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tv   Key Capitol Hill Hearings  CSPAN  December 31, 2013 3:30am-5:31am EST

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so you're going have just a very handful of people controlling the vast majority of money that is spent on political elections. the supreme court will say go to your congressman. there are attempt being made not scefltly to change a federal election loss in order to want to at least provide more public disclosure who is behind the funding of campaign. they haven't been to be get that through congress. so again, -- it's not 1900% clear. disclosure laws would be upheld. >> that's right. exactly. the court did it in citizens
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united on eight justices who did endorse the disclosure current requirements. only justice thomas dissented in that decision. i know it doesn't look very hopeful i think that congress is the way they're on a deeing regulation trend until the supreme court. >> what can change normal terms of obama or anyone else couldn't even get through nominations for regular courts though supreme court. >> the presidential elections do matter. >> hi, i'm jim. my question deals with roberts vote on the health care issue. do you think he was motivated by the fear that the court began to look like a political entity rather than a jurisprudence
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entity? >> you're welcome to speak to this too. it's probably one of the most common questions we get, isn't it? >> yeah. do i think so? no. i take him at the word. i take him as sincerely trying to grapple with the issues presented in that case. i think he was first inclined to vote with the four conservatives and strike the law down as violating the commerce clause. when they came back and staid means entire law goes, not just the mandate, and not just the provisions of the law that are economically tied to the mandate guaranteed issue and community rating. but we're going take down the entire statute. i think -- my sub decision. i haven't been able to do any
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reporting on it. my position was it was too much for him. he's more of a minimalist than the folks to his right. and more of an institutionalist. i feel like he must have said to himself there got to be another way of the mess. the tax question had been presented and argued both by the solicitor general and others who -- in the case and that was there for him to rely on. i don't think it was a, you know, cynical or strategic move. i think it was a rather desperate move to extract something from what would been something much too far for him. i agree with that whole heartedly. i think the media really did focus on the commerce clause issue in the case. to the exclusion of the tax
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issue almost. it was always in the case and when the case got to the supreme court, the solicitor general really beefed up the argument. and there is this doctrine that if the court can find a way to interpret a law in a constitutional fashion versus an un-- striking it down that it should take the pac that uphold it. i think he found that pac power was the right. >>? for people interested in the health care case. i'll plug a book thatcom out this week. published by oxford university press called "health care case" it consistencies of 20 essays and different aspects of it. i wrote one of them on my what my view of the chief justice. it's a nice little book. >> it's a as fascinating case will there was so much going on
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outside the court too at the time. you talk about special interests so many organizations. so many law professors and others who wanted the court to go one way or the other were writing constantly. there are speeches on the floor of congress about it. i can't remember a time when there was a strong effort to get justices recused from the case as we saw with the effort against justices kagan and thomas. so it's really a fascinating case. it's worth reading what linda just suggested. and my chapter in the book. [laughter] >> sure. >> hi jack mac ken city. >> i can't see you with the lights. yes, you are jack mackenzie. >> it's nice to have you come this way. i would like both of you, if you could, to comment in some
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substance about what justice o'connor has said. i'll say one thing about it. i would love to hear anything you would have to say about it. her participation in the bush against gore was not a slip of find. during the oral argument she ridiculed the -- she was really heavily engaged in the case. what is your view of -- what do you think about now that she's made this comment? >> well, i think she -- first of all, it's not unusual for some justice to have regrets or second thoughts about decisions they have made. i think with justice o'connor, she has seen a good part of her legacy endangered by the fallout
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of bush v gore and the more conservative justices that have seated her on the bench. i don't know that i can say anything more. she didn't really elaborate a lot. she said maybe we shouldn't take the case. what can you do with with the case? so -- >> it wasn't a full recantation. it wasn't, you know, after justice luis pol who cast a deciding vote in 1987 which projected the gay rights claim, in that case, and after he left the bench he said he felt he had voted the wrong way.
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>> she didn't say that? >> it's hard, you know, i don't want to attribute to her a kind of a global regret that she doesn't steam feel. >> sir? >> my name is tom. this is a question out of shared ignorance. i left law school about 50 years ago. i guess i can reveal the law school by saying another first-year student that year was justice scalia. i'm curious about the history -- you're talking about the roberts court. and roberts the is newest justice when he became the supreme court chief just is what the history of having the newest justice be the chief justice when in a academic university head of the history of the english department of someone with senatety.
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the head of the committees have senatety that is how they got head. the implication being there longer. therefore no wiser. when you talk about the roberts court and yet he was -- he became a supreme court justice -- what does that say if it's the roberts court. b. with what is the history we oob i'm sure, he's not the first chief justice who arrived in court as -- >> there have been a few just ises promoted. william was one of them. typically they have been just picked out of a hat and all of a sudden it's chief justice. it's interesting it's a pattern that george washington established by naming john jay as chief justice --
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first chief justice of the united states. the constitution article iii of the constitution actually doesn't say that. it says there shall be one supreme court. and article iii of the judicial article doesn't even mention the chief justice. it doesn't ascribe any functions to the chief justice. we only learn that there is a post chief justice because elsewhere the constitution it says that the chief justice preside over the trial of the presidential impeachment. so, you know, it scrolled been otherwise. there was six justices on the court. but, you know, on what it is. we kind of from the very beginning got elected to that. and you can do it. and, you know, on the federal court of appeal. the chief just judge in fact is
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the senior among those who have not yet reached the age of 55. that person becomes chief judge for seven years, i guess it is. yeah. >> what you think? >> suggest that the office of the role is not as important and why could we not develop a system where the chief justice is in fact the senior justice and fellow with the most experience? >> there would be nothing unconstitutional about that. if you're a -- originalist. there would be -- well if you're an originalist who goes by the intent of the framers. those who frame the constitution seem to assume that somebody would be nominated and confirmed to a position of chief justice and hold that position for life. that's the original understanding. it's an interesting question. >> i agree. i couldn't add to that. but whether it means that it
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really is the roberts court or the renner renne qis court. i think it's part just tradition we call it that. i will say that during one of the interviews i had there was a justice who said he didn't understand why supreme courts call after the chief justice's names. he said why should chief justice be blamed for what that court did? and suggested instead that the court be named after the president who named the last justice to the supreme court. which would make this court the obama court. which i think could woman as -- would become as a big surprise to president obama. [laughter] >> okay time for one last question. >> i share your thoughts, please, on the testimony of the roberts case during the conformation proceedings and specifically whether you feel he was perfectly candid?
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>> whether he was candid during the conformation hearing? >> i think he -- yes. i think he knew what he wanted to be when he got on the supreme court.
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if you look at the first roberts term, 2005/2006 term. a lot of people came away from the term saying he voted in a
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minimalist way. he was -- who excoriated him for, you know, foe -- faux judicialist -- it was in a short time we saw different john roberts emerging. and we saw a different dynamic on the court. i think in response to what was going on, you know, behind the -- well, but also in the areas that he had very -- the second term, 2006 -- '07 term they took up the seattle louisville school district case. >> very did different term. >> very different. very devicive and many 5-4 rulings.
