- TRANSCRIPT - CARNEGIE CORPORATION OF NEW YORK AUDIO PRESS CONFERENCE JULY 2, 2002

HOMELAND DEFENSE AND DEMOCRATIC LIBERTIES:
AN AMERICAN BALANCE IN DANGER?

SPEAKERS:

• ASHTON B. CARTER, former Assistant Secretary of Defense for International Security Policy; Co-director, Harvard-Stanford Preventive Defense Project; Ford Foundation Professor of Science and International Affairs, John F. Kennedy School of Government
• GARY HART, Co-chair, U.S. Commission on National Security for the 21st Century, retired U.S. Senator from Colorado
• CHRISTOPHER F. EDLEY, JR., U.S. Commission on Civil Rights; professor of law, Harvard Law School; Co-director, Harvard Civil Rights Project

MODERATOR: SUSAN KING, Carnegie Corporation of New York

Susan King: As we enter the week of America’s annual Forth of July celebration, and another experience in this post-September 11th world of unspecific threats and general insecurity, we are very pleased to welcome you to this conference call. A note right up front, Carnegie Corporation of New York is a foundation that believes in its very soul that scholarship is a critical ingredient in the public policy mix. Andrew Carnegie, our founder, an ultimate optimist, believed his enormous wealth could improve society by advancing and disseminating knowledge and understanding. And we’ve been doing that with his money for more than ninety years. We don’t come to this call with a firm point of view or something to sell. International peace and security is one of our top priorities. The nuclear threat is a preoccupation, but even before September 11th, we had defined an area of exploration which we called “New Dimensions in Security.” Democratic ideals are another priority and an area of funding and scholarship. We feel at this moment both areas, democracy and international peace and security, really need to be looked at anew by scholars, by policy makers and by the public. What with the new cabinet agency, the Homeland Security one in the making, and intelligence a real question on the national agenda and at Carnegie, our job is to create a platform for debate. And so this spring we brought some leading thinkers, two of whom are our grantees, to a forum to push the envelope on the tension between the need to keep America secure and the right to personal liberties. We are releasing the paper today that explores that tension and we are binging to you three of the men who participated in that forum. Three men, I think you will agree, who know quite a bit, have studied the issues and can offer you some insight this week into the questions that need to be asked and really need to be debated.

First to speak today will be Ashton B. Carter, Professor at Harvard’s Kennedy School of Government and co-director of the Preventative Defense Project. He knows the Washington public policy cauldron, having served as the Assistant Secretary for Defense under President Clinton. Also with us, former Senator Gary Hart who will speak second. He with former Senator Warren Rudman chaired the U.S. Commission on National Security for the 21st Century. They called for a cabinet office of Homeland Security. This commission was really set up to advise whoever was elected President. It was an idea that was brushed off by the Bush Administration at first. And then Christopher F. Edley, Jr., professor at Harvard Law School and co-director of Harvard’s Civil Rights Project. He is also a member of the U.S. Commission on Civil Rights. All three will have a short opening and then we’ll open it up for your questions.

Ash Carter, would you start.

