A Report From Baghdad, the Patriot Act, and Cable Mergers and Community

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This episode of NOW reported on an attack on the UN headquarters in Iraq and what it might mean for the rebuilding of Iraq. Next up, a trend in local cable systems becoming part of big media conglomerates caused many to worry that cable companies were no longer interested in addressing the needs of local communities. At the time, community access to media provided millions of Americans with educational opportunity, access to local government, and a forum for local voices. NOW looked at the future of community access media in America, spotlighting a legal battle between the city of San Jose, California, and media giant Comcast.

NEW YORK TIMES journalist Bob Herbert recounted the “Tulia madness,” the July 1999 pre-dawn raid in Tulia, Texas, that saw 46 people — most of them black — wrongfully arrested on drug charges. Despite the fact that no evidence was recovered — no drugs, no weapons, no large stashes of cash — the raid resulted in 38 convictions and severe jail sentences, many on the testimony of a single law enforcement officer. Herbert, who brought national attention to this travesty of justice, tells Bill Moyers about some of the victims and how our national drug policy made it possible for one man to ruin the lives of so many.

And finally, how do we balance our freedom and our safety? NOW interviews Georgetown law professor and civil liberties expert David Cole on the war on terrorism. 


SESNO: Welcome to NOW. Bill Moyers is away this week. I’m Frank Sesno. It’s been a week of violent and ruthless attacks in Iraq. From the rubble of the U.N. headquarters in Baghdad, graphic proof of the dangers involved.

And conflicting predictions: a deepening crisis, warn some Arab and European governments; a crystallizing moment, an opportunity for the international community to act, says the White House.

From Australia, the SYDNEY MORNING HERALD put it this way:

“…governments, especially in the Arab world, will be even more reluctant to respond to United States’ pleas for troops. That is the [Iraqi] resistance’s message to the world – keep out.”

This as the U.S. pushes for a U.N. resolution which would pave the way for a larger international presence in Iraq. But France and other countries say this would only come if the U.S. would share authority. So far the U.S. has rejected that notion.

BBC correspondent Caroline Hawley has been in the region for five years stationed in Egypt, Jordan and the Palestinian territories. She’s been reporting on events in Iraq since the beginning of the year and has been based in Baghdad since April. She joins us now.

Caroline has noted it has been a troubling time. Not just the attack on the U.N. headquarters but on oil pipelines, water supplies and the daily attacks on Coalition Forces.

What are you hearing from the Iraqi people on the street, in the markets and elsewhere? And what does that suggest to you about where this is headed?

HAWLEY: It is very difficult, I think, to see exactly where this is headed. I think one key issue is can the Americans now turn this very negative tide that they have against them? Initially they said that they were fighting off remnants of the former regime.

Then they said they were also fighting Islamic militants. And now they’re talking about Iraq as a terror magnet. Now, ordinary Iraqis, I think just want to see their daily lives back to normal. They say that they were grateful to the Americans for ridding them of Saddam Hussein. But they say that the Americans and the British have done nothing good for them since. And there’s real frustration and impatience here I would say among ordinary Iraqis. That, of course, is dangerous for Coalition Forces ’cause it makes it easier for those attacking the Americans to operate.

SESNO: Now, how do those ordinary Iraqis express that? What are they saying to you? What parts of their lives do they point to to illustrate that frustration that you speak about?

HAWLEY: Power is one key thing. There are still problems with electricity. One person said to me, “The Americans made it to the moon. Could they not fix our electricity?” So that’s one key concern. I would say security is probably the major concern here for ordinary Iraqis.

It’s a very, very violent, lawless and dangerous place. I was at one hospital in Baghdad recently. They said that last month alone in July they had 400 people die of gunshot injuries. Now, they said they had between five and ten people dying every day of gunshot injuries just in that hospital. What you’re seeing, what I saw when I was in that hospital was an armed looter who’d been shot for trying to attack someone.

I saw a victim of a looting. And, of course, as well there are some civilians that are being killed by American troops. No one here knows where the bullets are gonna come from. It is a very dangerous place for ordinary Iraqis as well as for the Americans.

SESNO: And Caroline, in the aftermath of the attack on the U.N. headquarters, what are the international relief organizations that are still in Baghdad saying and doing about their own security and future?

HAWLEY: Well, they are concerned. They are rethinking. They are regrouping ’cause it’s not just about trying to protect buildings. It’s about the aid workers that have to get out and about to do the job that they came to Iraq to do. So they’re thinking very, very hard about what they’re gonna do and many of them are downsizing. And that is, of course, of concern to the Iraqi people because this is a country that needs massive international aid.

SESNO: Caroline, one of the other things that we focus on in contemplating what is actually taking place and how it’s being digested is the impact on the US, the British, the Coalition Forces on the ground of all this violence and the resentment from the Iraqi people that you spoke about. When you speak to them what do you hear?

HAWLEY: If you’re talking about ordinary soldiers I think it depends. I think people have mixed feelings about what is happening here. Some people say “we’ve come here to do a job, we have to see it through.” Among some of those real concerned about their safety, they’re jumpy and they’re nervous. Many Iraqis accuse them of being trigger-happy. Of shooting first and asking questions later. And among some, certainly, there’s a serious problem of morale.

SESNO: Put something into context for us. When I speak to some in the US military and elsewhere in the US administration here they say that whether overshadowed or overlooked in the media some of the positive things that are taking place in Iraq are not getting noted. Efforts to rebuild police forces, improve schools, start to build democratic institutions where there were none. What’s your view of that on the ground? How much of that is taking place?

