of it, but managing by picking really good people who could handle the job. >> you can watch this and other programs online at booktv.org. ..

>> host: susan herman you have written a very well-written and clear compilation of a number of stories that have transpired the last decade as america responded to the threat of terrorism after line 11. the book is timely and out this week this month it is called taking liberties the war on ticker and erosion of american democracy. right thinking americans will differ regarding the activities and the consequences of terrorism and our responses to it. i think what is really important is that we know the facts and

the stories behind the facts and i think that you've accomplished a tremendous feat of telling the stories very clearly, dispassionately why let the same time not losing the advocate edge after rall you are the president of the aclu. as i thought we might start simply by talking about some of these stories that you have compiled here of ordinary americans and not sometimes so ordinary activities and the responses and systems define the themselves and the >> guest: thank you, viet for the comments. i wrote this because i think most americans aren't really aware of the kind of policies we gathered after 9/11. they do have costs people aren't really aware of and people sometimes to the individual stories talked about but it's important to put them all together so that you can really draw the themes and see patterns. so in the first chapter i call with the web master and the football player because it is about two men one is an american

citizen and the matter is not. >> host: both midwestern college students. >> guest: in idaho said they had met at the university of idaho. the first gentleman was named samuel hussain was an exchange student who was going to idaho because he was he going to study and while he was there he was a muslim and line 11 took place and he was somebody that lit a candle light vigil in protest people were beginning to associate muslims with radical jihad and 9/11 and he really wanted people to understand that is not the motive is on most are very peace-loving people so he was working with an organization called the islamic assembly of america and they were trying to get people to understand more about islam and because he was a contributor who served as a web master and one of the things he did on their website is they were trying to get people's information so they could find

out more and get all the facts about islam. he posted links to the various things people had written including bill links of people explaining why they thought she ought was a good idea in the whole range of lengths. so, at some point she came under investigation by the fbi and did a lot of wiretaps and electronic surveillance, reading the e-mail, etc. they didn't really come up with a lot of evidence that he was a part of the sleeper selling of idaho that they thought they had discovered to read and to me the story is about -- >> host: is there such a sleeper cell? >> guest: absolutely not and to me this is a story about how when you think you have something people in government agents of good faith can start racing back words and jumping to conclusions, so they thought partially because he was making donations to muslim charities because that is part of what it means to be a muslim and they thought they found a sleeper selling idaho so the and prosecuting hussein for the report of terrorists and what he

had done because his action was to post the links on the web site. >> host: the fbi affidavit and the document alleged that he had facilitated the recruitment of terrorists through the dissemination of the propaganda for the internet and also attempted to or actually tried to solicit funds for the organizations through his own contributions to the charity. did he solicit funds -- >> guest: one of the concept as was alleged in the trial is in fact there was a link to some of the web sites where you could make a contribution to a terrorist. his lawyer pointed out it was disabled before he was involved in the project. the contribution for the charities were not to anything on the backlist showing he was supporting terrorism himself and in fact the fbi theory began to shift during the case as they went along. the first they said they were supporting al qaeda then they said it was hamas then they said it was the chechnya rebels.

when it came down to was the only concrete evidence of anything that he had actually done that could remotely be imagined he was supporting terrorism that he had made it possible for people to the ideas and people might then be convinced of the ideas and decided to support terrorists. >> host: and he continued to support by providing the link to the other websites which he had no part in creating. >> guest: he had no part in creating and i think it affect the organization he was working with on the assembly was not on any blacklist, nobody suspected them of anything so when it came down to as his lawyer was arguing to the district court was that he was just being prosecuted for speech. >> host: let me ask a question the in the link that supports chehab that is the basis of the support for terrorism was hosted

by a group designated on a blacklist? >> guest: i'm not sure what they were talking about because in the end of the government didn't connect them with that plank and the fact that somebody else had a link how can you prosecute him in supporting terrorism? what his lawyer told the juror jury but the judge didn't do that and the lawyer argued to the jury if you prosecute samuel hussein for posting links to the speech of the jihad you could prosecute "the new york times" for posting in editorial by the members of hamas saying this is why we believe what we believe and what i thought was fascinating is that we think of idaho as a pretty conservative state and the juror was in the case is pretty typical idaho residents retired worker and after thinking about the first amendment and with the government was are doing, the jury acquitted him and one of the jury said okay this is just about people talking. it's about than saying what they think and in the building of the people to talk. it's about conversation. >> host: the first amendment protection is a very interesting analogy and argument.

