Transcripts For CSPAN2 Today In Washington 20120411

picking things it gets involved in as well as some of the cases themselves. the idea here is to have a free-wheeling discussion that i will lead. no speeches or opening statements. i have been able to get in touch with all of them before hand and encouraging everyone to jump in, feel free to pickup on one another's comments. disagree or agree, bring up cases you think are important and remind us what those cases are about because we won't remember all the cases. so onward. brief bits of introductions here along with a question. he will have to forgive me for doing this to you all but i want to get everybody involved real quickly. anthony romero is executive director of the aclu. i didn't realize until i was reading your bio sins september of 2001, just before the attack on world trade center, when i talked with anthony the other day he said i am happy to do this but i don't want this to be a love fest. things that we have done wrong. here is your shot. there is a polarizing organization because -- >> it doesn't do a good enough job explaining what we do and how we do it. we are trying our best and need to do better. it is often the fact that when we take on a case, the individuals are unpopular and look self-evident why we take on that case. even among friends of mine or family members of mine when we defend the right of fred phelps, the homophobic discussing reactionary christian minister to mount a funeral protest at the burials of men and women coming back from war saying the reason men and women in uniform are being killed is because god's protection is lifted because we are giving gay people like me their rights. when we take on that case, i get a phone call from my sister saying are you kidding me? what happened to you? we have to really unpack it because i don't think it is self-evident even for release smart people. my sister is a good person with great values. if you allow these loathsome points, the points of view is next in line. you might blow it in one direction and the wind will blow it back into your eyes. if you think you are pushing censorship in the place where it belongs you better close your eyes because it will come back at you. i don't think we do a good enough job explaining some of those decisions. >> ted olson was the solicitor general in the bush administration. argued many important cases for the supreme court and is now a partner in washington. same question to you. the aclu is a polarizing organization because? >> i disagree with the premise. i know that the aclu is unpopular in some places because it does what it does which is to represent unpopular causes but i never felt that way personally. i know other people do and especially conservatives and i think of myself as a conservative but i also think of myself a little bit at least as a libertarian. in the conservative world there isn't a monolithic conservative world or republican world. there are a lot of libertarian's or people who care about liberties in that part of the political spectrum. i am very -- anthony doesn't want this to be a lovefest but i will try to say about the lifting so he can defend me. i will always love you. [laughter] >> we're getting more of this than i expected. >> i thought maybe we would have that proposal take place in private. i am very grateful for the aclu and always have been. i went to that same law school and it scares me to go to a law school. >> you graduated. >> i think what the aclu does is tremendous. it protect all of us and i won't go on and on about that because you didn't want this forum to be that but it is very important that we recognize that the aclu takes these positions because it is defending the next of us. it is going to be accused of something or doing something somebody wants to prosecute or accused of a crime or something like that. the aclu is protecting all of us. one of the things we will talk about is the choice is the aclu makes when it has to decide which side of an issue because almost -- not all but many of our civil liberties issues involved civil liberties of one person and they infringe on the civil liberties of another person. >> absolutely. >> very important part of the equation. >> debra pearlstein was with human-rights, founding members of human rights. where do you come down on this polarizing issue? >> a security program -- [talking over each other] >> excuse me. somebody gave me that information. but i am the one who said it. >> don't want to be afraid of lawful you should have come here. we are a pretty friendly group. >> if things don't work out. >> it is a great question. as i was watching the film, the history of my own personal went i first become aware of the aclu, it was not the case in a little light i was thinking i have exactly that reaction. i grew up in a jewish household and my jewish community fought how can they possibly take on this case, these horrible people. it was the first time my coming to political consciousness that are realized what it meant to have a principal free-speech that was designed to protect everybody and was not designed to be content specific. i don't want to make this a love fest by more susceptible than you. the aclu is so polarizing and it can be because it attacks the issue. i mean this in the best sense. attacks the issue that are most profoundly divisive. most profoundly challenging personally as individuals as a society. these are issues. what do we mean when we say free-speech and equal protection? these are questions that go to the heart of where we are. susceptible to the idea that it is clear what the right answer is. a way of approaching the inga citizen, repeatedly by taking positions forces us to confront -- it is not that easy in which free commitments to a set of principles force us or require us to take positions to support people. to challenge us to test what it believes in the first place. to put people in. to drop something from the ancient constitutionalism panel yesterday there was a concept in roman society of citizenship requiring people to take a position. it is not good citizenship to stand back as society conference crises and its dilemmas. citizenship demand engaged and at this level and that is what makes the aclu great and make it challenging to so many of us. >> heather macdonald is at the manhattan institute in new york. i got that right? i see you went to the law school and other school on the california coast. [talking over each other] >> what is your take, polarizing question? >> what is striking about the aclu is the issues that were polarizing in the past have become completely part of the american fabric. we can't imagine it was seen as a fundamental apocalyptic threat to the nation to pass out literature about communism or union organizing. the aclu has really defined what it is to be an american today and i am grateful for those crusades in the past. it is with humility and trepidation that i offer any dissenting views because history has not been kind to the aclu's critics. i would say from this perspective most of the battles that it fought throughout this century we now feel it was on the right side. my recollection of the aclu -- coming to new york city in the 1980s when the city was at its nadir of mere anarchy, lawlessness, public spaces have been taken over by one set of individuals, mentally ill, street addict vagrants that made public spaces like grand central terminal almost unusable to other individuals. not to the government but other individuals who had a legitimate expectation of being able to use public transit or public libraries. i think that for all the good the aclu continues to do with its free speech cases, whether it is citizens united for continuing to police the boundary between church and state, in many instances it has been a force of regression against enlightened urban policy. the prime example is continuing to go on in los angeles right now where mayor antonio has been struggling to bring stability and safety in los angeles downtown that had been and still is thanks to the constant court battles that the police are fighting a locus of squalor and depravity unlike anything you have seen unless you have been there. the police have been trying to apply broken window policeing in a fair and just manner and keep getting hit by lawsuits from the aclu and from other advocates. the addicts who are trying to go clean, elderly residents are terrified to go on the streets and the people who are supposedly the