. so one thing i think has changed the last ten years there's a good development is you have the congress pretty much in
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agreement. in fact if anything in the last two years where president obama tried to change national policy off describing the contras actually tried to react by cutting off funds to move anyone from united states to guantanamo bay. the points about privacy i think there is a legal aspect and important policy aspect. the policy aspect is i do think the warrantless surveillance program serves as a good illustration of the difference between the crime and the war because of the criminal-justice approach you need to have probable cause to a specific target if someone may have committed a crime or is about to commit a crime and you have to give that proved to a judge and that judge issues a warrant. it is different than the war approach and you have an enemy and you try to intercept all the communications so you can figure out what target's they are going to try to attack and with their richer strategies are.
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what happened immediately in the days after 9/11 when we were confronted with this kind of problem we did the originated from afghanistan by the al qaeda terrorist organization but we didn't have a warrant files for every member. we didn't know who they all were so it seemed as a policy matter what he would want to do is just put an electronic net around afghanistan and intercepted a phone call and e-mail going into and out of afghanistan no matter where it was going except we knew where al qaeda was. if that is the best way to gather intelligence on an enemy i would say that is fundamentally incompatible with the justice approach of building a final three target getting a warrant because you are trying to build a system of communications to try to find the needles in a haystack and so i think that if you do return to this approach you won't be able to fight a war against this kind
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of enemy effectively and i think that is the legal opinion and one of the reasons it really is about the war because what's called a signal intelligence is to intercept the communications of all the enemy and we don't really think about the need for the warrant or four judges in the military signals intelligence. last thing i will say about the privacy issue and warrantless surveillance is i certainly understand the concern that the government is doing this in secret at the same time we now have to administrations a different political parties in charge of this and have been doing it and as far as i know the inspector general's or the executive branch or congressional hearings haven't produced any cases were made allegations were the executive branch has been abusing the information i got from the surveillance which is the reason we had the law in the first place to take the information and use it against political enemies or link it to embarrass people in public. as far as i can tell the professionals and the agency have been scrupulous how they
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use the information they've been getting this way so i think there's a possibility of invasion of privacy and harm, but i don't think that even though the programs have been linked to have the investigation there haven't been cases yet of that happening. >> very interesting point. so, to your first point, john it's interesting that what you see as positive namely that to branches of government have gained up on civil liberties across the two evin stations and a different political parties and by the way, i would throw in for my chapter in the book the third branch of the federal government i think 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 showed that there has been insufficient attention particularly by congress has not served in the oversight
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functions and the conservatives imus, may he rest in peace, 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 about some of these surveillance programs safire said what congress has been engaged in should be called under site, not oversight. so, and i explained in my chapter why the courts have been doing too little too late and i am referring to the executive branch of government even assuming for the sake of argument tosk there were a separation of powers problems that still would not reduce my concern about the civil liberties violations of state. and again, to enforce the basic privacy concept basic limitations on the government power to engage in search and seizure john as you well know
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there is no more time exception to the fourth amendment, there is no national emergency exception to any constitutional right provision with the exception of the suspension clause which allows congress to suspend the writ of habeas corpus in certain specified emergency situations. the point was stressed by another is the logical coalition standing up for civil liberties in the opinion by intensely and john paul stevens. they stressed the importance of the fact that our framers of the time when our nation is a jury trial, when our national security i submit was far more in danger and in jeopardy than has been since september 11th despite these horrific nature of those attacks they made a deliberate decision not to make a general wartime or national
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security exception to our individual rights. moreover come i believe that the fourth amendment among others is well designed to protect national security as a less personal security. john used the metaphor of a needle in a haystack and what we have been doing since 9/11 is adding more and more pay to the stack which makes it harder to find that needle and that is a complaint that has been made by fbi agents have complained for citrus league about the overwhelming amounts of communications that intercepted communications coming into them which they say are indulging they just 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 saying this is based on some kind of junk
