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. Damon Moglen is the national field coordinator
for the American Civil Liberties Union, National Legislative
Office in Washington D.C.
(*
This transcript has been edited due to length.)
How
would you define civil liberties and how do you interpret
the founding fathers’ intent?
Well
I think civil liberties is the space in which we are
free to be who we are, how we are and when we are.
It’s really an idea of creating a society that
protects personal freedoms; while also taking into
account that as a society we live together and that
we have interlinking and sometimes conflicting interests.
And I think one of the extraordinary experiments of
American democracy was that the founding fathers and
mothers were people who were completely beyond their
time in recognizing that the Constitution needed to
be a document that would allow for extraordinary levels
of flexibility. It’s not just as simple as the
fact that statements about men being free and equal
or able to become people being free and equal. It’s
not just the statements about who could vote, appearing
to be, at first very open but that became much larger.
Their language was very flexible. And very open and
the experiment of American democracy I think has very
much been to increasingly inhabit that wonderful open
space that are civil liberties in our country.
When
we enter times of crisis, in your opinion and in the
ACLU’s opinion, do the ends ever justify the
means, when you look at actions like the Patriot Act?
I
think that there are repeated events in US history
where there have been times of crisis that we have
looked back with true horror at what we did. That
at moments of great crisis we acted in ways, which
we now recognize to have been hysterical or wrong,
headed or racist or we became clenched. We lost assurance
of the very things that we most hold dear, and rather
than exercising those, reflecting those, we began
to hide them, we began to deny them, we began to think
that somehow those very things that we hold so dear
led somehow to the crisis that we found ourselves
in. And I like to think that after the fact, that
after time, after the dust had settled that the country
has been able to turn around and say, “Wait a
minute, we did something very wrong.” And I think
that is what happened with the internment of Japanese
Americans for example, during the Second World War.
I think that it happened after the Palmer Raids and
what happened in the late teens and early twenties.
So, I think that it goes back as far as the Alien
Sedition Act at the end of the eighteenth century.
Which is to say we have repeatedly had these moments
and I like to think and the ACLU likes to think that
one of the remarkable things about our country is
that we were able to turn around, undo errors that
were made, try to apologize for errors that were made,
and continue to forge ahead in inhabiting the liberties
that the Constitution and the Bill of Rights give
us.
What about avoiding them in the first place?
Well
a nation and a government are made of people and I
think that for anybody living in Washington D.C. at
the time of September the 11th, the ACLU’s offices
were wedged at the time directly between the US Supreme
Court and the Hart Senate office building, we liked
to call it Anthrax Alley at that time, as you may
remember not only did the Congress have a sense that
it had been under direct attack by these terrorists,
who after all had been flying a plane towards them
as far as they were concerned. But also, of course,
that with the Anthrax attack and suggestions from
the government that somehow these things might be
connected, there was a true hysteria in Washington.
That does not excuse anything and the Patriot Act
as far as the ACLU is concerned is inexcusable. It
was dumb at the time and it’s dumb now. But the
fact is that what you saw there was a time of true
hysteria and fear. I mean remember that you have US
Senators who are voting for a piece of legislation
that not only have they not read they can’t even
get into their offices. The disruption of the US government
at that time is a very significant thing. And again,
it doesn’t excuse it, but I think it’s important
to recognize that these people were also under a tremendous
level of stress and strain and what they did was really
dumb and really wrong and now we’ve got to change
it, we’ve got to make it, we’ve got to take
back the civil liberties that have been so much put
to risk.
Can
you identify with some specific examples where the
Patriot Act is problematic, if not unconstitutional?
Well,
I think that first of all, what’s important to
recognize is that the Patriot Act is only one of many
problems that have been launched in the aftermath
of September the 11th. The ACLU is very concerned
about a series of federal actions, not just the Patriot
Act. There’s the Patriot Act, there are the rewritten
FBI guidelines, there are programs like the total
information awareness program of data mining and data
collection. There was the TIPS program in which citizens
were asked to snitch on other citizens. In particular,
what the Patriot Act does is that you have a series
of problems. For example, Section 215 of the Patriot
Act which is allowing the seizure of private records.
