The
segments included in this interview excerpt were recorded
in October 2003, as part of THE COST OF FREEDOM -
Civil Liberties, Security and the USA PATRIOT Act,
a look at the history of civil liberties in America
and the controversy surrounding the USA Patriot Act.
The documentary is a co-production with Iowa Public
Television. Viet Dinh is Professor of Law at Georgetown
University Law Center and former Assistant Attorney
General for Legal Policy.
(*
This transcript has been edited due to length.)
What
is the USA Patriot Act and how did it come about?
The
USA Patriot Act at its core is a set of fifty proposals
that the administration sent to Congress on September
19th of 2001. Those fifty proposals are the culmination
of the efforts by the administration led by the Department
of Justice to answer a very simple charge from the
President. Right after 9/11 right after the first
National Security Council meeting the President turned
to the Attorney General and said, "John, you
make sure this does not happen again.” The Attorney
General took that charge and turned to the Department
of Justice and said review top to bottom all of our
procedures and policies and practices as it relates
to the effort to prevent another catastrophic attack
on the American homeland. Where necessary revise our
procedures, reform our policies, and propose new legislation
to give law enforcement and our intelligence community
all the tools that it needs consistent with the Constitution
and only those tools that it needs to prosecute this
war on terror in the short term and to win the war
in the long term. After a very deliberate but obviously
accelerated process we put out a call to all rank
and file investigators, agents and prosecutors and
asked them for their best and brightest ideas to meet
that charge. Answers came in to my office, came in
to other offices and then forwarded to my office at
the Office of Legal Policy. We spent many days and
nights combing through those proposals to make sure
they meet that objective -necessary tools and only
those that are necessary.
I remember very clearly sending out a directive saying
that this is not Christmas in September. Do not propose
what you want to have only propose what is necessary
to fight the war against terror. And each one of the
proposals met certain criteria: one it has to be operationally
necessary, two it has to have no unintended consequences
on our operations and the protection of liberties
of ordinary law-abiding citizens. And three it has
to satisfy all applicable constitutional standards.
If that's the case then it gets advanced up the chain
of command and finally approved by the White House
for transmission to Congress. From September 11 until
October 26 when the act was finally signed into law
by the President were six weeks of uninterrupted and
concentrated deliberation on that basic charge - the
tools necessary and only those necessary in order
to fight the war against against terror. After the
act was proposed to Congress, the House Judiciary
Committee deliberated, held hearings on the proposals.
The Senate Judiciary Committee did the same thing.
But apart from the public hearings and the deliberations
that are seen in the public eye, were constant round
the clock deliberations, negotiations and analysis
in order to fine-tune the proposals. Some of them,
two in particular, the Congress did not pass and Congress
added a whole number of other provisions that it thought
necessary and it had been working on a independent
track.
The process through which the Congress arrived at
the USA Patriot Act although very accelerated in the
normal legislative process is also much more deliberative
than the normal legislative process because all of
the applicable energies were focused on this one particular
piece of legislation. It is like sitting down and
reading War and Peace in one or two sittings rather
than reading one page in a thousand sittings, which
is the normal legislative process. Here everybody
was focused; everybody knew the monumentusness of
the occasion and the awesome responsibility that they
were seeking to discharge. And so the result of the
act, it was passed by 98-1 in the United States Senate
and overwhelmingly by a ratio of 5-1 in the House
of Representatives was I think truly a bipartisan
consensus that was the right response, at the right
time, reaching the right need.
Some
critics said that the politicians did not have time
to read the Patriot Act. There were the anthrax scares
and they were being told that freedoms hung in the
balance and they rushed it through but would not sign
off on it today. How do you respond to that viewpoint?
The
anthrax scare affected two offices the most. The office
of Senator Leahy who was then the Chairman of the
Senate Judiciary Committee and of Majority Leader
Daschle -Tom Daschle. Those two persons who were most
personally affected by the anthrax scare at the time
were also the two persons most closely involved in
the negotiation and drafting of the USA Patriot Act.
I think that great credit goes to those gentlemen
who put aside their immediate danger in order to respond
to the immediate need for them to perform their duty.
Like most work in Congress the work on the USA Patriot
Act was delegated to committees and to staff and to
specific members who discharged to delegate authority
in a very responsible, very deliberate and very concentrated
manner. Of course, when that delegated authority has
been exercised other members take that good work in
good faith and quite often as with every other legislation
do not go through the fine print and dot the i's or
cross the t's. Rather they trust in the process that
resulted in the final work product. I think the USA
Patriot Act in that sense is not only consistent with
but I think much better than the normal process of
legislative law making. Otto Bismarck is famous for
saying no man should see how law or sausage is made.
I think in the USA Patriot Act I am proud that people
are able to see how this law was made and it would
be quite a surprise to the general observer how normally
most laws are made and how often or seldom legislators
actually read the laws or provisions they pass upon
simply because they trust the process that result
in the fine work on which they pass judgement.
