Considering the Patriot Act

MARGARET WARNER:

Today's speech by Attorney General John Ashcroft was billed as the first in a cross-country campaign that will take him to more than a dozen cities over the month. At every stop, he'll be making the case that the USA Patriot Act, passed in the immediate aftermath of 9/11, has protected Americans from another catastrophic terrorist attack.

This week alone, he'll address law enforcement audiences in Philadelphia, Cleveland, Detroit, and Des Moines. The attorney general's road trip comes amidst a growing backlash against the law. Some 140 communities and three states have passed resolutions condemning it as an infringement on civil liberties. Ashcroft spoke today at the American Enterprise Institute in Washington.

JOHN ASHCROFT:

This morning's attack confirms the worldwide terrorist threat is real. It is imminent. Our enemies continue to pursue ways to murder the innocent and the peaceful. They seek to kill us abroad and at home.

But we will not be deterred from our responsibility to preserve American life and liberty, nor our duty to build a safer and more secure world. In the long winter of 1941, Winston Churchill appealed to the United States for help in defending freedom from Nazism with the phrase, "give us the tools, and we will finish the job."

In the days after September 11, we appealed to the Congress for help in defending freedom from terrorism with the same refrain. "Give us the tools, and we will finish the job." Congress responded by passing the USA Patriot Act by an overwhelming margin. And while our job is not yet finished, we have used the tools provided in the Patriot Act to fulfill our first responsibility to protect the American people.

The Patriot Act opened opportunity for information sharing. To abandon this tool would disconnect the dots, risk American lives, sacrifice liberty, and reject September 11's lessons.

Almost two years after Americans died at the Pentagon, we know that cooperation works. The Patriot Act creates teamwork at every level of law enforcement and intelligence. To block cooperation against terrorists would be to make our nation more vulnerable to attack. It would reject the teachings of September 11.

Almost two years after Americans and the citizens of more than 80 other nations died at the World Trade Center, we know that prevention works. The Patriot Act gives us the technological tools to anticipate, adapt, and outthink our terrorist enemy. To abandon these tools would senselessly imperil American lives and American liberty, and it would ignore the lessons of September 11.

The cause we have chosen is just. The course we have chosen is constitutional. We did not seek this struggle, but we embrace this cause.

Providence, which has bestowed on America the responsibility to lead the world in liberty, has also handed America a great trust: To provide security that ensures liberty. We accept this trust, not with anger or arrogance, but with belief – belief that liberty is the greatest gift of our creator; belief that such liberty is the universal endowment of all humanity; belief that as long as there is an America, liberty must not, will not, shall not perish from the earth. Thank you very much. God bless you and God Bless America.

MARGARET WARNER:

Now for a closer look at the man at the helm of the Justice Department and the act that has stirred such controversy, we're joined by Viet Dinh, the former assistant attorney general for the Office of Legal Policy at the Justice Department. He helped draft the Patriot Act; and he now teaches at the Georgetown University Law Center. And Laura Murphy, director of the Washington National Office of the American Civil Liberties Union. The ACLU has filed suit against the Justice Department over one provision of the Patriot Act. Welcome to you both. John Ashcroft, clearly the president's point man on the war on terror here at home, what's been his impact Viet Dinh? That is, to what degree has he personally shaped the response, the whole way this administration has responded domestically to the war on terror?

VIET DINH:

I think totally and from the beginning, on September 11 the president called a meeting of his National Security Council for obvious reasons. At the end of that meeting, the president pulled the attorney general aside and said, "John, you make sure this does not happen again." John, you make sure this does not happen again.

The attorney general then set out a course of vision and a course of leadership that defined our work at the Department of Justice to ensure that preventing and disrupting terrorist activity is the overriding goal of the Department of Justice.

It started with a top-to-bottom review of the tools we had at our disposal which ended up in the near unanimous passage of the USA Patriot Act; it continued with the reorganization of the FBI in order to improve communication and coordination; it continued with the transfer of the Immigration Services over the homeland security and the assistance with the Department of Homeland Security to make that transition seamless, and it continues to this day whereby over 300 persons have been charged in terrorism-related investigations. Over 130 persons have been convicted.

