The
segments included in this interview excerpt were recorded
in October 2003, as part of THE COST OF FREEDOM -
Civil Liberties, Security and the USA PATRIOT Act,
a look at the history of civil liberties in America
and the controversy surrounding the USA Patriot Act.
The documentary is a co-production with Iowa Public
Television. Peter Erlinder is Professor of Constitutional
and Criminal Law at William Mitchell College of Law.
He is former president of the National Lawyers Guild.
(*
This transcript has been edited due to length.)
When
you look at the course of history and today's reaction
to the Patriot Act what lessons can be learned from
American history?
Well I think that its a truism that at times of threat
or national stress its quite normal for government
to assert power and for people to feel comfortable
giving those powers to the government because they
feel insecure. That really defined what happened during
the Alien and Sedition period in the seventeen nineties;
we saw it again in the Civil War where the right to
habeas corpus was suspended and military tribunals
were used in places where the civilian courts had
ceased to function. We see it again in other times
in history like in World War One where the opposition
to the war resulted in people being arrested for what
seemed to be minor issues today--the distribution
of leaflets that urged people to resist the draft.
We've seen it in the period of the Palmer raids during
the nineteen twenties when the threat of the bolshevism
of the Soviet Union was viewed as a threat to the
society. We've seen it in the World War Two when Japanese
people were interned in great quantities and great
numbers and we also see it during the anticommunist
period and the McCarthy era. Time after time the question
of civil liberties has been challenged during periods
of threat and when we've looked back at those periods
very often we've been embarrassed by the results of
the diminution of civil liberties during those periods
and we've then had to struggle to reestablish the
normalcy of civil liberties as a reaction to those
periods of overreaction in our history. I think that
we are going through a period that is similar to those
at this point as well. And in some ways its even a
greater period of concern because the proposals, not
only the Patriot Act but in the use of administrative
power by the executive branch, are on a scale that
are much broader that those that were asserted before,
even during times that the Soviet Union threatened
the existence of the United States, even when Japan
and Germany presented a threat on a world wide scale,
the claims of executive power that we are seeing during
this period of the war on terrorism are beyond those
claims that we have seen before.
So
what exactly is different under the Patriot Act?
Well I guess the first point to make is that the Patriot
Act didn't just pull together things that were already
on the books. The Patriot Act and the administrative
actions that have existed since that time have actually
proposed a fundamental change in the structure of
government. And it certainly would not be obvious
to ordinary people that this sort of fundamental change
was going on around them. The reality is that even
at other times in our history for example during the
period of time that the Japanese were interned, most
people weren't effected by that. Many weren't even
aware that it had happened. And so the idea that the
general population may not be thinking about the long-term
implications of what is going on is completely to
be expected. And also there is also a general tendency
I think that it was probably expressed best by Pastor
Niemöller: "At first they came for the Communists
I wasn't a Communist. Then they came for the Jews,
I wasn't a Jew. Then they came for the Catholics,
I wasn't a Catholic. Then they came for me and there
was no one else no one else to object." And that's
a generalized condition that until people feel the
effects of these changes in their personal lives they
are disinclined to believe or to understand first
of all how important these changes are, or to believe
that they might even have any relevance to them. And
so that's a normal occurrence. But perhaps the best
way I can explain this and perhaps the single most
dramatic difference that I think that we have to acknowledge
has happened is the president of the United States
has claimed the power to execute people without judicial
review. And that is a step that is beyond any claim
that has ever been made in the history of the United
States before. The way it is being done is by claiming
that military tribunals that are not governed by international
law, that have no review in civilian courts, can be
set up by the president, that those military tribunals
can carry out the death sentence and that the only
review of that decision would be through the president
himself. And that is an exercise in power that speaks
of the power of a tyrant or a sovereign who is beyond
control or beyond review. The other provisions, the
Patriot Act and other changes are more subtle but
they are all directed towards the centralization of
power and the use of unreviewed discretion by the
executive branch of government. And we could talk
about dozens of examples of that. But the claim that
the president of the United States can carry out executions
without review in the civilian courts is an extraordinary
claim to power.
It
seems what you are describing is the return of the
imperial presidency and a return to ideas that the
founding fathers reacted against. Is that true?