How
do you think it can now be demonstrated that the USA
Patriot Act has strengthened the war on terrorism?
The
best statistic as to the value of the USA Patriot
Act and the attendant strategy to prevent another
catastrophic attack on the American homeland is actually
a non-statistic. We've seen twenty-five months where
nothing has happened. And every single day that a
mother goes home from work, that a father picks up
his son at the soccer field and nothing happens, it
is a boring day in middle America, is a momentous
achievement for United States law enforcement and
the intelligence community given the continuing threat
we face elsewhere around the world and right here
in the American homeland. I think it is safe to say
that without the USA Patriot Act it would have been
much more difficult if not impossible for law enforcement
and our intelligence community to deliver this resounding
success of nothing happening.
How
is that attributed to the USA Patriot Act and not
simply good luck? What tools would you point to that
did not exist prior to the Patriot Act?
I
cannot say with certainty that with the USA Patriot
Act 9/11 would have been prevented. Nor can I say
with certainty that without the USA Patriot Act the
last two years of peace would not have transpired.
Nevertheless, those are exercises in counterfactual
history about which none of us would be qualified
for comment. What I do know is that the USA Patriot
Act provided the critical tools through which law
enforcement and the intelligence community could use
in order to detect terrorist plans, in order to communicate
with each other about those plans and then to take
action based upon the information. The USA Patriot
Act has achieved what I would consider to be a momentous
success by leaving a very small footprint. That is
so because the law as it relates to our ability to
defend against terrorist threats were so full of loopholes
that prior to the USA Patriot Act, that what the Act
really did was close those loopholes, take what I
would call the low hanging fruits and thereby achieve
exponential gains in our ability to prevent another
terrorist attack by simply incremental changes in
the law. For example, the law that authorizes law
enforcement personnel to monitor criminal conversations
with showing probable cause to a federal judge and
the like, was first drafted as part of Title Three
of the 1968 Omnibus Crime Act when communications
were effective primarily through analogue telephone
lines and telephones. Obviously the same communication
can be effected through a myriad of means in 2001-2003.
Instant messaging, the Internet, digital, wireless,
so many other means of communications.
What the law needed to do and what the USA Patriot
Act did was to update the law to the technology so
that those loopholes would be closed to the terrorists
who would seek to exploit them to communicate their
plans. The updating does not in any way infringe on
the rights and civil liberties of ordinary law-abiding
Americans because the same standard of constitutional
and judicial oversight probable cause or reasonable
showing or whatever the standard was for a particular
form of monitoring is carried over by the USA Patriot
Act. That is an essential tool that allows law enforcement
to fight this twenty-first century war, not with antique
weapons but actually with the weapons of modern technology.
Another example is the momentous change in the USA
Patriot Act that allows law enforcement personnel
to communicate with their intelligence counterparts
and visa versa. We knew after September 11 or at least
we realized after September 11 that terrorism is both
an act of war and also a crime. And the fight against
terrorism is both a matter of normal criminal prosecution
and also the protection of national security. However,
these two communities - the national security community
and the law enforcement community - were prohibited
by law and inhibited by culture prior to September
11 from sharing information and collaborating their
activities. The USA Patriot Act relaxed the legal
prohibitions so that the two communities can work
together to coordinate information and collaborate
activities. There remains much work to be done in
order to change the culture of inhibition that has
risen up in the last twenty years. But the USA Patriot
Act took the first and necessary step to allow all
persons who have different pieces of the puzzle to
assemble all those pieces of the puzzle at the same
timetable so we form a complete mosaic of intelligence
information relating to terrorist conspiracies. With
that information we can then take action in order
to interdict and disrupt terrorist plans.
Thus far the United States government has been very
successful. It has disrupted four alleged terrorist
cells in Buffalo, in Detroit, in Portland, Oregon
and in Seattle. Also it has brought criminal charges
against approximately three hundred individuals, the
majority of whom have either been convicted or pled
guilty. Not all of these charges are terrorism-related
charges, but those are individuals that the government
has indentified as terrorism suspects. There is no
question that after 9/11 that the calculus for the
use of prosecutorial discretion changes as it relates
to those who are suspected of terrorism. Where in
normal circumstances the government would not be interested
in a credit card fraudster who commits one thousand
or two thousand dollars worth of harm that job can
normally be left up to local or state law enforcement
agencies to enforce against those fraudsters. But
where that fraudster is suspected of terrorism the
potential cost of inaction is quite high. And so I
think the federal government has been consistent and
that's perfectly justified in using all of the tools
at its disposal maximizing its prosecutorial discretion
in order to prosecute these individuals, to remove
them from the streets from which they would do harm.
Who
gets to define whether someone gets to fit into that
definition of terrorism and how do you stop the law
from being abused and applied to the average run of
the mill crime?