Ashton B. Carter: Thank you. Glad to have the opportunity to join this call and I thank Carnegie for arranging it. Where I thought I’d start out is to reprise a little of the testimony that I offered last week at the set of Governmental Affairs Committee hearings about which I’m sure many of the listeners have read. There were two debates going on last week and I think that the subject of this call is at the intersection of two of them. The first debate was over whether we should have connected the dots before 9-11. That is, did the FBI and the CIA have the right dots, did they share the dots, did they need new powers to connect dots better? And the second debate was whether Congress should approve the President’s version of a new cabinet level department of Homeland Security. In the version the President recommends or in other versions, or not at all and relatedly, should the new department have an intelligence arm, an intelligence agency within it? And I’d like to suggest that some new kinds of intelligence dots are what we need for Homeland Security that a new department could usefully collect and that don’t raise the kinds of civil liberties issues that are raised by expanding the powers of the CIA and the FBI. Now when I say intelligence here, I mean the word very generally to denote information and analysis necessary for the successful completion of the mission of homeland security over time. We get the phrase “connect the dots” from a child’s game. We’ve all seen that game but you know that in the child’s game the dots are numbered, but that’s not a very good guide to what we’re talking about. I think a better image for Homeland Security intelligence is constellations in the night sky. I’m a Philadelphia boy and, of course, I never saw the night sky when I was a kid. But when I did get out of the city, people would ask me to look up in the sky and say, “Do you see up there, do you see that horse with the wings”? And, off course, I would never have seen a horse with wings unless I was told to seek that kind of pattern. Then I could connect the dots. The point of this is that without a template of some sort about what terrorists might do, we will rarely succeed in connecting the dots. Think about 9-11. It’s not surprising to me, and probably not to many people in the public, that we did not detect the dozen or so individual Middle Eastern young men residing in our country who plotted this attack among the many similar people who travel in and out of the country. That’s not surprising . . . that we didn’t connect those dots. What is disturbing is that the FAA and the airlines had not only not detected the perpetrators, but more importantly they had never detected the mode of attack. They never detected, in the sense of anticipating it and installing simple counter measures like armored cockpit doors. You could buy novels in the airport that describe such attacks but they weren’t in the airline security handbooks. The template wasn’t there, and without the template we stood little chance of connecting the dots and that leads me to ask, “Whose job is it to make templates for terrorists attacks of the United States”? Well neither the CIA nor the FBI make very good ones, and in fact, it’s not their job. They’re better at finding out who’s trying to mount an attack or why they’re trying to mount an attack than what type of attack they might mount. But it should be the job of the new department of Homeland Security to do this template creation. In the Defense Department which I’m familiar with, we have a method for doing that we call Red Teaming. A Red Team projects itself imaginatively into the terrorists’ shoes and tries to devise attack tactics, like commandeering into airlines and using them like cruise missiles. And a Blue Team tries to define countermeasures like armoring cockpit doors. We had such a red and blue team when we designed the Stealth airplane and I think we need this kind of red teaming for homeland security to devise templates. Now, second to last point that I’d make follows from the first one on templates. Once you have a template, a good template, you have a rich set of alternatives of kinds of dots you could look for. The debate in Washington tends to think of dots in terms of specific perpetrators—Middle Eastern men, Al Queda cells and specific plots—and uncovering those are the jobs of the CIA and FBI. But if I’m looking for a maker of a dirty bomb, to take a recent example, I might do better to keep my eye on radiological waste rather than suspicious, angry young Middle Eastern men. Such surveillance of the means of terrorism as distinct from, or opposed to surveillance of persons who might be terrorists is a rich source of useful intelligence and it raises far fewer civil liberties issues than surveillance of persons. To give you other examples, in recent years we stated to guard fissile material better in Russia and to look for those who are looking for fissile material. We’ve started looking for people looking at our embassies suspiciously, we started making it necessary to register your identification before you’re allowed to buy dangerous germs, pathogens that could make a biological terror weapon and so forth. All this is surveillance of means. So to sum up, I think if we look more deeply at the types of intelligence we need for Homeland Security and don’t just jump to the conclusion that we need more CIA, FBI type of intelligence then we can discern some other kinds of intelligence activities that will materially help us protect the homeland and that don’t raise civil liberties issues. I would suggest that that’s the kind of intelligence that this new agency ought to specialize in and the CIA and FBI shouldn’t be part of the new agency. They should go about collecting their traditional kinds of dots and their traditional kinds of ways under their traditional safeguards. And if we do it all this way we can see the patterns in the night sky and still have our civil liberties both.

Susan King: Thanks very much Ash. Senator Gary Hart

Gary Hart: I join my presenter colleagues in thanking Carnegie for this opportunity and all of you for joining us. I’d like to make just about three points. On the issue of formation of a Department of Homeland Security, the reason the U.S. Commission on National Security reached the conclusion we did, that we should have this kind of organization, was based on two findings. One, that terrorist attacks, and we’ve found this as early as the fall of ‘99, were almost inevitable given the pattern of events in the 90's and intelligence reports, even at that relatively early date. Second, we were not prepared for those attacks. The pieces of the puzzle of both prevention and protection were scattered all over the federal government. We found as many as four dozen different federal agencies that had some part of the solution and they lacked coordination. We also preliminarily concluded that an office in the White House wouldn’t suffice to bring those pieces together, make them work together. The third part that leads you to the logic of a coordinated agency is that everyone’s job changed on September the 11th, 2001. That is to say, those people who up to that point had been collecting custom duties and escorting ships in and out of harbor and preventing illegal aliens from coming in on our southern border suddenly had a more imminent job and that was to protect America against terrorists attacks. And that is the single unifying element of all the twenty some pieces that the President has proposed to be part of this new agency, and that is the logic, I think, of this new department. Second, the proposal of both the President and Congressional leaders for a new agency has been criticized because it didn’t solve the intelligence dilemma if you will, or the shift from a cold war intelligence capability to a post-cold war 21st century capability, and as Ash Carter said very well, I think, much needs to be done in that area. But that is a separate proposition from collecting all of those disparate pieces for prevention and protection under a single command authority with accountability to the President, Congress and the American people. This new agency doesn’t solve the AIDs dilemma, it doesn’t clean up dirty air, it doesn’t do a lot of things, it certainly doesn’t solve the problem of intelligence reform and reorganization. But that is not an argument for not going forward with this new agency. The third point I’d make is the nature of conflict in the 21st century is changing. We’ve had nations state wars for 300 to 400 years and we are accustomed to conflicts in which people put on uniforms, meet each other in the field and one side wins and the other side loses. That, in the second half of the 20th century conflict, particularly given the role of warfare, began to change and that mutated into terrorism. So what we have now is a form of conflict with which we are not familiar and for which we are not prepared. It is not war, it’s certainly not traditional warfare and it is something other than crime, and I happen to think that the attacks of last September were closer to crime than to war. But in any case, to address the issue of the so called balance between security and liberty, we’re going to have to understand this changing nature conflict and deal with it differently than we did with the Cold War, World War II, the Korean war, or whatever else. I don’t think that we will reach a perfect balance between security and liberty. We haven’t done it in 225 years. That’s why we have courts and that’s why we continually try to seek that balance so I would urge all of you and others, our fellow citizens, not to expect a statute or an executive that purports to reach a perfect balance between security and liberty. This is going to be an evolving pendulum swinging exercise that’s going to go on for quite a long time.

