Steven Brill

How Much Freedom Is Too Much?

VTR Date: April 10, 2003

Law writer Stephen Brill discusses the limits of freedom.


GUEST: Steven Brill

I’m Richard Heffner, your host on The Open Mind. And when my guest today first sat here with me 20 years ago, the cutting things he seemed so often to write about the law and its practitioners led me to characterize him as something of “the Peck’s Bad Boy” of the legal profession.

Which, of course, brought a bit of a smile to Steve Brill’s face and a chorus of “You said it’s from the lawyers who knew him then and read his brilliant and so accusatory and mudracking publication The American Lawyer.

Later, Steve Brill went on via his very much for-profit “Court TV” Channel to champion cameras in the courts, which I most often thought of and described as an absolute abomination, a kind of “very bad idea who’s time, unfortunately, had probably come in America’s media market place and First Amendment dominated society”.

Still later my guest went on to tick off even his fellow media moguls with Brill’s Content, a brilliant magazine about the media, print and electronic alike, that soon disappeared, on its merits, many people said, and largely unlamented.

But now Steve Brill catches our attention with an absolutely bigger-than-life Simon & Schuster volume, titled After: About America After 9/11. Adam Liptak in The New York Times describes my guest’s massive undertaking as chronicling the nation’s reactions to the attacks from the perspectives of a score of people affected by them in various ways. And as ambitiously, and sometimes frustratingly, panoramic.

In New York magazine, critic Michael Wolf writes, “Media’s biggest bully ducked out of the limelight for fifteen months to write a ‘God is in the details’ account of life post 9/11.” And asks, by returning to writing, has Steve Brill found a new way to dominate?

Well, his answer, to be sure, seems very much to be affirmative for “There’s not a journalist who wouldn’t envy Brill’s book which surmounts the insurmountable, makes coherent the incoherent, delves deeper than anyone else, finding a good story where it seems highly unlikely there would be one. The basic, factual, unsentimental account of lots of people getting their act together.” Which leads me, of course, to ask my guest how he has gotten his own “act” together. After all, having long been a self-proclaimed First Amendment absolutist, he now supports risk profiling and a national identification card. What’s next? And how much freedom is too much? Steve, that’s not an unfair question it seems to me.

Brill: It’s not unfair, but it’s, it’s not logical.

Heffner: Tell me why.

Brill: I’m still a First Amendment absolutist. There’s nothing inconsistent about saying or arguing that people should be able to say what they want, express themselves exactly as they want and then saying that leaving that Amendment aside, there are certain steps we have to take to preserve our security in this country, that have nothing to do with expression and nothing to do with free speech or the First Amendment, but have to do simply with the, the act of coming into the building you and I are in this morning. Ahmm…

Heffner: So you’re not feeling …

Brill: I don’t …

Heffner: … differently about the First …

Brill: Certainly not, at all. He just got that wrong. I think either he got it wrong or the typesetter transposed a word. But not at … not one iota … the simple fact is that …nor do I support a quote “national identification card”.

What I do think makes sense is that the private sector ought to figure out a way to have a voluntary identification card so that when you and I walk into a building, or a train terminal there can be a fast line for people who have volunteered to be screened and get a privately issued card that says they’re not felons, they’re citizens or they’re legal immigrants and therefore they can be trusted a little more than the people who don’t have the card. Which means that they would be searched with a little less care, they’d move through the line faster than people whom we don’t know.

I think that’s just a practical step, I don’t think that has anything to do with, with taking away our basic freedoms. I do think we have to get realistic in this country. And what we found out on September 11th was that there were 19 people living very quietly among us who were ready to kill us and that’s a … something that we’ve never really had in this country. We’ve never been afraid, had cause to be afraid that events going on on the other side of the world could endanger us and our children here at home. And we have, we have to deal with that. And the book is about how a lot of people from a lot of different perspectives, whether it’s the Director of the ACLU, who’s the major character in the book, or John Ashcroft … how do they go through those agonizing decisions?

