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Foulston Siefkin Lecture

Transcript of Erwin Chemerinsky 2005 Lecture
Civil Liberties and the War on Terror

[Presented March 4, 2005 at Washburn Univesity School of Law]

Since September 11 I think that the worst aspects of American history have been repeating themselves. Throughout American history whenever the United States has faced a crisis, especially a foreign-based crisis, the response has been repression. We come in hindsight to realize that the loss of liberties didn't make us any safer. I think that's exactly the same thing that has occurred since September 11, 2001--a substantial loss of our liberties, but not in a way that makes our society any safer.

Before I talk about what's occurred since September 11, I do think it's crucial to briefly sketch the history, because I think we can only assess what the federal government has done in the last three and a half years by putting it in the context of this history. The history starts in the earliest days of the Republic, when the survival of the nation was still in doubt. Congress in 1798 passed the Alien and Sedition Act. The Alien and Sedition Act made it a federal crime to falsely criticize the government or government officials. Individuals were prosecuted, convicted, and sentenced under this law for speech similar to what Jay Leno or David Letterman say on a nightly basis. Thomas Jefferson ran for president in the year 1800 in part on a platform of repealing the Alien and Sedition Act. When he was elected President, he pardoned all who had been convicted under it. No court ever declared the Alien and Sedition Act unconstitutional. In 1964 in New York Times v. Sullivan the Supreme Court said that the Alien and Sedition Act had been declared unconstitutional in the court of history. It's a wonderful metaphor, but it doesn't change the reality that people went to prison simply for criticizing the policies of the incumbent Adams administration. It didn't help the Republic survive; it just was used to persecute political enemies.

We can skip ahead to the Civil War. President Abraham Lincoln suspended the writ of habeas corpus even though there's no authority in the Constitution for the President to do this. The Supreme Court in Ex Parte Milligan declared this unconstitutional. What is often forgotten is that during the Civil War at least hundreds of individuals were imprisoned for criticizing the way in which the North was fighting the war. Civil War historians tell us it didn't do anything to help the North win the Civil War. It didn't do anything to make the country safer. It was simply persecution for expressing a political view that is not in sync with the marjoritarian sentiment.

Skip ahead to World War I. If you've studied First Amendment law yet, you know that in 1917 and 1918 Congress passed two statutes that in essence made it a federal crime to criticize the draft in the war effort. If you've studied First Amendment law, you remember probably the key cases. In United States v. Schenck a man circulated a leaflet in which he argued that the draft was unconstitutional as a violation of the Thirteenth Amendment as a form of involuntary servitude. There wasn't a shred of evidence that his leaflet had the slightest effect on military recruitment or the war effort. But for just circulating his leaflet he was prosecuted, convicted, and sentenced to ten years in prison. The Supreme Court in an opinion by Justice Oliver Wendall Holmes upheld the conviction and the sentence. This was the case, of course, where Justice Holmes said, "Freedom of speech is not absolute. It doesn't protect falsely shouting 'fire' in a crowded theater. Government can prosecute if there's a clear and present danger of harm." But this seems the antithesis of shouting "fire" falsely in a crowded theater. This was political speech. There was no clear and present danger-no evidence at all that the speech would have any ill effect. In your First Amendment courses you probably also read the companion cases for the same year. In In re Debs, the socialist leader Eugene Debs gave a speech to an audience in which he said, "You are good for more than cannon fodder. There's more that I'd like to say, but I can't for fear that I'll go to prison." For just saying that he was convicted and sentenced to ten years in prison, and the Supreme Court upheld his sentence.

Skip ahead to World War II. One hundred ten thousand Japanese Americans, aliens and citizens, and seventy thousand more citizens were uprooted from their lifelong homes and placed in what Franklin Roosevelt called concentration camps. Race alone determined who was free and who was incarcerated behind barbed wire. Not one Japanese American during World War II was ever accused, indicted or convicted of espionage or any crime against national security. Nonetheless, in Korematsu v. United States, which I'm sure you read in your Constitutional Law classes, the Supreme Court upheld the evacuation of Japanese Americans from the west coast during World War II. The deprivation of liberties was enormous, and it didn't do anything to make the country safer.

