Constitutional lawyer Douglas Kmiec

DATE December 18, 2002 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Professor David Cole discusses his views of proposed
new American security measures and the history of previous times
the federal government tried to restrict civil liberties
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

The war on terrorism has led to new security measures, like the Patriot Act
and the Total Information Awareness program. Do these new measures risk
compromising our freedom of speech, our privacy and our rights to associate
with whom we please? Today we'll hear from constitutional lawyers on each
side of that question. David Cole is the co-author of "Terrorism and the
Constitution: Sacrificing Civil Liberties in the Name of National Security."
He's a volunteer staff attorney for the Center for Constitutional Rights and
has litigated terrorism-related cases since the late '80s. He's also a
professor at Georgetown University Law Center and is the legal affairs
correspondent for The Nation. Let's start with the new Defense Department
program, Total Information Awareness.

Professor DAVID COLE (Co-author, "Terrorism and the Constitution"): Well,
this is really a quite remarkable project of the military to essentially
create a data-mining mechanism that would be able to go out and retrieve from
all of the sources, on computers and the Web worldwide, all the information
about any US citizen or, indeed, any person that is contained therein. So,
you know, when you buy something with your credit card, when you make a phone
call, when you search the Web, when you take a book out of the library, all
that information is stored in some computer file. And what the military is
proposing to do with Total Information Awareness is to give the military the
ability to pull up all that information on any given individual at any time.

GROSS: Does the government require any kind of warrant, any kind of special
power to do the type of total information awareness electronic profiling that
it wants to do?

Prof. COLE: Well, for the most part, no, because the Supreme Court has said
that any information that we share with a third party is no longer private
and, therefore, the Fourth Amendment, which generally prohibits the government
from intruding on our privacy without problem cause of a crime, does not
apply. So the government already can get your bank records, your school
records, your video store rental records, your credit card records and the
like without having to comply with the Fourth Amendment.

However, there have been statutory laws enacted that are designed to protect
this information from sort of willy-nilly snooping from the government, and
the proposal for Total Information Awareness would include loosening those
restrictions on the government from getting access to the information.

GROSS: So what are you afraid might happen if this goes into effect?

Prof. COLE: Well, I think there's really two problems. One is: Do we want
the government to be able to have access to essentially every piece of
information about our daily lives that we have to share with another person in
order to accomplish, you know, our daily activities? You know, yes, we have
to let the phone company know what phone numbers we're dialing and, yes, we
have to let the e-mail provider know who we're sending e-mails to. But do we
want the government to have that information? Do we trust the government to
use that information appropriately?

And secondly, do we trust the military to have that information? And I think
our history has shown that when the government engages in broad-based spying
and information collection without a specific tie to criminal activity, it is
very likely to engage in essentially political spying, spying on people who
express views in opposition to the government in power. And, you know, it was
a central practice of the FBI under J. Edgar Hoover in the '50s and '60s and
'70s and, you know, ultimately led to Richard Nixon spying on the Democratic
Party in the Watergate case.

GROSS: Total Information Awareness is headed by John Poindexter, who's also
considered to be the father of the concept. He was convicted of five felony
counts during the Iran-Contra affair. What was he convicted of?

Prof. COLE: He was convicted of lying to Congress about the government's
efforts to avoid explicit restrictions that Congress had provided on providing
aid to the Contras. And his convictions were overturned not because he was
innocent but simply because the courts found that Congress had given him
immunity in requiring him to testify about his wrongs before them and,
therefore, he couldn't be prosecuted for those wrongs.

GROSS: What do you think of Poindexter as the choice to head Total
Information Awareness?

Prof. COLE: Well, I think if you wanted to create a program that would
generate widespread public concern, you would call it Total Information
Awareness, you'd create a logo that says `Knowledge is power' and you'd put
John Poindexter at the head of it. I mean, I think this is a program that's
sort of doomed to failure from the beginning simply as a PR matter.

GROSS: Well, you'd prefer not that the program fail, but that it not start at
all. What are you trying to do to prevent Total Information Awareness from
going any further?