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they were issues i think he had rather firm views on. so they're not always consistent. they approach the law in different ways and they have different views.this is about a.
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>> thank you. congratulations. ..
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to begin with you would read just one page from the book, page four and i will preview this and let thomas explained that this is actually not thomas is writing. it's somebody else's, just as holmes and i think it helps us capture very well the issues that he was struggling with and what's so great about this look so i will give you my copy. >> thank you, thank you. this was some -- from whom' dissenting opinion in the abrams v. united states. this is the first case in which homes defense the importance of free speech and thus is a real
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turning point in our history of the first amendment. it's an incredibly powerful dissent especially the last paragraph in which holmes tries to explain in a philosophical way why it's important that we have free speech and what's interesting about the last paragraph is that it against and a rather strange, almost in congruous way, as those holmes is making the case against free speech and not for it. persecution for the expression of opinions seems to me perfectly logical. if you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. to allow opposition by speech seems to indicate that you think the speech impotent as when a man says -- the circle or you do not care
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wholeheartedly for the results or that you doubt either your power or your premises. at this point holmes shifts direction almost very suddenly and very brilliantly in my mind. but when men have realized that time has upset many fighting faiths they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free. and ideas, that the best test of truth is the power to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes safely can be carried out. bad at any rate is the theory of our constitution. it is an experiment as all life is an experiment. every every year it's not everyday we have to wager our salvation upon some prophecy based upon imperfect knowledge. while that experiment is part of our system i think that we should be eternally vigilant against attempts to check the
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expression of opinions that we loathe and believe to be fraught with death unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law have an immediate check is required to save a company. >> thank you. we will talk a little bit about the first amendment that of course that parrot wrath is more then the first amendment. the way of thinking about our democracy. before we get to that i would love to hear a little bit about yourself. you are former journalist so i understand why you would the interest in the first amendment as a journalist but what street to this topic? >> it's not just self-interest that i would want to write about the first amendment. as i said this dissent i holmes represents a turning point in our nation's understanding of the first amendment. it marks a turning point in holmes's life as a justice and a thinker but it marks the beginning of a larger
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transformation in the way we think about free speech. prior to 1919, free speech in this country was pretty much an empty slogan. it wasn't until filled from us. and so the history of the protection of free speech in this country begins in 1919. it begins with a series of cases dealing with the espionage and sedition acts that were passed during world war i under which many socialists and pacifists were convicted. the court hears a number of cases in 1919 and then in those early cases the court upholds the convictions of people who were prosecuted and holmes himself writes the opinions upholding these convictions. and then he turns around eight months later in writes this dissent. when the first amendment professors teach the first amendment they begin with these cases and they begin with holmes
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initially upholding these convictions and then suddenly eight months later the writing is a very powerful dissent. so when i was a student this is how i learned the first amendment and it's how i teach my students but there has always been this nagging question for me, why is it different for holmes eight months later? we tend to gloss over it as though oh well the facts of the cases were different or an easy explanation. that didn't sit well with me and i thought there must be something more to it. i was hoping to write a story. i wanted to write it look that was more than just a kind of academic analysis of law that had you know some richness to it. i started thinking about how important it was to the history of free speech and when i began
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to dig into it became clear to me that it was an incredibly moving and effective story that involves more than abstract ideas and involves human relationships so that is how i got thrown into it. >> tell us a little bit about the process of research and writing. how did you actually enter this question. was the sources you thought were particularly revealing some ou talk to the new holmes? there might be a few or were there questions you wanted to answer? how did you engage the topping to get into this wonderful book? >> i started doing preliminary research reading all the biographies of holmes and reading his published letters. he was a very prolific correspondent and although he instructed most of the people he corresponded with to burn his letters thankfully most of them did not so most of them
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survived. so i started reading the letters in the published ones became published once all of which are at harvard. i started making a timeline of holmes's life during this period of time from roughly the middle of 1919 until sometime in 1920 and i made it day by day timeline of everything going on in his life. the case is court was decided the letters he was writing and the books he read. he kept a list of every vote he read in his life from his 30s on any red etan. just the titles of the books that he read and he would read in the summer sometimes 40, 50 or 60 bucks during his summer recess. i started reading some of the books that he read trying to find little clues and scoured
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newspapers to figure out what was going on. i looked into what was going on in the lives of the people he was friends with so i created this timeline. we know it's a two-year timeline and i just kept looking at it. and thinking about what's going on in his life and how all of these pieces fit together. for me, that's when i really began to understand why he changed his mind. there is in some smoking gun. there is not one moment you can point to and say are hot that's why he changed and when he changed it. it's a kind of gradual process but in order to really understand that process you have to see it in order in chronological order and i think that's what i had been missing prior to this vote. there were some scholars that delved into this a little bit and pointing out that some pieces of the story but at least to my mind it was never clear how it knits together. so when i saw that in the timeline, for me that was where
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the real sort of revelation came >> that's wonderful. before you and i were talking about historians and as a historian i will tell you it's a wonderful book. what's interesting is what you just described it on thick most historians would have approached it that way so that's why it's wonderful we have lots of people doing history. this might be pushing it a little bit of the kind of approach it as a journalist. >> right, i did and as a storyteller really. the advice that i tried to get myself was the advice that novelists usually get which is to show and don't tell. i didn't want to tell the reader why holmes changed his mind. i wanted to show holmes changing his mind. there were a few times in the narrative where i is the narrator interject commentary or analysis. there are some times when i have to but for the most part i try to let the events speak for themselves and i hope that they
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do, and i hope in the reader finishes, the reader understands everything that i would have told the reader that i sat down and said here is why holmes changed his mind, bullet .1, bullet point to in bullet .3. that is what academics are used to but you know a i don't think that doing it that way gives you as rich a sense of what's going on. i think you missed something and it's just not as fun for the writer or the reader to do it that way. >> in our second talk about the people that influence and versus talk about holmes a little bit. as you acknowledge for a jurist holmes has gotten a fair amount of attention here there are several books about them but he still a fascinating purpose. give us a sense from your perspective as someone who immersed himself in this important person. how would you describe the flaws and strengths would you describe as him having?
