2004 Fairchild Lecture

– Law school, he’s a member
of the Board of Directors of the Environmental Law
Institute and the Lawyer’s Committee for Civil Rights
Under Law, and is past chairman and president
of the Sierra Club Legal Defense Fund, now Earth Justice. He’s been an adjunct
lecturer at Boalt Law School at the University of California, Berkeley where he’s taught remedies
and conflicts of law. In 1995, Mr. Traynor
received, was named by the American Association for
the Advancement of Science as a Fellow for Research
and Publication on issues at the intersection of science
and law in biotechnology, the environment, and
information technology. In 2002, he was elected as a fellow of the American Academy
of Arts and Sciences. And, his most recent honor,
which came after the publication of the program, is that he
received the Night Circuit Professionalism Award,
which is very special to our law school because it’s named
after one of our graduates, the late John P. Frank,
class of, John Skilton and I were speculating and I’ll
look to Ed for resolution, 39 or 40, 40. And finally, as someone, I should have introduced myself for those
of you who don’t know. I’m Ken Davis, I’m dean of the law school. And, as someone who has
probably gotten an unfair share of job opportunities
based upon the mistaken assumption that I have
something to do with the pre-eminent administrative law
scholar Kenneth Culp Davis, which I don’t, I should
add that our speaker today is, however, the real deal. All of us, I think, as
part of our legal education read numerous opinions by the
distinguished Chief Justice Roger Traynor of the
California Supreme Court. I know I still regularly teach one, Minton versus Cavaney,
if you remember that one, in my corporations class. Mike Traynor is Chief
Justice Traynor’s son. So, it’s a wonderful honor to welcome to our law school Michael Traynor. (crowd applauds) – It really feels good being back in a law school classroom again. I love to teach, and this
atmosphere is just terrific. When we came in at the
airport Shirley and I, my wife Shirley’s right
here, and got into a cab the cab driver asked
us where we were from. And Shirley said, “Well,
we’re from Berkeley.” And he said, “Well, Madison’s
the one town in this country “that makes Berkeley jealous.” (laughs) Which I take it is a
compliment to both our cities. So, it’s a great pleasure to be here. I’m also glad to see ALI
Council colleague Diane Wood, who’s on the Seventh Circuit
here with her husband Rob. That was a very special
treat and pleasure. And, I’m delighted to be
here in Madison and to honor Judge Thomas Fairchild,
a magnificent citizen of Wisconsin who has devoted
his life to distinguished public and judicial service. I’m grateful to be in your
friendly company and grateful to Dean Kenneth Davis Junior for his generous introduction, thank you. The last time I visited
Madison was in 1996 to see Shirley Abrahamson
when she was sworn in as Chief Justice of
Wisconsin by Chief Justice of the United States William Rehnquist. Her Fairchild lecture
is a brilliant analysis and portrait of the
American law institute. It is a special pleasure to
be here at the law school of the University of Wisconsin. UW Madison has identified
as one of its key strategic directions the strengthening
of its commitment to public service including
the concept of citizenship which emerged as critical in
the university’s self study. I salute the many contributors
to the positive spirit of Wisconsin citizenship
including United States Senator Russell Feingold, who had
the courage to cast the sole dissenting vote in the Senate against the so called Patriot Act,
to which I will refer later. I think there’s a little slide here, too, from the day’s newspaper. Is there a… Maybe somebody will help
me put that on in a minute. Thank you, I should know how
to work the, oh there it is, right there, thank you. You see that? It’s a timely cartoon. This remarkable group of
Wisconsin citizens also includes your governor Jim Doyle,
former senator Gaylord Nelson, former governor Tommy
Thompson, the late judge and state senator Robert W.
Warren, Judge Barbara Crabb, John Frank, my dear late
friend and ALI colleague, and John Skilton our prized
co-chair of the Lawyer’s Committee for Civil Rights Under Law. Two years ago here in Madison Tony Lewis gave the Robert W.
Kastenmeier lecture entitled “Civil Liberties in a Time of Terror.” My talk today is entitled “Citizenship in a Time of Repression.” And, it addresses the
responsibilities of citizens in safeguarding civil liberties. I considered whether to select
a blander, less provocative title, but decided that I could not do so for I feel that in my heart
that our rights as citizens to the truth and to basic
liberties are being repressed by our own government and
that we have to stand up against this erosion of our liberties. As an idealistic 10 year
old I observed the formation of the United Nations in San Francisco. Gathered on the stage at the
Opera House world leaders worked diligently for an
international structure promising a beleaguered
world security and peace as well as human rights. As a teenager I began to
develop what has become a dual and lifelong commitment to our
environment and to liberty. I believe that the preservation
of each is important for the other. And, a governmental
oppression of our environment is likely to be joined by
governmental repression of human rights. In 1950, when I was 15 I
spent the entire Summer hiking in the Sierras in
California and appreciating the freedom of being
one with the mountains, lakes, and streams. The next year I was
fortunate to be a freshman at the University of California
at Berkeley and to begin classes with one of
those remarkable teachers who influenced one’s entire life. Professor Jacobus tenBroek,
a constitutional lawyer and scholar introduced us
to principles of liberty and equality, to the Socratic
Method, and to issues of freedom of expression. We also studied the
Hirabyashi Case, which upheld a military curfew against
persons of Japanese ancestry and the Korematsu case,
which upheld their forced relocation during World War II. Both cases were early examples
of governmental overreaction to perceived threats. Today, the word patriot
is used in a statute that in my opinion stifles liberty. The term collateral damage
is used to describe the death of children and other innocent bystanders. The phrases weapons of mass
destruction, immediate threat, and imminent threat were
used by our government to justify a war, phrases
that have prompted disturbing questions, and unresolved
questions about the evidence upon which the government
acted as well as about knowledge and intent. As an environmentalist I’m
appalled to see a measure that would increase
pollution falsely described as the Clear Skies
Initiative, and a measure that will deplete forests called the Healthy Forest Restoration act. Our government is blatantly
misusing language. George Orwell’s prescient
warnings against news speak and double think are as
apt today as they were over 50 years ago. Truth, liberty, and openness are related, as I will demonstrate by
examining one of the most controversial provisions of
the Patriot Act, section 215. This section amends the
provision of the Foreign Intelligence Surveillance Act
that deals with government investigations and the power
to obtain records secretly. Because members of religious
groups know the FBI can now demand their
personal records even if they have done nothing wrong
some are already declining to attend mosques, make
charitable contributions, speak about controversial
issues, visit websites, or engage in other
activity that might become the subject of a record. If not repealed or renewed
section 215 will sunset, with some qualifications,
on December 31st, 2005. Prior to the Patriot Act
the statute was limited to business records related
only to common carriers and public accommodation,
physical storage, and vehicle rental facilities. It also required the
Attorney General to certify to a court that the records
sought were relevant to an investigation, and that
there was reason to believe that the target was a
foreign power, or the agent of a foreign power. I will examine three
aspects of this issue. First, what the Department
of Justice and the Attorney General of the United
States say about Section 215 in public relations statements on their official website and elsewhere. Second, what the statute
actually authorizes. And, third what the Attorney