beneficiaries of this getting preyed on by other advocates. in some instances the aclu has lost a common-sense balan as ne york city demonstrates how >> if we were debating how the aclu response to these tactics and broken window strategies then i think we have already reached consensus on 95% of what the aclu does. that is a good score card to begin with. more generally, are position is i live in new york and lived in new york all my life. i was here in the 80s and the 70s when it was worse than when you arrived. the question is not whether we all want to live in a more hospitable environment and not what we want the government to provide services to people who need them including the homeless and people suffering from addictions of one sort or another but whether the government is doing that in a way that is consistent with the rights of the people it purports to be trying to help and in a way that respects their basic human dignity. it is not a disagreement over gold but tactics. the issue has more salience today not so much over questions of homeless policy but if we are going to focus on new york city for a moment on the stop and frisk policies of the new york city police department and that is a subject we could probably debate as well. but when we are stopping 600,000 people on the street less than the one% of leading to arrests and the vast majority of people being stopped are racial minorities. i think there is very little we are gaining in terms of public safety and the enormous amount that we are losing in terms of the ability of people of color to live in this city and feel they're not suspect because they live in the wrong neighborhoods or attend the wrong schools. >> i want to get into that. >> before you get into that. >> the supreme court first line for the new york times and a busy man recently, and lightning all of us on what is going on with some dramatic events in washington that the court. jump in here. >> the reason the aclu is polarizing is the nation is so polarized because people seem to think there are bad states on both sides of the debate and the aclu is accused of a certain kind of naivete about war on terror issues. anthony talks about the phelps case which is an important case that in a way is an easy case and a lot of the videos we saw were at least in retrospect easy cases. these are not people who post act will threats to the united states. these are anonymity and it is easy to give them room to maneuver but what about the people we have reason to be afraid of? in the last decade the aclu is fought like hell and achieved very little. there's a provocative article in new republic suggesting some of these efforts were counterproductive. if you go to court and ask for an answer you might get locked into an end to you don't want. the answer why polarizing is because two different world views. drifting further and further apart with the issues that engaged the aclu is important national-security matters. in detention policy, state secrets policy, all that stuff and even now in some of the domestic surveillance or law enforcement gps case, and stripped search case we really start to feel we living in a different era and it is not clear that the courts of american society are receptive when we move away from anonymity and even to an area like holder against humanitarian law project which is a case that involved peacekeeping group that sought to offer b 9 s sins to group that had been labeled as a terrorist organization by the state department but nonetheless all that was involved was pure speech that helped these guys try to resolve their differencess peacefully and the supreme court in probably the most shocking free-speech case of recent decades said that kind of benign speech can be made criminal by the federal government. i say that not because the aclu was involved but because it sets the tone for the era in which they are fighting and i will be interested to hear some responses from steve and anthony about strategic choices they had to make day after day about whether to go to court to get an answer because you may not want the answer your going to get. >> adam is exactly right in a lot of respects. the case is easy except if you are the parent of the person being buried that they. often the letters we get and the phone calls and the outcry is often from people who feel aggrieved directly. i completely agree with you. national security cases are among the most controversial or current docket's. they are the gold standard of our cases and i get this all the time. why do you care about 150 some odd guys in orange jumpsuits in guantanamo. we have two fifty million prisoners in america. why would we spend millions of dollars in defense to khqalid shaihk muhammad. for someone who was killed by drone from his own government america. we talk about specifics. no case is more important. in those cases, we are talking about the most critical exertion of government power. the number of individuals directly affected may be 150 at guantanamo but when you have the highest rank of government beside to hold individuals without charges of trial, ship them off and authorized torture which was hitherto illegal and then endeavor to escape from the entire public, lawyers, the public. you are talking about a high-stakes game that can literally change the course of american history and when we allowed a government like ours to hunt and kill one of its own u.s. citizens not in a theatre of war, with no assertion of legal framework, no assertion of the facts and kill him without any judicial review, executive branch gets to be judge, jury and executioner, the stakes are enormously high because those powers once taken are very hard to get back. i actually have to think this is among the cases we had enormous amount of discussions internally. it is one of our product cases. is taking on a case of everyone -- i went to a dinner party in washington d.c. held by high-level members of the administration when they have all the republicans including jack and all the democrats and everyone in the room, 25 people thought we got and what are all lucky --anwar al-alaqi. how do you know he was guilty of being an operational member of al qaeda? what proof? how do we know that he has not had a conversion a year ago when he was being killed or hunted by his own government? do we not believe people can change their mind? could he have thought of playing down weapons? what proof do we have that is the biggest a minute before he was executed by his government was one where he was meritorious the targeted by his own government? and off my soap box for a second. i'm glad to take on the hard ones. that is more fun. finally the fact of where are the checks and balances? you have the president of the united states and the attorney general who was appallingly, appallingly pedestrian in his speech when he talked about due process does not mean judicial process. i am quoting verbatim. someone has explained to me from that lovely loss will heather and i attended what does due process mean without judicial process? i don't get it. there has to be a mechanism for due process. when they go on and on talking about the framework and the drone program and later on the orwellian sentence i cannot confirm or deny the existence of this program which i just laid out the excruciating detail. what type of republic are we talking about? perfectly appropriate we should be talking the day after the greek and roman constitutional panel because it often feels that we are on the cusp of losing the very basic rules. i'm not exaggerating. the most basic protection of what defines a republic. those checks and balances even if it affect only one individual in yemen talks about an extraordinary usurpation of executive power which we ought to be very skeptical about. >> let me ask ted olson because you were there for many years. executive power in the post 9/11. >> it is not -- always that easy. if you have -- i don't like the idea of defending a program where we kill american citizens without some sort of process for things like that but i think you have to say you look at it from both sides. when we are having this kind of conversation. if you have individuals and if you are in the executive branch and sworn to defend the people of the united states and they are engaged in activities, they are applauding and you know that because you have intelligence that tells you that, they are plotting to blow up airplanes on which our citizens are going to fly or they are