Susan King: Thank you very much Senator Hart. Chris Edley.

Christopher F. Edley, Jr: Well that was a perfect segue to the central point to that I want to make. Which is that while we’re reorganizing and mobilizing for homeland security we should also construct a practical means of addressing wartime threats to civil liberties and civil rights. But line-drawing between security and liberties carries three distinct risks. Officials and judges may draw the line in a place we’re going to regret or second, they may not fully disclose where they have actually drawn the line or finally, where ever that line is drawn, government agents may violate it, perhaps covertly with little ability for us to detect, correct or punish the abuses. And these later risks of failure to disclose and comply deserve Congressional action now. Executive abuses in connection with the civil rights movement, the Vietnam War, Watergate, may seem like ancient history to many young journalists and chest pumping officials but Japanese American internment in World War I sedition trials, I suppose, are even less relevant. Yet in the long winter since 9-11, we’ve seen the indefinite detention of unnamed legal aliens from Islamic nations at undisclosed locations and for undeclared reasons. We’ve seen confusion and controversy about access to council and the privacy of such council. There’ve been massive expansions of governmental authority to search and surveil based on far weaker predicates of evidence or suspicion than we demanded in decades past. We’ve seen impassioned accusations of racial profiling and equally vehement denials and, of course, we will have unseen military tribunals, sort of life imitating the art of JAG episodes. The challenge here is that the familiar safeguards for liberty may not be up to circumstances. The first, don’t count on the courts. As Chief Justice Rehnquist warned in his prescient 1998 book on the subject, wartime courts strained to accommodate security imperatives as declared by the political branches. Second, don’t count on political small “p” checks, strong bipartisan consensus, together with the sheer rapt and reach of the security effort. I think meaningful Congressional oversight through the intelligence and other committees will likely be overwhelmed and superficial and very differential when it comes to the delicate matter of reconciling antidemocratic liberties with these felt political imperatives.

Legislators will have other fish to fry and sexier headlines to grab. And finally, don’t count on political with a capital “P” checks because a watchful public will not rise up in protest when so much of the war will be secret, mostly for good reasons. Without transparencies, public discussion and debate will be ill informed if it happens at all. So what to do? Well within the new agency, let me burden you with a specific proposal. I believe Congress should create an office of right-to-liberties or ORL, headed by a Senate confirmed director with sweeping powers of a super Inspector General but focused solely on monitoring compliance with civil liberties and civil rights norms in the government-wide war on terrorism. It ought to be staffed with capable career professionals who have the necessary security clearances and expertise and that should have the power to subpoena documents, interview witnesses under penalty of perjury and aggressively audit both the policy makers and the foot soldiers. This office should receive and address public compliance and very importantly, I think it should make classified, quarterly reports to the Congress, to the head of Homeland Security and to the President. It should also issue an unclassified version of that report to the public along with official responses for the affected government securities agencies. I think that we may also consider giving this office a part time bipartisan advisory board designed to build public confidence in ORL’s operations and thereby giving us added confidence in it more generally. It would be Constitutionally permissible for example, for an advisory board to be appointed jointly by the President, the House and the Senate since the board wouldn’t have executive or legislative powers itself. Now, this bears emphasis, the office of rights and liberties I’m talking about would not be responsible for deciding where to draw the line between our need for security and our commitments to liberty—that’s another debate. The office would not, for example, have a roll in deciding whether INF detainees should have access to council or when prisoners should be transferred from civil to military jurisdiction. Instead, what I’m proposing is that this office would have the roll of ensuring that when our war fighters do draw a line, the public knows where it is—no secret policies. And its further duty would be to exercise with diligence and independence to ensure us that from top to bottom, those waging the war know where the line is and obey. That is, compliance without cover-ups. It seems to me that even more than in conventional crime-fighting, in an environment where we cynically see political agenda behind every move and where many of the moves are altogether secret, we’ve got a special challenge here, to create legitimacy for this effort. Can’t we reach an agreement to prevent abuses and promote legitimacy? Congress has to secure things even more fundamental than our borders and our power plants. That’s it.

Susan King: Thanks very much

Questions and Answers

Jessica McKnight - Hispanic Link News Service: How would the stricter security laws that will be placed on the United States effect Hispanic Immigration to the United States?

Chris Edley: Well I’d be happy to start. I think that the general point that I’d make is that in the expanded U.S. Patriot Act there certainly is going to be expanded scrutiny of visa applicants. There will be new mechanisms whereby security agencies can intervene in various kinds of immigrant processing immigrant services from visa applications all the way through to naturalization and that we should expect. I think in many respects that’s the more practical issue. The kinds of investigations, the risks of profiling of people who are from problematic countries or who physically look like people who are from problematic countries. In short the racial and ethnic profiling that we’ve heard so much about. There’s no question that this heightened scrutiny, this heightened level of surveillance will likely have something of a chilling effect and there’ll be some civil liberties issues. That’s why I think as important as it is to focus on debating in a continuing way, as Gary was saying earlier, the importance, the vital importance to our democracy of having continued debates about what our liberties are and how to strike the balance between liberty and security, I think it’s also important to try to create new, procedural, if you will, mechanisms to supervise, to monitor, to enforce whatever the civil liberties forms are, in immigration and elsewhere.

