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Transcript of the current episode of "Declassified", which examines recent Bush administration security measures, and their impact on civil liberties.

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JOHN ASHCROFT: We are at war with an enemy that abuses individual rights, as it abuses jetliners. It abuses those rights to make weapons of them with which to kill Americans. 

PETER ERLINDER: What we've seen is that when the immediate danger has passed, there is a period in which we look back, and wonder how it was that we were able to so easily give up the rights, and the principles, upon which our democracy is based. I fear that we're in one of those times again.

NARRATOR: You are listening to "Declassified," an ongoing interview and documentary series dealing with America's national security establishment. In this episode, "Declassified" looks at recently enacted anti-terrorism measures, and hears from civil liberties advocates about the impact that these actions may have on the rights of American citizens. 

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NARRATOR: On September 11th, 2001, hijacked airliners were flown into the World Trade Center and Pentagon, killing thousands of people in the largest act of terrorism ever committed on U.S. soil. In the wake of these unprecedented attacks, the Bush administration instituted sweeping new security policies. These measures included three major initiatives: the U.S.A. Patriot Act, the establishing of military tribunals to try terrorists, and the reorganizing of the Justice Department and FBI to focus more closely on domestic intelligence and counter-terrorism, rather than on traditional law-enforcement duties. Together, these changes amount to a wide-ranging expansion of law-enforcement and intelligence authority. The changes have been so extensive, that a broad array of civil liberties advocates from both the political left and right have raised concerns that the powers granted by these acts may exceed those necessary to fight terrorism, and may also place too much authority into the hands of the government. While the White House champions aggressive domestic security measures to combat terrorism, critics warn that in its zeal to prosecute the war on terror, the administration is violating core constitutional principles, and is fundamentally changing the nature of American law, and American society. This episode of "Declassified" looks at some of the new security policies enacted by the Bush administration, and hears from civil libertarians from across the political spectrum about the impact of these measures on American freedoms. 

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NARRATOR: Since its founding, a core concept of American political and legal tradition has been the limitation of governmental power. The U.S. Constitution, and the Bill of Rights, embody this concept by setting many limitations on state power, and recognizing numerous individual rights. Peter Erlinder is a professor of criminal constitutional law at William Mitchell College of Law. He is also a past president of the National Lawyer's Guild, and a founding member of the National Coalition to Protect Political Freedom.

PETER ERLINDER: The amendments that are most important for the purposes of our discussions now are the First Amendment, the right to engage in free speech and to engage in political activity with a great degree of freedom. There's also the Fourth Amendment, which limits the power of government to carry out searches and to seize individuals. Also the right to counsel has an important part of our history under the Sixth Amendment, and of course the fundamental notion of due process: it means, for example, that the same party cannot be the judge, jury and prosecutor in a case; that there have to be separate roles carried out by different actors, and there have to be balances in the procedures themselves to make certain that the process is overall fair. 

NARRATOR: Erlinder and other civil liberties advocates argue that recent Bush administration security measures cut deep into territory long protected by the Constitution. One of the most problematic measures they cite is the administration's anti-terrorism legislation, the U.S.A. PATRIOT Act.

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Passed a little more than a month after the terror attacks, the complex 131-page bill was approved almost unanimously in the Senate, and overwhelmingly in the House, despite the fact that the final bill was not widely available prior to the House vote. The PATRIOT Act amends numerous areas of law, giving police and intelligence agencies expanded authority to wiretap, conduct surveillance, and execute searches. It also limits the ability of courts to oversee many of these new law-enforcement activities. Nadine Strossen is the president of the American Civil Liberties Union. 

STROSSEN: I think of great concern to many people is the fact that this law expands the government's power to monitor Internet communications, including e-mails and web surfing, even of people who aren't suspected of any crime at all. There's also vastly expanded power to examine financial records, records from banks and other financial institutions, credit reports, medical records, student records, business records, again, without any showing that the person whose records are being revealed is suspected of any kind of terrorist crime, and without notice to that person. So, it really contains pervasive steps that are marching us toward a surveillance society.  

