ACLU president Susan Herman

The ACLU president and author of Taking Liberties discusses the Patriot Act, 10 years later, and explains why it’s time to start looking at the law’s provisions.

A constitutional law scholar, Susan Herman served on the American Civil Liberties Union's National Board of Directors, as a member of its Executive Committee and as general counsel before being elected president in '08. A highly regarded authority in criminal procedure topics, she's written extensively for several publications, ranging from law reviews and books to periodicals and online. In her book, Taking Liberties, she takes a hard look at the human and social costs of the War on Terror.  Herman is also a chaired professor at Brooklyn Law School.


Tavis: Susan Herman is the president of the American Civil Liberties Union, better known as the ACLU. After serving on the ACLU’s Board of Directors, she also teaches law in Brooklyn Law School.

Her new text is called “Taking Liberties: The War on Terror and the Erosion of American Democracy.” Susan Herman, good to have you on this program.

Susan Herman: Thanks, Tavis. Thanks for having me.

Tavis: I want to jump right in. This book, of course, is released and the timing could not be more propitious. We are now – I almost said celebrating, maybe commemorating is the appropriate word, you tell me – but by any other definition, this is the tenth anniversary of the Patriot Act which has now been extended until 2015.

Let me jump right in by asking what your assessment is of the Patriot Act now a decade later.

Herman: Well, a decade later, I think what a lot of people don’t know about the Patriot Act is that it’s a whole grab bag of amendments to previous law. My original copy, when I printed it out, printed out 300 pages, so it’s hundreds of amendments.

I think what most people are most familiar with are the surveillance provisions which, generally speaking, make it easier for the government to find out everything about us and harder for us to find out everything about the government.

Because there are so many provisions involved, people want to say, well, should we get rid of it as a good or bad thing, there are so many different parts to it that we would have to break that down to be more careful.

But what I could say to generalize is that, although I think it was understandable in the fall of 2001 that, 45 days after 9/11, we were improvising and trying to figure out something to do even though we hadn’t yet diagnosed what had happened on 9/11.

I think ten years later I think it really is about time for us to look at all those provisions and try to figure out once and for all which ones are absolutely working and which ones were really never a good idea to begin with.

Tavis: When you say, as others have said, Susan, that in light of what happened ten years ago, it’s understandable that we would have done something and maybe we weren’t prepared for what happened to us, so the response was not what it should have been, but 45 days is relatively quick, to my mind.

So it raises the question of whether or not in trying to respond to what happened to us ten years ago, of course, 9/11, whether or not we moved too quickly.

Herman: I think we certainly moved too quickly. There were no hearings, there wasn’t testimony, all the kind of thing that usually would precede important legislative action and, therefore, what you were just saying about the provisions of the Patriot Act being renewed, what Congress decided to do instead was that 16 of the more controversial provisions, they decided would “sunset.”

That meant they would expire after four years unless Congress decided to renew them. So after four years in 2005, Congress renewed almost all of the controversial provisions permanently and there were just seven, the library provision that people have heard of and just one or two others, continued to be sunsetted so Congress reexamines them.

But my concern is not even just those controversial provisions which are a whole story, but all those other provisions which is the new normal. They’re now a permanent part of our law even though there’s reason to believe that some of them are really not serving us very well.

Tavis: So why do they continue to stay on the books then?

Herman: Well, I think part of the problem is I think that the American people don’t really know what the costs are of a lot of those provisions and that’s why I wrote this book, to try to explain how even ordinary Americans can in fact suffer the costs.

And also at the same time, I think because there’s so much secrecy involved, we don’t really know what’s happening behind the curtain, so we don’t really know what we’re getting out of a lot of these kinds of provisions. Shall I give you an example?

Tavis: Please.

Herman: Okay. In the fall of 2001, one of the theories going around was that perhaps one way to stop terrorism was to stop terrorist financing and that, therefore, what we had to do was to make sure that there was no pipeline of money going from Brooklyn mosques to terrorists at Al Qaeda.

So an immense number of provisions were set into the law where financial institutions – not just banks, but it’s a really broad definition that applies to car rental companies, jewelers, casinos, all sort of places – have all sorts of obligations to file.

