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Con Carroll of Heritage Foundation debates Bruce Fein of American Freedom Agenda

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REP. RON PAUL (R-TX-14): Guess who the true early patriots supported. They didn’t support the current government that they had. And yet today they want you to believe that patriotism means that you support everything the government wants. A true patriot defends liberty and the people. And just naming a bill the Patriot Act and voting for that doesn’t make you a patriot.

PAUL JAY, SENIOR EDITOR: Welcome back to the next segment of our interview and discussion with Conn Carroll—he works with the American Heritage Foundation for Media and Public Policy—and Bruce Fein, the founder of the American Freedom Agenda and an advisor to Ron Paul. We just heard a quote from Ron Paul about how a true patriot would repeal the Patriot Act. How do you respond to that, Conn?

CON CARROLL, HERITAGE FOUNDATION: The Patriot Act’s become a stand-in for such a negative surrounding of issues that people just have an emotional response to. But when you get down to the specifics of what is going to be repealed or not repealed, I think we see that there’s a well of support for what is actually in the Patriot Act.

JAY: It doesn’t get talked about very much anymore. It was voted for by most Republicans, but also most Democrats. What is your critique of the Patriot Act? And why is it such a symbol?

BRUCE FEIN, AMERICAN FREEDOM AGENDA: Well, let me give you an example. They’re called National Security Letters. And under the Patriot Act, a National Security Letter could be issued any time the FBI directed an administrative subpoena, if you will, to any business, library, phone company, credit company, and saying, “We want these records concerning an American citizen because it’s,” quote, “’relevant’ to a terrorist investigation.” Now, what was quite troubling is that under the Patriot Act it was illegal for the recipient to communicate with a lawyer, to talk about it at all. It created suppression, so that it made it almost impossible to even challenge the legality of the administrative subpoena in any court of law. Indeed, it was so contrary to the Constitution that every court that had examined it held it invalid, and the Patriot Act had to be amended in order to accord with due process of law. Now, it is true in my judgment that, as Conn said, there have been exaggerations, I think, as to what the Patriot Act itself accomplished. Some of the things were sensible, like sharing information between intelligence and law enforcement to enhance both, that is, reducing the standard for obtaining a FISA warrant from—the primary reason is to obtain foreign intelligence to a significant purpose as to obtaining foreign intelligence [sic]. But if you look at a broader philosophical base, this really is a proxy, if you will, from other sister statutes, like the Military Commissions Act. And, moreover, the authority under the Military Commissions Act for the president to detain American citizens, the so-called unlawful enemy combatants—they aren’t accused of a crime, they have no trial for a crime, and they can be held indefinitely simply on the basis of the president saying, “We think you’re connected in some way with al-Qaeda.”

CARROLL: Where do you want me to start? I’ll start with the Patriot Act. You know, Bruce just contradicted himself. He said it [is] impossible for a company to challenge a National Security Letter, he said. But then he went on to say that courts eventually ruled that those letters were abusive. Well, the only way those courts could ever rule that is if a company successfully challenged them. So when Bruce says they were next to impossible to challenge, what he meant was that they were very possible to challenge, and the courts have struck them down. So the system works. It’s not the first time that Congress has passed a law that Congress has reconsidered. Moving to the Military Commissions Act, his next [inaudible] there. For the Military Commissions Act, the trials that go on in Guantanamo Bay, those detainees are given more rights than US soldiers who are charged by the US Army for offenses there; they are given more rights and more procedures than our own soldiers when they are charged with crimes. Furthermore, we cannot have US soldiers overseas in Afghanistan and Pakistan turning it into a CSI unit. We can’t bring in, you know, the Las Vegas CSI unit to conduct massive forensics investigations in the middle of a battlefield. It’s just a physical impracticality.

JAY: Well, Bruce, do you want to pick up quickly on Conn’s response on the first two points?

FEIN: Oh, the first two points? Well, number one, initially the protest had to be filed under a cloak of secrecy in order to challenge the act. Now, it is true it was a violation in order to challenge the act, and the court said it’s invalid, but it’s hardly a defense of the Patriot Act to say, “My gosh, it was constitutionally void, but the courts got it right,” because the courts get it right in a very delayed basis. What about all the suppression, all of the abuses that go on in the interim? Generally speaking, they’re not remedial. Secondly, with regard to this idea of the Military Commissions Act giving more rights than what would happen in a court martial, that is exactly what does not happen, because there are proposals in the Defense Department protesting the Military Commissions Act—I guess this was in the version that was just an executive order—to try the enemy combatants of so-called war crimes by military courts martial, and they said no. In fact, that was the reason why the US Supreme Court held the executive order unconstitutional, ’cause it didn’t demonstrate why following customary uniform code of military justice wouldn’t work. And, lastly, with his claim that, “Oh, it’s impossible to gather evidence of crime from battlefields abroad,” well, that simply is not true. We have prosecuted those who were involved in the Kenya, in Tanzania embassy bombings in the United States courts. And until Mr. Bush came along, we had an indictment against two—Osama bin Laden, still out there—by a federal, civilian grand jury, for trial in the United States for plotting the destruction of defense institutions. So these kinds of things happen all the time. We gathered evidence abroad when there’s international drug trafficking rings.