Heffner: Steve, let me ask whether there aren’t likely to be a good many people who would say agree with Steve Brill completely. And we need to look at things somewhat differently, or realistically, I think that’s the word you used. But that realistically means you don’t leave this matter of a national identity card to voluntarism. Why do you continue to push voluntarism?

Brill: Well, the voluntarism is the people who sign up for it. The biggest problem we have in dealing with the question of who people are … when they mass on line to get into some place … it is figuring out how to assess risk. How to manage risk as the policy wonks says it.

I’ll give you an example. If someone is coming into my office at Rockefeller Center and let’s say, let’s say it’s Ray Kelly the Police Commissioner of New York. It doesn’t make any sense for him to wait on the same line and go through the same process that the guy who might be delivering a sandwich from the deli would wait on. Because we know who Ray Kelly is. He’s been screened, he’s been fingerprinted, we know he’s not a fleeing felon, we know he’s not on a terrorist watch list.

We don’t anything about the guy who’s showing up from the deli. Doesn’t make him a bad person, and, indeed, what I’m suggesting is we ought to be able to know something about the guy from the deli by having him sign up to go voluntarily through a screening process. It’s just practical …

Heffner: … to have him voluntarily … isn’t that a contradiction …

Brill: If he doesn’t want to … it’s like E-Z Pass, if he doesn’t want the card, he just will have to go through, in our society, as we are now situated, he will have to wait on a line, that is just like the line that he waits on today at Rockefeller Center. So I’m not suggesting that he be penalized anymore than everyone is penalized today, by waiting on the same long line. That’s one example. There are lots of other examples. You know, and the book is not a policy prescription. The book is a narrative about the people grappling with these issues and grappling with the issues of, you know, detecting nuclear materials at the ports. And grappling with the issue of, you know, over flights at Yankee Stadium. But this is one example where we have to be more intelligent about assessing risk. And that means … yes, it means a certain kind of profiling. It just does.

Heffner: It seems to me, Steve, that there is a bit of unreality about … and I’ll come back to the voluntary aspect of this … why don’t you bite the bullet and say, “Of course, we must be realistic. Of course those 19 people should have taught us a lesson. Of course we need to have national identity cards for everyone.”

Brill: Run by the government? For several reasons. First of all, the government will screw it up. The government, just to give you an example, as the book … there’s a passage in the book that deals with this … for years … ten years now the INS which was part of the Justice Department and FBI which are part of the Justice Department had two different computer systems and they’ve spent about $600 million dollars to try to get them to talk to each other and they still don’t talk to each other. The government will, even if they don’t abuse it, they will screw it up.

Having all this information in the hands of the government. Having the government potentially have access to where you’ve been, what building did you go through today, what … you know, what restaurant did you come into … what did you do? I don’t think that’s a good thing. I don’t think the government should have that information. Third, if it were private companies you’d be able to hold them much more accountable for the mistakes they make and any potential abuses.

For example, if a private company had cards like this, if you caught the private company abusing the information, you could … you know … you could just pass a law that says, “the CEO goes to jail”. If they don’t use the information the way they say they’re going to use it, that’s a felony. And you send them off to jail. I mean you could, you can get it done faster, without expense to the government and in a way that protects civil liberties if you keep it out of the government’s clutches.

Heffner: Where does this … the private sector “does it better” notion come from? Is this, is this a Brill notion …

Brill: It’s, it’s … well, you know, the book is not anti-government. In fact the book makes clear that we now have a new government agency, the largest government agency ever created in the history of our country, the Transportation Security Administration …

Heffner: And you don’t …

Brill: … guards the airport. Not only don’t I abhor it, I think it’s doing a great job …but the fact is that in most instances if you can put something in the private sector, hold it accountable, it will be done faster, it will be done at far less expense to the government and in this case, I think it will be done with a lot more accountability.

But … I don’t have some great, you know, philosophical notion that private is always good and government is always bad. Or vice versa. I just think this is a much more practical way to have this happen tomorrow. If, if tomorrow someone blows themselves up in a shopping mall or at Grand Central Terminal or in the lobby of an office building … our country’s going to be standing out on the sidewalk waiting to get into those buildings while they search everybody. And there are going to be $6.00 an hour guards there, going through our pockets and going through our briefcases. You’re not going to have any more security or any more safety, you’re just going to have a multiplier of the inconvenience those of us in New York have already had.

