Q: What about torture? Incredible as it seems, people such as liberal pundit Jonathan Alter and Harvard Law School professor Alan Dershowitz, a strong civil libertarian, are suggesting that it may be necessary.
Silverglate: First of all, Alan Dershowitz has been a little bit misquoted on this.
Q: So has Alter. I mean, neither of them has said, "Let’s get out the thumbscrews."
Silverglate: Alan has specifically said he opposes the use of torture. Alan’s position is that if we are going to consider it, it should be judicially controlled and sanctioned. My view is that as soon as you take the Dershowitz position, you are inevitably going to get torture, because you are going to institutionalize it and you are going to take the opprobrium away from it. By the way, I’ve challenged him to a Ford Hall Forum debate on this, and we’re waiting to see whether it will take place.
But here is a hypothetical. You’ve just picked somebody up, and you think that this person knows the location of a hydrogen bomb that’s ticking away in some major American city. Let me assure you, somebody is going to torture this guy. And if the evidence that the torturer saved two million lives is really good, you ain’t going to get a conviction.
Stern: Let me just say, I express no opinion as to whether going to a Ford Hall Forum discussion with Harvey and Alan Dershowitz is itself a form of torture. [Laughter.]
We’ve got to return to the bedrock principles in this country, and as far as I know, torture would violate the Constitution. Secondly, I’m not convinced it works, that you really would get the information that you want.
Ranalli: There’s been a lot of talk in this campaign against Al Qaeda and the Taliban, that we’re defending principle. Not using torture has to be one of those principles. It’s who we are that is the most important thing when we’re faced with a crisis.
Q: Terrorists tried to topple the World Trade Center in 1993. Why didn’t we take domestic terrorism seriously until now?
Stern: It’s a fair question. I think there were some people in some quarters of government who took it very seriously. In light of what happened in New York and the Pentagon on September 11, there clearly was a failure of intelligence. Was it because the FBI could have done something, or was it because they wanted to do something but were restrained by the existing rules of the road? Or was it a failure on the part of the CIA? Was it a failure on the part of other agencies? I just don’t know.
Silverglate: It took a huge disaster to get us focused, just as it did in the Second World War. It took Pearl Harbor. Now, is that good or bad, that it takes so much? Obviously we know why it’s bad. If we had woken up sooner, maybe we would have saved 5000 lives. But on the other hand, we don’t really want to be living in a society where at the slightest drop of the hat, we militarize.
Ranalli: The pieces of the puzzle arguably were there prior to September 11, and we covered this at the Globe. You had a guy who was a bin Laden associate essentially telling us in 1995 that there was a plot to crash hijacked airliners into large buildings, including the Pentagon. And then, three weeks before September 11 happened, we had in custody the guy that they’re now calling the 20th hijacker, a guy named Zacarias Moussaoui, who’d gone to flight school, where he told the instructors that he didn’t want to learn how take off and land — he just wanted to learn how to steer.
So the pieces were there. I think that if we had a more focused single-issue, counterterrorism, sub-FBI, things might have been different.
Q: Ralph, in your book you show that the FBI’s Top Echelon Informant Program protected not just Whitey Bulger and Steve Flemmi, but also perhaps hundreds of others like them across the country. What lessons can be applied to the current situation?
Ranalli: Going forward in this war against terrorism, informants are going to be a key thing, just like they were a key thing in the war against the Mafia. We need to take a two-pronged approach to learning the lessons of the past, about secrecy and oversight, and the need to build in safeguards so that the same things don’t happen again.
Stern: I think there is the need to be vigilant in this arena as we go forward. Although I support the Bureau and think that some of the criticism that has been expressed here is unfair, I do think that there does need to be a change in some of the culture of the Bureau. More willingness to accept responsibility, admit mistakes, I think is long overdue. And a willingness to share information with law enforcement at all levels. If it wasn’t a necessity before September 11, it certainly is now.
Silverglate: And less arrogance toward local police. You talk to any local cop and you mention "FBI," and they’ll bristle.
Q: Under the recently passed Patriot Act, suspects could be prosecuted with information gathered by foreign intelligence agents, even though they operate under a looser standard than domestic agents. Isn’t this dangerous?
Stern: To some extent, there’s going to be less focus on making criminal cases. That is consistent with focusing on prevention and caring less about the criminal-justice system as an instrument of preventing terrorism.
Silverglate: We do not want to have people prosecuted on the basis of what would be — domestically — illegally gathered information. We should not be spying on our own citizens. I think we should be spying on suspected enemies.
Stern: But you can’t mean it in just the way you said it, Harvey. What if one of our citizens is an enemy, or is assisting our enemy? Then what?
Silverglate: Well, that’s an investigation that has to be conducted under our criminal-justice rules. We can’t operate on the assumption that there’s a huge fifth column in this country. You operate on that assumption and then you can justify a police state. I understand the arguments being made now by some people about adherence to the Muslim religion, that you’re a dangerous group because blah-blah-blah-blah-blah. And then they go back and the pull out various lines from the Koran. I could pull you out lines from the Old Testament and the New Testament that would make your hair stand up.