why did the judge reject that notion that seems to be fairly straightforward constitutional court of? >> guest: we actually don't know the answer to that question. the lawyer who was representing him told him that the judge had said after declining to dismiss the case the judge said an opinion was followed he said no opinion never followed. unfortunately we hope the judges are going to act as gatekeepers and would like it is wonderful is the kind of tribute to the american constitution is it was the right to the jury trial that came into play and they did a quick samuel usian of that charge. >> host: one way to distinguish the posting of the lincoln let's just say for the sake of argument clearly and visibly jihad website from "the new york times" op-ed about being signed by hamas designated the terrorist organization under our system is that the posting of the links is more like the

passing of leaflets facilitating the message of the chehab website rather than being a publication, being a true first amendment purveyor like in the new york times. could that be what the judge was thinking? >> guest: i don't know the judge was thinking that is the internet is a little different from the newspaper but if anybody can be prosecuted for speaking including "the new york times" and its own website if the had the hyperlink that can be linked to something else at that point it seems to me it is not consistent with our first amendment ideas people have the right to listen to all kind of speech and make up their own mind for the government to have the series this was making it easy for people to come from ideas that might lead them down a path someplace else. >> host: what about the material support on the activities what about the materials with the government alleged with respect to the own contribution or the contribution the salles caruthers? >> guest: the jury didn't think the government had made that the case but let me tell you you are looking as a lawyer and as a former prosecutor at

what the government alleged. i interviewed people who were on the idaho campus of the time and nobody ever believed that he was a terrorist. they thought the government had really just misunderstood and kind of had gotten this. everybody said he was the gentlest person. on persons it was like a war of the world hoax and that he was involved in it. the other thing that happened in this case is that he was arrested i think it was 4 a.m. on friday with about 100 federal troops on the campus and in addition to arresting samuel usian the immigration violation there are also interrogated the people they called the associates of the other arab and muslim students and idaho terrified people. they were everybody in the town apparently liberals and libertarians like were pretty horrified that time the government was saying we found the sleeper selling idaho and i think it was just a mistake. it was wishful thinking that you could find somebody. >> host: the of your associates were not charged.

just to close the chapter on mr. hussein, he was acquitted of the material, but he was convicted of the immigration violation. >> guest: it was a mistrial on whether or not he violated the immigration law and the fury of that is that he was not genuinely student because he was also working with the islamic assembly of north america and they said he was violating, that he wasn't really a student. to give you examples of the kind of wishful thinking that goes on, one thing one agent said that was suspicious his furious he wasn't a serious student and he was only in the country because he was on the terrorist pretending to be a student. so one agent i think it was pointed to the fact that he switched his dissertation in the middle of the year. they said that's suspicious nobody does that that must mean he is not serious about his dissertation. it turns out if they look harder his adviser had cancer and switch of pfizer's because he was striking to finish his

dissertation in he was almost throop when he ended up in jail, he ended up agreeing to go back to saudi arabia. the shift away his wife and children while he was standing in trial they wouldn't let them stay in the country and was a pretty horrific experience i can tell you where he is now it is a saudi arabia scratching his head trying to mesh what happened to him with his lifelong concept that america is the land of the trust. >> host: notwithstanding the mistrial he voluntarily agreed to be removed in the country. >> guest: that's right because his family had already gone back. >> host: he continued his education? >> guest: he was never able to finish his dissertation and that is what he was doing in the jail cell. i think it was while his family was back in saudi arabia and he was trying to work on his dissertation. >> host: you mentioned throughout the story that the fbi was working backwards and thinking backwards and certainly

the jury seemed to agree he should be acquitted of these charges. how did he come to the attention of the fbi or the investigators regardless of the mistakes that he made, what were the initial red flags that raised the suspicion? >> guest: it seems some of it was contribution from charity but of course as you know it is one of the pillars of islam. >> host: the religious obligations. >> guest: but let me give you a different example from one of the other stories i tell what i mean in backwards. another story i tell which is i think a little more familiar to people than samuel usian is the story of brandon mayfield, the oregon lawyer who ended up being suspected of the train bombing in madrid because his tinder prints were similar to the fingerprints that were found on the plastic bag in madrid. the agents looked at this and -- >> host: the murphy's law investigations. it's probably one of the most

horrendous mistakes you would imagine in terms of the investigation to beat you go back and see how can you possibly connect a white lawyer in oregon with a bombing in madrid and then you look at it and from the lens of the fbi agent who was making the connection. and, you know, he -- you can see how the mistakes happen but it helped bring the me field. >> guest: here's how it happened. two things, when the fbi identified the fingerprints one said that fingerprint is low. what you should be doing and what the fbi is doing now after hundreds of pages of inspector general report is have a second person who doesn't know the first person made the identification to that independently. so that didn't happen. leader people will assume the identification was right when they told the standards they said we don't think so and nobody paid any attention. they never asked the spaniards with the basis of their conclusion was saddam was one problem. >> host: to give an idea we