Heffner: I’m not questioning the, the wisdom of what you’re saying now. I am questioning this matter of voluntarism and of assigning the accumulation of this information to private …

Brill: Well there are certain things that shouldn’t be voluntary … it shouldn’t be voluntary that if you’re an immigrant and you come here on a tourist visa that says you can be here for, you know, for three weeks to visit, you know, your relatives then you’re going home. It shouldn’t be voluntary whether you comply with that law.

It is now voluntary because there’s no way to enforce it. The government needs to get better, a lot better at having what they call “an entry-exit” system that keeps track of those people. That shouldn’t be voluntary. It shouldn’t be voluntary that all the … you know the Northern border in Canada … I spent time with a border agent in Detroit and a Customs Inspector in Bina, North Dakota and I described their problems and what they, what they grope with. It shouldn’t be voluntary that you can walk across the border from Tolestoy in Canada into Lancaster, Minnesota as I watched people doing.

That shouldn’t be voluntary … that kind of enforcement. What should be voluntary is that if you or I, as private citizens, waiting to get into an office building or a train station want to get on a fast line and be searched less than someone who’s on the slow line. We ought to be able to volunteer to be pre-screened so that we can do that.

Just the same, there’s a program described in the book that right after September 11th in Detroit, there’s a bridge called the Ambassador Bridge that comes in from Canada. That bridge carries more trade … more international trade than all of our trade with Japan every year. That one bridge. Because it’s all these trucks that are bringing in auto parts to, to all the assembly plants in Michigan and throughout the United States from Canada.

On the morning of September 12th through that week, the lines were12 and 15 hours because they decided, “Gee, we ought to check these trucks” and suddenly they were worried about what’s coming in over our borders. As a result of those lines, auto plants in the United States had to shut down because they didn’t have the parts to put the cars together.

So what they did was … very quickly … they announced a voluntary program where the auto parts companies in Canada and their truck drivers could volunteer to be pre-screened by Customs. The drivers would be screened, the parts companies would be screened for the kind of security measures they take at their plants … how safe and secure they are so that people can’t slip something into the containers. Everybody volunteered, they’re pre-screened and what happened on that bridge you got something like an E-Z Pass thing on your windshield if you were pre-screened and you got on a fast line.

It’s voluntary, it makes a lot of sense, the lines ended. Everybody had an incentive to do it and it helped Customs concentrate on the trucks coming in where they didn’t know anything about who the drivers were or who the companies were or what kinds of security they had. That makes sense. That’s voluntary and that makes sense.

Heffner: I gather voluntarism in your mind doesn’t extend necessarily or appropriately to security measures at airports.

Brill: No.

Heffner: Who runs them?

Brill: No. Well, the security measures in airports … it doesn’t extend to security measures in office buildings. I’m not saying if you don’t volunteer you should just get into the building …

Heffner: You just want the E-Z Pass.

Brill: What I’m saying is if you don’t volunteer you should be checked a lot more than someone who does volunteer. At the airports what you have now is because if someone gets on a plane and blows up the plane everybody’s affected, you have to treat it much more carefully. But what you do have is kind of a, a volunteer program in the making which is that the people who now get selected out at the airports … you know, we all go through metal detectors and, you know, we all have our bags x-rayed … our carry-on bags.

But if you are a selectee, which is one in four or five people, they pull you out and they give, you know, what I call, you know the equivalent of, you know, a colonoscopy. They just check everything. They go through your bag and they take shoes off, you take your coat off and they pat you down. And it’s a real pain in the neck. I’m sure it’s happened to you.

The way it happens today is … their criteria are … are you a member of their Frequent Flyer Club? Have you bought a one-way ticket and have you made your reservation less than 48hours in advance. The criteria is something like that. Why is it those criteria? Because the hijackers weren’t members of Frequent Flyer Clubs, they’d made their reservations, at least some of them … very much not in advance of the flight. And they only bought one way tickets, for obvious reasons.