plotting to blow up the world trade center or a synagogue, one of the civil liberties we have in this country is the right to life. the right to travel safely on airplanes hopefully. the right to go to a wedding or a public building. to have our children protected when they are trying to go to school, protected from things that happen in israel all the time. synagogues being bombed and school children being killed with missiles. if your responsibility is to protect the american people from that and you have someone that is in another country that you cannot possibly bring to justice before that crime or that mass act of terrorism is committed and you are unable to go to those places and bring them to justice in a court room they're not going to be able to bring the witnesses to put them on trial and you have the capability of preventing that disaster from happening. so you are now thinking about civil-rights of this individual who is preparing. anthony says the moment before the missile strikes he is having a conversion but maybe he has killed lots of americans already. he is equipped other individuals to kill lots of americans and you can't stop that. that is already underway. that is going on. now you have the rights of that individual to something that anthony calls judicial process which you cannot possibly bring about. >> the argument that this should be decided by the generals? >> i am getting to the dilemma. it is not an easy thing to answer. you put those civil-rights against the people you are sworn to protect from acts of despicable terrorism and you don't have a choice to it the way everybody would like which is to bring someone to the court, have all the witnesses, miranda rights, all of those things. you don't have that choice so you allow that to happen until you can do the thing you can't do which is to bring about this judicial process for use in drone or some other method of killing that individual. i think it is extremely difficult and there will always be cases in the margins. you could kill the wrong people. you could kill children in the vicinity of that suspected terrorists. it does happen. it does happen in war. it happens when you send soldiers into the field and they are defending themselves. they don't have the luxury of stopping someone and giving them right and getting them a lawyer and they have to shoot and kill or they are going to die. these things -- i am glad you are there and fighting for those things that an end of the day, some people in positions of responsibility have to make decisions because it is not a perfect world. >> i certainly did. i worked with anthony and steve in different ways. anthony and i went to guantanamo together. >> in off hours. >> the ngoss. >> every hard day looking at the military. >> it was a very special trip. on many levels. i want to get to the broader point that adam was raising talking about his new book and the aclu's positions in these cases, post 9/11 security cases not just the aclu but others have been either not at all productive and if they haven't essentially achieved anything in terms of promoting liberty but not only that. they may also be counterproductive. .. >> them at abu ghraib and that opened up a new space for dialogue in the country. but between the litigation activity and advocacy activity and the research from reporting centrally, the aclu's litigation was successful in obtaining tens of thousands of pages of documents that showed as we ultimately, the group i was with reported, more than 100 detainees in u.s. custody. suddenly had a different debate about detainee treatment and tactics and all that. a bill sponsored by senator mccain, then detainees in custody, but cruel and degrading treatment. and executive order, right, a series of executive orders by obama that seems overly effectively ended the use of those tactics in american custody. so that's one example of what i think one can say we don't even talk about it anymore. it seems like we have sort of help fix that. is eradicated? no, i doubt it. but a victory? absolutely. the extent the claim is this is counterproductive, right? so what's the argument? the argument that if the aclu had done nothing we would've been better off because the 800 people that were at guantánamo would have been released anyway and we wouldn't be down to 150, a little hard is exactly what he is trying to get at. it does point though i think to a question that is worth asking, which is a question of strategy. the aclu has won the best best litigation shops in the country on these issues, on any issue. how do you decide when to litigate, how do you decide when to effectively negotiate or lobby? you have a host of different tools. sometimes it's right to see coming down the track if you go on a certain age, the odds are you'll lose. so what are you gaining potentially in terms of calling attention to the issue versus what your potentially losing if you get a losing decision out of the court that changes the law going forward? that i think is incredibly a tough series of calls, and one that the aclu is on. >> let me just make a few quick points. ted is right. these are extraordinary difficult questions. nobody pretends otherwise. but it is also true on the specific issue that is around terrorism united states is not the only country that has suffered terrorism. it is the only country in the world that claims the right to fly around drones and kill people, even their own citizens. so one question went to ask is why do we feel the need to do that when other countries do not. secondly, in answer to this question of have lawsuits been counterproductive, what you gain by bringing the lawsuit, especially when you anticipate going in, you may lose, you always hope, you anticipate you may lose. that is a question we asked ourselves every day in the office. when we were deciding, take the case, this is a mantra pilfered me say over and over and over again. if we think the chances of winning are slim without not to be bringing the lawsuit because we are not in the business of losing lawsuits unless we can identify other benefits that we hope to obtain simply by fighting. and i think it was a good lawsuit. it was older but don't out of course on the grounds, multiple grounds but one of the ground was this was an issue for the political prick to resolve and not the courts. it brought a promise to the issue which is force a public discussion which has led to the attorney general's speech, which in turn led to a whole series of responses. none of that have taken place were it not for the spotlight at the lawsuit created. the third thing i would you say historically, adam was saying the earlier cases in the movie were simple. they are only simple and hindsight obvious. they were not simple at the time. the scopes trial was not simple at the time. there's a famous opinion by justice jackson. he ultimately votes to uphold the detention but he says i wish the military just pick these people up and rounded them up and put them in camps and nobody, asked for our approval. because then when the war was over, everybody would've gone back and we would have done anything to the law. that may last with us for permanently. but now that you asked us to ratify this, that principle and click sort to be invoked at certain times. i understand the argument and people make, this is the argument, but the question you to ask is what we been better off if he had not been, the case had not been brought even though it was lost? i think the answer to that is clearly no. clearly no. >> adam, you sounded sympathetic to the goldsmith argument. >> i was just trying to be provocative. [laughter] >> go ahead, be provocative. what is the argument? >> they make an excellent point, and this is something that happens to be -- they think the courts are the only court that matters. but, in fact, a lot of the work the aclu has done has resonated in other ways and had consequences in other ways. especially the foia litigation. they are i want to pause and say that to my embarrassment, the aclu and other organizations have taken on a role that the press used to do. we used to a lot more foia litigation. we used to be richer and we would do these things sometimes to destroy but sometimes just as a matter of principle because we thought that government secrecy in some areas was simply offensive, and that's an area in which the press is receded the aclu, taken on a role, we should still be doing to see foia clinics popping up in places like yale law school