Free speech under fire on college campuses
June 15, 2013
by Paul Gigot
Fox News Channel
PAUL GIGOT, HOST: This week on the "Journal Editorial Report," charges of Big Brother abound in the wake of the NSA surveillance leaks. But in the era of IRS targeting, government-run health care and exploding federal regulations, should data mining be your biggest worry? And will shutting the program down diminish our terror-fighting abilities?
Plus, a new front in the battle over free speech on campus. Do just- released federal guidelines endanger faculty and student rights?
Welcome to the "Journal Editorial Report." I'm Paul Gigot.
Charges of Big Brother from both the left and the right this week in the wake of the NSA surveillance controversy. The leaks couldn't have come at a worse time, with polls showing the public's trust in government already at historic lows. So, in an era of IRS targeting, government-run health care and runaway federal regulations, how worried should we be? And is data mining our biggest threat?
Let's ask Wall Street Journal columnist and deputy editor, Dan Henninger; columnist, Mary Anastasia O'Grady; and editorial board member, Joe Rago.
So, Dan, explain something to me. These programs began under George W. Bush. They have had bipartisan support. So what explains the uproar now against them?
DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: Well, you know, Paul, I think it's two things. It's sort of -- it's basically the dramatic way in which these so-called leaks were published a week or so ago. And the word "data mining," which is a buzzword, and even the people who created data mining will admit it's a weird-sounding word. But the NSA has been doing that for many, many years, scanning like that.
HENNINGER: And, you know, the telephone calls and -- between suspected terrorists overseas and people here, was one of the biggest fights of the Bush administration, a public fight. We worked that out and made an accommodation on how we were going to do it.
GIGOT: Right. And Congress has passed -- have sanctified it once in law and re-upped it again last year.
HENNINGER: I think one of the most significant things that came out this week, Paul, the testimony of General Alexander, who is the head of the cyber warfare office for the White House, and he said at one point that they, within a week, would make public at least a dozen of the terrorist plots that have been stopped using this technology. For the life of me, I don't know why they haven't done that before this to at least let the public see some justification for doing these technologies.
GIGOT: A lot of people's reaction is, "We don't believe you. You're just doing this now because, you know, you're under pressure."
HENNINGER: Paul, if the White House said the sunrises in the east and sets in the west, 25 percent of the population is going to say, that's not true.
I mean, this is a democracy. But you have to -- if you're in a position of leadership, it is your job to execute programs like this and protect the American people and take the occasional flack like we've had the past week.
GIGOT: Mary, you said last week that you have real doubts about this program. But let's start and think back for a second about the purposes of government. Wouldn't you agree that government -- the first obligation of government is the public safety of its citizens?
MARY ANASTASIA O'GRADY, COLUMNIST: Yeah. Unless you're an anarchist, you believe that there's a role for government. And protecting citizens is certainly at the top of the list.
But I think that what's happened here is that a program that could protect us has been undermined by a president who uses terms like, you know, we're looking for shadowy groups and, of course --
GIGOT: Donors of his opponents.
O'GRADY: Yeah. And he -- he calls his opponents enemies, his political adversaries.
You know, another thing General Alexander said yesterday, or last week, was that, you know, the main thing that is important here is trust. He used that word "trust" several times in his testimony. And I think that -- that gets to the core of the problem. People do not trust this president and the way that he's managed the government more broadly to execute this program.
GIGOT: But did you trust this program under George W. Bush?
O'GRADY: Well, the program's broader than it was under George W. Bush. The question is, do we believe that courts and Congress, you know, using oversight, can stop any abuse? And the other problem is --
GIGOT: How would you answer that question?
O'GRADY: Well, it's not clear to me it can. And part of that is not just because the president doesn't execute leadership, but also because there is, you know, all these analysts working for the program, one of them who is in Hong Kong right now, who seems to have gotten, you know -- who seems to have leaked information he had. Why couldn't that happen with a variety of other people in the organization?
GIGOT: Joe, you're not as worried about this program as Mary. Put this in context of all the other scandals about government expansion that we've been talking about and writing about for many months, the IRS, you've written about Obama-care extensively. Where do you put this data mining threat, if you want to put it in those terms, compared to these other government powers?
JOE RAGO, EDITORIAL BOARD MEMBER: I would draw a pretty critical distinction between national security programs and some of the domestic programs that use the same kind of tools. You know, if you're -- the anti- terror surveillance and the other architects of the war on terror, you can't just operate it during periods of Republican benevolence. You have to --
GIGOT: Presumed benevolence.
RAGO: You have to have trust in kind of an administration to fight this.
