>> this is c-span3 with politics and public affairs programming throughout the week, and every second, 48 hours of people and events telling the american story on american history tv. get our schedules and see past programs at our websites. and you can join in the conversation on social medial sites. tonight here on c-span3, american history tv takes a look at the presidency of richard nixon. at 8:00 eastern, an oral history from congresswoman elizabeth holzman, a member of the congressional committee that considered impeachment charges against president nixon. at 8:30, a friend of elvis presley describes the 1970 oval office meeting between elvis and the president. and at 9:30, david gergen who as a speechwriter for president nixon wrote the president's resignation letter. april 15th, 1912, nearly 1500 perish on the ship called unsinkable.

>> once the lookout bells were sounded the look -- once the lookouts sighted al iceberg ahead they struck the bells in the crow's nest three times, ding, ding, ding which is a warning saying there's some on the ahead. it doesn't mean dade ahead and doesn't say what kind of on the. what the lookout then did, he went to a telephone nest and called down to the officer on the bridge to tell them what it is that they saw. and when the phone was finally answered, the entire conversation was what do you see? and the response was, iceberg right ahead. and the response from the officer was, thank you. >> samuel halperin on the truths and myths that have night sunday at 4:00 p.m. eastern, part of american history tv this weekend on c-span3. yeshiva university recently hosted a discussion on civil

liberties and the issues of police misconduct, torture, health care, campaign finance and same-sex marriage. among the panelists the aclu's executive director and president george bush's first solicitor general. this is just over 90 minutes. >> good evening, everyone. we're the pbs news hour. i want to welcome you all for coming and thank cardozo for having me here again. i was here once before last year for a have interesting panel. we have an even sort of grander larger subject tonight. as soon as i sat down in this chair i remembered the feeling last year. it's the helm of the star ship enterprise with the panel here. i do want to thank dean matthew diller and professor david rubenstein for putting us all together and for inviting me. i'm on live television all the

time. people always ask me if i get nervous and the answer is no, generally i don't get nervous two things in life make me nervous. one is coaching, well he's now in college but it was coaching my son's basketball team. because that, you know, can only go wrong. that can only go bad and did. and the other thing that makes me nervous is walking into a law school. it's a long story, but i went to law school a long time ago for two years. i won't bore you with the details. i never finished. things have worked out okay, but i still i walk in, and this was -- i was at berkeley. and i was out there a few weeks ago actually and i was visiting. they've done a lot of expanding at bolts hall. i was visiting the dean and i walked into a room where they had all the books of the fact. i'm looking at these books from my former professors and i just got the shakes. anyway, i am glad to be here. our subject tonight is the aclu.

it has been involved as we have seen in some of the most important and contentious cases and events since world war i. its influence is seen everywhere at the staple, it is one of the most polarizing nongovernmental organizations we have to be a card carrying member of the aclu, it's a badge of honor for some, a banl of something quite different for others. it's going to be impossible for us to explore all of that history and all of the cases. there's way too much, but i would like to at least trite to demystify a little bit what this organization is, talk a little bit about how it makes decisions and how it goes about picking things it gets involved in as well as some of the cases themselves. the idea here is to have a freewheeling discussion that i will lead. no speeches, no opening statements. i've encouraged everyone and i've been able to get in touch with all of them beforehand.

i'm just encouraging everyone to jump in to feel free to pick up on one another's comments, disagree, agree. pick up cases, bring up cases that you think are important and remind us briefly what those cases are about because we won't remember all the cases. so, onward. briefest of introductions here along with a question, you have to forgive me for doing this to you all. but i thought i want to get everybody involved real quickly. anthony romero is the executive director of the aclu. since i didn't realize till i was reading your biolast week, since september, 2001 just before the attack on the world trade center. when i talked with thoempb the other day, he said you know, i'm happy to do this but i don't want this to be a love fest. i want to go into the things that we've done wrong. so here's your shot, anthony. fill in the blank. the aclu is a polarizing

organization because it what? >> because it hasn't done a good enough job explaining what we do and why we do it. i think often, and we are trying our best and we need to do better. i think it's often the fact that when we take on a case or a set of clients or a set of issues and the individuals are unpopular and it looks self-evident to us why we take on ta case, we need to go the extra step and explain it. and even among friends of minor family members of mine, when we defend for instance the rights of fred phelps, the homophobic disgusting reactionary christian minister to mount a funeral protests at the -- at the burials of men and women coming back from war saying that the reason why men and women of in uniform are being killed is because god's protection has been lifted because we're giving gay people like me their rights.

