Renewing the Patriot Act

RAY SUAREZ:

Signed by President Bush in the weeks after Sept. 11, the Patriot Act gave federal law enforcement officials expanded search and surveillance authority to help prevent future attacks. But Congress also tacked expiration dates onto 16 Patriot Act provisions, and they're due to expire at the end of the year. President Bush has stumped in support of the counter-terror measure in recent months.

PRESIDENT GEORGE W. BUSH:

The act that has worked, the act that has delivered good results, or given people the tools to deliver results, is now set to expire. That doesn't make any sense to me; that if something is working, why should it expire? We need to renew the Patriot Act.

RAY SUAREZ:

But there's been no shortage of critics who have charged the Patriot Act has been used to violate civil liberties in this country.

CHIP PITTS:

Encouraging the presumption of guilt rather than innocence, the Patriot Act sweeps innocent people within its ambit.

RAY SUAREZ:

Both sides of the debate were on display on Capitol Hill last week, when lawmakers in the House voted to make 14 of the Patriot Act's 16 provisions permanent. The remaining two were given ten-year extensions, one of which was the controversial library provision, which allows federal authorities to secretly search library and hospital records. Democrats fought unsuccessfully to scale back the provision.

REP. MAXINE WATERS:

There is no reason why the government should be allowed to demand the production of such personal private records without any judicial review or notice to the target.

RAY SUAREZ:

Committee Chairman James Sensenbrenner defended the library provision and the act's other enforcement tools, like delayed-notice search warrants, roving wiretaps, and information-sharing among intelligence agencies.

REP. JAMES SENSENBRENNER:

While many including myself continue to be wary of the government having any more authority than absolutely necessary, we must view attacks as an important reminder that the specter of terrorism remains a clear and present danger to free nations around the world.

RAY SUAREZ:

The roving wiretap provision allows investigators to follow a suspect from phone-to-phone without a new warrant. It was extended for ten years and amended to give judges more power over the merit and scope of the investigations.

RAY SUAREZ:

For a closer examination now of these provisions of the Patriot Act and whether they should be renewed, I'm joined by Mary Beth Buchanan, the U.S. attorney for the Western District of Pennsylvania. She's also the former director of the Executive Office for U.S. Attorneys, which coordinates the roles of all U.S. attorneys. David Cole is a professor at Georgetown University Law School and an attorney at the Center for Constitutional Rights.

And, Professor Cole, 14 of the provisions seem to be going right ahead without much argument over them. What were they about?

DAVID COLE:

Well, all the provisions that were sunsetted are surveillance provisions that expand the government's power essentially to spy on us, often to spy on us in secret, often to spy on us without establishing probable cause that you are engaged in any sort of criminal activity. And those are the provisions that were sunsetted. Most of them are going forward at least from the — on the House side without much change.

And the administration's position is that none of them need any change, which reminds me of President Bush's response in the 2004 debate where he said that he couldn't remember a single mistake that he'd made. They claim there have been no abuses under this Act, a claim that it's patently inconsistent with the facts, and therefore we should just go ahead. Instead of recognizing that there was a real tendency to overreact in the immediate aftermath of 9/11 that this was part of it, that the enemy combatant position was part of it, that we need to correct for those overreactions. We need to keep ourselves secure, but we also need to be consistent with our most basic principles.

RAY SUAREZ:

Ms. Buchanan, from the point of view of federal law enforcement, what, if anything, would change if the entire act were allowed to sunset?

MARY BETH BUCHANAN:

The Patriot Act has really struck the right balance to give federal prosecutors the tools that we need to continue to investigate criminal acts and to protect American citizens from further acts of terrorism. This act accomplishes all of these goals, while still protecting the civil liberties of all Americans.

We believe that all 16 provisions should be renewed because these provisions have been extremely effective in helping the government to prevent another terrorist attack from occurring on our soil. We've also had great success in charging several hundred cases that have involved terrorism-related offenses. And we believe that at this point since there have been no abuses, there are no changes that should be made to these very important tools that law enforcement desperately needs.

RAY SUAREZ:

Well, you heard Professor Cole. He questions whether that's a testable proposition that there have been no abuses. Is it possible to check how evidence was gathered under the Patriot Act and see? Does Congress have that power?

MARY BETH BUCHANAN:

It's very possible to check. In fact, under the Patriot Act, the Justice Department is required to report to Congress. So on a semi-annual basis with all of these provisions the Justice Department provides Congress with any information that it wants about how we've used these provisions.

And, in fact, we've done that. We've told Congress exactly how we've used them, how many times we've used them and what the facts and circumstances are. Congress has the ability to get any information that they need about this Act and in fact no member of Congress has said that they have had a single instance of a Patriot Act abuse reported to them.

RAY SUAREZ:

You've alluded to abuse. What kinds of things are you talking about?

DAVID COLE:

Sure, plenty of abuses. The government is seeking under the Patriot Act to deport two permanent resident aliens in Los Angeles for having distributed magazines in the 1980s. And they claim that that makes them deportable under the 2001 Patriot Act for supporting a terrorist group.

The government also prosecuted a student in Idaho for running a Web site simply because on his Web site there were links to other Web sites that had speeches from other people that advocated Jihad. They claimed that that violated the Patriot Act. A jury threw it out and acquitted the defendant.

The government denied entry to a moderate, highly regarded Muslim scholar who had been given a chair at Notre Dame, hardly a hotbed of radicalism, using the Patriot Act solely on the basis of his speech. The government has shut down six Muslim charities in the United States without having to put forward any evidence to show they've committed any law violation. And when some of those charities have — and this is under the Patriot Act as well — when some of those charities have sought to challenge it in court, the government has relied on the Patriot Act to use secret evidence that the charities have no opportunity to see or confront.