General has admitted in sworn testimony before the
House Judiciary Committee. The Department of Justice
maintains a website reassuringly entitled
Preserving Life and Liberty. There it posts the Patriot
Act speeches and reports including one called
“Dispelling the Myths,” describing Section 215
as addressing access to business records and other items under the Foreign Intelligence Surveillance Act. That report describes as
a myth the statement that many people are unaware
that their library habits could become the target of
government surveillance. It describes as quote “reality”
that the library habits of ordinary Americans are
of no interest to those conducting terrorism
investigations and that obtaining business records is a long
standing law enforcement tactic. The department’s website
asserts that quote, “Section 215 has a narrow scope. “It can only be used to
obtain foreign intelligence “information not concerning
a United States person “or two to protect against
international terrorism “or clandestine activities. “It cannot be used to
investigate ordinary citizens “or even domestic terrorism,” end quote. The website emphasizes
that section 215 quote, “preserves First Amendment rights. “It expressly provides
that the FBI cannot conduct “investigations of a
United States person solely “on the basis of activities protected by “the First Amendment
to the Constitution of “the United States,” end quote. In other public statements
the Attorney General has characterized the
American Library Association’s concern about Section 215 as hysteria. The departments director
of public affairs describes Section 215 as having only
a quote, “narrow scope, “as going to great lengths to preserve “First Amendment rights and
as requiring a court order.” A trusting reader of
such public statements might understandably
conclude that Section 215 is aimed primarily at business
records, not at library or personal records and
at foreign terrorists, not American citizens, that
is affirmatively preserves First Amendment rights,
and that its application will be subjected to
serious judicial review. Most readers and web surfers
will likely not review the actual statutory
language or the testimony of the Attorney General. The statute however expands
broadly the definition of accessible records. It now extends to tangible
things including books, records, papers,
documents, and other items. It explicitly authorizes
the director of the FBI or his designee to conduct
an investigation of a United States person,
a term that includes United States citizen or
lawful resident alien. Although, such an
investigation cannot be solely on the basis of activities protected by the First Amendment the term solely serious limits the protection. Would you want to rely on the
government’s determination that you were solely engaged
in protected activity and not in anything else? The statute plainly suggests
that the FBI can investigate United States persons based
in part on the exercise of their First Amendment
rights without any safe harbor for such exercise. Moreover, the First Amendment
limitation only applies to an investigation of a
U.S. person, a visiting uncle from a foreign country, for
example, could be the subject of an investigation. And, while staying at his
nephew’s house here in the United States the
investigation could extend to the nephew’s records. Furthermore, under Section
215 the government applies in secret to a designated
federal judge or magistrate for a secret order. The targets are not
notified that their privacy has been compromised. The government’s application
need only specify that the records are sought
for an authorized investigation conducted pursuant to the statute. This standard is a most lenient one. The government need
not show probable cause or even reasonable grounds to believe that the target of the order
is a criminal suspect or foreign agent. The statute requires that the judge shall enter an ex-party order as
requested or as modified approving the release of
records if the judge finds that the application
meets the requirements of the section. The statute gives the judge
no authority or leeway to require evidence or to
go beyond a determination that the government’s application itself meets the statutory requirements. Section 215 provides that
the order shall not disclose that it is issued from
purposes of an investigation. The person who is the
subject of the investigation may never know about it. Section 215 further contains
a non-discretionary gag order, a gag requirement that
no person shall disclose to any other person that the FBI sought or obtained tangible things. In his testimony before the
House Judiciary Committee on June five, 2003 the
Attorney General in response to questions from
Representative Tammy Baldwin of Wisconsin acknowledged that Section 215 had expanded the records accessible. He agreed that the standard
for seeking a court order was lower than probable cause. He admitted the FBI could ask
for book purchase records, a library book, or computer
records and that quote, “There are some education
records that would be “susceptible to demand,” end quote. He conceived that probably
the FBI could get genetic information such as a
little DNA left on a glass of water by someone who
had committed a crime. The department similarly
downplays the intrusive effect of other provisions of the
Patriot Act, for example, the sneak and peek
provision that authorizes government agents to come
to a private residence in secret to look around
to take photographs and even to seize property
without the owners knowledge. Notice may be delayed
for a reasonable time which may thereafter be
extended by the court for good cause shown. In a democracy, the
government is implicitly constrained by the informed
consent of its citizens. When citizens visit the
website of our Department of Justice they are entitled
to an objective description of the law, not an advocate’s
brief or public relations statements that omit
crucial points or distort the language and meaning of the statute. We should remember the wisdom
of Thucydides who related the loss of clear meaning
of words to the subsequent degradation and decline of Athens. The truth comes first. In the last few decades
our country has experienced several deplorable sequences
of governmental deception. The Johnson Administration’s
deception of Congress and the country led to
the infamous Tonkin Gulf Resolution of 1964 to
expansion of the Vietnam War, and to more than one generation’s
distrust of government. The Nixon Administration’s
deception of Congress and the country in the
Watergate Affair led to demands for truth from many quarters
including notably from members of his own political
party and eventually to his resignation. The Reagan Administration’s
deception of Congress and the country led to
investigations and prosecutions concerning selling arms
to Iran and financing the Contras in Nicaragua
and reinforced the public’s distrust of government. President Clinton’s
personal deception about the Lewinsky Affair led to
his impeachment by the house and a trial in the Senate
from which he emerged with history’s asterisk
attached to his name. Today’s governmental
assault on truth is joined with its assault on liberty. The Patriot Act is not the only example. The government’s mass
and long term detention of prisoners at Guantanamo
Bay, its detention of American citizens without bail or access
to a lawyer, its assertion of power to label citizens
as enemy combatants and detain them indefinitely
without judicial review or legal assistance, its
corollary justification that allowing detainees
a lawyer would impede investigations, its notion
that it can try people in military tribunals
without strict limitations and the process that even
murderers, armed robbers, and traitors are due,
and its claim that even the Supreme Court of
the United States cannot review its actions are all
threats to our liberty. The Supreme Court may
resolve some of these issues in pending cases. If these usurpations are not
stopped it seems only likely that the government’s appetite
for intrusion will grow. So far, however, the government has met little effective resistance. The government’s assault
on truth and liberty is joined with the government
assault on openness and an insistence on secrecy. After 9/11 the Attorney
General issued a memorandum to all federal agencies reversing
the previous presumption of openness under the
Freedom of Information Act and pledged his department
of support for denial of FOIA requests. Under his direction the
