Illustration by Jenna Talbott

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 Uniting and Strengthening America Act by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (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 it 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 vs. 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.

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 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 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 thing 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.

Issue Date: November 23 - 29, 2001