America Attacked:
Civil Liberties
With Mike Godwin
Center For Democracy & Technology
Thursday, Sept. 20, 2001; 1 p.m. EDT

Tuesday morning, Sept. 11, in a horrific series of events two hijacked planes hit and destroyed the twin towers of the World Trade Center, one plane crashed into the Pentagon and another in Somerset County, Pa. Thousands are presumed dead or injured as emergency services and relief workers continue to make sense of the chaotic scenes. The FBI and authorities across the country continue to track down those responsible for the crimes.

Mike Godwin, Policy Fellow at The Center For Democracy and Technology, will be online to discuss civil liberties and congressional legislation in the wake of last week's terrorist attacks.

The transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

Mike Godwin: Hi, folks. I'm Mike Godwin, a policy fellow with the Center for Democracy and Technology in Washington, D.C.

In the aftermath of the terrible attacks on New York and Washington last week, there's been a lot of pressure on our intelligence and law-enforcement communities to respond -- to offer up changes to the law and other possible solutions that (they hope) will prevent such a thing from happening again.

One set of issues on the table is privacy and civil liberties. I think most of us would be willing to give up something to ensure that our society is safe from this kind of attack. But this raises questions: will we be asked to give up the right things? Will what we give up matter? Will changes in our privacy and civil liberties cause fundamental changes in what makes us Americans, and are we ready to make such changes? If we give up the wrong things, or too much of the right things, will America as a land of liberty itself be a casualty of the attacks?

In the short term, what these questions mean is that we'll have to give some serious consideration to whatever emergency measures we adopt, and to whether those "emergency" responses become part of our permanent legal framework. And we need to make sure that Congress has a change to fully consider, debate, and hear testimony about whatever changes are proposed. If we don't, then the very lawmaking process will have been a casualty too.

Arlington, Va.: Do you think it is prudent for surveillance to be heightened in times of war? Obviously there was a lack of intelligence data collected before the attacks and it seems ridiculous to not step it up in times of crisis.

Mike Godwin: Obviously, some kinds of surveillance will be heightened in war or in wartime conditions.

But I think the thing we're seeing from the current investigations is a) that there was apparently quite a bit of evidence already available to authorities before the disaster -- information that, if we had only known to pay attention to it, could have warned us, and b) that the FBI is doing a remarkable job at investigating this terrible attack, even though they are working under current, unamended law. It's really stunning how much we have learned in the nine short days since the attack -- I'm actually quite proud of how effective they have been.

America: What are the "right" civil liberties that we should be willing to give up?

Mike Godwin: As to what the "right" civil liberties to give up may be:

I for one am comfortable with more surveillance and more intrusive searches at airports, or at ports of entry to the United States. I think most people are.

New York, N.Y.: I would feel a lot more comfortable if the FBI/CIA had greater surveillance powers to root out terrorists within US borders. It makes sense to wiretap an individual, not a specific phone line as current legislation stipulates.

Lots of pundits talk about how giving such authority to the FBI/CIA in order to fight terrorism would limit our personal freedom as Americans. If I'm not engaged in such activities, how would my freedom be compromised?

Mike Godwin: New York, what you say is what people often say when the issue is expansion of policy authority -- what do I have to fear, since I'm a law-abiding citizen?

I think history shows that sometimes law-abiding citizens, like Richard Jewell, who was wrongly identified as a suspect in the Atlanta Olympics bombing, have plenty to fear. The government pretty much ran roughshod over his life.

We have to recognize that government agencies are human institutions, and they make mistakes, and sometimes those mistakes cause harm to individuals. Because we structured our government to have fundamental limits on its powers, we ought to carry that philosophy forward as we respond to terrorism as a free society.

Jeffrey Rosen has a good column in this week's New Republic about how often during times of war or crisis civil liberties have been infringed upon, and the result has not been more effective national security, but instead simply more harm to individuals.

Baltimore, Md.: In my view, if we are going to ask uniformed personnel to die for our Country, then we ought to at least maintain a country worth coming back to. To ask uniformed personnel to die for our freedoms while we curtail those very freedoms out of fear for our own lives seems inconsistent and cowardly.

Americans are going to be dying for some time to come, whether in uniform or in office buildings. Many people have died through the years to provide us with the rights and freedoms we currently enjoy. I am not so fearful of a pre-mature death as to surrender the rights and freedoms to be enjoyed by my daughter. I see no cause to surrender rights and freedoms that were not surrendered in WWII, WWI, and the Civil War.

As Secretary Powell said, we must ensure that those entering our Country are those we desire, but that once within our borders, all must be protected by and subject to the Constitution.

