epidemics. >> recommit thank you so much for your time. >> thank you very much. ..

coming up next, book tv presents "after wors," an hourlong program where we invite guests to interview authors. this week susan herman and her new book, taking liberties the warmer, terror and the erosion of american democracy. in it she asserts that anti-terrorism laws such as the patriot act have damaged the

lives of many citizens. the aclu president also argues president obama has relied on secrecy to maintain these laws just as his predecessor did. she discusses her findings with former assistant attorney general and georgetown law professor viet dinh. >> host: susan herman professor of law at britain law school and last three years president of aclu. you have written a very good, very well written and very clear compilation of a number of stories that have transpired over the last decade as america responded to the threat of terrorism after line 11. the book is very timely. it is out this week. this month it is called taking liberties the war on terror is the erosion of american democracy. to the americans would defer

regarding the activities and the consequences of terrorism and our responses to it and if he what is important is we know the facts and we know the stories behind the facts and i feel that you have accomplished a tremendous feat of telling the story is very clearly, dispassionately gush that same time not losing your edge after all your the president of aclu so i thought we might start simply by talking about some of these stories that you have compiled of ordinary americans and sometimes not so ordinary and the responses and systems they find themselves in. >> guest: thank you. the comments on the book mean a lot to me. i think that most americans aren't aware of the facts the policies we started after line 11 do have costs people aren't aware of and people know the individual stories talked about

the themes. so in the first chapter i called the chapter the web master and the football player because said they had at the university of idaho. the first was a man named samuel who was a saudi exchange student going to idaho because he was studying computer studies and while he was there he was in muslim and 9/11 took place and he lit a candle light vigil in the protests people were beginning to associate muslims with their radical jihad in 9/11 and he wanted people to understand that that is not the most of islam, that they are a peace-loving people, so he was working with an organization called the islamic assembly of america and the too were trying to get people to understand more

about as long -- islam and one of the things he did on their website they were trying to get people off the information so that they could find out more he posted links to various things people had written including why they thought chehab was a good idea to the whole range of the lengths so he can under investigation the fbi and after a lot of wire taps and electronic surveillance, e-mail etc they didn't come up with a lot of evidence that he was a part of the sleeper saloom idaho that they had discovered and to me the stories about -- >> host: was there such a sleeper cell? >> guest: to me this is a story about how when you think you have something the people of good faith, government agents can start backwards and jump to conclusions so they thought partially because he was making donations to muslim charities because that's part of what it

means to be a muslim and they thought they found a sleeper cell in idaho said the end up prosecuting him for material support and his action was to post these links on the web site. >> the fbi affidavit and the document alleged that he had facilitated the recruitment of terrorists through the dissemination of the propaganda through the internet and also attempted to actually try to solicit funds for these organizations through his own contributions to the charity. did he solicit funds? >> guest: one of the facts alleged against him as there was a link to some of the web sites where he could make a contribution to a terrorist his lawyer pointed out it wouldn't have been disabled and the charities were not any thing on the blacklist showing he was

supporting terrorism himself and the fbi pherae began to shift during the case as they went on at first they said he was supporting al qaeda then they said was the chechnya rebels so what it came down to at the trial was the only concrete evidence that he had done that could remotely be imagined dhaka of taha he made it possible and decide to support terrorists. >> host: and he contributed material support to the terrorism effort by providing the lead to the other web sites that he had no part in creating. >> guest: i think that's right this organization he was working with the islamic assembly was not on any blacklist nullity suspected them of anything so it that he is being prosecuted for free-speech.

>> host: that supports and she got out of the basis of the support for terrorism, was that hosted by a group that is designated on a blacklist? >> guest: i am not sure what they were talking about because the government didn't collect them and the fact that somebody else had a link to a link how can you prosecute him by supporting terrorism what his lawyer told the jury after he made a motion to dismiss the but the judge didn't do that the he could prosecute samuel to the speech of jihad to prosecute "the new york times" for posting an editorial about the numbers of hamas saying this is why we believe what we believe and what i thought was fascinating is that we think of idaho as a pretty conservative state and the jurors in this case were pretty typical idaho residents and a retired forest worker and after thinking about the first amendment and what the government was arguing in very rapid time they acquitted him and one of the jurors said this is just about people talking and