have a sense of the public that forensic science and fingerprinting in particular has been around for a century is a precise science. it is a precise science that each is unique and matching it is unique, however the match is anything but the science. it depends how many points you compare it to and how similar they are in the match and that's why the physical comparison comes into play with it is not a perfect match. >> guest: i think that's right, you're right. course it's an art, matching fingerprints, and looking back we can tell that about the nature of peace. so again, aside from this of eastern's practices, if not have an independent verification. once the agents of the branded mayfield was involved in the there for what must happen. there for brandon mayfield didn't get a passport, he was an army veteran and he didn't have a passport so they are thinking how could he have gotten too moderate if he didn't have a

passport? he must have a fake passport. so the submit an affidavit saying we want to arrest him as a material witness to find out what is going on because we don't think we have probable cause to charge him with a crime and one of the reasons that we are telling you that we suspect him as a likelihood that he had a phony passport. >> host: just to give the context there is a lot of reasoning backwards that you're absolutely right with brinton the field is left as a lawyer sitting in oregon he is a.m. to become a lawyer known to the fbi and the justice department as only for legitimate reasons he had defended one of the 9/11 defendants'. >> guest: he represented jeffrey in a child custody case. it's suspicious to represent somebody in a child custody case. >> host: and he is -- >> guest: a gentleman and oregon who ended up charge for the terrorism crime. >> host: at least within the

universe. >> guest: that's a pretty big universe and part of the problem -- >> host: you can see how a fingerprint which is questionable of itself suddenly triggers red flags and starts this whole process of reversed reasoning. >> guest: i think the other thing that your comments suggest is the reasoning in this case was also affected by the antimuslim bias that one of the things the agent found suspicious but was charged with that effort is to the legal business and what they called the muslim yellow pages what he mentioned to the jury was the muslim yellow pages also advertise best western and avis and hertz and there's nothing suspicious about representing people who are muslim. >> host: did they put this in the affidavit applying for the material witness? >> guest: yes, so what initially lifted a finger print identification but after the identification in fact his religion he converted to islam and ended up converting to

islam. >> host: before or after his experience in that tribulation here. >> host: that was before. one reason he was being suspected because he was a muslim american. >> host: and that was put into the affidavit. >> guest: that was considered to be suspicious. >> host: and granted the material witness she was held for six months in prison. >> guest: held a period of time i don't recall what the period was that was just as a material witness. and again the problem of the inspector general concluded is that the judge wasn't given to effect because the and then leaping to conclusions and what i think of as the most troubling part but nobody ever listens to the spaniard police. they were social and they were right. >> host: you mentioned after the inspector general reports

the fbi now has procedures in place in order to hopefully prevent or at least double check -- >> guest: to double check the finger prints. so this particular problem that maybe wouldn't have been as much. >> host: as a verdict we have to go for the third in hershel. >> guest: what is more concerning is the way the fbi was willing to believe branded mayfield was involved and partially on the basis of its religion like samuel usian. he's a muslim from saudi arabia contributing to charities and that raises red flags by itself. let me tell you another person in the chapter -- >> host: it comes back full circle and one of the associates that the fbi interviewed of samuel usian on the evening and idaho is a football player who was subsequently also arrested just like brennan mayfield. pick it up from samuel hussein

and talk us through the rest. >> guest: one of the people he happened to know in idaho was another young man who converted to islam and this person is an american citizen. he was born in kansas. he was of an african-american family in his father was in prison and his mother, i can't remember what his mother did but she worked for ibm and his grandfather was a pentecostal minister. while he was in college she was a great football player. i have a picture of him and his football uniform in his yearbook and he won an award and was a really good football player but while he was in college as often people do in college he started to rethink his religious beliefs and decided to convert to islam. his grandfather as the minister but still appreciated being a religious person. the investigation of samuel hussein because they were interested in everybody else they thought might be involved

in this nonexistent sleeper sell extended to him because he was a muslim and so somebody along the way hypothesized he too was part of the sleeper sell but they didn't have enough evidence to arrest him and because unlike samuel who say he was not an immigrant the good in and arrested for immigration violation because he was a citizen. so what they did instead is the arrested him as a material witness. as you know the material witness statute allows somebody to be taken into custody yet to give really important is the money to give a new trial or legal proceeding but if there is good reason to believe a of the are going to of scorned and won't be available as a witness. >> host: all of this has to be presented as a judge depriving somebody of their liberty and the judge has to make an independent impartial decision as to whether or not one, this person really does have montr information to give to the court in the prosecution and second, whether there is a likelihood he would