government secretly arrested and deported hundreds of
Muslim and Arab immigrants after closed deportation hearings. The United States Court of
Appeals for the Sixth Circuit held that secret deportation
hearings are unconstitutional under the First Amendment. It stated that a government
operating in the shadow of secrecy stands in complete
opposition to the society envisioned by the framers
of our Constitution and that open proceedings with
a vigorous and scrutinizing press served to ensure the
durability of our democracy. The Third Circuit held
the other way despite a thoughtful dissent. Not withstanding growing
concerns about secrecy the government readily
makes use of secret orders combined with gag orders,
a dangerous problem exacerbated by the Patriot Act. The current repression is reminiscent of the 1950s and 1960s. In the early 1950s although
there were many pleasant days the Berkeley campus was in
turmoil over a loyalty oath required by the university. Brave, able, and patriotic
teachers lost their jobs when they refused to sign the
oath which the Supreme Court of California eventually held invalid. The controversy cast a
pall on academic freedom at Berkeley for decades. During that time the FBI was also spying on J. Robert Oppenheimer
and other nuclear physicists even to the extent of
listening in to conversations between Oppenheimer and his lawyer. Students in the ROTC,
in which I was enrolled were apprehensive about
spending time in the area of Sather Gate, the campus
entrance, where both soapbox speakers and surveillance
cameras were located less they jeopardize their
future military commissions. The repression at Berkeley
didn’t end with a sudden burst of freedom in the 1960s
despite the notoriety of the Flower Children of
the Free Speech Movement. We now know from FBI
records released under the Freedom of Information Act
after many years of litigation with the government that in
1969 the governor of California planned for the destruction
of disruptive elements on college campuses. FOIA documents show that
Governor Reagan’s Legal Affairs Secretary met with the FBI
to review plans to hound protest groups and to seek
FBI approval of those plans. This lawyer, whom I
remember as a seemingly mild and unassuming person told
the FBI that the governor’s administration planned to
bring building code violations against them, audit
their taxes, and engage in psychological warfare. Beware of the smiling face of repression. FBI Director Hoover placed
his initial and wrote okay at the bottom of this
agent’s memo summarizing the nefarious plans. The FBI scrutiny of the
university even noted the following essay topic on
a basic English examination that topic was “What are
the dangers to a democracy “of a national police
organization like the FBI, “which operates secretly
and is unresponsive “to public criticism?” Although many things have
changed that English professor’s exam question is still
relevant given today’s climate and our attorney general’s
interest in establishing secret police powers one might
expect that it would still elicit government scrutiny. My background and interest
in free, honest, and open expression and liberty makes me skeptical of what I believe is our
government’s repression of truth and liberty in
an overreaction to terror. Like many Americans I
believe that our country’s essential values and
interests as a free country are inextricably linked. The values of truth, liberty,
and openness that I speak about provide the very
foundation for public debate. Robust differences of view
and varied and competing ideas about how international,
national, regional, and local challenges can be met. These values are common
ground in the writings and speeches of such
Senators of John McCain and the late Barry Goldwater
no less than in those of Patrick Leahy and Russell
Feingold, all extraordinary citizens who otherwise may
differ mightily on many issues of social policy. It is on that common and
nonpartisan ground that I speak today. I have no illusions about the
very real threat of terrorism. We have experienced 9/11,
Spain has experienced 3/11 and at any time in some
part of the world including our own country the bloody
hounds of terror may again kill and maim innocent
civilians and try to demonstrate their fanatical commitment and prowess and our corresponding vulnerability. Circumstances have changed
materially since 9/11. The appropriate responses
to terrorism, in my view, include smart and
aggressive action together assess and develop reliable
intelligence, but not to engage in demagoguery or fear mongering, to reform our intelligence
gathering processes and agencies, but not to blame
our failures on bureaucracy, to educate our citizens, but
not to assume a color coded alert system stands for
true education, to prevent terrorist attacks when
we can, but not to make enemies around the globe,
to develop effective crisis management and first response
programs with the involvement of local and state police,
fire, and emergency officials and supporting citizen groups
who engage in constructive and respectful diplomacy,
to foster international friendships and communications
and cooperative actions not antagonistic unilateralism,
to increase our knowledge of and international supervision
over nuclear weapons, and even to engage in military
actions on limited occasions approved by congress
or the United Nations. The appropriate responses
include some of the provisions in the Patriot Act itself,
including for example, strengthening criminal
penalties, and lengthening or eliminating statutes
of limitation for certain terrorist crimes, improving
the benefits and related procedures for public safety
officers, and expediting the hiring of translators of the FBI. Our history provides some
lessons about responding to violence and threats. These lessons include
trying to limit the response to the emergency and not
overreacting based on broad classifications,
political, racial, or religious. In the Civil War when
the Union was threatened President Lincoln, among
other acts, suspended the writ of habeas corpus in
an effort to restore order and disregarded the Chief Justice’s order to release John Merryman
who had been arrested by Union troops for helping
to destroy railroad bridges. Lincoln, in a special
message to Congress asked his famous question, “Are all
the laws but one to go “unexecuted and the
government itself go to pieces “lest that one be violated?” Congress, which was not in
session when Lincoln acted later approved the suspension. A careful reading of
history suggested he took what he viewed as emergency
action, trusting that Congress would ratify
them and believing that he was acting consistently
with his oath of office. Justice O’Connor has
recently written that Lincoln did not use his power
selfishly or arbitrarily and tried to err on the
side of free speech. In other incidents there
was far less calibration of emergency action and
far less justification. For example, Attorney
General Palmer’s raids during the Red Scare of the 1920s
and the government’s forcible expulsion into internment
camps of persons of Japanese ancestry during World War II. How shall we as citizens
respond to deception, intrusion, and secrecy? The Constitution employs the word citizen. That term is a solemn one
connoting active membership in a civil community. When the Constitution was
formed and Benjamin Franklin was asked upon leaving
Independence Hall what the framers had created he said, “A
republic, if you can keep it.” When Justice Brandeis issued
his celebrated concurring opinion in 1927 in the
Criminal Syndicalism of Whitney against California
he said that those who won our independence
believed that the greatest menace to freedom is an
inert people, that public discussion is a political
duty, and that this should be a fundamental principle of
the American government. When Judge Learned Hand
gave his famous speech entitled the Spirit of
Liberty, to new citizens in 1944 he said that, “liberty lies in “the hearts of men and women. “When it dies there no
Constitution, no law, “no court can even do much to
help it, while it lies there “it needs no Constitution,
no law, no court to save it.” Almost 50 years ago in 1956 when I was in my first
year of military service and when our country was emerging from the McCarthy era we
faced the real and imagined threats of Communism
and a Soviet Regime that had executed millions of
people and enslaved other millions in hard labor. With reference to Learned