A
person who is a terrorism suspect, if you will, who
is categorized as a person of interest to the terrorism
investigation is designated as such by individualized
investigative or intelligence based criteria. For
example, if my name appears in the address book of
Muhammad Atta, I naturally would be considered a person
of interest to the authorities. If I can offer an
innocent explanation as to why my name is in his address
book, we go to school together, we sometimes have
a drink together, we socialize together independent
of any terrorist plans, then that innocent explanation
of course removes me of any taint and therefore deprives
the government of any interest in me an ordinary law
professor. However, absent such an innocent explanation
I hope that the government would still consider me
to be a person of interest to their investigation
because absent such an innocent explanation the government
has to presume the worst.
What
rights do you have to protect yourself if the government
gets it wrong?
Of
course, the mere fact that the government considers
me to be a person of interest to their investigation
does nothing to infringe my rights as a citizen or
my liberties as a law-abiding member of this community.
Specific actions that this government takes in order
to pursue that interest may well infringe on some
of my liberties and and on some of my rights. And
where they do, I have the constitutional and legal
rights that attach to a normal ordinary person who
is presumed to be innocent. So for example, the government
simply by coming to question me voluntarily in no
way infringes upon my liberty or my rights. However,
if the government wants to arrest me then it has to
show probable cause and it has to give me the warnings
that I am entitled to an attorney and have a right
to be to be silent. If it does so, take those more
extraordinary steps then all of my legal and constitutional
rights that attach would attach at the point of the
government conduct. There is of course after 9/11a
celebrated class of cases where the President himself
has designated certain individuals as enemy combatants
or unlawful enemy combatants. We should be clear that
those individuals are designated as combatants by
the President not in his authority as chief law enforcement
officer, but rather in his role as commander in chief
of the armed forces of the United States. Just like
General McArthur could have done in the Pacific theater,
or General Eisenhower could have done in the European
theater, so to the President in this war, in this
theater, could designate and arrest persons who are
enemy combatants to remove them from the battlefield
so that they would not inflict further harm on our
soldiers, our innocent civilians. It is a different
process from and analytically much more difficult
question than the normal process of criminal law enforcement.
Who
gets to define the war on terrorism?
The
fundamental proposition that I think 9/11 had illustrated
to all of us is this phenomenon of the privatization
of force. In a normal sixteenth-century through twentieth-century
world the ability to inflict catastrophic harm has
by and large been monopolized by nation states. That
is why international law is really the law among nations
to govern the conduct of civilized nation in their
use of individual monopolies of force. The fundamental
proposition that 9/11 illustrated to the world was
that force is no longer monopolized by nation but
rather has been privatized in the hands of a couple
of evil doers. No longer does catastrophic attacks
have to be perpetrated by nation states against each
other, but rather any Joe Schmo with a couple of hundred
thousand dollars and evil intent can do a lot of damage
not only to the physical structure of a particular
country and to kill a whole lot of its citizens, but
also to disrupt fundamentally the constitutional democratic
order upon which our civilization rests. In order
to respond to this threat of violence and ideologically
driven war the war on terror has to be able to take
the battle to the terrorists. This is a war that is
fundamentally different from normal war amongst nation
states because the enemy is different. No longer is
the enemy to be trusted to wear uniforms and limit
their activities to a well-defined battlefield. But
rather this enemy dresses in the clothing of civilian
garb and perpetrates its evil doings not on combatants
but rather on civilians. Its object is not simply
to kill innocent people but rather to terrorize those
that survive. So we have to recognize the nature of
this threat and respond to it in kind. That response
and the recognition of course poses very fundamental
questions regarding constitutional authority regarding
the conduct of civilized war and we have to be constantly
mindful of those rules, of those limits, because as
with any war and this war in particular, poses that
fundamental dilemma that Conrad noted in the Heart
of Darkness. How do we defeat the enemy without becoming
the enemy ourselves? We do that by steadfastly adhering
to the rule of law, both the constitutional authority
of individual actors within our democratic system,
and also the rule of civilized conduct of war Even
though the other side, the terrorist has not only
violated these rules of civilized conduct but rather
exploited them to his advantage. .
Who
gets to declare the war? With the McArthur example
that's understandable. But many argue the war on terrorism
is a rhetorical term.
Both
the constitutional law of America and acknowledged
international law and the UN charter recognize the
right of any nation to repel armed attacks against
it. And I think it is beyond controversy that September
11 was an armed attack on the American homeland. And
the President as commander in chief of the armed forces
has the constitutional authority to undertake actions
in order to defend against such attacks and the continuing
threat of future attacks both from al-Qaeda and from
other terrorist groups. Congress has augmented this
authority by its declaration right after September
11 authorizing the President to use necessary force
in order to defend the country against this and other
continuing attacks, The President in discharging his
duty as commander in chief has to make some very hard
choices, I admit. Unlike a Nazi soldier captured on
a battlefield somewhere in Europe, the terrorist who
may or may not be a United States citizen is mingling
amongst the citizenry against whom he would do harm.
