Former Bush administration official John Yoo debated the appropriate balance between security and civil liberties with former ACLU President Nadine Strossen at a Tuesday discussion hosted by the Heritage Foundation.
Yoo, a lawyer who authored legal opinions approving the use of “enhanced interrogation” tactics on terror suspects, hailed post-9/11 measures for keeping the country safe with only minimal invasions of privacy.
A protester emerged from the audience almost immediately, shouting, “Shame on you, Mr. Yoo!” The woman, possibly affiliated with anti-war organization Code Pink, which had four members stationed outside the building, said Americans’ civil liberties had been eroded and that “ten years later our country is less safe.”
A professor at the University of California, Berkeley, Yoo joked that the demonstrators made him feel at home. He then proceeded to lay out the case that measures taken in response to the 9/11 attacks had not jeopardized civil liberties. Yoo said that the country has been kept safe since 2001 because of President Bush’s decision to pursue a “war approach” rather than a “criminal approach” to dealing with terrorism.
Yoo said concerns about the government operating a vast, secretive intelligence-collecting apparatus were understandable, but claimed that non-incriminating information on everyday Americans has generally not been misused.
He also credited the current administration, calling the killing of Osama bin Laden “President Obama’s greatest foreign policy/national security achievement.”
Under pre-9/11 policy, the mission to kill bin Laden wouldn’t have happened, Yoo said. “What people don’t raise is that the military [now] carries out operations like that every day in Afghanistan,” he added. Such missions before the terror attacks would have required a criminal indictment and a subsequent attempt to arrest the suspect.”
He suggested that if airport security is the worst invasion of privacy, Americans should consider new security measures as reasonable, considering their benefits.
Yoo also argued that political speech “has actually exploded, it has not receded” over the past ten years, and elections have changed the party in control of government without significant alterations to policy — a sign that malfeasance just isn’t there.
Strossen, now a professor at New York Law School, said airport security “is just the tip of the iceberg” and a perfect example of “security theater” enacted after 9/11, “designed to give people the illusion of security.”
She insisted that “the ACLU is staunchly non-partisan” in pursuit of civil liberties issues, and named several conservative organizations that had also taken issue with measures that have increased surveillance. Strossen said former Republican Rep. Bob Barr presented a particularly strong critique.
“Two branches of government have ganged up on civil liberties across two administrations and two parties,” Strossen said. Courts have done too little to rein in the legislative and executive braches, she said, stating that there is “No wartime exception to the Fourth Amendment.”
Strossen decried the “loose standard” established for eavesdropping on foreign phone calls placed by Americans and “the vast new surveillance powers that were unleashed post-9/11.” She stressed the secretive nature of the government’s collection of intelligence and said that intelligence sharing should take primacy over increasing intelligence collection.
Responding to Yoo’s analogy that finding useful intelligence is equivalent to finding a needle in a haystack, Strossen said that “What we’ve been doing since 9/11 is adding more and more hay to the haystack.”
Strossen scoffed at Yoo’s notion that privacy is not invaded if intercepted, non-incriminating communications are not disseminated. “Some of us believe you have a right to privacy to be free of government surveillance,” she said. “We insist on what the Constitution insists on.”
The former ACLU president said that citizens’ fears of surveillance chills the free flow of protected speech. She said that American journalists in foreign countries self-censor themselves because of such fears.
Strossen said that “pundits” have misrepresented the ACLU’s position on terrorism-related topics, clarifying that the organization does not want American soldiers to read Miranda rights to captured terrorists on the battlefield.
“What we object to is converting this country and the entire world into a battlefield,” Strossen said, declaring that she and other critics shouldn’t have to accept the government’s “trust us” assurances.
Yoo responded that the government “doesn’t want to reveal too much in public” because it could harm investigations into al-Qaida. The secrecy “isn’t to cover up government misdeeds,” he said.
Yoo cited the trial of suspects involved in the first World Trade Center bombing. During that trial, it was revealed that the government had the capability to tap bin Laden’s cell phone, he said, adding that within 48 hours bin Laden had permanently sworn off cell phones.
