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Senate Judiciary Committee Hearings Convene on the Patriot Act

April 5, 2005 at 12:00 AM EDT


GWEN IFILL: So has the Patriot Act gone too far or perhaps not far enough? We pick up that debate with the chief architect of the Patriot Act and one of its most ardent critics.

Viet Dinh was the assistant attorney general for the Office of Legal Policy during President Bush’s first term. He now teaches at the Georgetown University Law Center.

And Nadine Strossen is the president of the American Civil Liberties Union. She also teaches at New York Law School. Viet Dinh, after having watched this hearing today unfold and the debate which has dogged this act since it became law, based on how you wrote it or how you drafted it when you were at the Justice Department, has it served the purpose it was intended to?

VIET DINH: The USA Patriot Act obviously was not drafted or architected by me alone but obviously involved the deliberate work, over six weeks, of all the committee members and chairmen in the relevant houses of Congress. I think they did their work very carefully. They did their work very deliberately. And, yes, the act has worked very well. The perfect proof of this is coming from the hearing and also 24 prior hearings, you have a compendium of a whole lot of successes that has been contributed to by the USA Patriot Act in enforcing the law, in preventing terrorism in this country, while not a single documented case of an abuse.

I understand there are a lot of fears as to how this act has worked, how it will continue to work in future. I think the Department of Justice will have significant work to do in order to alleviate those fears but I think the more information that is out there, the more the American public will be protected and alleviate… the act has worked the way it’s supposed to work.

GWEN IFILL: You said six weeks it took to get this law on the books. That’s lightning speed by Washington terms. Was there any sense at the time that this was being drawn up that maybe there are provisions that should be revisited later?

VIET DINH: Absolutely, which is why the sunset was put in there, not because we were doing our work too quickly but rather because we wanted to the experience of the four years to prove to the American public that law enforcement can have the powers while at the same time have the safeguards to prevent abuse or misuse of these powers.

GWEN IFILL: Nadine Strossen has the Patriot Act… the ACLU expressed some concerns about it even then at the time that it first became law. Has it proven to be the panacea or at least a partial solution that its advocates have said all along, or are you concerned that it has lived down to your greatest fears?

NADINE STROSSEN: Gwen, I have to avoid the overgeneralizations that too often have characterized these debates. The Patriot Act is a 350-page law that contains about 160 provisions. The ACLU and our ideologically diverse allies inside and outside Congress have zeroed in on fewer than a dozen that we think went too far too fast, that have not been shown to have either been necessary or effective in countering terrorism.

I think the excellent introductory materials that you showed from today’s Senate Judiciary debates illustrated that very well. Section 213 it turns out, the so-called sneak-and-peek provision, according to the Justice Department itself, has mostly been used for non-terrorism investigations. Section 215, the so-called library records and other tangible records provision, where people are so concerned about having their library records searched secretly without their knowledge, we’re told hasn’t even been necessary, that libraries are voluntarily turning over information to the government or turning them without… under different authority.

So we have, in fact, too many provisions. It’s a small number but significant provisions that go too far in taking away freedom of innocent Americans that haven’t been demonstrated to be necessary to counter terrorism.

GWEN IFILL: So are you suggesting that those provisions, the two you just mentioned, be thrown out or that they be altered in some way?

NADINE STROSSEN: Actually, the ACLU and other reformers are making an even more modest suggestion, which is that those provisions be reformed, not completely thrown out, but amended to bring them back into line with constitutional checks and balances. And that is exactly what will be done by the Safe Act that is going to be introduced tomorrow with bipartisan support.

And it stands significantly for security and freedom enhancements to provide more congressional oversight, to provide more judicial oversight, not to take away any of the new surveillance powers that the act gives but to make sure that the government is accountable and that these powers are not exercised in secret as has been the case so far.

GWEN IFILL: Professor Dinh, let’s try to break these two issues that she raised out separately. The so-called sneak-and-peek secret warrants; describe what that is, what it’s meant to accomplish, and how it’s been used.

VIET DINH: The Fourth Amendment permits the government to search a person’s home only with probable cause and with a search warrant. Ever since that provision has been in our Constitution, judges who issue those warrants have had the discretion to delay notice of that warrant in order to save lives, preserve evidence or otherwise help an investigation.

Up until the USA Patriot Act, judges around the country used differing standards in order to grant that discretion. The USA Patriot Act simply regularized the process and imposed a single standard — reasonable cause — for judges to exercise this discretion. So arguably by making it more consistent, it protects our civil liberties more by making judges clearly specify the circumstances under which they will use their discretion to delay notice, not that notice was never given, simply that they are delayed until a time where it is safe for the investigation and for the law enforcement officers and innocent bystanders for that notice to be given.

GWEN IFILL: Is it true as Nadine Strossen and as Sen. Feingold said that in fact in the majority of cases here this law, this new part of the law has not been used in anti-terror legislation necessarily?