Well
I think that there's an example that struck me when
I listened to the debates in parliament as to whether
Britain was going to support the US war effort. It
was quite clear that parliament had no role in the
final decision because the sovereign in England has
the power to declare war that is delegated to the
prime minister and so there is no legislative component
in the declaration of war in England. Our constitutional
structure is intended to change that entirely and
the declaration of war is something that the congress
must uh must pass. It can't be done by the president
alone. However, what has happened is through a misuse
of congressional power to declare war and the encroachment
of that power by asking for informal approval for
use of military power we've seen a situation where
that difference between the sovereign's absolute ability
to declare war in England and the congress' to declare
war in the United States has been merged so that the
separation of the executive from the power to declare
war is much less distinct now than it appeared to
be at the time that the constitution was created.
In
the area of immigration law, which is an area which
is typically given over to a great deal of executive
branch discretion, the Patriot Act has allowed the
Attorney General, part of the executive branch, to
make decisions about who is a national security risk
and to incarcerate people without judicial review.
The claim has also been made that the executive branch
has the power to hold hearings in secret that neither
the press nor congress nor anyone can observe. That
the declaration that someone is an enemy combatant
for example, which is an executive branch decision
that has no definition in constitutional law, that
has never been authorized by congress, can be used
to arrest and incarcerate citizens indefinitely based
purely on the presidential decree.
Also
the Patriot Act has reduced the level of judicial
oversight of investigations carried out by the executive
branch. It is no longer necessary for there to be
probable cause that a crime has been committed to
be able to engage in things like electronic eavesdropping,
secret searches and even the infiltration of and surveillance
of perfectly legal groups. Prior to the Patriot Act
because of the excesses of the imperial presidency
of the Nixon era, the FBI's investigations for example
were limited. Those limitations have been removed
so that the FBI and the executive branch is now claiming
the power to play a surveillance role to oversee or
to investigate any organization it chooses including
churches, groups of a civil nature, mosques, people
who are organizing for political purposes, not because
a crime is being committed but merely because the
government wants that information. So what we are
seeing is the legalization of many of the aspects
of the Nixon administration that had previously been
declared either illegal or unconstitutional.
Can
you talk about the argument that maybe the ends justify
the means both now and at other points in American
history?
The idea that from the governmental standpoint that
the ends justify the means is precisely the reason
that the Bill of Rights was necessary and why the
English Bill of Rights before that was necessary.
The argument on the part of the sovereign or the government
that that its necessity that drives the exercise of
extreme power or extraordinary power is the claim
to which the Bill of Rights is directed. We saw for
example during the Civil War that the extraordinary
period that existed then resulted in Lincoln and even
Congress agreeing that opposition to the war should
be punished, people should be locked up for being
traitors to the northern cause, that military tribunals
could be used. We saw the reaction to that however
quite quickly. The Supreme Court said that it was
not proper to set military tribunals in places where
the civilian courts were functioning, that there is
an exception but that exception must be narrowed and
must be tailored. Even the Constitution itself that
talks about the writ of habeas corpus being able to
be suspended in some circumstances and the care with
which it defines the way in which the war can be declared
makes clear that there are times when the ends justify
the means. But the reason that we have a Constitution
and a Bill of Rights is to narrowly define specifically
what those are and to make clear that the exceptions
don't become so broad and so well entrenched that
they overcome the rules that govern society generally.
In the case of the Japanese internment for example
the ends justify the means was used as an argument
at that time as well. And its interesting to see that
even today the Supreme Court has never declared that
the internment of the Japanese was unconstitutional
even though reparations have been paid and its been
recognized that that was an abuse of government power
at that time.
The difficulty that we have through the history of
the two hundred years of our republic has been trying
to draw very careful lines about when these exceptions
should apply. We're in one of those periods again
and it seems to me that what our history has shown
us is the government has an important obligation to
justify the use of extraordinary power before that
power is granted. Unfortunately because of the reaction
and the fear after 9-11 it was possible to use that
argument--to claim powers that are so broad --that
we have reason to question whether the balance of
powers in which government is supposed to be limited
as a fundamental tenant of our governmental system
whether that still is a concept in which we in which
we believe as a people. The thing that is most difficult
about this current period is the exceptionalism that
is being claimed is based on the idea that the war
on terror and the war against evil is a war that will
last forever. And when we put together the idea of
the ends justifying the means together with an exceptional
period that has no end, what we have essentially done
is establish the philosophical basis for eliminating
limited government. And those two ideas are extraordinarily
dangerous ideas in historical terms because exceptions
are not indefinite. Exceptions are not lasting forever.