HAWLEY: Well, schools are operating for the most part now. Hospitals are operating. But I would say that for ordinary Iraqis, they do not feel that their daily lives have improved. They say things were better for them under Saddam Hussein. Now, very, very few Iraqis want to see Saddam Hussein back. But at the same time, their lives are extremely difficult now. And they do not feel that these improvements that may be going on, they do not feel that they don’t actually feel them happening.

SESNO: Caroline, you have studied and you’ve been based in this region for a long time. Knowing it as you do, knowing the current circumstances as well as you do, are there any credible scenarios that you have heard from any of the players there in the country, that would suggest a quick route to stability?

HAWLEY: I think that the U.N. bombing really blew away any hope of a quick route to civility. It’s clearly gonna be a long process. There is a vaguely interesting experiment here in the town of Faluja. It’s a conservative town, it was a place where Saddam Hussein had support. It’s a place where at least 15 people, 15 Iraqis were killed just after the war, during an anti-American protest.

Now, in that place there was a lot of resistance against the Americans. And the Americans are now, it seems, just beginning to turn the tide in their favor by, for example, adopting a more culturally-sensitive approach. They’re paying what they call blood money to the victims of civilians that they have killed.

They are, for example, going out and about with binoculars, and taking them to ordinary people, and saying, “Look. Look at my binoculars, and you will see that if you look through them, we, the American soldiers, cannot see through women’s clothes, as you believe… as there are rumors that we can.” So, they’re doing this kind of thing.

Crucially, as well, they’re trying to adopt a less iron-fisted approach. They are, for example, now they say they are knocking on doors rather than kicking them in, when they go to arrest someone. They’re still surrounding the house so no one can escape around the back. But they are just adopting a less iron-fisted approach. And there are some signs that it may be working. But it’s a very difficult and complicated problem and challenge that they’re facing here.

SESNO: And what of the suggestion that many, many more troops simply need to be on the ground in Iraq? James Dobbins, who was an Afghanistan envoy for the Bush Administration, and is an expert in peacekeeping, has said that it could mean that it could take as many as half a million U.S. troops to bring stability to the country.

HAWLEY: I think it’s a very difficult problem, because once you have this perception that this is an occupation, that the Americans are here as occupiers, not as liberators, then you will see attacks. And that’s what we’ve seen. We’ve seen a steady racheting up of the pressure against American troops.

Some 65 soldiers killed here since George Bush declared the major combat operations over. And now, most worrying for the Coalition, we’re seeing a widening of the targets. And we’re seeing new tactics. We’ve seen, for example, the car bomb outside the Jordanian Embassy earlier this month. Now the U.N. bombing.

These are deeply troubling signs for the Americans.

SESNO: And given that, what would it take to bring Arab or Muslim countries into Iraq, and have them on the ground with a presence that might have some impact?

HAWLEY: I think they want to stay well away from this. In fact, we’ve had a statement from the spokesman of the Arab League, who has said that Arab countries will not commit forces to bolster the American occupation. So, I don’t think they want to have anything to do with it.

They know that it would be costly, in terms of their own public opinions. Because they know that the American… what the Americans are doing here, for example, is being portrayed on Arab satellite television stations in similar terms to the Israel occupation of the West Bank. They know it would be dangerous to become involved here.

SESNO: When you go out on the street, as a British subject and a woman in the middle of all of this, what do you encounter? What do people say to you? What is the mood and the feel that you experience?

HAWLEY: It’s a difficult question. I have found, in years of working around the Middle East, that people have always been very careful, really, to separate British and American people, from British and American governments. Of course, over the years, I’ve heard a lot of criticism of the position of the American government, and more recently, of course, of the British government for supporting the Americans.

But I think the fear here among many foreigners, among many in the international community, is that among the militants here, among those if you want, the loyalists of the former regime, there is a growing anti-foreign sentiment. And what we’ve seen over the last few days is some previously unheard of groups threatening foreigners here in Iraq.

SESNO: When the British were in Iraq, and for decades, in the empire of that day, they were not there with the stated aim of teaching and spreading democracy. That is the stated mission of this, if we wanna say imperial experience. At least in the view of some. Does that make the difference? Does that prevent history from repeating itself?

HAWLEY: Well, I’d have to say that the perception here is that democracy cannot be brought with an Apache helicopter. Cannot come through the barrel of a gun. And so many people are deeply cynical about that.

I don’t think there are very many Arabs who believe that this was a war about promoting democracy. They believe it was a war largely, of course… the perception is, that it was a war about oil. Now, I think one of the very big ironies of this is that the war to topple Saddam Hussein is also billed as part of a wider war on terror. But what we are seeing now, is Iraq and the American presence here in Iraq being a magnet for Muslim militants.

SESNO: Caroline Hawley, correspondent for the BBC from Baghdad. Thanks very much, and take good care.

HAWLEY: Thank you.

ANNOUNCER: There’s more to come on NOW. One journalist’s search for truth brought justice to a community.

HERBERT: The information just grew more and more scandalous. And so I had to stay with it, because after a while, you knew that the people in prison were innocent.

ANNOUNCER: NEW YORK TIMES columnist Bob Herbert.

SESNO: We’ve all been eagerly awaiting the arrival of a digital future — everything from fast connections to the Internet to a multitude of cable channels for public use.

