The Cost of Freedom -- Civil Liberties, Security and the USA PATRIOT ACT
Subject: Viet Dinh
Interviewer: Alison Rostankowski/Chip Duncan
Transcrits: Troy Avdek
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 of The Duncan Entertainment Group 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.