Prof. COLE: Well, I think the most important thing is to give people
information about Total Information Awareness, because I think if the public
is made aware of a program like this in which the military is going to be able
to get access to their everyday lives in a routine manner, I think the public
will stop it. I mean, we've seen that in the wake of September 11th. The
government proposed a program called Operation TIPS, which would involve
recruiting some 11 million US citizens essentially to spy on each other, to
spy on their neighbors and to report that information to the FBI and to the
Justice Department. When word of that program got out, like with Total
Information Awareness, there was a substantial outcry from voices on the right
as well as on the left. And in the homeland security bill, Dick Armey made
sure that there was a provision that prohibited any spending of money on
Operation TIPS. And I would predict that Total Information Awareness will see
the same fate. That is, it will die politically because it so greatly
intrudes on so many people's lives potentially that there will be a political
groundswell against it.

GROSS: David Cole is my guest. He's co-author of the book "Terrorism and the
Constitution." He's a professor at Georgetown University Law Center and
specializes in civil liberties and terrorism law.

We've been talking about some of the changes in the law since September 11th.
Let's look historically a little bit. What are some of the ways, for better
and for worse, the United States has reacted to threats against us in the
past? Let's start with World War I and World War II. Are there ways that the
FBI or that intelligence has acted in response to World War I and World War II
that's instructive to look at now?

Prof. COLE: Certainly. I think, in fact, what you see when you look at our
history is that in every time of fear, of broad-based fear--and usually it's
war, but not always--government reacts by taking broad-based measures,
short-circuiting procedures that are designed to distinguish the innocent from
the guilty, and relying on kind of broad prophylactic measures to ultimately
harm many, many innocent people. In World War I, for example, we made it a
crime for anyone to merely speak out against the war. Two thousand people
were prosecuted under this law, 1,000 were convicted and sentenced. One of
them was Eugene Debs, who was actually the Socialist Party candidate for
president. He ran for president from prison and earned a million votes. But
he was serving a 10-year sentence for doing nothing more than making a speech
in which he praised certain individuals who had resisted the draft.

In World War II, we interned 110,000 people on the West Coast simply for their
ethnic background, their Japanese ancestry. Seventy thousand of them were US
citizens, but they were of Japanese descent. The other 40,000 were Japanese
citizens. And the military argued that, you know, you can't distinguish. You
have to assume they're all going to be loyal to Japan, even though the vast
majority of them were US citizens, and interned them all from, you know,
elderly grandmothers to young children. So we've made some pretty bad
mistakes, and I think, in retrospect, we recognize those as mistakes.

GROSS: Going to ask you about another war, the Vietnam War, ways we reacted
to that that give you concern.

Prof. COLE: Well, to sort of see the Vietnam War era, you actually have to
look at it in the context of the Cold War because, really, many of the
measures that were applied in the Vietnam War began in the Cold War through
the FBI, in particular, targeted Communists and those who were thought to be
associated with Communists. You know, association with Communists could even
be, you know, your father was a Communist and you were influenced by your
father, `Therefore, we're suspicious of you. We'll put you through a loyalty
review program. If you're in the federal government, we'll call you before
HUAC. If the committee decides, the FBI will create a file on you.'

Well, in the Vietnam War era, those measures which were initially targeted at
Communists were extended to include women's rights groups, civil rights
groups, the peace movement, a very broad range of groups, so that the FBI was
spying on, you know, people like Martin Luther King and gathering information
about people's private lives, sending informants into organizations that the
FBI was suspicious of with the specific purpose not just of reporting on what
those organizations were doing, but actually disrupting those organizations.
They did things like dropped what they called `snitch jackets' on leaders of
radical or progressive groups. Snitch jackets were false documents that were
designed to lead people within the group to suspect that the leader was, in
fact, an FBI informant. They also wrote anonymous letters to the wives of
some of the leaders accusing them of adultery, of having affairs and the like.
They announced that meetings and demonstrations had been canceled that, in
fact, had not been canceled. And they really went very, very far.

And I think if you look historically, you see that the FBI initially adopted
these measures out of a legitimate concern that there was likely to be
sabotage, spying at the behest of the Soviet Union in the United States. But
ultimately, the program grew and grew and grew to where it was essentially
monitoring the political activities of everyday liberals.

GROSS: If you're just joining us, my guest is David Cole. He's co-author of
the new book "Terrorism and the Constitution." He is a professor at
Georgetown University Law Center, a volunteer staff attorney at the Center for
Constitutional Rights and legal affairs correspondent for The Nation. Let's
take a short break here and then we'll talk some more. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is David Cole. He's the co-author of the book "Terrorism and
the Constitution." He's a professor at Georgetown University Law Center and a
volunteer staff attorney with the Center for Constitutional Rights.

