In Muskegon's Hackley lecture series, attorney warns about trading civil liberty for security

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By Cynthia Price
Legal News

Each year since 1981, the Friends of Hackley Public Library has chosen a distinguished person with ties to Muskegon (often a native) to give a talk as part of the Hackley Distinguished Lecture series. The event’s official title is “The Charles Henry Hackley Distinguished Lecture in the Humanities,” and the selected individual embodies the ideals set forth by Hackley himself.

For its 38th year, not only was the speaker, Jeffrey Kahn, exemplary in terms of his career and his scholarship, but he also has a significant advocacy message to spread.

In addition to Kahn’s lecture, The Friends of Hackley Public Library gave out two Hackley Commendations for Service at the event, held June 6. One went to I. John Snider, a partner emeritus at Warner Norcross + Judd, and his wife Kathleen for their many contributions to the local community, and filmmaker/community activist Jon Wesley Covington received the other. (Covington may be familiar to Grand Rapidians due to his involvement with 97.3 The Beat radio; he recently created a film called Black Man, produced by the Muskegon Museum of Art.)

Kahn, born in Muskegon and a graduate of Mona Shores High School, went on to graduate from Yale College, Oxford University and the University of Michigan Law School. During law school, he served as a lecturer on European human rights law for Russian lawyers in Moscow, at trainings sponsored by the Council of Europe.

Interestingly, the Hackley Distinguished Lecture program for years included the Robinson Essay scholarship competition for students and, in 1990, Kahn won first place. So he was coming back home in more than one way to give the lecture.

Kahn is currently Professor of Law and Gerald J. Ford Research Fellow at Southern Methodist University Dedman School of Law in Texas, where he has twice won the Excellence in Teaching Award, among many other honors. He was a resident in Norway during the 2017-2018 academic year as a Fulbright Research Scholar at the PluriCourts Centre in the Faculty of Law at the University of Oslo. He joined the faculty in Fall 2006 and became a full professor in 2014.

One of his greatest areas of expertise is on human rights and legal reform in Russia after the Soviet Union. Widely known for the breadth and depth of his knowledge in that field, he was quoted in a 2010 article in the New York Times: “Russia, the scholar Jeffrey Kahn said, has ‘a lot of bad legal habits.’ One is the prosecutor’s ‘case file,’ which sealed the guilt of countless Soviet citizens and retains its terrifying force.”

It is easy to see how that interest led him to the subject matter of his Hackley talk, another of his areas of expertise: the relationship between security and liberty after the 9/11 attacks.

His lecture, “Round Up the Usual Suspects: Terrorist Watchlists and Civil Liberties,” sounded the alarm that the United States has gone too far in naming people to such databases as the “No Fly List,” depriving citizens of some of their most basic rights in the area of due process of law.

At the same time, he says, the shared law enforcement watchlists defy the separation of powers on which the U.S. Constitution is based, in that the executive branch is ignoring the need for judicial branch review of decisions about who will be on the list,  the standards for adding people to the list, and how to appeal inclusion.

And, Kahn says, we all are not paying enough attention.

He started off by quoting from the film Casablanca, where at the end a law enforcement officer tells his assistants, “Round up the usual suspects.” (The Kevin Spacey film The Usual Suspects took its title from the same well-known saying.)

But, Kahn says, what was at the time an alarming enough concept is now a much bigger threat to civil liberty as a result of the Internet.

Kahn’s most recent book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists (published by the University of Michigan Press), takes as its starting point the work of a bureaucrat, Ruth Shipley, who from the period 1928-1955 was solely responsible for determining whether or not people could travel to foreign countries. Many will find it surprising that at that time the State Department’s Passport Office, which Shipley headed for so long, decided exactly who would travel out of the country. When citizens were done traveling, they had to return their documents to the passport office in Washington D.C.

The laws changed, but after airplanes were used successfully to mount attacks on 9/11/2001, the War on Terror allowed passage of legislation that creates a No Fly watchlist (and other related lists).

In the age of computers, anonymous officials create these lists without oversight, and as the numbers grow and grow, a click of the mouse allows access to information from which the people clicking are very detached. FBI agents nominate people on the list through using a simple form – and there is no one checking to see if there are simple errors. In fact, in one case Kahn knew well, a woman appeared on the list simply because an agent switched lines when entering data on the form.

Kahn’s research indicates that in one five-year period there were over 469,000 nominations for the list, and the rejection rate for nominees was just over 1 percent.

Since the lists are very closely guarded secrets, people “accused” have no opportunity to know why, to confront their accusers, or even to find out if their names appear.

Moreover, as technology advances and such software as facial recognition comes into use, links to the watchlist become dangerous indeed.

And, as Kahn pointed out in his lecture, this has not even resulted in a safer society. Both the “Shoe Bomber” and the “Underwear Bomber,” who were disarmed by passengers, failed to appear on the No Fly List, and as domestic terror has increased recently, for the most part it has had nothing to do with air travel.

The solution? Primarily, Kahn says, voters and advocates need to be aware of the scope of the problem and give some thought to whether the tradeoff of civil liberty for security is worth it. Judges, he said, are beginning to raise issues, and elected officials need to hear from citizens who share their concerns.

“A people who declare themselves free, and yet do not police the conduct of their leaders, will not taste that freedom for long,” Kahn warned.

Kahn gave a copy of his book to Hackley Library. More information about his work can also be found at https://jeffrey-kahn.com/

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