Susan King: Senator Hart, you mentioned the INF would have a new, bigger job, or has one now post September11. Anything you want to add?

Gary Hart: Not really, I concur with Professor Edley. I think the first conflict is already occurring between security and liberty and that has to do with various kinds of detainees, people that are being held often without charges, without council, without constitutional protections. And the American people are willing to let this go on for the time being because of continued and renewed threats. How long they will permit this once the threat level goes down if it does, remains to be seen. It will all have to do with the civil liberties organizations and so forth and how much public clamor they raise, or continue to raise. But I would, in terms which way the country is going to go, and as I say, I think it’s going to be a pendulum, as far into the future as we can see, going from one extreme, possibly then correcting it, then going back again as threat levels rise and fall. I think the thing to watch are the detainees and how they’re treated and in a way, law enforcement, in particular if I may say so, this Justice Department will get away with as much as they can. If people don’t raise a clamor about the detainees and the disposition of their cases, then the conclusion of the policy makers will be “the American people want us to forge ahead and do what needs to be done.” That will spill over into immigration issues as well.

Molly Peterson - National Journal Technology: I was curious as to how you see the role of technology in all of these issues and what sorts of technology do you think we need to be especially watchful of in terms of civil liberties?

Ash Carter: Well obviously technology makes electronic surveillance easier to the extent we all use more electronic means to communicate, we reveal more about ourselves and create records about ourselves that can later be part of an investigatory file, and the techniques of data mining allow government to go through huge volumes of information and sort out the wheat from the chaff, needles from the haystack to a much greater degree than has been true in the past and some of the measures taken since 9-11, legal measures, have allowed law enforcement to avail themselves of means of technological surveillance in the domestic circumstance that we’ve long applied overseas where we have much looser roles than what the CIA, the Intelligence Committee do to non-U.S. citizens than we do . . . what law enforcement can do here at home. But my concern, and this is—the last questioner asked as well—is not only some concern about the civil liberties implications of these changes to the law but I, as I said in my comments, I’m not sure they’re efficacious, surveilling all of us more. We need to get smarter about what it takes to protect ourselves and it may be better to have people looking out for people, as I said earlier, trying to get their hands on radiological materials, than it is trying to find out whether all of us citizens have some sinister motive. I think that in this period since 9-11 we’ve been alarmed and we’ve been reaching—every agency, has been reaching into its usual toolkit and trying to apply its usual tools to counter terrorism and I think the whole point to having a new department is that the toolkits we have, the agencies we have are not the right capabilities. We need to get thoughtful and effective at counterterrorism intelligence and simply broadening the authorities—everybody already has authorities—is not only dangerous to civil liberties, my main point is that it’s not likely to be effective.

Gary Hart: I’d just comment in two respects. What still strikes me as fiendishly brilliant about the first attack, and I underscore the first attack, was the use of instruments that are not ordinarily thought off as weapons and converting them into weapons, namely airliners, one could argue that airliners are high tech, this was kind of low tech warfare. It’s taking, otherwise non-weapon systems, and making weapons out of them and I think that we ought to keep the Red Team concept that Ash has outlined, which is quite right. Whoever the Red Team is ought to be thinking of ways in which non-weapons can be used to kill people. The other observation I make is there is a forth form of terrorism, often not highlighted, along with biological, chemical and nuclear and that’s cyber warfare. And here, our Commission found that centralized authority, namely the government of the United States is least effective and the private, the dispersed private sector will bare the greatest burden. These are the critical infrastructure industries of communications, of finance, of energy, of transportation who are going to be called upon, or certainly ought to be called upon right now, to be doing everything they can to harden their technological controls, namely computer controls of those infrastructure systems.

Chris Edley: I think that there’s a very instructive example from history and that is that we can draw on the liberties issue and that is wire tapping. With the advanced technology that made wire tapping both easier and more effective it really took decades for our legal system, including Congress, to try to develop a set of civil liberties safeguards that struck a balance, that’s seemed generally acceptable. We can’t afford that long a delay in trying to arrive at some kind of operational consensus as new technologies emerge to can help us fight the war on terrorism. And not withstanding the wisdom of Ash Carter’s suggestion about the right way you think about surveillance, with the rush of technology, we should expect that there’ll be an awful lot of pressure to simply do more surveillance because we can.

Thomas Brazaitis – Cleveland Plain Dealer: There’s been some talk during this conversation about the public’s role and it seems to me from the polls that I‘ve read that the public not only is willing, it’s eager to have more surveillance because the other guy might be doing something that will endanger my freedom. How do you draw the line and how difficult is it going to be to guarantee the liberties that were promised to us from the beginning of this country, when the public itself is open to the idea of increased government intrusion?

