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  From:
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Subject:
Our World Post-9/11

The e-mail exchange between Ron Walters and Sheldon Greenberg in its entirety.


Civil Liberties
As Americans, we put a high premium on preserving our civil liberties. In times of national crisis, are all bets off? Do national security interests make it necessary to infringe on personal rights?
FROM: Ron Walters

TO: Shelly Greenberg

Those are indeed some thoughts you express in your message below, big ones. I know we've tossed around many of those concerns before, but it is daunting--and a little depressing--to see them laid out so directly and for there to be so many of them. I'm going to respond to each, although in most instances the answer will probably be an academic way of saying "beats me". Before doing that, however, I want to raise an issue that will be in the background of just about everything I write. It is my concern about the implications of defining our actions as a "war". It's a term I've been using and no one seems to have come up with a more compelling alternative, but it's also a metaphor with dangerous implications. Among the most moving of the many eloquent statements made by our PhD, Woodrow Wilson, are ones (in a quotation I can't find) musing on what a great and terrible thing it is to lead the American people into war. His concern, if I recall correctly, was in part for what would happen to our most cherished values. As things turned out, his own administration cracked down quite harsly on dissent and presided over a great Red Scare at the war's end, as a result of which a fair number of alien radicals were deported. He justified his own fears.

Assuming some curtailment of freedom is necessary in wartime for the greater good, how can we set boundaries on those curtailments of freedom when the war is a self-declared one by the executive branch and one, we are warned, that may be very long, and, indeed, may not have an end?

A related reason for concern is that wars typically suppress a lot of dissent that really isn't a threat to the war effort and might even be healthy for it (another undeclared war, the Cold War had that effect). The attorney general pretty much tried to do that when he claimed that critics of administration policy aided the enemy. That--and the notion of being in a war more generally--reflects and produces a rigid kind of binary thinking: ally/enemy; good/evil; for us/against us. Logic often goes by the boards simply because criticism itself seems disloyal. Take the case of Japanese internment in WWII: what was the logic of rounding up Japanese-Americans on the west coast, where they comprised an extremely small fraction of the population, and not rounding them up in Hawaii, where they comprised about a third of the population? Only after the war can you ask questions like that.

What we need in the present situation is fresh thinking and open dialogue--what I guess we are supposed to be doing in this forum--and that's what war often forecloses. Now for my responses to your. . . .


FROM: Sheldon Greenberg

TO: Ron Walters

Ron, I share your concern about labeling "actions as war. We have fought -- or continue to fight -- a "war on poverty, "war on crime, and "war on illicit drugs. The public has become desensitized to war and what it really means. The generations since World War II, Korea, and Viet Nam see war simply in terms of social policy or quick action with relatively quick victories (Panama, Desert Storm). Within the context of social policy, the term "war has lost meaning. The "enemy (poverty, drugs, crime) is ill defined. The who, what, where, and why are not understood. This lack of understanding extends to those on the "front line of battle -- political leaders, teachers, police, social workers, and others. Within the context of military action, we have been blessed without "real war " an enemy and conflict on a grand scale. Panama and Desert Storm happened so fast and with so little pain or strain that the public perceived them as little more than military exercises about which to give a quick cheer and move on to other things. It is not my intent to trivialize these events, but few people had friends or family members who lost their lives in combat. Fewer had to make sacrifices to support the efforts and few people experienced fear as a result. How can we expect the public to grasp and cope with the demands associated with war when it has been dealt with cavalierly for decades? Can you imagine people today tightening their belts as they did in World War II, lining up at the recruiting office to enlist, protesting and forcing divergent opinion as they did during Viet Nam, or grasping large-scale casualties? I believe that to the average person in the United States "war is little more than a term listed under the letter "W in the handbook on political rhetoric.

