Searching for a Balance
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GWEN IFILL: The proposals under consideration now in Congress could be the most sweeping law enforcement changes in years, changes that could affect privacy, immigration and security. But do new threats demand new rules?
To debate that question, we are joined by Anthony Romero, the executive director of the American Civil Liberties Union; Douglas Kmiec, the dean of the Catholic University School of Law; and Loretta Lynch, the former U.S. Attorney for the Eastern District of New York.
Loretta Lynch, I’d like to start with you. What did you think so far of what the Attorney General is asking Congress to do?
LORETTA LYNCH: Well, he’s actually asking Congress to consider several different areas of law enforcement. There are some changes in the requirements for obtaining electric surveillance that really streamline procedures and do not substantively change any of the requirements that already must be met to gain surveillance.
There are also some substantive changes in the immigration law. The surveillance changes, which are the ones that tend to be discussed first, talk more about streamlining procedures, such that one court can issue orders to gather information. Again, the same standards must be met for a court to be satisfied that the order should be issued.
With respect also to the ability to maintain surveillance over individuals, there is a serious lag in law enforcement’s capability to keep up with current technology. It is a serious problem when pursuant to a valid court authorized surveillance, individuals who are being surveilled will switch telephones, switch locations, switch means of communication, and there is in fact a serious time lag because of the inability to keep up with that technology. And to the extent that the law seeks equalize that, I think it’s going to be very useful for law enforcement.
GWEN IFILL: Anthony Romero, to the extent that a law seeks to equalize these problems, seeks to solve some of these law enforcement problems, do you see a flip side to this?
ANTHONY ROMERO: Well, no one can argue with the need for additional security measures. What the American Civil Liberties Union has been stating in our statement is a need to be thoughtful and deliberate as we debate and discuss these measures. We shouldn’t rush to judgment in implementing new measures that will greatly affect our constitutional liberties and our basic freedoms.
GWEN IFILL: For instance?
ANTHONY ROMERO: For instance, on the immigration laws, we’ve just heard from President Bush today urging quick judgment on these new laws.
The new proposals would give the Attorney General unprecedented power in the deportation and detention of immigrants. There would be no opportunity for a hearing, there would be no basis to review the criteria upon which he’s making that decision. There would be no opportunity for looking over the Attorney General’s shoulder in such matters. And these would be permanent changes to our immigration law. We certainly shouldn’t rush to judgment on some provisions that are as sweeping and as important as those.
GWEN IFILL: Doug Kmiec, is this a rush to judgment?
DOUGLAS KMIEC: I don’t think it is a rush to judgment. I think we have an unprecedented threat against the security of the United States. I think what we have here is exactly what the Attorney General has articulated, namely, we have a need to make the crime of terrorism and those who harbor or lend support to terrorism of an equal stature if not of greater stature of organized crime and drug trafficking. Right now our laws do not treat it as seriously as it should treat it.
And, secondly, technology has given the edge to the terrorist. We need the capacity, as Ms. Lynch said, to have wire-tapping that applies to all means of communication because, quite frankly, terrorists used the Internet, they use e-mail, they use wireless telephones that can be disposed. And if you can only get a wire tap on a single phone line and if you can’t get the same kind of, what they call, pen register information, the information about the sender of a particular message so that you can track them down as part of an investigation that you can get on phone taps, then you’ve basically allowed the investigation to be thwarted for technical reasons.
I think these are very carefully drafted, on the predicate of findings by the Attorney General with regard to the immigration provisions that deal with national security and in other places addressing the particular things that threaten the United States now, like the possession, for example, of information regarding biological weapons.
GWEN IFILL: Ms. Lynch, do you have any concern about the privacy concerns about whether the Fourth Amendment rights are being impinged upon by these kinds of requests?
LORETTA LYNCH: Well, the privacy concerns really are very important to all of law enforcement. What’s important to note, at least as we look at this new legislation, is that it doesn’t change the already very high standard for obtaining court authorization to engage in surveillance or searches under the relevant statutes.
I think we all agree that electronic surveillance is a tool of law enforcement, an important one, and yes it is a very intrusive one. Therefore there’s a very high showing that must be made before a court will authorize that. The changes that are being proposed now do not diminish what the court must find in terms of probable cause to authorize this type of surveillance. So to that extent there really hasn’t been proposed a change that’s going to seriously erode that.
With respect to cable and the Internet, what the legislation seeks to do is that in that they will often act much like telephone providers and transmit communications, it brings them in line with telephones and wire services and telegraphs for the purposes of law enforcement and treats them as those institutions are. Again, it would not change the fact that before you could obtain surveillance on a cable providers’ transmission of information you’d have to meet the same very high showing before the court.
GWEN IFILL: What about the question Mr. Romero raises about the open ended detention for non-citizen — legal residents, like Muslim-Americans?
LORETTA LYNCH: Well, you know, I think that whenever you’re detaining someone you have to be very cognizant of procedure and process. And that is quite frankly what protects of us and protects all of society, there’s a constitutional protection and a process built in.
I think the Attorney General mentioned that he would invoke this during removal proceedings, which would mean that there would already be a process in place by which someone was being looked at by immigration for a possible violation.
I think that I would like to see and I think that certainly Congress is right to ask for some sort of delineation of what the standards are going to be for that detention and again what time frame are we talking about here? It’s a little unclear to me right now. I don’t think it’s been set forth specifically whether this would be indefinite detention or not. I do think you have to be careful when you talk about allowing one particular branch to make the decision both to retain and to release. We do have a system of checks and balances. And I do think that there are ways to build that into the process and protect national security.