NARRATOR : Ron Paul, a Republican congressman from Texas, was one of sixty-six members of the House of Representatives to vote against the bill.  

RON PAUL: Well, there's lots of parts to it that I didn't like, but just the idea that there will be a lot easier chance for the government to get search warrants, listen to our telephone conversations and monitor e-mails without really proper warrants ... I think we should all be concerned about that. This doesn't mean that the government doesn't have a way of doing these things when they suspect people are doing something wrong, but they want to make it too easy for the government, and make it too difficult for the American citizens to preserve their privacy. 

NARRATOR: Critics of the PATRIOT Act also contend that although the legislation was aimed at investigating and preventing terrorism, most of its provisions can be used in regular criminal cases, challenging many traditional constraints on the government's investigative power. Nadine Strossen: 

STROSSEN: I call it the so-called anti-terrorism law because on its face, as written, straightforwardly, expressly, clearly and explicitly, uh, virtually every provision in it is written to apply to law enforcement in general. It is not limited to terrorist crimes. This was something that was pointed out at the very beginning by Bob Barr, former U.S. Attorney from Georgia. And he said, "Look, this is just a laundry list of law enforcement powers that the Justice Department has repeatedly asked Congress for, to expand its power to enforce the law in general, and Congress has repeatedly said no." 

NARRATOR: One change contained in the PATRIOT legislation that has been widely criticized by civil libertarians is the expanded ability of the FBI to sidestep the Fourth Amendment protection against unreasonable search and seizure by getting a warrant from a special secret court known as the Foreign Intelligence Surveillance Court. Peter Erlinder: 

ERLINDER : After the revelations of the Church committee in the 1970s that showed that the Nixon administration had engaged in widespread illegal electronic surveillance of American citizens and political groups, a number of reforms were enacted by Congress and put into place in the Justice Department, limiting the power of the executive branch to carry out these investigations. One of the congressional responses was to create a special type of court for foreign intelligence purposes. And these courts were called the FISA courts, and they're secret courts, but limited only to situations where the government could show that an individual was an agent of a foreign power.  

NARRATOR: The FISA court was set up in an attempt to grant the FBI and other agencies the ability to conduct surveillance against agents of foreign governments. Its provisions set a lower threshold for obtaining search warrants than the standard used in regular criminal cases. Furthermore, FISA warrants could be issued for covert searches, where the subject of a warrant did not have to be notified, unlike most criminal warrants. These broader search powers, however, were not allowed to be used in criminal cases against U.S. citizens. Critics note that this former distinction is substantially blurred by the new PATRIOT legislation, by eliminating the prohibition on using secret FISA searches in criminal cases. Critics contend that the very balance which the original FISA act tried to ensure has become undone. Nadine Strossen:  

STROSSEN: There is a pervasive theme through all of these provisions of allowing the government to exercise its search power quite unilaterally, without having to make the showing that's demanded by the Fourth Amendment to the Constitution, that there is probable cause to believe that a particular crime is being committed, or has been committed, by the person whose communications, transactions, records, etc., are going to be intercepted. And that's a problem that pervades many, many new surveillance powers.  

NARRATOR: Other PATRIOT provisions that modify the FISA act allow the FBI to share information from its investigations with the CIA. This change ends a long-standing prohibition on allowing the CIA to have surveillance capabilities aimed at U.S. citizens.

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In addition to broadening the powers of law enforcement agencies, the PATRIOT Act also redefines the crime of domestic terrorism, which it describes as "involving acts dangerous to human life that are a violation of the criminal laws of the United States" and "appear to be intended to intimidate or coerce a civilian population", or "to influence the policy of a government by intimidation or coercion." This expanded definition has raised concerns that government prosecutors will be able to redefine a broad range of criminal offenses as terrorism, allowing people who engage in certain crimes during a political protest, for instance, to be prosecuted as terrorists, with additional penalties. Nadine Strossen: 

STROSSEN: The U.S.A. PATRIOT Act has a dangerously over broad new concept of domestic terrorism which first of all wasn't necessary, because there are plenty of criminal offenses that cover every terrorist act that already exist, and can already be punished to the maximum extent of the law, including the death penalty. So we had ample legal provision to prosecute and severely punish those who commit terrorist crimes. What this new law does, is add to the government's arsenal sweeping power that can be used to punish legitimate political protesters, acts of civil disobedience. To be sure, there has to be some element of violence or threatened violence but the concept is very broad and could extend to something as relatively innocuous as uh, throwing a pie at the Secretary of Agriculture as happened.  