flee the country and otherwise not cooperate with the truth seeking process. so what was the government's assertion with respect to both halves? >> guest: in terms of the first half, what would he have said? we don't know because he never testified anywhere. he was never called to testify. i think the document is not public. we've never been allowed to see what was in the allegation that the best we can tell is that there was a federal agent who after the trial said what they thought he could testify is on the charge for the or not samuel usian was working as opposed to just being a student but he was never called so we don't know what he would have said. on the cooperation the fbi had talked to him. he changed his name when he converted so they talked to him when they were doing the investigation and he had been fully cooperative and he offered to help the agents by giving them lessons and islam and to help them better understand what they were up to and what they

thought and he was being completely cooperative. he then had decided because he had become very interested in is on to graduate study work in saudi arabia so when he was arrested he was at the airport on his way to saudi arabia to continue their studies and all of a sudden he's arrested. >> host: how many days after is he at the airport, do you remember? >> guest: i don't remember what the relative timing is. i sure i have the dates in the book but i don't recall off the top of my head. sometimes it is hard to place the beets. but he was held in custody for 16 days shipped around the country in shackles from prison to prison and he wasn't being held as a material witness because in fact i believe it was robert mueller who reported that in fact the fbi had great success and arrested her wrists and he was one of them kept in the same cell as john walker and was perfectly clear he hadn't been arrested because they wanted to testify. he had been arrested because they thought he was a terrorist

and didn't have the evidence to arrest him because they didn't have probable cause. >> host: after 16 days. >> guest: you're not allowed to travel beyond a certain radius and can't continue the studies from saudi arabia but having problems getting a job his family falls apart and he was traumatized by this will experience never called to testify in the weary and so as time went on he kept having nightmares and deutsch was a horribly upsetting experience and he was never charged with anything, never any evidence that he had ever done anything wrong. as he finally decided to bring a lawsuit against john ashcroft for using the material witness statute as a pretext for arresting him and it ended up that case ended up dismissed in the supreme court and was dismissed against john ashcroft on the grout he was, however this was connected in the case and there were connections and there was the affidavit that was

given to the court for the material witness to rest record and filled out by the theory is fbi agents. one reason they said he's going to of s. con. res. 70 they said he bought a $5,000 first-class one-way ticket to saudi arabia. she had and he bought a $1,700 round-trip ticket to saudi arabia. what wasn't mentioned is that he had a family, wife and children in the united states that he had offered the fbi his cooperation. so that part of the lawsuit continues against the fbi agents to be very machiavellian. they clearly thought that disrupting what they thought was a sleeper cell was going to justify the means of being highly misleading. >> host: there's an interesting segue into the more broad aspect of these various stories which are very compelling in and of themselves and regardless of what we think about how the legal and what the evidence ultimately would beef

it's hard to go away with these things with these cases thinking that people were not mistreated and so i think that is -- >> guest: if i could tell you as a tangent before you continue with of the fault, abdullah also had serious allegations that he had been mistreated when he was incarcerated and ended up having a lawsuit settled with the conditions under which he was being held in the treatment. >> host: that wasn't part of the lawsuit. >> guest: it wasn't part of the same lawsuit it was a different lawsuit. >> host: but in dismissing the lawsuit against attorney general ashcroft with a pretext, and the claim is a good one which is what ever you may believe on no and what of the congress believes my legal obligations are on the support statute you can't use it as a pretext to hold me for other grounds, that is if i'm speeding pull me over,

don't pull me over for a broken taillight as a classic pretext the court rejected this and the efficient and fair administration of justice requires us to focus on the facts as they are at a time of the decision that is the time a judge granted the material witness and not on the motive of the arresting officer otherwise they would be broken and always question the motives koppel of the arresting officer. a fairly reasonable sort of macrosystemic will look all so despite the application in one particular aspect we are looking at a systemic level that's not right, don't you think? >> guest: i am sorry to have to disagree but i think justice scalia has been wrong about this for a long time getting opinions i disagree with.