It’s called broadband, and it is key to the digital revolution. But a crucial lawsuit has been playing out in San Jose, California. At the center of the dispute is the nation’s most powerful cable company: Comcast, which has sued the city of San Jose.

Comcast, according to San Jose city officials, wants to limit the ability of cities to decide how, in the digital future, you may interact with your government, your schools, and your community.

On the face of it, the case is about community access channels, but at its core, it’s about the future of free expression online and the role that your local government can play in using digital connections to interact with its citizens. Correspondent Keith Brown and producer Bryan Myers with a look at the community that’s not giving up without a fight.

BROWN: Here in the middle of Silicon Valley, the biggest fight in town isn’t on cable television — it’s about cable television.

The city of San Jose, population almost one million, is duking it out with a real heavyweight: the Comcast corporation. Comcast is America’s largest cable company, valued at 66 billion dollars. It controls about 1/3 of the nation’s cable homes.

The reason they’re fighting is that the cable contract in San Jose is up for renewal. Comcast wants to keep it, but the city wants something in return…

DEYOUNG: We can go about our daily lives without really being connected to anything. I saw the opportunity to connect groups.

BROWN: Gerry DeYoung is talking about his vision of what’s called “community access television.” They are channels the cable company sets aside for the community in return for the right to hold the local franchise. You may have seen them — they carry city hall meetings, study at home courses, and public access programming. Officially, they are called “PEG” channels — for public, educational, and governmental use.

DeYoung is chairman of a non-profit board that oversees them in San Jose.

BROWN: Why is this important for a community?

DEYOUNG: To the extent that television can present information about the community, it provides an opportunity for people who are interested in their community to become more actively involved.

BROWN: Federal law says cable companies have to provide PEG channels if a city wants them. DeYoung believes they fill a void by covering issues and events commercial television usually ignores.

DEYOUNG: This represents truly something that can just be local. It can be about what this community called San Jose is about.

BROWN: But in San Jose, officials are worried about what kind of voice their citizens will have on cable TV. Most local cable systems are no longer small businesses, but are now part of big media conglomerates, like Comcast. And as local cable franchises come up for renewal, officials say the bigger the company, the less willing it is to provide for community access.

So what does San Jose want? DeYoung traveled to the near by city of Santa Rosa where they’ve got one of the best community access facilities in the country. And there, he saw the enormous potential of community access TV.

For example, when a local health clinic for Latinos recently opened up, they turned to Santa Rosa’s Community Media Center. Laurie Cirivello is the center’s executive director.

CIRIVELLO: The purpose of this program is to increase awareness about the availability of low cost health care right in the neighborhood.

BROWN: Under the guidance of Laurie’s staff, the clinic put together this television special that’s been running on local cable. The program’s been a rousing success.

CIRIVELLO: It’s using television in a different way. It’s using television to specifically meet the needs that exist in your community. It’s not using the television to sell toothpaste.

BROWN: In Santa Rosa, anyone from the community can walk through the door with an idea and get it on TV. In one room, a filmmaker works on a documentary about local history. In another room, a program about the people and places of Santa Rosa comes together. And here, an artist works on an educational show for children to teach them recycling.

CIRIVELLO: The reality is, almost nothing that you see just comes from us as programmers or creators. Everything is based on an expressed need of someone, or some group, or some organization within our community.

BROWN: Gerry DeYoung marvels at all the things Santa Rosa is doing. But he wants to do even more than that in San Jose. As cable companies around the country rebuild their systems, they’re replacing old wires with new technology that can broadcast more than just pictures. Imagine the possibilities, DeYoung asks, if cities could get their hands on that new interactive technology. One example: they could hook up city agencies to people’s homes to provide information in the event of emergencies, like earthquakes.

DEYOUNG: It is in its infancy. So what can it be? I think it has the opportunity to be anything that the community wants it to be.

BROWN: So with Santa Rosa as its model, San Jose asked its cable company for new community access facilities, more channels, and access to those new interactive cable lines. The estimated price tag? $39 million.

DEYOUNG: How strongly it can rise out of the ground is really dependent on how much money is provided to start the facility and run the facility.

BROWN: But getting that new facility hasn’t been easy. For the better part of three years, San Jose was locked in tough negotiations with the big cable company AT&T Broadband for these benefits. And finally, they thought they had a handshake deal with AT&T to get most of what they wanted. But that was before the biggest merger in the history of cable.

Several months ago, Comcast bought AT&T Broadband, taking over a slew of local AT&T cable systems nationwide, including San Jose’s. What’s happened since has implications for cities from nationwide. After the merger, Comcast found itself nearly 30 billion dollars in debt. And according to city officials, it wasn’t long before San Jose’s $39 million dollar package was slashed to $13 million.

BIENSTOCK: Our history has been we’re not a company that just throws away money.

BROWN: Terry Bienstock is an executive vice president of Comcast. He makes no apologies for backing away from AT&T’s offer.

BROWN: In the case of San Jose, they got to a point when there was some agreement about what was on the table.

BIENSTOCK: Well, in my book, you either have a deal or you don’t have a deal. And if you have a deal, you put it in writing and you sign it. These are sophisticated parties on both sides. They understand that equation.

BROWN: But San Jose officials don’t buy that argument. Upset, they refused Comcast’s smaller 13 million dollar offer. With Comcast confronting a mountain of debt, city officials suspect it’s looking to slash costs anywhere it can. But Comcast says it can meet its public obligations without San Jose’s wish list of new facilities and equipment.