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>> first a couple of basic biographical details. holmes is born in 41 so he fights in the civil war and the union side of course. he comes from an old austin family. his father is more famous than the sun were longtime well-known as a writer and medical professor and coined the term boston brahmin. holmes goes to harvard law school and fights in the civil war and is wounded three times, twice nearly dies. he throws himself into law after the war and becomes a judge in massachusetts and is appointed to the supreme court. my book takes place when he is at the latter stage of his career. he is around 77 years old when the book starts and he has an odd reputation at this time. he's not the looming figure that
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he has for us today. he is generally regarded now as the greatest judge in american history and we could quibble about that but you know you can say that and back it up reasonably. when the book starts that's not the case. he was a very philosophical cerebral person. a lot of people were sort of skeptical of the way he approached the law. he seemed to cerebral and too smart for his own good. one critic described him as a literary fellow. he cared too much about the way he phrased things and not a soul is as -- solid he should be as sort of obscure in the way he writes but to a growing group of young progressives and intellectuals he's a really inspiring romantic figure because he does have this philosophical poetic quality to him. he is given these very moving
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speeches about having fought in the war and he has coined all of these terrific phrases and his opinions are so much livelier and more interesting to read than any of the other justices on the supreme court. and so, for the young men in the book that influence him he is the sort of philosopher poet. he is a breath of fresh air in a musty world of government and law. so i think that's his real strength is that he sort of breaks out of the law. he is more than just a judge. he is really the only judge in american history is that as a folk hero and i think his great contribution is partly his opinions but more so just the persona that he created so i think that is the real strength. a weakness is that he didn't
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always think through his ideas as fully as he might have. he becomes a little sloppy in the later parts of his career. he just relies upon things that he said earlier and his life becomes in a way almost a closed loop. so when you read things that holmes writes sometimes they don't always add up. it's not always internally coherent or consistent. that being said i think that's one of the fun things about holmes is that there are all these contradictions and tensions in a very rich complex character which if you want a character in a book, that's what you want, in a contrast to fellow justice louis brandeis who writes in the eloquent -- of free speech.
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it's pretty clear for brandeis why he believes in free speech and therefore it's less interesting because i think that he doesn't give us a way to explore our own mixed feelings about the issues. >> lets talk about the people that influence him. as you mentioned there were a lot of young people who look up to him and also try to influence him. there are so many i don't think you can cover them all in the next 10 or 15 minutes but i will allow you to pick a couple that you think are particularly interesting in relative. >> mostly these are young men ,-com,-com ma intellectuals, lawyers, academics, mostly regressive if not radical and quite a few are jewish which is interesting because holmes comes from this old boston family and they are young. so what one of the most influential is a man named harold lietzke.
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most people don't remember although some may of heard of him he at the time was 24 years old. he isn't struck her at harvard, and incredibly liberal just to the right of marks and he later goes on to become a leader of the labour party during wolf or two. holmes views him almost as the a son. holmes had no children and the two of them just hit it off, even though they were so diametrically opposed in so many ways in terms of age and religion and political beliefs. holmes admired black ski. he's an incredible brain young man with his irrepressible personality and so black ski has an incredible influence on holmes. felix frankfurter is another individual. this time he's a young law professor and he later sits on the supreme court in holmes' seat.
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he has an important influence on holmes. the editors in public magazine which at that time was new and founded in 1914 so was the new republic, not the old new republic that we know now. they were close to holmes and holmes didn't generally read the newspapers but he read the new republic areas these men and more gathered and congregated around the house in washington d.c. and did not circle. they called at the house of truth. they called it that the causes served as kind of a literary salon where these young thinkers would gather and talk about current events of that day but also larger questions of philosophy. holmes would stop in after a hearing at the court and have a drink or play solitaire or cards with the men and these men ,-com,-com ma they really were shipped to holmes.
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in fact if his he gave them his attention was remarkable. for him what he got out of that was they were starting to give him the recognition he felt he deserved and helps him recapture the excitement of his youth. when he was younger he had been a part of the metaphysical club with william james and charles sanders peirce and all these young thinkers in boston and this is sort of a way for him to recapture that at a later stage in his life. >> i am terrible at quotes but i'm sure you'll remember one of his famous quotes was the path of law has not been -- >> the life of the law has not been logic, it's been experienced. >> the life of the law has been logic, it's been experienced. it's influencing how they are interacting and you talk about
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the summer of 1919 in particular and what's going on and how it shaped it. >> the summer of 1919 the beginning of the first red scare there has been a lot of suppression of speech during the war. new early 2000 diamonds were brought on the espionage and sedition acts against people who criticize the war and a lot of these are mainstream people. eugene debs for leader of the socialist party received 6% of the popular note when he ran for president 1912. 6% of the popular vote for a third-party candidate is a lot. these are not french people. you could be sent to jail for 10 years for being critical of the war so he had just come out of attics aryans. and now we enter this period of hysteria. the russian revolution has taken place. commonism is spreading and
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there's a fear that it's going to spread in the united states, so all of this sort of persecution of german sympathizers and pacifists is now transferred to anyone who might have any kind of communistic sympathies. what is really interesting about this is that two of holmes' friends, two of his closest friends get caught up in this witchhunt. they are radical views and one of the theses of the book is that it's the experience of watching his own friends come under attack for their views that helps to leave homes to this conversion. these abstract ideas are free speech become for him very real and personal and concrete. so this famous line from holmes the life of the law logic has
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not been experienced he wrote that years before but in a way i think his story is an illustration of that. he starts off in that passage i read talking about the logic of persecution. he doesn't decide it's not logical. he just decides that as a result of experience we have learned better, you now and we have realized that time has upset many timing plates. why has holmes realized it? because of his experience watching everything that's going on in the country and in particular how it becomes personal for him. >> we queued up a lot of questions. i want to take a couple of minutes to talk about present-day implications for just a couple of questions. what about the operations of the supreme court. one of the things i love about the book is to capture how they interacted and one of the things i found fascinating that in fact the supreme court justices didn't even have offices. they worked from home.
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so there were lots of things that are different of them the way the supreme court operates today. do you want to highlight a couple that are particularly interested? >> that was one of the fun aspects of working on the book was just seeing how different things were. they did not have offices. the supreme court did not have a building. that was constructed in the 30s. they met in the old senate chamber in the capital and they had a conference room downstairs that was just down the hall from the senate barbershop, the sort of musty cigars smoke filled room where they would meet to discuss cases. they did all the work at home. they didn't have four law clerks like they do now. they each had a secretary but they didn't even hire a secretary in the secretary, usually a young law graduate doing relatively menial tasks. they did in a right to the opinions. the justices wrote their opinions.