Well, that’s just plain stupid. Because when I take the shuttle to Washington, I’m always singled out because I haven’t made my reservation in advance, I don’t want to be a member of the US Air Frequent Flyer Club and, the shuttle, by definition, is a one-way ticket. So I find myself being a selectee, and every once in a while I look to my left and you know, Chuck Schumer is there as a selectee … because he’s taking the shuttle. That makes no sense.

What makes sense is to have passengers screened by some criteria that are logical. And that, you know …and it may mean “have you opened up nine bank accounts in the last month? “Have you rented cars for five of your friends? Have you had six jobs in the last two years?” And, yes …”Have you traveled to Afghanistan, Pakistan and Saudi Arabia in the last year?” Maybe that makes you statistically more of a risk then, you know, Chuck Schumer who’s taking the shuttle.

Heffner: Still 15 months spent with this horrendous deed … 9/11 … what did change in your thinking?

Brill: I think the country changed a lot and I think, certainly, my view of what kind of country we had changed a lot. The reason I wrote this book was …and it’s … the best journalism always comes out of being curious, being intensely curious about something. Because if you’re intensely curious and you’re a good reporter and you go find it … then you don’t have to fake your enthusiasm when you make the discovery of what you’re curious about.

And I remember sitting at the breakfast table the day after with my son who was then about 14 years old. And I remember saying to him, I said, “how are we ever …” this is not a very reassuring conversation … father to son in retrospect … but I remember saying to him … “how are we ever going to deal with this. I mean we have … you know the biggest story in the country was the sex life of some Congressman in California … none of us had ever heard of … Gary Condit. We had, you know, a President we didn’t think was deeply, heavily involved in substance.

“We, we sort of … our Congress, we perceived that our Congress and the White House were totally paralyzed by lobbyists; we’re grid locked. We sort of liked the gridlock. We liked the Democrats to be fighting with the Republicans because Americans basically just don’t trust government.

“Suddenly, this morning, we’ve got to look to our government to make it safe for us to get on a subway, or go through the Holland Tunnel or go to a Yankee game. We have to look to the government to re-open the Stock Market, to get the economy back. The airlines are damaged …how are they going to get the airlines back up? How are we going to do all of these things, and how are we going to make it safe, and how are we going to do that without completely screwing up the civil liberties we have in this country?

I mean we” … I remember saying to him …”you know we read books about the greatest generation. We’re not the greatest generation … we watched movies about them storming Normandy … we can’t do that. How are we going to do this?”. And I decided I wanted to find out how or if we could do that. And what I found out was reassuring. That there are lots of people in this country, and I write about them, who work behind the scenes who met the test. Who really were worthy successors to the greatest generation.

And there’s a Customs guy I open the book with, who is sitting in his office on the dock in Elizabeth, New Jersey. And he’s got, you know, where Elizabeth, New Jersey is … it looks like you could take a football and toss it to the World Trade Center … just right across the water. And he watches the planes go into the Tower. And he immediately works to close the port, to …you know … to separate out the cargo containers that he thinks might be dangerous and the ones that might not be. They worked day and night for the next few days inspecting them. They come up with a computer program to assess the risk of the various cargo containers based on the countries they’re coming from, whether they know who the shippers are … the kind of risk assessment I was talking to you about.

Heffner: Right.

Brill: And this guy does a great job. And the people in Washington he worked for do a great job. And you know what, he doesn’t even hate the people in Washington he works for. And they don’t hate him. And they get along well. And they act as if the country is in crisis and they suck it up and they get it together and they do a good job.

Heffner: Government.

Brill: Government, yeah, government doing a good job. That happens. And it happens when the country’s in crisis. These people rose to the test. Now there are a lot of screw ups, there are …there are scenes in the book where you’ve Tom Delay sitting in his office while they’re writing the airline bail-out bill at 2 in the morning. And the lobbyist for all the airline companies who also contributed to his, his political action committee are pouring him drinks and telling him what to do. But, by and large, the system really worked. We got the airlines back up. We got the Stock Market opened. We didn’t …

Heffner: Many …

Brill: … perish.

