Did civil liberties suffer collateral damage from 9/11?

ANDERSON COOPER, CNN ANCHOR: So, did civil liberties suffer collateral damage from 9/11? From Washington to decision that, we’re joined by Cliff May, president of the Foundation for the Defense of Democracies, and Hussein Ibish of the American-Arab Anti-Discrimination Committee.
Thank you very much for being with you, both of you.
COOPER: Mr. Ibish, let me start off with you.
IBISH: Sure.
COOPER: What do you think of this latest news of the Saudi arrest?
IBISH: Well, I think, you know, the arrest of this individual is a good sign, because apparently the government here has good reason to believe that he could be an associate of some of the hijackers and he’s obviously someone who ought to be questioned and interrogated and investigated. There’s no problem with that.
I think what it shows is that the idea that the Saudi government is not cooperating with the war on terror or the investigation into 9/11 is not true and that we are making some substantial progress here.
COOPER: Well, that’s a pretty broad statement to say that the Saudi government is cooperating based on this one case…
IBISH: Well, that’s what our government says.
COOPER: Right.
IBISH: I mean that’s what all the Bush administration officials who have commented on it have said. And this is another example of that.
COOPER: Right.
IBISH: I think clearly we asked them to pick him up, he’s been picked up. I think we can all be happy about that and we need to see who he is and what he knows. Maybe there’s nothing to it, but we need to find out.
COOPER: All right, let’s talk — and Cliff, I want to bring you in here. Let’s talk larger about American citizens who are now being held as enemy combatants. They have not been charged. And we’re talking about Jose Padilla in particular, who has not been charged, is being held in a military, under the military control and doesn’t have access to his lawyer.
Cliff May, is this fair?
CLIFF MAY, PRESIDENT, FOUNDATION FOR THE DEFENSE OF DEMOCRACIES: Yes, it is, and it’s based on the idea that we’re fighting a war against terrorism. We have to use the war template, not the criminal justice template when we fight this war. Look, during WWII, we captured German soldiers and Japanese soldiers on the battlefield. Some of them may have been Americans who left to join the Fatherland in this fight. We put them in prisoner of war camps. We did not Mirandize them. We did not give them lawyers. There’s a difference here and we, look, the most important thing we’re trying to do here is save lives, which means prevent terrorists from mass murdering Americans. We have to have the designation enemy combatant in order to do that.
IBISH: Well, there’s a contradiction in Cliff’s logic, though. The problem is, I mean I agree that when enemy soldiers are captured in a war they should be, as he rightly said, designated POWs and treated according to the Geneva Convention. Otherwise, the government, if it holds people, has to charge people in a criminal manner and use the criminal law.
You have to designate, in my view, prisoners either as prisoners of war or as criminal suspects. But to declare them somehow non-humans, to put them outside of the Geneva Convention, outside of the constitution, basically having no rights whatever and no standards by which we can judge their treatment is really antithetical to American legal traditions and values.
MAY: It’s very important that I respond to that.
COOPER: All right.
MAY: These would be prisoners of war if they abided by the laws and customs of war. But they violate the Geneva Convention, they don’t wear uniforms, they don’t carry their weapons openly, they target innocent civilians, not other militaries. They get treated humanely, but they do not get the respect of the prisoner of war status.
IBISH: Well, look…
COOPER: Let me just jump in. Let me — before Mr. Ibish, before you respond.
IBISH: Sure.
COOPER: I mean, Cliff, you could make the argument — I understand, I mean this man, Yasser Hamdi, was caught on the battlefield. I think that’s perhaps separate from the Jose Padilla case, which, you know, this is an American citizen caught in the United States and basically he has not been charged with anything.
MAY: Yes, but what he was doing was attempting to create a dirty bomb to use against Americans. In other words, he was attempting to make America the battlefield. Unfortunately in the war on terrorism, the battlefield is such places as downtown Manhattan and northern Virginia where the Pentagon is.
IBISH: There are two people who are being held under these circumstances, and I really think we can prosecute the war on terror without tearing up the constitution. Mr. Padilla can be charged as a criminal. And I have no question that he could be convicted by an American jury given what we’ve been told by the government — unless the government’s lying to us, which I don’t think they are.
So there is no need to shred the constitution to prosecute Mr. Padilla or to hold Mr. Hamzi as a prisoner of war. I mean this makes very little sense to me.
MAY: Anderson?
COOPER: Yes, go ahead.
MAY: We’re not shredding the constitution.
IBISH: Oh, I think we are.
MAY: No innocent American’s rights have been comprised in any way. But here’s the thing, we…
IBISH: Oh, I think Mr. Padilla’s rights have been.
MAY: He’s not an innocent American. You know he’s not and I know he’s not.
IBISH: But he is an American.