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the opinions were much shorter which at is nice. you can read holmes' and five or 10 minutes and comprehended as opposed to the 200 page opinions that are written now. one of the other things that was interesting was just how much more casual the action was between the justices and the other people. i guess another way of letting this is how willing the justices seemed to be to talk with friends and acquaintances about the issues that were before them in holmes's letters were told was discussions about the cases before the court. i don't think he ever gives anything away ahead of the decision but he's always talking about decisions and personalities on the court and people are engaging him with this discussion. there's a scene in the book where in the summer of 1919 herald latski arranges a meeting between homes and a first young
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amendment scholar chaffee who has written an article criticizing the courts decisions on on free speech issue. harold latski gets the two together for tea during the summer to talk about free speech and to try to change the holmes' mine. this makes antonin scalia going duck hunting with dick cheney painless, to actually set up a meeting to try to change the mind of a supreme court justice outside of the formal argument process is really quite striking. >> the last question before we turn it over to the audience as the formal journalist who thinks about the first amendment all the time i have to ask about your thoughts in the connection between these issues and things we struggle with today, internet privacy and the debates over the nsa, counterterrorism and the debates over things like wikileaks. there are so many issues and in
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two minutes give me your thoughts about some aspects of these. what would homes think of these? what you have learned. the issues are very specific. the larger question is very similar. people are very scared and concerned. they are giving government a relatively free hand to do whatever it wants and then government sometimes oversteps and then there is concern about the implications of that. i don't think you can draw lessons about specific issues today but i think there to
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broader questions you could draw. one, when we look back at this time period we realize how easy it is to overstate the dangers that we face and how frequently we do that. it's very common for the court to say about an earlier time while they were hysterical and panicky but now the threat is real. even though they might have been overreactive and our reaction is reasonable. that's one thing that is help a lot and the other thing is just to realize that when these issues become personal, when we are not talking about people on the fringes of society but when people you know are affected or people you can imagine being affected then i think free speech becomes much more salient for all of us. >> we have all kinds of questions. robin has the mic and she's going to walk around.
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please give your name and then ask your question. >> rick sachs. thank you so much for that talk, very intellectual and very smart you talk, i like that. so my question then would he part of what you are talking about oliver wendell holmes was sort of mentally above it all in a sense of like that. is that a major area to freedom of speech across the world like you know this dictator, we don't like this that a good thing because they seem to be above it all and we can bring it down to our level by physical force as we can talk like oliver wendell holmes. we can ring it down to our level by physical force so was that a great narrative to freedom of speech back then and now? >> the detachment and the difficulty breaking through to people. i suppose it could be. on the one hand it seems like your question gets at, should we
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be engaged in more aggressive diplomacy is supposed to force as a country clacks on the other hand, the question might be taken to ask you now is what it takes to advance free speech or for free speech to become personal to people? to the extent that that is what you're asking i think that is kind of the case. i think that's the case with lots of -- lots of legal issues. the justices of the supreme court are people i suppose but they are relatively removed from the concerns of most of us and i think that any time they can understand the sort of her small consequences of legal questions you know their decisions are going to be more formed and hopefully more accurate. so yeah i do think that kind of detachment or having your head in the clouds is certainly a
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barrier to a deeper understanding of free speech. >> you mentioned in the book and you mentioned today in the book that thomas healy served three times in the civil war and you mentioned frequently how his experience affected the way he looked at the world and the paragraph that you read to us is a fairly harsh view of the world it's things that we are going to fight a lot but his position is that's part of the democracy. we have to scream at each other and it's better to scream at each other because of better result will come out. >> absolutely. >> that's hard to accept. >> not only is it okay to scream at one another but it's okay to kill one another at the other fellow disagrees. he ultimately realizes if we are going to have any kind of confidence in the decisions we take we have to hear all viewpoints. that's the only way in which we can feel assured going forward
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in our decisions but yes it starts off with this harsh view of the world that's informed by his experience. fighting his fellow countrymen. what is that the disagreeing and killing the other fellow when he disagrees. >> holmes was about 78 when he wrote that opinion. i wonder if you would comment. do you think there is anything to factor in on the basis of advanced age? 78 in 1918 is two days 90 and i wonder if you would comment about this? i think it's a little bit different from time on the court for time as a judge and so on. >> while i don't think if what you are asking is whether holmes was becoming soft in the head or anything like that, holmes is
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very sharp at this point and he continues to be sharp for a number of years on the court. if what you are asking is whether sort of approaching mortality makes holmes more sensitive to his legacy or his personal relationships, i think that's certainly possible. i think that these young friends certainly gave him a new lease on life and he was certainly very susceptible to their influence in a way that he might not have been at an earlier point in his life. he later reminisced about this. making his life as being the happiest or the stretch of five or 10 years when is going to the house of truth is aiming one of the happiest periods of his life does that have something to do with his age? i suppose. maybe at this point he is no
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longer busy trying to get somewhere or accomplish something. maybe he is more in the moment and that's a good possibility. >> my name is eric gross and i want to thank you both for this presentation. to what extent was holmes and/or his contemporaries and predecessors on the court influence by the technical framers of the constitution? >> a very good question. in general holmes was not what one would call today and originalist. holmes could be in an involving constitution and the people who wrote the constitution could not have imagined that being that they had brought forth and so i don't think in general he was driven by a kind of obsession
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with what the founding generation would have thought. remember too that holmes is not as far away from the generation as we are being born in 1841 and you know potentially having known members of the founding generation or met members of the founding generation, they might then less of a sense of oh there's this distant past that we have to get in touch with. holmes might've thought he was very well in touch with that past because it wasn't too far past. that said, there is an aspect of this decision in which he does rely a little bit on early developments in our history. when holmes writes that this is the theory of our constitution, the idea that that test of truth is the ability to get accepted in the competition of the market. he has to contend with the fact
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that in 1798 the country passed the sedition act of 1798 under which people were prosecuted for criticizing the government. what holmes does in this opinion was this opinion was the refudiated at jefferson when he took office and by congress when congress repaid the fines have been levied on the sedition act of 1798. he does at least in that way rely on some earlier history to support his assertion that it's the theory of our constitution that we should let ideas find out the competition of the market. >> i think you mentioned briefly mrs. holmes had an interesting view on rights in general and on the role of the judiciary in protecting individual rights. you mentioned it briefly but
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it's just so important. >> it's one of the things that makes this decision so surprising. holmes is one of the early advocates of judicial restraint. the idea that judges should not stand in the way of what the majority wants to do. they shouldn't use individual rights as the racist to strike down what the elected officials in the white house and the state legislatures and the congress had decided. there is this line that he liked to repeat that said my fellow countrymen, i will help them. it's my job. he didn't think it was the role of the courts to stand in the way of with the majority wanted to do. that's one of the reasons he was a hero to young progresses. in the early 20th century constitutional rights were often used to strike down progressive legislation, progressive labor laws in particular.