saying what they think enabling other people to talk. it's about conversation. >> host: the first amendment protection is a very interesting and analogy in argument why did the judge rejected that? it seems to be fairly straightforward causation. >> guest: we don't know the answer to that question. but the lawyer representing him told me that the judge had said after declining to dismiss the case said an opinion would fall but he said no opinion ever followed. judges are going to act as gatekeepers and what i think is wonderful as a tribute to the american constitution is that it was the right to jury trial that came into play and they did a quick samuel hussain of that charge. >> host: one way to distinguish the posting of the links with clearly and visible g. hot web sites from "the new

york times" op-ed being signed by hamas designated terrorist organization under our system is that the posting of links is more like the passing of leaflets facilitating the message of the jihad website rather than being the publication and the truth for the purveyor like "the new york times" could that be what the judge was thinking? >> guest: is a little different from a newspaper that if anybody can be prosecuted for speaking including "the new york times" and its own web site if the had the hyperlink that can be linked to something else it is not consistent with our first amendment i these people have the right to listen to all kind of speech in the wake of the mind for the government to have a series they were making it easy for people to confront ideas that might lead them down a path to someplace else. >> host: what about the material support the government

led with respect to its own contributions or the conditions for others. >> guest: let me tell you you are looking properly as the government alleged was a terrorist and misunderstood. everybody said he is the gentlest person and one said it was like a world war hokes couldn't believe and the other thing that happened in this case is he was arrested it was 4 a.m. or 5 a.m. and about 100 federal troops stormed the campus and in addition to arresting him on this charge was the immigration violation they also interrogated all of the people they called the isasi it's called the other arab and muslim students get everybody in the town apparently liberals and libertarians alike

were horrified after the time the government was saying we come sleeper saloom idaho and i think it was just a mistake, it was wishful thinking that you could find something. >> host: the other associates were not charged, and just to close the chapter she was acquitted of the material. he was convicted of the immigration violation. a guest to the jury, whether he violated the immigration law the end of the furious that he was not on general and the student because he was also working with the islamic assembly to say he wasn't really a student. to give an example of the wishful thinking the one agent said a suspicious theory was he wasn't a serious student and he was on the in the country because he was a terrorist and pretending to be a student. so one agent i think it was pointed to the fact that he switched his dissertation adviser in the middle of the

year. that's suspicious. nobody does that. that must mean he is not serious about his dissertation. his adviser had cancer and he switched because he was trying so hard to finish his reputation and he was almost through. he ended up in jail agreeing to go back to saudi arabia. the shift away his wife and children while he was standing trial they wouldn't let them stay in the country into was a pretty good experience. i can tell you where he is now in saudi arabia scratching his head trying to smash what happened to him with his lifelong concept that america is the land of the just and the true. >> host: notwithstanding the mistrial he voluntarily agreed to be removed. >> guest: that's right because his family had already gone back. >> host: he continued his education? >> guest: he was never able to finish his dissertation because -- that is in fact what he was doing in his jail cell sola terrie for about 15 months with

his family back in saudi india trying to work on his dissertation. >> host: you mentioned throughout the story that the fbi was working backwards and thinking backwards and the jury seemed to agree that he should be acquitted of these charges. how did he come to the attention of the fbi or the investigators of regardless the mistakes he made what were the initial red flags that raised suspicion? >> guest: it seems some of it was making a contribution to the muslim charity but as you know it is one of the pillars of islam. was to their religious obligation. >> guest: but let me give you an example of one of the stories i tell. another story i tell which is a little more familiar to people than samuel usian is the story of brandon mayfield the oregon lawyer who in the up being suspected of the train bombing in madrid because his fingerprints were similar to

those found on the bag in madrid. the agents looked at this -- >> host: you look at it this is probably one of the most horrendous mistakes you ever imagine in terms of investigation. you go back and say how can you connect a white lawyer in oregon with a bombing in madrid and then he will look at it from a lens of the fbi agent making the connection and you can see how those mistakes happened but it helped brandon mayfield. >> guest: two things. when the fbi identified the fingerprints they said its low. when you should be doing and what the fbi is doing now after hundreds of pages of the general reports is a second person who doesn't know the first person made the identification to that independently but that didn't happen. the people all assumed the identification was right when they told the spaniards they said we don't think so and nobody paid attention.