These records can be seized without any indication
of criminal wrongdoing on the part of the subject.
So what that means is this is basically a green light
for fishing trips to be conducted, in which peoples’
most private information, their library records, their
electronic monetary records, their medical records,
they can be seized without a true indication of any
criminal wrongdoing on their part. And through a process,
which amounts to a rubber stamp from the judiciary.
Behind that for example, is even more what we’re
worried about which is that you have in this case
an example in which there is a change in the environment.
We’re under the impression for example, that
what happens is Federal Bureau of Investigation agents
go into a library and they say to a person there,
“We’re here under a federal investigation
and we really need this record.” They’re
not following the rules of the Patriot Act, they’re
actually playing on the sense that what they’re
doing is appropriate now. That these are unusual times.
We are at war. So, you have a situation in which a
problem like that one is even deeper than at face
value. It’s not just that the Patriot Act is
allowing this to happen, it’s that in a sense
it authorizes a form of intrusive federal behavior
that is very similar to what we had in the 1950s for
example. Other issues of concern to us are for example
the new definition of domestic terrorism. Under this
new definition, it is very clear that organizations
that participate in actions of civil disobedience
in this country on the left, on the right, are now
potentially going to be identified as domestic terrorist
organizations. Now that means an organization like
Greenpeace on one side or these organizations like
Operation Rescue on the other side could well be deemed
by a right wing attorney general or a left wing attorney
general as organizations which should now be identified
that way. And there’s a myriad of other problems.
Sneak and Peek warrants, the ability to tap phones,
all kinds of things in which in many ways the need
for there to be a criminal predicate, an indication
of criminal wrongdoing, those have been removed. And
that is a tremendous danger. A tremendous danger.
How
does Ashcroft, or other people in the justice department,
sit down, construct this document and see this document?
How is it that they reach very different conclusions
than you, the ACLU, that they do believe that this
is Constitutional? How can two groups look at this
and have such different opinions?
I
think first of all you really have to look at how
the Patriot Act was created. I think that a metaphor
really can be used in filmmaking that the way that
the Patriot Act was created was that in a time of
crisis the attorney general and the Department of
Justice turned around and said, “We need to know,
what are the things that you have always wanted, that
you’ve always needed to deal with these kind
of problems?” And people collected all of those
scraps, all of these aspects of various laws that
had been rejected in the past as being too intrusive,
too draconian and it was cobbled together. The Patriot
Act is not a well thought out bill. It is not something
that was given the kind of time and consideration.
It was pulled together and it reflects what certain
kinds of law enforcement officials always wanted.
What was their wish list of opportunities? So, it
was cobbled together in this way without a real reading
in the Congress, without the kind of hearings that
should have taken place. And it was then rammed home.
And as you’ve probably heard the story that the
ultimate bill that we call the Patriot Act was for
example delivered to the Congress the night before
it was voted on. So it is fair to say that truly,
a very small number of US Congress people, have actually
read the Patriot Act before they’ve passed it.
Why I think there can be such a disagreement about
what the Patriot Act means, is that there are law
enforcement officers who feel that they need these
powers. They are very aware of the tremendous burden
that rests on them to protect the public. And that
they feel that these powers are clearly appropriate
and necessary. I also have to say, and I think the
ACLU feels that one of the shocking aspects of September
11th is that our government had a tremendous amount
of information, indications of a problem, of various
problems that in turn became the terrorist attacks
of September the 11th. They did not connect the dots.
And people are responsible for not connecting the
dots, for not using the powers they had, and one of
the things that government does is, rather than accepting
responsibility for not having connected the dots,
having done something that they could have done, they
tend to ask for new powers. Suggesting that somehow
the problem was not one of doing the right thing in
the first place but somehow they need something new
so. And that’s very much what we feel has happened.
That rather than really assessing why it is that they
didn’t use pre-existing powers, and they didn’t
connect the dots, they’ve now instead asked for
whole series of additional powers. And that’s
inappropriate and it’s bad policymaking.