To me, the argument that the Constitution is only valid in times of peace is like saying there is such a thing as being "a little bit pregnant." Either you believe in the Constitution or you don't.

This Country has endured the strain of last fall's elections AND this attack of unrestricted warfare on Americans without tanks in the street, or soldiers with fixed bayonets on every street corner. This is proof enough that the Constitution is up to the task and well worth dying for; whether in uniform or on Main Street.

Mike Godwin: Baltimore, I think your comments are great, and I agree with them.

The fact is, if you make national security your number one priority at the expense of everything else, it's easy to justify anything -- ask the sons and daughters of the interned Japanese Americans from World War II.

Columbia, Md.: It seems that this current tragedy has triggered a sudden loosening in laws regarding the civil liberties of immigrants and citizens alike, with the proposed wire tap law changes and increase in immigrant detainment periods. How much of this legislation is actually necessary to aid prosecution efforts in this case? It seems some may be using this situation and public fear as a tool to further existing agendas.

Mike Godwin: Columbia, the short answer to your question is, I'm not sure whether the proposed changes currently on the table do mch if anything to improve the odds of successful prosecution of the remaining terrorists or other lawbreakers, if and when they are caught.

Charleston, S.C.: Is it not time to honestly evaluate the true cost of instituting such an open immigration policy into the U.S.? I realize that we are a nation of immigrants and the "great melting pot," but, given that almost all of these terrorists were either immigrants, here under some non-immigrant visa, or here illegally is it not time to more heavily and seriously scrutinize those coming into this country? The American public earlier was calling for amnesty for illegal aliens in this country citing "human rights" and civil liberties. Our current Immigration Law reflects the public's belief in open borders and we saw how easily the terrorists availed themselves of these nonsensical laws. We have the most open and liberal Immigration Laws (once again citing "human rights" and fairness) in the world, and we paid the price. Immigration and visitation into this country are privileges, not rights as many suppose, and should be treated accordingly. Mess up and you're going to be deported. Exclude those who are reasonably suspected of criminal activity from entry. That is the way it should be, not full of exceptions and waivers as the laws are now. Your comments?

Mike Godwin: Charleston, what I'm hoping, with regard to our immigration policies, is that we find a balance that continues to allow people to come to American and commit themselves to our social and political ideals, while at the same time screens better for potential "sleeper" agents and terrorists. I wish I know what that balance looked like -- it's not my area of legal specialty -- but I am so proud of the kind of nation of opportunity that we are, and that we long have been, that I would hate to see that nation be lost in the aftermath of all this horror.

Austin, Tex.: What specific laws or proposed changes in laws are you wary of? What changes would you support?

Mike Godwin: Austin (hello, Austin, my home town), I think we should be watching very closely the Department of Justice package of legislation that is now being presented to, and perhaps pushed quickly through, Congress.

As I've said before, I have no gripes with certain kinds of antiterrorist measures, such as increased security at airports. Similarly, I think it does not harm to put the federal antiterrorism statutes under the "predicate offenses" section of the Wiretap Act (although, to be honest, it's pretty hard to be a terrorist if you haven't committed one of the offenses already listed under the "predicate offenses" section). And there are some efforts to conform the Foreign Intelligence Surveillance Act with other federal criminal law that I think may turn out to be okay, if properly crafted and reviewed.

Washington, D.C.: I used to believe that good encryption was important for privacy and rights for honest, patriotic people. Like most people, nearly all my values changed completely over the past week. I now feel totally different about encryption, and it reminds me of how I felt before my first trip to a clothing-optional beach. Ooh, everyone will see. Well you know what? Everyone saw and no one cared. I feel the same way about encryption now. Weak encryption is ok to keep out most criminals from my personal data. And, like with the beach, if everyone sees my data, big deal, I'm still alive. What do you think?

Mike Godwin: Washington, there seems to be no evidence so far that encryption was central to, or even significantly a part of, the terrorist attack that occurred last week.

A lot of the debate about encryption is shaped by the kinds of questions you ask about it.

If you ask, "Are you willing to give up totally secure encryption if doing so will prevent future terrorist attacks?", most of us, I think , would at least be tempted to say yes.

But put it a different way: "Would you be willing to give up totally securer encryption even though doing so won't significantly improve law-enforcement or intelligence effectiveness, and even though doing so will make your business and home data and communications more vulnerable to terrorists and criminals?" Then I think you might get a different answer.

There was some initial talk, from senators Kyl and Gregg, about revisiting the encryption issue and maybe outlawing strong, backdoor-less encyrption worldwide. But there doesn't seem to be any encryption-related legislation at the center of the current response, and, in any case, it's unclear how you might effectively outlaw strong encryption now, even if you wanted to.

wiredog: I sort of agree with Jerry Pournelle, who says that a declaration of war is needed to protect our civil liberties. They are restricted during wartime. But it is understood, and usually written into the legislation, that the laws end when the war does.