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science that somehow we could find patterns instead of her coach with the fourth amendment and the judicial second-guessing is designed only to protect personal privacy and also to be sure our precious resources are limited national security resources are intelligently and strategically targeted where there is a basis for suspicion. john, i don't think there is a dichotomy between using as an either war between using a work paradigm or criminal justice paradigm to use another cliche the devil is in the details and what the aclu and others have been critiquing is the notion that we are in a perpetual global war on terror that converge to the entire world
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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 juggle those distinctions and i know in your chapter in the book you did refer to the fact that the aclu and the center for constitutional rights have brought a lawsuit challenging the president's alleged power to engage in targeted killings. i think that you had some sympathy at least for some perspective and then one final point, john is taking the position that unfortunately too many courts have taken in assuming that your fourth amendment rights privacy are not violated unless or until the illegally unconstitutionally privacy innovating communications that have been seized from you is used or
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misused against you and linked into the public domain in use to the prosecution. some of us believe you have a right to privacy to be free from government interception and the aclu has gone to court are doing that we have standing that there is a concrete harm even if we don't know that the information is being used that the fact that you reasonably believe that you were subject to government spying has a demonstrable chilling effect in on commit patients and our clients included economic researchers who do work on terrorism or are in countries where terrorism is rampant and include journalists who've written about the war on terrorism and include lawyers who were defending people accused of terrorism, and they can demonstrate that their
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sources and to indications have already dried up because of the few there subject to interception and violating not only privacy rights and not only the first amendment communications rights of those who were 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 to respect to give equal time, john, do you have a rebuttal? >> just very briefly i don't want to be misunderstood in saying that the fourth amendment protect sea for misuse of information but it does protect against the search -- my point is the fourth amendment applies differently in the war which is why as far as i know the court has said you need to get a warrant to conduct surveillance of military in wartime it's just the fourth amendment's warrant and the judge process works for criminal targets by the law
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enforcement, but traditionally in the wartime the government has intercepted communications of the enemy without judicial warrants going all the way back to abraham lincoln trying to intercept so it was never thought would need a judge to conduct that kind of the interception of electronic surveillance in the war. >> i notice our time is moving along so let's open up to questions from the audience. in the front row here first. please identify yourself and then ask your questions. >> speaking for myself i want to pick up on this last point john made controlling the distinction between the war and the ordinary law enforcement is it your view,
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nadine, that we could have used 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 the law enforcement whereas the war is an approach to keep the event from happening in the first place and that is why we have drawn this distinction however imperfect it may be at least it enables us to try to find that needle in a haystack as the judge in the seventh circuit has said the problem isn't monitoring it is trying to determine who is a terrace in the first place especially when you're dealing with such things.
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>> roger is dissenting from reports written by the cato institute in many of the same critiques the wife made and thank you, roger, for giving me the opportunity to repeat the aclu hasn't taken from the beginning hasn't taken a blanket position that some wartime powers including to intercept and it was interesting that john referred to in any communications, nor had we insisted some pond in sefton store to the were position that you have to read miranda rights battlefield. but we object with some support in the united states supreme court in the detention cases as you know, roger, is converting this country and the entire world into a battlefield extending under the act to
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communications by american citizens with in this country but in deed removing a the faizal accord altogether from some of these surveillance powers. if you look at the proposals that the aclu has actually made, including a think the most recent set of concrete proposals on surveillance came out last year in connection with the renewal of the patriot act power but we use that as an opportunity to do surveillance in general we are making what i consider to be very modest proposals that are designed to the scituate the national security as well as individual privacy concerns and that is to have some judicial checking mechanisms to take away the unilateral power of the government to say trust us we know what we are doing we are going to engage in these dragnet sleeping surveillance.
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second, to have a direct causal nexus between the nature of the communication in the terrorist threat. to cite a cliche extraordinary dangers would warrant extraordinary power but what has happened now is what had been extraordinary and exceptional is extending vastly over for too many communications that have several degrees removed from the terrorist problem and that is one of the themes that echoed through the inspector general reports, not that the information was being aired in appropriately publicly but it was far removed from the terrorist threat said to justify this extraordinary government power. >> john, your comments.