They have to collect information on their customers, they have to let the government look at their records for the government if they want to, suspicious activity reports, money laundering programs, plus there was a whole other campaign against the Muslim charities in this country to shut them down and not very much evidence that they were doing anything wrong, again, on the theory that we were gonna disrupt this pipeline of financing.

Well, five years later, when the 9/11 Commission actually studied what had happened on 9/11, they did not think that financing of terrorism from within this country was the problem and they also thought that the whole idea that this was like money laundering and that you could do the same kind of thing was really off-base.

Nevertheless, five years after that report, we continue to have all this apparatus which just has businesses all over this country jumping through hoops, and the charities, not for profit organizations have been very upset about a number of changes in the law that affect them and potentially could affect them even in more devastating ways.

Tavis: I’m gonna go back ten years because even if one argues that President Bush was in charge of the White House, Republicans controlled Congress, Democrats – of course, there were a number of Democrats we all know that went along with President Bush asked them to do and that famously came up in the campaign with Obama and Mrs. Clinton and who voted for what and who did what when, so we recall that from the campaign.

So ten years ago, President Bush is in charge, Republicans are running things through, he gets, of course, Democrats to support him, but that was then.

When President Obama does in fact get elected and, for a couple of years, he controls both Houses of Congress, as I read your text, they didn’t do anything to overturn, to do away with, any of these controversial provisions when they did have control of the White House, the Senate and the House.

Herman: Well, that’s true. Although President Obama did take a very different position about Guantanamo and torture and some very important changes in the law, when it comes to the kinds of things which I write about, not about Guantanamo and torture, but about the things that do affect ordinary Americans, you know, surveillance, materials, support laws, security programs, his policies have been very much like those of President Bush.

Tavis: And even on Guantanamo – I’m not saying this to cast aspersion on the president. These are the facts. Even on Guantanamo that you used as an example, it’s not closed yet. I mean, he took a different position on it, but it’s still open.

Herman: That’s right. It is still open and he is still, you know, taking positions that we can use military commissions, although he’s getting so much pushback from Congress that it’s difficult to say, well, he hasn’t done it because it’s perfectly clear that Congress is now battling him when he wants not to use military commissions when he wants the option of going into regular court. So I think it’s difficult.

But, you know, people say to me, well, does that mean that he was lying when he was a candidate and he said no more national security letters? I don’t think so. I think this whole thing looks different from the point of view of the president. Every morning, the president gets a briefing about all the things that might happen and most of them never do happen.

But it seems to me that the chief thing that we did in the fall of 2001 during the leadership of George W. Bush was that the government got Congress to give them a whole lot of dragnets and the whole theory is, well, we better give the president a great deal of power because what if there’s a terrorist that we could find this way and we couldn’t find a different way?

So we better do more surveillance, we better have more opportunities for criminal law enforcement and prosecution. We better have more security screening. What President Bush basically said to us, which is the same thing we’re hearing now from President Obama, is we don’t intend to use these dragnets against people who aren’t terrorists.

We have, for example, material support laws now would allow the prosecution of the Red Cross for giving humanitarian aid to terrorists. Is President Obama gonna prosecute the Red Cross? I don’t think so and I’m sure he doesn’t think so.

So I think that, from his position now, it seems like the problem isn’t as bad because he feels that he can be trusted and that the attorney-general can be trusted to do the right things. Whereas, to me, the very existence of these large dragnets is a problem.

Tavis: I think we agree on this, the point you’ve made now, that is. But let me take it step further. While the book talks about, you know, the war on terror and the erosion of American democracy, which is to say what we are sacrificing as the American people, there is this question that you raise now about – not question, but there is an assessment that needs to be made now of the White House itself.

One of the issues that I still have ten years later with this so-called Bush Doctrine that we got, of course, courtesy of George W. Bush, which is essentially, you know, if we think you’re going to strike us, we strike you first.

That, in layman’s terms, is what this Bush Doctrine is all about. As a part of that doctrine, the White House does a power grab. They pull to their side of the ledger as much power as they can, which you’ve just laid out.