By the way, heard about the latest from Redmond? Using FP2002 to write web pages that disparage MS is now a violation of the license agreement.

Mike Godwin: wiredog, my friend Jerry (whose politics is pretty much different from mine in most respects, but with whom I agree on most civil liberties issues) is saying the sort of thing that I've seen many other commentators and lawmakers say in the last few days -- that we ought to be cautious before sacrificing civil liberties.

Think of what a change that marks from, say, the days after Pearl Harbor! Nowadays, everybody knows to raise the issue of civil liberties, and there's a stronger sense that civil liberties during wartime has to be a concern for every American.

Plus -- and this is important -- the conflict represented by last week's attack is in part a conflict about whether individual autonomy and freedom ought to be at the root of a culture. Many Islamic subcultures see the West as decadent because we allow individuals too much freedom and autonomy.

As to Microsoft -- well, I think Microsoft's lawyers have been drinking a little too much Starbuck's.

Baltimore, Md. (again): If I read the bill correctly, the request is to change the wiretapping authority to be changed so that a warrant would be issued against a person, not a phone number. I THINK I understand this to mean that what is requested is authority to conduct surveillance against all communications conducted by a "certified" suspect; but is NOT requesting indisrciminate surveillance of the general population.

Is that a correct reading?

Mike Godwin: Baltimore, we've had roving wiretaps under federal law for a while now.

Some of the statements Ashcroft made earlier in the week suggested that we didn't have that authority.

What seems to me to be the case, from what I've read, is not that there's a switchover from specified-number wiretaps to certified-suspect wiretaps, but instead the creation of wiretap orders of national scope (now you have to get them in ever federal district), plus the addition of roving wiretap authority to FISA (the Foreign Intelligence Surveillance Act), which hasn't had it before.

Lorton: Of all the millions of emails traded daily in the world on thousands of servers using thousands of ISPs, how can the US monitor alleged terrorists effectively?

I think our civil liberties will be curtailed way too much and it will not be an effective operation, technology-wise. These culprits allegedly used computers in county libraries in the US. How will those emails be monitored?

Mike Godwin: Lorton, I think your question underscores the fact that limits on government surveillance power often actually make the job of police investigations easier -- it's easier, and far more feasible, to search through a bucket of (more likely to be relevant) information than it is to search through a sea of it.

Richmond, Va.: Before this tragedy occurred there was a lot of concern over so-called Bio-metric cameras being used in Tampa Florida to Identify individuals at places like the boardwalk. There was even talk about putting these type of devices on the boardwalk at Virginia Beach. I can understand security devices at airports but everywhere in public spaces makes me nervous. How about you?

Mike Godwin: Richmond, I feel certain we're going to see face-recognition technology implemented at airports and points of entry, and may some other specific locations where the security needs are especially great.

I find the prospect of a more widespread implementation of cameras and face-recognition stuff a bit creepy, though. Having said that, I'll note that in the UK public surveillance cameras are increasingly commonplace. And my friend Ron Bailey has just done a piece about what he sees as the benefits of this sort of technology at the www.reason.com site. I disagree with him, but it's clear from the UK example that some large number of people are quite willing to live with routine surveillance in public spaces -- shopping malls and streetcorners as well as airports.

College Park, Md.: I am surprised no one has discussed or brought up the point that almost half of Americans polled last week by CNN showed that they support special ID cards for Arabs and Arab Americans. I am disgusted by this and it clearly shows that racism and xenophobia has not suddenly appeared after the terrible events of last week... they were firmly entrenched and awaited only a catalyst.

How would you deal with the public's apparent desire for security and at the same time have it mean the near absolute end for the civil liberties of large swaths of the population?

Mike Godwin: College Park, I think that over time most Americans will recognize that Arab-Americans are just as traumatized as -- and perhaps even more traumatized than -- the rest of us.

Their hearts are broken too.

I don't think our government will ultimately adopt any measure that renders Arab-Americans second-class citizens. We've learned from the great crime we committed against Japanese-Americans in World War II.

As for poll results -- I think this is a time for leadership, not for following the polls, especially when a lot of grief-stricken, enraged Americans are participating. I think in the long run the American character is so much stronger that those polls indicate.

Reston, Va.: "If encryption is outlawed, then only outlaws will encrypt!"

Now, where have I heard something like that before?

Mike Godwin: Reston, I think there are some parallels between the calls for encryption restrictions and the calls for gun prohibitions.