NARRATOR: Michael Ratner is an international human rights lawyer with the Center for Constitutional Rights.  

RATNER: What they do in this act, they take acts that would be normally civil disobedience ... for example, one day I blocked cars in front of the White House in protest of how they were treating Haitian refugees. Or when the WTO people climb a fence and try and disrupt a meeting or block traffic. They took crimes like that, that are crimes - they are either misdemeanors or low-level crimes; occasionally a felony - but they're not treated that seriously in the United States. They're treated as civil disobedience - and they've really given themselves the ability to call that domestic terrorism, and give it a 20-year sentence. They've done that by saying, really a two-part formula -- that if you do something that is dangerous to human life, and you do it for the purposes of coercing or intimidating a civilian population into doing something, that's domestic terrorism. Obviously, when I blocked traffic with my body, and one of those pieces of traffic happens to be an ambulance, I may be endangering human life. That could be domestic terrorism. So this looks to me -- if you look at that part of the law -- that's nothing about September 11th. There's plenty of laws on the books for September 11th and terrorism. That's really about domestic dissent in the United States.  

NARRATOR: The PATRIOT Act is a complex, extensive piece of legislation, and there has been much criticism about the manner in which it was constructed and passed. Michael Ratner: 

RATNER: Normally, legislation doesn't go that quickly, as the U.S.A. PATRIOT Act did. It's thought out over a period of months, sometimes years. It originates in one House or another, and they both do bills, they have lengthy hearings; lots of people testify about them. These were really run through quickly. I think it took six weeks to get a 170-page, 168-page bill through the Congress and many, many congressmen never knew anything about the bill, never got to read the bill at all, particularly the House side. So most of the congressmen never even saw the bill they voted on. And this is a bill that changes my life and your life and the lives of immigrants, incredibly. 

NARRATOR: Certain members of the House of Representatives attempted to rewrite key provisions of the PATRIOT Act, limiting many of the powers contained in the Senate version, and putting time limitations or "sunset periods" on others. This alternate bill was derailed in the House, prior to the vote, however. Congressman Ron Paul: 

RON PAUL: Well, the Senate had been working on a version of the bill that the consensus in the House was that they didn't like it. So the Judiciary committee on the House side worked diligently and very well for quite a few weeks, and they took the Senate bill and they made it much, much better although it wasn't exactly what I wanted, but it would have been a lot better than the Senate version, and at the very last minute they pulled some shenanigans and brought that up in the middle of the night, and switched the rules and switched the bills and when the bill was - when we were getting ready to debate it and vote on it - the actual bill was not available to us, either in hard copy nor on the Internet. So the members of Congress voted on that without having seen the final version. And now it's just sort of filtering out that, people in the media and other places are talking about it and writing editorials about it, saying, "Holy Man, what was in this bill?" And the members of Congress who voted on it deserve to answer the question of why they would vote for something like this. 

NARRATOR: In addition to security laws passed by Congress, the Executive branch has enacted many new security measures on its own. For example, the Justice Department has begun the process of reorganizing itself into a counter-terrorism agency, de-emphasizing some of its traditional law-enforcement duties. One of the more controversial steps in this department-wide reorganization has been the recent proposal to reinstate intelligence programs allowing the FBI to infiltrate and surveil political and religious groups for the purpose of gathering intelligence on potential terrorists. Similar programs were run by the FBI during the 1960s under the code name COINTELPRO. These programs, which investigated domestic civil-rights and anti-war groups, were roundly criticized when they were exposed during congressional hearings in the 1970s. Nadine Strossen:

STROSSEN: Attorney General John Ashcroft said that the Justice Department was at least considering revoking prior restrictions on investigations into religious institutions and political organizations, so that there could be spying and infiltration of churches, mosques, synagogues, uh, political organizations ... that would clearly violate not only First Amendment freedom of speech and association, but also religious freedom. 