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holmes had dissented from those decisions not because he supported progressive labor registration, he didn't care but does the thought that courts had no business tracking down with the majority wanted to do. that's the perspective that it starts with and why it's so surprising that he then turns around in this context and says well now we should strike down with the majority did. the majority struck down the alien sedition act and the rossa kidding judge thought as a court we should step in. this is the beginning of what becomes too known as the double standard constitutional law where courts scrutinized very closely regulations of private activity, speech, reproductive rights and that sort of thing. but don't scrutinize closely economic legislation. all that has its roots in this
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opinion. >> good afternoon professor. listening to you and with the rest of my knowledge just a holmes, he was right there at the beginning of the generation. he was reviewing that idea like pragmatism so the speech was having an educated opinion about those inspirational things that he believed in. so fast-forward to the baby boomer generation who one way or another rushes into extent to lytham and there is the
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next-generation. so for existential philosophy you don't have to have that -- you don't have to do your work. you just have a shortcut and if you're not happy about it --. >> yes it's a very interesting question. basically it sounds to me like you are comparing on the one hand pragmatism and on the other hand ideology. pragmatism is in some ways presented as an absence of ideology. an idea is good if it works just the way the fork is good because it helps you eat food. palms is very much a part of the development of this notion of
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adventism. there's an excellent book called the metaphysical problem which counts the development of pragmatism in this country during the stories of homes and liam james and other individuals in the mid-to late 19th century america. holmes does reject ideology. he saw what ideology is. he saw the horrors that ideology produced so he is very skeptical of the notion that there were some objective truth out there and you can see that theme very prominently in its opinion. it's because of skepticism about objective truth that we have to allow people to speak. but we think is the truth today we may discover tomorrow is not the truth and the only way we will find out is if we keep the debate and the discussion going. i think that people who are more
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ideological and think no, i've got the truth ,-com,-com ma they are less patient with that. their view is well, this is the truth and i don't need to hear what the other side says. i can shut down the debate because i have already arrived at the truth. i do think that there is a sort of tension there for a conflict between pragmatism and ideology and i think holmes' of opinion rep resents the more pragmatic view of things. yes, he certainly believed that your opinions had to be informed and more importantly your actions have to be informed. that is why it's okay to act in the face of uncertainty. he wasn't saying well just because we can't know the truth means we don't interact. just the opposite. he thought yeah we had to act and even if we are not sure of the truth we still have to act
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but the one way in which we cannot act is to suppress speech because it only having heard all the ideas that are out there can we be confident that the action we are taking is the best we can make it this given point. >> i think most progressives feel education was crucial to that debate and we are having debates about the level of understanding that we have in our debates today. i don't know if you want to comment on that as a journalist. what you are trying to do often is educate us about some of these things but i think it's a relative question that the context was different then in some ways what we are struggling with today. >> i don't know if people are less interested in gathering information today. it seems to me that we have very lively debate and discussion in this society. i guess maybe there is you know a little bit more, a lot more
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partisanship and people sort of segmenting off. you have got the people who listen to "msnbc" and maybe they are not talking to each other in the way they should and maybe that is a concern. i think that was -- there was less of that than although it's hard to know. >> you right. >> hello. i was wondering, in this day and age there are so many different ways to push her opinion like via social media and things like that. i was wondering would you say there is still at all any kind of punishment for hoisting an opinion that's unpopular, maybe not as extreme in 1919 but would you say there is? >> well we have come a long way. we don't have an stored married protection for speech in this country and for the most part i think it's fair to say when you
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can be punished merely for the ideas you have expressed, the supreme court has done an admiral job in protecting unpopular speakers. the debate we are having now is more about how can we get the information we need to have an educated debate? is edward snowden being prosecuted or has he been indicted because of his ideas or because the government needs to be able to enforce the laws against leaking classified documents to maintain national security. you know there may be a little bit of the former but i think it's mostly the latter. bradley manning i think is in the same situation. now, going after them as aggressively as the government
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did and seeking the kind of punishment that the government sought might suggest that they are selectively targeting people who are challenging what they have done and that is certainly worrying. you know the social media is an interesting part of the equation now. that's very interesting in the context of schools and student speech and that is raised all sorts of questions. to what extent can students be disciplined in school for things that they put on facebook at home when the students are accessing facebook at school so it's having a disrupt that effect. the social media i do think has greatly expanded our ability to speak and in some ways democratized our ability to get our message out and raised at the same time lots of tricky questions. >> jeffrey abelson. what was the general reaction to
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his opinion from his fellow justices and also general opinion of academic and population? >> holmes writes this dissenting opinion and he always writes his dissents before the majority opinion has circulated because he wants to have it ready to go. as soon as he gets the majority he can distribute it to his colleagues. everything was sent out by messenger said the gets the majority opinion and he senses to center out. we know this because he writes a letter to a friend that he had just sent around the descent and the next day three of his colleagues show up at his home. they are led up into his study and in the presence of his wife they ask holmes -- the court has not issued the opinion yet. it's going to be issued the next
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week and these three members ask him for the sake of national security not to publish the descent. they are worried that coming from that figure is venerable as holmes is several war veteran and his whole family that this will give aid to the enemy and lead to the country's resolve in the fight against the red menace. holmes listened very patiently to their requests to a very civil discussion and sometimes even affectionate but ultimately he says no. we know about this because when they are led up into his study, he tells his secretary to stay in the adjoining room. that is where the secretaries were. as terry hears everything that is said in the secretary is close friends with dean acheson who is that your secretary to justice brandeis and years later
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dean acheson writes a memoir of his early years in washington recounts the story. that was the reaction on the court. brandeis joined the opinion and supported holmes. and the public the reaction was mixed. progressives were ecstatic, praise this. the editors of the republic published a tribute to holmes. they published his dissent in full. all of holmes' friends right in these incredibly poignant emotional letters of gratitude to holmes. in academia it's received less well. one of holmes' sort of long friends john widmar repressor of low rates this just scathing critique of holmes' dissent and allow review article and basically accuses holmes at
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being naïve and unaware of the threat that the country faced and a number of other people say things along those lines. so it's mixed. it's a dissenting opinion so even though people, some people were upset, it didn't have an impact right away. their concern was that it ultimately would have an impact. they could see he was very powerful and that is what whitmore is worried about and of course he was right to be worried. although it is a dissenting opinion it ultimately carries the day. it takes a little time but ultimately the court invokes holmes dissent as a foundational statement about commitment to free speech and he sort of takes this place in our culture that it has today. >> what's the justification for suppressing any speech since the first amendment makes no such
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distinction? the first amendment says the government shall make no law abridging the freedom of speech. it doesn't talk about good speech or bad speech or dangerous speech or anything like that. so where'd you get all of these theories exist the court goes through dozens of theories on what speech is not protected. >> it's a great question and i once asked my students the exact same question. so you are a close reader of the first amendment that says make no law and justice hugo lack used a site that all the time. make no law. it doesn't say make not too many laws are made of bad laws. it says make no law. an absolutist of the first interpretation is not possible. they're too many many ways that speech is used that most of us think should not be it.