One more example before getting to the post-September 11th world, and it's during the McCarthy era. As you know, it was truly the age of suspicion. Merely for a person to be suspected of being a communist, whatever "communist" means, was enough for the individual to lose his or her employment and sometimes his or her freedom. The leading case during that era was United States v. Dennis. This too is a decision I'm sure you read if you've studied First Amendment law. What you might not remember is what was the crime that the individuals in Dennis were accused of. What were they convicted of doing? What they did was organize the study and teach the works of Marx and Lenin and Engel's. Their crime as charged in the indictment was "conspiracy to advocate the overthrow of the United States government." Their crime wasn't conspiring to overthrow the government. Their crime wasn't even advocating the overthrow of the government. The crime for which they were convicted and sentenced to twenty years in prison was conspiracy to advocate the overthrow of the United States government. The Supreme Court upheld their convictions and their twenty-year prison sentences. Then Chief Justice Fred Vincent writing for the Court said, "When the evil is as grave as the overthrow of the government, there doesn't have to be any proof that the speech increases the likelihood of it happening."

I think it's so essential that we assess what's gone on since September 11th in the context of this history. As I said in my first sentence, I think history is repeating itself. We are taking away rights, but not in a way that makes us any safer. What I want to do in my remarks, and then I'll save time for questions, is focus on three examples of what's gone on since September 11th and how we've lost liberties in a way that doesn't make us any safer. The first has been the unjustified claims of authority to detain by the Bush administration. Let me focus on the cases that you're familiar with and then generalize from them.

The first that I'd start with is the case of Jose Padilla, and you're probably familiar with it. Jose Padilla is an American citizen. He was apprehended in O'Hare Airport of Chicago in May of 2002. His alleged crime is plotting to build and detonate a dirty bomb in the United States. Although Padilla is nearing now almost three years in custody, he has never been charged with any crime. He has never been prosecuted. He has never been convicted. The Bush administration takes the position that they can hold him indefinitely by designating him to be an enemy combatant. This of course is a position that has no stopping point. The government under this authority could designate anybody to be an enemy combatant and according to the Bush administration, there can be no judicial review of that designation. This is an unprecedented claim of authority by the President and the Attorney General to suspend the Fifth Amendment that requires a grand jury indictment before somebody can be tried; the Sixth Amendment that requires a speedy trial; and the Sixth Amendment that requires trial by jury with proof beyond a reasonable doubt. As you know, a habeas corpus petition was brought on behalf of Jose Padilla. The Federal District Court for New York said that the government can hold a person as an enemy combatant if it can show "some evidence to justify that standard." Now, I've heard of proof beyond a reasonable doubt. I've heard of preponderance of the evidence standard. I've heard of probable cause, but I've never heard of "you can imprison a person indefinitely based on some evidence." The United States Court of Appeals for the Second Circuit in December of 2003 said that the government had no authority to hold Padilla as an enemy combatant--that neither the Constitution nor any statute gives the President the power to indefinitely hold enemy combatants. In June of 2004 the United States Supreme Court in a five-four decision reversed the Second Circuit saying that it didn't have jurisdiction to hear Padilla's habeas corpus petition. What happened was that after Padilla was apprehended in Chicago, he was briefly held in New York as a material witness. While he was in New York, a habeas corpus petition was filed on his behalf. He was then taken to a military prison in South Carolina. The Supreme Court, in an opinion by Chief Justice Rehnquist, said that the habeas corpus petition for Padilla had to be brought in the federal district where he was held in South Carolina. Padilla had to start all over again.