which is also a measure of how much less of an economic engine the press is in trying to be sure some of these rights should belong to all of us. and then let me give you a straight thought on this question about drones and killing people and what the process means. ted's response perfectly right, so long as were thinking about warfare. antiwar paradigm before the soldier shoots he doesn't have to get a warrant. he doesn't have to go before a judge, under the attorney general is going to invoke the concept of due process and then kind of redefining it as something that happened in a single branch of government in secret, i think we do want to pause and ask whether that means due process to you. i don't know that due process means a judge, but due process and i think the counter opinion, it does seem to mean the presentation of some evidence on the billy to counter the evidence, a neutral party, perhaps a lawyer represent you, maybe not reasonable that was some kind of testing of the evidence. and i would think any setting where it could be judged by the public, you know, to see if our government is doing the things we want them to be doing through some kind of lens, some kind of paradigm that sounds like with the attorney general is talking about, due process, but we don't have a clue what kind of procedures go on here. >> heather, you kind of got us going here on the domestic front, but to the -- to the same arguments apply broader? >> i think they do whether we want to turn political issues arguably political issues into legal ones active judges power. i absolutely agree with the way the national security issue has been presented. i think these are agonizing questions, and i applaud the aclu for taking on a democratic administration. many of the traditional allies of a democratic administration have gone silent on the challenges posed by the continuing war on terror. so i think they've shown themselves to be very principled, and they are raising important questions. but there is a discourse out there that criticizes the growth of so-called lawfare, that we are imposing a war context too much of a due process paradigm that is simply an appropriate. the parallel i would say any domestic context, mr. shapiro mentioned the issue of well, we all want, you know, support economically people on the street. and that's true. i think that they're using the courts as a surrogate for making social and economic policy. and courts are not good at trading off competing interests. so if they get an order that says, for instance, on prison litigation that we have to spend x. amount on prisoners rights, that may be perfectly defensible in the abstract, but it ignores the fact that public bodies have to make trade-offs of what they spend here versus what they spend there. and judges, rightly, are not often politically accountable. and so they are short-circuiting i think in many instances a political process. as far as the issue of public safety and policing in new york, i would place that has a rights issue as well. and there has been no greater public success over the last quarter-century, public policy success of the last quarter-century, then new york policing. government has never achieved anything like it has done in new york city where you have 10,000 minority males who are alive today, would have been dead had new york homicide rates remained at the early 1990s level. no war on poverty program has brought that degree of improvement to inner cities that a certain data driven policing has done. stopping first in hotspot policing is an essential part how in new york fights crime, but it has nothing to do with race. nothing. every week, the commanders in the new york police department meet to discuss the worst crime areas of the city, and they are concerned about one thing and one thing only, where are the victims? and raise never comes up. and when they find crime patterns occurring they will deploy officers there, because unlike the rap against police 40 years ago, which is that they ignored crime in minority neighborhoods because oh, well, we know that's just the way those people behave, the process that has come to be known as compstat holds precinct commanders ruthlessly accountable for the safety of the poorest citizens of new york city, and they just stop and frisk when they see suspicious behavior. it has nothing to do with race. and by intervening early in suspicious behavior, they prevent crime from escalating. new york city and new york state has had a prison declined unlike many other states, in large part because we are arresting crime before it happens. we are not waiting until felonies occur but we're intervening as we see suspicious behavior, someone looks like maybe casing if they can come off will ask a few questions of urban crime, pouring out somebody's opened whiskey bottle is tricky and public at 11 a.m. rather than waiting until 11 p.m. when that person is good and drunk and mikey and a knife fight and how must it. so i think the aclu has done a disservice to police departments across the country by charging them with racial profiling, charging them with going after suspects on the basis of race when, in fact, they're looking at behavior, and they are addressing the demands of law-abiding people in communities. if you go to a police precinct meeting in harlem or central brooklyn, you are going to hear three things. eight, we want more cops b, we want the dealers off the streets, and we want more quality of life public order. that has nothing to do with race and the new police revolution has given a voice to the law-abiding residents of poor neighborhoods that they never had before. >> either one of your spent i will discuss one question and then i let my boss takeover. and that is, i think heather is confusing a lot of different things, emerging a lot of different things in as. there are policing tactics better unobjectionable. and the are some i said they are objectively. and if the police are stopping when there isn't a reason to believe they might be up to something nefarious which is the constitutional standard, right? they need reasonable suspicion to one has to question what 90% of the people are stopped or never arrested. >> 12% are arrested or summoned spent well, 80%. >> sometimes someone is up to in a phrase but there may not be evidence. if the police cannot always be right, unicom you cannot always assume that everybody that you stop in question is going to have evidence of crime on them. that doesn't mean that the stop was not following a reasonable suspicion standard. but i would like to ask you a question, the police are often criticized for their stock ratios that do not match the population of the city but that analysis which is what the acu legal uses to charge racial profiling, for instance, in new york city, blacks are 23% of population, but 55% of all stops, that for the aclu is in the fashion evidence of racially biased tactics. what you do proper stop ratio be, given that blacks commit 80% of all shootings in new york and 66% of all violent crime? the fall i think in the aclu's conventional racial profiling analysis is that it uses census data as the benchmark for policing, not crime. crime drives everything that the police do. so given the crime disparities, what should i stop ratio look like that would satisfy the aclu? do you think that whites are 35% of the population they should be 35% of all stops? even though the only commit 1.4% of all shootings? >> anthony, do you want to speak with her where to begin really? >> first, let me just, i grew up in public housing projects. i lived in the. i was on the 12th floor to the elevators never work. family next to mine got murdered when i was seven years old. i had dramatic nightmares as a child. cousins ended up in gangs. so i don't need too often relive the fact that i remember. however, let's just leave aside the constitutional arguments for a moment. we'll come back. if we want to police the type of projects that i grew up in in a better way, do we think it makes logical, common sense to alienate the very families who will be essential to fighting crime in those communities? with these police practices. because when you so anger and make good, hard-working working-class people like my family fear the police, which we did, and you get harassed, like our clients did in a recent lawsuit in new york in these subsidized housing projects were police are stopping people in the hallways because they're black or latino, when you make the