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throughout a few examples read perjury. perjury is using speech. is it protected by solicitation to murder? these are always that we use words and suggest that the mere fact that you do these things through words means to protect it would be problematic quick holmes deals with this problem himself. not in the abrams dissent at eight months earlier in an earlier decision. he provides us an example and he says that free speech would not protect a man who falsely shouts fire and it crowded theater as an example of why we can't adopt an absolutist interpretation. why is that a good example lacks for one because harm will result you have a crowded theater and someone shouts fire there'll be a a rush to the door but more importantly it's a good example because the harm that will result will result immediately
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before we have any chance to avert the harm. so that forms the basis for holmes's he ultimately adopts which is the clear and present danger standard. you know it from tom clancy before tom clancy made it famous it was a line in the holmes opinion and the idea is that speech is protected unless it poses a clear and present danger meaning unless the danger is one that we can divert in any other way. and you can't avert the stampede in the theater in any other way other than to say about it time it's against the law to do it. so you now i think it's very hard to adopt an absolutist interpretation of the first amendment. the problem becomes then how do you figure out what's protected and let's not protected and that is what gives people like me a job, to come up with theories
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and explanations. >> talking about a different character in the book that you didn't mention. learned hand, a wonderful name for a judge. so he is not a young person. he's a middle-aged person. he also plays a role in justice holmes changing of his mind. can you talk about that a little bit? an interesting interplay of judges and this question. >> learned hand was on on the federal district court at the time. he was in his mid-40s. he was a very well regarded judge of the philosophical event. he hears one of the first cases in the espionage act and one of the first judges to interpret the act and deal with these free-speech questions that it raises. he adopts a very narrow construction of the espionage act so as to leave a lot of room
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for free speech. and he does this before holmes writes in a these opinions. the hand is reversed by the second circuit that he's upset about this and he thinks he was right. it's really hand that starts this whole process among these men in trying to change holmes' mind because the two men meet in the summer of 19 -- 1819 just by chance on a train between washington d.c. and boston. maybe hand is going from new york to boston. they run into each other in hand starts talking to holmes about tolerance and holmes' response is strike the hand -- he can't believe holmes has said this and he doesn't know how to respond. holmes runs away and goes to join his wife as they pull into boston. hand follows up with a letter to
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holmes and which you makes a more sustained case for tolerance and holmes responds in a carry-on correspondence over the next year about free speech. hands deserves a lot of the credit for getting the whole process started. >> we have time for one more question. you point out in the end of poignant story about hand and how his life turns into a different direction on the issue of the first amendment. if you could share that. >> in the epilogue i tie up loose ends of the other characters and what happens is although the country moves any more tolerant hand goes the other way. in the late 1940s he is now the chief judge of the second circuit and he gets a case involving the members of the communist party of america who had been prosecuted in the smith act for teaching the principles of lenin and marx. hand upholds the conviction and
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essentially guts the clear and present danger test holmes had articulated several decades before. so the question is why does hands change his mind in the opposite direction? >> answer is that as his career progressed as a judge he came to believe more and more fervently in the idea of judicial restraint and came to believe that protections of the bill of rights were merely monitory and they were not judicially enforceable, even criticized the supreme court's decision in brown versus board of education arguing that the court shouldn't be imposing its new equality on the country. it really stemmed not from his support of mccarthyism. he was horrified i mccarthyism. he simply came to believe even more strongly than he had earlier that it wasn't the role of judges to interfere with what the result of the political
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process was. >> one of the lessons of that is what holmes says. we always are contested and it will never be perfect. that is why it's important we continue to have these conversations and that is why we need to have these kinds of books. thank you thomas healy. the book is "the great dissent" how oliver wendell holmes changed his mind - and changed the history of free speech in america. as robin mentioned thomas will be signing books downstairs in the lobby and i hope you will join him there in getting a copy. >> thanks so much. [applause] [inaudible conversations]s bravn
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booktv. he discusses the challenges facing prosecutors as they work to prosecute suspected terrorists in our military courts. this is about an hour and teen minutes. >> so i would like to begin by welcoming everyone to the first constitutional conversation of 2013 put on by the constitutional law center here at stanford and it's my special pleasure to introduce our guests for tonight, jess bravin of "the wall street journal" and author of the recent book, the terror courts on sale i should add that better bookstores everywhere and even the stanford bookstore. so you may want to grab that. this is probably the most serious account of what has
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actually happened in the court system in guantánamo in a series of trials that have been taking place there. i'm not going to trespass on the subject matter because jess is going to give us a good taste of what he has been writing about, but i did want to introduce just the person. he is someone i got to know a few years ago when we were both traveling from washington d.c. to williamsburg and the amtrak train broke down and we grabbed a car and rode down together and had just it an extraordinarily enjoyable time. jess is as i think most people know, one of the leading legal reporters in the united states but what they may not know is he is a person of extraordinary
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humor and wit. so i want to expose a little bit of that to you right now because when he was in college at harvard, he was roommates with with -- wait, wait don't tell me and they were not "the harvard crimson" crowd. they were the harvard lampoon along with the head of the lampoon at that time, conan o'brien. i have been told this elaborate story and i'm not sure i'll be able to get all the details right about he and his cronies contriving to a range an invitation to harvard to speak as a man of letters, the actor who played robin in the movies. while he was there, somehow managing to pilfer his robin
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costume and then pretending to be the penguin i think it is and negotiating for the return of this costume to the great culinary of the entire campus. ..
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tonight's topic is a bit more serious. so before getting in to it, i thought that perhaps important documentary moment would be best for beginning the evening. so nathan, if you could, please, hit the lights. show us our first clip. [inaudible] can we see it? [inaudible]
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[inaudible]
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well, that ask one of, many dramatic representation of the military commissions project at guantanamo. one thing that we learned from it the people involved are extraordinarily good looking. it's actually from the television show, j.a.g., which no longer on the air. but it would take it storylines from cases mainly military cases that took place. and that episode, called "tribunal" aired in april of 2002. so president bush issued an order authorizing military commissions in november of 2002, and by the next spring, one had
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one already took place on television on the show. surprisingly, i read the script. it anticipated many of the issues that really take place at military commission and some which are taking place right now. i thought i would point out that the thing they're talking about over their delicious salad is the exclusion of u.s. citizens from military commission trials. that's an issue on appeal right now. but the book -- the terror court. on the cover we have a bunch of people dressed as detainees, a news photograph taken from one of the protests that coward in washington regarding this project. but is the book is really not
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about terrorists. tps. not that much about detainees except as much they are involved in the system that americans have set up. the story that i wanted to tell was about the americans and the american values as expressed to the legal system at the time of crisis and national emergency. what we learned is really bedrock to our view of the law and the legal process. and what is really more disposal depending on the circumstances that we face. the story, you know, to step back for a minute, a couple of years ago attorney general holder now, he was going hold the 9/11 trial in manhattan in the southern district of new york, and the five codefendants would be tried on --
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under u.s. code in the federal court house. there was a big political uproar about it. there was very little public and support for what the attorney general wanted to do. eventually the obama administration decided to reassign the defendants to a military mission at guantanamo bay. through that months' long controversy, there wasn't were exploration of what military commission at guantanamo bay actually is. they pretty much -- pretty much pretty much boiled down to military courts are tough. civilian courts presumably, are weaker, and gavin choice who you want to deal with alleged terrorists and enemies of the united, well, it seems like you want the tough guys to deal with them. there was not a lot of
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discussion about what military economieses are. how they operate who runs them. those sort of questions, which i think are important for americans to consider when deciding whether this is an experiment that we want to continue or expand, or ther or drop in the years going forward. so this book is really a story of development of this project as told through the number of individuals involved in it. people who are policy makers at high levels of government. some are judges. but mainly it's about the group of military and law enforcement officers who found themselves instructed to carry out this project over the past ten years. and to do so under difficult circumstances. and in particular, in finding
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around every corner a lot of presumptions about the way legal system work and what american legal values are challenged. the question just to back up for a second. having worked on the book for ten years. i forgot the idea that i had to explain what it was to people. so let me step back for a second there and say that the individuals who were involved in this project at the frontline, the military officers were people who had experience in courts march in trying the sort of ovens that gone on and military bases around the world. those tend to be things like domestic violence, drug crime, larns. things like that. they didn't have at lough experience with national security stuff and complicated
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conspiracy charge. they did know a lot about the history of military justice particularly after world war ii. and the tribunal and the following tribunal run by the united states and the kind of example that was set in retroprospect has a pretty good reputation for the way that vick fors treated the defeated enemy. that image of post war trials also animated people at the top of the policy chain officials in washington who developed this system. they did not follow many of the rules that civilian courts is since embedded in the criminal procedure. so for people in the white house and some in the department of justice and department of
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defense going back to the model was seem to be a way to avoid a lot of developments in the through a had taken place since world war ii. and so when president bush issued his order in november of twufn it was striking in the way it resembled the order president roosevelt issued in 1942 involving the nazis that harm commander harmon. that was his name? whatever. ther. was updated from man. of it a concession to the 21st century sensibility. there was not much else.