In
the context of the Bill of Rights and the Constitution,
when you look at issues of national security, what
is the proper balance and how do we achieve that?
I
think that really the ACLU feels that the Constitution
does not say that we’re supposed to change at
times of threat. The Constitution does not say that
because the President thinks someone is quote “an
enemy combatant,” the President has the power
to say, “You are no longer an American citizen.”
This is an essential error. As American citizens we
have these rights, they are inalienable rights. And
yet we now are at a time where by decision by the
President to say, “You are a bad American, you
are an enemy combatant. I am going to remove your
most essential rights.” That’s not in the
Constitution. That is not in the Constitution. That
is a critically mistaken grab of power. And the ACLU
certainly believes that in time it will become clear
that there have been a series of grabs for power that
will have to be renounced. And that this will be another
unfortunate chapter in U.S. history of at a moment
of crisis, government overstepped and took away civil
liberties it did not have the right to take away.
Can
you give us some examples now? If you are listening
to your average radio commentator, for example, the
big question is, “Give me an example.” John
Ashcroft says, “Yeah, we can look at your library
records, but we don’t. We can arrest somebody,
but we haven’t.” So how do you respond with
examples of abuse?
Well,
first of all, in the immediate aftermath, of course,
of September the 11th, you have hundreds and hundreds
of people who are basically racially profiled. Illegally
racially profiled. They’re collected because
their names end with a certain kind of name. Their
skin is a certain color. They are seen wearing the
wrong kind of clothing. Or they are seen worshiping
in a house of worship that is now questionable. That
is not a question. This has happened. Hundreds of
people in this country were taken off the streets,
they were incarcerated, they were held without judicial
processes. The most basic of our Constitutional rights
were denied people. There is no question of this.
And subsequently, what has happened in many of these
cases is that people have been deported, not because
they were terrorists, not because they had done something
wrong, but because there were minor visa violations,
and that in a sense, rather than leaving those people
in this country, who then would raise questions about
what had been done to them, those people have been
effectively and summarily deported from this country.
And that will be one of the chapters of the very ugly
book that will be written about this period. With
regard to Section 215 for example, this is an extraordinary
thing that has happened from Ashcroft and his recent
statements on Section 215, the one that allows you
to take privacy records.
For example, he goes before the Congress and he says,
“We urgently need these powers, this is a national,
a national security emergency.” The ACLU goes
into court saying, “This is wrong. This is unconstitutional.”
And the representatives of the Department of Justice
say, “To reveal this information, to give you
knowledge about how many times we’ve used this,
would disrupt our national security.” And a matter
of weeks later, in a public statement, they suddenly
announce, “We haven’t used this power.”
These arguments seem to be worn by Mr. Ashcroft like
different clothes on different days of the week depending
on the weather. The fact of the matter is, if they
don’t need these powers, then why did they demand
them? We have to ask another kind of question. What
does it mean when they say, “We haven’t
used that exact power”?
It’s a little bit, like when Bill Clinton said,
“What does no mean?” You know, I think you
have to begin to say, “Alright, now wait a minute
here. Does that mean that you have not used the power
as it’s formally construed?” Because I could
tell you, I have spoken with librarians who say that
what they believe is happening, for example, is FBI
agents show up at libraries at 11 o’clock on
a Saturday night, a university library where there
is a student who is standing at the front desk, who
has no power and no authority, and an FBI agent walks
in and says he’s there on a matter of national
security and he really needs a record and he really
needs it now. And the question is, does that eighteen-year-old
person stand up to a FBI agent? Now that’s not
done in accordance with the Patriot Act. The Patriot
Act requires a rubber-stamped document from the judge.
And our concern is it’s even worse than we think.
That there are ways in which by tearing up the Constitution,
that we now are in a situation in which there are
ways that the government is operating outside even
those perimeters which feel very much like the 1950s.
