Security vs. Liberties
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RAY SUAREZ: Within 45 days of 9/11, President Bush signed a law expanding the government’s surveillance tools, saying it would help the war on terror at home. The Patriot Act makes it easier for investigators to obtain individuals’ private records from libraries and doctors’ offices; conduct searches without advance notice; and monitor phone and Internet activity.
SPOKESMAN: None of us will be safe. All of us are going to be living under a police state.
RAY SUAREZ: But from the beginning, civil liberties groups, as well as librarians, cried foul.
WILLIAM MILLER: We value people’s privacy very highly and we value the right to engage in inquiry very highly. To engage in inquiry without worrying about whether somebody’s going to be looking over their shoulder and saying, “hmm, why is that person reading ‘x’?” Or “why is this person doing ‘y’?”
AD: Look what John Ashcroft is doing to our constitution.
RAY SUAREZ: The Act has been attacked by a rare alliance of civil liberties groups on the left and conservative and libertarian groups on the right. 160 state and local governments have also denounced the law.
PROTESTERS: We don’t want your patriot act!
RAY SUAREZ: In recent days, opponents have targeted attorney general John Ashcroft, who was traveling the country promoting the law. Before hand-picked audiences, Ashcroft defended the Patriot Act.
JOHN ASHCROFT: First, it closed gaping holes that existed in our ability to investigate terrorists. Second, the Patriot Act updates our antiterrorism laws to meet the challenges of new technology– new technology that has spawned new threats.
RAY SUAREZ: Yesterday, at the FBI Academy, President Bush proposed new expansions to the law in order to “untie the hands of law enforcement.” The plan would expand the government’s powers to demand sensitive papers in terrorism cases without court approval, hold suspects without bail, and broaden the death penalty.
PRESIDENT GEORGE W. BUSH: Sabotaging a defense installation or a nuclear facility in a way that takes innocent life does not carry the federal death penalty. This kind of technicality should never protect terrorists from the ultimate justice.
RAY SUAREZ: Congressional action is unclear. This summer, the House voted to cut off funds for parts of the first Patriot Act, and key Republican leaders say they’re reluctant to introduce expansions. More on the debate surrounding the Patriot Act and the latest proposals. John Yoo is a law professor at the University of California at Berkeley, and a visiting scholar at American Enterprise Institute. He recently worked at the Justice Department, where he participated in drafting the Patriot Act. Patricia Williams is a professor of law at the Columbia Law School. She also is a regular columnist for “The Nation.” Professor Williams, you heard the president referring to his desire to untie the hands of law enforcement by extending and refining the Patriot Act. What is the problem with that?
PATRICIA WILLIAMS: I think the problem has to do with a general tendency of this administration to have expanded the powers of the executive at the expense of a balance of powers, particularly at the expense of the Judiciary. That’s troublesome. In addition, there’s a continued shift from the very notion of a presumption of innocence toward a presumption of guilt where we can detain or hold until the defendant proves he is not guilty. Thirdly, I think with these expanded policies, there has been a great deal of secrecy about the standards used to enforce them, to apply them. There are unstated policies to which the executive… the police, the prosecutorial power located in the Executive must be held accountable. And we have very little information about that through John Ashcroft’s office or through any other administrative office.
RAY SUAREZ: Any specific objections to the extensions to the Patriot Act that have been proposed in the next couple of days: Denied bail to terror suspects, widen death penalties, bypass grand juries for administrative subpoenas?
PATRICIA WILLIAMS: I think certainly the most troublesome and deservedly the most controversial of those is the attempt to bypass the Judiciary in favor of so-called administrative subpoenas. I think the president referred to the fact that there are certain medical investigations that you can have an administrative subpoena and that’s sort of facile because those administrative subpoenas are usually associated with administrative sanctions, not criminal sanctions with life and death. Again, when one has the police power, and has the prosecutorial power, our system of government depends upon a balance of powers that the Judiciary holds– the application of due process; the input of the community, either through the judge or through the grand jury, certainly as well, the power to deny bail, shifting the presumption essentially, so that in all cases for this laundry list of terror-related crimes, the new expanded list of terror-related crimes, the defendant would have to prove rather than the state would have to prove the tendency to flight. This is unnecessary. And when one looks at the list of crimes that would be included in this, it includes many which one does not think of as international terrorism, and the possibility of drawing… of essentially holding people with no good reason for extended periods of time, so that it begins to resemble the tension that is controversial in other areas. That’s what this new bail proceeding risks.
RAY SUAREZ: Professor Yoo, you have heard Professor Williams bemoaning the added powers to the prosecution, what she perceives as power drain away from the judiciary as a referee. How do you respond?
JOHN YOO: The concern that this is unbalancing the separation of powers… I don’t think that’s quite right. Look at the first Patriot Act. That was passed by overwhelming majorities of Congress. It’s not that the Executive said “we’re going to start doing this by ourselves.” It was passed by Congress after a proposal by the president. The heart of the Patriot Act, which is issuing warrants to get voice mails, to listen on telephone calls, e-mails, the records that the librarians are complaining about… those are all issued by the Executive Branch, has to go to the judge and say “this is why we think this person is linked to terrorism, and we want you, judge, to look at the evidence and issue a warrant to allow us to get that information.”