Why have there been no hearings on this so-called Bush Doctrine? Why has the White House – I’m not talking about Bush or Obama. Why has the presidency gotten away with this power grab and that hasn’t been any more reassessed than the liberties that we have lost and been reassessed, yes?

Herman: Well, I think that’s a great point. I think one of the problems here that we’ve been having and one reason, again, why I wanted to write this book and give the American people more information and urge them to want to get more information is that all three branches of the federal government had been lining up behind this sort of dragnet doctrine. You can imagine the president saying, well, why should I give up these vast powers when I trust myself to use them?

Well, Congress has been for the most part not doing much oversight and sort of abdicating. They’ve been letting the president and the Executive Branch do what they want. To me, the sort of surprising part of the story is that the courts have also been letting the president kind of get away with it and, if not for various reasons, they keep proceduralizing cases.

They say, well, we’re not gonna hear whether or not that program is unconstitutional because there’s this state secrets privilege where this is immunity doctrines or standing doctrines. They keep throwing out cases on procedure. Therefore, I think what’s happening is that no political actors are getting pushback from their constituents that would like them to be reexamining what’s going on.

Tavis: It’s a powerful point, Susan, but how do constituents that you refer to now push back, how do they use their agency if, under Republican administration, they get this kind of attack on liberties, to your point, under a Democrat administration, that attack on liberties continues.

So where then, how then, do the American people use their agency if on both sides of the aisle they’re getting the same crap?

Herman: Well, I think that we’re getting the same thing, I’ll say, from both sides of the aisle is that I think the American people have bought into a very reassuring story that the government knows exactly how to protect us from terrorism, that it turns out that all the things we started to do on September 12, 2001 are exactly the right things, the government can be trusted, there’s nothing wrong, we don’t go after anyone for political reasons or for what they say, and there’s no problem. I think people would like to believe that.

I think that what we need to is we need to take agency under the Constitution, as you say. Under the Constitution, we the people are the government. I think another place where we kind of went off track starting the fall of 2001 was when President Bush said, “I am the decider.” He’s not the decider. We’re the deciders.

I would like to see the American people, first of all, start informing themselves, start to ask more questions, because if our elected representatives thought that they’re not gonna get reelected by giving us placebos, they’re gonna get reelected by having intelligent discussions with us and taking us seriously as adults. I think that’s our power.

Tavis: But President Bush, as I think about it, might not have been that far off when he says, “I am the decider.” If what you say in this book is true, he was the decider and Obama is the decider. That’s the problem.

Herman: I think that’s exactly the problem, and ten years later…

Tavis: He wasn’t wrong about that.

Herman: And ten years later, I think it’s about time for us to take our power as being the decider because, after ten years, something that you’ve put into effect as an emergency measure really does become the new normal.

Tavis: I hear the point you’re making, but I want to get a practical answer out of you on this. How would we overturn this? How would we undo what’s already been done juxtaposed against the reality that Americans are more fearful now than ever before? Everybody knows it’s not a matter of if we’re going to get hit again. It’s when we’re going to get it again.

We can celebrate, you know, ten years of not getting attacked since 9/11 all we want. Everybody knows it’s just a matter of time before it happens again. No security expert I’ve talked to on this program feels differently.

So when that kind of fear is, shall we say, palpable, how do the American people, that is to say, get traction on trying to overturn this stuff that’s already been done?

Herman: I think where you have to start is with the things that are being done that are ineffective, that are too costly in terms of money, squandering resources, rights.

Tavis: Things like?

Herman: Well, things like this campaign against the Muslim charities, for example. There’s an ACLU report called Blocking Faith, Freezing Charity which was all about this whole campaign against the charities.

First of all, not many people in this country are that aware of what was done to the Muslim charities, but this is something that in other countries people are quite aware of. It really affects, I think, the view of us in the rest of the world and what’s happened since then because Muslims who are really being targeted just on the basis of their religion for all sorts of things.

That report describes how Muslims found that FBI agents were in their mosques all of a sudden just watching to see if something happened. FBI agents were at their doors, knocking on their doors, to say, “Who are you giving money to and why?” Not even just blacklisted organizations.

To the point where the Muslims who were being interviewed described how they really were feeling quite alienated from FBI agents and, at that point, did not really want to have to cooperate with them.