JAY: Let me ask you an underlying question. A great number of people in the thousands and tens of thousands, and across the country perhaps in the millions, believe and support Ron Paul’s ideas. And there’s within a section of the Republican Party a kind of alienation, based on what people call this growing police state. There’s talk of potential civil disobedience. How do you explain this coming into being, this movement with so much force?

CARROLL: Yeah, I think you sell Ron Paul a little short. The Ron Paul phenomenon is not just all civil liberties, “Let’s get rid of the Patriot Act.” You know, I was at law school at George Mason in 2004 when I actually first met Ron Paul. He was at, actually, a federal society meeting. And of all the speakers on campus that year, he definitely packed them in the most. And George Mason’s actually a very, very conservative law school. And Ron Paul has a very originalist, Tenth-Amendment-friendly view of the US Constitution that many conservatives find very, very appealing. He’s very much a libertarian in his view of the size of government. So there is that appeal to Ron Paul that many in the party feel themselves drawn to.

JAY: But I listened to Ron Paul’s speech tonight, and I would say the majority of it, in fact, was on the question of civil liberties, though some on the economy, and certainly foreign policy. But, Bruce, what do you account for this feeling amongst so many Republicans that civil rights and the constitutional rights are being abused?

FEIN: The Ronald Reagan administration came in devoted to the idea—which may seem quaint to Conn—of the original intent the Founding Fathers had for the country and the Constitution and civil rights and individual rights. That indeed was the standard we used and I used in helping point people to the United States Supreme Court. So it’s hardly a novelty that conservatives would believe, yeah, the original meaning of the constitutional philosophy and text of the Constitution ought to govern unless you want to amend the document. And now we have a president and a Republican Party that flouts that at every turn. Let me give you one example. It is as clear beyond peradventure that every Founding Father believes that only the Congress could initiate warfare, authorize the initiation of warfare. Every one of them said, “We don’t want a single person to be able to change the state of conditions in the United States from peace to war.” And yet we have this president and the Congress, both the Democrats and the Republicans, voting to delegate [to] the president the authority to initiate war. That’s what happened with regard to Iraq. Indeed, Joe Biden was the chief architect of that. And so of course conservatives are going to be perplexed at why the original intent that was the North Star of the Reagan administration suddenly has been abandoned for political convenience.

JAY: Conn, quickly, but you get the last word.

CARROLL: Sure. Yeah. I just don’t remember Bruce complaining with all of Reagan’s adventures overseas. I don’t remember him complaining about the very similar use-of-force measure that the first Bush used in Iraq in ’92. And, you know, I guess he was vetting, you know, Reagan appointees. Then he did a great job with Scalia, who agrees with me on the Military Commissions Act, and that it is impossible to conduct evidentiary gatherings, soldiers doing it overseas. You know, I think what we’re overlooking here is that Bruce and I really do, when it comes to Ron Paul, have a very similar understanding of the Constitution when it comes to the economy, when it comes to the size of government and domestic matters. And there is a civil liberties piece and a foreign policy piece where we differ, but I think when you look across the aisle and you look at a Barack Obama ticket, where, you know, Joe Biden, as Bruce just pointed out, voted for the war, went along. When it comes to the rest of the issues—and, remember, Barack Obama signed onto the FISA court, signed onto [inaudible]—Bruce isn’t really gaining much. And if you look back to the rest of what the left wants to do as far as raising taxes, talk about delegating authority, the Congress would love to pass a huge cap and trade bill which would delegate to the EPA pretty much the central [inaudible] in the entire economy. This is something that Ron Paul voters would hate.

JAY: Okay. Conn, I’m going to—Bruce—because you took a direct shot at Bruce, I’ve got to give Bruce a very, very quick response. But, Bruce, you’ve got to give me just a few sentences.

FEIN: The quick response is I’m not voting for Barack Obama or Joe Biden either. So this idea that if you’re criticizing Bush you’re voting for Obama is simply wrong-headed. And the fact is that on the Scalia and Military Commissions Act, he certainly did not revert to the original intent. Scalia sometimes departs from what he purports his own philosophy is about. And I still go back to the idea that the Reagan administration, even though, as he points out, sometimes it was deviant from its philosophy, was one of original meaning of the Constitution. And that has been totally jettisoned in favor of, really, one-branch government after 9/11: we’re at permanent war with international terrorists; everything changes; we don’t have to abide by laws that we think constrains us; we don’t have to ask Congress to amend statutes—we just flout them.

JAY: Bruce, just to make things clear, because Bush isn’t running, I’m assuming you’re not voting for John McCain. In one word, let me ask you: you don’t see a fundamental difference between McCain and Bush on the kind of issues we’ve been discussing?

FEIN: No, and not very much between McCain, Bush, and Obama, for that score. Obama takes troops out of Iraq, sticks them in Afghanistan. So I think all of those three names you mentioned are way off the mark.

JAY: And, Conn, just to get the record clear, I’m assuming you will be voting for John McCain.

FEIN: Oh. Actually, I don’t know. I haven’t decided yet.

JAY: Is that right? Really? Well, that’s a fascinating conversation, which we’ll have to have another time. Thank you all for joining us, and we’ll be back with more conversation like this very soon.

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