they never asked what the basis of their conclusion was so that was one problem. >> host: just to give an idea, we have a sense in the public that forensic science has been around for a century is a precise science. it is precise in the sense that each of our fingerprints is unique and matching it is unique however the match is anything but science. it depends on how many points you compare it to and how similar they are in terms of the match that's why the physical comparison comes to play where there's not a perfect match. >> guest: of course is an art matching fingerprints and that is one thing looking backwards we can tell about the case so again aside once they thought that mayfield was involved in the bombing the look backwards

from what must have happened. so they didn't have a passport he was an army veteran and he didn't have a passport so they are thinking how could he have gotten too much of it did a thought he must have had a fake passport. so they submit to the judge we want to arrest as a material witness to find out what's coming on because we don't think we have probable cause to the charge of the crime and one of the reasons that we are telling you that we suspect him is that there's a likelihood he had a phony passport. >> host: to give the context there is a lot of reasoning backwards here you are right but brendan mayfield isn't just a lawyer sitting in michigan, he is a lawyer known to the fbi and the justice department but only for legitimate reasons he had defended one of the 9/11 -- >> guest: pnac chiefly represented jeffrey in the child custody case. every lawyer is suspicious because they represent somebody in a child custody case.

>> host: and he is -- >> guest: a gentleman in oregon who ended up with turrets on crime. >> host: ed least within the universe, so -- >> guest: that's a pretty big universe. >> host: but you can see how a fingerprint which is questionable suddenly triggers red flags and starts this process of reverse reasoning. >> guest: the other than your comment suggests to me is it was also affected by the antimuslim bias but one of the things the agents found suspicious is that he advertised his business and what they called the muslim yellow pages. he mentioned the muslim yellow pages also advertise best western and avis and hertz and there was nothing suspicious about representing people who are muslim. >> host: did they put this in the affidavit applying for the witness?

>> guest: the material witness. but after the identification he converted to islam and ended up converting to islam. >> host: before or after the experience here? >> guest: it is the one reason he was being protected. >> host: and that was putting to the affidavit. >> guest: his religious practices. >> host: and they granted the witness come he was held for six months in prison? >> guest: he was held for a period of time i don't recall what period it was but that was as a material witness and i think again the problem as the inspector general concluded is that the judge wasn't given enough information to assess the facts because it had been leaping to conclusions and what i think is the most troubling part of the story is the spaniard police we don't think

you're wrong but nobody ever listens to the spaniard police. host could you mentioned after the inspector general reports the fbi now has procedures in place an order to hopefully prevent or at least double check -- >> guest: to be more carefully and verify so that is a particular problem. >> host: steve to go in partial. >> guest: i think what is more concerning is the way the fbi was willing to believe that mayfield was involved was probably on the basis of religion. he's a muslim from saudi arabia, contributing to the muslim charities, and that raises too many red flags by itself. let me tell you another person connected -- >> host: now it comes back full circle of leased the of the triangle one of the associates interviewed samuel hussain on that evening in idaho is a

football player who was subsequently also arrested just like brennan mayfield talk us through. >> guest: one of the people he happened to know is another young man who converted to islam and this person like branding the field is an american citizen born in kansas. he was of an african-american family. his mother, can't remember what she worked at ibm and grandfathered minister so while he was in college she was a great football player i have a picture of him and his football uniform in his book as he won an award for russia and was a good football player but when lee was in college as often people do in college he started to rethink to convert to islam.

he was happy he hadn't chosen a church but was appreciate he was being a religious person said the government investigation of hussain because they were interested in everybody else thought might be involved in this non-existent sleeper sell extended to him because he was a muslim so somebody really hypothesized that he was part of the sleeper silda the didn't have enough evidence to arrest him and because like him he was not an immigrant but couldn't arrested for immigration violation because he was a citizen so what they did instead is a rest him as a material witness. as you know the material witness statute allows somebody to be taken into custody of the important testimony to give for a trial or legal proceedings and if there is good reason to believe that you're going to of this conned and they won't be available as a witness. >> host: all of this has to be presented depriving somebody of their liberty and the judge has to make an independent impartial