BIENSTOCK: If there are two ways to do something, and one is half the cost of the other way, let us do it the less expensive way.

BROWN: So this is a dollars and cents issue.

BIENSTOCK: It always is a dollars and cents issue.

BROWN: Bienstock also says Comcast has paying customers to worry about. Under federal law, some of the costs for community access TV get passed along to them. Bienstock says they wouldn’t be happy if those costs start showing up in their monthly bills.

BIENSTOCK: We’ve done surveys over and over again that show that people, although they like PEG programming, they don’t want to pay for it, or they want to pay a nominal amount.

BROWN: San Jose estimates a new community access facility would cost cable customers about $1.50 a month. And, it says, Comcast doesn’t have to pass those costs along — they could pay for it themselves. After all, the city estimates Comcast stands to gross at least 1.5 billion dollars over the course of an agreement with the city. San Jose’s 39 million dollar package would come to about 2 ½ percent of that.

The San Jose/Comcast battle has now moved to a courtroom. Things are so bitter, the cable company’s taken the unusual step of suing San Jose. Suddenly, the stakes are even higher because a ruling in Comcast’s favor could have a ripple effect across the country.

William Lowery is an attorney for the city of San Jose. He says that public access channels are a cost of doing business, and that cable companies have no right to expect something for next to nothing.

LOWERY: A cable system uses the rights of way, the public rights of way of the entire city to make the large profits that cable companies do make.

BROWN: Lowery and others point out that at the end of the day, these PEG channels can make a real difference in people’s lives — people like San Jose resident Scott McDonough.

MCDONOUGH: I was channel surfing on a Saturday morning and you know, most of that is garbage. But one thing caught my attention.

BROWN: What caught McDonough’s attention was a community access channel that broadcasts classes from local colleges in the San Jose area. At the time, he was recovering from a bad accident he suffered as a road worker.

So how would you describe seeing that channel for the first time?

MCDONOUGH: Awesome! It’s just opened up so many doors for me. I always wanted to learn.

BROWN: Inspired by that TV show, McDonough decided to do something different with his life. He enrolled at the college broadcasting those classes, and now, he’s hoping to become a teacher himself.

So you can actually take a class from the television channel?

MCDONOUGH: Yeah, you can do it. And you can do it, and you can send your teacher your homework online, or by fax then you watch the shows at home.

BROWN: But with no agreement in sight, the future of services like that in San Jose is uncertain. Lowery suspects that Comcast’s hard line might be part of a larger business plan.

LOWERY: There seems to be a determination by Comcast that they’re going to severely limit resources that they are going to make available to a community for public, educational, and government use.

BROWN: Public officials elsewhere are watching what’s happening in San Jose with a nervous eye. No one is more interested in the outcome of that battle than Denise Brady. She’s president of a national group of public officials who oversee cable companies in their communities.

BRADY: It will be an indication of where the company drew its line.

BROWN: Brady says she’s been hearing from other cities in California like San Jose that thought they had deals with AT&T until Comcast came to town.

BRADY: Basically, the company came back and withdrew what had been agreed to, or was close to agreement from AT&T, and in some cases withdrew proposals altogether.

BROWN: Given the 30 billion dollar debt Comcast is sitting on after buying AT&T broadband, Brady believes it’s all a matter of simple economics. That’s why her organization opposed the merger in the first place.

BRADY: This is exactly what we feared — their inability to commit at the level that cities have been receiving.

BROWN: And Brady’s more aware of that than most. She’s about to start her own renewal negotiations with Comcast, on behalf of the city of San Francisco. Her strategy is to convince Comcast that community access TV can be a money maker.

BRADY: What I’ve been trying to appeal to them about is what makes them different than their competitors? And it’s local programming.

BROWN: Comcast’s biggest threat is from satellite television services such as Direct TV. But unlike cable, satellite can’t provide community access channels. Brady says that’s a huge marketing advantage for Comcast, one they’re ignoring.

BRADY: They should view us as their partner. Instead, they view us as a negative obligation that they would very much like to, you know, minimize.

BIENSTOCK: We look at it and say, “If it’s good quality programming, if it’s something that people value in the local community, and they can only get it from us, that’s a competitive edge.”

BROWN: So in cities where Comcast does business, PEG is not in jeopardy?

BIENSTOCK: Oh God no. Excuse me. No. No. Not at all.

BROWN: A judge will hear arguments in Comcast’s lawsuit in September, with a decision expected later in the fall. But even if the judge rules in favor of San Jose, there are those who believe Comcast’s lawsuit has already sent a clear message to other cities thinking about asking for more community access.

LOWERY: They’re flexing their muscles at this point to basically scare off anybody else. This appears to be a warning shot for them, that should, in fact, they proceed that way, they can expect to spend a lot of time in court.

BROWN: And in Santa Rosa, where they’re so proud of their media center, people are worried. Comcast recently took over their cable system, and eventually, they’ll have to renegotiate with Comcast too.

CIRIVELLO: I am nervous because I think the danger is there that this could start to disappear. And that would be a shame. An absolute shame.

SESNO: Santa Rosa community access television would make any city proud. Last year it produced close to 17,000 hours of programming for the local community.

In Washington this week, the FCC jumped into the debate over the quality of local programming by commissioning a study on the subject. The FCC has been feeling the heat from Congress and the public over its easing of media ownership rules.

This fall the commission plans to go ahead with another vote, this one on whether to allow big cable companies to get even bigger.

