intelligence that tells you that -- they are plotting to blow up airplanes on which our citizens are going to fly, or they're plotting to blow up the world trade center or a synagogue, we have -- one of the civil liberties we have in this country is the right to life, the right to travel safely on airplanes, hopefully. the right to go to a wedding or public building, to have our children protected when they're try i trying to go to school, protected from things that happen in israel all the time. synagogues being bombed and school children being killed with missiles. if your responsibility is to protect the american people from that and you have someone in another country that you cannot possibly bring to justice before that crime or that mass act of terrorism is committed and

the -- it is -- you're unable to go to those places and bring them to justice in a courtroom, you're not going to be able to bring the witnesses to put them on trial. and you have the capability of preventing that disaster from happening. so, you now are thinking about the civil rights of this individual, who is preparing and -- anthony says, well, maybe he -- the moment before the missile strikes, he's having a conversion. but maybe he has killed lots of americans already. and he has equipped other individuals to kill lots of americans. and you can't stop that. that's already under way. that's going on. now you have the rights of that individual to something that antmy calls judicial process, which you cannot possibly bring about. >> is the aargument that this should be decided by the generals, by the -- >> i'm getting to the dilemma. i mean, it's not an easy thing

to answer. and you put that -- those civil rights against the people that you are sworn to protect from acts of despicable terrorism and you don't have a choice to do it the way everybody would like, which is to bring someone in the court, have all the witnesses, myrrh miranda rights, brady right, blah, blah, blah. all those kinds of things. you don't have that choice. so you allow that to happen until you can do the thing that you can't do, which is to bring about this judicial process. or you use a drone or some other method of killing that individual. i think it's extremely difficult. and there are always going to be cases that you could kill wrong people. you could kill children in the vicinity of that suspected terrorist. >> it happens. >> it does happen. >> american citizens. >> it happens when you send

soldiers into the field and they're defending themselves. they don't have the luxury of stopping someone and then giving them rights and getting them a lawyer and then trying them. they have to shoot and kill or they're going to die. so, these things are -- i'm with the aclu on these things. i'm glad you're there. i'm glad you're fighting for those things. but at the end of the day, sometimes people in positions of responsibility have to make decisions because it's not a perfect world. >> i certainly did. i worked with both anthony and steve in different ways. anthony and i went to guantanamo together on the first trip. >> we did. >> ngos. that's right. >> after a very long and hard day, looking at the military commission. >> it was a very special trip. on many, many levels. but i wanted to get back to this -- the broader point that

adam was raising. jack goldsmith has been talking about his new book and this notion that the aclu's position in these cases, these sort of post 9/11 security cases in particular -- not just the aclu but other ngos as well have either been not at all productive -- that is, they haven't achieved anything in terms of promoting liberty. but not only that, they may be counterproductive. i guess i think that's wrong and i at least think that the answer is a lot more complicated than that, right? so, for example, torture, which was the issue that i spent an enormous amount of time working on when i was at an ngo working on these issues, there was a time before, right, in 2002, where we had reports out of afghanistan where prisoners were being beaten to death. blunt force trauma. we couldn't get anybody to pay any attention, right, that this was going on? then you had the pictures by 2004 -- oh, and in the meantime,

a lot of senior people on the the right and left saying, yes, of course we should torture people, depending on how serious the issue is. that sounds like a fine idea. then we had abu graib. between the research, reporting and centrally the aclu was successful in obtain iing tens thousands of pages of documents that showed that we ultimately -- the group i was with reported more than 100 detainees have died in u.s. custody, right? suddenly have a different debate about detainee treatment and tactics, radically different deba debate. 2005 to a bill sponsored by senator mccain, saying you can't treat detainees in custody by cruel and degrading treatment. and an executive order, right? a series of executive orders by

obama that seems to have really effectively ended the use of those tactics in american custody across the board. so, that's one example, right, of what i think one can say we don't even talk about it anymore. we mostly don't talk about it anymore, because it seems like we sort of helped fix that. now, is it eradicated? no. is that a victory? yeah, absolutely. the extent the claim is this is counterproductive, right. so what's the argument there? is the argument that, gee, if the aclu had done nothing, we would have been better off because the 800 people that were at guantanamo would have been released anyway? we wouldn't be down to 150? it's a little hard to see exactly what he's trying to get at. it doesn't point, though, i think, to a question that is worth asking, which is a question of strategy. so, the aclu has, you know, one of the best litigation shops in the country on these issues -- on any issue, right?