decision as to whether or not this person really does have enough material information to give to the courts and the prosecution and second, what did your is a likelihood that he would flee the country or otherwise not cooperate with the truth seeking process and so what was the government's assertion with respect to both? >> guest: on the first half what would we have said? we don't know because he never testified in the where he wasn't called to testify. i think the document is not public. the best we can tell was that there was a federal agent who after the trial said the of what they thought he could testify is on the charge whether or not he was working as opposed to just being a student but he was never called. on the cooperation the fbi talked to him. he changed his name so they talked to him while they were

doing the investigation and he had been fully cooperative and he offered to help them out by giving them lessons in islam and help them better understand what muslims were up to and what they fought and he was being completely cooperative. he then decided because he had become interested in this long to do graduate study work in saudi arabia. so when he was arrested he was at the airport on his way to saudi arabia to continue to study and all of a sudden he's arrested. >> host: how many days after the arrest is he in dulles airport? do you remember? >> guest: i don't remember. i'm sure i have the dates in the book but i don't recall on the top of my head. >> host: i thought of these little details. >> guest: he was held in custody for 16 days. he was shipped around the country in shackles from prison and he was not being held as a material witness because in fact they reported to congress in fact the fbi had great success in arresting terrorists and he

was one of them kept in the same cell and was perfectly clear he hadn't been arrested because they wanted the testimony. he had been arrested because they thought he was to trigger the stand didn't have the evidence to arrest him because they didn't have probable cause. >> host: and after 16 days? >> guest: he is released on a number of stringent conditions. you are not allowed to travel beyond a certain radius come obviously can't continue to study in saudi arabia. but having problems getting a job, his family falls apart and he was traumatized by this experience. never called to testify anywhere. so as time went on he began having nightmares, just a horribly upsetting experience and he was never charged with anything, never any evidence that he was doing anything wrong so he finally decided to bring a lawsuit against john ashcroft using th e material witness as a pretext for of arresting him and it ended up, that case ended up in the supreme court and it was

against john ashcroft on the case however, the connection with the mayfield case there were connections because the affidavit that was actually given to the courts as the material witness of rest filled of the various fbi agents also had things to say for example one reason why they said we think that he's going to of this on this he bought a five bells and dollar first-class one-way ticket to saudi arabia. he hadn't. he bought a $700 round-trip ticket to saudi arabia. he had a family, wife and children in the united states, he offered his fbi the cooperation. the lawsuit continued against the fbi agents for being very inaki billion. the the the end and disrupting what they thought was a sleeper cell was going to justify the means for being highly misleading. >> host: there is a good intrusting segue into the more broader aspect of these stories

which are very compelling of themselves and regardless of what you think of how believable and what the evidence ultimately will lead it's hard to go away with the stings thinking cut people were not mistreated and so i think that -- >> guest: if i can tell you before you continue with that fought he also has serious allegations he had been mistreated when he was incarcerated and into the cup and the lawsuit settled and the conditions under which he was being held. >> host: that was not part of the lawsuit. >> guest: that was a separate lawsuit that had been settled. >> host: but dismissing the lawsuit against attorney general ashcroft with a pretext couple the claim is a good one what made you believe all know and what the congress believes my

legal obligations are on the support statute you can't use it as a pretext for other grounds. don't pull be over for speeding or a broken tail light a classic pretext. the court rejected this and the efficient and fair ed ministration requires the focus on the effects of the time of the decision that is the time a judge granted the material witness warrant not on the motive of the arresting officer, because otherwise the laws would be broken and we would always question the motives of the arresting officer to read a fairly reasonable macros systemic rule of law so despite persisting justice and duplication in one particular aspect, we are looking at a

systemic level that's not right, don't you think? >> guest: i have to disagree but i think justice scalia has been wrong about this a long time giving opinions i don't agree with. >> host: i'm not surprised. [laughter] >> guest: saying it doesn't really matter if you're being arrested on a pretext but given those opinions to ordinary officers the attorney-general making the policy and inviting law enforcement officers and of the country to use the material statute where they never have any intention i think that's a different matter and what troubles me is not just what happened to samuel usian and to abdullah. samuel usian was really confronting the first amendment and this was trying to do a run around the first amendment. if you can't arrest people unless you have the cause and the chief law enforcement agent in the country is saying to everybody it's okay because you can pretend on the pretext i think it is more serious than an individual polling you over for a broken taillight when they