Well, we talked a little bit about some of your historic concerns. Let's get
back to the present. The Homeland Security Act was passed with the hopes
having America's security and defense agencies communicate with each other
more effectively and efficiently. Why don't you discuss what you perceive to
be the main facets of this act.

Prof. COLE: Well, you know, I think that the goal behind the act is a good
one. And one of the concerns that has been identified after September 11th is
that we have, in the federal government, many entities that engage in law
enforcement that is related in one way or another to terrorism and to the
threats of terrorism, from Customs to the FBI to the CIA to the DEA to the
Federal Emergency Management Association to the Coast Guard to FAA. There's
just a wide variety of groups, and they weren't talking to each other. They
weren't sharing information. Probably the most sort of egregious example was
that the CIA had identified, you know, dangerous terrorist individuals and had
not provided that list to the State Department, which decides on whether to
issue a visa to any given individual who wants to come to the United States.
So here one part of the government knew, you know, who the dangerous people
were, but it was not providing that information to the other part of the
government which was deciding who we should allow into the country and who we
should keep out of the country. I mean, that's crazy.

GROSS: From your point of view, do you think that John Ashcroft and Congress
have good intentions in creating this, that their number one goal is stopping
terrorism, or do you think that some or all of them have ulterior motives in
creating these new security bureaucracies and new security laws?

Prof. COLE: At this point, I don't see evidence that those in the Justice
Department and in Congress who are putting these new laws in places have an
ulterior motive. I think they want to protect us. They feel like they should
be given as broad powers as possible in order to do so. And I've been on
countless panels with government officials who essentially say, `Trust us,'
you know, `Yes, these powers are very broad. Yes, we can now lock up, you
know, aliens without giving them any hearing whatsoever. Yes, we're trying
people in secret. Yes, we can get warrants to search your home and to wiretap
your phone without probable cause of crime. But trust us. We will only use
it in good faith.'

And, you know, my response has been that has never been a particularly useful
way to organize a government. That has never been the theory of American
government. The theory of our government has been that we want a rule of
laws, not a rule of men or of persons; that we're not willing to simply give
government unfettered power and then trust them to exercise it wisely, because
what we have seen in the past is that when people exercise power, they enjoy
exercising that power and they are very likely to overstep their bounds in the
exercise of that power even when they're acting out of the best intentions.

GROSS: You have been doing litigation pertaining to terrorism since about
1987, years before September 11th. I'd like you to choose a recent or an
earlier case that you've handled that you think really represents the type of
problem you're concerned about now.

Prof. COLE: Well, it's hard to choose because there've been so many. But
I'll just take one, and that's a man named Mazen al-Najjar, who was an adjunct
professor at the University of South Florida, a Palestinian, who, before
September 11th--before September 11th--spent three and a half years in
immigration detention on the basis of secret evidence that he nor his
attorneys--which I was one--were ever able to see. The only thing he was told
about this information was that it showed that he was associated with the
Palestine Islamic Jihad, an Islamic fundamentalist group in the West Bank and
the occupied territories of Israel. And that's all he was told. He wasn't
told how he was alleged to be associated, who said he was associated, when he
was associated, what he was alleged to have done. But without knowing
anything further, he was unable to defend himself. He denied that he was a
member. He had people testify that he wasn't. But he was locked up for three
and a half years on the basis of secret evidence before September 11th.

We then sued in federal court and got a court to rule that it's
unconstitutional to lock a human being up without affording him an opportunity
to confront the evidence against him. A new trial was ordered. At the
conclusion of the trial, the judge ruled that there was absolutely no evidence
to suggest that Mazen al-Najjar was connected to the Palestine Islamic Jihad,
that he had ever supported the Palestine Islamic Jihad, that he had ever
advocated or engaged in any kind of activity and he ordered his release. He
was released in December of 2000.

Then September 11th happens, and in November of 2001, he's arrested again.
And the government simply repeats the charges that were disproved in the trial
a year earlier, does not say that there's any new evidence, says in a public
statement that he's not connected with September 11th, but their detention of
him shows that they're going to be tough on the war on terrorism. He was put
into solitary confinement and he had very, very restricted phone calls, very
restricted visits to his family. This is a person who was never charged with,
much less convicted of, even a petty crime. And yet, he was being locked up
under conditions far worse than we incarcerate most murderers, most convicted
murderers.