there's opinions i disagree with saying it doesn't matter if you're being arrested on the pretext but even given those opinions with gordon-reed officers the attorney general making this policy and inviting one for some officers around the country to use the material witness statute where the really never had any intention of calling for one of the witness that's a different matter not just to samuel usian and abdullah but samuel hussain was confronting the first amendment and do in end run around for the amendment unless you have probable cause and the chief law enforcement agent in the country is saying to everybody it's okay because you can pretend you can use this as a pretext that is a lot more serious than an individual officer pulling you over for a broken taillight when they really want to see if you have drugs. >> guest: >> host: would be independent and intervening action of the judiciary? that is initially of the judge

who approved the material witness. >> guest: one of the cases against john ashcroft is that john ashcroft wasn't personally implicated in all of the misleading information put into this affidavit. the aclu which was representing abdullah had a series the judge never would have issued that order and if he had been told the actual facts, he or she, i don't remember the actual judge but it didn't get in the whole picture and told he was perfectly willing to cooperate in the fbi if they called him to testify, he would have testified. >> host: who was representing abdullah at the hearing? it's an adversarial hearing. >> guest: i am sorry. i don't recall. i mostly in familiar with the case -- representing him and his challenge. >> host: so one answer is we should be much more vigilant at whatever issues and or difference of opinion are on the views of the proper use of the material witness statute or the

secondary liability for the misuse of the one lesson is we should be much more vigilant be in the system the judge, the prosecutor and defense attorney to be much more vigilant in testing the underlining basis for such a material witness because the consequences are dramatic to be put in jail for at least up to a year without the possibility essentially and the material witness warrant the effect is the same. >> guest: 84 will experience. we want to be careful about how we use of these enormous power but the material witness arrested the prosecution that samuel usian materially support of the terrorists that just was not based on very much because it is one thing to say okay we have these enormous drug and powers but we are just going to use them really carefully.

to me that is not enough of an answer. once you set in place the dragnet and say we are we to allow the attorney general to say we can use a material witness arrest warrant to arrest somebody to get around the fact we don't have probable cause to arrest them that itself is a problem that just invites abuse and abuse of discretion in to the forms and the prosecution of samuel usian a lot of people i think think there's nothing wrong with giving the government these enormous dragnet powers and the material support laws are enormous powers they will allow the prosecution and humanitarian of "the new york times" and all sorts of people. it's one thing to say let's be careful not to prosecute people in a way that violates the first amendment, but the mere existence of the statute that invites prosecution or allows prosecution giving humanitarian aid to some in the government thinks is a terrorist or for posting links cony website it seems to me it has a chilling effect. people start worrying shibley really check out the biography of osama bin laden?

what if the government becomes suspicious of me? >> host: but the materials support staff should is clear there has to be a designated terrorist organization or upon a specific intent to give to terrorism. you're right, and we don't know if ordinary citizens don't know what is listed under section 319, but you can take it as a fairly -- given that if you are giving money to a designated terrorist organization you should be punished because the united states has said these are people who are -- >> host: >> guest: we are talking about the material support after the patriot act and one of the things that is prohibited and providing expert advice and assistance to the terrorists it used to be it looked like it was money or guns.

now expert advisor assistance can include humanitarian aid that was an exception specifically left out. so that means for a simple there was an aclu lawyer from sri lanka who went home for vacation. weigel he went to see relatives, while he was there the tsunami came and the time of the tsunami one-fifth of sri lanka was being controlled by the ltte. therefore if you were a relief organization and you wanted to give food to those people that had been affected by the tsunami you had to deal with the ltt because the or the government for one-fifth of the country. >> host: and the position is whatever money the ltte or the other organization does not spend on the refugee camps they can spend on guns because the money is fungible. so we will have a constitutional court out for the activities the government cannot prosecute as a matter of law otherwise money is

fungible. >> guest: it's not only own money. not all support is fungible. the supreme court made the first amendment carve out an enormous. here is another example. there's a group called the humanitarian -- >> host: let's hold the humanitarian law project because we will go to that discussion because that was a decision last year by the supreme court interpreting exactly the constitutional reach of the statute. we will do that right after the break. thank you.

>> susan herman the president of aclu and professor at brooklyn law school the book is taking liberties the war on terror and the erosion of american democracy. we were talking about the material support statute and the prohibition that they are from. giving money to a designated terrorist organization is but the legal and has been expanded to include non-monetary aid including expert advice and assistance including providing your own efforts rather than recruiting others to your own efforts in rendering expert advice and assistance is enough in order to fall within the habit of this statute. the question is what if you give money or assistance to

non-terrorist activities of a designated terrorist organization a case that came out last year humanitarian law projects said the money is fungible so there for giving money to one part of a designated organization is supporting another part to restricted the triet >> guest: this goes way beyond money. the humanitarian law project wasn't giving money to anybody but i think that the idea, the central idea in the material support if you are giving money or guns to terrorists that is a crime. of course it is a crime but it's also a new attempt. it was a crime any way. the statute is just too much so let me give you a couple of different examples. the humanitarian law project is a group of people interested in promoting peace. one of the things they set out to do was try to talk potential terrorist groups out of committing acts of terrorism by showing them how they can use peaceful dispute resolution techniques like going through