Gary Hart: Two observations. From a legal point of view and professor Edley may want to comment on this, there’s always been a kind of, not always but usually we rely in criminal cases on probable cause and we require law enforcement agencies to surveil somebody or particularly to wiretap them to demonstrate to some, usually specially some designated judicial authority that probable cause exists to justify that activity and I think that this is going to be, there’s already discussion about whether or not there ought to be a similar system where terrorists are concerned—special courts, special judges, where there’s 24-hour access in case there’s an emergency. To have to demonstrate to somebody outside the law enforcement arena that this isn’t just, you know, sort of a dragnet kind of surveillance can’t go on. The second thing is that during the Cold War, what isn’t correct is when people, when it comes out that innocent people are being surveilled and the public usually gets aroused. I was on what was called the Church Committee in ’75, ‘76, I think the first Congressional look at our intelligence agencies and then the follow-on Oversight Committee that was created as a result of that and what we found were widespread abuses of constitutional rights, civil liberties, on the grounds that we needed to do this to prosecute the Cold War. The pendulum swung back, publicly and politically at that time. And again, if you accept my idea that this is the way that the war on terrorism is going to be run, what we will find out, if the oversight committees and Congress are doing their jobs, the courts are doing their jobs, that when law enforcement agencies, department of justice, FBI, or whomever starts listening in on everybody’s phone call or reading their email, enough innocent people will be swept up that there will be a public reaction.

Susan King: Ash, If surveillance is one kind of intelligence you’re talking about, you feel it’s more meaningful, the public may not be aware that that would be a more meaningful way of getting intelligence than surveilling people.

Ash Carter: 9-11 gives them a plain example. If you could go back in time—a year, which of the following, do you think would be a more efficacious way of preventing 9-11? Option one is greater surveillance of Middle Eastern men in the United States. Just set aside the civil liberties issue now and just ask yourself in terms of prevention, efficacious prevention, that’s option one. Option two is to lock cockpit doors and armor them, which we have of course, subsequently done. I don’t think there’s anybody who wouldn’t say number two is better, it works, doesn’t involve anybody’s civil liberties, and there’s no needle in the haystack finding a few bad guys among lots of people who are perfectly innocent. And what was lacking before 9-11 was a thoughtful sense of what Senator Hart said diabolically clever people might do. Had we had that template, we could have prevented 9-11 without all the surveillance, so I’m not prepared to say yes to a lot of surveillance techniques that don’t seem to me likely to be efficacious. In so far as the efficacy of surveillance of persons is concerned, 9-11 is also somewhat misleading in the following sense. The people who did that were Al Queda operatives, associated with a particular group whom we had known for a decade existed and intended to do us harm. Let’s think about another attack, not 9-11 but the October anthrax attacks, and there we need to bear in mind that that individual has still not been found, after all these months. But that individual, it seems quite likely to have been an American, sadly, a cleared American, an American with a security clearance who worked in government laboratories and had our trust. Now if individuals that close to the center of what we are as a society can be aberrant and do destructive things, I’m not sure that we’re ever going to find—root out—all those weirdoes in our own midst. I don’t think that that’s certainly something we need to try to do, but that’s not the main game here in terrorism. The main game, as Senator Hart said earlier, look at the infrastructures, try to imagine where our weaknesses are, what they can do to us and watch the means of terrorism. Don’t look for the people, or at least don’t look for the people only and completely ignore the means.

Ash Carter: I wonder if I could follow up. On Gary Hart’s comment about the Church investigation, which is an important milestone, I think, that mostly dealt with, or I think, in large part dealt with COINTELPRO, started under J. Edgar Hoover and kept going and as a result, Attorney General Levi tightened, instituted restrictions on the FBI. But very recently Attorney General Ashcroft has loosened those restrictions without much of an outcry despite the Church hearings, which gets at my point that what’s to prevent politicians who have the public behind them from pursuing, establishing a line way beyond what civil libertarians would like?

Chris Edley: That is precisely why I believe we need to try to create some new institutional mechanisms that will bring more of these questions of what is the norm and is there compliance with the norm to public light. The Church Committee was an extraordinary and heroic effort and we shouldn’t require that in order to make progress. We need to find a way to institutionalize this kind of scrutiny, not to displace but to supplement what can be provided by the intelligence committees and by the courts. The other point I’d emphasize here is that if you have this kind of ongoing scrutiny and reporting taking place, then you might not have to wait as long for an accumulation of mistakes, of scandals, of injustices, that a tighter feedback loop and corrective mechanism could come into existence because of the heightened public awareness of what’s actually going on. The last point I’d make is I’m particularly troubled here by what Senator Hart said, things happen in war and the public is in the mood of—at least for the moment—of “we’ve got to everything we possibly can and we’re willing to be flexible, or to accommodate compromises, civil liberties protections like requirements for probable causes and the like.” Earlier examples, the Civil, World War I, World War II, and the like had a kind of time-limited nature to them that this kind of ongoing war on terrorism really doesn’t, so I’m quite concerned with that to the extent we are forced to reconceive or to compromise on our civil liberties. The duration of that compromise is very undefined and that in itself means that we need some creative mechanisms to deal with the challenges.