But overwhelmingly I think the number-one statistic that illustrates the success thus far of the campaign is a non-statistic. Nothing has happened in the last 24 months. And every single day that nothing happens, that all is well in America, everybody's bored on their drive home, is a momentous achievement for law enforcement, for the Department of Justice, for all the state and local partners and for John Ashcroft personally.

MARGARET WARNER:

Do you see John Ashcroft's personal stamp on all of this even if you don't agree with the way Viet Dinh characterized it? Do you see his stamp, his sign on this?

LAURA MURPHY:

Well, I think he's deeply, personally invested in the fate of legislation and Executive Branch activities that focus on the prosecution of terrorists, but I don't think he's as knowledgeable about the policies that he's implemented as he should be.

When he was before the House Judiciary Committee on June 5, he really could not articulate answers to some of the specific questions that many of the House Democratic and Republican members asked him. He wasn't clear on Section 215 of the Patriot Act, which allows the government to seize library records, for example. He was not entirely accurate in his response about the use of "sneak and peek" warrants, which allows the government to come into your home, search your belongings, remove belongings without telling you.

So I think he's deeply invested in this. He wants it to be a political success, but I don't think he is looking out for the Constitution and the Bill of Rights as carefully as he should, and I think when we are fearful and we act in fear and act in haste, we lose sight of our values. He's also there to protect American values.

I think he pressured the Congress to pass the USA Patriot Act. They went too far too fast. And now he's in the position of back pedaling and trying to explain why the act is necessary when an overriding majority of the House of Representatives voted to repeal the "sneak and peek" provisions of the USA Patriot Act in an astounding vote about a month ago. So I think he's in trouble.

MARGARET WARNER:

Why is… pick up on that point. Why is he going on this road show now, Viet Dinh? It because, in fact, Congress has knocked down a couple of these provisions or refused to fund them and because he is hearing more criticism of it?

VIET DINH:

First of all, Congress has not withheld funding. The other amendment happened in the middle of the night. The very next day when the Department of Justice actually discovered I think that sounder heads and more reasoned debate will prevail here.

MARGARET WARNER:

And let me just explain that amendment. That was the amendment that would have denied funding to the so-called "sneak and peek" provisions, which allows searches without telling people.

VIET DINH:

Not without. It's a delay notice provision that pre-existed the USA Patriot Act but then again your point is a very good one. And I disagree somewhat with Laura's characterization that this is a purely defensive or counteroffensive move.

I think that the purpose of the trip as is evident on the audiences he's choosing, the locales that he is visiting, is two-fold: One is to speak to the men and women who do the actual groundwork in this war against terror: The prosecutors, the state and local police officers, the FBI agents, to tell them that their work is worthy of thanks and of praise and not of criticism or disparagement, and also to explain the USA Patriot Act and the related activities of the Department of Justice to the American public, to disabuse that public of the misinformation, the misconceptions and the misunderstanding that unfortunately has pervaded in the last summer or so.

And I do think that the attorney general is correct in his citation of the public support for the activities on men and women in law enforcement to protect the security of America and the safety of American people.

What he needs to do is go to the people, speak to them directly and to answer their concerns, to listen to their constructive criticism, where applicable, and to tell them exactly what is government is doing and what it is not doing.

MARGARET WARNER:

Your organization has been critical of this campaign that he's embarking on.

LAURA MURPHY:

Absolutely. I think the attorney general is on the ropes. Over 151 local communities have passed resolutions denouncing provisions of the Patriot Act. Three states have passed resolutions denouncing the provisions of the Patriot Act, Hawaii, Vermont and Alaska.

In Alaska they told their law enforcement officials to refrain from enforcing provisions of the Patriot Act that violated constitutional rights such as investigating people without probable cause that a crime has been committed.

So this is… the population is in an uproar. It is not limited to the ACLU. We're talking about Grover Norquist of the Americans for Tax Reform and David Keene from the American Conservative Union and the Free Congress Foundation joining forces with the ACLU, making identical claims that this act goes too far in abridging our basic freedoms.

VIET DINH:

Let me just — one note of correction because I think there is a misstatement both in Laura's comment and the opening segment about the level of local and state opposition to the USA Patriot Act. If one actually reads these resolutions and these enactments, there's nothing disagreeable about them. They are merely statements of principle of saying that the Constitution….

LAURA MURPHY:

That's not correct.