There has to be an end to war in order to define it
as an exception. What we have defined for us is a
war without end which means not an exception to a
general rule but a changing of the general rule. And
that I think is in a claim that is new and one that
exceeds those claim of the ends justifying the means
that we've seen previously.
Can
you talk to the similarities between the Cold War
period and the War on Terrorism?
I
think that that those are apt comparisons in the sense
that you use them because its essentially an unofficial
war that is of seemingly long duration perhaps of
unlimited duration. The cold war however actually
presented some threats that were in some ways more
direct than the threat of the war on terrorism. The
cold war was based in competing philosophical systems
and economic systems. The threat of communism and
socialism was actually a philosophical principal that
had some support in the west, a much greater level
of support than Islam is likely to raise in Europe
or in on this side of the Atlantic. In addition it
was supported by an enormous military power including
nuclear weapons on a broad scale that really did threaten
the potential annihilation of not only the United
States, but also conceivably the whole world. So in
that sense the threat of the cold war was actually
much greater than the threat presented by terrorism
today. On the other hand, because the cold war was
a war that was identified as a conflict between nation
states it fit more easily in to the idea of international
law that has governed international relations for
the last several hundred years. And because the war
against terrorism is more defuse its harder to identify
who the combatants are. It presents particular challenges
that make clear that the response is probably a police
response, a law enforcement response on an international
scale as well as domestic scale, rather than a real
war in the way we have understood it in the past which
is nation states going against each other. I think
it's important to recognize that even though the cold
war presented the potential of annihilation on a world
scale, that the claims of presidential power and executive
power that we are seeing now were not made at that
time and that use of executive branch power was actually
more limited during the entire period of the cold
war, although there were aspects like the McCarthy
period that have some similarity. We are seeing claims
of executive power that far exceed anything that occurred
during the cold war.
During
the cold war you had hysteria, but you also had genuine
threats. Likewise the same situation exists today.
So what is the appropriate balance between security
and civil liberties?
Happily
we have a Bill of Rights and a Constitution that is
supposed to define that for us and I'm certainly not
wise enough to be able to draw that line myself. But
I think that I can suggest the process by which that
line might be drawn. And that would suggest that until
the government can demonstrate an absolute need for
diverting from normal exercises of government power
and the normal of balance of powers that we have in
our system that those changes should not be made.
And the changes should be made carefully and deliberately
recognizing that they are exceptions before we allow
the exceptions to occur. What's happened here I think
at least since 9-11 is that decisions have been made
in haste. We were told for example that it was necessary
to enact the Patriot Act because it was not possible
without the powers that the government had before
to undertake investigations of terrorists or to prevent
9-11 from occurring. What we have since learned from
revelations within the FBI as well as other governmental
agencies is that as a matter of fact there was a great
deal that could have been done with the rules that
existed before and hadn't been done. Not because the
additional powers were necessary but that the powers
that had existed before were not used in an effective
fashion. And it seems to me that unless there is a
demonstrated necessity for changing the basic structure
of government because the threat is so large that
those changes should not be made. Until this point
there really has not been a demonstration either that
the changes are necessary or that they've been used
particularly well. And it seems to me that government
has a much greater obligation than we've imposed on
this government to make their case. What we've had
is claims that have played into the fear that is understandable
but it has not been a thoughtful application of new
powers.
Please
explain the checks and balances put in place to prevent
to much executive power.
It's
an old saying that preexist our country I imagine
that "power corrupts and absolute power corrupts
absolutely." A person charged with the responsibility
of managing a country and responding to threats to
that country to protect its people would understandably
be driven to accumulate the power that that person
thought was necessary to accomplish those tasks. And
to the extent that one takes that responsibility seriously
it's a natural desire. But it's that natural desire
that led I think the founding fathers to recognize
that human beings require limitations on their power
in order to make certain that government could function
in a way that did not allow tyranny to develop because
if there's a good emperor or a bad emperor may not
be as important as the fact that there's an emperor
at all. And of course we might prefer the good emperor
to the bad emperor, but our system of government is
really set up with the idea that an imperial presidency
is contrary to the long-term interests of both democracy
and the republic.