The good news at that time for Padilla was that five justices clearly signaled they're likely to rule in favor of Padilla. Justice Stevens wrote a dissenting opinion, joined by Justices Souter, Ginsburg and Breyer, where in a footnote Justice Stevens said he agreed with the Second Circuit-there was no authority to hold Padilla. Justice Scalia wrote in a companion case that the government never has the authority to hold an American citizen as an enemy combatant, at least unless Congress suspends the writ of habeas corpus, which hasn't happened. That would seem to be five votes for Padilla. But Padilla had to start all over again in federal district court in South Carolina. Once more the Bush administration and its justice department took the position that the President has the unilateral authority to designate individuals as enemy combatants, and there can be no judicial review of that designation. On Monday of this week, the United States District Court in South Carolina ruled against the government and said that there is no authority to imprison an American citizen as an enemy combatant. The government either had to criminally charge Padilla or release him. The government is now seeking review in the Fourth Circuit, which has already twice reversed district courts that have ruled in favor of Padilla, the Fourth Circuit twice ruling in favor of the United States. Undoubtedly it's going to have to go back to the Supreme Court. It's not going to go back to the Supreme Court until at the earliest next year. All the while Padilla remains in custody. He's never been charged, never been indicted, never been convicted.

Another case with regard to the power to detain which you're familiar with is that of Yaser Hamdi. Hamdi is an American citizen who was apprehended on the battlefield in Afghanistan and then brought to Guantánamo Bay, Cuba. It was discovered there he was an American citizen. He was then taken to a military prison in South Carolina. Hamdi's situation is almost identical to John Walker Lindh, the American who was working for the Taliban, except for one difference. John Walker Lindh was indicted and he ultimately pled guilty. Hamdi never was indicted. Hamdi was never charged with any crime. The government took the position that it controlled Hamdi indefinitely as an enemy combatant. The Federal District Court ruled in favor of Hamdi saying there was no authority to detain as an enemy combatant. Actually what the district court did was promulgate a whole series of questions to the government, and unless the government answers these questions, they can't continue to detain him. The Fourth Circuit reversed the district court. The Fourth Circuit said that the government could hold Hamdi as an enemy combatant. It went to the Supreme Court, and on June 28th, the Supreme Court faced two questions.

First, can the President detain an American citizen as an enemy combatant? There's a federal statute adopted in 1971, the Non-Detention Act, that says individuals can be detained by the federal government only pursuant to act of Congress. The goal of the Non-Detention Act was to make sure we never repeated the tragedy of the Japanese internment of World War II. The Supreme Court ruled five to four without a majority opinion that the requirements of the Non-Detention Act were met. Justice O'Connor wrote for a plurality of four justices. She was joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer in saying that the resolution authorizing military force adopted after September 11th permitted holding Hamdi and others as enemy combatants. Justice Thomas was the key fifth vote. He said the President has inherent authority as Commander in Chief to indefinitely detain American citizens as enemy combatants. Justices Souter and Ginsburg disagreed. They said the authorization for military force was not sufficiently specific to allow detaining American citizens as enemy combatants. And the strongest dissent came from Justice Scalia joined by Justice Stevens. The most civil libertarian opinion came from Justice Scalia. I don't often get to say that. Justice Scalia said there's no authority to hold an American citizen as an enemy combatant. Unless Congress suspends the writ of habeas corpus, any American citizen has to be charged with a crime or released. But there were only two votes for that position--Justice Scalia and Justice Stevens.

The second issue faced by the Supreme Court was, does Hamdi have to be given due process? The Bush administration position is that an enemy combatant is not entitled to any due process. The Supreme Court rejected that. I think it's fair to say; it was an eight to one vote. Only Justice Thomas dissented. Justice O'Connor said that due process is required, but the Court didn't specify the due process, and we're not going to find out in the Hamdi case. From the fall of 2004, the government in essence completed an agreement with Yaser Hamdi. He agreed to renounce his U.S. citizenship and promised never to take up arms against the United States in exchange for being released from custody and leaving the United States. And that's exactly what happened.