NARRATOR: Opposition to these programs has come from inside the Department of Justice, as well as from outside critics. A December 1st article in the New York Times reported that several senior FBI officials were strongly opposed to reinstituting COINTELPRO-style surveillance programs. 

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In recent weeks, reports have surfaced in the American media that some members of the FBI and Justice Department have been informally discussing the use of torture against select suspects in the terrorism investigation. Michael Ratner: 

RATNER : One thing that's been floated in the U.S. press has been the idea that because a few of the detainees who they think might actually know something about Al-Qaida have refused to talk, there's been suggestions out of the U.S. government itself that they may have to torture people. Now that's a really striking thing to hear out of a country that not only is a signatory and ratified the Torture Convention, but has stood, you know, really tall in the world about outlawing and banning torture.  

NARRATOR: Torture has long been prohibited by American law. Reports indicate that because of this, some government officials have considered extraditing terror suspects to allied countries where torture is allowed.

Doug Johnson is the executive director of the Center for Victims of Torture, which helps to rehabilitate torture victims from around the world. 

DOUG JOHNSON: First and foremost, torture is illegal in all circumstances, not only in the United States, but abroad. There are a series of human rights that are incorporated within international treaties. Some of those are recognized to be suspended during times of emergency but some are considered unabrogated under all circumstances, and torture is one of the most important.  

NARRATOR: Johnson also maintains that contrary to common belief, torture is not an effective method of gathering intelligence. 

JOHNSON: Everyone will break over time. But the question is, what will they break to confess? In many places where torture is routinely used to solve police cases, the use of torture tends to make the police lazy; makes the judicial processes um, sloppy; and that's because people can always be convinced to confess to something whether they were involved or not. 

NARRATOR: On November 13th, President Bush issued a military order authorizing himself to establish military tribunals to try suspected terrorists, rather than trying them in established criminal or military courts. While the White House has declared that it needs access to the broad powers granted by this order, these actions have sparked wide-spread opposition. Michael Ratner:  

RATNER: This order is certainly the most Draconian order that I've seen in my thirty years of being a lawyer. It begins by saying that the president can designate who he wants to try before the tribunal, so that it's up to the president to decide who's going to go before the military tribunal, and then when you get to the trials, you see that they're really courts of conviction; they're not courts of due process or courts of justice. When I say they're courts of conviction, I say that for a number of reasons. First, the president appoints the judges. They're not sitting there as lifetime judges, but they're only appointed for this purpose, and the president is obviously going to pick people who he wants to convict people, and who want to rise-up in the military. The judges will be both judges and juries. There's not going to be juries in this case. The same person who decides the law will also decide the facts. And they will be able to give the death penalty. 

NARRATOR: Military tribunals have been established at times in the past, but under circumstances that differed from the current situation. Peter Erlinder notes that in the few times military tribunals have been utilized, they have only been created during periods when Congress has formally declared war. Without a declaration of war, says Erlinder, the president may be overstepping his authority. 

ERLINDER: Well, first we have to say that the Constitution is very clear that the power to establish the federal courts resides in the Congress. There have been some exceptions to that, where military tribunals have been established during wartime, but these were during formal declarations of war, where the Congress had acted to declare war. This is the first time in the history of the United States that the president has asserted the power to set up military tribunals without there being a formal declaration of war by Congress. 