how do you decide when to litigate or effectively negotiate? you have a host of different tools in your tool box and sometimes it's right. you can see, coming down the track, if you go to court on a certain issue, right? the odds are are you're going to lose. what are you gaining, p potentially, in terms of calling attention to the issue and everything else in terms of what are you potentially losing going forward? that is an incredibly tough series of calls and ones that the aclu has really -- >> to steve and then we'll come back to adam on this. >> ted is obviously right. these are extraordinarily difficult questions. nobody pretends otherwise. but it is also true on this specific issue that surrounds terrorism, united states is not the only country that has suffered terrorism. it is the only country that claims the right to fly around drones and on an active

battlefield kill people, including their own citizens. why do we feel the need to do that when other countries do not? second secondly, in answer to this question of have the lawsuits been counterproductive? what do you gain by bringing a lawsuit, especially when going in you anticipate that you may lose. you always hope you win but you anticipate you may lose. that's what we ask ourselves every day in the office. when we're deciding to take a case -- and people in management have heard me say it over and over and over again. if we think the chances are slim, we ought not to be bringing the lawsuit because we're not in the business of losing lawsuits unless we can identify other benefits we hope to obtain simply by fighting. and i think the alawaki lawsuit was not an issue for the courts to resolve but the mere fact that the lawsuit brought a

prominence to the issue, forced public discussion, led to the attorney general's speech, which is then -- in turn led to a whole series of responses. and none of the debate might have taken place, were it not for the spotlight that the lawsuit created. the third thing, i'll just say historically -- adam was saying that the earlier cases in the movie were simple. they're only simple in hi hindsight, obviously. they weren't simple at the time. the scope trial was not simple at the time. and there's a famous quote. i wish everybody had rounded them up, put them in camps and not asked for our approval. because then when the war is over, we would have gone back and not done anything to the law that would have last with us more permanently. now that you've asked us to ratify this, that hangs to be

invoked at certain times. i understand this argument. this is jack goldsmith's argument. the question you have to ask yourself is, would we have been better off as a country, had the case not been brought, even though the case was lost? i think the answer to that is clearly no. >> i was just trying to be provocative. >> go ahead. be provocative. >> steve makes an excellent point. they think the court is the only ones that matters. especially the foil litigations. there i want to pause and say that, to my embarrassment, the aclu and other organizations have taken on the role that the press used to do. they used to do a lot more foil

litigation when we used to be richer. we would do these things sometimes to get stories but sometimes just as a matter of principle because we thought government secrecy in some areas was simply offensive. the press has receded, the aclu has taken on a role that in a perfect world we should still be doing. you see clinics popping up at places like yale law school, also a measure of how much less of an economic engine the press is in trying to ensure some of these rights that should belong to all of us. let me give you a stray thought on this question about drones and killing people and what due process means. ken's response perfectly right so long as we're thinking about it in a war paridgm. before the soldier shoots he doesn't have to get a warrant or go before a judge. if the attorney general is going to invoke the concept of due

process and then redefine it, i think you want to pause and see if that means due process to you. i don't know that due process means a judge but now with the o'connor opinion, it does mean the presentation of some evidence, ability to counter that evidence, neutral party, perhaps lawyer representing you. maybe not reasonable doubt but some sort of testing of the evidence. in a setting where it can be judged by the public, i would think. to see if our government is doing the things we want them to be doing, you know, through some kind of lens, some kind of paradigm that sounds like what the attorney swren is talking about, due process. but we don't have any idea. we don't have a clue what kind of procedures go on here. >> you kind of got us going here on the domestic front. do the same arguments apply in this broader concept? >> i think they do. whether we want to turn,

arguably, political issues into legal ones that give judges power. and i absolutely agree with the way the national security issue has been presented. i think these are agonizing questions. and i applaud the aclu for taking on a democratic administration. many of the traditional allies of a democratic administration have gone silent on the challenges posed by the continuing war on terror. so, i think they've shown themselves to be very principled and they are raising important questions. but there is a discourse out there that criticizes the growth of so-called law fare, that we are imposing on a war context too much of a due process

paradigm that is simply inappropriate. the parallel, i would say, in a domestic context, mr. shapiro mentions the issue of, well, we all want to, you know, support economically people on the street. and that's true. i think that they are using the courts as a surrogate for making social and economic policy. and courts are not good at trading off competing interests. so, if they get an order that says, for instance, on prison litigation, that we have to spend x amount on prisoner's rights, that may be perfectly defensible in the abstract. but it ignores the fact that public bodies have to make trade-offs of what they spend