Hand’s haunting words my father then remarked as
follows, “The judges whose job “it is to apply the
Constitution must carry liberty “in their hearts, even when
other men have ceased to.” Who is to say that liberty
is dead in the hearts of men who are silent? Liberty is not lost
suddenly, catastrophically, it is lost imperceptibly by erosion. Who is to say that it’s
irretrievably lost until it has died in the hearts
of those whose job was to care that it lived
in the hearts of others. It would be good to be
able to count on our judges who, like Justice Jackson in
the second Flag Salute case and held at the very purpose
of the Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy
to place them beyond the reach of majorities and
officials and to establish them as legal principles
to be applied by courts. Suppose however that the
day comes when we cannot count on judges or legislators
to protect our liberty. Surely, it would be better
to stand up to repression, to organize for the
preservation of liberty now while there are still
judges and legislators and conscientious
executives who may listen. Over 2500 years ago Heraclitus
of Ephesus said that the major problem with
human society is to combine that degree of liberty
without which law is tyranny with that degree of law without which liberty becomes license. We should ask ourselves
what responsibility do we as citizens have
to preserve that balance before courts, legislators,
and executives do not do so. In considering the
responsibilities of citizenship the starting point is our Constitution. It balances legislative,
executive, and judicial power allocates authority between
the national government and state governmentS
reserves unallocated power to the people and
establishes rites of liberty and equality that are
unparalleled in the world and in large measure are
in enforceable by courts. It says hardly anything, however, about the responsibilities of citizens. The 13th Amendment prohibits
slavery, but overall the Constitution, including its amendments is not structured to
address duties of citizens. Even such a basic issue
as whether individuals must identify themselves
in response to a request from a police officer is
presently pending decision in the Supreme Court. Under various statutes that
the Congress or the states have passed and under the
common law individuals may have certain duties ranging, for
example, from serving in the military to stopping
at a red light or being subject to liability for
negligence and causing personal injury to another. The debate over whether
a citizen has political responsibility however is ancient. It is a debate between
on the one hand Epicurus who, as summarized by
Jefferson said, “Happiness “is the aim of life and
the summum bonum is to be “not pained in body,
nor troubled in mind.” And, on the other hand
Cicero who reminded us that we are not born simply
for ourselves, but share a responsibility to others
including participation and leadership in one’s
political community. The dichotomy between
self-interest and altruism continues in modern turns. Our freedom allows us the
choice to go bowling alone, to pursue individual
pleasures without any sense of citizenship, community,
or responsibility and to just take and not give. It also allows us the choice
to heed John F. Kennedy’s eloquent plea in his inaugural
address, “Ask not what “your country can do for
you, ask what you can do “for your country.” Do Americans want to become
informed and involved or do they wanna be like the
person who, when asked if he knew the difference
between ignorance and apathy responded, “I don’t
know, and I don’t care.” (laughs) This debate reflects very
important and sincerely held beliefs about what
life should mean and what government’s role in the
lives of citizens should be. This country could not even
have this debate or confront or appreciate our differences,
however, if it did not have the rock of liberty upon which the freedom to differ is founded. Is there really cause for concern? Why not just be complacent,
passive, and phlegmatic? Many Americans are not
likely to be taken in by government duplicity and secrecy. Many still feel relatively
secure in jobs and homes and are law abiding. Many should not yet have
to worry about being packed off to a detention
camp or compelled to talk about beliefs or friends before
some hostile interrogator or subjected to secret government
surveillance of personal records and residences. Why should Americans care
if some misguided person or minority or radical
or alien gets caught up in a secret investigation
of clandestine activity or detained indefinitely
in some offshore prison? To me, however, it all the
more insidious that the repression occurring now
is mainly felt by aliens, those on the fringe of society,
citizens with radical views, victims of invidious
discrimination, and people who may not be so law abiding. Government will aim first at the weakest. They will target those
who lack public support and against whom there may
be a majority of opinion. It will not aim first at
the strong or those whom the public supports. Ironically, it has often been
the outsiders and the weak who have been the defendants
in Supreme Court cases that now stand as beacons
of liberty for all of us such as the Second Flag
Salute Case, the Gideon Case, the Miranda Case, and
the recent Lawrence Case to name just a few, four of many. Liberty does not defend itself. It requires individual
defenders and advocates. Free Americans should not
leave the defense of liberty just to those yearning to be free. In defending the rights
of aliens because they are fellow human beings, even
though they are not citizens, they’re entitled to the
full range of constitutional and statutory protections
Americans can also discover and express our own humanity. Even the slightest unjustified
intrusion on liberty requires a vigilant response. The direction of the
Constitution aims towards greater liberty, not less. These two points are clear
in the Supreme Court’s jurisprudence and particularly
well illustrated in two cases spanning over 40 years. In 1961, in Silverman
against the United States the court in an opinion
by Justice Stewart held that the actions of police
officers in attaching an electronic device, a
so called spike mic to the heating duct of the house
owned by the defendants thereby turning the duct
into a gigantic microphone running throughout the
entire house violated the Fourth Amendment. Accordingly, the
conversations overheard by the police officers were
inadmissible in evidence. The court had to confront an earlier case, Goldman against the United
States which held that the placement of a detectaphone
against an office wall in order hear conversations
going on next door did not violate the Fourth Amendment. In distinguishing Goldman the court said, “What the court said long
ago bears repeating now. “It may be that it is
the obnoxious thing in “the mildest and least
repulsive form, but illegitimate “and unconstitutional practices
get their first footing “in that way, namely by silent approaches “and slight deviations from
legal modes of procedure. “We find no occasion to
reexamine Goldman here, “but we’ve declined to
go beyond it by even “a fraction of an inch.” The court, in later cases, has adopted the same vigilant approach. In 2003, in Lawrence against Texas the court held unconstitutional a Texas
statute making it a crime for two persons of the
same sex to engage in certain intimate sexual
conduct as it applied to adult males who had
engaged in the consensual act of sodomy in the
privacy of their home. In his opinion for the
court, which also overruled a contrary precedent
Justice Kennedy said that, “as the Constitution endures persons in “every generation can
invoke its principles “in their own search for greater freedom.” Although there is an ebb and
flow to citizen participation and citizen resistance,
quite different things depending on the times, in times
of repression in particular there are many things
citizens can do to resist deception, intrusion, and
secrecy as well as contribute to the debate over values and
how best to combat terrorism. Become informed and vigilant,
participate in various venues of community opinion
and debate such as the internet thereby contributing one by
one to a growing consensus in the country and in the world. Mobilize city councils and
state legislatures to speak and act for liberty. Serve on local boards and commissions in a non-profit organizations
and help recruit good people for government and civic service. Vote and urge neighbors,