GROSS: What was the outcome?

Prof. COLE: Ultimately, he was deported to a third country that he doesn't
want to be named for fear of reprisals. But this is--and he was deported
simply for having overstayed his visa. But here's a person who spent four and
a half years in detention who has never, ever been charged with a crime. And
the only allegation against him was an allegation of political association.

I think what that illustrates is both--a number of things. One, the
government is very likely in the war on terrorism to engage in kind of broad
brush guilt by association, not to target people who are actually engaged in
criminal activity, but to go after people on mere charges of association.
Two, that it is likely to avoid the protections of the criminal process, where
you could never lock a person up on the basis of secret evidence, and instead
exploit administrative processes that allow it to avoid some of the safeguards
that we associate with a fair public trial, the right to confront the evidence
used against you. And, three, that it is likely to focus these kinds of
measures on the most vulnerable, in particular Arab and Muslim non-citizens,
people who don't have the same kind of ability to--recourse to the courts,
don't have the sort of popular support that other immigrants and, certainly,
citizens might have were the government to target them.

GROSS: David Cole, thank you so much for talking with us.

Prof. COLE: Thank you.

GROSS: David Cole is the co-author of "Terrorism and the Constitution." He's
a professor at Georgetown University Law Center and is legal correspondent for
The Nation.

We'll hear from a constitutional expert who supports the new anti-terrorism
security measures in the second half of the show.

I'm Terry Gross, and this is FRESH AIR.

(Announcements)

(Soundbite of music)

GROSS: Coming up, constitutional expert Douglas Kmiec explains why he
supports America's new security measures and why he thinks we need to update
our concept of privacy. And Lloyd Schwartz reviews some of his favorite movie
musicals that are now on DVD.

(Soundbite of music)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Douglas Kmeic discusses new security measures instituted
since the September 11th attacks
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

In the first half our show, civil liberties lawyer David Cole told us why he
thinks America's new anti-terrorism security measures compromise our civil
liberties. My guest Douglas Kmiec disagrees. Kmiec is a professor of
constitutional law and the dean of the Law School at the Catholic University
of America. From 1985 to '89 he served in the administrations of Ronald
Reagan and George Bush Sr., heading the Office of Legal Counsel in the Justice
Department. Since September 11th he's been asked by Congress to address
issues related to foreign affairs, authority of the president, national
security and the drafting of the Patriot Act.

Let's start with Total Information Awareness, the program which would enable
the government to get access to virtually all computerized information about
Americans. Do we really want the government to have the right to see every
aspect of our private life as it's been recorded electronically, our medical
records, our phone calls, our purchases, the books we've taken out of the
library and rented at the video store? Do you think there's potential here
for invasion of privacy?

Professor DOUGLAS KMIEC (Dean, Law School at the Catholic University of
America; Constitutional Lawyer): Of course there is, and for that reason we
need to get serious about updating the concept of privacy. The concept of
privacy as it exists in the law right now is a very underdeveloped concept.
Most of it is associated with forms of intimacy that the Supreme Court has
protected for a long time. The rest of our jurisprudence is related to
information that is associated with our political associations and things of
that nature, or finally that are protected under those aspects of the
Constitution that protect us from unlawful or unreasonable searches and
seizure in the criminal context. In other words, we have to update the
jurisprudence. We have to fully articulate what it is that we're willing to
keep private at all costs and what it is that we're willing to sacrifice in
any given circumstance for basic national security and personal safety.

GROSS: Well, I'm glad you brought that up. Where do you draw the line
between what you're willing to sacrifice in the hopes that it will give you a
more basic safety and what wouldn't you be willing to give up in this age of
terrorism?

Prof. KMIEC: I do think that there has to be a relatively rigorous showing of
probable cause when you're starting to invade bank records and tax records and
phone records of a private citizen. And, of course, those are the standards
that have applied in our criminal justice system and those are the standards
that have applied in the foreign intelligence area. There is a special court,
as you may know, for the obtaining of warrants to do surveillance for
individuals who are suspected of being agents of foreign nations or of
terrorist organizations. But a showing of probable cause has to be made
before an independent judge and a warrant has to issue before any of that
information is available. I, for one, think that's the right balance. Others
may disagree. But I think in this circumstance I think that's where I would
draw the line comfortably.