Tammy Lytle - Orlando Sentinel: Thank you. Senator Hart, I wanted to talk to you a little bit more about this pendulum swing you’ve been talking about. For starters, just looking at this new balancing act between civil liberties and security, how it compares to some of the past ones that have been mentioned here. Is this more of a crackdown on civil liberties, less, you know, where do you see so you see that in the spectrum. And also, what you see going forward, I mean, as you know, you all came up with some pretty in-hind sight prescient suggestions which were basically ignored. Now it’s gone in the other direction. How long will that yield for security keep-up or are you going to see the public sort of shift back and say no, we have to change our priorities here?

Gary Hart: I think there is a cold War analogy here, as a child of the Cold War. We know that the intensity of the confrontation waxed and waned in the American public mind and a lot of it had to do with what the insiders’ buzzword, threat assessment, you know, what were the Soviets rattling their sabers, were they doing somebody in Cuba or somewhere else and things would heat up and the American public would say, do whatever it takes to protect us. There’s a scene in a movie that keeps recurring in my mind, Three Days of the Condor with Robert Redford, and at the end of it he confronts the CIA director of operations or some second level person over the issue of protecting the oil supplies and the CIA man says to Redford, “The American people don’t want to know what we do, they just want us to do it. To protect their oil supplies and not tell them how.” And I think that’s very central to kind of the American psyche. If we keep having these periodic threat warnings, such as the July 4th and they keep recurring about every two to three weeks or whatever, then I think the American people will tend toward, to say to their policymakers and their elected representatives, do whatever it takes to prevent another terrorist attack and if you step on some toes or you lock up some dark skinned people, then so be it. It’s when they start rounding up some white-skinned people that the shoe begins to squeak a little bit and I don’t think we’re going to find a balance, a lot will depend on whether we have another attack, I think we will, I think it will be sooner rather than later. And how often these things recur, and if they recur with considerable frequency then we’ll go into a, we’ll suspend a lot of liberties.

Susan King: Chris or Ash

Chris Edley: That was 110% right.

Ash Carter: I agree

Tammy Lytle: Looking at this whole issue of what you touched on, racial profiling, I mean it was certainly, you know, in disrepute not very long ago and now you have people saying, “Well, that’s what we get for political correctness.” How do you respond to those kind of comments.

Chris Edley: There was never any deep agreement on the definition of racial profiling. I worked on this issue quite a bit in the Clinton White house and you had different people within the Administration saying to a person, saying that they opposed racial profiling. I’m willing to get very specific about what its definition was and certainly I’m will to say, “We’ll never do it.” So I think that there’s been talking out of both sides of the mouth with respect to racial profiling. I think that Senator Hart has said something that is a deep truth about our democracy when he said, “We’re never going to have a balance.” I think that’s right. What we’re going to have is attention and it’s in the Constitution and it’s in our civic life and it’s good that it’s in our civic life because it’s the kind of battle that we need to keep fighting. The real danger is when we stop arguing about it. So that one side or the other so dominates that important values are compromised if not lost. So in that sense I think that what we have to strive to create is enough public understanding of what those trade-offs are and what is in fact going on. Part of our difficulty with the detainees, for example is that the agencies themselves may not know completely what is going on in all of these detention facilities. I remember the Civil Rights Commission, we held a hearing on this back in the Fall, we had some INS and DOJ officials there and we asked them about access to council and they said, “Oh but the detainees, they do have a right to council.” Then we had lawyers from the public interest groups saying, “Well but we don’t even know who the people are and we don’t know where they are and nobody’s called us. How do you know that these detainees are fully informed about what their rights are?” So all of the mystery and all of the secrecy that surrounds the way in which the war is conducted can have a corrosive effect on the legitimacy of the war-fighting effort and it’s hard to see how that’s to anybody’s advantage.

Ash Carter: Can I add something here? We keep talking about this as though we don’t, as though it’s completely hypothetical, that we don’t have any evidence. We do have evidence. We have two attacks, one in September and one in October. In the matter of racial profiling, I think a fair analysis of the evidence is that racial profiling would not have helped, either in 9- 11 or in the case of the anthrax mailer. In the case of 9-11, the people who boarded these airplanes did so with box cutters which they were perfectly entitled to have, they bought cash tickets at the last minute, which they also were at that time, did not raise any suspicions. They boarded an airplane where the air crew left the cockpit door open and had instructions that if anybody took the airplane over they were to be passive about it because the person taking over the airplane probably only wanted to go to Cuba. And so what went wrong on 9-11 was not that there were some Middle Eastern men roaming around the country. There are, there will be and no amount of profiling was going to help, there were other things wrong and the special thing that was wrong was that no one in our FAA had anticipated this kind of attack and taken measures against it. Likewise, racial profiling wouldn’t have helped with the anthrax mailer. The anthrax mailer, as I said, we don’t know who it is yet, but the evidence is accumulating that it was a trusted American who did this and trusted Americans can be terrorists also. Not all terror will originate outside of our borders, with people who are foreigners. So I think if we look at these two incidents and we were just coldly analytical about it, we conclude that racial profiling would not have prevented these two incidents. We should be looking at other things to protect ourselves and not only conceiving of this dilemma as one between eroding liberties and protecting liberties. Much of what we can do to protect ourselves has nothing whatsoever to do with liberties but only with good sense and thoughtful prudence about the small fraction of humanity—the American and non-American—who will resort to this kind of thing over time.