really want to see if you have drugs. >> host: what about the independent and intervening action of the judiciary? that is initially the judge approves the material witness. >> guest: the problem there one reason the case was dismissed against john ashcroft is the john ashcroft was it personally implicated in all the misleading information put into this affidavit. the aclu which rose representing abdullah the church never would have issued that order until the actual facts but if in fact they had been given and told he was perfectly willing to cooperate the fbi did call him to testify. >> host: who is representing him at the material witness hearing because it's an adversarial hearing? >> guest: i'm sorry. i don't recall. >> host: so when the answer is

we should be much more vigilant with whatever the issues, whatever our differences of opinion are on both use of material but this statute or secondary liability for misuse of eight. one lesson is we should be more vigilant, the system, the judge, the prosecutor and the defense attorney so much more vigilant in testing the factual basis for such a material witness because the consequences are pretty dramatic. you can be put in jail for up to a year without the possibility of bail is essentially. and people could get -- the material witness warrants to the effect is the same. >> guest: it is true we want to be careful how we use the power on the witness a rest and

the materially supporting terrorists that was just not based on free much because it is one thing to say okay we have this enormous dragnet power and we are going to use them carefully the that is not enough of an answer once you set in place the dragnet and say we are going to allow the attorney general to say we can use a material witness to a rest somebody to get around the fact we don't have probable cause that itself is a problem and it invites abuse of discretion in different forms and the prosecution a lot of people i think think there is nothing wrong with giving these enormous powers and the material support of the enormous powers on the humanitarian set "the new york times" and all sorts of people it's one thing to say let's be careful not to prosecute people in the way that violate that the existence of the statute that in its prosecution or allows prosecution for giving humanitarian aid for someone who

thinks is a terrorist proposing links on the web site seems to me it has a chilling effect. people start worrying shibley check out the biography of osama bin laden? what if the government becomes suspicious? >> host: but the support structure is clear there has to be a designated terrorist organization or a specific intent to give to terrorism and so you are right and we don't know the ordinary citizens don't ordinarily no what is listed under section 319, but you can teach it as a fairly good that you are giving money to a designated terrorist organization you should be punished because the united states get from it has -- >> guest: we are not just talking it giving money to the

organization. it is expanded at the patriot act and one of the things that prohibited providing expert advice and assistance to terrorist said yesterday it looked like it was money or guns. now expert advisor assistance can include humanitarian aid that was specifically left out so for example there was a an aclu lawyer from sri lanka who went home for vacation. weigel he was there a tsunami came and at that time slot was being controlled by the ltte. if you were a relief organization you had to deal with the ltte because they were the government for one-fifth of the country. >> host: the department of justice position is whatever money the ltte or the other organizations must spend on the refugee camps corporation taken spend because the money is on fungible and so we will have a

constitutional carve out the government cannot prosecute as a matter of law otherwise money is fungible. >> guest: it's not only money. but not all support is fungible. the first declared enormous, is another example. there was a good humanitarian -- >> host: let's hold the humanitarian project because we will go through that discussion because there was a decision last year by the supreme court determining this regarding the constitutional reach out and we will do that right after the break. thank you, susan.

>> susan herman and president of aclu and professor at law school the book is quote code taking liberties the war on terror and the erosion of american democracy." we were talking about the material of the statute and where they are from. giving money to the designated terrorist organization is the not just expanded to include monetary aid and expert advice but including your own efforts rather than recruiting others in expert advice and assistance is to follow in this statute. the question is what if you give money or assistance to them on terrorist activities of a designated terrorist organization a case that came down last year that humanitarian

law project said it is fungible therefore giving money to one part of a designated organization is supporting another part of the terrorist activity. >> host: the problem is that this goes beyond money. to cut the humanitarian project and the central if you are getting the guns to terrorists that is a crime of course that is a crime but it's also with the intent of the crime in the way into the statute is too much so let me give you a couple different examples. the humanitarian project was a group of people interested in promoting peace. one of the things they set out to do was to talk to the potential terrorists or groups out of committing acts of terrorism by showing them how they can use peaceful resolution techniques like going to the u.n.. so the humanitarian project was working with the kurds in turkey. as you know the kurds in turkey