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>> it's not just the war on crime distinction which is also important but it's also the nature of the enemy is different, so i think it's easier to apply the approach with nowak warrants when you have an enemy in one country and armed forces fighting of in the open. the other problem after line 11 is the enemy that doesn't fight by the rules so they disguise themselves as civilians to launch attacks on civilian targets without warning and the piggyback of her activities on things appear to be innocent civilian activity electrical communications and so on so the problem is in terms of military surveillance you would actually be privileged and then making it harder to surveil them because they don't follow the normal rules of the war to require the approach. the second thing is even with the problems the other branches tried to figure out a way to
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maintain a level of judicial scrutiny and the fisa appeals court held a patriot act challenged by the aclu i think in the winter of 2002. this is in military intelligence gathering by the patriot act to, and the constitutional and congress will of the fisa act and its approval of the warrantless surveillance program has to be approved as a program in whole by federal judges, too. the problem is because we are fighting this covert war our government doesn't want to reveal too much but we give al qaeda an advantage in defeating the tactics used to surveil them so i don't think it is a problem to cover-up the government misdeeds or hide programs that are going to compete it is because they are conscious if you reveal something in public al qaeda is capable and resourceful and they try to pick
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up on anything we are doing and responding to which is why after it was leaked during the first from world trade center trials he stopped using cell phones within 48 hours and never used them again so the government's worry about making that kind of mistake through revelation and second time. >> down here. >> thank you could. to make references to the wall that prohibited sharing information where specifically and in what regulation and or supreme court decision. >> the wall refers to something the courts and the justice department itself almost cooperate in building, and so i didn't think it was the right reading of the statute as it was
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but what it does is the fis the statute requires us to meet a certain standard in order to get a warrant and because the way that it was phrased basically the purpose as to why you are trying to get the surveillance the justice department in cooperation with orders issued by the faizal court says if you did something for law enforcement should be given to intelligence agencies or if you get a warrant and get information under fisa the intelligence process you shouldn't give it to the law enforcement agencies unless you think someone is about to commit horam eminem. tiffin striking and that it was never reviewed by the supreme court or by any appellate court who was really career prosecutors in the trial court. the second thing is this wasn't just a 9/11 change. this was something that the
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clinton administration also wished to change back after the oklahoma city bombing people but it wasn't until the 9/11 attack the cost of that were brought home to people. >> i would like to china on the first part of what john said 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. was the way it was misinterpreted which had to do with a cultural problem within the organization. and remember the whistleblowing complaint to the fbi director miller when she said she was begging for authority to wiretap a laptop she believed fervently
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and explained why she had that authority long before the patriot act and she blamed bureaucratic ineptitude and any error in if you're taking action and not in law. those cultural problems i take this was a critique of kean-hamilton recently those problems persist despite the legal changes. >> in the front row. >> hello, victoria. it was the humphrey case, do you remember, that set up film all because when i was in the reagan justice department but before that was twa to 47, we had to take down a fisa tap because the people of the justice department told me it's now become a criminal case and it's illegal
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to keep the tap up. estimate of the thing that 9/11 showed as you can maintain a distinction anymore because i was built on this idea that came from a previous cold war that our foreign national security threats would be from abroad and that our domestic things work primarily criminal and would be law enforcement matter and what 9/11 showed is the could infiltrate into the country and the attacks were planned project in the united states to target the united states so when you can't cross the border and easily to carry out attacks i think that kind of distinction between foreign threats and domestic law enforcement also sprigg this is in the 90's and a piggyback point i want to meet with you, nadine, and that is the patriot act isn't just done in 45 days to read wish you had been in law enforcement for a issues were
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these things until. he wasn't a member of any terrorism organization that one could identify so therefore they can't get a warrant. the point to make the cuts the other way and it's been made by many critics in the patriot act which was the there was an opportunistic taking advantage of people's willingness to do anything that might help fight
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international terrorism and al qaeda to give the justice department, fbi and so forth power they had been seeking for ever not only to deal with terrorism but to deal with a garden variety crime and the information indicates these patriot act provisions have not been used to fight international terrorism but have been used in garden variety criminal cases and the ongoing war on drugs, fraud, bribery and so forth. among other problems we don't have enough information secrecy that is to prevent congress of sufficient information to engage how these powers are being used however we do have information about other surveillance powers that the government has been using, very is a from the agents have been using post 9/11 and i want to get back to that because
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it goes to john's first point which i heard him make before about how freedom of speech is thriving. well in fact, police surveillance and the department of defense surveillance and other federal government agencies have been engaging in surveillance admittedly of citizens' groups that were simply exercising their first amendment freedoms and the aclu did a report last year in which we compiled information that we gathered through freedom of information act requests nationally and locally putting together a combination from the 43 states and is a strict of columbia where these kind of surveillance activities had been documented with absolutely no threat, no evidence of any potential connection of al qaeda or any terrorist organization suggest an alphabetical order the organization, some of the organization subject to the
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surveillance american indian herbs, where muslim and middle eastern groups, bookstores civil rights and immigrants rights groups and environmental and animal rights groups, say some groups, media piece groups, political parties, right wing and conservative groups including anti-choice groups and i know bob barr and i testified before congress about some of these powers and he was particularly concerned about anti-choice groups being subject to surveillance that's happened. student groups, veterans groups and unions. so when we do have information, we do know that the government is doing what it has repeatedly done which is to target dissident and minority citizen voices using these powers that are designed to go after international terrorism. >> another question. right here in the middle. >> josh turner, a recent
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graduate of gw law school. i have a question that has lingered at the periphery of a lot of the discussion and that is how we free met with the executive and congress are doing with respect to the war montara per domestically. since you both refer to the fact we're dealing with and on state actor in the conflict necessarily confined to one police how to wheel understand the power of the executive and congress can exercise within the united states, and we'll understand them as carrying out, like war related functions within the united states, and if so, what implications does that have on the power the executives can exercise with respect to american citizens? ..