GROSS: Well, how is probable cause written into Total Information Awareness
as it stands now?

Prof. KMIEC: Well, probable cause exists as a constitutional standard. It
can't be escaped either by federal administrative or executive regulation.
Indeed, Congress can't pass a statute authorizing Total Information Awareness
and repeal probable cause or repeal the protections against unreasonable
searches and seizures. So the short answer is it's written into our
Constitution and that body of Supreme Court opinions which gives meaning to
the Constitution would be examined to govern and to confine Total Information
Awareness.

I think all of us are for privacy so long as that privacy is understood as not
absolute when there are countervailing security interests that are
constitutionally proven and demonstrated. This is how we conduct criminal
investigations. This is how we should maintain the balance in the national
security field, as well.

GROSS: Do you feel we have adequate protections with a Total Information
Awareness campaign, adequate protections that the government won't be spying
on dissidents or critics? After all in the Nixon administration we know that
the FBI was spying on anti-war activists and civil rights activists.

Prof. KMIEC: Right.

GROSS: What protections do we have?

Prof. KMIEC: Well, those are very serious concerns and sensitive concerns.
The protections that we have again are constitutional in nature. And
unfortunately all protections that we construct tend to be after the fact, so
that we live in a world where, if someone wants to disregard the Constitution,
if someone wants to disregard warrant requirements, if someone wants to
misapply authority to perfectly legitimate First Amendment and associational
activity, they can only be stopped and reprimanded or fined or imprisoned
after the fact. Be that as it may, it is important for us to have a robust
theory of constitutional privacy as it exists out of the Fourth Amendment, and
it is also important for Congress as it conducts oversight of Total Awareness
programs to write these limitations further into statutory law.

One example, Terry. This was done in the USA Patriot Act in two different
ways. One, the expanded authority was subject to very carefully limited
sunset provisions, so the expanded authority is only going to exist for the
next 18 months or so and then Congress is going to re-examine it. And also,
there's a specific provision that says those who use the expanded authority
and they misuse it are subject to fine and civil lawsuit. And I think it's
important to have both constitutional statutory protections.

GROSS: Now we're talking about the importance of being sensitive to civil
liberties in the handling of the Total Information Awareness program. The
head of the program and, in fact, the father of the program is John
Poindexter, the former national security adviser under President Reagan, who
you also served. And a lot of people are concerned that, you know, Poindexter
was convicted of five counts, including lying to Congress, during the
Iran-Contra scandal. His conviction was overturned on a technicality. But, I
mean, the question becomes: Is he the person you want to trust with all this
sensitive information about our private lives?

Prof. KMIEC: Well, I have to believe that John Poindexter's in the position
he's in because he's demonstrated to people in the Pentagon that, first of
all, he's very capable and intelligent and, second, that he can produce a
prototype of an information system that can then be presented to the secretary
of Defense and further presented to members of Congress before one is going to
have a sign-off, as it were, as to whether or not this is a program that
should become operational.

GROSS: But do you think it's a good judgment call to put somebody who defied
all these kind of oversight things during Iran-Contra?

Prof. KMIEC: Well, of course, I was in the Justice Department at the time
Iran-Contra was being litigated, and so one of the things that I recognized
about that dispute is that it had many sides. There was a pretty vibrant
debate at the time over what the respective authority of the president and the
Congress was with regard to various international situations in terms of what
the president could do in terms of raising money from foreign nations, what
the president could do in terms of authorizing discussions in the
international context that Congress may disagree with. That's a pretty
difficult constitutional line to draw with a good deal of precision. And so
while I'm not at all justifying anything that a criminal prosecutor prosecuted
John Poindexter for, I do think it was probably more of a complicated question
than sometimes our historical memory ever lets on.

I think John Poindexter is a capable man. I think he's going to be
well-supervised in this.

GROSS: My guest is constitutional expert Douglas Kmiec. We'll talk more
after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: If you're just joining us, my guest is Douglas Kmiec. He's dean and
professor at the Law School of Catholic University of America. He's an expert
in constitutional law. We're talking about the post-9/11 security measures
that have been or are being put into place, and these are measures which he
supports.