the u.n. with their grievances. so the humanitarian law project was working with the kurds in turkey. as you know the kurds in turkey have had many grievances with the turkish government. and so what they were trying to explain to people is instead of turning to terrorism there were other ways that they could get their grievances redressed. when the patriot act expanded the material support law to go way beyond money or guns to provide to cover any sort of expert advice or assistance, they started to worry about whether they could be a subject of prosecution, whether they were having a problem telling their donors to support them or whether the donors would considered in efforts to getting too close to terrorists. so after many years of litigation back-and-forth in the california federal courts the case ended up in the supreme courts and to my great dismay the supreme court said it doesn't violate the first amendment. first of all yes, expert advice in the system is broad enough, that term is broad enough to cover telling the jurors not to

be interested in an answer to the question of what about the first amendment the court said don't you know this is preventing people from speaking. this theory of the statute is they have to be radioactive so the theory was this isn't money fungible because there wasn't any money and to meet the court's answer is a bit far-fetched they said okay the valuable services training and using alterman dispute resolution. using the dispute resolution method that brings up resources to you elsewhere. plus it gets to legitimacy. this is terrifying. let me take it one step further. at the oral argument, elena kagan the solicitor general in the case, one of the justices said to her it is broad enough to cover the humanitarian law project to try to teach terrorists not to be terrorists could that ever cover a --

>> host: one of the facts in the case itself in one of the earlier iterations. >> guest: it was. she said yes it would cover lawyers. i think that is too abroad. the government has the power over everybody. i think that barack obama is going to prosecute lawyers or eric holder, malae don't but this has a tremendous chile and -- >> host: one thing just to be fair i do agree that the statute is very broad and the supreme court recognizes this and says it's about as broad a statute as it has seen nevertheless as unconstitutional on its face. to be fair if there are unconstitutional applications come in be used in order to punish unconstitutional conduct the unconstitutional the application is always the defense -- >> guest: it didn't work so

well for samuel hussain he denied the claim and dismissed the prosecution plus i think the discount the fact the statute does harm by the mere existence. again i think a lot of people have relaxed about the patriot act and everything now that george w. bush is not in the white house because they don't think that barack obama is going to be looking for people who took out biographies of osama bin laden. put the power is there, the statute of limitations is going to allow people prosecuted by a future administration for things they are doing now. we will have all different presidents in the future, plus president obama and eric holder don't really determine the action for all the people and agencies below them. >> host: but they have made -- they are responsible for their own actions and part of the compound in part of your book is how sort of the very thin disappointment that you portray on the candidate obama is different from president obama in that by and large it has been

a continuation of the pressure administration's policies. from my perspective that gives little adjustment in never strategy on terror and it's actually a laudatory recognition of responsibilities of government but the president has seen from your perspective what is your perspective? >> guest: my disappointment was not failed. one thing you can hope is that when the president is taking measures that seems to me are too broad the idea is the executive branch has to have all this power you can't have the checks and balances we are supposed to have because the congress is public they can't know enough the courts don't know enough and therefore the whole fury of the patriot act and all the other post-9/11 regiments' was the president has to do it in secret and we have to just trust the president. >> host: there is a difference. there are a lot of post-9/11 policies done unilaterally and in secret by the president. the patriot act is not one of

those. >> guest: but the u.s. the patriot act provides all sorts of ways for the president and the executive agency to avoid oversight by congress in the courts to recall the surveillance provisions the chief point is they have much less say in what happens let's look the agencies decide for themselves when they want to go into the library and take the reference. >> host: with congress acquiescence and regulations -- >> guest: that's the problem. >> host: they were written into law by congress. >> guest: gura absolutely right to have a beef with congress, too. they've gone way too far in taking the court out of the picture. and to be this is not my own distress this is the constitution because of these checks and balances because when you get an enormous amount of power to one part of the government, to the president and the executive agency without the opportunity to really have checks and balances and a lot of the powers are being exercised in secret that is a recipe for abuse so let me give you one

example. >> host: why isn't president obama and the attorney general holder recognize and agree with themselves in the campaign? >> guest: i give you one example when president obama says specifically during his campaign no more national security letters. as you know no more national security letters was expanded during the patriot act section section 508 and allows the fbi and other agencies to go into that certain types of the telecommunication providers, library and some just other and so there is no court order at all. this tooby is emblematic of the kind of thing in the patriot act is doing a ticket easy for the government to get more information with the reformation we want and let's take the courts out of this. >> host: the context as the u.s. a patriot act didn't create a national security it was created in 1988 by congress and