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it was about it. as long as evidence was probe toif a reasonable person, it could be admitted. there was no other restribs or rules. and it explicitly stated that no existing body of law would govern proceedings at military commissions. or the uniform code of military justice. and added that no person who he designated for trial would have the privilege to appeal to any federal state, foreign or international court. so the idea was to have a system of justice that really was starting from scratch. and what i discovered in writing the book. it's hard to set up a system of just fries scratch. because people have to actually implement it start having questions about what to do. what type of evidence. what is reasonable. and what is fair.
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to be fair, the order also directed that the trials be full and fair. the book shows how many of these him tear lawyers grappled with the questions of what it means to have a fair trail when you are doing so without any "rule book" at all. to guide you. in non-fiction. you often don't have the advantage of novelists of being able to create characters in situations that perfectly represent everything you want to go forward. but i came close with this book. i ran in to a marine officer named couch. couch was one figure whose experience in military commissions seemed to touch on almost all of the issues that continued to affect the project today. he had been -- well, like many heft from the south. north carolina.
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a conservative republican. he was the even jell call christian. the person who was extremely gratified by the election of president bush in twiew. he had been a pilot when he went to the marine corps. he went to military law school. one of the flying buddy left the service and became commercial pilot. on 9/11 he was the co-pilot on united 175 which was one the hijacked planes. the one that crashed to the south tower. so for colonel couch when he was tapped to take part in military commission he a perfect alignment of reasons to do it seriously and to exact as much justice as he could for reasons for him that were patriotic and professional and personal because he had been touched by
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9/11 in this district way. he had been a prosecutor for many years and had some of his own cases traumatized on j.a.g. one involving a deranged parachute who cuts the cords on the parachute out the plane and fall to the death. of it somewhat embellished in the tv version. he was an experienced prosecutor. and the kind of dilemma he faced show the issues that couple when you make a system from scratch that presumably has no governing rules. i can go in to some detail about it later. i thought i might switch for a second and talk about how i got interested in this topic to begin with.
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who knows whaptd next. my experience that cay and the next was very significant to me because as a news reporter i had to figure out what was going on. so i made my way to ground zero and i saw this completely transformed landscape. i noticed as season someone passingly familiar with some legal that the whole legal
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architecture around me had changed. there were check point. you couldn't go places. immigration courts were suddenly lowed. all kinds of things started happening. they started happening in washington as well. when president bush issued that order in 2001. the guantanamo bay camp opened if january of 2002. and i was well, let's go to the next. the next clip, if we could, david. twice in january of 2002, i went to guantanamo bay. once with a press group to see the maybe the second or third group of detainees offloaded. the second time on january 28th on a more comfortable plane with defense secretary rumsfeld. and coincidence the good people of c-span are here too.
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here are a few clips from the trip. [inaudible] [inaudible] you can see various tower as
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well as american flag painted on several -- [inaudible] you can see the new construction -- [inaudible] as well as -- behind that -- [inaudible] the medical facility -- currently that's where all medical procedure of the detainee are happening. we are building a more permanent facility for the detainees. continuing to my right, you see two huts -- [inaudible] this is fly hut where supplies. one of the air-conditioning going in to it is integration facility. as well as these facilities further to the right.
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the secretary of deafen is scheduled to visit all the facilities inside there. come up and spin this way. above the hill of the living quarters with the soldiers -- the military police are inside the camp. [inaudible] the detainees and -- [inaudible] internal and external security. see some of those -- [inaudible] [inaudible] the senators and secretary
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rumsfeld -- [inaudible] u.s. troops and went to press. [inaudible] i saw a portion of the television presentation of it house of commons. i don't know how many of you did. [inaudible] when i go back to washington i'm going to write some of my friend there and suggest they bring some of the people who insulted our military over here to see this. [inaudible] world war ii seen a lot of worse placeses. and i lived in worse places than this. but i believe that the british parliament has done us a great disservice. the great disservice these young men and women are trying to take care of these people who -- [inaudible] and they're not war fighters of foreign nations. they didn't wear a uniform. they don't have patches on. they didn't wear a uniform. they don't have patches on. they weren't under military orders. they were volunteers in ab
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terrorist organization that said -- [inaudible] to try to destroy our country. i -- [inaudible] i sure -- [inaudible] i didn't expect to see them treated so well. >> are we there? >> first of all, let me say what i'm worried about the -- [inaudible] not a long time, and it is going to be [inaudible] deal with the terrorist networks, they exempt -- there are thousand of people who have been trained to kill innocent people. not just americans but people across the globe. and the president is determined to -- [inaudible]
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was i cometting -- coming down make sure that everything was being done properly. i see now -- [inaudible] i knew it was being done properly. [inaudible] that the men and women here are doing this job are people who went to our high schools and our grammar schools that are responsible. properly train, properly lead, and doing a first-rate job. i came down to say thank you. now, the last -- [inaudible] [inaudible]
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next the traveling press and perspective of the day. >> the story is not just -- [inaudible] he came here as part of a larger story about how the prisoners are being treated and how they'll be treated in the future. >> do you have any frustrations coming down here and -- [inaudible] >> yeah, of course, as a reporter you want to -- >> do you any frustration coming down here and not being able to see what -- [inaudible] >> yeah, of course, as reporter you want to see everything there is to see. you're the eyes and ears of the
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i are public at large and in a place like this, which is a military base, with, you know, completely isolated military base. everything we see is up to the department of defense and local authority here. so they decided what they are comfortable laying -- and there's no way to get around. normally if you write about a prison they may not let you in. you can go to the guards near the prison and talk to the guards after hours. or you can go to the bus station and meet the relatives of the prisoners coming if and get their perspective. there are other ways to get it going on. here they can only see what they dpdz to show and hear what they decide to tell us. [inaudible] so the terror court to my effort is to get around that. and show you what it is going on in military commissions that
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they did not to decide to show us and did not decide to tell us. any questions? well, thank you for coming. okay. well, let he bring you up to speed where we are with him tear commissions. this last week free trial hearings continued at some of the case at guantanamo bay. they will resume later this month. and the trial of the 9/11 alleged conspirators will begin sometime next year in the estimation of the chief prosecutor. but now the chief prosecutor was brought on by the obama administration is a regular general. he's by many account the most impressive figure to be associated with military commissions today. he was a scholar and harvard law
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school classmate of president obama. he was, at one time this is considered a prejudice use thing. he was a property jay of general petraeus. and he came in there with really the reputation of being perhaps the best or one of the best military lawyers there currently is. and his -- when he talked about military economieses, he's discussed how sure they had some problems in the past but what we're dealing today is something very different than the first rather primitive order that came out in november of twufn. he points out the supreme court looked at this project and there have been two acts of congress that have authorized military commission trials. and the most recent one passed in 2009 and signed by president obama. added substantially more in his view protections to the defendants. military commissions today. he called them reformed military commissions.