We're also talking on today's show with civil liberties lawyer David Cole.
One of the things he's concerned about is the right of immigrants. The
Patriot Act, he says, gives the attorney general unprecedented power to lock
up any immigrant that he certifies as a suspected terrorist. And these
immigrants are subject to potentially indefinite detention. And suspected
terrorism is broadly defined in the Patriot Act, the act that was passed
shortly after September 11th. Cole is also concerned that immigrants are
being detained without letting them know what the evidence against them is, so
it becomes impossible to defend yourself.

Are you concerned about this, too?

Prof. KMIEC: Well, I don't think either is true, and so I would respectfully
disagree with Professor Cole on both points. On the first point, I think the
best evidence of what has actually happened is to look at the numbers of
people detained on immigration violations and what's happened to them. Again,
I think the attorney general has been quite forthright in saying that anybody
who has been detained has had access to counsel. Now it is true that not all
of them who have been detained on terrorist-related suspicions have had open
proceedings, but that doesn't mean that they have been involved in proceedings
where they haven't had access to counsel. The attorney general has been
explicit that everyone who has been detained on immigration charges or
terrorist-related charges has been given counsel if they couldn't afford it or
have been allowed to pursue private counsel if they could.

GROSS: But getting counsel doesn't the answer the question of whether they're
told what the evidence against them is.

Prof. KMIEC: Well, I have to believe that any counsel who graduated from any
fine law school is going to ask that question and that's going to be the first
question they're going to ask and it's going to pursue a...

GROSS: But will they get an answer?

Prof. KMIEC: ...writ of habeas corpus relatively quickly if there's no answer
forthcoming. And so if, in fact, in individual cases that answer hasn't been
forthcoming, I suspect there has been some fault in terms of individual
representation, but I don't think it would be fair to attribute that to the
attorney general. The attorney general, after all, can't argue both sides.
His job is to enforce the immigration statutes.

GROSS: So you're disagreeing with David Cole. You're saying that evidence
like this isn't...

Prof. KMIEC: Actually, I just don't think it's correct. ...(Unintelligible).

GROSS: Right. You're saying evidence like this isn't being withheld.

Prof. KMIEC: Right.

GROSS: Now you have said that you're hoping that the public, the press, the
courts, other people in government will be watchdogs over any new legislation
or security measures to prevent any violations of civil liberties. Now one
program that was met with pretty negative reaction, and I think that program
has just kind of disappeared, is TIPS, the Terrorist Information and
Preventive System. This is the system where people were basically asked to
keep their eyes open and inform on any neighbors or the pizza delivery man or
the taxi driver that seems to be doing something suspicious. What's your
understanding of what happened to this? Has it just kind of like disappeared
because of bad public reaction?

Prof. KMIEC: Well, I don't think it was the most serious building block in
our protection against al-Qaeda or the terrorist threats so that it was
something was lightly, I think, suggested in the first place and then,
secondly, easily forgone when it did have some negative reaction. It's a very
distasteful thing to contemplate.

But, Terry, you'll remember, that part of the program was also coupled with a
part of the program that was very successful, and that was a program that
asked individuals who fit a certain template, a certain age range, a certain
travel pattern, a template that was similar to that of the 19 hijackers on
September 11th, and that voluntarily asked them to come forward and supply
information, and that program was very successful. And there are, I believe,
a number of ongoing prosecutions in New York and on the West Coast that are
directly related to the information that was obtained, you know, out of those
voluntary programs. And I don't think that's at all uncomfortable.

I think--you know, we just lived here in Washington, DC, for a month under the
scourge of a sniper who was killing people at will. And one of the things we
very much wanted on our 9/11 phone lines was information about
anything--suspicious-looking cars, suspicious-looking individuals, people who
were in the wrong place at the wrong time--and, in fact, it was that
information and it was that public spiritedness of a truck driver and others
that ultimately led to the arrest of the snipers.

GROSS: Are there any final thoughts or points you'd like to leave us with?

Prof. KMIEC: Well, here's two sort of interrelated points.

GROSS: Mm-hmm.

Prof. KMIEC: One of the things that I was privileged to help the Department
of Justice with was its initial thinking on the fashioning of military
tribunals and the rules and regulations that now have been put into place for
those tribunals. I think this is a very important avenue to have in the
context of a war on terrorism. And if there's one place where I think that
constitutional liberty and national security has gotten intermixed in terms of
the wrong balance, it's in the assignment of the Zacarias Moussaoui case to
the normal criminal justice process.