COOPER: Well, let’s not…
IBISH: He’s an American, and has constitutional rights…
MAY: It’s less important that we prosecute any of these people than that we have the ability to find out what they know about terrorism and terrorist plans. That means we want to interrogate them even if we never prosecute them. Why? Because we want to save lives. That’s more important than solving crimes.
IBISH: In which case people could be held as material witnesses, if you only want to try to question them. There are many ways to do that.
MAY: That is being done, too.
IBISH: There are many ways of pursuing that. Let me say something else. You know, there’s Mr. Moussaoui. There’s Mr. Walker Lindh. There’s Richard Reid.
MAY: Precisely.
IBISH: You know, a lot of people who have been arrested have been treated as criminals and are being prosecuted as criminals.
MAY: And the…
IBISH: But the problem is, it’s very arbitrary. Foreign nationals like Mr. Moussaoui, who is French, Mr. Richard Reid, who is British, have been charged as criminals, have lawyers, have constitutional rights whereas these two Americans are being held in this kind of weird limbo.
MAY: Once you say…
IBISH: It’s very arbitrary and it’s very damaging to our, not only our legal traditions, but our values, our American values.
COOPER: Let’s move on. Cliff, is there any position where you would say the U.S. has gone too far in terms of prosecuting this war? I mean where is the line to be drawn?
MAY: No. Listen, I’m sure there is a line to be drawn. I don’t think the U.S. has gone too far. Again, there’s not one innocent American who has been in any way, has in any way had their rights comprised.
IBISH: Well, you don’t know that, and there have been a number of disturbing cases.
MAY: I think it’s good that we look down the line and Congress look at this. But right now, I’m afraid we’re not doing enough. If, in the future, we have another 9/11, people are going to point a lot of fingers and ask a lot of questions, what were we doing? And meanwhile you have, as your report indicated, the FISA people saying we don’t want too much cooperation between the FBI and criminal — and the CIA and…
COOPER: But, Cliff, you know, you…
IBISH: But the FISA, the FISA…
COOPER: Cliff, you bring up FISA and FISA basically just said that the FBI has been lying to them…
IBISH: Exactly. Exactly.
COOPER: … and misleading them.
MAY: Understood.
IBISH: And these are not…
MAY: Let me respond…
IBISH: And these are not the shills of civil libertarians.
MAY: No.
IBISH: Hold on a second, Cliff. These are not civil libertarians. These are allies and friends of the Justice Department. These are people as committed to the safety of this country, to its security as anybody else, and always give the government the benefit of the doubt. And we should be very concerned when they say the Justice Department has gone too far.
MAY: Let me get a word in.
COOPER: All right, Cliff, respond.
MAY: First of all, the complaints that the FISA court are talking about, they took place before 9/11, before the Bush administration was in power.
IBISH: All the more reason to be concerned.
MAY: Secondly, they don’t take, what the FISA court’s not taking into account is the USA Patriot Act passed the overwhelming bipartisan support, which allows for greater cooperation between organizations like the CIA, the FBI and criminal justice.
COOPER: Right.
MAY: We should decide, we’ve got to make a decision here, is our priority to see that people like Jose Padilla have every right upheld in the highest possible standard or is it to keep hundreds or maybe thousands of Americans from dying terrible deaths…
IBISH: But I think that’s a false equation.
MAY: We have to — that’s the point.
IBISH: That’s a false equation.
COOPER: OK, wait. Wait, hold on.
COOPER: Mr. Ibish, you give a final thought.
IBISH: Sure. I think that’s a false equation. I think we’ve been told since 9/11 by people like Cliff and others that there is an economic relationship of inverse proportionality between security and liberty – that we will be safer if we give up constitutional rights. And I don’t think that’s true. Repressive societies are not safe ones. I just don’t think it’s true that the more freedom we give up, the safer we become.
I think that we can be both safe and free and we can…
MAY: On what basis?
IBISH: An American basis. We don’t have to let ourselves be bullied into shredding our constitution and diminishing our values and our society.
MAY: If we can’t…
COOPER: Cliff, 10 seconds.
MAY: If we can’t question the enemy combatants we have in Guantanamo, if we can’t question people like Padilla…
IBISH: Of course you can.
MAY: … and not have their lawyers tell them don’t say a word, invoke your Fifth Amendment rights…
IBISH: You can question…
MAY: … then we will not know about terrorist acts…
IBISH: You can question anybody you like.
COOPER: All right, but guys…
IBISH: But the people have to be treated either as POWs or as criminals.
MAY: Or enemy combatants.
COOPER: We are simply out of time.
It is Saturday morning at 8:15 and we appreciate you coming in and talking with us.
IBISH: Thank you.
MAY: Thank you.
IBISH: It’s a great pleasure.
COOPER: And it’s very early in the morning for an argument. We appreciate you keeping it civil. Thanks very much.
IBISH: Sure. Thank you.

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