so the when we take on that case in my tenure, and i got a phone call from my sister saying are you kidding me? what happened to you? you know? and we have to really unpack it because i don't think it's self-evident even for really smart people, my sisters's brilliant, a great person with great values and you have to unpack it for them and saying it's not just a hypothetical that if you allow these loathsome points of view to be censored, then the points of view that you like are next in line. it's like tear gas. you might think you blow it in one direction and then the winds will blow it right back into your eyes. so do you think you're pushing censorship in a place where it belongs you better close your eyes because it's going to right back at you. i don't think we do a good enough job explaining some of those decisions. >> ted olson was the solicitor general, of course, in the bush

administration argued many important cases before the supreme court and is now partner with the gibson dunn and crutcher in washington. same question to you. the aclu is a polarizing organization because it is what? >> well, i disagree a little bit with the premise. i know that the aclu is unpopular in some places because it does what it does which is to represent unpopular causes but i never felt that way personally. i know that other people do, and especially conservatives, and i think of myself as a conservative but i also think of myself a little bit at least as a libertarian. and in the conservative world, there isn't a monolithic conservative world or republican world. there are a lot of libertarians or people that care very much about liberties in that -- at that part of the political spectrum. i'm very, very -- anthony doesn't want this to be a love fest but and i will try to say

unpopular things so he can defend me. and i'll always love you, ted. i'll always love you. or marry you. >> oh, boy, we're getting more out of this than i ever expected. >> i thought we'd maybe have that proposal take place in private someplace. but i'm very personally very, very grateful for the aclu and always have been. i grew up in california, and by the way i went to that same law school and it scares me to go to a law school. but -- >> you graduated though. >> but i think what the aclu does is tremendous. it is -- protects all of us, and but i won't go on and on about that because you didn't want this forum to be that. but i think that it's very, very important that we recognize that will the aclu takes these positions because it's defending the next of us that's going to

be accused of thing or doing something that somebody wants to prosecute or is accused of a crime or something like that. the aclu is protecting all of us. i think one of the things we'll probably talk about is the choices that the aclu makes when it has to decide which side of an issue because almost not all but many, many of our civil liberties issues involve civil liberties of one person and they infringe on the civil liberties of another person and probably you're going to get into that. >> absolutely. >> that's i think a very important part of the equation? >> debra perl stein is a professor of law here at car doe scope and was a founding member of human rights. where do you come down on this polarizing issue. >> founding director. >> somebody gave me bad information. >> that's okay. >> but i'm the one who said it so it's on me. >> no, no, it's quite all right. and by the way, if you don't want to be afraid of law school,

you should have come here. we're actually, we're a pretty friendly group. >> if things don't work out, i may come back. >> the door is always open. so, it's a great question. and i was thinking about sort of as i was watching the film the history of my own personal sort of when the did i first become aware of the aclu and it was, in fact, around the nazi case, right? in skokie, illinois and thinking i had exactly that reaction. i grew up sort of in a jewish household but a liberal jewish household and my sort of jewish community thought oh my god, how could they possibly take on this case of these horrible people. and it was the first time sort of in my coming to legal political consciousness that i actually realized what it patent to have a principle of free speech that actually was designed to protect everybody be and was not designed to be sort of content specific.

so i don't want to make this a love fest as well although i'm more susceptible to it than you. but it struck me that the aclu is so polarizing and it can be because it attacks the issues and i mean this in in the best sense, it attacks the issues sort of most profoundly device i be, most profoundly challenging to us personally as individuals as a society. these are issues, what do we mean really when we say free speech and equal protection? these are questions that go to the heart of who we are as a people. and sometimes we are all susceptible to the idea that oh, well, it's clear what the right answer is in this case and i know what's right. that is a very sort of tempting and seductive way of approaching being a citizen in society, right? and the aclu repeatedly buy taking positions forces us to confront the cases in which it's

not that easy in which our precommitments to a set of principles force us or require us to take positions to support people we couldn't possibly dislike more or challenge us to really test what it was we thought we believed in in the first place. that's and you believely uncomfortable position to put people in, right? but to draw something from our ancient constitutionalism panel, yesterday, there was a concept in roman society of citizenship requiring people to take a position. right? it is not good citizenship to just stand back as society confronts major questions and confronts crises and its dilemmas. citizenship demands engagement at this level. and i think that's part of what makes the aclu great. it's also part of what makes it so challenging to many of us. >> heather macdonald is a fellow at the manhattan institute here in new york and -- >> that's correct. >> i got that part right? >> easy. >> i also see that you went to

