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Law and Liberty

October 26, 2001 at 12:00 AM EST
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RAY SUAREZ: Now four views on the new anti-terrorism law.

Jerry Berman is the executive director of the Center for Democracy and Technology. Clifford Fishman teaches criminal law at Catholic University of America. He is a former assistant district attorney in New York County. David Cole teaches constitutional law and criminal justice at Georgetown University Law School. And Harry Brandon is a former special agent for the Federal Bureau of Investigation. He was deputy assistant director of the FBI for counter-terrorism and counter-intelligence from 1992-1993.

Well, let me start with an overview from all of you. This is a bill that’s packed with broad provisions. I’m wondering whether you think it gives law enforcement the tools it needs. Clifford Fishman.

CLIFFORD FISHMAN: Overall I think it does. It’s not a perfect bill. There are some aspects of it that might stand some tweaking later on, but what it does is it gives the government incrementally increased powers.

There’s nothing radical. There’s no completely revolution in law enforcement or technology. It permits the government to do a bit more than it’s been able to do already. And, remember, this is a government that over the years has proven that it can be trusted with these powers because if you subtract out John Mitchell’s reign as Attorney General, the government’s record in keeping within the law and obeying the law is really quite remarkable over the last 30 years.

RAY SUAREZ: David Cole.

DAVID COLE: Well, I think this is actually quite radical. I think the most radical provisions are those directed at immigrants. Under this law, we impose guilt by association on immigrants. We make them deportable not for their acts but for their associations, wholly innocent associations with any proscribed organization, you’re deportable.

In addition, another radical change we allow the Attorney General to lock up immigrants on the Attorney General’s say-so with no hearing whatsoever, with no showing that they pose a danger. And it troubles me that we’ve directed the worst provisions of the law at immigrants, a group that doesn’t have a vote, a minority group, and we know that they’re going to be directed at Arabs and Muslims. I have to say the history is not so bright here.

We have already in the last decade seen the government target Arabs and Muslims, detain them on secret evidence, charges of solely of political association, and so I think we’re going down a very dangerous road here and a road that I think in the end is likely to do us more harm than good.

RAY SUAREZ: Harry Brandon, could you have used some of these provisions when you were doing counterintelligence for the FBI?

HARRY BRANDON: Absolutely. I think that many of the provisions are long overdue. It’s realistic in my opinion. It recognizes modern communications for one thing and it gives the law enforcement the tools they need to address the challenges that are… that come at us from modern communications.

I think it’s going to serve in a big way to help both the law enforcement community and ultimately the intelligence communities in prevention. I think that that’s the key part of this: It will allow prevention. Nobody’s for terrorism. Everybody wants to stop it. I think it starts to give them the tools.

RAY SUAREZ: Jerry Berman.

JERRY BERMAN: I think it is a compromise but it is not… It is a compromise of our civil liberties.

It is far too sweeping in the authority that it has given the FBI. They have broad authority… They have broad authority to do investigations of terrorism before this law passed. After this law they have even more power — with fewer restraints, less judicial review, and it’s more wide open.

The fundamental radical change is that the Bureau is taking on a much larger mission in intelligence gathering, which is preventative intelligence. They are now tasked to prevent crime from happening and to catch terrorists who are like looking for a needle in the haystack when it comes to the new terrorists.

And I believe that the ultimate result of the targeting will force the Bureau to conduct investigations of many, many Americans and Arab Americans and Americans, which are… who are engaged wholly and lawful political activity.

RAY SUAREZ: Your specialty is looking at the effect of technology.

JERRY BERMAN: Yes.

RAY SUAREZ: And law enforcement officials say that in the age of the cell phone, the old wiretap laws were irrelevant, that in the age of the Internet and e-mail, mail tracing was becoming more irrelevant. How do you answer those critiques?

JERRY BERMAN: The answer is the 1986 statute was passed to deal with electronic mail and provided law enforcement authority to gather that mail based on a warrant.

There is a need to deal with technologies such as how do you gather information and addressing information on the Internet?

But the technologies are also… create big privacy problems because they sweep up more than the addresses of who’s using the Internet but also the content of communications.

