Civil Liberties and National Security: Is There Common Ground?

One of my blog readers persuaded me to go to this John F. Kennedy, Jr., Forum at Harvard’s Kennedy School of Government on Tuesday, March 16, 2004. It was an informal debate between Viet Dinh, who helped draft the USA PATRIOT Act as assistant attorney general at the U.S. Department of Justice, and Carol Rose, American Civil Liberties Union of Massachusetts executive director. Belfer Center for Science and International Affairs fellow Juliette Kayyem moderated.

Dinh and Rose gave their positions on the USA PATRIOT Act in ten minutes each. Then Kayyem asked some questions of each of them before allowing the audience to ask questions. Unfortunately, I had a prior commitment that caused me to leave the forum before the event was over. Archived video of some forum events is available on the Web, so I hope this one will be added to that collection so I can watch the end.

Kayyem introduced the topic by showing the first few minutes of a video which may be some kind of future public television series. (I forgot to write the name down and I’ve forgotten it already.) It’s a talk show with a panel. Dinh and Kayyem were panelists. The clip lasted long enough for Dinh and Kayyem to share their thoughts on the act, then for someone to ask a related question. Dinh thinks Al Qaeda is a bigger threat to civil liberties than the US government and sees the act as something that gives people the tools to do their jobs to catch terrorists and improve public safety. Kayyem thinks the act was passed too hastily.

Viet Dinh began the debate. He said, “We can’t shut down our democracy” because of the threat of terrorists. How do we address the threat while maintaining our liberal democracy? We need everything in the act to preserve our liberties while combatting terrorism, he thinks. When he spoke, he sounded like a politician. He seemed to make the same points several different ways.

Carol Rose began her segment by recounting several historical examples showing the wrongness of limiting civil liberties, including the Japanese internment camps during World War II and events during the Red Scare. She outlined several problems with the act, like whether any legislator has actually read it and whether the proposed act the act that was passed. Can we live in a world that is free and safe, she wonders. The current administration focuses on technical details, not the real causes of terrorism. Intelligence agencies were unable to act appropriately pre-9/11 because of limitations, she claims. Some key changes since the law passed are the attack on system of checks & balances, guilt by association is replacing due process, and the expectation of privacy is fading.

Rose then named some specific sections of the act and described problems with them, including section 215, which is the section many librarians worry about. It allows records seizures, but more than library records are described in the act. Any third-party agency records are subject to this clause. In Massachusetts, it’s being used to get Internet service providers to release information about their customers. She also talked about sections 218, which gives the government more flexibility to use wire taps, and 213, which allows law enforcement agencies to perform searches and seizures without notifying the person whose property is being searched and seized.

Rose asks which rights do we give up, who makes those decisions, and what is the connection between the rights and security. She thinks lawmakers should have thought about those issues more before passing the act.

Kayyem then asked Dinh whether the aftermath of passing the law has made him reconsider anything about the law. Dinh replied that it’s an unprecedented act of war. We’re learning what’s good and bad. People have many unfounded fears about the act. It’s a difficult area of legislation because many portions of it may infringe on the Constitution. We need a strong executive branch during war times; the act gives us that. Since we live in a democracy, he opined, and we have the ability to cry foul, many people are doing that relative to the act.

Kayyem then asked Rose that since there have been no terrorist attacks in the United States since 9/11, would she concede defeat? Kayyem quickly corrected herself because of the unsolved anthrax attacks shortly after 9/11. Rose joked that there hasn’t been another attack because she’s been carrying her lucky stone. She claims before 9/11 government officials d�dn’t have the motivation or will to go after terrorists on this scale, now they do. Civil rights violations may deter citizens from helping the police and federal authorities, but rounding up innocent people isn’t the way to do it. Many immigrants are afraid of going to the police because past experience shows the police will involve the Immigration and Naturalization Service (INS) and people could be deported. Many immigrants who might know something about terrorist activities do not want to risk being in trouble with the INS, so they won’t let the authorities know what they know.

Kayyem opened the floor for questions from the audience.

A woman asked about the executive order that bans the television news program Mosaic on the grounds that airing it aids terrorists. Dinh said he doesn’t know about the specific situation, but the law should be invalide if it violates the Constitution. Kayyem asked how we can stay focused on the law to make sure it isn’t abused. Rose said many of the violations that are getting people in trouble are having a chilling effect. She named specific examples, like a school child who got a phone call from the FBI because of a school project about bridges.