Mr. Moussaoui, as you know, is in the normal criminal process in the Eastern
District of Virginia. His claim is basically that he, you know, is a
sympathizer with al-Qaeda, but he had nothing to do with the 9/11 planning.
What we do know from parallel proceedings taking place in Hamburg, Germany, of
individuals who were part of the Hamburg cell and from the interrogations of
Ramzi Binalshibh, who was captured in Pakistan and who's one of the principal
financiers of al-Qaeda, is that Mr. Mousaoui is tied in much more closely with
9/11 planning than he would want us to believe.

Now the problem is that by virtue of the fact that he's been put in the normal
criminal justice process he is entitled to all of the constitutional
protections that one gets once that criminal justice process is launched
including, of course, the right to directly confront witnesses. Well, how
does he directly confront witnesses like Ramzi Binalshibh who are being held,
properly so, in classified locations and whose interrogation would be
jeopardized if he was to be brought to the Eastern District of Virginia as a
witness either on behalf of the government or, for that matter, on behalf of
Mr. Mousaoui, who has a Sixth Amendment right to have access to witnesses?

So I think it's very important that as we move along in this war on terrorism
we recognize that there's a fundamental difference between individuals who are
being held as enemy combatants and individuals who are being charged with a
crime. Individuals who are being held as enemy combatants are people that
have been snatched off battlefields or involved in the planning of attacks
against us, and they can be held for the length of the war. Individuals who
are going to be prosecuted for a crime have to be prosecuted expeditiously,
they have to be given rights of counsel and they have to be given all the full
constitutional protections that are associated with the criminal system. So I
would hope that the attorney general as he proceeds would be careful about
drawing that line, to make sure that the right process is initiated for each
individual that comes to his attention.

GROSS: Douglas Kmiec, thank you very much for talking with us.

Prof. KMIEC: Very good to be with you.

GROSS: Douglas Kmiec is the dean of the Catholic University of America's Law
School. He served in the Justice Department during the Reagan and Bush Sr.
administrations.

Earlier in the show, we heard from civil liberties lawyer David Cole, who
believes America's new security measures threaten our civil liberties.

Coming up, music critic Lloyd Schwartz reviews some of his favorite movie
musicals which have come out on DVD.

This is FRESH AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Review: Classic Hollywood musicals now out on DVD
TERRY GROSS, host:

Movie musicals make entertaining holiday viewing, and our classical music
critic Lloyd Schwartz takes great pleasure in watching the wide variety of
them on DVD. Here are some of Lloyd's favorites.

LLOYD SCHWARTZ reporting:

Hollywood may not be making musicals anymore, but many of the best ones are
out now on DVD and DVD is an ideal venue for them, especially the movies where
plot is secondary to the musical sequences. Is there a number so appealing or
exhilarating you have to see it again instantly? Just click the remote--no
waiting; no rewinding. One number I can't stop looking at is Johnny Mercer
and Harry Warren's Oscar-winning "On the Atchison, Topeka and the Santa Fe,"
from "The Harvey Girls," a musical Western starring Judy Garland and her old
"Wizard of Oz" buddy Ray Bolger. This 1946 film was made long before stereo,
but MGM had been experimenting with multiple miking. One special feature on
the DVD is the authentic stereo soundtrack for that still glorious 56-year-old
production number.

(Soundbite of "On the Atchison, Topeka and the Santa Fe")

Unidentified Man: All aboard.

Ms. JUDY GARLAND: All aboard.

Backup Singers: We came across the country lickety-split. Rollin' ninety
miles an hour.

Ms. GARLAND: I can't believe we're here at last.

Backup Singers: Woo-oo-ooo! When you go travelin', it's best for you to take
the Atchison, Topeka and the Santa Fe.

Ms. GARLAND: I can't believe that anything would go so fast.

Ms. GARLAND and Backup Singers: Then you pull that throttle, whistle blows,
a huffin' and a puffin' and away we go.

Ms. GARLAND: All aboard for California on the Atchison...

Backup Singers: On the Atchison.

Ms. GARLAND: ...on the Atchison, Topeka...

Backup Singers: On the Atchison, Topeka.

Ms. GARLAND: ...on the Atchison, Topeka and...