One interesting thing is trust in government is adversary proportional to what the government is trying to do.
GIGOT: The more it expands --
GIGOT: -- the less trust.
RAGO: The less people trust it. And so one thing is that I think President Obama has undermined trust in something that's critical like NSA with things like hiring 19,000 IRS agents to enforce the Affordable Care Act. And people look at that and go, well, I don't know if this translates.
GIGOT: Mary, I'm more troubled by the IRS scandal, because the IRS can come in there and can seize your wages, it can seize property without recourse. It could do that to you very easily. It has the power -- and very little recourse. This is just a program that kind of takes data, I don't care by phone numbers -- they know about my phone numbers.
O'GRADY: I agree with you. What you end up having here is the government that has wider and wider powers. And so you're saying, I don't trust them over here but I trust them over there. And I think that's what makes people uncomfortable.
I do think that, to Dan's point about them releasing some information that would show people how important this program is, that is very important. And last week, Google released a letter saying, look, you know, we're asking the FISA courts to let us put out there more specifically, but not entirely, what we're doing because that would comfort people.
GIGOT: I don't trust the government, Mary. What you do is punish the abusers when they abuse their authority. That's where I would draw a distinction.
When we come back, calls from some quarters to shut NSA surveillance down. Will it put American lives at risk? And what's left if we do? From drones to spies to interrogations, the status of the other weapons in our terror- fighting arsenal, next.
(BEGIN VIDEO CLIP)
GEN. KEITH ALEXANDER, DIRECTOR, NATIONAL SECURITY AGENCY: Great harm has already been done by opening this up. And the consequence, I believe, is our security is jeopardized.
There is no doubt in my mind that we will lose capabilities as a result of this, and that not only the United States but those allies that we have helped will no longer be as safe as they were two weeks ago.
(END VIDEO CLIP)
GIGOT: That was General Keith Alexander, director of the National Security Agency, testifying before Congress Wednesday, and claiming that the U.S. and its allies are less safe as a result of this surveillance leaks. Alexander told the Senate committee that more than a dozen plots have been disrupted by the NSA programs. But with calls coming to shut them down, what tools are left in our terror-fighting arsenal and can they get the job done?
We're back with Joe Rago and Dan Henninger. And Wall Street Journal editorial board member, Matt Kaminski, joins us also.
Dan, how important in the whole fight against terror are these NSA programs?
HENNINGER: Let's try to explain with an example, Paul. U.S. security did catch a terrorist named Nazi Beulah Azazi who was going to blow up the New York subway system. He began in Denver where these activities were picked up by the NSA data mining program. They were looking for patterns, and it finally pointed in the direction of these people. At that point --
GIGOT: His connections overseas.
HENNINGER: His connections overseas. At that point, the NSA turned it over to the FBI and they asked the FBI to start monitoring telephone calls. And they finally did zero in on this particular individual. They then tracked him from Denver to New York City, where agents on the ground followed him and caught him eventually before they were able to carry out a very real plot to blow up cars on the U.S. -- on the New York subway system. Which, I must say for those of us who live here, it is one of the biggest things you worry about every day. It worked, from top to bottom.
GIGOT: Your answer would be, this is very, very important to deterring and stopping plots?
HENNINGER: I think it's provably important.
GIGOT: What else do we have, and where do our other tools stand here, Matt? Take, for example, interrogation. You can capture terrorists and interrogate them and find out what their colleagues are doing. Do we do that as much as we used to.
MATT KAMINSKI, EDITORIAL BOARD MEMBER: Here's the thing. Since 9/11, we've built up -- we've had interrogation. We had enhanced interrogations, which were stopped halfway through the Bush presidency. But now we no longer capture terrorists and we no longer interrogate them for intelligence.
GIGOT: And when we do interrogate them, we have to limit it to the Army Field Manual methods, which are not enhanced at all. They more like somewhat less than a New York Police precinct.
KAMINSKI: Right. We only captured one person on the battlefield in the last four and a half years of the Obama administration. We obviously have the signals intelligence, you know, high-tech ways to --
GIGOT: Listen in?
KAMINSKI: Exactly. Watch the movie "Zero Dark Thirty," the way they found Usama bin Laden's courier, they tapped into the phone when he called his mother back in Kuwait. That was a way they could sort of pinpoint him and them him limb on the ground in Pakistan to get bin Laden.
GIGOT: But you're saying the interrogation has been diminished in the last four or five years.
GIGOT: No question?
KAMINSKI: We had the drone strikes. We have the drone strikes, which President Obama has amped up. But now, he said last month he's going to reduce them. He wants to -- the program really scaled back. There's concerns about abuse there, too.