So you set up a situation where people who you’d really like to be your allies start seeing our law enforcement efforts as illegitimate, both people within this country, Muslims, and people in other countries who we’d like to cooperate with.

There were some situations where our country said, okay, that organization, this particular Muslim charity, should be blacklisted. They’re doing terrible things. They’re financing terrorists. We would then send that information to another country like Canada and Canada would look.

There was one person on the Canada Administrative Justice who said, “I looked at the evidence and there was no evidence.” So that kind of thing doesn’t help. It’s not just that we need to do more things to be safe.

Sure, we hope the government is doing the right things, but I think swept in are a number of things that sort of, because of inertia, root themselves in the law because people have the idea, well, that must be keeping us safe. I think we have reason to believe that some of these things are not only ineffective, but counterproductive.

Tavis: Since you raised it, Susan, let me ask a question before I move on because I do want to ask about some other issues beyond terrorism, given the times that we live and the work that the ACLU does on a variety of issues. I want to move past this terrorism issue in just a second.

But since you raised it, what’s your sense of how this War on Terror which has been synonymous with a reduction in our civil liberties, an attack on our civil liberties, how has that been viewed to your earlier point around the globe?

What’s being said about us as you’ve done the research, given the fact that it’s interesting at this very moment, here we are trying to export democracy around the world and your book reminds us that we have an erosion of American democracy here at home. Square those two things for me.

Herman: Yeah. I think we’d like to be better role models in many respects. So the areas that I just described when it comes to our treatment of the Muslim charities, that’s one where there is an ACLU report talking about that, trying to track that. For the most part, the ACLU doesn’t really have resources to do opinion tracking around the globe.

But one thing that I think is extremely interesting, an interesting resource, is there was a report done by the International Commission of Jurists. They set up what they called an Eminent Jurists Panel chaired by Arthur Chaskalson who had been the Chief Justice of the South African Constitutional Court, had Mary Robinson and various people.

They spent three years traveling the globe talking to countries that had had problems with terrorism, including the United States, Argentina, Israel, Ireland, many different countries, talking to them about how they had changed their laws.

I think their conclusions are quite critical of the Unite States and other countries too because their primary conclusion was that terrorism is not really that exceptional a problem and it doesn’t really warrant a country like the United States throwing aside an entire structure of law and constitutional rights that we had built up over centuries.

They said they really thought that the countries that did the best in confronting the threat of terrorism were the countries that stuck to their own concept of the rule of law and really shored it up instead of just putting it aside and trying to invent something new.

Tavis: But if the American people either explicitly or unwittingly or willing to accept this erosion of their democracy in the name of being safer, what do you do?

Herman: Well, I think what you have to do – you know, my little piece is here I’m trying to do some public education along with the ACLU and what we’re trying to do is to say to people this is not a zero sum game between liberty and security. You can be both safe and free, and there are a lot of ways in which the government could be using these powers. You could just amend some of these provisions and they’d be much better.

For example, the surveillance provisions in the Patriot Act. What most of them do is they take both of the ideas in the Fourth Amendment which, as you know, is the part of the Bill of Rights that says we have a right to be security against unreasonable searches and seizures. Now the framers of the Constitution and the Fourth Amendment started two different ideas.

One was that, for the government to arrest you or search your home or something like that, they have to have a good reason, usually probable cause. And second of all, they have to convince a court that they’re right, just a neutral third party, just like getting a second opinion if you want to have surgery. So that’s the baseline there.

What the Patriot Act does in many different ways is it moves the government’s surveillance power beyond that baseline. Do we need to do that? No, we don’t. So what the ACLU, for example, argues about many of these provisions is just get more oversight.

It’s not saying the government can’t have the information. It’s saying what we need to do is you need to go to a court, get a second opinion and, at that point, we have some sort of assurance that the government isn’t gonna be using that power in an arbitrary or discriminatory manner.

There are lots of reasons to believe and some of the stories that I tell begin with the government keeping a special eye on people because they’re Muslims or because they’ve been political activists. One of our original no-fly plaintiffs was somebody who published a newspaper that was critical of President Bush.