NARRATOR: The administration has stated its intention to try only non-citizens under the military tribunals, but critics suggest that the very case law the administration is relying upon to prove its authority to establish these courts interprets the matter differently. Peter Erlinder: 

ERLINDER: We need to make it clear that the military tribunals during World War II were used against citizens as well as non-citizens. And a citizen was executed by this tribunal without there being appeal, and without there being review. So although the President at this moment has not claimed the right to apply these military rights to civilians, there's nothing in the previous cases where these tribunals have been used to prevent the use of these tribunals against civilians.  

NARRATOR: Gene Wheaton is a former military criminal investigator and security contractor who worked on counter-terrorism and security programs for Rockwell Corporation and the Saudi royal family. He's particularly critical of the powers delineated in the president's military order, and notes that these powers are similar to those of regimes that the United States has publicly condemned in the past. 

WHEATON: Well, you know this discussion about needing military tribunals and extraordinary powers of the government right now is a knee-jerk reaction to a real problem, but not the worst problem we've ever had - the attack on Pearl Harbor, World War I, World War II, and so forth - but to take that a step further and go into these secret military courts where you can, where the same person can be judge, jury, prosecutor, executioner with, what, seven members of a military panel and only four of them say the guy is guilty; three of them says he's not guilty, and they can execute him, under those circumstances? Without even telling him or the public what the charges are, without even telling the public he's been executed, without even identifying him. This is a secret police state when they do that ... 

NARRATOR: Michael Ratner: 

RATNER: One aspect that is striking to me in the set of laws that have come down since September 11th is how much they resemble the kinds of curtailment of civil liberties and the kinds of Draconian laws that are used in many nations that the United States condemns for using these very laws, that we would call police states, totalitarian states or dictatorships. So here you have the U.S. which is supposed to be, in its own language, a "beacon of human rights" in these areas, following the exact pattern of the countries it has condemned as police states. 

NARRATOR: While the White House has defended its recent actions as necessary to prosecute culprits of the September 11th crimes, and to deter future terrorism, some critics are skeptical that the newly instituted policies will bring the desired results. Michael Ratner: 

RATNER: I don't think they're necessary. I don't think they're necessary for a couple of reasons. One is that they haven't shown that they didn't have enough power before to catch the September 11th terrorists - and it wasn't simply a matter of a massive intelligence failure, and that they could have done it without having additional powers. Until they show me that, I don't want to hear about new curtailment of civil liberties. And they've even stalled a congressional investigation about that, about looking into why they failed on September 11th. They didn't do that; they said it was inappropriate to do; they didn't want to do it for another year. In lieu of that, they passed a huge number of laws that they may have no need for at all.  

NARRATOR: Nadine Strossen: 

STROSSEN: I feel very strongly, and it has been the ACLU's position, that it is a false dichotomy to say that we have to give up freedom in order to pursue national security. Too often, measures of precisely the sort that we're complaining about now, when they've been invoked in the past, have turned out not only to violate people's rights, but also not to demonstrably, or in any way, improve national security. 

NARRATOR: Gene Wheaton: 

WHEATON: If we allow our Constitution and democracy to be trashed so easily, these 19 guys who got on those four airplanes on September the 11th will have accomplished what 200 years of us fighting enemies around the world, from the War of 1812, to World War I, World War II, the Korean War, the Vietnam War -- they will have accomplished - 19 men - will have accomplished what all of our enemies in the last 200 years had failed to do ... and that's to destroy the Constitution, and democracy, and freedom in the United States, because of an event one day. It was a bad event and we ought to go out and take revenge on it ... but to just have this as an excuse to collapse the Constitution and democracy is so bad that it's almost treasonous. 

NARRATOR: Peter Erlinder 

ERLINDER: What we've seen is that when the immediate danger has passed, there's a period in which we look back and wonder how it was that we were able to so easily give up the rights, and the principles, upon which our democracy is based. And just as now when we look back on the Japanese internment, we have national embarrassment and shame, I think that we're in danger of creating that situation again. 

NARRATOR: You have been listening to "Declassified," an ongoing documentary and interview series dealing with American's national security establishment. Copies and transcripts of this program can be ordered at www.declassifiedradio.com. Please refer to "Security and Civil Liberties" when ordering this episode.





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