So we've got secret evidence, we've got denial of due process. We've got retroactively punishing people for distributing magazines. And they claim there've been no abuses. Again it depends on what you describe as an abuse. But I'd say that that's a wide array of abuses and the remarkable thing really is that those provisions aren't even under discussion because those provisions were not subject to the sunset.

The provisions that are under discussion because they're sunsetted are surveillance provisions. And they are carried out in secret. And Congress gets minimal information, under the previous attorney general got virtually no information about how the act was used. The people who are being surveilled are never told that they're being surveilled so you, I, Mary Beth, we could all be subject to surveillance under the Patriot Act. We'd never know because you're never notified even after the surveillance is concluded even if there are no — there's no basis to believe that you've ever done anything wrong you're not told your phone was tapped; you're not told your house was searched, so where there's evidence of what they've done, there's abuse. And where there's not evidence it's because the entire process is secret.

RAY SUAREZ:

How do you respond to that?

MARY BETH BUCHANAN:

It appears that Professor Cole defines abuse as a provision of the act that he doesn't agree with. And we simply are never going to agree on this point. The members of Congress who are responsible for reviewing the Patriot Act, whose job it is to provide oversight have publicly stated that no abuses of the USA Patriot Act have ever been reported to them.

It is a very different thing to have a jury decide that there's not enough evidence to convict someone of a crime — and I believe that that's what the professor was speaking about when he referred to the Idaho case. That happens not routinely, but occasionally in our criminal justice system. And in those types of cases, the jury found that there just wasn't enough evidence to convict that particular individual. But that doesn't mean that the Patriot Act was abused. It simply means that in one particular case a jury did not believe that the facts established a crime.

RAY SUAREZ:

The professor also suggested that secrecy under some of the provisions make it impossible to police, to check whether the act is being used legally and to a legal effect.

MARY BETH BUCHANAN:

Well, certainly some interceptions under the Patriot Act are secret, and they're intended to be. That's the whole purpose. But that is why the Foreign Intelligence Surveillance Act Court oversees these applications and oversees the granting of this power. So no interceptions are ever permitted without a court determining that it's appropriate, that there's probable cause to believe that the individual to be targeted is a foreign power or an agent of a foreign power.

And once the court is satisfied that that is the case then they authorize the particular interception. Those interceptions are then reported to Congress on a semiannual basis. So even though the target of the interception doesn't know that they are a target, that they've been surveilled, Congress knows. And Congress gets that information and Congress can review the number of times that these tools are used. And after giving Congress information every six months, they have never found an abuse of this provision.

RAY SUAREZ:

Right now the House and Senate are not that close or not yet close on exactly how to handle the two remaining provisions that — how long they should be renewed for and exactly how to referee things like the roving wiretaps, whether or not library records can be used. On the wiretaps, can you live with continued refereeing of judges and a continued review of this law, and not made permanent?

MARY BETH BUCHANAN:

Well, we don't believe that sunset provisions are necessary with any of these 16 provisions. These provisions of the law are working and Congress at any time has the ability to consider legislation and to make amendments, so even without specific sunset periods, Congress could make changes to the law if they felt that it was necessary. And at this point we don't believe that any modifications in the law are necessary and so we wouldn't support further sunset provisions or further sunset dates for any of these laws.

RAY SUAREZ:

And on the two aspects of the law that haven't yet been finalized?

DAVID COLE:

Well nothing's been finalized because the Senate hasn't yet resolved what it's going to do, nor has the House; there's just the Judiciary Committee House. But I think that all of the surveillance provisions should continue to be sunsetted. That's one of the critical checks on abuse. The very fact that the administration knew that it was going to have to come back four years later and ask that these authorities be extended is an important check on the administration abusing that power. Now they want to get rid of that check as well.

And one of the basic criticisms of the Patriot Act surveillance provisions was all these powers existed before the Patriot Act was enacted but they were subject to checks. They were subject to legal restrictions enforceable by courts. And what the Patriot Act did was eliminate many of those checks, give the government, for example, the power to get records on any of us from any third party, whether it be a library, a bookstore, a gun shop, a hospital, it doesn't matter, without showing that the individual upon whom they're seeking to get records is a criminal, is an agent of a foreign power, is ever engaged in any kind of criminal activity, and you're never notified that your records were seized.

RAY SUAREZ:

Briefly, the U.S. Attorney, you just heard her, just suggested that none of these provisions need sunset regulations included in them because Congress can repeal these laws at its own discretion. You say the sunsets are absolutely necessary but then you say the law didn't work anyway, even with the sunset provisions. How —

DAVID COLE:

I think the — as everybody who's in Washington knows it's very hard to get something on the agenda of Congress. But a sunset puts it on the agenda. And so there's the opportunity to discuss it. There's the opportunity to look at it, the opportunity to analyze it. I think what's so unfortunate is that Congress initially only sunsetted a very small part of the Patriot Act so many of the abuses that I've talked about are of Patriot Act provisions that are not subject to sunset and there's been no discussion of them even though they've been extremely abused.

RAY SUAREZ:

A quick response, Ms. Buchanan.

MARY BETH BUCHANAN:

I have to say I disagree with everything that Professor Cole just said. First, Section 206 with the roving wiretap enabling us to use that in a terrorism case, it's exactly the same thing that we had under the criminal law simply allowing us to use this in a terrorism situation. We didn't have a sunset under the criminal law and we don't need one under the Patriot Act.

RAY SUAREZ:

Thanks a lot both of you. Good to talk to you.

DAVID COLE:

Thanks.