There’s an example, you may have read, that there’s
this extraordinary case in Fresno in which a peace
group has been infiltrated by an agent. For two months
a young man sat in their meetings, this is a Unitarian,
Universalistic, anti-war, peace group. A young man
sits, takes copious notes. He maintains that he has
all this time to be at all their meetings because
he’s independently wealthy and he’s very
committed to the cause. After about two months, he
disappears. And one day, one of the members of the
group reads in the newspaper that he’s tragically
died in a motorcycle accident. Except the surname’s
another surname, but the photograph is exactly this
person. And under the obituary it’s mentioned
that he happens to be a member of the joint-terrorism
task force and he’s a deputy of the local sheriff’s
office. This person has been secretly spying on people
participating in first amendment-protected activities.
They are not terrorists. They are Americans. They
are participating in what makes American democracy,
American democracy. And yet, they’ve been spied
on, they have been labeled, they have been taken down
as what? Risk to the state, I don’t know. But,
and I think this is our fear that more and more of
this is happening and that’s really scary.
Several
people at this conference [Grassroots America: Defense
the Bill of Rights] have expressed an opinion that
the conference itself is probably being watched, probably
bugged, probably has surveillance in the room. Do
you come from that perspective? Or do you feel is
there too much paranoia around this issue?
I
think the situation breeds paranoia, the problem is,
is there paranoia or is there completely a correct
fear? I think that this is a government that has made
it very clear that it is mindful of security in ways
that we would find shocking. For example, it is now
clear that this government has a policy in what they
call “free speech zones.” If you support
the President and you support his policy you are welcome
to stand near to him when he gives a public speech.
You are welcome to wave an American flag. You are
welcome to hold up a sign saying, “We’re
with you Mr. President.” But if that sign says
that you are of a different mind, that you believe
something different, that you criticize his policy,
people are being told, “You cannot stand here,
you have to stand a mile away – a mile away where
no one else will see you. Where the media will not
see you.” That’s in the “free speech
zone.” That is about saying certain kinds of
speech are acceptable to this government and this
President and others aren’t. And you know what?
That’s un-American. And it’s unconstitutional.
And it’s wrong.
You
mention the 1950s a number of times. What parallels
do you see between then and now? Do you think what
we’re seeing now is better or worse than what
occurred during the Cold War?
Well,
I think that there really are some parallels that
we have to draw between the current era and what happened
in the 1950s. I think that there is a sense that there
are dangers amongst us, that there are people who
mean to do us great evil. And who are themselves evil.
Our government has talked about very evil people.
And there is a sense that we are supposed to be watching,
neighbor to neighbor, watching, noting, noticing.
The government introduced, or wanted to introduce
this program called TIPS which was all about, you
better be looking through the window of your neighbor.
So there’s a kind of paranoia that is being encouraged,
that is being driven, and that is also being used
to justify these new actions. Within that, I think
that the kind of racial profiling that’s going
on, deciding that certain people from certain countries,
of certain religions, certain skin colors are necessarily
suspect has to remind us of some of the things that
were happening in the 50s, certainly behavior that
was happening in the 1960s, and the response that
certain officials had towards the civil rights movement
or the anti-war movement. And in addition, it’s
increasingly clear, for example, that when Mr. Ashcroft
re-wrote the FBI guidelines, one of the things that’s
in the new FBI guidelines, it specifically says that
an FBI agent, on his or her own initiative, at the
local level with no oversight from headquarters, can
follow you into your house of worship, can follow
you into your political meeting, without any indication
that you are involved in criminal wrongdoing. What
this is, is a complete rollback of decades in which
in the 1950s, 60s and early 70s, the FBI was spying
on people who didn’t agree with the government
or who maybe didn’t agree with the local sheriff.
And this is a rollback to that. Why is it that anybody
should be spied on in their church, in their synagogue,
in their mosque, in their political meeting if what
they are doing is exercising their Constitutional
rights and liberties? That’s wrong and it is
a throw back to a much uglier and more dangerous period
of time.
Abuses
that occurred in the 50s, 60s and 70s were revealed
during the Church Committee meetings. Can you tell
me how the government decided to redress those abuses
and then how the Patriot Act has rolled those corrections
back?