Some thoughts... Our society embraces certain freedoms that go beyond those set forth in the Constitution -- freedom to travel to and from work without experiencing harm -- freedom to shop in a mall without being disrupted by outbursts of foul language - -- freedom to sleep in your bed or walk in your neighborhood without fear. The "freedom from " (harm, disruption, etc.) often demands that police infringe on people's "freedom to " (free speech, warrantless searches (airports), etc.) At what point is it right or necessary for authorities to infringe on the Constitutional freedoms of some people in order to ensure societal freedoms for others?


FROM: Ron Walters

TO: Shelly Greenberg

In some respects the war analogy allows us partially to side-step your question by defining the "others" as "others", not Americans. That's most obvious in the case of military tribunals, a matter I'll say more about in response to one of your later points. You're right, however, that however libertarian we might be, the great majority of us accept willingly some restraints on our actions and the actions of others. Some of the restraints are simply things we agree to as rules necessary for our health and safety, like stopping at red lights (bad example in Baltimore). The really tough cases are the ones you raise, such as curtailments of free speech and warrantless searches in time of war.

Again, the questions to ask, I think, are: 1) how essential are these curtailments to law enforcement?; and, 2) are they counter-productive--do we lose more than we gain? On point #1, you're better informed than I, but I am not persuaded that everything proposed is really necessary--how much evidence is likely to be generated by evesdropping on conversations between an attorney and an accused terrorist client, especially if the former is court-appointed and probably as ignorant as the rest of us about the terrorist organization of which the client was a part? On point #2, I think efforts to suppress dissent--back to my concern about the war analogy--are actually counter-productive at present. We need to be thinking about creative ways to address terrorism and weighing the costs and benefits of different approaches, not simply signing on to whatever the administration or congress proposes. We've lost the democratic process, messy as it is, if we do that. A final thought: we probably should consider how universal we think our rights and freedoms are, or ought to be. It can be something of a devil's choice. If we think of them as universal, we risk imagining that the rest of the world ought to be like America and is inferior or even the enemy if it isn't. If we don't think of them as extending to others, we open the possibility of having two standards of justice, an American one for Americans and a military one for those who aren't American, which brings us back to the military tribunals and an issue you raise below.


FROM: Sheldon Greenberg

TO: Ron Walters

Freedom is personal and people become self-centered when their freedom is challenged. As a result of the assaults of September 11, many people perceive their freedom to be in jeopardy, but not in the traditional sense. People are concerned more about their "freedom from than other people's "freedom to. They want some entity " politicians, the F.B.I., local police " to secure their freedom from harm, freedom from attack in the workplace and freedom from exposure to deadly disease when they open their mail. They want to go about their daily routine "free from the grip of fear. If someone else's "right or "freedom to free speech or warrantless search must be violated to secure these "freedoms from, so be it. They do not want to know the intricacies, processes, or legalities. They trust that others will tend to these things.

In time of crisis, the public accepts some infringement on people's rights in order to secure and sustain a greater good. Consider a fire in an apartment. Firefighters can enter the burning apartment without a warrant, remove people against their will and restrict their movement, search every room, and, if necessary, destroy private property without permission. They can do the same to neighboring apartments. A long list of rights is violated, but the action is almost always applauded. The public, including the residents of the apartment on fire, accepts that the rights and freedoms of some had to be infringed upon to secure the rights and freedoms of others. The challenge to leaders is to balance the actions taken to secure people's "freedoms from at the expense of others' "freedoms to.

Have we criticized profiling to the point that law enforcement personnel are hesitant to apply "appropriate profiling" in an effort to prevent crime?


FROM: Ron Walters

TO: Shelly Greenberg

This is a hard question for me. I've known African American men who were pulled over by the police for no apparent reason in totally demeaning ways. That's either profiling or simple racism; in either case, it is insulting and indefensible. There are, however, other every-day ways in which we accept the use of social statistics (which is what profiling claims to be) as a good thing. We use them to predict such things as which children are at risk for various things or when a child may have been abused. Our doctors are profiling us when telling us that we need to do (or quit doing) such-and-such because of age, gender, or weight. So, to turn your question around, when is it fair and in the public or individual interest to use statistical predictors and when isn't it? The answer probably depends on how good the predictors are and how compelling the public or individual interest might be. To put it back to you: how significant a law enforcement tool is profiling and in what situations does it work best?