Heffner: Many of our friends in common, we don’t have all that much time left, Steve, but many of our friends in common, I’m sure have identified Ashcroft as someone we have to be concerned about. What was your own conclusion?

Brill: First, I think we always have to be concerned about the Chief Prosecutor in a country like the United States. A prosecutor wakes up in the morning, his job is to go catch bad guys. And he tends to see the world as good guys and bad guys. And if he decides someone’s a bad guy, his job is to do anything he can to get the bad guy.

We especially have to be concerned about prosecutors in a time of crisis when we perceive danger because then they have more latitude and they’re that much more pumped up to get bad guys. You know, from Ashcroft’s perspective you need to remember that he and everyone else in Washington knew that that fourth plane that crashed in Pennsylvania would have gone into the Capitol or the White House but for the fact that it left an hour late and therefore the passengers knew what was going on and our government knew what was going on and so we were either going to shot it down or the passengers were going to do what they did. So from their perspective this was a total crisis, we were still in danger. And you, you always have to worry about prosecutors who are rightfully gung ho. In Ashcroft’s case … I point out some places in the book where I think he’s made wrong decisions … where he went too far. But in many of those cases, judges or legislators … Republicans I might add … have stopped him. And have balanced him out. And the ACLU, on the other side has worked hard in some cases with Republicans, to thwart things that Ashcroft wanted to do. That push and pull, that tug from both ends works out. It doesn’t work out exactly probably as you and I would want it to work out in each particular policy case. But it does sort of keep the country on an even keel.

Having said that there are some things that happened right after 9/11 that in retrospect you’ll look at and you say “are inexcusable”. There were immigrants rounded up who were breaking the law … yes, they were breaking the law … but they were treated abominably because the perception was that they must know about terrorism because they’re Muslims. And they didn’t know anything. And they were just people who were breaking the same immigration laws that, you know, that I’m sure my grandparents broke.

Heffner: Without causing the rest of the country quite as much concern.

Brill: True. But that concern was based on this … what was an understandable, but nonetheless a stereotypical view of Arab Americans, or Muslims at the time right after 9/11. And they were the victims, they weren’t quite the victims the way, you know, Japanese Americans were after Pearl Harbor. We didn’t go that far and if you consider that, that’s arguably a good thing.

Heffner: Steve, do you think that the dangers that we were in 9/12 have diminished? Have increased? Were are we as you finish After … because we’re here After …

Brill: After … you know, September 12th era isn’t ending any time soon. By which I define a period in which we, as a country, are vulnerable in ways we’ve never considered ourselves vulnerable. I think the danger, the pressure on us … the forces pushing at us are, if anything, increased and certainly increased, no matter what you think about the war in Iraq, it does stir exactly those kinds of passions.

That’s the bad news. The good news is that I think we’ve done a lot and a lot that the Administration doesn’t get credit for and more importantly a lot that the, the civil servants and the troops on the ground at home don’t get credit for, to make us much safer.

Heffner: You’ve turned benign and optimistic it seems to me …

Brill: Well, you can’t …

Heffner: … since the last time we sat here.

Brill: No … you know … remember that conversation I had with my son. “How are we going to get out of this?” I’m optimistic about that because, you know what, we did get out of it. You know what, we, we actually … it is a lot harder to smuggle a nuclear weapon into the port in Elizabeth, New Jersey today than it was on September 10th. And it doesn’t mean that it’s not going to happen, but it means that it’s a lot harder because some people have done some very good work.

It’s a lot harder to bring a bomb, you know, onto an airplane in a suitcase because we have …you know, these guys in silicon valley sucked it up and hired the people and got these machines built and they’re distributed at all the airports in the country. It’s a good thing. Can’t deny that.

Heffner: Steve, I’m glad that it’s a good thing. And I’m glad that after 9/11 enabled you to feel we’re not as badly off as an awful lot of people are saying. You’re an optimist now. And thank you very much for joining me today on The Open Mind.

Brill: Good to be here.

Heffner: Thanks. And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.