very committees that are essential part of good policing, skeptical of working with the police, of calling the cops, of giving tips, you are not doing any good for public safety, heather. so let's get down to brass tacks. if you're making enemies, and i find it, i would love to go with you, we'll go together to some of these community townhall meetings, you pick some, i pick some and we can compare notes. because it's not all the kumbaya moment for the people of color in the bronx when i see a police officer walking down the street, nor have they been held relentlessly accountable. just read the newspapers and we can't even get convictions for cops who rape women while they are on duty. i think that our fine men and women in uniform. i have one cousin, joey, right? [laughter] and i very many problems with the ways in which they are asked to do whatever difficult jobs. that being said, we also cannot look to the fact that some crimes get more attention from the police department in some parts of town. that's more of what the national office does. the work locally is very important because civil liberties has to deliver locally. they can just issue -- work on these issues from new york. with offices in 53 states, 900 employees, only organization in the country, only organization in the country with on the ground staff present in every state across the country because you have to work locally. now, that being said, the issue though is how you think about crime, and it is amazing to me the lack of prosecution in the neighborhood i frequent the most. wall street, where my office is, right? so we want to talk about crimes, want to talk about the great tragedies on stripping people's pensions, homes, houses, and we look at, it fits, the fbi, the place to carbon, the justice department, paltry record going after white collar criminals. that pushed the very community into further deprivation and poverty. because of some of those. so policing is not all evenhanded or get inside the sadistic. i would have to check them about how many of my community members or committed violent crimes, let's also look at the full picture of crimes and prosecution. help me figure out, if you take the people of color who are being targeted by the police are friends or foe of the police department. but the point is, that you raised earlier, the challenges of figuring out the balance on these issues. the point that ted made also. and there are trade-offs in all of these big cases. the homeless cases, there are always trade as. and the question is where you come out. and the question is whether not the name of the common good you're going to be willing to abide an infringement of individual liberty. or whether you believe that a protective individual liberty you promote the common good. that becomes i, of course, see myself in the latter category. you're right, ted, there are very hard calls they make. but sometimes the intelligence is wrong. we went to war over intelligence that was wrong. that was purposely positioned the american people and the world community was wrong. sometimes the facts are not as clear, and that's what you need some form of adjudicative body to make sure it is the truth. and at the end of the day, i think you are, when the stakes are so high on life or death, literally, you don't have the luxury resurrecting someone you killed wrongfully. and that's what i think perhaps that's where the scrutiny is most necessary. you convict someone for the wrong crime and there are dna proves they're not the ones who committed the crime, you can let them out. they have lost years of their life. you can never restore them. but you can resurrect a person that you target for assassination. and that for me raises the stakes, why we take these cases because they are such life-and-death circumstances, because the power that is being asserted is of such a level and nature that it is enormously troubling and provoking. there's torture going on in american prisons every day, and so why do we care more about the torture at guantánamo, bakker, and the l.a. county jail? because the torture at bagram and what guantánamo sanction at the highest levels of our office. of our government. and that's what makes it so unique and fine of up close my part with this. i think, you know, heather, it's interesting you say that we short-circuited a political process by bringing losses but i think we kickstart the process. to ask a legislative body to do the right thing for political price and don't have much clout to vote in elections is asking for kind of the noel said in a theorem. there is no way that there's any political constituency for the guantánamo detainee or for individuals were targeted. you have to turn to the courts, the role of the courts to protect the minorities. and then a lovely example you give on criminal justice issues, the reason why we're having so much success on criminal justice reform, and we have, just read the newspapers, geriatric prisoner bills enacted in louisiana, mississippi and acting reform efforts to empty out the prisons. new york, california, it's because we filed the lawsuit and because legislatures were forced to take a look at those set of questions, and now we can resolve it through legislative process. and so i think, you carry a big stick, and sometimes you use it and you create that political will on issues that are very difficult to convince people on because they are not very nice people. criminals or terrorists and suspects. and you force political leaders to take on one or sometimes difficult issues by forcing them down the road. i think that's often the role. >> very briefly. i guess i would disagree with your characterization in some cases of the typical clients of the aclu or other advocacy groups as politically powerless. i would say in skid row in los angeles, there's no shortage of advocates supporting the right of people to colonize sidewalks, to take over the entire pedestrian routes with encampments where they are shooting drugs, attacking each other. in 2006, a mentally ill woman was stomped to death by a parolee. that night there were 82 shelter beds available on skid row. the business improvement district outreach team could persuade only two people who are living on the streets to use them. those people have lots of advocates that were living on the streets who didn't have much of a political voice or advocates, or the immigrant entrepreneurs who would come in the morning, have to clean hypodermic needles and feces from their doorsteps. or other business owners down there who needed to get to work, and they're mostly immigrant workers. so i think that there is also, it's not just individual rights against the government and the common good, i think that simplifies it. is one group of individuals against another group of individuals who are not these days very well served by our advocacy groups or by the courts. that judges in downtown l.a. who have been ruling on these rolling set of lawsuits that have been brought don't seem to have spent much time on skid row to actually see the efforts of the police there to try and convince people to get treatment, to take advantage of the services that are available to them, and improve life for everybody. >> all of these issues deserve panels of their own, don't they? but there are even more issues to be put on the table and we have for students here and it's their school. so we want to bring them in here and they can raise somebody's. i will start with you. and you want to ask questions about citizens united? >> yes. >> please. >> thank you very much. [inaudible] there's been some controversy within the aclu's ranks over the citizens united decision. i've actually read that the organization filed an amicus brief in favor of the case before the supreme court, and, of course, that raised a lot of banter with a lot of the critics of the decision. so i was wondering whether the aclu current position on government regulation of clinical campaign contributions has changed or whether it remains the same. and either way what can you tell us in particular mr. shapiro and mr. romero, can you tell us about what an impact that general debate ultimately had on the aclu's position? >> before the answer though, could i ask you? because you raised this, you said this was a great moment for you. right? >> i did. >> i don't know if i mentioned citizens united. >> you did. [laughter] >> but i didn't. >> i'll be glad to say a word about citizens united because i know a little about