In the Patriot Act, all three branches participate in the expansion of law enforcement powers under the Patriot Act. As to the specific proposals that the president made yesterday, they are evolutionary. There’s no radical change in the way the government is going to do business. The denial of bail is already something that can be done to drug kingpins and embezzlers. This would be adding terrorist-linked suspects to that kind of treatment by the court system. It’s not that they are held without charge without any kind of judicial review at all.
When somebody is arrested or arraigned, they are presented before the judge. The decision to make bail is something the congress grants as a right, and it can take ate way but it’s not that the executive could see someone off the street, throw them in detention and they never see a judge. They do see a judge.
The other proposal about administrative subpoenas… right now under the Patriot Act you can get a lot of this information through a grand jury or through a warrant when you go to a judge under the Foreign Intelligence Surveillance Act, ask for a warrant, the judge gives it to you and you can get it. This is an effort to make that a simpler procedure. It exists in other areas of the law– for example, environmental law. In a number of other regulatory schemes you can use administrative subpoenas. It won’t be the end of the world if the administration doesn’t get it, but it would be helpful, it would be an administrative convenience to get that kind of information through this simpler procedure.
RAY SUAREZ: Are you troubled at all by the fact that it’s kind of difficult to assess the impact of the original Patriot Act even without these amendments because it’s so hard to gain the information about which cases it has been used in and which cases the extended powers have been found to be useful?
JOHN YOO: I understand why people like Professor Williams or other civil liberties advocates might be concerned, but there’s a good reason for it. This is an area where we’re trying to fight terrorists and a place where they act covertly and they can learn things from the way we conduct our activities. So, for example, suppose we had information bout all the secret warrants that the government was getting and suppose they said “500 warrants were issued for telephone taps in San Diego.” That’s helpful to al-Qaida, isn’t it, to know that we’re concentrating efforts in San Diego. They are a very sophisticated organization. They would respond to the information they see from our government releasing publicly.
It’s not that it’s not without oversight. Congress gets classified reports on the use of Patriot Act and the use of the Foreign Intelligence Surveillance Act. All of that information is given to the Intelligence Committee. The second thing is it all is reviewed by the independent federal judiciary who we trust to make decisions about other things in society, like free speech and abortion. We can trust them to oversee how the Patriot Act is – and the third thing is if we ever… if the government ever uses it in a criminal prosecution, ever uses the information gathered from these warrants, they will have to produce it in public and show how the warrant was received and used. The thing that might be a concern is people are not sure how it is used in the non-criminal prosecution cases. On the other hand people should be less worried because they are not being put on trial in these kind of cases either.
RAY SUAREZ: Professor Williams, you heard Professor Yoo, who says the controls are still there, the separation of powers has been maintained, and sort of the stopgap measures and abilities to intercede to stop overreach; they’re all there; they’re all safe.
JOHN YOO: I think it’s extraordinarily facile to say under the Patriot Act there’s a provision of judicial oversight and by the same occasion to be defending yesterday’s announcement, which is a proposal to remove that oversight. Administrative subpoenas mean that a police officer, an FBI agent, prosecutor, can– without ever going to court — demand papers– go directly to a door or a business and demand to be able to command witnesses to produce papers. I think it does violate our sense of the Fourth Amendment trust.
I think we trust our government because it does obtain a balance of power. I think that it would be foolish to say that one trusts exclusively the Executive power. We’re talking about a balance, and we all want security. But there are too many examples of mistakes that have been made by the Executive. Without that crucial oversight and the accountability that the Justice Department – rather, the Judiciary provides, the minimal guarantees of due process, again, we have seen to give the benefit- of-the-doubt, good-faith errors from the McCarthy era and –forward to more sinister kinds of mistakes that are enabled by the sloppiness of bad policing and malicious prosecution.
These things are not unknown, and I think that we have good reason to be concerned. As to the bail provision, again, the civic law requires a violation of state or federal law in the commission of some sort of dangerous act with intent to intimidate or coerce either the government or a civil population. That covers very broad range of potential crimes that one might not think of as international terrorism. For example, the young man that did the computer hacking, there is potentially danger involved in that.
RAY SUAREZ: Let me have Professor Yoo respond to that point: The definition of terrorism is over-broad, and the way the laws have been drafted means you can fit a lot of things under the umbrella.
JOHN YOO: I think it’s quite fair to be worried about whether the bail provision might be expanded out to specific terrorism cases and the statute, although we haven’t seen a formal proposal yet, or it hasn’t been introduced yet. It does sound like a little broader than you would need. But the point is this is not an invasion. It already exists with domestic crimes. I would think, having heard the definition from Professor Williams, this would be something most would say we don’t want these folks out running around in the community and we don’t think we need judges making a case-by- case determination as to that particular person when they are charged with doing this kind of crime.
The judge still looks at whether there is sufficient minimal evidence to show they are charged properly with the crime. There’s a court reviewing it. It’s just a question approved by Congress, a generous policy, to allow people to be released even when they are charged with serious crimes like that. There are crimes that the community feels they shouldn’t benefit from.
RAY SUAREZ: Professors, thank you both.