here versus what they spend there. and judges, rightly, are not often politically accountable. and so they are short circuiting, i think, in many instances a political process. as far as the issue of public safety and policing in new york, i would place that as a rights issue as well. and there has been no greater public success over the last quarter century. public policy success over the past quarter century than new york policing. government has never achieved anything like it has done in new york city, where you have 10,000 minority males who are alive today, who would have been dead had new york homicide rates remained at their early 1990s levels. no war on poverty program has brought that degree of

improvement to inner cities that assertive data driven policing has done. stop and frisks and hot spot policing is an essential part of how new york fights crime. but it has nothing to do with race, nothing. every week, the commanders in the new york police department meet to discuss the worst crime areas of the city. and they are concerned about one thing and one thing only. where are the victims? and race never comes up. and when they find crime patterns occurring, they are going to deploy officers there because, unlike the rap against police 40 years ago, that they ignored crime in minority neighborhoods because, oh, well, we know that's just the way

those people behave. the process that's come to be known as com stat holds officers ruthlessly accountable for the safety of the poorest citizens of new york city. and they use stop and frisks when they see suspicious behavior. it has nothing to do with race. and by intervening early in suspicious behavior, they prevent crime from escalating. new york city and new york state has had a prison decline, unlike many other states. in large part because we are arresting crime before it happens. we are not waiting till felonies occur, but intervening if we see suspicious behavior, somebody who looks like maybe casing a victim. we're going to ask a few questions. averting crime, pouring out somebody's open whiskey bottle who is drinking in public at 11:00 am rather than waiting till 11:00 pm when that person

is good and drunk and you might get a knife fight and a homicide. i think the aclu has done a disservice to police departments across the country by charging them with racial profiling, charging them with going after suspects on the basis of race when, in fact, they are looking at behavior. and they are addressing the demands of law-abiding people in communities. if you go to a police precinct community meeting in harlem or central brooklyn, you are going to hear three things. a, we want more cops. b, we want the dealers off the streets. you arrest them. they come back. and we want more quality of life public order. that has nothing to do with race. and the new york police revolution has given a voice to the law-abiding residents in poor neighborhoods they never had before.

>> i stopped steve shapiro from addressing -- >> i'll ask one question and let my boss take over. and that is -- i think heather is confusing a lot of different things or merging a lot of different things in that answer. there are policing tactics that are unobjectionable and there are policing tactics that i think are objectionable. if police are, in fact, as part of the stop and frisk stopping people when they think they are up to something that is nefarious, they need reasonable suspicion. one has to question why 99% of the people who are nevstopped a never arrested. >> 12% are summoned. the police cannot always be right. you cannot always assume that everybody you stop and question is going to have evidence of crime on them. that doesn't mean that the stop was not following a reasonable

suspicion standard. what i would like -- i'll ask you a question. the police are often criticized for their stop ratios that do not match the population of the city. but that analysis, which the aclu frequently uses to charge racial profiling -- for instance, in new york city, blacks are 23% of the population, but 55% of all stops. that, the aclu, is prima fascia evidence of racial profiling tactics. what should the stop ratio be, given that blacks commit 84% shootings in new york and 66% of all crime? the flaw, i think, in the aclu's conventional racial profiling analysis is that it uses census data for the benchmark of policing, not crime. crime drives everything that the police do. so, given the crime despaispari,

what should a stop ratio look like that would satisfy the aclu? do you think because whites are 35% of the population, they should be 35% of all stops, even though they only commit 1.4% of all shootings? >> anthony, do you want to -- >> i'm trying to give you a chance. >> really. so first, let me just -- you know, i grew up in public housing projects as a kid. i live d it. i lived on the 12th floor. the elevators never worked. the family next to mine got murdered when i was 7 years old. i had traumatic nightmares as a child. you know, cousins ended up in gangs, you know. so, i don't need to often relive the facts that i remember. however, let's just leave aside the constitutional arguments for a moment. we'll get back to them. if we want to police the type of projects that i grew up in, in a

better way, do we think it makes logical common sense to alienate the very families who are going to be essential to fighting crime in those communities with these police practices? because when you so anger and make good, hardworking class people, such as my family, fear the police -- which we did -- and our clients are harassed, as they were because police were stopping them in the hallways because they're black or latino. when you make the communities skeptical of working with the police, of calling the cops, of giving tips, you're not doing anything for public safety, heather. just on a matter of pure totalitarian, i would love to go to -- we'll go together to some