FROM: Sheldon Greenberg

TO: Ron Walters

Without profiling, prevention and resolution of crime, prevention of terrorist acts, and securing public safety become evermore daunting. There is a need to change the dialogue from condemning all profiling to understanding the difference between appropriate profiling and inappropriate profiling. Appropriate profiling is valuable. Inappropriate profiling causes harm and must be eliminated. When profiling by police for the purpose of drug interdiction began, it was researched, funded, embraced, and lauded. Supported by the media, people pressed the police to do more to get illicit drugs off the street. As profiling proved successful, police were rewarded with public and media praise and seized assets that could be used to further enforcement efforts. Leaders within police agencies, political offices, and community organizations failed to place limits or keep a watchful eye. For a small percentage of police officers, appropriate profiling quickly became inappropriate profiling. The end justified their means as "noble-cause justice took hold. Where were their supervisors? Where were the community leaders? Where were the politicians? Had officials become so intoxicated by the dramatic increase in the amount of seized narcotics and other assets resulting from profiling that they lost sight of integrity, fairness, and professionalism? Have lessons been learned? Can law enforcement maintain integrity and appropriateness in profiling when applied to those who might commit terrorist acts?

In some jurisdictions, law enforcement officers have become so "gun shy (no pun intended) that they no longer profile when it is appropriate to do so. This has to be changed quickly so that local and state police can realize their potential and assume a greater role in terrorist interdiction. Local and state police officers are professionals who play an integral role in national security. They are on the front line. The majority should not be or perceive that they are restricted from profiling due to the inappropriate behavior of a few. Leaders need to do their job. Quality and timely data needs to be made available so that officer can profile effectively, fairly, and legally. Checks and balances need to be implemented to prevent inappropriate behavior. Appropriate profiling is needed.

How much information should be made public? Does the public "right to know" diminish during a time of national crisis? (The military no longer grants media free access to battle zones as it did during the Vietnam conflict. The military's concern is based on a belief that the media portrayed the military effort negatively and fanned the flames of public discontentment with the war effort.)


FROM: Ron Walters

TO: Shelly Greenberg

I don't think we have a "right" to know everything, including about the private lives of our leaders. For me, there are several simple criteria that I'd like to see spelled out, or made more explicit and adhered to more rigorously, maybe as journalistic standards: 1) will the information truly compromise national security (seeing images of dead soldiers--suppressed for a time in WWII-- doesn't compromise national security; images that help the enemy see where our forces are deployed does)?; 2) is the information important for Americans to have in their capacity as citizens and voters (the Johnson Administration, during the Vietnam years, clearly witheld such information or encouraged misinformation)?; 3) is the information accurate and reasonably comprehensive?; and, 4) within what kind of framework is the information put (to use another Vietnam analogy, the Tet offensive was put within the framework of an American military defeat, which wasn't necessarily correct or which should at least have been a matter for public discussion)? To some extent charges of "bias" in the media do a tremendous disservice--even though you can find it on both the left and the right. Such charges focus attention on the motives of people doing the reporting and interpreting of news and direct attention away from the matter of what we need to know to be responsible citizens.