One more example was the Guantánamo Detention Center. Since January of 2002, now over three years ago, almost six hundred and fifty individuals have been detained in Guantánamo Bay, Cuba. To this moment not one of them has ever been tried. Not one of them has ever been prosecuted for any violation of law. Not one has ever received what the Geneva courts require in terms of a competent tribunal to adjudicate their status. The government has taken the position that they can be held indefinitely without any access to the courts as enemy combatants as part of the war on terrorism. Several habeas corpus petitions were filed on behalf of Guantánamo detainees. I actually had the privilege of arguing the very first habeas petition in Federal District Court in Los Angeles in February of 2002 and then in the Ninth Circuit in the summer of 2002 in a case called Coalition of Clergy v. Bush, and have been representing the Guantánamo detainee Salim Gherebi ever since the summer of 2002.

Other habeas petitions were brought in federal court in Washington. One of these was a case called Rasul v. Bush. Another was Al Odah v. Bush. Ultimately on June 28, 2004, the United States Supreme Court in a six to three decision ruled that the federal courts do have the authority to hear the habeas petitions of those who are being held in Guantánamo. At the oral arguments of the Guantánamo cases, a case called Rasul v. Bush--it's the one from the D.C. Circuit, Justice Ginsburg said to the deputy solicitor general, now the acting solicitor general Paul Clement, "Are you saying that even if the government held these individuals indefinitely, no federal court would have the authority to hear their claims?" And Mr. Clement said, "That's correct." Then Justice Ginsburg said, "Are you saying that even if the government were to torture these individuals in Guantánamo, still no federal court could hear their claims?" And Mr. Clement responded by saying, "Of course the United States government would never torture prisoners of war." But by pure coincidence it was that night-literally the day of the oral argument-that the first reports of torture in Abu Ghraib were revealed. We'll never know if that influenced the Justices in saying that there is a right by those held in Guantánamo to the access of habeas corpus.

All of the Guantánamo cases were then sent to the United States District Court for the District of Columbia. There's about sixty of them including my case, the Gherebi case. They were all consolidated for procedural purposes before one judge, Judge Joyce Hens Green, though any of the judges that had been assigned then had the ability to opt out, and one of the judges, Judge Rich Leon, said for his nine Guantánamo cases he was going to opt out. Judge Leon granted the government's motion to dismiss in the nine cases before him. He said that those in Guantánamo have no cause of action under the Constitution or under international law and they're just out of luck. Even though the Supreme Court said they have jurisdiction, they have no cause of action. They lose. Judge Green in the fifty-some cases before her, including the Gherebi case, ruled that there is a cause of action under the Geneva Accords as well as under the United States Constitution by those who are being held in Guantánamo. All of these cases are now before the D.C. Circuit. No briefing schedule has been set. But in the mean time each additional day goes by and those held in Guantánamo still are being detained without any semblance of due process. There's never before been in all of American history such broad claims by an administration of authority to detain without any semblance of due process, and there's no evidence at all that it's doing anything to make us safer.

The second example that I want to focus on is the unprecedented secrecy that's occurred since September 11th. I want each of you here today to ask yourself a simple question. How many people is the government now detaining as part of the war on terrorism? Or how many people have they detained as part of the war on terrorism since September 11th of 2001? I am confident in predicting that no one in this room knows the answer to that question, because the United States government refuses to tell us. A couple of years ago I had the occasion of doing a debate with the then Assistant Attorney General for the Criminal Division, Michael Chertoff, most recently a Third Circuit judge and even more recently the nominee to head the Department of Homeland Security. And we were speaking at the Ninth Circuit judicial conference, in front of all the federal judges of the Ninth Circuit, and I said, "Could you tell this audience how many people the federal government is holding as part of the war on terrorism?" (unintelligible). He said, "I can't tell you. That's classified information." I said, "I'm just a simple law professor, but I don't understand. I don't understand how it would be harmful to national security to tell us the number. Is it fifty? Is it five hundred, five thousand, fifty thousand?" Up until December of 2001, the first few months after September 11th, the government revealed the number of individuals it was holding for immigration violations as part of the war on terrorism, but then they announced that they wouldn't give that number any longer.