And so the President has to make a very difficult
choice whether to treat this person who he believes
to be a terrorist, who therefore is both a criminal
and also an enemy unlawful warrior, whether he would
treat this person as a criminal or as an unlawful
enemy combatant. It is only the President who has
that constitutional authority to make that determination
and it only is the President who bears the political
accountability for making the right choice. Because
obviously if he makes the wrong choice it could be
catastrophic in terms of the security of America or
harmful to the liberty of this one particular person.
Either way it is a hard choice. It is a hard choice
because this war does not take place on an ordinary
battlefield. It takes place on the ordinary street
and this criminal does not wear the uniform of a soldier,
but rather he wears the ordinary street clothes of
a civilian.
If we account the strictures of constitutional authority
- international law to accommodate the realities of
modern war against terrorism I think we should agree
that the President has some authority to detain enemy
combatants. He even has the further authority to declare
whom he believes to be unlawful enemy combatants because
after all he is the one who has all of the intelligence
information, all of the information of the criminal
investigators, and also bears some responsibility
for defending the nation against such enemies. And
I think that the courts based on its existing precedent
would give the President lots of deference in those
determinations. However, I do not think that existing
precedents of the Supreme Court go so far as to justify
the President to hold these individuals without any
promise or guarantee that they would receive some
legal process at some time. In all of the precedents
of the Supreme Court up to date where the court has
been asked to defer to executive processes, either
in trying Nazi saboteurs in World War II or in deferring
the claims resulting out from the Iranian hostage
taking, the court has indeed deferred to executive
processes but the critical difference is that it can
look at the actual processes and say yes that it is
adequate - relaxed but adequate - and we will defer
to that. Here the United States government is taking
a stronger position and I believe an extension of
law in asking the court to defer when there is nothing
to defer to. And it seems to me it remains an open
question whether that position would succeed. I highly
doubt it.
If
you go back to previous wars they are always characterized
by a certain hysteria, previously the fear of communism.
So how do you guard against guilt by association and
the potential that the system can be abused?
There
is no question that our history is replete with examples
of mistakes born of hysteria. We can think of the
Alien and Sedition Acts, we can think of the Palmer
Raids, we can think of the McCarthy era, we can think
of J. Edgar Hoover 's COINTELPRO programs in the 1970s.
These are constant reminders that it is especially
at times of crisis that we should remember what it
is we are fighting for. We are not fighting for the
security of America for the sake of security, but
rather we are fighting to secure the liberty that
America promises to her people and remains as a beacon
of hope for all people around around the world. That
is a crucial difference that security is but the means,
liberty is the end. One check to make sure that we
keep that objective in mind is the constant reminder
of history. As unfortunate as that history is it guides
us as to what the boundaries of acceptable conduct
would be. We are our own judge by promising that we
will not repeat history and we are the judge of government
actors by calling foul whenever they threaten to repeat
that history. But here's an important caveat that
history is a guide both to limit government behavior
but also to serve as a warning that we not misuse
it. It is all to easy for politicians, polemicists
and rhetoricians to rely on excellent memories of
abuses in order to denigrate legitimate activities
of the government in order to keep us all safe. I
think that the task of an intelligent commentator
is to remember the history the lessons of history,
but not misuse it so that those lessons become cheapened
in order to criticize any ordinary legitimate activity.
Civil
libertarians are particularly concerned that standards
of proof have been significantly lowered--for example
with the FISA regulations set in place after the government
abuses that were revealed in the 70s. How do you respond
to that?
The
history of our nation's response to the 1970s and
the threats the purported threats to security is a
fascinating one and its still very relevant today.
In the 1970s there was a group of domestic radicals
who hatched a plan allegedly to blow up a CIA station
in Detroit Michigan. Out of that investigation and
prosecution came a case called Keith. That case, in
that case, the court stated very clearly and for the
first time that the federal government even in defending
the national security against domestic terrorism threats
has to be subject to the strictures of the Fourth
Amendment. That the Fourth Amendment applies perhaps
somewhat differently because the threat is catastrophic
rather than a normal criminal threat. And it invited
Congress to legislate in this area in order to establish
procedures whereby the government can defend against
a domestic national security threat. In that case
however, the court made clear that the President's
authority to defend against foreign threats and to
investigate foreign intelligence lapses is plenary
because that is something that the Constitution vests
to the President in order to conduct foreign relations.
Congress in 1976 passed the Foreign Intelligence Surveillance
Act not in answer to the court's call to regulate
domestic intelligence but rather to regulate the President's
authority to conduct foreign intelligence operations.
And it says that this Foreign Intelligence Surveillance
Act which operate under standards that are more relaxed
than domestic criminal law enforcement but certainly
much more restrictive than the President's plenary
authority to do whatever he wants would apply only
to investigations where the purpose is foreign intelligence.