On Tuesday, Attorney General John Ashcroft embarked on a national speaking tour. His subject?

Defending the cornerstone of the Bush administration’s antiterrorism effort, the U.S.A. Patriot Act. It’s the controversial legislation the Bush administration says is crucial to the fight against terrorism, but that others say is costly to our civil liberties.

Ashcroft’s nationwide barnstorming tour comes as Senate Republicans consider introducing new legislation to expand the justice department’s powers to investigate terrorists and drug criminals. That’s called the Victory Act. What’s at stake?

Well, ask Georgetown University law professor David Cole. His latest book just out is ENEMY ALIENS, about pressures on the Constitution in the war on terrorism. Recently he sat down with my colleague, ABC News correspondent Juju Chang.

CHANG: You know, you start your book with a very provocative quote from Attorney General John Ashcroft, where he says, in the months after 9/11, quote, “To those who pit Americans against immigrants and citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this. Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to American’s enemies and pause to American’s friends.” Why start with that quote?

COLE: Well, I think I start there because it so exemplifies the way that the Ashcroft Justice Department has responded, since September 11th. And that is to reject any concerns about human rights, about civil liberties, about fairness as simply aiding the enemy. As not even appropriate to be on the table.

CHANG: You point out in your book that Attorney General Ashcroft’s favorite method of dealing with suspected terrorists is immigration law. Precisely because in many ways it falls outside of constitutional protections. Why is that?

COLE: Because immigration law, according to the Supreme Court, deportation is not a criminal punishment. And therefore all of the full set of rights that apply to the criminal process don’t apply. So for example, these immigration detainees were held in secret. You can’t hold a criminal detainee in secret.

They were tried in secret. Criminal defendants have a right to a public trial. They were denied access to lawyers. Criminal defendants have a right to a lawyer. They were held without any evidence to show that they were dangerous or a risk of flight.

Criminal defendants can only be held prior to trial if there’s actual evidence showing that they’re dangerous, or risk of flight. Now my view is that all of those actions are in fact unconstitutional. But he was able to even argue that he could do it because it was not a criminal prosecution, but an immigration case.

CHANG: In many ways historically, we’ve had pretextual kinds of incarcerations. You cite in your book Bobby Kennedy saying, “I’ll arrest a mobster if he spits on the sidewalk if that’s the way I can get him in the door.” What’s wrong with bringing people in who you think may have ties to terrorists?

COLE: You know, there isn’t… pretextual law enforcement in and of itself is not wrong. It wasn’t wrong to go after Al Capone on tax evasion charges when we knew that we was a murderer. But what the problem with the way this administration has used pretextual law enforcement is that it has not targeted terrorists. It has targeted Arabs and Muslims.

There have actually been 5,000… over 5,000 people detained since September 11th in anti-terrorism initiatives undertaken by the Justice Department. And of those 5,000, only three were charged with any crime related to terrorism.

And of those three, only one was convicted, and not actually of engaging in terrorist activity or even planning terrorist activity, but of conspiring to support some unidentified terrorist act in the unidentified future. So you got 5,000 people locked up on pretexts who had nothing to do with terrorism.

What it does do is alienate the very communities that have been targeted.

CHANG: Now I’m not a legal scholar. But my understanding is that Britain has a sort of preventative detention law that they’ve used against foreign nationals that involve mostly IRA terrorists. Is it not time, given that al-Qaida has proven that they can launch attacks against us with people who are living among us, won’t we all sleep better at night if we think that our government is using every means possible to root out these potential terrorists?

COLE: Well, I think we absolutely need to use those means that will root out the potential terrorists. But locking up 5,000 innocent people doesn’t root out potential terrorists. Making all Arab and Muslim men come in and register simply because they’re from Arab or Muslim countries doesn’t make us safer.

And what these initiatives do is I think play into the terrorists hands. Because what the terrorists want most of all when they attack a democracy, a country like ours, is for us to overreact. For us to violate our own principles.

For us to be seen as acting unjustly. Because that then creates the fodder for further recruitment drives.

CHANG: You used the McCarthy era as an example of what we should be looking out for today, which is basically what starts out as infringements of rights of foreign nationals…

COLE: Right.

CHANG: Seeps into citizens. How… what was the precedent for that?

COLE: The precedent for the McCarthy era was the Palmer Raids of 1919 to 1920. 1919, there were a series of terrorist bombings in the United States. Including a bomb that blew off the front of the Attorney General’s private home in Georgetown. The government responded to that series of bombings not by going out and arresting the bombers. But instead by using immigration law to lock up thousands of foreign nationals.

Not on charges of being involved in the bombings, but on charges of guilt by association and technical immigration violations. They were held incommunicado. They were interrogated without lawyers. Much like you saw the government do after 9/11.

Now the reason that’s a precedent for McCarthy is that at the time that the Palmer Raids were conducted, Attorney General Palmer and the man who was the real architect of the Palmer Raids, a young man by the name of J. Edgar Hoover, wanted to be able to do the same thing to citizens. They kept introducing bills in Congress to impose guilt by association on citizens.

Congress said no, no, no. But Hoover spent the rest of his career in the FBI seeking to extend to the citizenry the tactics that he employed against foreign nationals during the Palmer Raids. In 1940, Congress passed the Smith Act. And extended guilt by association, an immigration concept, to citizens. And that was the legal foundation for the witch-hunts of the McCarthy era. So what was started with foreign nationals was extended to U.S. citizens.