Well
for example, you talk about the Church Committee;
part of what happened was that COINTELPRO became known
about in the United States. These dirty trick programs
of the 1950s and 60s, the process of spying on the
civil rights community. The process of lying about
them, of sexual innuendo about them, of demeaning
them, of spying on them. As this became revealed,
in the Church Committee and elsewhere, COINTELPRO
became the thing that led, for example to the rewriting
of the FBI guidelines in the 1970s. Those are the
guidelines that on his own initiative, John Ashcroft
has now rewritten, without Congressional oversight,
without Congressional approval, those guidelines are
an internal agency matter. And yet, as radical a change
as open field for spying on first amendment protected
activities without a criminal indication. So the answer
is that they’re very bald faced in some cases
about these changes. They don’t deny the changes,
the question is, what’s actually happening and
part of the society we now live in is so much of this
is secret, you only learn about it anecdotally, you
only learn about it after the fact or you only learn
about it in a strange circumstance like a guy is killed
in a motorcycle accident and suddenly it becomes clear
that the guy you thought was just another political
activist in your anti-war group, turns out to have
been a spy, and was spying on you.
How
do you define the war on terrorism, and who gets to
decide when it’s over? And is it even a legal,
constitutional war?
Well
I think that first of all the ACLU took a very spirited
position that the War Power Act that launched in part
the war was not Constitutional - that the Congress
was not supposed to actually give a go ahead to the
War Power Act. In addition I think that the ACLU has
been very clear in saying for example that we are
deeply concerned that the war on terrorism has become
a war on immigrants. This is a country of immigrants
and yet now we are supposed to believe that just because
people are a certain color, just because they come
from certain nations that they are immediately and
integrally suspect. That is un-American. That is un-American.
I think we are very concerned that the war on terrorism
is being waged in ways that do not appear clear to
us - that are not constitutional. And that in turn,
to say that these actions are justified with a war
with no apparent end, with very unclear goals. And
yet, that is supposed to be used as a justification
for major and dangerous modifications in our Constitution
and Bill of Rights that’s unacceptable. That
is unacceptable.
What
has happened then, in your opinion, to the system
of checks and balances? What have you seen in the
course of the last couple of years in relation to
that issue that gives you particular cause for concern?
Please also address issues related to the 1996 anti-terrorism
legislation.
One
thing I’ll say about the ‘96 Act, I mean
my colleague Tim Edgar, who is our legal expert and
also the lobbyist on this is actually here this afternoon
and I’d encourage you to talk to him about ’96
because you’re absolutely right. Grover [Norquist]
said it like it is, the fact of the matter is that
certain powers that this government is using, were
Clinton-era powers. The ’96 law was a very bad
and dangerous law as well. It has become more fully
inhabited in this time frame. There have been major,
major, major threats now posed by this government
to our whole system of checks and balances. You have
a situation now in which powers the judges had to
evaluate situations have been removed. What you now
have is summary deportations without hearings. You
have situations in which the President or the Attorney
General decides that someone is an enemy combatant
and therefore his rights are removed as an American
citizen. There’s no judicial oversight for that
abridgement. This is an extraordinary removal of the
checks and balances of our system. You have situations
in which, for example, the granting of these warrants
under Section 215 for the seizure of records, the
language of the Patriot Act says, “You will do
this.” It is totally unclear by what process
a judge even has the right to ask questions, to demand
information. It is an instruction to the judge to
grant this. And this raises tremendous questions about
the independence and the power of the judiciary to
act as a counter balance in these cases. And you have
numerous examples where the government is walking
in and saying that because of national security, you
must hold into obeisance these beliefs in checks and
balances. But that is an integral aspect of our system.
We must not allow the checks and balances to be erased.
What
do you think the appropriate response should have
been to the security issues surrounding 9/11?
I
think, personally, that Carter made a remarkable speech
in his Nobel Prize speech a year ago in which Carter
said, and many others have said it, it’s not
just Carter, that the United States in the immediate
aftermath of September 11th had an extraordinary moment.
They had a moment to basically join with the world.