That provision, the purpose provision had be interpreted
throughout the years by the government to mean the
primary purpose. What that meant was that according
to these interpretations that intelligence personnel
could not share information that they gathered through
the Foreign Intelligence Surveillance Act with their
criminal enforcement counterparts. It erected a wall
that inhibited the sharing of information and the
collaboration of activities. The USA Patriot Act lowered
that wall to say that no longer need it be primary
purpose but rather a significant purpose suffices.
You still need a significant purpose in foreign intelligence
in order to use these authorities in order to collect
the information. But because it is no longer an absolute
wall you can share that information with your criminal
law counterparts and not sacrifice the initial authority
to collect the information and therefore jeopardize
the entire investigation. This is a critical step
in order to allow all hands who are called on deck
to fight terrorism to share information from the left
hand and the right hand. It is a critical step but
it is also a constitutional step.
The courts of this country have decided of the USA
Patriot Act, indeed this is the only challenge to
the USA Patriot act that has actually reached a court
to this day, but the court unanimously says not this
does not violate the Fourth Amendment because it remains
true that if and when the information is used in a
criminal prosecution the Fourth Amendment would prohibit
the introduction of any evidence that was illegal
obtained or obtained under standards other than other
than those justified by the threat Amendment. In any
event, even the Foreign Intelligence Surveillance
Act has its own scheme of statutory exclusion to preclude
criminal investigators from using information unjustifiably.
And so the safeguards are there. No one can do an
end run around the Fourth Amendment because the Fourth
Amendment is the backstop against which all governmental
actions take place. But its not only a backstop but
rather it informs every single governmental decision
whether or not its within the Foreign Intelligence
Surveillance Act, or in the the conduct of ordinary
criminal investigation.
The court however has recognized that different contexts
justify different actions. After all the Fourth Amendment
protects against unreasonable searches and seizures.
What is reasonable in one context may not be reasonable
in another context. And so there's no end run but
rather an application of our constitutional standards
in order to protect the liberties of law-abiding Americans,
but also to secure the safety of America. Each and
every single person who has been detained as a result
of the government's investigation into 9/11 and related
terrorist threats has been detained based upon an
individualized predicate of either a criminal violation
or an immigration violation. There is a small class
of people who the government pursuant to a judicially
issued warrant that is authorized by statute has detained
under what is called a material witness warrant, but
those are under established law and again it is based
upon an individualized predicate. Each and every single
one of these persons have been afforded access to
council in the case of immigration violators or has
been afforded council paid for by the government in
the case of criminal violations or material witness
warrant. All of these persons were arrested and detained
under the normal rules of criminal and civil law enforcement.
There's nothing extraordinary except for their terrorist
intent. Where they have such terrorist intent, where
the government has the suspicions that they are engaged
in terrorist activity, it will use its prosecutorial
discretion to the fullest - to apprehend, arrest and
detain these persons and prosecute them under our
laws. There is no constitutional, legal, or moral
right to violate the laws of this country. And if
you are a terrorist be assured that the government
will stick to you and if you do anything wrong they
will remove you from the streets and from the people
against whom you would do harm. That is nothing different
than a normal prosecutorial strategy. There is a small
class of individuals whom the President has detained
as part of the war in Afghanistan or in Iraq. Those
persons have not been arrested on criminal charges
but rather have been detained as battlefield detainees.
Their jurisdiction over those individuals rests not
in John Ashcroft as Attorney General, but rather on
Donald Rumsfield as Secretary of Defense.
Where the two universes merge is in a very narrow
case of persons - here one - one person named Jose
Padilla - who was initially arrested in the Chicago
airport by law enforcement officials on allegations
that he seeks to detonate a dirty bomb in the United
States. He was subsequently transferred from law enforcement
authorities to defense authorities, after the President
designated him as an unlawful enemy combatant. So
therefore he was taken out of the criminal process
and put into the defense battlefield detainee process.
I think the President has the authority if one reflects
the nature of this war to the reality of this war,
has the authority to make that determination to detain
the individuals for unlawful enemy combatant status.
What is much more questionable however is whether
he can detain that person without any process at all.
The Supreme Court has said it will defer to the President's
determination in a time of war as to who is lawful,
who is unlawful, how best to prosecute the war, who
to detain and the like. But it is hard to see a justification
from the court’s precedents to defer to a President
where there is nothing to defer to. In this case where
there has been no promise or indication that this
individual will be given any process at all.
So
in your opinion might it be constitutional to hold
Padilla without representation?
No.
I think it is an open question whether or not a person
could be held without any process at all. It is an
open question whether an individual may be held without
legal representation or without any promise of process.
I think it has to be conceded that prisoners of war
do not get an immediate right to council and an immediate
right to a court hearing, otherwise there would be
a lot of dead lawyers on the battlefield during World
War II. Maybe not a bad thing, but nevertheless that's
not the case. I think that the court will give significant
deference to the President and the military as to
when to afford legal process and how much legal process
to afford to a particular detainee. However it is
an open question whether the court would defer to
the president in the determination that no process
is due at all.
There
seems to be right now a battle of perceptions - one
being that people get moved into military court because
the standards of proof there are so much lower than
in the civilian realm. How do you counter that perception?