CHANG: Another historical precedent that you point out in the book is Japanese Internment. And you say that that was in fact preceded by a curbing of rights of non-citizens.

COLE: That’s right. The Japanese Internment didn’t come out of nowhere. It was an extension to citizens of a tactic that still exists in the law. That was an act in 1798, something called the Enemy Alien Act that allows the President during a declared war to lock up nationals of the country with which we’re at war without any evidence that they’re actually dangerous.

And the argument is, you can’t make fine distinctions in war time. You gotta give the President this kind of leeway. Well, during World War II, the military argued that they had to extend that same philosophy to citizens of Japanese decent. And John DeWitt… General John DeWitt who was the architect of the Japanese Internment Plan testified in Congress.

And I quote, “A Jap’s a Jap. It doesn’t matter whether they’re citizen or alien. The racial strains are undiluted.” So across the bridge of race the government went from a measure targeted at foreign nationals, justified on the ground that it was targeted at foreign nationals and extended it to U.S. citizens. And 70,000 of those who are locked up in the Japanese Internment were U.S. citizens.

CHANG: Some conservatives say that rounding up a couple thousand foreign nationals who have actually violated their visas or done some immigration violation is a far cry from interning 120,000 Japanese.

COLE: Yeah, and I think they have a point there. I don’t think we have repeated the worst of the worst mistakes that we’ve made in the past. That is… we are… in World War I, we locked up people for speaking out against the war. We’re not doing that now. In World War II, we locked up people solely for their Japanese descent. We’re not doing that now.

In the Cold War, we locked up people solely for their political associations. We’re not doing that now. But what we are repeating is the same kinds of category mistakes. And that is to sort of give up a focus on individualized culpability and instead sweep broadly in the name of prevention relying on ethnicity — today Arab, then Japanese.

And association — today, religious association; then, communist association. And what we have seen in the past is that when the government does that many, many innocent people have their lives ruined. And we waste tremendous resources on people who don’t pose a threat, while missing people who actually do pose a threat.

CHANG: But let me look… have you look at a Zogby poll which came out recently. That said, basically, two years after 9/11, one fifth, or 21 percent, of those polled said that they were prepared to give up a lot of their civil liberties to allow the government to protect the nation from future terrorist acts. An additional 33 percent said they’d be willing to give some. An additional 23 said they’d give up a little. That’s 70 percent of citizens saying they would give up some of their rights.

COLE: Right. And I don’t think there’s anything wrong with that. I mean, I think there’s a balance to be struck here, between civil liberties and security.

CHANG: But what do those numbers say to you?

COLE: Well, what they say to me is that people are afraid. And they also say to me that people see what’s going on. And what’s going on is the government is not in fact asking them to give up their rights for security.

Instead it’s saying, we’ll give up their rights for security. You don’t mind if we lock up 5,000 foreign nationals in secret, try them in secret, etc, etc, etc. You don’t mind if we impose military tribunals in which we can execute people on the basis of secret evidence on non-citizens, because your rights aren’t at stake.

So I think in some respects the question is an abstract question for citizens. Because we as citizens have not been confronted with the difficult choice. Which of your rights do you really want to give up? Which of your rights are you willing to give up for greater security?

And in the few instances where we have been, the response has been, “I’m not sure I want to give up my rights.” The national ID card, on the table since September 12th, 2001, killed by Congress in the Department of Homeland Security legislation. Operation TIPS, a program in which the Justice Department is going to go out and recruit 11 million citizens to essentially spy on each other and report the results to the FBI. We said, “Wait a minute! We don’t want that kind of American society.” Killed by Congress. Total information awareness. Same thing.

CHANG: But aren’t you willing to concede that citizens are willing to give up some rights?

COLE: Yes. And…

CHANG: And if so, you’ve even mentioned in your book that there are some that perhaps are justified.

COLE: Yeah, and I think it is a balance. And I think that when we are more insecure and if we can show that a diminution in some aspect of civil liberties will in fact make us more secure, that may well be a balance worth striking. There’s no absolute.

With the exception of the prohibition on torture, most rights are not absolute. Most rights are a balance. But what I’m concerned is that we’re not striking the balance in a fair way for everybody. We’re cheating on that balance by exploiting the most vulnerable group in our population. Foreign nationals who have no vote whatsoever.

And taking away their rights, you know, for our security. And that’s easy for the political, you know, process to do. Because they don’t vote. We do.

CHANG: What would you say, let me just ask you this, to the extent that we’re fighting a war on terrorism, why should we care that someone’s civil liberties are being trampled?

COLE: Well, I think we should care because I think that’s what America is about. I think America is about a set of principles, principles that we put in the Constitution because we knew that we would be tempted, in times like these, to ignore them, to override them.

Principles — and these are not esoteric principles — principles like due process, first amendment political association, speech, equal protection…these are basic human rights. They extend to all persons. They don’t differentiate between citizens and foreign nationals.

And we oughta care because that’s the America that we oughta be defending. That’s what we should be standing up for. And even though the government’s initial targets have largely been foreign nationals, what history shows is that what the government does to foreign nationals will be extended to citizens down the line.

And so our rights are at stake in ensuring that we get the balance right now and not 50 years later, when we recognize that we overreacted.

CHANG: The book is ENEMY ALIENS. David Cole, thank you so much for joining us on NOW.

COLE: Thank you.

ANNOUNCER: Next week on NOW WITH BILL MOYERS, corporations are cashing in by shipping jobs overseas.