But there are some differences too. Regardless of where you fall on the issue of, say, handgun control, there's no question that encrypting a communication is inherently less dangerous to another human being than pointing a gun at him is.

Great Falls, Mont.: I certainly am willing to give up some constitutional freedoms in exchange for a country that is more secure. Given the number of terrorist out there who hate America enough to die for their cause, it seems that we may have no choice. Many people speak of violations of our constitutional rights. The constitution was written over 200 years ago and should, if necessary, be amended to meet the needs of today's society.

Mike Godwin: Great Falls, do you anything particular in mind that you want to give up? Are you sure that what you're willing to give up would make the country more secure?

Here's something we could give up that would probably help the police in some ways: We could give up our Fifth Amendment right not to be compelled to incriminate ourselves. We could even approve torture when used against suspected terrorists.

Terrible, of course, if we may make a mistake and compel self-incrimination or torture a suspect who turns out to be innocent.

But perhaps no price is too high to pay.

Arlington, Va.: You, and several other commentators, have mentioned that a return to WWII style internment camps is highly unlikely. But, my understanding of the terrorism bill presented yesterday (which is, admittedly, not very great because it's difficult to find commentary that goes beyond the wiretapping provisions) is that it would give the government the authority to deport or detain indefinitely any non-citizen without presenting evidence or seeking judicial review. Sounds like internment camps to me, if that's an accurate reading of the legislation.

Mike Godwin: Arlington, you're right that the current bill would give the government the right to detain people indefinitely. I think that's wrong, and I oppose that, as does every civil libertarian I know. I think most citizens would oppose it as well.

Woodbridge, Va.: Suicidal terrorists by nature have an abiding hate that enables such hideous acts. Is there any security measure even possible that can completely mitigate danger from those possessed of such hatred? What political means can assuage the hate coming this way, if any?

Mike Godwin: Woodbridge, I think the terrorists don't quite recognize the extent to which they have created a problem for themselves.

While it might be true that there is some political or diplomatic action we could take that would lessen the anti-American fervor in some countries, any effort to do so as a response to the WTC disaster runs the risk of looking like appeasement. We don't dare run that risk, because to do so is to invite more terrorism.

Portland, Ore.: Throughout US history there have been times when the government has restricted the rights of the people and the courts tend to uphold these actions. My question is how much freedom are we willing to give up (or take from the people) to ensure the so called American Way of life...which of course has freedom as one of its core beliefs? A great quote from the Anti-Federalist Papers to consider "Remember, when the people once part with power, they can seldom or never resume it again but by force. Many instances can be produced in which the people have voluntarily increased the powers of their rulers, but few, if any, in which rulers have willingly abridged their authority."

Mike Godwin: Portland, I think you're right (and the Anti-Federalist Papers are right) that powers given up to the government mostly don't come back without a fight.

But I'm heartened by the fact that the free-speech rights that have often been curtailed during wartime or times of national emergency have been fought for and restored, time and again, in the courts, although it often takes decades to win those rights back. I think our free-speech guarantees in this country are stronger now as they've ever been.

Invasions of privacy, though, seem to be a different story. The history of Fourth Amendment jurisprudence has been one of greater and greater law-enforcement power to gather information about us, with fewer protections. I think we see that trend continuing, potentially, with the DOJ legislative package being offered to us today.

Great Falls, Mont.: Thanks for responding. I don't have anything specific in mind, but trust our lawmakers will surely debate these issues and won't take extreme steps.

How can an innocent person incriminate himself?

Mike Godwin: Great Falls, innocent people incriminate themselves all the time -- sometimes just to make the interrogation stop, and sometimes because the very interrogation process tends to brainwash people into believing they are guilty. This has been pretty well documented.

HLB ~ Mt. Lebanon, Pa.: Do aliens in this country, both varieties, enjoy the full measure of protection under law that citizens do? If so, why? And by why, I mean as a matter of law that say they do or because 9 people in black silk robes say they do? My questions are predicated on the fact that once these people show up here, there seems to be almost no way to send them home -- a situation starkly contrary to the idea of national sovereignty. Thanks much.

Mike Godwin: HLB, aliens generally have far fewer rights than citizens in this country -- even resident aliens. Chief Justice Rehnquist has actually written about this in his book on civil liberties in wartime -- he says the rights of government to impose restrictions on aliens are pretty close to "plenary."

Still, aliens have some rights, including some due-process rights. Immigration law is not my area, so I can't be terribly specific here. But I'd like to think that one of the things that makes us a great nation is the generosity we so frequently show non-citizens. The motto above the Supreme Court entrance says "Equal Justice Under Law" -- and I think it shouldn't be taken to mean "Equal Justice Under Law Unless You're Not A Citizen."