And last year the House voted 20-1 to try and raise the standards for the use of pen registers on the Internet because they pose a serious privacy problem. Now those standards are being lowered.

RAY SUAREZ: Well, Clifford Fishman, a moment ago you said this was not a radical extension of the boundaries. How do you answer Mr. Berman’s critique?

CLIFFORD FISHMAN: We’ve had pen register laws on the books for a couple decades now.

RAY SUAREZ: Those are what?

CLIFFORD FISHMAN: Basically the government is able to attach a device which records the phone numbers dialed from a particular phone and when that number is called. It does not intercept the contents of the conversation, just makes a record of the fact that the number is called. It does the same for local calls as a telephone company’s records do for long-distance calls in essence.

What this statute does among other things is it allows the government pretty much to do the same thing with regard to e-mail, simply to make a record of the fact or retrieve a record of the fact that an e-mail was sent from one address to another address at a particular time, not the contents but just the fact that the e-mail was sent what’s known as transactional information but not the contents.

The analogy of a pen register to the transactional information for an e-mail is not a radical change in the law. It simply allows the law to catch up with what was permitted with telephone for decades.

RAY SUAREZ: But when civil libertarians say that in doing so, people say you pick up a lot of information a lot of contact and a lot of content that is not targeted by the investigation, how do you answer that?

CLIFFORD FISHMAN: The statute requires the government to use the best available technology so it does not capture the content. Second if some content is in inadvertently captured I hope the Justice Department…

The bill requires the Attorney General to set up regulations to use these powers, will set up regulations to minimize the retention and to forbid the dissemination of content which is inadvertently intercepted. It may not be perfect but I think it’s a workable solution.

JERRY BERMAN: With all due respect the current technology picks up content and transactional information. We spent hours with members of Congress on both sides of the aisle trying to get the Justice Department to put in some definition of what content was.

For example we were trying to exclude from being the equivalent of a telephone number every Web page that you went to, because if you include all Web pages and Web surfing that’s a lot of content. They refused to define that out of the content box.

Therefore, we’re left with a great uncertainty about what is content and what is transactional information. And, as I will point out again and again, money or the expansions of power for wire-tapping, record collection, are on the secret side of the ledger. It’s the Bureau’s intelligence investigations, which may never come to light because they are collected for intelligence purposes and don’t go through the law enforcement box.

RAY SUAREZ: Well, let me turn to Harry Brandon at this point because maybe you could describe for us the old system so people understands how this changes.

When you had to get a wiretap on someone before this legislation, what did it involve and why in your view was it inadequate?

HARRY BRANDON: Well, the process does not change under this law. In terms of getting approval to do it, it goes through a court, it’s approved by a judge, and the key thing is the judge establishes rules for what’s called minimization.

That means you can’t use information that’s picked up inadvertently or through poor technology, which may be what we’re faced with today. You can’t do that. And the judge establishes that. You have to report back to the judge sometimes daily if the judge sets that criteria. This doesn’t change.

What this does do is recognize modern communications. What it does is it recognizes cell phones, it recognizes the movement of people.

RAY SUAREZ: David Cole is trying to get in here.

DAVID COLE: It does change in a significant way. That is, it gives the FBI the power to conduct wiretaps and searches through Foreign Intelligence Authority which was previously restricted to situations in which the government was engaged in a foreign intelligence gathering operation.

Now– and that meant that if they were engaged in criminal law enforcement they had to have probable cause that a crime was being committed before they could get a wiretap or search someone’s home. That’s the basic protection that protects all of us from unwarranted intrusions on our privacy.

Under this law, the FBI can sidestep that protection by saying it’s a foreign intelligence investigation, even if the primary purpose is to conduct criminal law investigation, they can get a wiretap and they can get a search warrant without probable cause of a crime. That, I think, raises very serious questions.

RAY SUAREZ: Is the relationship between the FBI and the CIA and the information that various agencies can trade with each other changed?

DAVID COLE: That’s also changed. That’s changed in the sense that much of the bill is directed towards facilitating information sharing between the CIA, the FBI, and other law enforcement agencies.