The government has never revealed how many people are being held on material witness warrants. There's a federal criminal statute that allows individuals to be held as material witnesses, but it has strict requirements. It has to show that there is no other way to gain the information, that the person is a likely flight risk. The Bush administration has made unprecedented use of the material witness statute as a way of detaining people. A federal district court judge in New York, Judge Scheindlin said that individuals could not be held on material witness warrants to be witnesses before a grand jury. That was the United States v. Awadallah case. The Second Circuit reversed her and then the Supreme Court denied cert just in January. But the bottom line is, we just don't know how many people are being imprisoned. Isn't that unconscionable secrecy in a democracy? Shouldn't we at least know the number?

A Freedom of Information Act suit was brought in federal district court to gain that information. It was a case called Center for National Security Studies v. Department of Justice. It also wanted other information-- the names of those who were being detained, the dates of the detention, and the like. The District Court judge, Judge Gladys Kessler, ruled in favor of the plaintiffs and ordered disclosure of the information, but the D.C. Circuit in a two-one decision reversed saying national security information can't be revealed, and the Supreme Court denied cert. So we still don't know the answer to the simple question--how many people are being imprisoned by the federal government as a result of the war on terrorism?

One of the things I get to do every spring is speak at the annual conference of public defenders, and in June of 2002 a federal public defender from Miami said, "I can't tell you very much, but we have something very unusual going on here. We're having some completely secret criminal trials." He says, "These are so secret they don't appear on any docket sheet. Everybody who participates is covered by a gag order. I'm even violating this gag order by telling you about this." Well, over the next few months I started to hear from the federal public defenders in Philadelphia, Los Angeles, and San Francisco about completely secret criminal trials. The legal director of the ACLU in New York, Steve Shapiro, wrote a letter to the Chief Judge of the Southern District of New York, Judge Mukasey which said, "Is it correct that you are holding criminal trials where there is no record of any docket sheet, where there are totally secret proceedings?" Judge Mukasey's response, and I think I can quote it verbatim, was "unfortunately, or perhaps I should say fortunately, I cannot answer your question." Well the following year I ran into the same federal public defender from Miami who said, "We're now having completely secret appeals to the Eleventh Circuit of the criminal convictions that were gained in secret trials." He said, "Again, they don't appear on any docket sheet from the Eleventh Circuit. Everyone is sworn to secrecy covered by a gag order, and there's no record of the proceedings that can be public."

This finally became somewhat public when in November of 2003, one of the individuals convicted in a secret criminal trial in Miami, where the conviction was affirmed by the Eleventh Circuit, filed a cert petition in the Supreme Court challenging the completely secret proceeding. The United States government filed its opposition to cert under seal, so no one has ever publicly seen it, and the Supreme Court in February 2004 denied review in the case. How many of these secret trials have there been? Obviously there's no way to know because they've been completely in secret. Is it a handful or many? What are the circumstances? None of us know, but I can think of few things more antithetical to our Constitution than completely secret criminal trials. That's reminiscent of the Star Chamber proceedings in the Middle Ages, not a democratic society.