the law school at that other school on the california coast. >> the former one. >> right. >> on the peninsula, stanford. >> what is your take on the polarizing question? what naks it polarizing? >> i think what's so striking about the aclu is that issues which were polarizing in the past have now become completely part of the american fabric. and we can't imagine how it was seen as a fundamental apocalyptic threat to the nation to pass out literature about communism or union organizing. so the aclu i think has really defined what it is to be an american today. and i'm grateful for those crusades in the past. so it is with extreme humility and trepidation that i offer any dissenting views because history has not been kind to the aclu's

critics. by and large i would say that from this perspective, most of the battles that it fought throughout this century we now feel it was on the right side. that having been said though, my recollection -- >> but -- >> of the aclu was coming to new york city in the late 1980s when the city was at probably its nadier of near anarchy, lawlessness, public spays had been taken over by one set of individuals in many instances of mentally ill, street addicts, vagrants that had made public spays like grand central terminal almost unusable to other individuals, not to the

government but to other individuals who had a legitimate expectation of being able to use public transit or public libraries. and i think that for all the good that the aclu continues to do with its free speech cases whether it's citizens united or continuing to police the boundary between church and state, i think in many instances it has been a force of regression against enlightened urban policy. the prime example is continuing to go on. los angeles right now where mayor antonio villaraigosa himself a past president of the aclu, has been struggling to bring civility and safety to kid skid row in los angeles downtown that had been and still is, thanks to the constant court

battles that the police are fighting, a locus of squalor and deep pravity unlike anything you've ever seen unless you've been there. and the police have been trying to apply broken windows policing in a fair and just manner and they keep getting hit by lawsuits from the aclu and from other homeless advocates down there. the addicts who are trying to go clean, the elderly residents of the sros are terrified to go out on the streets. and the people that are supposedly the beneficiaries of this are getting preyed on by other advocates. so i think in some instances, the aclu has lost eight common sen -- lost a common sense balance of rights and responsibilities that has made the effort to the reclaim urban spaces and return

american cities to the vitality that they should have and can have as new york city demonstrates, the aclu has made that more difficult. >> well, steve shapiro, i guess this is time to call on you. steve shapiro is the legal director of the aclu for a long time. right? >> right. >> would you like to respond to that, lost its balance. >> let me just say the aclu does not support squalor. we occasionally support depravity. but we do not support squalor. and you know, if what we are down to is debating how the aclu responds to policing tactics and broken windows strategies, then i think we have already reached consensus on about 95% of what the aclu does. so that's a pretty good scorecard to begin with. i think more generally, heather,

our position is and you know, i live in new york. i lived in new york all my life. i was here in the '80s and the '70s when it was worse than when you arrived. and the question is not whether we all want to the live in a more hospitable environment and not whether we want our government to provide services to people who need them, including the homeless and people who are suffering from addictions of one sort or another, but whether the government is doing that in a way that is consistent with the rights of the people it purports to be trying to help and in a way that respects their basic human dignity. so it's not a disagreement over goals. it's a disagreement over tactics. and the issue has more salience today not so much over questions of homeless policy but if we're going to focus on new york city for a moment, on the stop and frisk policies of the new york

city police department and you know, that's a subject that we -- you and i could probably -- can probably debate, as well. >> let's do it. >> as well. >> let's do it! >> but when we're stopping 6,000 people on the street, less than 1% of those stops are leading to arrests and the vast majority of people being stopped are racial minorities, i think there is very little we are gaining in terms of public safety and an enormous amount we are losing in terms of the ability of people of color to live in the city and feel like they are not suspect just because they live in the wrong neighborhoods or attend the wrong schools. >> well, i want to get into that. >> you're getting in the middle of this debate. >> i have to get adam in here, adam liptak is the for the supreme court.

dramatic events in washington at the court. jump in here. how do you -- >> so the reason these days it's polarizing, the nation is so polarized because people seem to think that there's bad faith on both sides of the debate. and the aclu is accused of a certain kind of naivety, particularly about war on terror issues. anthony talks about the phelps case. it's a good case but in a way it's an easy case. a lot of the videotapes we saw, in retrospect, were easy cases. they did not pose actual threats to the united states. these are what holmes called puny anonymities. what about the people we actually need to be afraid of? there the aclu has fought like hell and achieved very, very little.