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should just be limited to the civil criminal justice. in terms of other things like use of force i guess is what you are really asking about, look back onto september 11 and the days afterwards. we had fighter jets circling washington d.c.. i assume they had orders if there were civilian airliners that were going to be directing another target they might imagine they had orders to shoot them down. is reading stories in the post at the first set of fighter jets
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the one that didn't even have missiles and they were planning to crash the fighter jets into the civilian airliners to stop them from hitting the capital. that his use of force by the military. that is not the rules of use of force that would normally be used by civil criminal law-enforcement so i think we have accepted and, if the enemy tries to make a battlefield of the united united states that we shouldn't have one hand tied behind her back and limiting ourselves to using the police and the fbi that they might need to use the military but at the same time i think it is restrained as a matter of practice. still if you look around, the people who are primarily carrying out the domestic fight on terrorism are still the fbi and the police. that is a policy choice not dictated by the law. >> and i would agree with what has said and i don't dispute the example that he gave of fighter jets in the immediate aftermath of the attacks but again the devil is in the details and we have been looking at it on a point by issue by
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issue basis. by the way i should refrain from generalizing about the patriot act because it has 160 different provisions of which the aclu has criticized about a dozen and some way of actually endorse. with respect to the war versus criminal justice paradigm at me give you an example that we have a posting come back to my familiar theme of it is as counterproductive as it it is violative of civil liberties and that is the use of the military commissions or in fact actually nonuse of the military commissions despite all of the how about by members of congress and others about the proposal to try the mastermind of the 9/11 attacks and federal criminal court. in fact the federal criminal courts have succeeded in convicting hundreds of accused terrorists whereas the military commission system has brought
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about only a couple of convictions of only a couple very low-level protagonist. so to me one of the sad dings in terms of ringing to justice 10 years later is what everybody agrees was, maybe not everybody agrees, but the consensus that torture is, what is and will continue to be illegal, unconstitutional, immoral and violative of domestic and international law. not a single torture victim has had his or her day in court in the united states, and not a single self-proclaimed erpa trader or accused perpetrator of the 9/11 attacks has been brought to justice. i think each of those is equally a betrayal of safety and freedom. and justice. >> well with that, i see our hour has come to a close, but i
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think it illustrates in this discussion how complex in many ways these issues are, and how in some ways unique because of the nature of these attacks. we have never faced up to these kinds of issues before particularly when, as the panelists have pointed out, the attackers are trying to make a battlefield out of our home grounds here in the united states, so we tangled both of our panelists for bringing this issues to our attention and please join me in a round of applause. [applause] thank you for being with us. >> visit otb.org to watch any of the programs you see here on line. type the author or book title of the search bar in the upper left side of the page and click search. you can also share anything you see on booktv.org easily bite share on the upper left side of the page and selecting the
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format. booktv streams live on line for 48 hours every weekend with top nonfiction books and authors. booktv.org. >> karen beckwith political women and american democracy, how did you decide which essays to include in this work? >> my co-editors and i organized with a grant from the annenberg foundation, a project on american democracy at the university of notre dame, that we would convene by our estimation the best scholars on women in politics not only in the u.s. but some of us are working on u.s. women in politics and so he brought together a range of people with research we knew well, and convene for a two-day conference at notre dame after which at that conference, we discussed all the manuscripts that constituted the chapters of this book, and had a commentary about
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it and a session and then put it together as an edited collection which -- published in 2008. >> describe the role of women in this book. >> well there are several embassies in the book so let me tell you briefly what we are not doing in this book. we are not looking at public policy per se. we are not looking at women in the executive because even in 2008 there were so few women in the executive and not get yet a major female candidate for the nomination for president of the major political party in the united states. it meant that the research wasn't there to support a good discussion and finally we didn't address women in the judiciary. so what did we address? we looked at the behavior of women as voters. the behavior is women as candidates for office does state and national office, behavior women within political parties in the behavior of women once elected to national office. we also have a few chapters that look at the gendered nature of