have the turkish government so what they were trying to explain to people is instead of turning to terrorism there was other ways to get their grievances redressed. when the patriot act expanded the material support law to go we beyond money to cover any sort of expert advisory system they started to worry about whether they could be the subject of prosecution, whether they were having a problem telling their donors to support them whether they would be considering an effort to close to terrorists. after many years of litigation back-and-forth in the california federal court, the case ended up in the supreme court and to my great dismay the supreme court said it doesn't violate the first amendment. first of all the expert advice in the system the term is broad enough to cover telling the terrorist not to be a terrorist and then in answer to your question what about the first amendment this is preventing people from speaking but whether you can speak depends on what

you want to say and congress in this statute is terrorists have to be radioactive and so their theory is it wasn't fungible because there wasn't any money and so the answer was and far-fetched and said okay the service here is training and using the alternate dispute resolution. the terrorists don't have to come up with their own the training using the dispute resolution of the resources to use elsewhere. this is some legitimacy. to me this is terrifying but let me take it one step further. at the oral argument, at that time the solicitor general was arguing the case and ensure this isn't an issue brought up on the spur of the moment one of the justices said to her if it is broad enough to cover the humanitarian law projected teach terrorists not to be terrorists could that also cover a lawyer following on behalf of a terrorist group. >> host: in the case itself in one of the earlier iterations.

>> guest: she said yes it would cover lawyers but i think that is the idea the government has this power over everybody. do i think that barack obama is going to prosecute lawyers? no i don't but i think this has a tremendous chill -- >> host: one thing to be fair i do agree that the statute is very broad and a the supreme court recognizes this as broad a statute it has seen and nevertheless unconstitutional on its face. to be fair if there are unconstitutional of petitions that indeed is used in order to punish to conduct the unconstitutionality of that -- >> guest: the first amendment defense didn't work so well for samuel hussain. the judge denied the claim for the prosecution but i think this discount the fact the statute does harm by its existence and i

think a lot of people have relaxed about the patriot act and everything now the george w. bush isn't in the white house because they don't think that barack obama is going to be looking for people who took the biographies of osama bin laden with the power is there, the statute of limitations is going to allow people to be prosecuted by a future administration for things they are doing their now. plus president obama and eric holder don't really determine the actions of all the people and agencies below them. >> host: but they have made some -- the are responsible for their own actions and part of the book is how it is the disappointment you portray on candidate obama is different from president obama and that by and large it has been a continuation of the bush administration policies. from my perspective if you could there is little opportunity for the adjustments in our strategy

on terror and it's actually a laudatory recognition of responsibilities that the president has seen from your perspective. what is your perspective? >> guest: the disappointment has not failed. one thing you could hope is that when the president is taking measures that seems to me are too broad. the idea is the executive branch has to have all this power we can have the checks and balances we are supposed to have because congress can't know enough, the courts don't know enough and therefore the whole fury of the patriot act and all the other post 9/11 regiment is the president has to do it in secret and we have to trust the president. >> host: there's a lot of post 9/11 policies done unilaterally in secret by the president. the act is not one of them. >> guest: with the patriot act provides different ways for the president and executive agencies to avoid oversight by congress

through the courts. the surveillance provisions the point is the courts have must say in what happens that the agencies decide for themselves when they want to go into the library and take the library records. >> host: with the acquiescence add authorization -- they were written into law by congress. >> guest: you're right to have a beef with congress, too. they dedicated your own role in writing that they have gone too far taking the court of the picture and to me this is not my own, this is the constitution we have these checks and balances because when you give an enormous amount of power to one part of the government, to the president and executive agencies without the opportunity to really have checks and balances in a lot of those powers are being exercised in secret that is just a recipe for abuse. >> host: president obama and attorney general holder recognize and agree with themselves in the campaign.