There
is no question that the metaphor of war has been misused,
diluted and abused in our history. I recall a time
when this nation declared a war on poverty and think
that we can end the scourge of human history and make
everybody above average simply by declaring war on
it. That metaphor has been misused but make no mistake
about it the war against terror is a real war. If
you have any doubt just remember what happened on
9/11, remember the three thousand lives that were
lost, remember the lives that are lost around the
world every day to the terrorist threat. And remember
the fortuity and the fortune we have in living in
a relatively secure place because of our law enforcement
and intelligence efforts to prevent another catastrophic
attack on the American homeland. In that war, in any
war, the generals and the commander in chief has to
be afforded leeway to act in the theater of war and
the Supreme Court has recognized that that deference
is due in the theater of war. In this particular war
against terror that theater is ill defined and the
war is of uncertain duration. But so it is with any
war. The fronts move, the theater change, who knows
when one will be victorious? In this war however there
is one unmistakable difference that is the enemy seeks
not only to kill our soldiers but also to kill innocent
civilians and to terrorize those who would survive.
To accommodate the realities of this war one has to
recognize that the generals and the commander in chief
is afforded certain leeway and deference in order
to meet this enemy. That's why I think the President
does have the authority in order to designate persons
as enemy unlawful combatant and to hold them as such.
I do not think however that that deference and that
leeway extends to the President's current argument
which is that he can hold any individual without any
promise or indication of process at any time. I think
in order for the Supreme Court to defer to the executive
or military process, there has to be some process
to defer to.
Civil
Libertarians are very concerned about what appears
to be a new definition of "domestic terrorism."
They make the argument that the definition is so sweeping
that it lumps together Martin Luther King and Ghandi
with al-Qaeda. How do you respond to their concerns?
The
argument over the definition of domestic terrorism
rests on a fundamental misconception of the law and
the reason why that definition was put in there. There
is no crime of domestic terrorism. After 9/11 when
we sat down to update the law against terrorism in
this country to reflect the fact we had just suffered
a catastrophic attack on the American homeland we
found out that there is under the law no definition
of terrorism that takes place here on the homeland.
There is a definition of international terrorism,
that is terrorism that takes place outside the borders
of the United States. In order to make clear and reflect
the reality that we as a nation are no longer a sanctuary
from the terrors of terrorism, we need to make clear
that those laws apply to acts of terrorism that occur
within the boundaries of the United States. Hence
the difference between domestic terrorism and international
terrorism. It is a matter of geography, not a matter
of ideology. But when we crafted a definition of terrorism
to apply in American homeland to add to the exigent
crimes that are out there we found out that the definition
of terrorism occurring abroad, that is international
terrorism, is very broad and it applies to conducts
that are not only injurious to human life but also
violent acts as long as these acts are undertaken
in order to coerce government policy or to advance
a political ideology. So in crafting the definition
of terrorism that occurs in the United States so that
the law can be reflected by the reality we actually
narrow the definition of terrorism as it relates to
terrorism occurring abroad. So the definition of international
terrorism remains "violent acts or acts injurious
to human life." However, the definition of domestic
terrorism is only acts injurious to human life."
Precisely because the drafters and Congress did not
want to take in violent acts of protest that nevertheless
may be protected by our First Amendment, precisely
because we want to preserve the zone of expression
even when that expression might take violent forms
because such expression may be protected in the domestic
geography of this country. Let me be very clear -
the definition of domestic terrorism does not relate
to terrorism that has a domestic source, but rather
relates to acts of terrorism that occur geographically
within the boundaries of this country and that definition
is much narrower.
There
is no crime of domestic terrorism. The definition
of domestic terrorism that is contained in the USA
Patriot Act relates to acts of terrorism that takes
place within the geographic boundaries of the United
States. And it differs critically and is narrower
than the definition of terrorism occurring elsewhere
that is international terrorism in so far as it does
not apply to violent acts that would be considered
terrorism abroad but not here in America precisely
because the drafter of the USA Patriot Act wanted
to preserve that zone of expression that may take
place in violent means or arguably by violent means.
So there is no crime of domestic terrorism but rather
the definition is much narrower than and much more
protective of liberties than the definition of international
terrorism.
Why
do you think Section 215 has been the focus of so
much opposition and why you might believe it to be
wrong?
Section
215 is a provision in the USA Patriot Act that allows
national security investigators to have the same authority
that criminal investigators have had for centuries,
that is to subpoena records of businesses that may
have information relevant to a national security investigation.
Criminal investigators have always been able to use
the grand jury subpoena they can get from the clerk
of the court not even with the approval of the judge
in order to subpoena records of any business, including
libraries and bookstores in order to obtain evidence
relevant to an investigation. They did so in the Unabomber
case because the Unabomber in his manifesto cited
four very esoteric books and so the investigators
went to the grand jury and got a subpoena for various
libraries saying who checked out these four books
to see whether or not the same person checked them
out. A natural investigative step. They also did so
in the Son of Sam murders up in New York in order
to determine who checked out a particular book that
was relevant to a particular investigation in that
murder case. Ordinary tools of criminal investigation.