The world was prepared to mourn the loss of a lot
of people. And, the United States did exactly the
wrong thing. Rather than seeing that this was a moment
to affirm humanity, to affirm problems that plague
us all, and to search our soul for why was it that
this could happen, and to consider that maybe, at
least in part, our government and our policy might
be partially responsible for making people feel that
this was the only solution, that this is what they
wanted to do. We instead turned around and turned
this into a question of the evil done to us alone.
And I think that it was a terrible, terrible loss
of what could have been made of a terrible moment.
And that’s a very personal comment. I think that
what should have been done, that what we needed to,
and I think what the ACLU believes should have been
done, is that at a moment like that we needed to look
back in our history and recognize that at moments
of crisis we had done very bad things. And that while
we needed to by safe, and while the government needed
to make people feel that we were safe, we needed to
also remember what made America a country worth living
in. And that at that moment, we needed to speak of
those things, to speak of the fact that we would not
allow freedom to be hidden. That we would continue
to be the society that we believed was best about
us. And instead I think we slid into a historical
pattern. I think that the Patriot Act doesn’t
come out of nowhere. It is in fact a law that collected
pre-existing powers, pre-existing notions and in that
moment, in that moment of crisis these extreme reactions
seemed appropriate. They weren’t appropriate,
but for some, they seemed appropriate at the moment.
Can
you talk to how the protests against the Patriot Act
have created strange bedfellows? Additionally, can
you address the implications for organizations like
yours coming together with groups you’re typically
not aligned with?
Well
I think that is one of the most powerful aspects of
this rebellion. And this is a grassroots rebellion;
these resolutions being passed around the country
are truly a grassroots rebellion against the Patriot
Act and other federal actions. And there is a connection
of left and right, Republican and Democrat, libertarian
and green - very strange bedfellows. You have in a
place like Idaho. You have green, environmental activists
working with pro-gun, very pro-gun activists who see
their common interest. Otherwise, these have been
people completely separated. Or for, example, you
have pro-immigration organizations representing the
groups of people who most recently have immigrated
into this country, Latino people or Asian people,
who are now working with right wing groups whose policy
is in part very anti-immigration. And yet, these organizations
recognize the tremendous implications of these intrusive
federal actions. Another fascinating example of this
is in Alaska, for example, where you now have a key
Senate race taking place with Senator Murkowski in
which the New York Times recently wrote that if you
are going to be elected to the Senator in Alaska,
you have to be pro-loyal, pro-gun, and anti-Patriot
Act. But that speaks to the fact that here’s
a very Republican state, a predominantly Republican
state in which not only have all the major cities
passed these very aggressive anti-Patriot Act resolutions,
but the state legislature with only one vote against,
has voted the most radical anti-Patriot, pro-Constitution
resolution anywhere in the United States. I think
that it speaks to the depth and the breadth of the
opposition that’s growing in the United States
as more and more people recognize how intrusive these
federal actions like the Patriot Act are.
I
was talking to a store clerk. He felt that hippies
and rednecks make up the membership of the grassroots
organizations protesting the Patriot Act. Therefore,
we don’t need to be worried about their concerns.
The store clerk felt this way and he actually knew
a lot about the Patriot Act. He believed that the
Patriot Act “is just a bunch of legislation that
was already in place, they just pulled it into one
file.” How do you get beyond the perception that
those protesting the Patriot Act are just a bunch
of nuts and don’t need to be taken seriously?
I
think that the public perception is, in fact, very
broadly that the Patriot Act is a mistake. We have
seen that the Patriot Act is increasingly perceived
as the touchstone for the growing anxiety in the United
States about the intrusive nature of these actions.
Whether or not it’s the Patriot Act or not, because
after all there are a lot of different things going
on, many of which have nothing to do with the Patriot
Act. I mean the way that many of these deportations
have taken place, the removal of the rights from American
citizens, spying on the discussions between lawyers
and their defendants, that’s not happening under
the Patriot Act. FBI agents going into your church
meeting, into your political meeting, that’s
not happening under the Patriot Act, that’s happening
under the new FBI guidelines. So there are an array
of actions and yet I think that the Patriot Act has
gone from being the thing that no one could speak
badly about to a thing that an extraordinary array
of people are speaking very badly about. And the fact
that the communities that have passed these resolutions,
nearly 200 communities so far, they represent over
twenty-five and a half million people. When New York
City passes its resolution, and it’s about to
pass one of the most strong resolutions in the country
against the Patriot Act and other federal actions,
that is immediately going to jump up in the realm
of thirty-five million people. This is not a fly-by-night
phenomenon. This is a major grassroots rebellion.