VIET DINH: Search warrants apply in criminal investigations as well as national security investigations, just as judicial discretion to delay notice of search warrants that pre-existed the USA Patriot Act so too this provision applies to criminal investigation as well as national security investigations. There is no need to restrict it to national security investigations simply because these types of decisions are made every single day in an ordinary criminal context by judges around the country.

GWEN IFILL: And Nadine Strossen — go ahead — you can respond.

NADINE STROSSEN: Two points if I may. The first one is the point that Sen. Feingold made so eloquently today, and that is that members of Congress — as indicated by the name of the act itself which refers to tools to intercept and obstruct terrorism– members of Congress were willing to give extraordinary powers to the government to fight the specific and extraordinary crime and danger of terrorism, not ordinary garden variety crimes.

The second point I want to make and I’d actually like to raise it as a question to Viet Dinh, and that is: Do you object to the refining amendments that the Safe Act would impose on the section 213 power: number one, to take away the catch-all category of some potential danger to an investigation but what it does is elaborates specific harms that would result from….

GWEN IFILL: Let me….

NADINE STROSSEN: …From not delaying notice and also imposing a time limit. These are modest limits…

GWEN IFILL: Let me rephrase that question. I hope you don’t go too far into the details just because people at home don’t know quite what we’re talking about. But really is there room for middle ground? Is there refining which you can agree on?

VIET DINH: There is always room for dotting the Is and crossing the Ts. In this particular provision I don’t think there is much room because the prevailing standard prior to this provision was judges can issue these delays with good reason. What Congress did was ratchet it up a little bit to insist on reasonable cause. So arguably it’s much more protective of civil liberties than was pre-existing in the USA Patriot Act.

NADINE STROSSEN: Almost half the House Republicans voted as you know to repeal the sneak-and-peek provision. I think that’s very important that Congress by overwhelming votes has agreed with the ACLU and other critics that we don’t need this extraordinary power to search people’s homes and offices potentially without any notice at all.

GWEN IFILL: Let’s talk about another provision which has been the subject of some debate which is the so-called libraries provision which we heard Sen. Durbin talking about which allows the government to have the opportunity to search books and records looking for potential terrorists. Is that something which, as critics say, has gone too far?

VIET DINH: No, we do not have any specific evidence that the provision has been abused in the last four years. It is….

GWEN IFILL: Has it even been used in libraries?

VIET DINH: We know as of September 2003 that it has not been used. I do not know up until this point because the evidence is classified or that information is classified because all of these occur in the context of national security investigations.

Libraries, like any other business is subject to normal, ordinary investigative procedures. If somebody commits a crime in a library, FBI agents and state and local authorities can come in and investigate that crime and using ordinary criminal subpoenas. What section 215 does is simply gives the same authority with respect to terrorists and espionage crimes.

I think Bob Mueller did a great job of illustrating how some terrorists — some spies — are using libraries in order to further their conspiracy. There should not be a blanket wall drawn around any business that forecloses our ability to investigate those crimes.

GWEN IFILL: In fact, Ms. Strossen, if indeed there is a potential terrorist or a terror suspect who goes into a library and uses their Internet, their public Internet access to plan a crime, shouldn’t government be able to use that as a tool in their investigation and if libraries are willing to cooperate anyway, why not?

NADINE STROSSEN: And Gwen as you described it and the example that Viet Dinh has repeated from Bob Mueller, the ACLU would not disagree with, but the difference is you have all referred to a situation where there would be some specific articulable fact that indicate a basis for suspecting a particular individual, the individualized suspicion requirement which is the heart of the Fourth Amendment. Under Section 215, that has been eliminated and all the government has to do is to go before a super secret court with nobody else in the court and allege that the records are sought in connection with a counterterrorism investigation, no individualized suspicion whatsoever, a complete fishing expedition.

And as Viet Dinh has acknowledged because these surveillance orders are conducted in secret, we can never know whether our library records have been seized let alone challenge such seizure as not being based on individualized suspicion.

Again, the Safe Act would make the modest, and I think common sense fix, of simply indicating the government has some specific basis for suspicion.

GWEN IFILL: In the brief time we have left, Viet Dinh, do you think the Safe Act, the bipartisan proposal to find some middle ground on this, is that something you would support?

VIET DINH: I don’t think the Safe Act finds a middle ground. The Safe Act being reintroduced today was introduced last year to widespread condemnation and opposition from the law enforcement community, from the intelligence community and from a bipartisan opposition of Congress. I think the USA Patriot Act was very deliberate. It is right. It should be reauthorized.

GWEN IFILL: Okay. We’ll have to leave it there for tonight. Viet Dinh and Nadine Strossen, thank you both very much.

VIET DINH: Thank you very much.