THE IDEA WAS to gather three notable observers of federal law enforcement to talk about civil liberties in the age of terrorism. Congress had only recently passed the USA Patriot Act, which, among other things, gives the government more power to snoop on Internet users and to detain immigrants. On the morning of our roundtable interview, Attorney General John Ashcroft had just revealed that he would allow government agents to listen in on jailhouse conversations between terrorism suspects and their lawyers. Surely things couldn’t get any worse.
Well, to quote the old Lily Tomlin line, "No matter how cynical you become, it’s never enough to keep up." Because several days after the roundtable took place, President Bush announced that he would establish military tribunals — the first since World War II — to try noncitizens accused of terrorism. Bush’s decision raises the specter of executions possibly taking place on the basis of secret evidence, with no right of appeal. For anyone concerned about the state of civil liberties in this country, the conversation grows more ominous by the day.
Our participants:
• Former US attorney Donald Stern, now a partner at the Boston law firm of Bingham Dana. Stern was Boston’s top federal prosecutor when the FBI’s corrupt deal protecting organized-crime figures Whitey Bulger and Stephen Flemmi came to light. Working with then–attorney general Janet Reno, Stern helped draft guidelines aimed at preventing such abuses in the future.
• Noted civil-liberties lawyer Harvey Silverglate, a partner in the Boston law firm of Silverglate & Good, a Phoenix contributor, and the co-author (with Alan Charles Kors) of The Shadow University: The Betrayal of Liberty on America’s Campuses (Harper, 1999).
• Boston Globe reporter Ralph Ranalli, who’s been covering the post–September 11 investigation, and who wrote about the Bulger-Flemmi revelations as a staff reporter for the Boston Herald. Ranalli is the author of Deadly Alliance: The FBI’s Secret Partnership with the Mob (HarperTorch, 2001).
Edited excerpts follow.
Q: How should we go about fighting domestic terrorism?
Donald Stern: Attorney General Ashcroft has referred to moving from traditional law enforcement to prevention. I’m not quite sure I know exactly what he means by prevention — some of it may be education and public-health matters and the like — but I don’t think it’s any mystery that the government is going to be collecting a lot of information about a lot of people, and it’s not only going to be about them. It’s also going to be information about us.
Harvey Silverglate: We should set up some kind of Civilian Defense Corps, much as we had during the Second World War, in which one could enlist the eyes, the ears, the intelligence, and the patriotism, to use an old-fashioned word, of ordinary American citizens — people like me, for example, who are too old to go into the military but who could do something useful. That could be done without the kind of militarization that is going to give to society a look and feel that we’re not going to like.
Ralph Ranalli: In times of national crisis the government says, "Trust us, and don’t ask how we’re going to do things." We’ve seen this over and over throughout history, going back to the 1920s with the Red raids, when the FBI was just in its infancy, and even [with] the war on the Mafia. It’s only later on that we wake up and we see the abuses that were formulated under this new sort of secrecy.
Silverglate: The government should do absolutely nothing to try to minimize the debate. As much of this as can be conducted in the open should be. Everybody understands that not everything can be released to the public, but I thought it was very ominous that the presidential press secretary was telling the country that we’re going to have to watch what we’re saying.
Q: And then had it removed from the transcript.
Silverglate: Right, the ultimate irony. I thought that it was very worrisome that Condoleezza Rice was calling news-media chieftains in order to try to get them not to broadcast, in toto, bin Laden’s videotape. To try to enlist the news media in the propaganda war domestically is a very dangerous idea. The First Amendment says, "Congress shall make no law abridging freedom of the press," and, you know, what part of "no" don’t you understand?
Q: The FBI is being granted enormous new powers. Yet you could argue that the FBI has been a rogue agency from its founding in 1908 right up through the Whitey Bulger scandal and the incompetence and abuses of the Louis Freeh era. Can this agency be fixed?
Stern: I don’t agree with any of those premises, at least in that stark form. There are a large number of very dedicated FBI agents I had the privilege of working with during the seven and a half years I was US attorney. They deeply believe in public service, and most of them act that way. Now there were problems, with Bulger and Flemmi and related issues, and I’ve got scars on my back and other parts of my body from having to deal with those problems. And that is a black eye for the FBI.
We have to build in a certain number of checks and balances into the system, which as Ralph knows is one of the things I tried to do in helping to revise the guidelines dealing with confidential informants. I hope there are enough, but time will tell.
Ranalli: The FBI is simply not fixable. What you have is this huge, bloated agency that does 100 different things, and because of the scandals that we’ve seen recently — from Ruby Ridge to Waco to Wen Ho Lee to the lab scandal to the FBI informants — it just shows that it doesn’t do any of them well anymore.
The FBI now is an agency that operates in a lot of different arenas under a lot of different rules. Right now, with this USA Patriot Act and this new executive order by Ashcroft to eavesdrop on prisoners, you’re seeing a further blurring of the lines. We need to make those lines clearer. What I really think we should do is break up the FBI into maybe three or four smaller FBIs.
Stern: We can call one ATF, we can call another one DEA, we can call another one IRS.
Ranalli: No, no, no. The problem is that we’ve broken down federal agencies by jurisdiction, not by the rules of the game that they’re supposed to follow, be it the US Constitution, or the rules which govern domestic law enforcement, or conventions that govern international criminal-law work. Or the down-and-dirty counterintelligence, counterterrorism game that we need to play.
Stern: You’re losing me, Ralph. It almost sounds like you’re looking for deniability on the part of the government. Let’s have the clean law-enforcement agency, which does the good stuff, and we’ll call it the FBI, and then we’ll have all the dirty tricks and other things, and we’ll create some new agency to do that.
Ranalli: Don, we have the CIA, and we have the NSA, and we have those agencies right now. And they have congressional oversight. The problem is that if you let the FBI do similar things, there’s no similar oversight. Right now Congress has oversight over CIA intelligence activities, but they don’t have any corresponding oversight over things that the FBI has done and is going to do. There should be some sort of congressional oversight.
Silverglate: One of the high points of my legal career was when I represented somebody who was arrested for selling drugs to somebody else, and each of them was working for the federal government with different agencies. It was like the old Mad magazine, you know, Spy versus Spy. I thought that was the epitome — it sort of said everything.
The FBI can be fixed only if there’s a massive restructuring, not only of it but of all of its other brother and sister agencies. We’ve also got to have much more transparency, particularly congressional oversight. I think it’s crucial.