GIGOT: But also, to use drones, you have to know where the terrorists are. You have to find out --
KAMINSKI: The intelligence from the interrogation helps a lot.
GIGOT: What about infiltration, spying, traditional human intelligence? You have a double agent, for example, inside Al Qaeda. Do we do that very well?
RAGO: Right. We don't. This is much harder than infiltrating the KGB, for example, during the Cold War.
GIGOT: Because of the ideological intensity of the group?
RAGO: Right. Exactly. It's sort of decentralized nature. For example, we had a double agent in Yemen, but it turned -- he was exposed by the press and had to flee. And in another case, we had a man in Jordan. We thought he was a double agent. He turned out to be a triple agent and ended up killing a CIA officer in --
GIGOT: Several CIA officers. Again, as the movie "Zero Dark Thirty" shows. And that Pakistani doctor who helped us get bin Laden --
RAGO: Now in prison.
GIGOT: -- now in prison. That does not encourage a lot of other people to help us out in the future, does it, Dan? So this leaves us -- this suggests to me, anyway, that surveillance is one of the major tools we have left?
HENNINGER: It's not only major, Paul, but the thing, the point that has to be made is that it is necessary. What is the alternative? What if we scaled back?
GIGOT: That is the question. What is we did scale back? What would we be left with? Because some people say we don't need these surveillance, the data mining of all Americans because we can zero in on the terrorists, monitor them, focus on them. What's wrong with that argument?
HENNINGER: I think President Obama has created a lot of confusion by saying that the war on terror, that we have decimated Al Qaeda and decapitated their leadership while, at the same time, you have 12 bombings a day in Iraq. If we hadn't these protections, I think inevitably these terrorists would come here and start setting off bombs in the USA.
GIGOT: What about that argument, about the zeroing in on the terrorists as opposed to data mining everybody?
KAMINSKI: I think the problem here is that -- I mean, the other confusion is that President Obama says the choices between, you know, civil liberties and security. That's actually a false choice. I mean, you know, being alive is also a civil liberty. But more importantly if we don't do these things that aren't that intrusive, having billions of phone numbers in the computer, and we stop doing that --
GIGOT: Look --
KAMINSKI: -- then we go to much more intrusive, you know, checks at the airport. People are not happy with the passport line now. Wait until we don't have these other --
GIGOT: Infiltrating students groups, infiltrating mosque, that sort of thing --
GIGOT: -- that's the potential danger.
When we come back, government intrusion of a different sort as the Justice and Education Departments issue a new speech code for college campuses. We'll have the details, next.
GIGOT: Well, it's another case of government overreach. This time, on the college campus. In response to some serious allegations of sexual assault, the Departments of Education and Justice last month issued a joint letter to the University of Montana that my guest this week says amounts to a dangerous new speech code for colleges across the country.
Greg Lukianoff is the president of the Foundation for Individual Rights in Education and author of the book "Unlearning Liberty: Campus Censorship and the End of American Debate."
I spoke with him earlier and asked him why.
GREG LUKIANOFF, PRESIDENT, FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION & AUTHOR: Well, in a letter to the University of Montana, when they're investigating serious allegations of mishandling of sexual assault, for some reason the Department of Justice and Education decided to get together and redefine sexual harassment in incredibly broad terms that by plain language make practically every student and faculty member guilty of harassment.
GIGOT: How does the new language differ from the old language? Explain to us how the policy has changed.
LUKIANOFF: Well, previously, the Department of Education had, when explaining what harassment was, referred to it as "unwelcome conduct of a sexual nature," and they explicitly include verbal conduct, which is also known as speech. Now, this had always been sort of the introduction to what harassment is. And then they went on to describe it as a discriminatory pattern of persistent and severe behavior and --
GIGOT: They've thrown that out now? It's changed?
LUKIANOFF: They're saying it's just unwelcome conduct of -- or unwelcomed speech of a sexual nature.
GIGOT: You think that creates a problem for the First Amendment? How so?
LUKIANOFF: Oh, it absolutely does. Since the 1980s, universities have tried to justify campus speech codes by just dubbing them harassment codes. Codes that are much more narrow than the one the Department of Education just came out with have been struck down by courts over and over again. But now the feds are stepping in and trying to impose this national speech code, which would be laughed out of court if challenged.
GIGOT: Am I right that they have also abandoned something called a "reasonable person standard" --
GIGOT: -- which strikes -- sounds reasonable to me.
GIGOT: If a reasonable person would find it offensive, then maybe it would be. Explain that?