What has been more in the public eye is that in September of 2001 the Chief Immigration Judge, Michael Creppy, issued a memo for blanket secrecy of immigration proceedings designated by the INS involving those who are involved in supporting terrorist activity, and this is again, total secrecy. No one is allowed in the proceedings except the person to be deported, and the person has an attorney. All of the proceedings are covered by a gag order. They can be in contempt if they revealed any information. There's never any public record of what happened. The Federal District Court in Detroit in a case called Detroit Free Press v. Ashcroft declared this blanket secrecy unconstitutional in immigration proceedings. The United States put in appeals for the Sixth Circuit, and Detroit Free Press v. Ashcroft affirmed that this is unconstitutional. Judge Damon Keith wrote a great, eloquent opinion. He said, "Democracy dies in secret." He said, "If the government can make a showing for closed doors in a particular case, there should be secrecy, but blanket secrecy is inimical to the First Amendment." There was also a challenge brought in New Jersey in a case called New Jersey Press v. Ashcroft. The federal district court there also declared the blanket secrecy in immigration proceedings unconstitutional, but the Third Circuit in a two-one decision reversed, and said that the blanket secrecy is allowed. The Third Circuit said, accepting the government's argument, that some piece of seemingly innocuous evidence might be used by terrorists as part of a mosaic. There's no way to know in advance what information might be beneficial to terrorists. So, the whole proceedings have to be closed. But as Judge Keith said in the Sixth Circuit opinion, that's an argument with no stopping point. That could justify closing any criminal trial, because you never know what piece of evidence might be used by a criminal as part of an overall mosaic for harmful activities.

The third and final example that I want to focus on today is the unprecedented invasions of privacy that have gone on since September 11th. I particularly want to talk about a law that I know everyone in this room has heard of, the USA PATRIOT Act. You might not remember the story of how the PATRIOT Act came into existence. Not long after September 11th, on Monday, September 24, the Attorney General of the United States, John Ashcroft, went before the House Judiciary Committee and presented a long laundry list of proposals that were needed to help with regard to the war on terrorism. Not surprisingly, these were not new proposals for law enforcement powers. There wasn't time in thirteen days to generate a new list of proposals. These were proposals that had previously been advanced to give law enforcement more powers, that had been rejected. Interestingly, after Ashcroft spoke to the House Judiciary Committee, both the ACLU and the NRA criticized the Ashcroft proposals. It's not that often that the ACLU and the NRA agree, but I do think it's important to say that what I'm arguing here today is not a liberal or conservative perspective. I think the liberals and the conservatives can unite in saying there shouldn't be unjustified deprivations of freedom. Two days later, on that Wednesday, Ashcroft went before the Senate Judiciary Committee and largely repeated the same proposals. There were then secret negotiations between representatives of the Senate in the White House and representatives of the House of Representatives in the White House. There was never a public hearing in any committee of Congress on the provisions of the USA PATRIOT Act. I cannot think of any other major legislation that was adopted by Congress without a single hearing in any committee of Congress. The House then, by an overwhelming margin, passed its version of the PATRIOT Act. The Senate then, by a margin of 99 to Russell Feingold passed its version of the PATRIOT Act. A conference committee worked out the differences, and it was signed.

One of the most troubling aspects of the PATRIOT Act is its definition of terrorist activity. If you go back and you read the PATRIOT Act it says that terrorist activity has two parts. First, there has to be a violation of a federal or state law, and virtually a violation of any federal or state law would be a predicate; and second, it has to be an activity to "intimidate or coerce the government or civilian populations." That's really the core of the definition. I quoted it verbatim -"intimidate or coerce the government or civilian populations." Think of how broad that is. Most crimes are about intimidating or coercing somebody. In fact, think of an anti-war rally that gets out of hand. Imagine some rocks are thrown at a federal building window. Well, destroying federal property is a crime. The rally was out of hand. (Unintelligible) might have been in danger. That can be prosecuted as terrorist activity.

After the PATRIOT Act was adopted I participated in a number of debates about its provisions with representatives of the Bush administration and FBI agents. And the response when I talked about the breadth of the definition always was not to deny what I've just told you, because it's accurate, but to say that of course the administration would only use this against those who were suspected of terrorist activities or aiding terrorist activities. But we all know that when a federal statute has broad language it's used in ways that weren't anticipated. Think of the federal RICO statute, the Racketeering Influenced Corrupt Organizations Act. It was meant to deal with organized crime, but now RICO counts are regularly a part of most civil suits in the business context. There is every reason to believe that the PATRIOT Act would be so used, and it has been. For example, last year the United States Attorney in Nevada used the powers in the PATRIOT Act against a money laundering scheme, and it wasn't a money laundering scheme that had any semblance of a relationship to terrorist activity. In the United States Attorney's statement to the press, (unintelligible) put it, there is no reason why the PATRIOT Act is limited to just being used against terrorist activity.