What Section 215 did was to give the same tool to
national security investigators but it included an
important caveat - that is the information has to
remain confidential because this occurs in the context
of a national security investigation.
This is a potentially significant infringement on
or intrusion on the rights of these people because
they never know whether the subpoenas have been have
been issued on them. As a trade off, Section 215 puts
in very specific safeguards. One, even though libraries
and bookstores are not specifically mentioned in the
provision there is a special safeharbor that the government
cannot use the Section in order to investigate or
target people solely on the exercise of their First
Amendment activities. Two, you actually have to go
to a judge to convince him that this information is
relevant to a national security investigation against
a spy or a terrorist. And three, the FBI has to every
six months report to Congress how many times it has
used the provision and under what circumstances. We
now know that the FBI has reported to Congress that
it has not used this provision in the last two years.
Does this mean that the provision is not needed? No!
It just simply means that the investigators and prosecutors
have weighed the tradeoff between the publicity of
a grand jury subpoena versus the value of confidentiality
with the additional restrictions of a Section 215
order, and made the decision that they would rather
use grand jury subpoena - the ordinary tools of criminal
investigation - in order to obtain records that it
needs. There is no question that Section 215 has been
a rallying cry for those who oppose other provisions
of the USA Patriot Act, but as with any rallying cry
I think the more reasoned voices realize that one,
there is no danger of misuse because one the authority
has not been used and there are significant safeguards
on its misuse. But more importantly that this is a
tool that is ordinarily used in every day investigation.
I think that the true objection to this is that there
is no special carve out for libraries or bookstores
or the like from the normal investigative process.
That may well be the proper debate, but its a debate
that has nothing to do with Section 215, but rather
a broader debate as to whether or not bookstores and
libraries should be sanctuaries from the normal investigative
processes.
There
is a growing grassroots movement against the US Patriot
Act. Much of it seems to be motivated by a fear of
our own government. How do you account for this movement?
There
is no question that we as Americans come from a very
strong tradition of distrust of the government and
centralized authorities in general. I come from that
tradition. I lived under communist repression where
government control is totalitarian and complete. I
fear that centralization of power as much as anyone
in this country. And that fear has been expressed
in a number of ways. Some of us expressed it by constantly
questioning what the government does; some of us express
it by monitoring activities of uh government agents.
One expression of this has been the very significant
activities of state and local municipalities around
the country. To the extent that these state and local
municipalities passed resolutions stating that in
the war against terror we should not infringe upon
the civil liberties of law-abiding Americans or the
constitutional rights of all Americans that is uncontroversial
and unobjectionable. To the extent that these municipalities
urge federal government and their state and local
counterparts to adhere to constitutional safeguards
in the prosecution of powers authorized by the USA
Patriot Act, again uncontroversial and unobjectionable.
To the extent that these resolutions characterize
the USA Patriot Act as somehow inherently unconstitutional
or violating the civil liberties of law abiding citizens
I think that conclusion is fundamentally flawed and
belied by the fact that not a single court has found
any provision of the USA Patriot Act to be even arguably
unconstitutional. Indeed, there has only been one
challenge to one provision of the USA Patriot Act
recently filed - two years after the fact - and that
has not been adjudicated. On the contrary, courts
have consistently reaffirmed the revisions that Congress
made to the law because they are well meaning, well
intentioned, and properly analyzed, perfectly constitutional
revisions in order to close the loopholes that prevented
American law enforcement from doing all that it can
to protect America against a terrorist thereat.
Are
you saying that much of it comes down to having a
fundamental trust in the executive branch of government?
I
come from a tradition of politics in government where
we believe in trust but verify especially when it
comes to the government. No where should American
democracy, indeed our constitutional rights, be entrusted
to the well intentions of government actors because
even with the best intentions, that is what the road
to hell is paved with simply because actors respond
to their positions and people respond to the incentives
that legal authorities give them. So don't trust in
government agents; don't trust the government, but
rather verify the laws that restrict their behavior.
And where those laws do not adequately restrict their
behavior, where those laws would actually permit them
to violate the constitution, then by all means by
all means yell foul and change the law. But make sure
that one makes that critical step to verify, to read,
to actually understand the law, rather than to rely
on the hysteria. There is a lot of sound and fury
out there, but at the end of the day after proper
analysis I think it is sound and fury signifying very
little if nothing at all.
How
do you define civil liberties?