there's a provocative article by jack goldsmith suggesting that some of these efforts, in fact, have been counterproductive. if you go to court and ask for an answer, you may get locked into an answer you don't want. i think the answer why polarizing, it's because there's a -- really two different world views drifting further and further apart about whether the issues that engage the aclu -- important national security matters where, you know, detention policy, rendition policy, state's secret policy, all that stuff. and even now in some of the domestic surveillance and just ordinary law enforcement, like the gps case and the strip search case. we really start to feel like we're living in a different era. and it's not clear that the courts or american society are

receptive when we moved away from puny y anonymities. a peace group offered to benign assistance to a group that had been labeled as a terrorist organization by the state department. but nonetheless, all that was involved was pure speech to help these guys try to resolve their differences peacefully. and the supreme court -- you know, probably in the most shocking free speech case in decades said that kind of benign peaceful speech can be made criminal by the federal government. i say that only -- not because the aclu was involved, i don't think. but because it sets the tone for the era in which they're fighting. and i'll be interested to hear some responses from steve and anthony about the strategic choices they must have to make day after day, about whether to

even go to court to get an answer because you may not want the answer you're going to get. >> anthony, go ahead. >> yeah. excuse me, i think adam is exactly right. in a lot respects, the fred phelps case is easy unless you're the parent of the person being buried that day. often the letters we get and the phone calls and the outcry is often from people who feel agrieved rather directly. i completely agree with you. let me be quite clear. the national security cases are among the most controversial on our current docket. i think they are the gold standard of our cases. and i think -- i get this all the time. why do you care so much about 150 some odd guys in orange jumpsuits at guantanamo? we've got 1.25 million prisoners in america. whooey do you care about 150 of them? why would we spend so much in the defense of sheikh mohammed?

why would we bring a case against mr. alawaki's father killed by a drone? if you talk to mr. alawaki's father, there's no case that's more important. here, though, you're talking about the most critical assertion of government power. the number of individuals directly affected may be several hundred, 150 in guantanamo. but when you have the highest rank of government decide to hold individuals without charges of trial, to ship them off to black sites, to authorize torture, which was hittihered t illegal. and then from the press, lawyers, the public, you're talking about a high stakes game

that can literally change the course of american history. and when we allow a government like ours to hunt and kill one of its own u.s. citizens not in a theater of war, with no assertion of the legal framework, no assertion of the facts and then kill him without any judicial review where the executive branch gets to be judge, jury and executioner, the stakes are enormously high. because those powers, once taken, are very hard to get back. and in this case with mr. al awaki, i went to dinners with high levels of the administration, and all 25

people in the room thought we got that one right. i was the only one at the table who said how do you know? how do you know he was guilty of being an operational member of the al qaeda? what proof did we get him? how do we know he did not have a conversion when he knew he was being hunted by his own government? do we not believe that people could have changed their minds? that he could have thought about laying down the weapons? how do we know that his mens rea the moment he was killed by his government -- i'll get off the soap box in a moment. i love to take on the hard ones. it makes it more fun. where are the checks and balances? you have the president of the united states, the attorney general who was appallingly -- appalling

appallingly pagestrean in his speech. i'm quoting verbatim. now what does due process mean without judicial process? i kind of don't get it. there has to be an adjudicated mechanism for due process. they go on and on, talking about the framework and the drone program and then later on, the sentencing. of course, i cannot confirm or deny the existence of this program which i've just laid out to you in excruciating detail. you kind of sit there and say, my god, what type of republic are we talking about? it's perfectly appropriate we should be talking about the greek and roman constitutionalism panel. at times it often feels we are at the cusp of losing the very basic rules -- i'm not exaggerating here -- the most basic functions of what defines a republic.

even if it only deals with one individual in yemen talks about an extraordinary usurpation of power, of which we ought to all be skeptical. >> you were there for many years of this very debate of executive power, especially in the post 9/11. >> well, it is not ours that easy. if you don't have -- i don't like the idea of defending a program where we kill american citizens without some sort of process or things like that. but i think you have to look at it from both sides when we're having this kind of a conversation at least. if you have individuals and if you are in the executive branch and you are sworn to defend the people of the united states and they are engaged in activities, they are plotting and you know that