LUKIANOFF: They explicitly overruled the University of Montana's requirement that the harassment be offensive to a reasonable person. And that leaves it open to the most sensitive person in the room getting to decide what people say on a college campus.
GIGOT: Well, how can schools respond to this? I mean, do they all have to follow it? What is the lever here, the coercion that the government can use?
LUKIANOFF: Well, because the Department of Education has power over federal funding, universities ignore the Department of Education at their peril. That being said, when you look at the full terms of the agreement, you look at the University of Montana agreement, you look at the new recommendations, it's basically impossible, let alone unconstitutional, for a university to comply with this. So it's time universities stand up and start fighting back.
GIGOT: So you're saying that they run the risk, if they challenge, of losing their federal funds?
GIGOT: They are -- they have the ability to sue in court to resist and sue and fight on First Amendment grounds. Has anybody done that so far?
LUKIANOFF: So far, nobody. No university has come forward to say this goes too far, which is amazing because, as I said, it's impossible to comply with every part of this.
GIGOT: Are they intimidated by the departments, do you think, or is it just sinking in that this new policy is taking affect and that this will be challenged over time?
LUKIANOFF: I think all of that is happening right now, but I think universities at some level should be pretty ashamed of themselves so far for how compliant they've been with previous demands from the Office of Civil Rights.
GIGOT: You look at previous Supreme Court precedence -- the Supreme Court has shown itself over time, has it not --
GIGOT: -- that it is quite skeptical of these kinds of speech codes on campus. Give us a case.
LUKIANOFF: These speech codes have been defeated consistently since 1989, and well over a dozen cases --
GIGOT: That have gone up to the Supreme Court?
LUKIANOFF: They don't even -- the thing is the law is so clearly settled, they don't generally go to the Supreme Court.
GIGOT: The lower courts settled them.
LUKIANOFF: Yes. Because the law is that clear and doesn't need to go to the Supreme Court. In a sense, what they -- the feds are recommending right now is absolutely unconstitutional.
GIGOT: So, briefly, what would this mean to the average professor?
GIGOT: How would this implicate what he or she is trying to teach?
LUKIANOFF: Well, and you don't even need to go to theoretical examples. We watch harassment codes get abused all the time. And as I talk about --
GIGOT: Does it effect classroom instruction?
LUKIANOFF: Oh, absolutely, yeah. We have an example out of the University of Denver where a professor was teaching a class, specifically about taboo topics, about drug use, about American taboos, and he was found guilty of harassment just for teaching the content of the class.
GIGOT: And was penalized by the university?
LUKIANOFF: Yes. That harassment finding remains to this day.
GIGOT: Have you seen other cases like this around the country?
LUKIANOFF: Dozens and dozens over the years. This is a regular happening. Harassment rationales are abused all the time.
GIGOT: Greg Lukianoff, thanks for giving us the bad news.
We'll be watching the case. Thank you.
GIGOT: We have to take one more break. When we come back, "Hits and Misses" of the week.
GIGOT: Time now for "Hits and Misses" of the week.
Dan, first to you.
HENNINGER: A tough week for President Obama, Paul. I recall the words of the famous song "Nobody Knows You When You're Down and Out." First, Al Gore hit him for -- he told him to get moving on climate change. And then, Bill Clinton, in a closed session, said that Obama risked looking like a fool if he didn't improve his policy on Syria. Within days, he announced that we were going to start arming the Syrian rebels. So maybe the answer here is to reprogram Bill Clinton.
GIGOT: All right.
O'GRADY: This is a miss for the Obama Justice Department, which, this week, said that it will not challenge a judge's ruling that girls 15 years and younger can buy the Morning After Pill over the counter. Now, I get that the Obama administration doesn't care about life issues. That's fine. But you would think they would care about these girls, many of whom, when they get into trouble, it's not consensual sex.
GIGOT: All right, Mary.
KAMINSKI: Paul, here's a hit to New England's Patriots coach, Bill Belichick, who dared weighed in to the great Christian secular debate in this country in the face of great hatred, signed Tim Tebow, the Christian quarterback, to a contract. The last time Tim Tebow had any serious playing time, he led the Broncos to the playoffs. He deserves a second chance in New England to show he is worthy of the NFL.
GIGOT: Yeah, I just want to note, did I detect Clinton nostalgia there on the part of Henninger here --
-- in wanting --
HENNINGER: Paul, I'm only interested in what works. And --
GIGOT: All right.
And remember, if you have your own "Hit or Miss," please send it to use at email@example.com. And be sure to follow us on Twitter at JERonFNC.
That's it for this week's show. Thanks to our panel and to all of you for watching. I'm Paul Gigot. Hope to see you all right here next week.
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