SELSKY: I left a career in architecture that I had been in for ten years for the opportunity to be in it, and to be in the growth industry, computers, and here I am today. No career.

ANNOUNCER: Are middle class jobs in America headed for extinction? That’s next week on NOW.

And connect to NOW WITH BILL MOYERS Online at pbs.org.

Read how newspapers in the Middle East covered the bombing of the U.N. in Iraq. The future of cable in your community. Get the latest on cable mergers. Bob Herbert: read the columns that freed the innocent.

Connect to NOW at pbs.org.

SESNO: A recent Justice Department study predicts that, by the end of this decade, 7.7 million adults in this country will have served time in prison. That’s more than the population of Virginia. Many will be African American. In fact, the study shows a black man born in 2001 has about a one in three chance of doing time — that’s one in three.

One reason for the exploding prison population is tougher sentences, especially for drug crimes, but what happens when justice is not served?

In the small town of Tulia, Texas, there’s been a story unfolding that you would not have heard much about if it weren’t for the effort of one man, a journalist whose weapon against an abuse of power was the power of his words.

MOYERS: Tulia, Texas. Driving into this small, rural town of 5,000 in the Panhandle of Texas, you learn that good people live here. But one morning four years ago, you could have thought this to be the biggest nest of drug lords in the Lone Star State.

POLICE 1: Get out of the car.
POLICE 2: He’s saying you’ve got the wrong man.
ARRESETED MAN: You’ve got the wrong man. I’m trying to tell you you’ve got the wrong man.

MOYERS: In a pre-dawn raid on July 23, 1999, law enforcement officers swooped down and arrested 46 people on drug charges. Most of them were black.

HERBERT: The media was alerted in advance, including the local television stations. The people were roused from their beds early in the morning. Some were not allowed to get fully dressed. I mean it was calculated to humiliate them.

MOYERS: The raid was big news in Texas, but not that many national journalists picked up on the story. One exception was journalist Bob Herbert. Over the coming months he would write column after column in the NEW YORK TIMES on what he called the “Tulia madness”. A madness embodied in a single law enforcement officer.

HERBERT: These arrests were based on an investigation by this so-called undercover officer. A guy named Tom Coleman. And as you looked more and more closely at this thing, it came to be clear that this was a bogus investigation.

MOYERS: It turns out police recovered no evidence at the scene — no drugs, no weapons, no large stashes of cash. Yet of those arrested, 38 were convicted, often based on Coleman’s testimony alone.

HERBERT: There were these bogus trials where Tom Coleman was the only witness. It was his word against the defendant’s. And in the atmosphere there, his word was enough to secure convictions.

MOYERS: One of the defendants, a hog farmer, received 90 years. A young man with no previous record: 20 years. Still another, over 300 years.

HERBERT: So people who had not yet gone to trial would see people convicted like that. And getting these horrific sentences. And so people began lining up to plead guilty for lesser sentences. So people who had not committed any crime would plead guilty to selling drugs to this fellow and settle for, you know, terms like four years, five years in prison.

MOYERS: The mass arrests and convictions gained the attention of the NAACP, the ACLU and other public interest groups. Pro-bono attorneys began their own investigations.

What they learned was stunning: Coleman had worked alone. He didn’t tape record his conversations with suspects. He kept no notebook, claiming that he would write notes for the record on his leg. An incredulous Bob Herbert went down to the West Texas town to see what in the world was going on.

HERBERT: And I went down to Tulia. And the information just grew more and more scandalous. And so I had to stay with it, because after a while, you knew that the people in prison were innocent.

MOYERS: What did you learn about Tom Coleman?

HERBERT: Well, Tom Coleman was one of the amazing figures I’ve ever written about, actually. This was a guy who had a very troubled record as a police officer in other jurisdictions before he got to Tulia. He had run afoul of the law himself. Had been accused of stealing gasoline on one job.

He was fond of using racial epithets. It turns out that he was known to have lied on many, many occasions. That he was not trustworthy. That he was hotheaded. That he was a bad cop. I mean this just was a bad figure. And the idea that anyone could go to prison for any length of time based on his say-so and his say-so alone, is just outrageous.

MOYERS: Yet, he was represented as a hero. He was presented with the highest award of Texas…

HERBERT: Lawman of the year. The Texas State Attorney General who went on to become a United States Senator from Texas, John Cornyn, presented him with the Lawman of the Year Award.

MOYERS: Coleman had certainly impressed prosecutors and jurors in Tulia. On his word, they handed out severe sentences to the accused.

HERBERT: I remember Freddie Brookins, Jr. Freddie Brookins, Jr. is a fellow that’s in his mid to late 20’s. Never been in trouble with the police before. And I had interviewed his father before. And his father, sort of a salt of the earth type. A really hardworking guy. Kept his family together despite tough economic times and that sort of thing.

And Mr. Brookins told me, “I couldn’t, in all honesty, advise my son to plead guilty to something that he hadn’t done.” So he pleaded not guilty, they went to trial. They knew he’d be convicted. He was convicted.

They went to court for the sentencing. And the whole family’s there. And Mr. Brookins looked at the rest of the people in the family and said, “I don’t want any of you to cry in this courtroom when he’s sentenced.” He said, “I don’t want you to let them know how much they’ve hurt you.” And so they just remained stoic. Freddy got 20 years in prison and they took him away. And that family wept later in the day out of the sight of the people who had harmed their son.