What
do you expect the outcome to be? Wouldn’t it
be a little tough for President Bush and Ashcroft
to change their minds at this point?
The
array of legislation that has been launched this year
and that will be launched next year is extraordinary.
Eight months ago, as this movement was in its infancy,
no one would have believed that you could have Republican
Senators like Lisa Murkowski, like Mr. Craig from
Idaho, standing up with liberal Democrats, and introducing
legislation repealing or changing major sections of
the Patriot Act. And that is accountable to the grassroots
pressure, to the community pressure that is growing
around the country. So we believe, the ACLU believes
that in 2004 we are going to see much more legislation
that is going to be looking to change, fix aspects.
And then remember, part of the trade-off that was
made to support the Patriot Act interestingly enough,
very much because of conservative concern about the
Patriot Act, was that Sections would sunset in 2005.
Federal legislators love to side-step difficult questions.
They cannot side step that one. They will have to
make a decision in 2005 whether or not provisions
of the Patriot Act will sunset. And what’s happening
already is that many bills are being introduced saying
more and more and more of the Patriot Act should be
included for sunset and that this will be the decision
in 2005. And a lot of this public pressure that is
now being forced onto federal legislators is absolutely
looking to see that in 2005 we are going to sunset,
we are going to make this ride off into the sunset.
That we are going to grab back our Constitutional
rights and that the Patriot Act is going to be something
that we’re going to dismantle. And I think there
is a growing sense that that is going to happen.
What
is your opinion of Wisconsin Senator Russ Feingold’s
stand against the Patriot Act?
I
think that it’s very easy to be deeply critical
about members of the United States Congress. And that
there was a true lack of leadership. But I think that
when you look at someone like Senator Feingold - when
you look at someone like Dick Armey, a very conservative
member who basically stood up in the Congress and
said, “You know what, in your homeland security
bill, you are not gonna to have a TIPS program. That
is not the country I believe in, neighbor snitching
on neighbor.” And when you have someone like
Senator Feingold standing up and saying, “I will
not vote for this diminishing of civil liberties,”
those men are acting - those people - those leaders
are acting in the finest tradition. Or Senator Burr
standing up and saying, “It is not right to vote
the War Powers Act, it is not what the Constitution
says we’re here to do.” I think that there
have been voices in the wilderness, but it’s
been voices in the wilderness. But thank goodness
for those leaders.
How
do you view the Constitution and the Bill of Rights?
Well,
you know, it’s funny; I spent a lot of time in
college studying Colonial American history and particularly
the Constitutional period. The Constitution and the
drafters are a remarkable phenomena. There was a foresight
in the founding fathers and mothers that was extraordinary.
That they could write a document which has been so
capable of growing with time, of embracing understandings
of liberties and rights, which I don’t believe
they - they did not know what those rights and liberties
might be, but they knew that they needed to create
a text that would allow those things to grow. And
not only have they grown, they’ve flourished.
We’ve had bad moments, clearly, and yet that’s
what that document does. I would really encourage
you to read a very odd document and I’m not a
big reader of Supreme Court decisions, but read the
Texas sodomy decision. Because of all the strange
places that you would not expect to find an incredibly
beautiful statement about liberty, the Texas sodomy
case, which was decided a few months ago, ends with
this incredible statement about the way, and this
is written by a conservative judge and he writes that
one of the remarkable things about the Constitution
was that they knew that they had to create this flexibility.
And they were not thinking about whether or not the
right to sodomy between consensual adults was good
or not. I mean that was not where they were, and yet
they created a document that in the ruling they say
this is what this is about. It’s a fascinating
ruling. It’s really, truly fascinating.