Ms. GARLAND and Backup Singers: ...on the Atchison, Topeka and the Santa Fe.

SCHWARTZ: Speaking of "The Wizard of Oz," that DVD includes home movies of
the eliminated jitterbug number and the complete version of Ray Bolger's
marvelous scarecrow dance before it was edited down. And speaking of Judy
Garland, the "Annie Get Your Gun" DVD includes outtakes of two Irving Berlin
songs that Garland filmed before she was fired and Betty Hutton took over. At
the end of one take, you can see Garland's exhaustion, but there's no hint of
it during the actual scene.

Garland's greatest film may be the 1954 remake of "A Star Is Born" with James
Mason in what might be his greatest role. On DVD, you can watch the uncut,
three-hour, wide-screen film without interruption, then flip over the disk and
see three outtakes of Garland's greatest musical number, Harold Arlen and Ira
Gershwin's "The Man That Got Away." Garland recorded the song early in the
filming, but director George Cukor had trouble coming up with a screen image
that matched the quality of the soundtrack. After some 40 takes over a
four-month period with different costumes, hairdos, close-ups, even characters
like a cook who walks across the screen wearing a big chef's hat, it's very
satisfying to see how in the last take everything clicked.

The supplementary features on DVDs are often extraordinary. Kino Video's
beautifully restored DVD of Josef von Sternberg's 1930 masterpiece "The Blue
Angel" in both the original German and English versions includes Marlene
Dietrich's chilling screen test singing "You're The Cream In My Coffee."
Insinuating is putting it mildly. No wonder she got the part.

My favorite feature on the new two-disc "Singin' In The Rain" DVD are clips of
the original screen incarnations of all the old songs by Arthur Freed and
Nacio Herb Brown, recycled for this film. The title song was first sung by
Cliff "Ukelele Ike" Edwards in the Hollywood revue of 1929. Ike later became
the voice of Jiminy Cricket.

(Soundbite of "Singin' In The Rain")

Mr. CLIFF "UKELELE IKE" EDWARDS: (Singing) I'm singin' in the rain, just
singin' in the rain. What a glorious feeling. I'm happy again. I'm laughing
at clouds so dark up above. The sun's in my heart and I'm ready for love.
Let the stormy clouds chase everyone from the place. Come on with your rain.
I've got a smile on my face. I'll walk down the lane with a happy refrain,
just singin', singin' in the rain.

SCHWARTZ: Jazz aficionados should find fascinating a 1947 film on Kino Video
called "New Orleans" in which Louis Armstrong co-stars with Billie Holiday,
who plays a singer working as a maid in one of her rare screen appearances.

For classical music fans, there's Edgar Ulmer's "Carnegie Hall" from 1947 with
the thinnest of plots, but with some thrilling performances, including the
complete first movement of the Tchaikovsky violin concerto with Jascha
Heifetz, who plays it with more passion here than on any of his recordings.

There's some opera, too. In "The Big Broadcast of 1938," a shipboard comedy
with W.C. Fields in a dual role and Bob Hope and Shirley Ross singing "Thanks
for The Memory." The most famous Wagnerian soprano, Kirsten Flagstad, yodels
Brunhilda's battlecry from the Valkyrie. That same DVD also includes Raoul
Walsh's "College Swing," a little-known 1938 musical with a song called
"You're A Natural" sung and danced by the completely adorable Gracie Allen.

I can't think of anything more perfect for DVD than the old Busby Berkeley
musicals with their spectacular kaleidoscopic numbers, or the sublime films
with Fred Astaire and Ginger Rogers, but only "42nd Street" among the classic
Berkeley films is on DVD and no Astaire-Rogers at all. Maybe someone will see
the light before next Christmas.

GROSS: Lloyd Schwartz teaches at the University of Massachusetts, Boston.
I'm Terry Gross.

Here's Marlene Dietrich from her screen test for "The Blue Angel."

(Soundbite of "You're The Cream In My Coffee")

Ms. MARLENE DIETRICH: (Singing) You're the cream in my coffee. You're the
salt in my stew. You will always be my necessity. I'm lost without you. You
are the cream in my coffee. You're the salt in my stew. You will always be
my necessity. I'm lost without you. Ooh-hoo, aha, ooh-ooh, ah. You will
always be my necessity. I'm lost without you.
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