of these community town hall meetings. you pick some, i pick some and we can compare notes. it's not all a kumbaya moment for people of color in the bronx when they see a police officer walking down the street nor have they been held relentlessly accountable. we can't even get convictions for cops who rape women while they're on duty. so, i think there's some very fine men and women in uniform. i have one cousin, joey. right? and there are some -- there are very many problems with the ways in which they are asked to do what are very difficult jobs. that being said, we also cannot look to the fact that some crimes get more attention from the police department in some parts of town. i want to get back to national security. that's more of what the national office does. the work locally is very important because civil liberties has to be part to deliver locally. you can't work on these issues from new york or washington. you have to work in the bronx,

austin, mississippi. we have offices in 53 states, 900 employees. this is the commercial. only organization in the country with on-the-ground staff presence in every state across the country because you have to work locally to deliver civil liberties. now, that being said, the issue, though, is how you think about crime. and it is amazing to me the lack of prosecutions in the neighborhood that i frequent the most. wall street, where my office is. right? so if you want to talk about crimes and you want to talk about the great tragedies on stripping people's pensions, homes, houses and we look at the kind of -- the fbi, the police department, the justice department. white collar criminals that have pushed the communities into further depths of poverty because of those. policing is not all even handed. you can cite the statistics.

i would have to check them. about how many of my community members are committing violent crimes. let's also look at the fuller picture of crimes and pit it back to national security, if we can for a moment. people of color being targeted by the police are friends or foes of the police department? maybe we can start there. the point is the right one that adam raised earlier on about the challenges of figuring out the balance on these issues is a point that ted made, right, also. and there are trade-offs in all of these big cases. even in the homeless cases and police cases. there always are trade offs. the question is where do you come at it phil and whether you will -- or in protecting all civil liberty you protect the common good. i don't want to become so reductionist that that becomes

the way we frame it. i, of course, see myself in the latter category. you're right, ted. there are very hard calls they make in government. but sometimes the intelligence is wrong. we went to war over intelligence that was wrong. that was purposely positioned to the american people and the world community as wrong. sometimes the facts are not as clear. and that's why you need some form of adjudicated body to make sure that what they assert is the truth. at the end of the day when the stakes are so high on life or death, literally, you don't have the luxury of resurrecting someone you've killed wrongfully. and that's where i think perhaps that's where the scrutiny is most necessary. you convict someone for the wrong crime and they were innocent and dna proves they were not the ones who committed the crime, you can let them out.

but you can't resurrect a person you target for assassination. that, for me, raises the stakes. why do we pick these cases? because they're such life and death circumstances, because the power that's being exerted is of such a level and nature that it is enormously troubling and provoking. there's torture going on in american prisons every day. and so why do we care more about the torture at guantanamo than the torture of the l.a. county men's jail? the torture at guantanamo was sanctioned at the highest levels of our office of our government. and that's what makes it so unique. finally, i will close it -- at least my part -- with this. i think, heather, it's interesting that you say that we short circuit a political process by bringing lawsuit. i think we kick start a political process by filing lawsuits. to ask a legislative body to do the right thing for groups that

are pa rypariahs -- there's no there's any political constituency for the guantanamo bay detainees or the individuals targeted by the government. you have to turn to the courts. that's the role of the courts, protecting the minority from the winds of the majority. the lovely example you gave on criminal justice issues, the reason why we are having so much success on criminal justice reform -- and we have. just read the newspapers. i can send you the clips. geriatric prisoner mills, mississippi enacting to empty out the principles. new york, california. it's because we filed the lawsuits and because legislatures were forced to take a look at those centered question and now we can resolve it through legislative process. i think often you carry a big

stick and sometimes you use it. and you create that political will on issues that are very difficult to convince people on, because they're not very nice people. you know, criminals, terrorist suspects. you force political leaders to take on what are sometimes very difficult issues by force iing m down the road. i think that's often the role. >> very brief. >> very briefly. i guess i would disagree with your characterization in some cases of the typical client of the aclu or other advocacy groups as politically powerless. on skid row in los angeles, there is no sthort shortage of advocates supporting the right of people to colonize sidewalks, to take over the entire pedestrian routes with encampments where they're shooting drugs, attacking each other. in 2006 a mentally