used in that regard. 505, you're right did expand the categories in which they were being used and clarified the procedures that they were to use and again just to the of all the facts in this provision has been abused. it's been horribly abused. there was an inspector general report of the fbi that said there was an issuance of national security letters without the probable predicates without proper supervision and for but said there is no question it has been abused. nonetheless, congress has reauthorize it with some safeguards making sure there is judicial review and it was implicit before and i guess the recognition is that there's always potential for abuse of some wall and the constitution is there and violated doesn't mean the violation makes the law -- >> guest: i have to disagree with that. it seems to me again what

happened not letting congress off the hook the are supporting the exit to the french and their ability to have this enormous power but a couple of things happened with the national security they hadn't been used often and after 9/11, after the patriot act the used hundreds of thousands of times an incredible amount -- because the fbi wanted to use them one of the furies of the patriot act is a good substitute for the real involvement of the courts and oversight by congress was to have higher officials have to sign off on important things and therefore the agency was police itself the inspector general report that you were describing in 2007 looked at what happened when the fbi was using its own regulations and its own internal sector as supervising come and will conclude on the council called the san eft report card the concluded there had been

thousands of violations of the fbi. now you're seeing -- i think like even 2,000 -- >> host: i was on vacation at the time i saw this report. >> guest: it's funny. it's funny. >> host: the real question is what do we do. >> guest: this is light can we fix the brand and mayfield case and outfielder protect indication of course we should take those small corrections but to me with the story is about is the framers were right if you have an enormous amount of power being exercised by one branch of the government without oversight that is a recipe for abuse and that is a lesson that i applied to a lot more than just okay what are they exactly doing about the national security letter is right now? secure asking why doesn't president obama change all of this? it seems to me that once your president, jack nicklaus matured and interesting book called the ticker presidency and i keep the american people have a very

unrealistic expectation that the president can promise to keep us safe and say process and guarantee safety. the commission said no president can promise the american people that you can do your best, you can prevent banks but you cannot guarantee safety. >> host: to the american people's credit in the normal or absolute safety is no longer realistic expectation after line 11. >> guest: but also people have accepted the government power -- >> host: i read a passage, beautifully written passage but it's also very, very depressing from your book, and by sorry that my preview copy is not the same as yours. i'm going to flip around to it but i will read it right here.

close, losing checks and balances. quote, again and again the executive branch overreact or was tempted by secrecy to exceed its powers, as you said before. again and again, congress failed to be none of abuses which to fulfill its responsibility to monitor the executive agencies actions by as you said not letting the congress off the hook. but then i ask myself who is left? again and again, the courts discarded serious constitutional challenges for the president and congress's actions for procedural reasons. so you have managed care to denunciate 03 bridges of our government. we don't want to have jack nicholson attack you still have two branches left. all three branches are complicity come if you will come in your erosion or liberty and the target of your concern. we haven't talked about the court tangentially.

what you to give the courts? >> guest: let me be clear. i'm glad you read the passage, but there is lot in the book and there are some judges who give rise to the location and several opinions i think are admirable. >> host: and agree with you. >> guest: of course. [laughter] here's the problem, let me give you an example. one of the things that happened as you also know, president bush -- even though the patriot act to defend him all sorts of powers to the surveillance and other things -- he wanted more and he started the national security searches without going to congress. >> host: the surveillance program. >> guest: terror surveillance program and that went on for years before "the new york times" exposed what was going on jack goldsmith said because people in the agency were troubled by the fact they have all this power and was secret and nobody knew what they were doing and it was inviting the terrible problem. so when that program was exposed, congress agreed,

congress would finally which he should have done in the first place when they said okay and they gave him even a little bit more power that he had played himself. so what about the courts? aveda that we are accustomed, those of us who come to our teacher in the civil rights era to thinking of the president and congress are doing something unconstitutional the courts will be there to save as and uphold the constitution to reduce the aclu brought a lawsuit challenging these, the national security agency searches, claiming that it is a violation of the fourth amendment and the plaintiffs in the case were a lawyer who had represented the detainee in guantanamo who had representatives in yemen and the relatives and yemen would no longer talk on the phone or e-mail with her because they were afraid the government might be listening and they might end up on the no-fly list or they didn't want to attract government attention. there were scholars trying to talk to islam's a round the world. that joy up. so a lawyer had to fly to yemen to interview witnesses into spending a lot of money etc..

so, we actually won that case in the district court despite the administration arguing the state privilege nobody could know about this. but what happened in the sixth circuit court of appeals reversed that decision holding that they had no standing. the only people who could challenge the secret surveillance like this in court or people who can show that they themselves have been under surveillance. to me that is a catch-22. the whole point of secret surveillance is yield know when you are under surveillance. so the people who actually had found out the government was -- >> guest: once they are prosecuted the or a criminal defendant and they don't look attractive from the suitcase, the context of the criminal case they look at and say well it's interesting -- >> host: there is one case that it was erroneously disclosed. they were standing there because