friends, relatives, and co-workers to register and vote. Educate ourselves about
threats and terrorists and how to deal with them. Train and enlist others such
as signing up in advance to be neighborhood watch
captains, first aid givers, or stretcher bearers for example. Ask our press and other
media to be inquiring and perseverant and not
lazy in their reporting. Demand due process for both
citizens and resident aliens and at the very least rudimentary fairness for non-resident aliens. Demand of our senators and representatives that they repeal the pernicious provisions of the Patriot Act. Tell the president that he
is wrong to demand renewal. As former President
Theodore Roosevelt said during World War I, “It
is absolutely necessary “that there should be full
liberty to tell the truth “about the president’s
acts and that the notion “that there must be no
criticism of the president “or that we are to stand by
the president, right or wrong, “is not only unpatriotic
and servile, but it is “morally treasonable to
the American public.” Protest the government’s
unjustified invasion of our liberties even
when, especially when that invasion is just
a fraction of an inch. In a time of terror
Americans may have to suffer some temporary and carefully
calibrated intrusion on civil liberties. No intrusion should be permitted, however, unless there is a true
emergency and then it should be under the watchful supervision
of a court or congress and limited in time. Americans are a self-reliant
and resilient people. We do not need to be
coddled, or protected by the government from
unpleasant information. In emergencies our natural
instinct is to reach out to help others. Americans can be told the
truth about what the government knows and does not know
in a forthright way that does not compromise
secret intelligence or military operations. We can demand government information under the Freedom of Information Act. We can challenge unconstitutional orders and unconstitutional
provisions of the Patriot Act. The lawyers and scholars
among us, in particular, can help sort out the
legal issues of liberty and security and pick up the slack left by an Attorney General who
gives priority to secretive law enforcement instead
of for the guardianship of our Constitution. A key challenge is to define
those areas that should be governed by principles akin
to criminal law enforcement with the attendant significant
involvement of judges and those areas it should
be governed by principles akin to military action,
foreign relations, or national security with
less significant involvement of judges, but perhaps
correspondingly more congressional oversight as well as executive oversight through inspector generals. Lawyers and scholars
can help as well provide the rationale for determining
who, including judges, decides which principles apply. Bar associations around
the country can call on our president to speak the
truth as the bar association of San Francisco and
many others did in 1973 during the Watergate Affair. I call such expressions
and actions literally and figuratively the
footsteps of Americans. When representatives hear
those footsteps not just once or twice, or here
or there, but everyday pounding in a crescendo
of strong beats then maybe they will begin to do what is right. Doing what is right
usually calls for balance, sometimes also for neutrality. I have spoken today
primarily about repression and overreaction by our government. Assaults on truth, liberty,
and openness do not necessarily come exclusively from one part
of the political spectrum. The words freedom now can
ring hollow in the mouths of zealots from the right
or the left who would overturn our system. Efforts to obtain truth or protect liberty or obtain government
information often fail as I can attest with an
illustration from my own practice. The scholar who was studying
the forced repatriation of anti-communist Russians
to the Soviet Union after Yalta and at the end
of World War II invoked the Freedom of Information
Act to request an old but classified Army file
entitled aptly enough Operation Keel Haul. On his appeal from the trial
court’s denial of his claim to see the file we urged
that a court should review the challenged classification. The court, however, upheld
the government’s claim of secrecy and shortly
thereafter the Supreme Court itself rejected a similar
claim in another case. It is important to recognize
that not every citizen’s effort will succeed, many
will fail or be thwarted. In my view, however, that
is all the more reason for continuing to try despite disappoints. Some good efforts will succeed. Earlier, I mentioned a
few of Wisconsin’s many great citizens, I would like
to mention five examples of other citizens who are
contributing to liberty in important ways in this time. Each person finds a way
to make a difference and make his footsteps heard. First, the police officers,
fire fighters, military troops, medical care givers,
and others who are called on to respond to acts of
terrorism as in Oklahoma City, and the World Trade Center. Second, my law school
classmate and study mate Senator Paul Sarbanes who
recently has contributed immeasurably to improving
corporate behavior through the Sarbanes-Oxley Act. He has strived, so far
unsuccessfully, to restore adequate funding for fire
fighters who are among our first responders. As a young member of the
House Judiciary Committee he was selected to present
the first article of impeachment of President Nixon
during the Watergate Affair. Paul is Greek and has remarked that quote, “Our word idiot comes from
the Greek word idiotas “which in ancient Greece
meant someone who leads “a completely private
existence, contributes nothing “to the public welfare,
so we don’t want idiots “in our society,” end quote. Third, my fellow
environmentalist Edwin Matthews, a business lawyer in New
York who is lead council for 175 members of both
houses of the parliament of the United Kingdom of
Great Britain and Ireland in a historic and unprecedented
brief amaicas curiae in the Supreme Court in
the Guantanamo Bay case. The members of parliament
urged that the detainees’ cases present disputes that
can be determined only by an impartial and independent
court and that indefinite executive detention
without judicial review is inimical to the rule of law. Forth, the growing band of
present and former conservative leaders in congress who are
expressing their disquiet concerning the Patriot Act
and seeking to rein it in. They may not go so far as
others in their statements but they are spokespersons
in a long tradition that includes then freshmen
Senator Margaret Chase Smith who delivered her declaration
of conscience against McCarthyism on June 1,
1950 at a time when such a statement was a rare of
great political courage. She was joined by only six colleagues. Fifth, I would like to
compliment Madison, Wisconsin and the now over 250
cities in the United States that have condemned the
provisions of the Patriot Act that threaten civil liberties. As a visitor here I am the
beneficiary of the actions citizens of Madison have
taken through their council. Over centuries brave men
and women have courageously defended liberty risking
their lives and careers. They are celebrated in ancient
legends such as Antigone’s struggle to give her dead
brother a decent burial. In the reports of battles
our country has fought for right and freedom in
modern accounts of resistance fighters, combat veterans,
and champions of Civil Rights, and in Nelson Mandela’s life
story The Long Walk to Freedom. Tom Fairchild has shown that
courage throughout his life including his challenge
to Joe McCarthy in 1952 for the Senate of the United States. His life and career are inspiring. By comparison it seems
little to ask that citizens stand up against a repression
of truth, openness, and liberties today. President James Madison,
for whom this city is named, understood the Constitution
as the people’s law which was to be revered and
not remolded by their servants. It seems little to ask
that we the people stand up for our law, our Constitution. The appropriate responses
to terrorism do not include deceiving the American
people, needlessly invading our liberty, or enlarging
a government of secrecy. They do not include passivity
on the part of citizens. If we as vigilant citizens
so choose the spirit of liberty that is in our
hearts will become also the voice of liberty in
our country, thank you. (crowd applauds) Thank you.