it, but the amicus briefs that were filed supporting what i would say as the right of organizations to participate in the political process by expressing their views about the qualifications of candidates for office, the amicus briefs were filed by the aclu, the afl-cio, the sierra club, the nra, the u.s. chamber of commerce, the republican party, the democratic party. there was an immense broad-spectrum of amicus briefs supporting what was ultimately the supreme court's decision. the case involved a nonprofit entity that was created to be an advocacy organization. it was formed as a corporation, just like the aclu and by the way, the naacp was also in an amicus brief in that case. and so i thought, and i think the question relates to what the aclu has done subsequently with respect to contributions but i don't think they have changed position with respect to expenditures by organizations that happened to be formed into a corporation. a nonprofit corporation, small business corporation, hardware store corporation, whatever. press corporation. "the new york times" corporation, bless its heart -- [laughter] -- has written maybe 22000 editorial's against the citizens united case but maybe it is fewer than that. and one of the things "the new york times" says in its editorial about that is just wrong, that corporations have these constitutional rights. overlooking the fact that new york times v. sullivan is one of the leading cases in the affirmative of the aclu and nobody else who believes in the freedom of the press and so forth, not to mention other cases, and so forth. so it's a couple get issue, and i could go on and on about citizens united because i thought that the principle that was being vindicated was, that was there, was that the maximum amount of speech about the qualifications and competence and the desirability of people running for the highest office in the united states was something that was fundamentally at the core of the first amendment freedom of speech and freedom of the press, and the american people would benefit the more speech they heard, no matter where it came from. so that's sort of my position on it, but i was representing citizens united. >> so that's the principle, but your question goes to the aftermath i think. it stirred up a lot of opposition as a result. >> well, it has generated a lot of controversy and it's generated a lot of controversy within the aclu. and i think it is fair to say that there is no policy within the aclu that has been debated more times internally than the aclu's campaign finance policy, including subsequent to the citizens united decision. but at the end of the day i think the organization always comes back to the same fundamental point, and that is that we are not going to solve the problems that plagued the american political system by limiting speech. once you say that you can limit speech, then you have to give somebody the power to decide how much speech is enough, and who gets to speak, and when they have said enough. and there is nothing in our history to lead you to believe that the government can perform that job competently, or that you want to entrust the government without power. and so our position has been over the years that if you want to decrease the influence of money in politics, the way to do that is not by decreasing the supply of money, because the other lesson we've learned over the last four years is the money always find other loopholes to see through. but by decreasing the demand. you decrease the demand by creating a fair and equitable and adequately funded system of public financing, that we are and willing to invest the money in our elections, that we're willing to invest in one day of the war in afghanistan, then our politicians would not have to spend all day on the phone trying to raise money from private contributors with all the problems that some people that are associated with it. so at the end of the day, that's where we stand and that's where we stood before citizens united and that's where we stand after citizens united. >> adam, what's been your times problem? [laughter] i don't get it. >> so, the editorial page is unrelated to anything idea of. [laughter] i as a newspaper report have no opinions of any kind, but, but if i were to think back to a different light because i practiced first amendment law for about 15 years before it turned to reporting, i would find hard to argue with ted in steve that if the first amendment is about something, it's about protecting speech, about politics. from whomever. and about giving people the maximum amount of information, and, therefore, we have talked about difficult cases at the aclu. for them given its constituency in the way most right thinking liberals think about this issue it must be very, very tough to keep the line that steve just drew, and it will be interesting for me to see, because there's another case coming up out of montana, whether we'll see an aclu brief in there. but good for them. let me be clear in the spirit of full disclosure. that in the aftermath of citizens united, ted, the aclu's national board to change its policy on campaign finance to accept what they would see as reasonable limits on campaign contributions spent contributions, not expenditure. >> i think that was a mistake. i actually think, you can see i have to carry the flag, even if i don't like carrying all the flak. this is the one i don't agree with. everything else i buy. but i think this goes right to the heart of what's most important to first off the political system is fundamentally corrupt. let's be clear. you can't cover the skies with one's hands to my grandmother used to say to me. it is corrupt, the political process. the question is what to fix it. for us it has been public financing to the way to make candidates running for office or viable somewhere you can calculate whether they are viable or not to have a running shot at it. money doesn't buy you an office necessary. look at the california governors ship. money can make you lose an office. and pseudo-viable candidates who can run campaigns, public financing is the way to go. now, the solution of how you limit the corrupting influence of money and politics is what gets all of liberals knickers in a twist because, frankly, often what my constituents and what other constituents want to do is they want to limit the power of someone else's money going to a party or a candidate they don't like. i find the hypocrisy of liberals who will denounce and fund some of the most largest billionaire philanthropists that i won't name because i have to keep asking them for money, will find -- [laughter] -- campaign financial and efforts and yet they will spend $59 to unseat george bush and the last presidential election. i find that astonishing. so it's often the problem of saying, is being concerned about the money coming from going to individuals that you don't like. what's the solution? if you don't like women are at citizens united and you don't like the fact that corporations have free speech rights, including the aclu has free speech rights, we have freedom of speech, freedom of association, if you're willing to kind of band our right to free speech and then the rights of corporations, all corporations, that's a fine way to do. that's not what i would suggest, but the question is not a good now that you citizens united them what is the solution? maybe it's the montana case, you get another bite of the apple. i don't think so. may become edge of individuals have advocated it, it's time to the constitutional and a process to revisit the first amendment to see if we could carve out the free speech is for people, not for corporations. in any one of you, all you are left of center and nice good old liberals, thinking that this is a good time to revisit the first amendment, i would ask you to please put down the beer that you're drinking at home. because he the idea that you can be opened the interpretation of the first amendment right now in this context, in this climate with this congress, and you'll try to carve out the big bad contributions of corporations that corrupt the political process and you will not do damage to the type of free speech right you probably want to support, like labor unions or the aclu, or like the planned parenthood fact, i think we are all delusional if you think will do something good for democracy by revisiting the first amendment. it's one of those instances where i go -- it's a question i would have to answer the