VIET DINH:

That the Constitution is sacred and that the states and locals will not do anything in abridgment of the Constitution. Where the federal government, be it in the USA Patriot Act or elsewhere, asks state and local officials to violate the Constitution, of course they shouldn't do it.

But to this day, not a single provision of the USA Patriot Act has been overturned by a court. Indeed Laura's and the ACLU's challenge last week or two weeks ago was the first time that any provision was actually challenged.

LAURA MURPHY:

I say read the Alaska resolution, read the Detroit City Council resolution, read the Baltimore resolution, where they have the force of law. Some are resolutions and some are legally binding on police departments not to cooperate with these anti-civil liberty provisions of the Patriot Act.

MARGARET WARNER:

Let me ask you this though, is Attorney General Ashcroft right is when he says so far that the courts have primarily sided with the Justice Department on the various challenges?

LAURA MURPHY:

The jury is out because we just brought the first challenge to the Patriot Act two-and-a-half weeks ago. The case has not been adjudicated so it remains to be seen whether or not….

MARGARET WARNER:

There have been a number of challenges on all kinds of things.

LAURA MURPHY:

They haven't been directly to the Patriot Act. Some have dealt with the Foreign Intelligence Surveillance Court and in other areas.

But again it takes a while for a challenge to work its way through the judicial process. He cannot state factually that the courts have reviewed all of the provisions of the Patriot Act and upheld them. That has yet to be seen.

MARGARET WARNER:

All right. Let me ask you both about the key assertion in his remarks. And I assume he's going to be saying this around the country, which is something you essentially said right at the end of your opening comment: without these stronger powers, the Justice Department and the U.S. Government would not have been able to withstand another catastrophic attack and the fact that there hasn't been one is evidence that they're working and should not be rolled back. Sum up the gist of that argument.

VIET DINH:

In 1982 when the IRA attempted to assassinate Margaret Thatcher but unsuccessfully for obvious reasons, it released a very simple statement. It said today we were unlucky but remember we only have to get lucky once. You have to get lucky every day. And that sums up the essence of the counterterrorism mission.

We can never say that any one act, any one legislation was instrumental in preventing another terrorist or catastrophic attack or preserving the peace for the last two years. The Department of Justice did say to Congress that the peace over the last two years, the success in the campaign thus far, would have been very difficult if not impossibly so without the USA Patriot Act.

MARGARET WARNER:

All right. Let me get your views on that. Would you concede that perhaps these strengthened powers have enabled the U.S. Government to do more certainly than they could have pre-9/11?

LAURA MURPHY:

Well, there are provisions of the USA Patriot Act that are non-controversial. For example, giving more border patrol agents to the northern border — hiring more translators.

MARGARET WARNER:

Some of the things he talked about sharing information from intelligence to law enforcement.

LAURA MURPHY:

I think the way he presented it was very misleading. The CIA could always share information with the FBI when they found indication of criminal activity.

So the idea that it was the law and not the inbred bureaucracy of the CIA and the FBI that prevented information-sharing from going on, what they wanted to do was weaken the threshold for conducting intelligence investigations and get around the criminal statutes. So the information-sharing discussion that the attorney general had I think was very, very misleading.

But let me say, in sum, it is as if I say I have an elephant gun in my office and there are no elephants in my office, therefore, the gun has been successful. We cannot protect the American people by military might and increased law enforcement powers alone. We also have to protect our values, and the attorney general is not being as mindful as he should be and is repeating the mistakes of history in sacrificing some of our civil liberties in the war on terrorism.

MARGARET WARNER:

Let me ask you a final question to respond to her main point which is that last point that in the post 9/11 fever perhaps some civil liberties were trampled on. There were some excesses. Do you think that's the case?

VIET DINH:

The Inspector General of the Department of Justice had issued several reports about those allegations. And I think that to the extent that those allegations are credible and are well founded they are very regrettable. I do think that the attorney general is seeking to protect the liberty of America by providing the security for America.

The ACLU and the members of its coalition opposed the 1996 anti-terrorism act. It believes that we were ready prior to September 11. And the question is now are we ready for the next terrorist attack? I sincerely hope that we are and I sincerely hope that our government officials are always evaluating and reevaluating what they do to strike that balance true.

MARGARET WARNER:

Very interesting and spirited discussion. Laura Murphy and Viet Dinh, thank you both.

LAURA MURPHY:

Thank you.

VIET DINH:

Thank you so much.