I think there’s room for facilitating information sharing. I think one of the real problems, one of the real reasons that we missed entirely the September 11 incident before it occurred is likely to be the kind of separation, the division, the turf wars, et cetera. Those do need to be worked out.

But I don’t think we should be responding by simply throwing more powers at agencies that have already shown a history of abusing those powers against the citizens.

CLIFFORD FISHMAN: Ray, David and Jerry raise legitimate points. These new powers could be abused. Any time we give any power to the government the risk of abuse exists.

Again, I think the Justice Department’s record over the years is pretty good. Remember, there was a four-year sunset provision in this statute. If the FBI or the CIA runs roughshod over civil liberties, if they start blanketing surveillance on all sorts of people with no justification, in four years the statute expires automatically unless Congress renews it.

That’s the first time I think there’s been a sunset provision and a surveillance authorization statute.

JERRY BERMAN: With all due respect most of the sections in this bill do not expire.

CLIFFORD FISHMAN: But the electronic surveillance provisions do.

JERRY BERMAN: The FISA section does, but for example, a very broad section which for the first time in all investigations, there is a misnomer that this only applies to terrorist investigations but law enforcers have gained very broad authority, for example, to do secret searches without knocking on your door and presenting a warrant for seven days, in all law enforcement investigations. That does not expire in… At the end of….

RAY SUAREZ: Let me understand better what that change means. No knock on the door, presentation of a warrant. Your home could be served without you there and without you being informed.

JERRY BERMAN: Exactly. We have… Our tradition is except in emergency circumstances, it’s knock on the door, notice, serve a warrant. This is not… there’s no emergency circumstances here.

This is what we call sneak and peek. It’s really the ability to go in without giving you that notice, look around for a period of time with a judge’s approval to be sure but without giving you the notice and the ability to challenge that search.

RAY SUAREZ: Let me turn quickly to detention before we run out of time. The Attorney General talked about in the past having to let people go for not having all the information marshaled that they needed to bring charges. How does this change the landscape for law enforcement, this ability to hold without charge in certain cases for seven days?

HARRY BRANDON: Well, this is an immigration violation or potential immigration violation provision.

RAY SUAREZ: But non-citizens.

HARRY BRANDON: It is for seven days, which is a pretty short period of time. It may put some pressure on not only law enforcement but immigration officers to really verify the status of people. I don’t see this as problematic at all.

DAVID COLE: It’s not limited to seven days. What it says is that you can’t hold someone without charges for more than seven days but once you charge them, the law provides that the Attorney General can hold someone potentially indefinitely without a showing if the person poses a danger and even if the immigrant wins in his deportation proceeding, if he’s granted what’s called relief from removal, for example, if someone gets asylum, they then have a legal right to live in the United States permanently, yet under this law, the government… the Attorney General could on a mere certification hold that person indefinitely, indefinitely.

There is no restriction on the amount of time that that person can be held. So you could have a person held for 10, 15 years, again solely on the Attorney General’s certification. There’s no proceeding in which the government has to show why the person should be detained. It’s simply a signature on a piece of paper by the Attorney General. That is unprecedented unilateral executive authority to detain.

RAY SUAREZ: But is there a different status and a different constitutional protection for non-citizens in the United States, Clifford Fishman?

CLIFFORD FISHMAN: I think the law recognizes that. I think if we compare the way we protect immigrants to this country and the way most other countries regard immigrants to their countries, while, again, David and Jerry raise the point that this power is susceptible to abuse the legal protection that we give everyone in this country far surpasses that of other countries. We’re proud of that and should be.

If the sort of parade of horribles that David suggests ever occurs, we can count on the media, we can count on the civil liberties union to raise such a stink that the government is not going to be able to do it.

RAY SUAREZ: Very, very briefly.

JERRY BERMAN: I’m afraid not. This is secret intelligence. Like in pre-Watergate we didn’t find out about it until many years after that Martin Luther King was targeted that hundreds of thousands of files existed on domestic dissent… The pressure on the Bureau to go after the outside of the circle to any one who might be associated or possibly connected is going to be extensive because they don’t know who the terrorist is. They can’t penetrate those cells. They’ll be investigating a lot of people.

RAY SUAREZ: To be continued. Gentlemen, thank you all.