most but it's probably the issue we do the least on. it's like i don't know what the solution is to cancer. i can't find a cure to cancer. it's not just in a court of law. the jurisprudence is not moving in my direction to find the cure to cancer. that same thing with campaign finance issues. if someone has a perfect silver bullet that will do all good and no harm, then bring it on. right to me at aclu.org. but right now it's the fixations unheated political context, a polarized country, money coming from and to individuals don't like, and i actually think that's america. unit, that's the robust political process. there's no such thing as too much speech, too much concern when politics are at play. >> okay. that stirred them up. [laughter] rachel jacob has a question about the death penalty. >> sort of related. [inaudible] >> heather, do you have a point of view on the dna benefit? >> this is holding dna of everybody who has been stopped by the police, or where does it draw the line? [inaudible] >> including marijuana arrests. >> someone who's been convicted of a crime? >> so holding it in databanks for future law? >> criminal investigations. >> yeah, that is again, all of these are balancing cases, but i think that the benefits to possibly being able to solve crime, either retroactively or in the future, outweigh the risks to personal privacy. i think if somebody has already been convicted of a crime, their interest in the privacy that dna has to be outweighed by the fact that there is likely to have other, or there's a possibility involvement in other crimes as well. so i think law enforcement is right there, that this is an extraordinarily powerful tool. that can help save lives. and dna is getting to be a more and more accurate science but if you say dna can't exonerate people, so i don't think that the downside risk here is that great compared to the upside risks. >> i will follow you spent hours just going to say one sentence. one of the issues i think is that we are simply arresting and convicting far too many people. that this would be a less serious question if, in fact, we were arresting, convicting fewer people. but when we come as much as we have criminalized this country, what we're doing is creating an entire underclass that not now has their dna on file for the rest of their lives, but is denied the right to vote in many states for the rest of their life. has difficulty getting jobs when they get out, because they have a felony conviction. so i think you can separate the database issue from the question of who is going into the database, and who's going into the database is far too many people. >> so, i quite agree with everything steve just said. i want to use this in part to sort of, it's fascinating the topic of the panel is the aclu and his role in american life and we're talking about the issues that are sort of the substance matter of american life, which is great but an interesting, and interesting way of i think proving my earlier point which is that these are the issues that really draw and that's why the aclu is sometimes controversial. in response to your particular question, right, so i'm less concerned about the laws that say after conviction, right, turnover dna, laws that have been proposed that are out there says everybody who stopped and picked up. i'm still concerned about for the reasons that steve outlined but i'm somewhat less concerned. what concerns me most i think the death penalty context is these issues of dna being used to exonerate questions of privacy and other kinds of rights issues. in the death penalty we have seen a contraction and contraction, a contraction of the number of issues. and the number of moments at which it's possible for a court to hear this evidence, this evidence of information that some states are pushing back against that and that's been very productive. but it goes to the question, the broader question, the role of the courts here and the role the courts are asking the aclu generally ask the courts to play, right? so it's less concerning if you have this kind of policy. if you know that there's going to be a moment, and ideally a repeated moment, where the vindication of the rights on either side in court, right, either for the adjudication of criminals question, whether it is to exonerate or to convict, right? or whether it's the adjudication of individual right of privacy that is being advanced, and instead what we have seen, and one of the roles i think the aclu plays that's most important in security context is a contraction of the role the courts are willing to play, right? so even as the technologies go, even as the number of issues we call security related grows, if the courts maintain this view that oh, anything in that category we can do, right? and if the legislature continues to narrow the jurisdiction of courts, the art issues, nobody ever has a chance to litigate, right? that's what worries me. that's a process failure. it's the moment when there is secrecy and the political process and the political process isn't working, and you don't even have the courts and the process falls back. across the board whether it is criminal issues and exoneration or conviction, security issues and so forth, it's the insistence that the courts have barcode equal branch of government and continue to have an essential role to play that i think is one of the things we need to talk about. >> one is just a scaled. it's going to be so large, we better be quite sure that we're going to risk and it's going to be as foolproof as possible in terms of just the level of dna samples that we be collected, stored, retained and analyze. it's an open question about -- second, the idea of dna of being cut by a garment is different. you will lock your entire health history, your genetic history. with those cut and swabs, and stored properly by police labs, you can have all sorts of access to a persons body and their history in the background. and the our history of cases were police officers have used police databanks to go after the girlfriend, for instance, or their divorce lives in a way of retaliation. we have to be quite sure that's not going to happen in privacy corruption. third one, can you explain to me, heather, why -- [inaudible] >> can you explain to me heather, why, and what you support the idea that you would carve out marijuana arrests as not being in the dna data banks? that you can be in the dna data bank if you jump a turnstile because you left your metro card at home but you if you're carrying dope and smoking a joint on the street, you're not in the dna databank? how does that compute? it may be a rhetorical question but i think the reason what doesn't, the reason why they allow the carve out is because there marijuana arrests are so racially skewed that it would be impossible for them to say that this is, it does have a racial desperate impact. and you look at the data, white kids smoke pot on the same and equal levels as african-american, latino kids, drug use across the race line, and yet the marijuana arrests are becoming black and latino. and so they carved out a kind of marijuana arrest because they knew that that population of convicted criminals was racially so concentrated among people of color they didn't want to fight that battle, frederick. >> i would say probably carved up because it is a battle right now and they were not willing to fight that because the advocacy's of these notions that racial, that marijuana arrests are being driven i raised, as opposed to public use of marijuana. but they are frankly unfortunately is not a single criminal law that does not have a racially disparate impact. and the victims of that are the law-abiding members of minority neighborhoods who are disproportionately victimized by crime. so i don't think that disparate impact is a legitimate argument to pull back on facially neutral laws that are being applied in a neutral way. the shooting per capita rate in brownsville, brooklyn, is 81 times higher than in bay ridge, brooklyn. that's not an artifact of racist policing. that is because people living in brownsville are victimizing their fellow neighbors at that height of it, and people are dying there at a high rate. and that's why police are conducting stop and frisk at a much higher rate in brownsville than they are in bay ridge. >> you can't allow that assertion just to go unchallenged. because it makes it sound as if the african-american, latino residents of brownsville are therefore in italy and inherently