FROM: Sheldon Greenberg

TO: Ron Walters

The public's "right to know and the notion of the public making an "informed decision are foder for lengthy discussion and debate. In time of crisis, information truly is power. In time of crisis, who determines the public's right to know and how much or little the public plays in making decisions. Consider the FBI agent who knows that releasing information on a raid may compromise an investigation. Consider the news reporter hustling to get a quick sound bite for the 6:00 p.m. news. (By the way, does a 30-second or one minute sound bite really inform the public or does it simply foster increased market share?) Consider the mother of a teen who believes the police stopped her son simply because he is of Middle Eastern ancestry. Consider the Army general who believes that new footage of a unit's action could jeopardize its plan to catch an intended target. The FBI agent, reporter, mother, and general are part of "the public. Which of these members of the public prevails? Which one should be prevail in time of crisis?

Has the public accepted the post-September 11 period as one of national crisis? Is the concept of national crisis and threat in the U.S. so remote that the public cannot grasp -- - and, therefore, cannot support -- that new and different interventions are needed?


FROM: Ron Walters

TO: Shelly Greenberg

It's hard for me to judge the national mood and I do think folks who say "September 11" changed everything are at least partly right. One of the distressing things about the American public, however, is that has a short attention span--and phrases like "life has to go on" serve to justify it. We may be moving into a period in which the public isn't particularly focused on serious questions 9/11 raised and that we ought to be debating (how best to fight terrorism? what is the right foreign policy to ensure peace and security?). The media tend to treat great events as the stories of individuals and we are seeing a lot of that-- human interest stories. In the meantime the administration is making--as any administration would--decisions with enormous consequences for us all and for other nations. It may make them well or badly, but it should be making them with the assistance or resistance of an informed public.


FROM: Sheldon Greenberg

TO: Ron Walters

People tend to associate crisis with large-scale loss and catastrophe or potential loss and potential catastrophe. There's fiscal crisis, educational crisis, weather crisis, health crisis. Now, there's a terrorism crisis. The loss is real. The threat or potential for further loss is real. As with any loss, people cope in their own way. There are people in fear. There are people in denial. There are people who are načve and those who are indifferent. There are people who cope well and those who do not. Regardless of how people perceive or react, it is clear that most understand that there is a crisis at hand and it needs to be addressed. The lack of a public hue and cry or attention to profound issues does not negate the seriousness with which people recognize and accept the current situation.

One of the expectations of local, state and national leaders is that they manage crises. People expect them to do so prudently and without causing undue fear. Many leaders live up to and surpass this expectation. Unfortunately, there are those who are opportunistic and prey upon the public's fears, exacerbating them at every turn. They do so to divert attention from other issues, gain votes, garner support for agency budgets, and more. They are crisis mongers. They are a crisis of another sort.

Would the public's concern about violation of civil liberties be as great if the alleged perpetrators did not look like us? What if the terrorists responsible for September 11 were Asian? African?


FROM: Ron Walters

TO: Shelly Greenberg

We have pretty good evidence of a double-standard in the case of the American Taliban, John Walker. It isn't clear what will happen to him as we write, and that there appears to be an effort do duck the whole question by emphasizing his value to us in cooperating by giving information. Clearly the proposed military tribunals would be for non- Americans, although Walker poses the question of whether or not that really would end up being the case. Maybe an even more interesting hypthetical case would go something like this. Suppose the person who sent the anthrax letters is an anti-government, anti-media American citizen (which seems probable to me). Let's further suppose that he is a member of a domestic anti-government organization--it could be on the left, the right, or just on the lunatic fringe. Let us further suppose that the FBI catches him because an informer penetrated the organization. The guilty person is an alleged terrorist and a conventional trial might well compromise the FBI's informant. Would we therefore want a military tribunal? I doubt it. What we might want--and here I am back to my theme about needing creative thinking, not stifling dissent--is serious consideration of the rules of evidence, which aren't the same in every kind of trial, witness the outcomes of the two O.J. Simpson cases. Might it be possible to redefine the rules of evidence in certain kinds of cases- -terrorism and espionage, for example--that would provide reasonable protection both for secret sources and for defendants' rights to a fair trial and to appeal?