(crowd applauds) (crowd applauds) – Stay there, I’ve got a present for you. – Okay, thank you. (crowd applauds) – That was well done.
– Thank you, thank you. (crowd applauds) – Thank you so much Mister Traynor for those very thoughtful remarks. And, as a token of our
appreciation this is the symbol of the law
school, the gargoyle, and I guarantee you a
conversation starter, I hope, on your bookshelf. Anyway, we will not force
you and your delightful wife to have schlep this back to
Berkeley in your suitcases. We’ll ship it to to avoid
whatever Patriot Act detection is waiting for
you in the airport as you go through with this guy. – I’m deeply honored, thank you. – Mister Traynor has
suggested that it’s a delight to be back in a college
classroom, or a law school classroom and he would
welcome any questions. I don’t know if Lynne Thompson
or a member of her staff is out if we could get maybe
refill Mister Traynor’s water, I think would be good. – Okay, so who wants
to be the first penguin off the ice floe? Let’s get it started if we can. Yes. – My question is, kinda on
the (mumbles) of a possible solution in light of the
Patriot Act and other stuff. And, when I look at terrorism
what occurred on 9/11 was what you used the term
fanatical, which I think is wholly appropriate. The people who committed
suicide and intended to kill many Americans are the ones who did good. And, I look at the
solutions that you proposed and I don’t see really how
it could deal with prevention of a situation like that. And, in general, investigating
in such an intrusive manner as the Patriot Act
does may eventually protect us against one of these attacks. And, it occurs to me that
the solutions that you proposed, particularly
increasing criminal penalties seems to be wholly
inappropriate with people who obviously only care
about dying in martyrdom that wouldn’t apply. And, I just don’t see how these solutions really would protect us
against an incidence like that. And that limiting the intrusive
nature of the Patriot Act would protect the United States. And second question I have they
use the term true emergency. And, it seems to me that
the only way to know that it’s a true emergency is
through investigation beforehand to know that it is, to factor
into tell if it’s true. And, I’m wondering if you
can explain how we can learn that something is a
true emergency while still maintaining at least enough of it warrant an investigatory presence to verify that while limiting the Patriot Act. – On the first question, I
mean, citizens themselves can’t stop a 9/11, but we can
support aggressive measures, intelligent measures to strengthen our counterintelligence system. For example, in the preceding
administration, and I want definitely not to be political
here, counter terrorism activities is a high priority
of the Justice Department. The records that are
available and there are only a few on the web, but I’m
the story is much, much broader than that indicate
that in 2001 the FBI was asking for some $53
million in funds to strengthen counter terrorism activities
by hiring translators, researchers, and counter
terrorism specialists. In a letter ironically
dated September 10, 2001 the Attorney General
deleted that from the budget and recommended that that not be funded. So, I think we need, as a
government and citizens, to support intelligent and
good measures for effective counter terrorism and planning. That’s only a partial
beginning, but you’re right in assuming in stating,
I think, the studies of people who study
terrorists acts the one thing they’re willing to do
is give up their lives and they wanna demonstrate
their fanaticism and prowess, as I mentioned,
and do it with a flare flashing the scimitar or some
modern day equivalent of it. Now, the second question how do you define a true emergency. I mean, we have to rely
a great deal on our elected representatives and our executive. But, why can’t a court be
somewhat involved, at least, in that determination in
reviewing to make sure. Under the pre-Patriot
Act organization of FISA, the Foreign Intelligence Surveillance Act, a very careful work up had to be made by the Attorney General and he
had to certify personally to the truth of the statements made about whatever the emergency was to justify the surveillance order. Why not, oh thank you.