Glenda Holste - St. Paul Pioneer Press: This is for Professor Edley. We were talking earlier about the lack of history, even among reporters on these cycles that we’ve been discussing. What is the possibility for a short reading list for people to understand the Alien and Sedition Acts, the Civil War, etc., etc., when things went wrong, what happened.

Chris Edley: I think that’s a fabulous idea and a short reading list and an executive summary because we know how busy journalists are, I think that’s great. We ought to give some thought to, maybe the Carnegie Corporation might undertake to put together such a compendium and commission a synthesis essay of some sort.

Susan King: At the back of the report we bulleted some of the historic moments there. I will get a list and we’ll follow it up with an email to everyone that’s on the call.

Chris Edley: I think that Gary Hart’s example of the Church Commission is one of my favorite examples and because of what let to the creation of the Committee and its aftermath. There is much more to be learned, I think, from the 20th and even the 19th century and let me also add that I think there are things to be learned by looking at the experience of trying to control misconduct by a police departments.

Tom Brune – Newsday: Thank you. Since the first week of this new world we’re in, being under the threat of terrorism that September 11th brought to us, the Attorney General repeatedly said that he has made a paradigm shift with the Justice Department which includes the FBI and several other law enforcement agencies. And that paradigm shift is away from prosecution of criminals who are past acts, to prevention of future acts, and that shifts a lot of things from one side of the board to the other. Could you address that? Do you think that’s rhetoric one, and two if it’s real, what are the issues that are involved in the switch from prosecution to prevention?

Ash Carter: I’m entirely with the Attorney General in this matter, and by the way the FBI director, Mueller, is as well. I think the first person who pointed out sometime early in October that he found that the disproportionate effort of his agency after 9-11 was to solve the crime of 9-11, not to prevent it from happening again, and that’s the prevailing culture in the FBI and it’s an appropriate one when dealing with crime as traditionally conceived. But our basic approach to crime is to allow it to occur and then catch the people who did it so they can’t do it again and as a lesson to those who might do it in the future. But when you’re talking about terrorism on a scale of 9-11, you can’t take that attitude—that you’re just going to let it happen and then catch the people who did it. You have to be preventive. And I think they’re absolutely right to get the FBI to do that. Now you’re absolutely right that that’s a very big cultural change within the FBI and it is a cultural change that has hazards in it. The hazards that we’ve have been talking about, an agency that sets itself the job of finding out whether people are thinking about crimes and planning crimes, before they commit crimes, that’s rather a different matter than catching people with a gun in their hand standing in the bank with a bag of money in their hands. In the second case there’s no question about who’s guilty, or little question and in the first case a lot of civil liberties issues are raised. I however do believe and support the Attorney General and the FBI Director, that they’re on to exactly the right thing, there has to be at least a piece of the FBI which has this preventive culture.

Gary Hart: Leaving 9-11 aside, it interests me that America drifted for a decade after the end of the Cold War in ‘91 without some major institutional changes including particularly a DOD in our defense strategies, tactics, doctrines, force structures, and in our intelligence communities and it was probably the failure of political leadership both in the White House and Congress. These agencies should have done these things on their own to understand the new world of the late 20th early 21st century and begin to make the institutional and structural adjustments and doctrinal adjustments for this new world. But we’re not a nation that’s very good at anticipating, we are better at reacting and therein lies a subject that Carnegie or somebody ought to explore at greater lengths. It’s a bit like the FBI, wait ‘till the crime happens then solve it, instead of trying to anticipate and think who might have a motive for doing the crime, and let’s cut them off at the pass. And there is a huge problem that needs to be addressed and that is the reform of the intelligence structures of America for this new world and Director Mueller has begun that with the FBI. Kind of in the wake of this new department being created and so who knows how strongly that’s going to be pursued. These are great bureaucracies with their own traditions and legacies that don’t want to change very much.

Susan King: I just have to put one plug in. Ash Carter runs a preventive defense project at Harvard. He is one of our Grantees. So we do raise a few of these.

Tom Burn: As part of this new preventive matter, there was the revision of the domestic guidelines that the Attorney General Levi laid in place in response to the revelations around the Church Committee. In addition to that the Attorney General has spoken about the need to disrupt terrorist supply plots. Don’t those words have some kind of resonance with many of the things that were uncovered by the Church Committee in terms of disruption, prevention, prediction of activities, and what about the First Amendment implications of surveilling and maybe infiltrating or using informants to spy on political or religious groups?