FROM: Sheldon Greenberg

TO: Ron Walters

The public seems more concerned about civil liberties and fairness today than at any other time since the late 60's and early 70's. In part, this is due to the attention given to race-based profiling by police. Public, political and media focus on maintaining fairness and protecting civil liberties will not change because of the events of September 11. Within the justice system, local and state police have the most extensive contact with people and, therefore, the greatest opportunity to violate civil liberties. When considering the millions of contacts that occur between police and the public everyday, there are amazingly few incidents in which officers inappropriately violate civil liberties. The collective consciousness of the police profession has been raised regarding profiling and the pitfalls of inappropriately targeting groups of people. Had it not been for public outrage prior to September 11, the potential for inappropriate profiling by police in response to the current crisis may have been greater, regardless of the appearance of the targeted group.

Public attention to protecting civil liberties needs to go beyond the current focus on the police to the judicial system. Money talks and, too often, the prosecutorial and judicial systems listen. This frustrates police officers as much as anyone. Will terrorist dollars be spent to buy lawyers whose large staffs and courtroom antics gain "get of jail cards for perpetrators who clearly warrant long-term incarceration? Will lengthy trials, appeals, and legal maneuvers be bought? Given what we know about the advantages of wealth in the courts, military tribunals are an appealing alternative to the civil system.

Almost all responses to violations of civil liberties in the United States occur after a wrongful act has been perpetrated? Is it reasonable to expect that, when faced with a new situation or new group associated with wrongful acts (the association of Arab nationalities with September 11), violation of civil liberties can be prevented?


FROM: Ron Walters

TO: Shelly Greenberg

I hope so, but it's hard not to think of enemies as "others" and it's easiest to do that when you can stereotype the enemy so starkly as an other, in this case as Arabs and/or Islamic extremists (not all of whom are Arab). An exceptional case helps prove the rule. One of the scary things about the Cold War was that the enemy sometimes looked and talked like us--it might be the person next door. That, I think, accounts for some of the claustrophobic feeling of the Cold War era. Even in WWII propaganda you can see that. A lot of the US anti-fascist, European-front propoganda demonized the leaders, Hitler and Mussolini, not the German or Italian people. A lot of the anti-Japanese propoganda demonized the Japanese people. It's much to hate when the enemy isn't like you. On that score, I am once again frustrated by the way we think about things, which is primarily in terms of individuals--whether they are victims or enemies--rather than about causes and solutions. In general, I am not especially a media-basher, but thanks to radio, film, and television, it is so ingrained in us to think of everything as stories with heroes, victims, and villains that it is hard for the public to engage in serious discussions of foreign policy, domestic rights and responsibilities, and how best to combat terrorism. It's a lot more natural to bash the enemy, praise the hero, and sympathize with the victim.


FROM: Sheldon Greenberg

TO: Ron Walters

Whether condemning individuals or an entire nation or people, the public needs to put a face on an enemy. Right or wrong, it gives perspective and allows some degree of control over the situation. Victims of heinous crimes often need to see the face of the suspect to bring closure to their ordeal.

Beyond the lunchroom or weekend get together, the vast majority of people will not engage in serious discussion about civil liberties, foreign policy, domestic rights, or diminishing global terrorism. They will talk superficially about the enemy. They will have created the picture of their enemy based, in great part, on the media. And the media's portrayal may be more caricature than real. As a result, at this point in history, people from the Middle East are at risk of being profiled, not just by police but by businesses, vendors, children, and others. People who in any way resemble people from Afghanistan shown on the nightly news -- Greeks, Italians, Indians, others " may be profiled as they travel, purchase, recreate, etc.

The police are being monitored. They've been made aware of inappropriate profiling. The police are less likely to arbitrarily profile or violate the civil liberties of those of Middle East origin. It is others in society that need to be educated, watched, and called to task.

The police are being pressured by many to take aggressive action to prevent terrorist acts. They are being pressured by others to avoid heavy-handedness, violations of civil liberties, and profiling of people of Middle Eastern background. Who prevails?