Stern: I don’t think there’s a huge fifth column operating in this country either. But I don’t think we’re going to be resistant in this country to amassing at least a certain amount of information which might point us in the direction of further trouble. The suspected terrorists are not going to be wearing a sign, as you know, saying, suspected terrorist, follow me.
Q: More than 1100 immigrants, mainly Arabs or Muslims or both, have been detained without charge. One died while in custody. What kind of precedent are we setting?
Stern: There’s a New York Times article which suggests that the number is substantially less. I don’t know what the true facts are, but even if the premise of your question is right, given what happened, I would suggest that this country has taken a generally measured response as compared to what I think would have happened in almost any other country in the world.
Ranalli: It’s really sort of a test of us as Americans to ask how we feel about how many rights we want to grant to people who are in this country but who are not citizens.
Silverglate: It’s perfectly reasonable to treat American citizens differently than noncitizens. And it’s certainly permissible to treat lawful noncitizen immigrants differently than illegal immigrants. The question is, how badly are we going to allow ourselves to treat illegal immigrants? When we have an American in a foreign country and that person’s mistreated, we get very upset. We do have to be careful, but some degree of differentiation among the groups is rational.
Q: The Internet provisions of the Patriot Act attempt to extend traditional wiretapping laws to the digital age. Yet don’t the new laws allow law enforcement to collect more information than they can with a wiretap, and with less judicial oversight?
Silverglate: The law had to catch up with new technologies. But surveillance is now easier, and less subject to court supervision, on the Internet. Why has this happened? Because there is a tendency to view computers as a weapon, as something very dangerous. It’s important that we not view computers as a threat.
Ranalli: The advocates for Internet privacy have made this unsupported argument that, somehow, it’s this special world that’s entitled to greater protection, and that anonymity on the Internet is this great thing. If you ask some law-enforcement person whose job is to catch child-molesters who impersonate 14-year-old girls over the Internet in order to lure other 14-year-old girls to meetings at a mall, I mean, that special anonymity that’s being argued for is not any great thing.
Silverglate: I’m going to disagree with Ralph about anonymity. There is a constitutional right to anonymity in the old media. The Supreme Court has said that political pamphlets, for example, do not have to be signed by the person producing them. There are certain rights of anonymity, and I would think that the analogous rights of anonymity in the computer world should be honored.
Stern: The Justice Department is saying that it’s designed to be content-technology neutral, and to harmonize some provisions which seemingly were a hodgepodge. You had different rules, for example, about what you can get from cable-TV companies.
Silverglate: Right. That was insane.
Stern: Cable TV was viewed as more protected, because you’d know what programs people were watching — if they were ordering porn movies, I guess. But cable-TV companies can provide telephone service and can provide Internet service. And you’ve got Internet providers that let you use telephone technology over the Internet. So the intention is to try to have one standard set of rules.
Q: When we look back at this time, will we be able to say that we protected the freedoms that define us while fighting this terrible new threat?
Stern: The short answer is we have to. At the same time, we have a serious threat on our hands. We have to at least allow some breathing room for government. My hope is that we will find the right balance by making sure that we have sufficient checks and balances, by prizing and encouraging a strong and free press, and by not only permitting but encouraging strong dissent in this country. To do otherwise would trouble me.
Ranalli: In the immediate aftermath of September 11, I remember being struck by a pre–September 11 video of a top bin Laden associate saying — really, bragging — about how easy something like September 11 would be. And the tone of his words was that we were somehow weak, or we’re stupid. But I remember thinking to myself that this guy just doesn’t get it. We choose to live that way. We choose to live in a way that’s inherently insecure. This is really a battle for a way of life, for a way of thinking. And in defending that, I think we’ll always be reminded of the need to protect principle as well as protect ourselves.
Silverglate: We are obviously going to have some incursions on liberty. Some of them, even I would say, are reasonable. However, I think it’s very dangerous to begin targeting citizens on the basis of race and ethnicity, which in my view is prohibited by the Fourteenth Amendment. If we go overboard and apply certain rules to only one group of citizens, it’s going to take an awful long time before we correct the mistake.
I’ll give you one example. I think it’s unnecessary to give everybody an anal probe before they get on an airplane.
Q: Thank God.
Silverglate: But if we’re going to say it’s okay, I think everybody should have an anal probe rather than just the people who look like they’re dangerous. Because if we apply the rule to everybody, I assure you, in two weeks it will be repealed. But if it’s only applied to one group of citizens, it could go on for years. That’s obviously an exaggerated example, but you get my point.
I think that in the short run we’re heading down a dangerous road. But I have infinite confidence in the corrective mechanisms in this society. I think the First Amendment will survive this, and I think that we will be debating this intensely, probably more intensely a year from now than we are today. We’re a hopelessly open society — and I say that with hopelessly in quotation marks.
Right now, there’s a little rough going. There’s a little bit more hesitance to criticize the government. But this is a honeymoon for the Department of Justice and the FBI. Honeymoons don’t last forever.
Dan Kennedy can be reached at dkennedy[a]phx.com