>> guest: when president obama specifically said during his campaign that no war national security letters. as you know national security letter is expanded during the patriot act and it allows the fbi and other agencies to go in to get certain kinds of records in the telecommunications providers, internet service providers, librarians on their own tour is no court order at all. this to me is emblematic of the kind of thing the patriot act is doing. let's make it easy for the government to get more information, whatever information they want and take the course out of its. >> host: i'm sure you will agree that the context does not create national security to be a was created in 1988 by congress in used in that regard. saffo fight did expand the categories in which they were being used and clarify

procedures that they were to use and just to lay out all the facts this provision has been abused. it's been horribly abused. there was an inspector general report of the fbi that said there was an issue bonds without probable predicates, without the proper supervision and everybody said there is no question. nevertheless, congress has reauthorize did with some safeguards making clear there is judicial review implicit before and i guess the recognition is that there is always a potential of abuse for some law and the constitution is there and violated and doesn't mean the violation makes it -- >> guest: i have to disagree. it seems to me what happened here not letting congress off the hook i completely agree but congress is supporting the executive branch and their ability to have this enormous

power but a couple things happened with the national security letter first of all after 9/11 after the patriot act hundreds of thousands of times -- >> host: the procedures made it very clear. >> guest: the fbi wanted to use them. in the patriot act a good substitute for the involvement of the courts and oversight by congress is to have higher officials with agencies something you are familiar with have to sign off on important things in there for the agency would believe it sells. the inspector general report you are describing in 2007 looked at what happened when the fbi was abusing its own regulations and its own internal as supervising and what they concluded, the fbi council concluded there had been thousands of violations of the fbi regulations. i think maybe 2,000 or 3,000.

>> host: i was on vacation up the time i saw this report. but the question is what do we do. >> guest: this is can we fix the branded mayfield case by the single identification of course we should take those small corrections. but to me it was a story that the framers were right if you have an enormous amount of power being exercised by one branch of the government without oversight, that is a recipe for abuse. and there is a lesson i apply to a lot more than what are they doing it with the national security letter is right now? you're asking why doesn't president obama change all of this? it seems to me that once you are president, jack goldsmith who has a new book called the terror presidency, and i think the american people of the dreary realistic -- of realistic expectation the president can keep us safe and guarantee our safety. the commission said no president

can promise the american people that. you can do your best and hope and prevent some things but you can't guarantee safety and i think the problem is -- >> host: to the american people's credit they have accepted the fact we are in a new normal. we are in absolute safety is no longer a possible realistic expectation after 9/11. >> guest: that may be to some extent but they have accepted the government power -- >> host: i will read a passage and it's a beautifully written passage also very depressing from your book, and i'm sorry my review copy is not the famous yours. quote, this is it losing our checks and balances the 11th chapter, again and again, the executive branch over reacted or was tinted by secrecy to exceed powers as you say before.

again and again conagra's failed to rein the abuses which fulfil its responsibility to monitor ticket efficiency action by not letting the congress off the hook and then asking so who is left? again and again the courts and discard the serious constitutional challenges and congress' action to trump up the procedural reasons. so you have managed here to denunciate all branches of our government. we don't want to have jack nicholson attacked -- all three branches are complicity if you will in the liberty and target if you're concerned. talk about that tangentially what do you think about the court's? >> guest: let me be clear i'm glad you read the passage but

there's a lot of stuff in the book and some judges who give several opinions in the were accidental -- [laughter] here's the problem. let me give you an example. one of the things that happened as you also know, president bush even though the patriot act had given him all sorts of powers he could use to do surveillance and other things he wanted more and therefore he started the national security agency without going to congress. the terrorist surveillance program. what went on for several years before the exposed this is what is actually going on. he said people within the agency or so troubled by the fact they had all this power and was secret and nobody knew what they were doing and it was a terrible problem. so it was exposed. congress again agreed the president went to congress which he should have done in the first place and congress said okay and they gave him more power than he had claimed himself. what about the court?

i think we are accustomed, those of us during the civil rights era, to thinking it is a president in congress doing something unconstitutional the courts will be there to save us and uphold the constitution. so the aclu brought a lawsuit challenging these in the national security agency claiming that it was a violation of the fourth amendment and the plaintiffs in this case or a lawyer in guantanamo who had a relative in yemen and they would no longer talk on the phone or e-mail because they were afraid the government might be listening and they might end up on the no-fly last to attract government attention. they were scholars to talk to the moderate islam and around the world that dried up. so the lawyer had to fly to yemen to be witnesses spending a lot of money so we actually won that case in the district court despite the administration are doing the state secret privilege nobody could know about this but