GWEN IFILL: Mr. Romero, why do you think– if you don’t agree with me that this is what you think, feel free to dispute me. But why do you believe that the government can’t be trusted in this situation to do what’s best in a time of emergency?
ANTHONY ROMERO: Where I do agree with Ms. Lynch is the point about the checks and balances, that we understand that the reason why our democracy has been so strong for over 200 years is because we understand that there’s a need to check one balance of government against the other.
I disagree with Ms. Lynch, however, on the point around the wire-tapping provisions. As we read the provisions and as the ACLU has analyzed them, the new wire-tapping provisions present new civil liberties problems. For instance, the idea that we would minimize the judicial role in scrutiny and any court orders is highly problematic. To minimize that role to a point where it essentially becomes a rubber stamp on law enforcement is problematic for civil liberties and civil rights. I’m sorry –
GWEN IFILL: Go ahead.
ANTHONY ROMERO: — but for the last ten years, there have only been three instances where wire tap orders have been declined either at the federal or the state level. We need to make sure that we keep the checks and balances that are in place. That’s upon which the basic structure of our government.
GWEN IFILL: Doug Kmiec, let me read to you something that Chief Justice William Rehnquist wrote in a book in 1998.
He said, speaking about the subject, it is all too easy to slide from a case of genuine military necessity where the power sought to be exercised is at least debatable to one where the threat is not critical and the power either dubious or nonexistent. Do you agree with him that this is a slippery slope?
DOUGLAS KMIEC: Well, it is always a risk to empower, as Mr. Romero said, a single branch of government to exercise power.
The way we protect ourselves, Gwen, against a slippery slope is by an adequate predicate, an adequate predicate, a showing, a hinging of the authority upon emergency. I don’t think the Attorney General has said anything with regard to the authority that he’s asking for that it’s not hinged upon a showing that national security is in jeopardy, that the people that he’s seeking to surveil or wiretap don’t have the intent to cause death or imminent harm.
He’s basically asking for emergency authority under emergency circumstances and not to play one Justice off against the other but Oliver Wendell Holmes, who we view as a great civil libertarian, he was the one who framed the clear and present danger test.
He’s the one who told us that what constitutes a clear and present danger always depends upon the circumstances in which it’s being evaluated — the present circumstances to both protect our liberties and to give effective tools of enforcement to the Attorney General depend upon both a predicate that these are terrorist acts that are being investigated and then the ability to get the court orders in an expeditious way.
GWEN IFILL: Could that same argument have been made in World War II when Japanese Americans were interned?
DOUGLAS KMIEC: Well, a similar argument was made. The difference is, is that we depended upon certifications of military personnel without, in the least, any form of investigation a to whether or not they were verifiable or certifiable.
That’s not what the Attorney General has asked for here. With regard to the immigration process, for example, these people are in the midst of a deportation proceeding, which means that they have in all likelihood been before a court and convicted of a felony or a serious crime. There’s also habeas review, which is not being suspended by these proceedings. And, as a result, these things have to be understood in context… In the context we’re following the rule of law.
GWEN IFILL: Loretta Lynch, let’s talk about the context that we’re talking about now. Is it possible that anything that you have seen in the Attorney General’s recommendations would have prevented the events of September 11?
LORETTA LYNCH: Well, I think that’s very difficult to say. I think that the events of September 11, horrible as they were, are still being pieced together. And exactly how much we could have known, how much we should have known is going to be very difficult to say.
I will say, however, that the intelligence community generally does a very good job of gathering information, and that this was an instance where unfortunately the information didn’t come to them in time to prevent this. I think that it’s important to look at it more in the broader context. Are these measures appropriate within the framework that we have for authorizing electronic surveillance, for dealing with aliens under the immigration acts and do they in fact serve the national security? And I do think it’s important to step back and be objective and not act solely in a military framework and look at them in light of our constitutional protections and provisions.
With regards to the electronic surveillance, they are measures that will enable law enforcement to deal with the reality of criminality in this country, which is that it is not static, it’s not stable, it does not stay in one place and use one telephone in one room in one office. It’s not a business. It is a criminal activity that takes place using subterfuge and various methods designed to avoid detection — and that if we’re going to protect ourselves we have to be able to deal with that again within the framework and context of the system we have in place.
GWEN IFILL: Mr. Romero, if trade-offs have to be made in order to address this problem, do you think that these are the trade-offs that can be made?
ANTHONY ROMERO: I think we can advance both security and safety as well as protect our freedom and our liberties. It’s important that we think about both pieces of that puzzle as equally important. Those are basic fibers of American government and American democracy.
There are measures that we need to implement right away. The ACLU has already gone on record with what such measures would mean that would not restrict our liberty and our freedom during this time — measures such as fortifying the cabin door between the cockpit and the main cabin — screening of airport security personnel and airline personnel with appropriate measures, even using biometric methods. We should train our airport personnel in a much better, much thoughtful way. But we should act on complaints of lax security measures within airports — the matching of luggage against passenger lists, which we have not done on domestic flights in this country.
All those are measures that we should implement tomorrow. The larger measures that implicate our constitutional freedoms and our civil rights should be thoroughly and robustly debated by Congress. It is just too important to rush to judgment on questions like the immigration and the wire tapping procedures.
GWEN IFILL: Mr. Romero, Ms. Lynch and Mr. Kmiec, thank you all very much.
ANTHONY ROMERO: Thank you very much.