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u.s. political institutions as well as u.s. politics for women in politics in the context of comparative politics. that is what is the situation for women and politics look like in the u.s. compared to around the world. the picture there is not so pleasant actually. we have one of the least practitioners, least advantageous electoral systems at the national level for women with some modification. the state level is the electoral college a male so have two major political parties which are informal and their internal construction, have no clear formal instructions for becoming a candidate, offer very little clear structural means by which women can work the party so to speak to increase women candidacies so there are lots of disadvantages that women have in the united states in terms of actually achieving elective office. >> so in relation to the political parties, as a woman voter, what are your findings
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limited to encouraging participation directly related to women? >> behringer singh thinks about women in politics in the united states to that make women in fact a relevant demographic quality. there are more women than men in the voting electorate and suddenly -- secondly women turnout is slightly higher percentages than do men, and a larger number absolute number of women combined with women heightens turnout makes for a big electoral impact. women also are disproportionately democratic. this is true across all age groups and it is also true across all racial groups so racial and ethnic groups, women still have a slight presence -- reference for the democratic party compared to men so when you come into an election seems like turnout in the range of issues that might attract women are very important. women are more likely than men to vote for the democratic presidential candidate and that has been the case since 1992.
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that gap has been between two percentage points to five percentage points depending on the polls that you look at and nonetheless there is a democratic advantage in the electorate for the democratic party. in general, because of women. the absolute numbers of turnout in the preface to the democratic party. now the issues that seem to mobilize women and attract their vote have to do with social welfare issues, have to do with foreign-policy issues and also to a certain extent so-called morality issues but on these women very from men in different directions. for example on issues like same-sex marriage, women are much less opposed to that than are men for example. not that huge of a margin but nonetheless a difference there. women are concerned with foreign-policy security issues, and that can have an impact on the women's vote and finally women are more concerned about social welfare issues. these include things like health care, employment, the state of
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the economy, education. >> with a woman candidate for president coming into the campaign, to you see those preferences changing in 2012? or based on your research to you think that they will largely remain the same? >> first of all i see no female candidate coming into the candidacy in 2012. there are only two on the list that i know of, sarah palin who has not yet declared and michele bachmann who is doing very poorly right now in early returns for early poll reserves -- result results in the republican party debates in the polling numbers for her. i don't see either of them being the ultimate candidate for the republican party and on the democratic side all things being equal the current president barack obama will be the party's candidate so that will foreclose any opportunity for a woman and that hardy to come forward. so i see no presidential candidate in 2012. but he did say however that some
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polling fair and the most recent i've seen has been from 2008 coming in very early in 2008 presidential primary. about 87% of americans are willing to say that they would vote for a qualified woman regardless of sex, that they would be as willing to vote for a woman asked to vote for a man. americans are more likely and more willing to vote for someone who is african-american or someone who is jewish or president than they are for a woman and i think that number is slightly lower than had been the previous results because in 2008 there was a clear potential female candidate and that was hillary clinton on the democratic side who ultimately failed to win the nomination. >> so what are some of the reasons for women in that position or running for office? does that matter come up in your book? is that something that you touch on? >> we don't turn to the presidential specifically that we do look at women candidacies
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for lower-level office, so a couple of recommendations. the sound recommendations for women so let me just make clear, we only need about 4000 women nationwide to contest and win the elections to have ethical representation in the senate and the house and statehouses. there are that many elective offices at the legislative level at at least that requires that we need a million qualified women. i think we can find 4000, 4500 qualified women to run. so that is not the issue. the problem is the political parties and the unavailability of access to candidacies both through the incumbency, if we have as we do, 83% of congress consisting of men and most of those men are -- will be difficult to renew openings for candidates whether or not those candidates are women so part of it has to do with political parties willingness to persuade
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members of congress, seated members of congress to step down, willing to support women challenging incumbents within their own parties, willingness to recruit women for office. right now the so-called big money people on the republican side are trying to recruit governor christie from new jersey to enter the presidential nomination on the republican side which he so far at least, at least this morning still has refused to do but there are women that might be recruited. there are some good female governors on the republican side it might be recruited, so at this point my recommendation is it is not the problem of women that the problem of parties and specifically i might have the republican party. women are represented in the democratic party by a 3-1 to 2- 2-1 margin everywhere over republicans. >> thank you or could this be you are welcome.

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