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Flashpoints USA with Bryant Gumbel and Gwen Ifill Photo: Bryant Gumbel and Gwen Ifill
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Sacrifices of Security - 7.15.03
In Focus  :  USA Patriot Act  :  Patriot Act Debate Transcript
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Flashpoints USA with Bryant Gumbel and Gwen Ifill is an innovative public affairs series from PBS that brings together both compelling examinations of critical issues and a dynamic pairing of two of the most respected names in journalism.

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Profiling Airport Security USA Patriot Act

Bryant Gumbel interviews Viet Dihn, former Justice Department official and chief architect of the USA Patriot Act, and professor David Cole an attorney at the Center for Constitutional Rights.

Bryant Gumbel:
Questions about how just how far the long arm of the law can go in fighting the war on terrorism have sparked heated debate.

Shortly after 9-11, Congress passed sweeping legislation to strengthen the hand of law enforcement in hopes that another major terrorist event might be prevented.

It was called the Patriot Act and its chief architect was Viet Dinh, who, before returned to academia, was the Assistant Attorney General of the United States. And he's in Washington. Professor, thank you for joining us.

Viet Dinh:
Pleasure to be here Bryant.

In drafting the patriot act what were your marching orders?

It was very simple. Right after 9-11, after the first National Security Council meeting, the President turned to the Attorney General and said very simply, "John you make sure this does not happen again." The Attorney General then turned to the men and women of the justice and asked for a very carefully vetted set of proposals that would serve to prosecute the war against terrorism on the short term and to win that war in the long term.

As you drafted what you thought would work did you view liberty as a concern or as an obstacle?

Certainly never an obstacle, always a goal and not even a concern. It was a goal because we knew from the very beginning as a matter of fact we had an explicit discussion about this at the senior level of the department of justice and certainly I had discussions about this with my staff that we said at times of crisis like this it is very tempting to fall into the trap of thinking that we must balance the liberty and of ordinary citizens against their need for security in this time of crisis. I stressed to them that security in of itself could not be and in a democratic society should not be an end in of itself but rather it exists only for the ultimate goal of liberty. And so liberty concerns were not concerns as such they were the ultimate goal of what we were trying to do and I caution our staff and those around us against the intellectual laziness in thinking, in the words of Ben Franklin, "trade of a little for some essential liberties."

But as you know the Patriot Act has its critics. Let me bring in Georgetown professor David Cole. He is an attorney at the Center for Constitutional Rights. And he too is in Washington. Thank you Professor for being with us.

David Cole:
Thanks a lot.

You have some problems with the Patriot Act. What are they?

I have a lot of problems with the Patriot Act. And I think they didn't accurately take into concern the liberty interests of all of us. In fact they only allowed the civil liberties proponents to testify in congress after they had agreed on the language of the bill in both sides of the house. It imposes guilt by association on foreign nationals. It authorizes excluding foreign nationals based solely and purely on their speech. It gives the Attorney General authority to lock up foreign nationals on his say so with out showing that they are dangerous. It gives the government the ability to spy on its citizens and on foreign nationals without probable cause of a crime, to get wiretaps and warrants. It gives them the ability to get records from libraries and book stores on people who are not targets of any criminal investigation, who are not targets of any foreign intelligence investigation and who are not suspected of engaging in any illegal activity.

Professor Dinh I see you nodding your head there in disagreement. What's wrong with what Professor Cole said?

There is a lot of smoke there and I respect that David profoundly. But there are some errors in statement because the law is indeed long, it is very complicated by the time congress got through with it. It was contrary to Professor Cole's assertion Congress was very involved with process in refining, adding and in some times deleting some of our proposals. Most significant of which is all of the protections that existed prior to the USA Patriot Act as it relates to judicial approval, as it relates to the predication of surveillance all exist after the United States congress passed the USA Patriot Act. Congress and the administration was very careful to preserve the same level of control over governmental surveillance and conduct with the USA Patriot act. The USA Patriot Act served a very, very central purpose. That is to update the law to the technology so that the terrorists and other criminals with criminal and harmful intent can not evade investigations simply by switching cell phone or changing from phone to internet. And likewise and much more significantly, Congress allowed for the criminal investigators to communicate with our intelligence investigators and vice versa. So when all hands are on deck, in order to fight the common fight against terrorism the right hand knows what the left hand is doing so that we can coordinate action collaborate our information contrary to the law of separation that existed prior to the USA Patriot Act.

Understood. Professor Cole, of necessity need greater security involve some compromise of privacy rights?

I think there is a trade off that's necessary in assessing security vs. liberty, security vs. privacy. It's absolutely a trade off. If we're more vulnerable we may need to make some sacrifices in terms of privacy. But it's one thing to make some sacrifices in terms of privacy but another thing to throw the forth amendment out the window and to say that in a criminal investigation the government can get a secret wire tap without showing probable cause of criminal activity which has always been the requirement for any sort of criminal investigation. That doesn't turn on new technology, that simply throwing the forth amendment out the window. It's also not responding to new technology to say you are going to deport people for their association, we are going to keep them out for their speech or we're going to give the Attorney General the power to lock them up without any showing that they are dangerous. Those don't respond to I think necessary… They are not necessary to preserve our liberty. In fact, some of those provisions, the immigration provisions, which the government came in and said, "we absolutely need these, we need these yesterday, or else there's going to be another terrorist attack," they haven't even employed yet which underscores that they weren't necessary.

Professor as a practical matter, Professor Cole, has the patriot Act made us safer?

You know it's hard to say whether it's made us safer. Some aspects of it may well have made us safer but I don't think that all of the Patriot Act is worthy of criticism but I do think there are significant parts of it where we have given up basic principles, the very principles Viet says we're fighting for and it seems to be that if we're fighting for those principles we can't give them up in the battle. And I also think that it undermines our security when we employ double standards, especially when we impose on foreign nationals as we've done in the Patriot Act things that we don't impose on citizens. We undermine the effort. We alienate the very communities that we need to be working with if we're actually going to find the al-Qaeda people out. And you know, the justice department in the wake of 9-11 has detained over 5000 foreign nationals in anti-terrorism initiatives leading to one conviction for terrorist crime. That indicates that they are sweeping extremely broadly. If they are not engaged in targeting enforcement. And that's a problem with the Patriot Act as well.

Let me jump in and give Professor Dinh the last word here. It will have to be brief Professor. Many sections of the Patriot Act as you well know, have a sunset provision, meaning that in 2005 they'll either expire or have to be renewed or adjusted as congress sees fit. What do you view is the future of the Patriot Act?

I think that Congressional involvement in this process is very, very important. That's why prior to my leaving the department of justice the department reported to congress in a 60 page report regarding the implementation of the USA Patriot Act and it starts the process for congress to assess how we have been able to use the USA Patriot Act. And it was the conclusion of the department at that time that our job in providing success of the last 21 months of preventing another catastrophic attack on the American homeland would have been extremely difficult if not impossibly so without the tools that Congress provided in the USA Patriot Act. Just one final note of clarification, the Congress does not have the power, and the President does not have the authority to throw the forth amendment out the window. Only the people can through the amendment of the process and no one has even suggested that. I think it's an overstatement to say the constitution no longer applies.

And just so everyone is on board the forth amendment guarantees privacy against unreasonable search. Professors thank you very much. Professor Viet Dinh, Professor David Cole.

Thank you.

Thank you Bryant.

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