I
fundamentally believe in the conception of government
articulated best by Edmund Burke who said that the
only liberty is the liberty associated with order,
that not only can coexist with order and virtue but
cannot exists at all without them. Liberty under this
conception is very simple to define; it is the ability
to do our ordinary activities that all of us as human
beings have a god given right to do and to go about
these ordinary activities liberates us to achieve
extraordinary things as free Americans. And that is
a critical definition of liberty. But with such freedom
comes responsibilities - the responsibility to act
responsibly and within the bounds of the law, because
the law provides the structure of liberty, the structure
through which liberty flourishes. Let me explain by
evoking a metaphor that Robert Barnett of Boston University
has first articulated. If all that we have is unbridled
license a hundred thousand of us can congregate using
that license in a particular city block. None of us
would be able to achieve true liberty because all
of us would be trampling upon each other using our
license to deprive another of his or her license.
However with liberty we have a structure to guide
that license - a building, if you will, that shows
us the signs for those who go to work, those who go
to shop, those who go to live; the floors, the hallways,
the lighting, the signage is the structure of the
building through which each and every single one of
us can achieve real liberty. That is the ability to
pursue our own individual ends. If that structure
is to vanish our liberty dies along with all the people
in that building. That's what Osama Bin Laden did
on September 11. He pushed the button to make that
structure disappear. Just as a building is only as
metaphor for the structure of our liberty so too Osama
Bin Laden was not attacking the World Trade Center
in order to destroy the World Trade Center as such,
but rather to shake the foundations of order in our
society and to terrorize the rest of us from doing
the ordinary things that ordinary Americans should
have the god given right to do. That is to exercise
our individual liberties. In this time and this place
is critical that we restore freedom from fear but
we do it by protecting freedom through law because
through law is the structure through which all of
our liberty exists.
When you look at the Patriot
Act can you argue then that the ends justify the means?
Absolutely
not. The key to the USA Patriot Act and any other
actions of government is to remember that liberty
is the end. We're not doing this for nothing because
if we look at security for securities sake we go down
the dangerous cycle of justifying totalitarian authoritarian
rule. Rather we have to recognize security for what
it is as merely a precondition for and a means toward
the greater end of liberty. And law exists in order
to protect liberty. Law has also been defined, very
correctly I think, as the wise restraints that set
men free. It is our task at this time to think of
what restraints are wise ultimately in order to set
us all free.
Are
you confidant that the checks and balances are in
place?
I
am confident that the USA Patriot Act as with other
legislative enactment's by Congress in response to
the war on terror contains safeguards in order to
protect the civil liberties of law-abiding citizens.
Does that mean that I am infallible? Absolutely not!
Does that mean that that the work is done? No! Absolutely
no. The terrorist is out there trying to reinvent
himself, trying to circumvent the efforts of law enforcement.
Law enforcement has also to constantly reevaluate
what it does on order to counteract the terrorist.
Likewise all of us in government and outside of government
has to always be cognizant of the ever present threat
to liberty that governmental power poses. And so governance
is not about the USA Patriot Act, counterterrorism
is not about that particular legislation or another
piece of legislation. Rather counterterrorism and
governance is about a dynamic process of constantly
evaluating our laws to see whether or not it adequately
provides us a security in order to safeguard our liberty
while at the same time whether adequate checks are
there indeed to safeguard our liberty against the
well meaning but ill-informed encroachments from government
agents.
Who gets to decide when the war on terrorism is over
and how do we make that determination?
When
war ends is a date that everyone hopes for but nobody
knows. We did not know when VJ day was when we were
prosecuting the Pacific Theater; we did not know when
VE day was when we were prosecuting the war against
the Nazis. And as with any war, the end is unclear.
But at least with this war the goal is certain and
so frankly I do not know what the answer to that question
is anymore than FDR knew the answer after Pearl Harbor.
How
do you personally feel about the Constitution and
the Bill of Rights?
I
came to this country as a refugee from Vietnam and
as such I have lived under war torn Vietnam and I
have lived under communism. I have seen government
that does not work either through the chaos of war
or the totalitarian oppression of a communist regime.
I love this country. I love this country not only
because of the land and the people but because of
the institutions that define us as a community and
protect our rights and make government work. The Constitution,
the Bill of Rights, the Declaration of Independence,
Washington's farewell address, the Gettysburg address,
JFK's inaugural address, President Bush's September
20 address to the joint session of Congress, President
Reagan's D-Day commemoration address; all of these
documents, all of these notions define us as a people
and unite as a nation. They are the embodiment of
what it means to be American. They are the protections
that safeguard the American Constitution, American
institutions and define as a constitutional democracy.
There will always be arguments as to what these organic
documents mean because they are the heritage of us
as a people. But don't let those arguments over how
to interpret particular documents allow us to lose
sight of the fact that without them we would be no
better than a war torn or totalitarian regime that
we see unfortunately throughout the world. I think
it is up to us to constantly think about what our
Constitution means and more importantly what that
one momentous sentence means when the founders declared
us to be all created equal with certain inalienable
rights among them life, liberty and the pursuit of
happiness. Each and every single one of us have that
duty in order to reevaluate and we may find meaning
with each succeeding generation and each one of us
has a responsibility to ascertain that meaning as
it relates to our world.