more violent than good old white folks spent it has nothing to do with nhs but it is simple a facts. >> and it has everything to do with opportunity, heather. and when we take away for affirmative action programs which oppose gun and we take with the social safety net which manhattan institute has been very aggressive in championing the efforts, and you pull out the rug from poor people were there very few opportunities to make a life of themselves, that's when you see the violence. with all due respect. i am no different than my cousins are serving time in jail. but what is different is i was given a chance. my cousin, if you, as smart as i am. i went to princeton, he did time. he has great parents, same neighborhood. opportunity defiance ones like progress to more folks are trading opportunities for the poor and disenfranchised, then you would service to the crime rate come down in brownsville. >> there is nothing that is created -- [applause] >> there's nothing that has created more opportunity in brownsville than the drop in crime because you have given now people the basic civil liberty of freedom from fear, which is what people -- >> next question. >> i have a question regarding lgbt movement for equality. do you think that the ninth circuit court to address the issue of process and heavy reliance -- does that undermine the argument on the fundamental right -- [inaudible] >> i guess this is dressed to me. >> absolutely. >> do you know anything about this, steve? [laughter] >> with a -- what the ninth circuit did, i hope that one heard the question, had to do with the decision about the panel with respect to the basis upon which it sustained or affirmed the district court decision striking down proposition eight. what the panel did was focus on particularly on peculiarities of the california system where the california supreme court had determined that there was a right, a constitutional right under the constitution of california for citizens to marry someone of the same sex. and when the case gets to the ninth circuit, the ninth circuit is focusing in on the fact that the supreme court of the united states in the robert? had determined that similar constitutional amendment in colorado taking over the rights of gay and lesbian citizens violated constitution, the equal protection clause and the due process clause. those two clauses of the constitution are folded in. every time we talk about this issue, whether it is the lawrence v. texas case for the roemer case or the cases that do with it. when we litigated the case was litigated it as a fundamental right to marriage, and equal protection claim. what the ninth circuit did was make a relatively narrow decision, but also talked about all of the justifications that california had offered for its active discrimination against people on the basis of marriage. and essentially systematically found every single one of those justifications without any rational or reasonable basis. so while the decision was focus somewhat narrowly on a couple of supreme court opinions, happened to have been written by judge justice anthony kennedy, that in no way we believe undermines the extensive factual only record that was compiled in the district court and was formed the basis for the district court's 134 page opinions. what will happen from the ninth circuit, we don't know. right now there's a petition for every hearing pending. it's been sitting there for about six weeks. take 13 of the 25 active judges in the ninth circuit to grant rehearing on bond. some people think will happen. some people and it will not happen. in either event i suspect it will go to the supreme court. and if i have an answer to that i will be happy to elaborate but i wanted to do it sensitive to the time constraints. >> does anybody else want to weigh in? well, so speed is i have a ton of questions for ted on this but not right now. >> my question is about general posterization as well and theology as it relates to the aclu's initiatives promoting digital rights and due process but is there a contradiction in value between your first i'm in advocacy and pro-government regulation effort to advance consumer privacy? and related, is there a tension between the liberal thought and pro-government progressivism with an aclu. if you want to take this opportunity to help you as well, feel free to do so. >> go ahead. >> i have no credibility on health care because i thought it would be an easy win. whatever else it would have is not going to be easy. this gets back to me, this one made at the very beginning of the panel, which is there are times. i don't think it is the most prevalent conflict that we face. generally speaking our cases involve claims of individual right, some assertion of authority by the government. but there's certainly many circumstances that we have to confront with with individual rights on both sides of the equation. and those are the most difficult for us. and i'm not sure whether there's a simple equation that enables us to resolve those problems. we approach each one on its merits. and we try to balance the competing rights as best as we possibly can, and in most situations i think we like to believe that it is not a zero-sum game. it's not either or. there's a way to reconcile both right. so you have raised the issue of free speech and digital privacy. but the situation arises for us, for example, when somebody wants to picket outside an abortion clinic. we believe in the right to picket and we believe in the right to reproductive choice and access, reproductive choice but it occurs to us that it arises for us when the press wants to publish a story about a defendant's confession and the defendant claims that the publication of the story jeopardizes his right to a fair trial in front of a fair jury. and, you know, we, over the years, have tried to work out those conflicts and sometimes we have tweaked the solution as time goes on and we give more thought to the problem. but it's a genuine problem, and it can't be avoided. you do the best, you do the best that you can. i will say, just one last thing on the whole issue of digital privacy. the aclu, you know, over its history has been primarily concerned with innovations of individual rights by the government. not exclusively so. we support laws like private seven which has private loss cannot discriminate on the basis of race. but it is perfectly clear that there is indeed as much threat to digital privacy coming from the google and facebook as from the united states government and we'll all have to think about how to balance those rights as we move forward. >> i wanted to pick up on health care peace, because although i would have expected i am teaching constitutional law to the student did a semester. i see a couple of them there. at my post and i made them read the entire 80 page transcript of oral arguments of the supreme last week. i know they enjoyed thoroughly. >> eighty page? >> the first 80 pages of tuesday. spank you mean the first half of tuesday? >> that's what i didn't even make them read the last part. >> that's an hour spent exactly. i left them off so easy. the point is, right, so it's fascinating to me to see this case framed as, as it has been i think publicly, as an individual right against individual rights? at some level, and right on the other side is you can't force me to buy health insurance as it's been framed, sorted by the plaintiffs cite. and you saw some of the most dramatic moments in the supreme court debate and in public debate as well, this notion that why should the government be able to tell me, right, to take my money, to give it a century to somebody else? i don't want to buy health insurance. you are using my money to subsidize, right, somebody else's care, at least in the first instance. and so, so the answer, right, that the government council, yes, what the government does every time it taxes people, exactly the power to which the plaintiffs say well yes, but you didn't call this a tax. you call this a purely. and if only you would call this a tax, then it would be okay, right? so what's the argument there? the health care bill would be okay if you put the letters t. a x. on the top of the provision. and then the plaintiffs would say we have the issue. so you press them and there's a real argument there. the argument is, right, they couldn't have known. it wasn't clear enough to the public what congress was doing. they were trying to sneak in

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