-- what happened in this one case they did find out that the had been under surveillance because somebody in the government had mistakenly sent them a top-secret law that showed the lawyers had been eve struck on by the government. however the document was classified as they told the lawyers they had to give back the document and pretend that they had never seen it. when it came time to bring the lawsuit, they wanted to claim the standing and the government said no you can't rely on that document because you were not supposed to have seen it and with the district judge did is down to the various government speeches he found a way to find the head standing without relying on that document. >> host: so the government was using the document, is that correct? ducks >> guest: i'm not sure what the argument for the judge decided in taking it was just a

case that the second circuit decided last week in the aclu challenged to the success of statute, the fisa amendment act where the accord just let stand a panel of decision saying the plaintiffs do have standing that is a fine example. the case into the prosecutorial immunity and other cases as you know have gone on a state secret privilege. i don't talk in my book about guantanamo and torture. iger chongging to talk about the things that affect ordinary americans. who have critical claims of extraordinary rendition and torture and not a single one of them has had their day in court. every case dismissed on procedural. >> host: getting down to where we are and where we should do about it you alluded to this a little bit that there has been a circumscribing of the public concern for the civil libertarian abuse in the last decade. reading this book and giving the

full benefit of that out when you say is true you have a bleak world where all of our liberties are being suppressed and the president is driving it and the congress is playing dead, the courts are scared to stand up to the branches and all we have left is a good sense of the people but to the good sense of the people have been told by this year of the last ten years or the government's convincing them eroded and the only hero is the often litigated but somewhat unsuccessful aclu because everybody is out against you and to be adjusting our democracy

and system. >> guest: at of citizen leedy clu but there were other individuals that were standing up and to me it's not a minor thing to say to the american people, and referred to my book as a wake-up call and i think what i really trying to do is give the american people some information secure the two pieces of good news one is the constitution is resilience and his other pieces. the first story i was telling you about samuel usian that was a case for the executive branch using the statute the and been given by congress went after somebody for reasons i think for inconsistent with the first amendment and the judge failed to do anything about but we have a right to jury trial and they stood up and defend the constitution. freedom of press to the did published a story in "the new york times" telling us about what was happening with the searchers but they protect themselves to this gimmick it

may well be that yes, you know, there are concerns about liberty and also about security, and you and linda greenhouse and "the new york times" are just wrong that the american people should not be woken up we just happen to disagree with your view of the world and view of the constitution. after all the reason why the congress reauthorize after the pulitzer prize and all of the facts cannot because the american people supported 78% to 85% in terms of the polls. >> guest: this is really the crux of the whole thing. the american people have been left of the debate where the administration started post 9/11 was a theory of secrecy and the idea was you can't tell anybody anything how we are doing our anti-terrorism efforts because otherwise as the terrorists find out that we were planning to

depart this particular person that might help them and the fury was overblown and went too far and there is this instinct for secrecy that has followed all these measures through and to me the story of the national security is a great example of what's wrong with having everything behind closed doors. i think a lot more has been hidden from the american people a day and needed to be and we really found out about a number of things and i think that if the american people have a good conversation devotees measures i'm not so sure they would agree with happened with the patriot act as it was enacted six weeks after 9/11 with door testimony and there's never been a really good discussion about whether some of the things we did that we put into our laws in the panic days immediately following 9/11 are really effective in terms of our rights and counterproductive. we've never had that discussion and what i am trying to do in this book is give people as you say the information.

if people really understood some of the things we thought might be true right after 9/11 would not be true it's not true that we are financing terrorists in mosques and that is a theory that existed in the fall of 2001 but it doesn't turn out to be true. >> host: i completely agree we should have more compensation and congressional involvement and more political involvement by the american people. with respect to the u.s. a patriot act after has been involvement. there's a michael barr documentary that have been to successes by the congress in order to reauthorize the key provisions. there have been space process these. >> guest: but what we tell you this is one reason why subtitled my book the erosion of the dhaka see that there have been so many attempts to marginalize the american people. this is also -- i can tell you may be one final story that will be about the plus side here there are a number of heroes in my story not only about the ordinary americans victimized but also about individuals who

have stood up who were never prosecuted, the government never went after them but they raised up for the constitutional john use. >> host: the last word the story of the hero -- >> guest: the connection of connecticut, one of these luxury into the national security letter demanding information about a library patron and he was shocked by this because the attorney general collis telling there is no enforcement is another provision of the patriot act and the library he wants to talk to congress he's not allowed. >> host: that's a good place to end because the only other please tecum me in my -- your book is the librarians. thank you very much, susan herman. >> guest: thank you. ..