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as posed to plain old classic military commission. or what they might have been before. are something that should not be confused with the most draconian and terribly unfair proceedings that could in theory have taken place had the supreme court permitted the first version of the military commissions to go forward. but there is a sort of paradox. and the paradox is this. the cases that general martins has to deal, including the 9/11 case are all colored by what -- tremendous abuse of the prisoners in their view wholly illegal ways of obtaining evidence and in such a way that it would be, in their view, difficult to prosecute them in civil yab court. it may or may not be true. but each of the revisions to
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military commissions, everything that has made them more closely resemble civilian courts or courts marshall makes it that much harder to convict the defendants. which toik make it possible to convict the defendants without affording them the kinds of procedure protection that make a conviction harder to get in civilian court. so when you get to a point where a military commission is, say, 93 brnt is fair as a u.s. court or what have you, then it does raise the question of, well, what is the point the court-martial or a federal court in the procedures what is the benefit to the united in establishing a separate expwrution is system with its
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own rules where the ultimate legitimacy of the conclusions remains in question. they haven't been blessed or rejected by the civilian court system and the perhaps the most point they asked the military judge in guantanamo to rule that or declare that the constitution of the united states applies to proceedings there unless and the burden beyond the government to argue why it should not apply in any specific case. and the government's position previously was the u.s. constitution does not apply at all except in the has been use clause which the supreme court imposed. more recently the position is that there's need for the
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military court to address the question at all. it's before getting to the whole discussion of whether or not that applies. and so here you have a court takes place, a trial taking place pretrial proceedings where the body of law that governs it remains intha -- somewhat a mystery. are they governed by the constitution. which part. if not, why not. and that, of course, makes it a fascinating story to tell as a legal reporter. all right. nathan, you want to handle the question splication?
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>> at guantanamo, we have some residents being brought to the trial, but we also have stateless yemenis and people who were swept up and it was decided we're not a threat and could be released. what right closet they -- rights do they have to get out of guantanamo? >> well, that's an interesting point. what rights do they have? well, so far, i mean, these are people who have not been criminally charged. this is an important distinction. there are about 150 people held at guantanamo, but only about a third of them. the government estimates can be charged or will be charged with specific violences of the laws of war that the military commission can try. so what about the other people? some of them have been cleared for release. others have not. the federal court have not questioned the government's
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power to hold enemy prisoners captured during armed conflict. .. >> especially with what has been opposed by the government. their status remains a question mark. so, yes, what can happen to them, they have grounds for
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detention and they are stuck. [inaudible question] >> tribal leaders wanted to be part of that and it seemed like he was a peacemaker. >> yes, originally the population at guantánamo was over 600 people at a certain point. it is true that the initial sorting of folks that were brought there was very rough and four military officials, if there is any doubt in their mind, they are not going to let someone go because there is no benefit if you are in charge of
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captains are people who have been turned over you by local forces. there is no advantage freeing someone who might end up being really dangerous. i mean, there is something about this. if they turn out not to be dangerous and they are locked up anyway, there is less of an incentive with the freedom. but in this book i have tried not to talk about the broader question with enemy combatants or enemy fighters. i am trying to focus on criminal prosecution. but those questions do overlap in this way. and shortly after guantánamo bay was set up, the pentagon established the criminal investigation task force and the job was to prepare a detective squad for the guantánamo bay individuals. to turn him over for
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prosecution. and i interviewed a lot of those people and i looked at a lot of the records they came from another great cbs military seemed show and other investigative agencies. with a raid into was a situation that was really upside down. normally they would try to find evidence and then find out what is going on and they found nothing. they couldn't find any crimes. so they did file a report saying that we don't have anything on these guys and they had seen most of them as being like dirt farmers. sort of an agricultural bounty of afghanistan. [inaudible question] >> is rhythmic that all of these legal issues arise in context
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with the situations for all of us. and it's great that we can learn about our systems of justice from this. particularly for the folks that are being prosecuted. given that the administration has made clear that even if they are found innocent, they have shaped the case. and if you do conclude that this is theater for the entertainment of americans -- are we finding that the real aim for one of the things coming out of it is there is a use of these to control how this is told by the media and exemplified by how tightly the
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court or the judge can say about these cases and who can be interviewed and who can observe and hear what is being provided in court. >> one of the ntis agents who objected strenuously and saw this in large share because they thought it would interfere with criminal prosecutions, he stressed that there are no such things as the secrets, but only delayed disclosures. so sooner or later things come out and this includes things that the government never intended to be released. i don't think the proceedings are fair. one thing is that you can see it and it's hard to see. although one change is that you actually can go and see this at fort meade, maryland.
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so to be fair, it is possible if you go there and they are not recording. they are broadcasting. [inaudible question] >> yes, there have been about -- [inaudible question] >> he doesn't know he doesn't understand the motivations. >> as it happens, the proceedings that take place in the security courtroom, one is an audio feed that goes to a pressroom that is delayed by 40 seconds. there is also an audience gallery for some victims family
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people and some observers say it. and it is behind glass and you can't hear directly what is going on in the courtroom. there is a 42nd delay and it is supposed to be there so that if something is inadvertently disclosed that the government believes is secret, they can cut off the audio feed. i will say it's interesting to sit there and see people who are talking 40 seconds ahead of you. and it is very odd. because the sound is not line up with their voices and you end up looking at the monitor. but the three or four times were a government censor has hit that button and every time the judge has ordered that information could be closed. the first time thought was just the word

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