BLACKBURN: This man made up an accusation and tried to send an innocent person to prison.

MOYERS: Gradually, the work of the pro-bono attorneys was turning up the true story. And Herbert’s columns were bringing that story to a national audience.

The charges against them just completely fell apart, didn’t they?

HERBERT: Oh, they absolutely fell apart. And I’ll give you an example. I mean there was one young woman, this guy accused her of selling drugs to him just like everyone else. And it turns out that she was not only not in Tulia, but she was out of state in Oklahoma. And, luckily for her, she had cashed a check at a bank in Oklahoma. And there was a timed record of this transaction. And it was just the time that Tom Coleman said that he had been… that she had been selling drugs to him in Tulia. So they had to drop the charges against her. There were cases like that.

JAMES WHITMIRE, TEXAS SENATOR: All parties agree that the cases against these Texans are rife with inconsistencies…

MOYERS: Increasingly embarrassed, the Texas power structure could no longer look the other way. The legislature passed a special bill which would allow most of the remaining defendants in prison to be released on bail.

Recently Judge Ron Chapman signed the order setting them free.

JUDGE RON CHAPMAN: The bonds will be set on the following individuals…

HERBERT: That was kind of an amazing day. I remember sitting in the courtroom where these folks had actually been convicted and sent off to prison. And they had a dozen or so defendants actually sitting in the jury box, which was a little strange. And then finally the judge granted them this special bond.

And then they were reunited with their families. And in some cases with their children right there before your eyes. It was very emotional.

MOYERS: Emotional, and bittersweet, as in the case of Joe Moore.

HERBERT: This was a fellow that when he was arrested, he was about 58 or 59 years old and a hog farmer.

And a woman whose children were also in prison because of this thing said, “Let me take you to Joe Moore’s house.” And it was just one of the most run-down, beaten up shacks that I’ve ever seen in my life. And I remember looking at that thing and I’m thinking to myself, “If this guy is a major drug dealer, there is something wrong.”

And it turns out that this was a sweet guy who clearly was not guilty of the charges against him. Sentenced to 90 years in prison. Didn’t have… forget a folding dollar. Didn’t have a penny to his name when he came out of prison.

I said, “What are you gonna do? Did you lose everything?” He said, “Yeah, I lost my hogs. I lost everything.” I said, “Well, what are you gonna do?” He said, “I’ll tell you the truth. I don’t know.” So I said, “We’re you gonna stay? Do you have a place to live?” And he did not. I mean he had to stay with friends on that night.

And when they sent him away for all these years, they treated him as though he was actually a dangerous drug dealer. And at one point, they sent him into the maximum security wing of a prison. And you have these young, very dangerous criminals in there.

And they looked at him and they said, “What are you doing in here old man?” And you might think that they would take advantage of a person like this in prison, because these were hard cases. But they didn’t. They sympathized with him. And he said they actually looked out for him. He said they were very protective of him.

MOORE [PRESS CONFERENCE]: “I’m just glad to be out, to be with my family and stuff…”

MOYERS: The word of one rogue cop had been enough to send innocent people to prison. But he couldn’t have done it alone. The judge who freed the convicted also concluded that the county sheriff and the prosecutors either knew or should have known that quote “Coleman is not honest, is not trustworthy…” And Herbert argues that the narcotics task force that hired and rewarded Coleman went too far in its mandate to make drug arrests. In other words, it was our national drug policy that made the Tulia madness possible.

HERBERT: What happens is you have these drug task forces which are financed by the federal government. It’s set up in such a way that the more arrests you make, actually the more funding you will get.

So there’s a situation in which it’s not terribly important to the people conducting these investigations to make sure that these are good arrests. You know the important thing is to make sure that this federal funding continues to come in.

And the reason I think that there’s a great deal of racism involved is because even though it’s acknowledged that whites and blacks of this country use drugs. Whites and blacks in this country deal drugs. When you look at the record of some of these task forces, you notice that many of them just zero in like a laser on black and Latino suspects and that’s what happened in Tulia.

MOYERS: It’s not quite the end of the Tulia story. The Texas Board of Pardons and Paroles has recommended that the governor pardon all but three of the Tulia defendants. A special prosecutor has indicted Tom Coleman on charges of aggravated perjury. The Texas Bar Association has filed a grievance against the district attorney who prosecuted these cases. And in Washington, the House Judiciary Committee plans to hold hearings some time this fall.

Bob Herbert has moved on to other subjects -but he still can’t quite put behind him what happened in Tulia.

Is this one of the reasons you went into journalism?

HERBERT: Well, I suppose if you had said to me, “What are your fantasies?” early on in my career, I would have said, you know, if you could – help some people with your stories. But I could never have imagined that there would be a story like Tulia. And when I began covering it, it wasn’t so much that I thought these convictions could be overturned or that these folks could be freed. I covered it for two reasons. One, because I thought it was an outrage. But I also thought it was a good read. I mean, as a journalist, as a columnist, you wanna write interesting stories. I thought it was a good read as well. But I don’t know if I really had the strong hope in my head that anything would actually happen.

SESNO: But things did happen, and just this afternoon, Texas governor Rick Perry followed up on the Texas Board of Pardons and Paroles recommendation by pardoning 35 people convicted in the Tulia dragnet.

Perry called his decision, quote, “appropriate and just.”

That’s it for NOW. I’m Frank Sesno. Good night.

This transcript was entered on April 16, 2015.

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