A boy was caught in Orange County California with a pipe bomb in his car. He wasn't affiliated with any terrorist organizations, and undoubtedly it's a crime and should be prosecuted, but the government used the powers under the PATRIOT Act against him, saying that he met the requirements-that he was going to be intimidating and coercing the government and civilian populations, he was violating the federal law, life was in danger. The predicate for the application of the PATRIOT Act is an enormously broad definition of what constitutes terrorist activity.

There are many provisions of the PATRIOT Act that are very chilling with regard to privacy. One that I would focus on is section 215 of the PATRIOT Act. Section 215 of the PATRIOT Act allows the government in essence by letter or subpoena to gain information without needing to use the usual requirements of the Fourth Amendment for search. This is the provision, for example, that allows that government to subpoena library records--what books a person has checked out of the library, or through a bookstore-what books somebody has purchased. It allows the government to be able to get credit records on individuals. It allows the government to get student educational records. And the standard for issuing such a subpoena, by the FBI on their own, is just that it has to be "relevant to a criminal investigation." This is similar to some other authority that exists for so-called national security letters. This is the ability of the FBI to send a letter demanding information saying it's necessary for national security. So they can write to your credit card company and say it's relevant to a criminal investigation, we need this information about this person. They can go to a bookstore and issue such a letter and say, we need to know what books this person has purchased.

The University of Illinois Library School did a study in the spring of 2003 where they surveyed libraries across the country and reported on their website that there were about one hundred and fifty libraries at that point that said they had their records subpoenaed by the federal government. A Federal District Court in New York in the fall of 2004 in a case called Doe v. Ashcroft has declared these national security letters unconstitutional, and it is now on appeal to the Second Circuit. But this is an enormous invasion of privacy with no procedural safeguards. It's not like the FBI has to go before a judge and convince the judge there's probable cause before getting your library records. They can do it just by letter, just by administratively issued subpoena. And of course, the law also says that when the information is disclosed, the bookstore, the library, the credit card company is not allowed to tell the individual whose information is revealed that it's been turned over to the government.

Another area of loss of privacy because of the PATRIOT Act is the tremendous expansion of the government to engage in electronic eavesdropping or searches without meeting the usual requirements of the Constitution. Let me give you a few examples of this. The PATRIOT Act says that the government is allowed to monitor the email addresses that a person writes to or receives from or the websites that a person visits by showing that it--again, the standard is "relevant to a criminal investigation." So the government is allowed to know what email addresses you write to or receive from, what websites you visit just by showing it's relevant to a criminal investigation, and it doesn't have to be a criminal investigation of that person. That's not probable cause. That's not reasonable suspicion. It's just relevant to a criminal investigation. I always tell audiences and non-lawyers that they should assume that when they use the web for a variety of reasons (unintelligible) it's not private, that any use of the web is easily and likely being monitored somewhere by someone.

Another example of the invasion of privacy of the PATRIOT Act is the authority for so-called roving wiretap warrants. This is one of the, I think, least understood parts of the PATRIOT Act and one of the most frequently invoked. When Attorney General Ashcroft was lobbying for the PATRIOT Act he used this as his paradigm example of why it was necessary. If you remember his press conference, he held up a lot of cell phones and said the problem is that suspected terrorists quickly change their cell phones, so we need roving wiretap warrants. In the presidential debate with John Kerry, President Bush invoked roving wiretap authority as one of the key parts of the PATRIOT Act. But what I want you to think about is, does it really make us any safer? Is it necessary for them? And how does it balance against the invasion of privacy?