– You’re welcome. – Why not engage either
in appropriates cases the courts or in some cases
if the legislature’s better to review to have very
effective oversight by congress or in some cases as in the
case of the inspector generals who criticized the Attorney
General for the deportations, inspector generals who are
independent and well financed within the executive department? Okay yes, in back. – I’m just curious, I
wondering if you’re familiar with the work of a Harvard
Professor named Lance Carey who points out that the
single airplane on 9/11 that did not reach it’s
intended destination was the one in which a group
of citizens got together and made the conscious
decision to sacrifice their own lives by attacking
the hijackers and that therefore the dispersal of
information and globalized decision making was actually
the most effective technique for stopping the terrorism
once the hijacking had already occurred. So, I’m curious, you speak to
the point that it seems to me part of the problem with
the Patriot Act is that it does exactly the opposite
that the evidence that we have now indicates
that, the FBI had plenty of information before
9/11, they just didn’t use it very effectively. So, it’s not clear to me
how giving them yet more information just wouldn’t help. And, it seems to me that
in fact redistributing a lot of power of information
back to ordinary citizens would be a more effective technique. – They’re both wonderful points. It’s a great example, I
have a lot of references to site when the article
gets published and I will certainly use that one. And, I agree with you that
if we got better information, I mean we’re good people,
we’re American citizens that can understand these problems. We’re resilient, as I said. What we don’t want is some
fear monger or it could be in the form of a government
official or a TV newscaster talking about anthrax or
something but being totally uninformed and scaring people. We need to be educated about it. And, I think the more
information we can be given to share in that and
build up that education the better without
compromising, as I said, military actions or necessary
secret intelligence. I appreciate both of your points. Yes. – [Woman] Could you spell
out the difference between the rules of prisoners of
war as applied, let’s say, in World War II and the
rules that are applied to Guantanamo Bay prisoners
of war or proposals for variations from them? – I’ll try to do the best I can on that. The Geneva Conventions
and there’s four of them, I think the third applies
to prisoners of war, has some conditions in it. You get treated with
certain human conditions if you’ve been caught
and you’ve been fighting in uniform, you haven’t
been attacking civilians, you’ve been engaging in
what are considered to be, it’s hard to think of ordinary
acts of war, but military combat where people
necessarily are gonna be injured and die. I think the government’s
justification for not according the Geneva Convention
treatment is that their claim, at least, is that these
people in Guantanamo Bay did not qualify in terms of
being in a foreign uniform, fighting for a foreign military. The truth, I think, is we
don’t know what the truth is who these people are. Some of them appear to
have been turned over by warlords for ransom and
there may be a bunch of innocent people. There may be some very difficult criminals in that area. But, it’s not easy to
distinguish, but I think the rationale for the government
denying the protections of the Geneva Conventions to
the people in Guantanamo Bay is that they were not
within the definition of what constitutes adequate,
war like combat. Yes? – [Woman] It’s my impression
that there are demands being made for treatment
of those people that, treatment that was never
given to the prisoners of war during World War II,
they weren’t given rights to courts or anything. They were given food
and locked up, period. They had no rights to
court cases and that. – Well, we were in a war
and then when the war ended they were returned to their homelands. I mean, they were given by
and large with the exception, I think, of some cases
particularly including the Japanese internees were treated not brutally, but they weren’t given access
to courts and so forth, but they were returned and it
was a definite period of time. We’ve got these people in
Guantanamo Bay, it’s indefinite. They’ve been down there about
two years, no charges have been filed against them. – [Woman] There were no
charges against the prisoners of war, they were released
at the end of the war. – But, do you feel that that’s a precedent for Guantanamo Bay? – [Woman] I just wonder
what rules are that changed. I’m just trying to find out
and I don’t want to make a decision (mumbles) – Right now the executive is claiming the power, unheard of really in our country, to be able to label anybody it wishes as an enemy combatant and
that’s a term of art, that’s not a prisoner
of war who’s entitled to the Geneva Convention, to label
anybody an enemy combatant including a United States
citizen and detain them indefinitely and not allow
them to talk to a lawyer, not allow them any judicial
review to determine whether the even basic reason
for their being detained is adequate or not. And, if you think that’s
a good thing then I think we’d be in disagreement about that. Yes. – [Man] I think the post the 11th evaluations have not been thorough and careful
and thought out in a way that I find very dismaying. For instance, as I watched
the planes crashing in to the horrible sights of the 11th I just thought how the
terrorists had used our transportation system,
considered as a whole as a way of blackmailing our citizens and striking fear into them. And, I was thinking of
practical things like what if we would do a better job
of improving the rail system so that if people want to
travel from on interstate trips they can do that if they want to. Same with the highways,
you go out at the highway and just look and there
are huge trucks and there’s traffic that’s so frightening
that it’s no wonder that people want to go by plane. (laughs) And, look at the after effects of the war, which plunged us into
the worst deficit that we have ever had in our
country and none of the effects of that desperate deficit have come home. And yet, I see our
superintendent of schools and our members of the school board being vicious with each other because they’re discharging 20 teachers and there are stopping
sports and stopping schools of this and that and it
hasn’t even started yet. So, I think that what we need to do in our society is pull up our
socks and start concentrating on some analysis and do
something about taking the terrorism by the
throat and trying to keep the terrorists from
blackmailing our entire society. And, that’s not necessarily,
I mean although very importantly is the law, but
we have to start working as a society to preserve
our, I’m a conservative about the Bill of Rights, and I thank you. – To me two things come
out of what you just said at least in terms of
my reaction personally. One, is it’s very important
for citizens like yourself and all of us to engage
in discussions like this to see what the best answers might be. And second, to really
question the priority that being given to
anti-terrorism activity. I mean, why should it be a
priority to attack our liberty. Why shouldn’t it be a
priority to do what we really haven’t done yet, for
example, and that is to ensure better security at our ports
and our container facilities and our means of transportation. Yes, right there in the middle. – [Woman] Yeah, how can
an individual running for public office attack the Patriot Act and avoid being charged
with being unpatriotic without giving a classroom lecture? (laughs) – I think being honest
about how they feel about our country’s liberty. You struck a chord because
I think politicians should be bolder than they are. I wish more of them would speak out. I think what Senator
Feingold did, I mean imagine being the only dissenting
vote shortly after 9/11 when there wasn’t much
time for debate, and that’s one of the problems, and
he cast a dissenting vote. And, I think people are
beginning to see now that that was an overreaction
in the Patriot Act and some people are gonna rein it in. But, there’s a couple
of one sentence quotes I want to just refer to because they bear on your question. One is by the Attorney
General in December of 2001 in his testimony to the
Senate Judiciary Committee and this reflects what you
say about the fear mongering, quote, “To those who scare
peace loving people with “phantoms of lost liberty
my message is this, “your tactics only aid
terrorists for they erode “national unity and diminish our resolve. “They give ammunition to
America’s enemies and pause “to America’s friends,” end quote. And then, in the Padilla case
which is one of the cases involving an America