what happened is the sixth circuit court of appeals reversed that decision that they had no standing but the only people who can challenge the secret surveillance like this in court are people who can show that they themselves have been under surveillance. to me that is a catch-22. the point of secret surveillance is you don't know when you are under surveillance. the people who found out the government is -- >> host: when they are prosecuted. >> guest: once they are prosecuted the are a criminal defendant. in a few cases that has come up in the context of the criminal case the generally look and say well it's interesting -- >> host: there was one case it was erroneously disclosed -- >> guest: this one foundation did find out of the hidden under surveillance because somebody in the government had mistakenly

sent them a text that showed their lawyers had been eavesdropping on by the government however those classified so the government told them they had to give back the documents and pretend they had never seen it so when it came time to bring the lawsuit they wanted to claim standing and the government said you can't rely on the document because you were not supposed to see it and what the district judge finally did is found a way to find the hid standings without relying on the document. >> host: and the government was using this to a secret document is that correct? >> guest: i'm not sure if it was the classification oryx ackley with the way into the arguments were with the judge decided instead of taking on that argument just to find other grounds for standing. the decided last week in the challenge to the successive statute withstand a panel

decision that we do have standing but that is one example. we ran into a prosecutorial and other cases as you note have gone on state secret privilege. i talk about guantanamo and torture i try to talk about the things that affect ordinary americans but there's another story the aclu has had a number of clients with claims of extraordinary rendition and torture not a single one of them has had a day in court. >> host: so getting down to where we are on this you eluted that there has been a couple circumscribing of so returned in the last decade. reading this book and giving the full benefit of the doubt, if what you say is true you have a

very bleak world where all of our liberties are being surpassed the president is striding it, the congress is playing dead, the courts are too proud to stand up to the political branches and all we have is the good sense of the people but the good sense of the people have been told by the fear of the ten years or by the government convincing them that no liberty is being eroded and the only hero is the off litigated but somewhat unsuccessful aclu because everybody is out against you to protect liberty. we need to be resting our democracy and a constitutional system. >> guest: as prada as i am of the speed i will say it was only the aclu. there were other individuals standing up and to me it isn't a

minor thing to say it's the american people. my book was referred to as a wake-up call and i think what i'm trying to do is give the american people some information. so one piece of good news is the constitution is resilient and it has a lot of pieces so the first story i was telling about samuel hussain that was in a case for the branch using the statute they had been given by congress went after somebody for reasons i think were inconsistent with the first amendment and that judge field to do anything about it and we have a right to the retrial and they stood up and defend the constitution. freedom of the press, they did publish the story in "the new york times" telling us what was happening. so there are a number of ways in which the constitution protects itself. >> host: the alternative story may well be that yes, you know, there are concerns would liberty, there are also concerns

about security and you and linda greenhouse and "the new york times" are just wrong. people need not be woken up because we have been cognizant of this time but we happen to disagree with your view of the world in your division of the constitution. after all the reason why congress we authorize after a pulitzer prize and all the facts came out is because the american people supported 78 or 85% in terms of the polls. >> guest: i think this is really the crux of the whole thing. the american people have been left of this debate and post-9/11 was a mosaic pherae and the idea is you can't tell anybody anything heavier during our anti-terrorism efforts otherwise if they find out that we are planning to deport this particular person that might help them and the fury was so overwhelming and too far there's just this instinct that has

followed through. to me the story as the national security leader is a great example of having everything behind closed doors. a lot more has been hidden from the american people and we barely found out about the number of things that i think that if the american people really had a good conversation about these measures i'm also sure they would agree. what happened in the patriot act is six weeks after 9/11 with no debate, testimony, and there was never a good discussion on some of the things we did that we put into the laws in the days of immediately following 9/11 in terms of our rights to costly and counterproductive. we never had that discussion and what i'm trying to do in this book is give people the information. if people understood some of the things we thought might be true after 9/11 mean not be true. it's not true we are financing terrorists at the brooklyn

mosque and that is one that translated. so it turns out not to be true. >> host: i agree with you we should have more congressional involvement, we should have more political involvement with american people. with respect when you say there's been michael more and there have been space process he's not just -- >> guest: this is one reason why i said the reason of american democracy is there are an attempt to marginalize the american people but i can also tell you may be one final story the bill also be about the press here. there are a number of he rose not victimized but also individuals who have stood up and were never prosecuted the, the government never went after them but they stood up for constitutional law use.