So that’s the worry, that if you just give all the power into one set of hands in the government with no checks, with no oversight, that’s a recipe for abuse and that’s what the framers knew. So we’re not saying take away the government’s powers. What we’re saying is, let’s have appropriate oversight and checks and balances and accountability.

Tavis: The irony of what you just said now about the FBI being out of control in some instances is that there are two or three famous cases in Chicago right about now in the hometown of the president where these out of control measures are being adjudicated in the media even as we speak.

You don’t have the president of the ACLU on your program and not ask about a variety of things beyond terrorism. I wanted to do justice to the text about the war on terror, but there are a number of other issues that we’re struggling with in our democracy right now that I want to get your take on while you’re here.

In no particular order, let me start with immigration rights. The ACLU’s position on the debate that we are having now, if one can call it that, about the rights of immigrants?

Herman: Well, as you know, there have been a number of laws that a number of states have been passing which are I think one of the things that’s front and center on the immigration right now is the states trying to take the decisions in this area away from the federal government.

We opposed the law in Arizona. Our motto is what happens in Arizona stays in Arizona. Didn’t work out that way, so then it went to Alabama. I was mentioning before this sort of idea of racial profiling against Muslims.

I feel like the ACLU recently put out a report that’s called The Three Faces of Racial Profiling and immigration is one front here. So I want to relate what we’re talking about here to the whole problem of Muslims and the historical problems that we’ve had of discrimination and the criminal justice system and elsewhere against African Americans.

In addition to driving while Black, we have flying while Muslim and we have going to school while Latino. So the ACLU, along with the Department of Justice, has challenged the Alabama and the Arizona laws with more success in Arizona than in Alabama. But I just think that those are not American values, to invite people to profile children.

We’re hearing stories from Alabama now about little children who are walking to school by themselves because their parents, even parents who are here legally or even parents who are citizens, are afraid to drive them to school because they’re afraid they’re gonna be stopped or targeted because they’re Latino. To me, that’s not what we’re about as a nation. We’re a nation of immigrants.

Tavis: Since you mentioned African Americans, there have been a lot of articles written of late about the attack on voting rights of all kinds of Americans, but these attacks on voting rights are going to have a particular impact on communities of color. So the ACLU’s take on the attack on voting rights right about now?

Herman: There too, we just started another campaign called Liberty Watch leading up to the election. We’re nonpartisan, but we just want to make sure that you people are able to vote however they want to vote.

What you’re saying, there are a number of measures, particularly these voter ID requirements, and people think, well, what’s wrong with having to have an ID? Well, my mother’s 93. She lives in assisted living. She doesn’t have a passport. She doesn’t have a driver’s license.

So the people who are affected by these requirements, in addition to communities of color, are people who are elderly, people who are disabled, people who don’t have an ID and it’s not easy for them to get them.

A lot of the states are saying, well, this is to prevent voter fraud. But in most of these states, there’s never been an example of voter fraud and there are a lot of other ways that you could address that.

So we have a network of over 50 affiliates all around the country. One thing that we’re doing is, whenever anything happens that looks like a suppressed vote, again, without caring which way the vote might go, but anything that threatens to suppress peoples’ right to vote, we’re trying to challenge.

Tavis: And finally, are we gaining or losing ground with regard to women’s rights?

Herman: Women’s rights. Well, I think…

Tavis: The Republicans are debating this issue a lot, as you well know, that are running for the White House.

Herman: I think it’s really interesting. I think, over time, certainly it depends what your benchmark is. If you go far enough back, certainly we’ve made a lot of grounds.

One of the recent things that we did was to work for the Lily Ledbetter Fairness in Paycheck Act. There are some second generation statutes and there’s still a lot of work to be done in that area. Women are not yet quite as equal as we’d like them to be.

Tavis: Well, I’m glad to have you on and I’m glad for the new book. The book is called “Taking Liberties: The War on Terror and the Erosion of American Democracy” written by Susan Herman who is, of course, the president of the ACLU. Susan, good to have you on the program, and thanks for sharing your insights.

Herman: Thank you, Tavis. It’s a pleasure.

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Last modified: November 7, 2011 at 1:25 pm