FROM: Ron Walters

TO: Shelly Greenberg

Beats me. Among the things that would be very helpful for leaders in law enforcement to do--and they may be doing them already--are to coordinate their efforts (we've been hearing horror stories about that) and to articulate clearly what they feel they need to do the job and why. I would be more comfortable with military tribunals, for example, if persuaded that other alternatives had been open for discussion and that there was no preferable way to go.


FROM: Sheldon Greenberg

TO: Ron Walters

The public knows very little about its police. There is no national oversight of policing within the United States. It is among the most fragmented professions in the nation. There is no set of rules that police agencies must follow nor is there a national system for certifying or licensing police officers. There is no national standard for police training. It is uncertain how many police departments exist in the nation or how many police officers they employ. Most police agencies work in small townships and have fewer than ten officers. This makes it difficult to discuss "the police as a single entity or set a standard for all police officers to follow. The public readily accepts simple statistical reports from its police agencies as a measure of effectiveness and does little to challenge these grossly inadequate reports. The police will go as far as the public allows -- no more -- no less. If the public allows police officers to abuse authority, they will. If the public expects excellence and fairness, police officers will meet the expectation. The public is in control. The only variables are the public's willingness to challenge the police toward increased excellence and the time required to affect the change.

How far should intelligence gathering and intelligence sharing go in time of national crisis? What happens to intelligence files when the immediate threat subsides?


FROM: Ron Walters

TO: Shelly Greenberg

The first question seems easier to me than then second. There obviously has to be a lot of gathering of intellligence data in order to penetrate secret groups and those data have to be shared from the local level to the international one--of course, increasing the chance of leaks along the way. It's hard for me to deal with the second question because there are two quite different models or scenarios we can imagine. The first is that data stay in the system a long time, eventually surface, and, although containing false information, prove damaging to an individual's life. My guess is that would be the case if every FBI surveillance file from the 1960s became public knowledge. The second is that data are destroyed after the end of a crisis that might prove helpful in obtaining a conviction--or overturning one--twenty years down the road. We are seeing that happening in a number of cases in recent years, especially ones where there is DNA evidence. I, especially as an historian, would always err on the side of keeping data while maintaining safeguards for individual rights.


FROM: Sheldon Greenberg

TO: Ron Walters

The issue is not how far intelligence gathering and information sharing should go. It should just go! Intelligence gathering within the borders of the United States is an abomination. The lack of quality intelligence information is an embarrassment to many law enforcement leaders. Since the information paranoia of the 1950's, 1960's and 1970's, federal, state, and local law enforcement agencies have lost much of their intelligence gathering capability. Covert operatives have been replaced with computer operators and crime analysts. Today, most police agencies would have difficulty providing information on things other than a handful of drug gangs, skinhead organizations, and a few criminally-oriented motorcycle groups.

Intelligence sharing is worse than intelligence gathering. A few organizations, such as the National Drug Intelligence Center and the High Intensity Drug Traffic Area network, provide information to many jurisdictions, but most agencies do not share what they know. In the week following September 11, a big city mayor criticized the FBI before Congress for not sharing intelligence information with local police. First, he assumed the FBI had it to share. Second, he assumed that the FBI could trust local police officers with the information. As a point of note, police officers lack security clearance and, therefore, cannot be given the type of information the mayor claimed should have been shared. His rhetoric and grand standing, and that of a few others, did little to help the nation's law enforcement agencies or the prevention of terrorism.

There is a need to develop nationally recognized guidelines and standards on intelligence gathering that can be embraced by federal, state, and local law enforcement agencies. The standards should address how information is collected and compiled, how it can be shared efficiently and effectively, and how long it should be maintained. The guidelines should address security clearances, protection of civil liberties, consequences for misuse of intelligence information, and more. One of the most important outcomes of September 11 is recognition that quality intelligence gathering and sharing are desperately needed.

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