A student wondered about third party databases, like CAPS2, the database used to screen airline passengers, and privacy. Dinh replied that
the government should pass laws protecting the use of that data, but there is no right to anonymity in this country, so we shouldn’t expect it. Rose said our rights to control data about us is gone. She thinks the European Privacy Directive could be a good model for the U.S.

A woman wondered how the Act and the last minute version switch happened and what the change was between the act lawmakers thought they were passing and the actual act that got passed. Dinh gave a history of the act and explained that it’s a combination of several other pieces of legislation that were in the works, like the Uniting and Strengthening of America Act and an act beginning with “Providing Appropriate Tools.” Together the two acronyms form USA PATRIOT. He tried to avoid answering the difference between the proposed act and the passed act by brushing it off as a gate fix from the Department of Justice. Maybe I was reading more into the way he gave the explanation, but his hurried nature and body language made it seem like there was much more to the story, but he was just trying not to answer it. The woman had to ask it again and Kayyem reminded him about it, too. Rose added that Michael Ignatiev has a different perspective on the reason behind the switch and how the two versions differ. He wrote an article for Newsweek about it.

Kayyem then asked what’s happening with PATRIOT Act 2. Dinh tried to avoid the question by denying the existence of such an act and claiming the leak from the Department of Justice was false. Rose interjected to say she understood information about the act leaked from Dick Cheney and Dennis Hastert. Dinh tried to correct her by saying the process of who gets laws when has changed so that wouldn’t happen anymore. Rose said that even if the act wasn’t being considered seriously anymore, it would be good to inform people of some of the provisions so we can keep an eye on them. She talked about how law enforcement agents could use a wire tap at the sole discretion of the attorney general for fifteen days. Another provision limits how lawyers can challenge the use of secret information to try people. It could also allow for DNA sampling and cataloging of people accused of crimes.

The next question began with the privacy of records, like library, travel, and medical records, and covered how the searches were legal under the Fourth Amendment. The PATRIOT Act strips due process and is not constitutional because of the Fourth Amendment. Why didn’t existing legislation prevent the attacks? How is the new legislation different in that it will prevent such terror attacks?

As I listened to Dinh beat around the bush, I checked my watch and realized I was going to be late to my next event, so I left before I heard the responses to the question. Video of the forum is archived. I will try to watch the end in the near future to complete this summary.

Addendum: I had a chance to listen to the rest of the discussion today.

Dinh beat around the bush and focused on the first part of the inquiry about accessing various records. The probable cause clause in the Fourth Amendment does not apply to issues of international security. Dinh cited a case that sounded like the United States v. Keith. I don’t think he ever appropriately addressed the questions about why existing legislation didn’t stop the attacks and how the new law will.

Rose said that under section 218, you don’t have to be the subject of the investigation to be wire tapped. Her response indicates that the lack of people to go through the wealth of data gathered by government agencies may have contributed more to the failure of the government to stop the attacks than any piece of legislation. If CAPSI had been in use, at least nine of the terrorists might have been identified. She does not know whether identifying them would have actually stopped the attacks, though. She reminded us about many people who have had their liberties curtailed and their lives drastically changed because of the USA PATRIOT Act.

How does Dinh think the debate should be conducted given the sensitive nature of the act, a social studies concentrator wondered. For Rose, how does the ACLU stand on supportive government initiatives during war time and is there any strategic approach that could be more effective and what stratgies does the ACLU pursue? Dinh began by offering his condolences to the woman’s family for their loss during 9/11. He acknowledged that his answer was elusive, but he admitted that he doesn’t really have an answer other than to keep the debate alive to honor the memory of those who lost their lives because of the terrorist attacks.

Rose emphasized the decentralized nature of the ACLU, which gives each affiliate the opportunity to act independently. “The war on terrorism isn’t like World War II,” she says addressing an issue related to the Japanese internment camps, “There isn’t going to be an end to it. It is forever.” We need to come up with a way to protect people without throwing away everything the country stands for.

To wrap up, Rose talked about resolutions cities and towns in Massachusetts have passed negating certain parts of the USA PATRIOT Act. She talked about how many movements for liberty began in Massachusetts and said this is another one of those movements.

Dinh concluded by emphasizing that we don’t want to repeat some of the mistakes of the past that happened when certain people’s freedom was limited by legislation. He read a quote reflecting the difficulty of our times. He encourages people to continue to stand up for the ideals of the country during this time.

Thanks for the nudge to attend, Shimon.

Note: The name on the Institute of Politics’ Web site for the John F. Kennedy, Jr., Forum archives is incorrect. Carol Rose was on the panel, not Nadine Strossen.

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