citizen Admiral Jacoby, who is the head of the
Defense Intelligence Agency filed an affidavit in which
he says, “anything that “threatens the perceived
dependency and trust “between the subject and the interrogator “threatens the value of interrogation. “Any contact with a
lawyer can undo this work. “Only after Padilla has
perceived that help is not “on the way can the United
States reasonably expect “to obtain all possible intelligence.” So, you have public officials
in high places making assumptions that to attack
and to challenge what they’re doing to our liberty
is somehow un-American. I think we, as citizen,
have to help our leaders, our politicians, our
representatives to have the moxie to stand up and resist
that kind of statement when the Attorney General,
for example, says that to members of congress,
there ought to be immediate opposition to that sort of thing. It’s the kind of thing
that happened during the McCarthy era. And, I guess, is it too much
really to ask as citizens that we elect representatives
who are willing to say those things and to make those kind of challenges as Senator
Feingold did from Wisconsin. Yes, in the front row there. – [Woman] Do you think
that perhaps beneath our necessary search for remedy to potential acts of terrorism that might loom in the future
that we need to be hard at work at learning how to understand the root causes of terrorism in the world? And, if you do think that how can individual ordinary
citizens do as you suggest, stand up and insist that
part of our efforts, scholarly government, and individual be devoted to defining and figuring out how to work with people who
might be inclined toward terrorism to help them expand
their personal horizons and find some other ways to view life? Is this an unrealistic hope? – I would hope it’s not
an unrealistic hope. I mentioned education. I think it’s gonna be
important for all of us to learn more about these enemies and supposed enemies of ours. I don’t know the Qur’an, I
plan to learn more about it. Sometimes the terrorists
will refer to passages in the Qur’an in justifying or explaining some dastardly thing that they’ve done. I think we need to understand
their culture more. If there are ways to reach
out to people who are Islamic but not violent to help
them and cooperate. But to arrogate to
ourselves as one country the idea that our Judeo-Christian
ethic is a supreme one to win in some sort of crusade,
the president was quoted, I think, by Woodward as
saying, he was asked if he talked to his father, no
he talked to a higher father. Well, that’s a connotation
that this is some sort of spiritual crusade that
people of the Islamic faith and Muslims are against us. I don’t think that’s true at all. And, I think if we learn
more about them as I believe you’re suggesting, if I’m
hearing you right, it’s going to take a passage of time. We’re gonna have to start
from, with some exceptions obviously, but we’re
gonna have to start from a fairly rudimentary base to learn. Yes, in the back. – [Man] I watched President
Bush do a speech on the Patriot Act this weekend. His main point seemed
to be why can’t judges and prosecutors have the
same powers that they already have to go after organized
crime and drug lords, stuff like that. Most of this stuff has
already been used against criminals and why can’t
they have those same kind of powers to go after terrorists. And, I think that’s a
very effective argument. Do you think that’s a
miscarriage of information? – The argument is based and
you hear it in more legal context, the argument is
based, “We’ve always had these “powers and we have them
through grand jury subpoenas “and this is just another
way of law enforcement.” I think there is an answer
to that and I understand the political effectiveness
of those remarks. But, with a grand jury
subpoena a court can review it, not a secret court in a
bunker in the Department of Justice building in
Washington D.C., but a court in the area where the
grand jury is sitting. A grand jury subpoena
can be challenged before a court as unreasonable,
as calling for information that’s not relevant, as
calling for information that’s privileged such as privileged under the attorney client privilege,
as calling for material that’s protected by the First Amendment. And, the Branzburg case
in the United States Supreme Court sets forth
some limits on that. It can be done via a
motion to quash or limit a grand jury subpoena
that’s presented to a court. You can also challenge,
there are limits on what you can do by way of a
gag order with a criminal or grand jury subpoena. Under the Patriot Act
the gag order is right in the statute, you shall not
disclose this to anybody. Under the grand jury rules
and under the other rules that the President and law
enforcement are referring to basically witnesses are not precluded. There has to be a separate
order from a court under rule 60 of the federal
rules of criminal procedure witnesses are excluded
from the people who are usually subject to grand jury secrecy. And, there’s a whole lot of
uncertainty, but it’s not at all clear that
witnesses themselves before a grand jury are subject
to an automatic gag order. So, it’s a very different situation. Now, I wouldn’t be opposed
to having judges involved in carefully reviewing the circumstances, but to just do it in one
secret court which has now issued over 15,000 orders
and only one time that I’m aware of did it not go along with what the government said and it
didn’t reject the government entirely, it modified
it, all seven judges of the secret court acted in what
was, I think, a courageous decision saying, “government
you’ve asked for too much, “we’re modifying your request.” And, the one and only time
that there was an appeal they got reversed by the
special review court. But, in a 25 year history
of the Foreign Intelligence Surveillance Act there
has been over 15,000 secret surveillance orders. That’s less than 1,000 a year. The last number I have
for 2003 is 1700 or more. In 2002 it was some 1200 or more. The government’s clearly
making much greater use of secret orders. And then, when it comes
down to our understanding, well how many orders did you get for 215 and how many orders did
you get for sneak and peak, and how many did you get for wire tapping or surveying the internet,
all of that’s classified. And, that’s supposed to
be reported to the Secret Intelligence Committees,
sub committees in both the House and the Senate. We don’t know, as Americans,
whether they’re doing their job as reporting. I grant you the political
effect, that’s there but it needs to be countered. And, I’m trying to counter it here. (laughs) – [Ken] I think have time
for maybe one more question and then we’ll have our reception. And, those of you who
want to pepper Mr. Traynor some more can do it outside. – I just have a question. You made passing reference
to the press in your speech and I wonder if you could
tell us what role the press can play in a time of repression. And then, what role you
think the press actually is playing in a time of repression. And, I guess my question
gives my bias away. – [Michael] What’s your bias? (laughs) – I’m not so sure they’re
playing the right role, but I certainly don’t want to
put too much blame upon that. But, I wonder if you
could expand a little bit on the role you think that they could play and that they may be playing. – I think they could be far more diligent in asking tough questions. I think when you get a
press conference you get sometimes people in the
Washington Press Corps and they don’t get a chance to follow up. They’re dusted off. The media training people
will say you don’t have to answer the questions that are asked. There ought to be some
way to have questions like cross examinations so
there’s a series of questions and it becomes part of our
expectation as citizens of our reporters that
they’re gonna be asking one follow up question after another until they get the answer that
they’re entitled to. I don’t think they’re doing the job now. I think that sometimes
they’re also engaged in scare mongering without the facts. I think we had some of that
during the anthrax scare. If we tried to educate us about what anthrax is, what
the dangers of it are, how long it lasts and so
forth instead of saying there’s been the mail of anthrax, everybody should get worried about it. So, I think they need
to be better prepared, certainly more vigilant, certainly tougher in their asking of questions
and not to just sit down and have an answer
fobbed off on them that’s a public relations statement,
but to call ’em on it. That’s what I think. – [Ken] Thank you, thank you very much. (crowd applauds) – Thank you, thank you. (crowd applauds) Thanks Tom.
(crowd applauds) – And everybody is
cordially invited to join us at the reception outside
which will start immediately.

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