Ash Carter: If I could start off, I would feel better about the FBI embarking in this new cultural mode. Were there the intelligence templates that I referred to earlier but what I’m afraid of and what one sees in the absence of the template is casting a big careless over-broad surveillance net which doesn’t catch anything but which has other hazards. Now one nice thing about the Department of Homeland Security which, if it’s established, it should do, is by having the mission of protecting the homeland. Developing these templates, developing protective techniques and tactics for every one of our infrastructures, airlines, energy grid, and so forth and being a customer for the FBI’s intelligence the way DOD is a customer for the intelligence community. A good customer says, “Here’s what I need, here’s the kind of information that would be useful to me.” And we will find that this kind of throwing the net too wide is not only odious, but not useful. I think in the end if you have a good, well thought out homeland security program of a kind all of us on this call have been arguing for, then that’s the way to tame the FBI. You focus them where their surveillance can be effective rather than simply beating on them as we’re now doing, to protect us from terrorism. They have no idea how to protect us from terrorism because they haven’t worked a lot on this problem, they don’t have good templates, and they’ll just do more and more surveillance but they won’t turn anything up. So I don’t think the FBI, by itself, can be expected to do this right. There has to be a thought out homeland security program which steers them to do the kind of surveillance that is useful, and that kind of surveillance will, I predict, not be nearly as threatening to civil liberties as an ill conceived and over-broad kind of surveillance.

Chris Edley: I think we may, as our hour wanes, have a little bit of a disagreement at last. Ash perhaps puts more confidence in the possibility that rational policy directed management of this war will substantially minimize the risk of abuses. I don’t have any doubt that it will help but, I think it’s not going to help nearly enough. The example that looms large in my mind are the disclosures, the revelations about the widespread FBI tactics behind the civil rights movement. Going to the NAACP meetings, going to meetings in the basements of black churches, the wiretapping of Martin Luther King’s phone and all the rest of it. I think it would be a mistake to simply chalk all of that up to the animus of the FBI Director as opposed to thinking about it in broader cultural or institutional terms. So now, today, the question is, how much domestic spying, or surveillance to dress it up, would we expect in mosques around the country? At what point does the first perfectly legitimate First Amendment expression of concerns trigger some kind of intensive scrutiny? And the difficulty with the revised guidelines by the Attorney General, or one major difficulty with them is that I think in part that the public, for the time being seems to be willing to go along and it’s only going to be if we get clear information off what the implications are, what the consequences are, what kinds of mosques, how many mosques, based on what predicate of suspicion, with what consequences and it is getting at that kind of information that will eliminate the consequences of drawing the lines. Where they’re being drawn that over time will propel this pendulum, the swing of the pendulum, that Senator Hart was talking about before. If we don’t create mechanisms to create that information in that oversight capacity and to enforce obedience to the law then I think we’re inviting the kinds of abuses we’ve seen from these various agencies in past decades. Simply urging or expecting that policy rationality will do the whole job, that’s not going to work. It’ll do a substantial part of it, I agree, but I think we need more.

Paul Owens - Orlando Sentinel: As I’m sure you’re all aware, where the Administration’s proposal for a Homeland Security Agency will exempt the agency, certain activities of the Agency, from Federal Freedom of Information Act and would also exempt the Agency from Whistle Blower protection or, and I’m curious Senator Hart to whether or not your commission examines those issues and how the Commission came out.

Gary Hart: We did not, with any specificity, I can’t assume to speak for the other Commissioners, I’ll just give you my own view. I think that we didn’t issue a kind of general statement that nothing could or should be done in the defense of this country that would jeopardize American Constitutional rights and civil liberties full stop. Having said that, then the real work begins of case-by-case decisions. I think the two key institutions here are the Congress and if I may say so, the press. If the Congressional Oversight Committees do their job, whichever committee ends up overseeing the new Department, if it does it’s job aggressively and if the media and the press, and particularly the editorial side of the press, does its job of asking tough questions and being insistent about it and doing its traditional job at its best of protecting American’s rights, that would be more therapeutic than anything I can think of. If the press is passive, however, and waits for the next stand or something like that and doesn’t hold the decision makers to account, case-by-case, I mean. It’s got to be more aggressive in my judgment on these oldest range of civil liberties issues than it has been on its detainees to date then I think those are the best correctives we can hope for. I don’t think that an exemption from Freedom of Information Act or the whistle blower protections or any of those things are necessary to protect this country from terrorists.

Tammy Lytle - Orlando Sentinel: Senator Hart, the Commission that you did, given all the experience you had looking at that, what do you think of the way that Bush out structured this new department and where do you come down on this argument about where should this domestic spying capability be—in the CIA, in the FBI, in this new department?

Gary Hart: Your reverse order. I think Ash came very close to having it exactly right. This outfit, the new Department has to have a kind of a high intensity for the ability to accept the collection agenda. To tell the collectors, agency, bureau and others what it needs to know and then be able to scrutinize and analyze that information better than almost anybody else around with a finer tuned antenna than probably any capability we presently have. But is certainly, in my judgment, we don’t need another collection capability. That is to say, you don’t need this new department being in competition with existing agencies for collection, that is just more duplication, overlap and confusion. But I do think in terms of the security of this country domestically, it has to have finer and more intense capability of analyzing information for the terrorist threat than anybody else in our government. Our Commission did not have the mandate to design the new agency. The closest we came was to say the Federal Emergency Management Agency should be the core base for the new agency, that the three uniform border patrol agencies, Border Control, Customs and Coast Guard ought to be part of it, and then we left it to policymakers to fill in the blanks and from my own personal point of view, I think the President came very close to getting it right.

Susan King: Thank you very much.