It used to be that wiretap warrants had to designate the numbers that were going to be tapped. A roving wiretap warrant allows them to tap any phone that an individual reasonably is likely to use. So if there's a roving wiretap warrant for Erwin Chemerinsky, they can wiretap every phone in the building where I work, every phone in the stores where I shop, every phone in the friends' houses where I visit, every phone today in this building. (Unintelligible) a guy in the FBI said, "Oh, with a roving wiretap warrant we can even tap the pay phones that you walk in front of on a daily basis." It doesn't take that many roving wiretap warrants to where the police can listen to any phone anytime they want. Well, the argument is it's necessary to make us safer, because the terrorists might quickly change cell phones, but the problem with that argument is that by definition the police can't tap a new phone until they know that it exists. They can't tap it until they know the number to tap. Once they know that, why can't they just add that number to an existing warrant? Why roving wiretap warrants? The answer always is, well, it takes too long to add new numbers to existing warrants. That's not a justification for roving wiretaps, that's a justification for more expeditious procedure for adding new numbers to existing warrants. The Attorney General of California, Bill Lockyer, proposed to the California Legislature in January of 2002 that they give state and local police the authority for roving wiretaps. I was really pleased when the District Attorney of Los Angeles County, Steve Cooley, said, "We don't need roving wiretaps; we just need a faster procedure for adding new numbers to existing warrants." And that's exactly what the California Legislature adopted.

One of the most important, though complicated, aspects of the PATRIOT Act is the great expansion of the authority of the Foreign Intelligence Surveillance Court. A little bit of background-in 1972 in a case called United States v. United States District Court, the Supreme Court ruled that the President has no authority to engage in warrantless wiretapping even for the sake of domestic security. In 1978 Congress, to deal with this, passed the Foreign Intelligence Surveillance Act. It created the Foreign Intelligence Surveillance Court. It's allowed to issue warrants, under the terms of the statute, if the purpose was gathering foreign intelligence information. There didn't have to be probable cause that the person committed a crime, or any evidence of a crime. There just had to be reason to believe that the government would gain foreign intelligence information, and the law was clear that whatever was gained through these FISA warrants couldn't be shared with law enforcement, because of course the Fourth Amendment (unintelligible).

The FISA court isn't really a court. It's federal judges; it used to be seven, now thirteen, designated by the Chief Justice of the United States. They meet in a secret floor, entirely in secret, in the United States Department of Justice. We do have records, and we know that they've approved virtually a hundred percent of all of the requests for FISA warrants. The PATRIOT Act substantially expands the powers of the FISA court. It says that there can be a FISA warrant if a significant purpose is foreign intelligence gathering, and it says that anything that's gained through a FISA warrant can be shared then with law enforcement. Well, think what this means. The police now, federal agents, can go to the FISA court and get a warrant by saying, "We have a significant goal of foreign intelligence gathering," even if the predominant goal is law enforcement. They don't have to meet the Fourth Amendment's standard of probable cause. And whatever they gain through the FISA warrant can then be turned over to the police to be used. The usual limits on warrantless wiretapping, the usual restrictions of electronic surveillance through the Fourth Amendment, under the 1968 Omnibus Crime Control Act no longer have to be met.

Well, I've gone through what I regard to be the most significant abuses, there are others I haven't talked about, but I think they're united by the fact that there's no evidence that any of these losses of freedoms are making us any safer. Before I end, I want to conclude with two quotes from late Supreme Court Justices. One came from the late Justice Robert Jackson. He said, "The Constitution is not a suicide pact." And of course, he's right. I don't believe that any freedoms are absolute. I believe that if the government can show that it's essential for national security and there's no less-restrictive alternative, that even our most precious liberties for a short period of time might need to be compromised. But we also have to remember the words of the late Justice Louis Brandeis. He said that, "the greatest threat to liberty will come from people who claim to be acting for a beneficial purpose." He said, "People born to freedom know to resist the tyranny of despots." He said, "The insidious threat to liberty will come from well-meaning people of zeal with little understanding of what the Constitution is about." Now, Louis Brandeis never knew John Ashcroft, but could better words describe him?

Thank you.