USA Patriot Act and Civil Liberties Since 9/11, a lecture
Yesterday I attended a lecture at the Woodrow Wilson School of Public and International Affairs titled, “The USA Patriot Act and Civil Liberties Since 9/11”, given by Prof. Viet Dinh. As stated in this article from the Norton Mirror,
Dinh served as the U.S. assistant attorney general for legal policy from 2001 to 2003, and was the highest ranking Vietnamese American official in the Bush Administration. As the official responsible for developing federal legal policy, Dinh contributed to a number of policies, including eliminating racial profiling in federal law enforcement and reforming civil and criminal justice procedures. After Sept. 11, Dinh conducted a comprehensive review of Department of Justice priorities, policies and practices to ensure that all available resources were dedicated to protecting America against terrorist acts. He played a key role in developing the U.S.A. Patriot Act and revising the Attorney General’s Guidelines, which govern federal law enforcement activities and national security investigations. Currently, Dinh is a professor of law and deputy director of Asian Law and Policy Studies at the Georgetown University Law Center.
A refugee from Vietnam, Dinh came to the United States when he was 10 years old in 1978. He attended Harvard University and Harvard Law School, and graduated magna cum laude from both. He was a law clerk to Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit and to U.S. Supreme Court Justice Sandra Day O’Connor. He served as associate special counsel to the U.S. Senate Whitewater Committee, as special counsel to Senator Pete V. Domenici for the impeachment of President Bill Clinton
I have read the Patriot Act, which is available on line, and certainly hope the people in the audience had. There were some 95 people in the audience, and, as can be expected for that hour of day (4PM), most (50) were retirees, and the rest (40) were students. The remaining 5 were people my age, old enough to be a student’s parent, but young enough to be a retiree’s daughter.
Prof. Dinh started by talking about the thinking at the Justice Department on the days after September 11, 2001. Pres. Bush had stated to US Attorney General John Ashcroft, “Make sure this does not happen again”. This was a momentous task, and a defensive task that could mean a change in the nature of our society by increasing the role of government in a pervasive and asymmetric way, but detention doesn’t work; instead the Dept. of Justice looked for ways in which to “aid the hand of fate” to prevent terrorism. Prof. Dinh explained that our Constitution‘s 4th Amendment requires probable cause for detention, while European countries recognize the state’s right to detention.
Therefore, as a counterterrorism strategy, the Justice Department saw their task as one of domestic law enforcement with probable cause, and the avenue would be to develop a strategy to discover information on terrorist plans, while making sure there’s proper judicial supervision.The means for this would be
- to exact the same level of judicial supervision and probably cause,
- de-anonimize internet and virtual communications,
- and the use of multi-jurisdictional efforts for search warrants.
The law passed 98-1 in the Democrat-controlled Senate.
Prof. Dinh discussed Section 213, where a Judge can delay notice to a recipient of a search warrant, with reasonable cause. He then talked of Section 215 (the one pertaining library records), which attaches to the Foreign Intelligence Service Act (FISA), and by which national security investigators get the same authority as criminal investigators, and it’s classified and confidential. To offset potential abuse of this “classified and confidential”, Congress put in as protection a review authorized by a court, that it can not target First Amendment activities, and that every six months the Dept. of Justice must tell Congress how many times this provision has been used. Section 215 applies to all businesses. Finally, Prof. Dinh discussed Section 218, where the reasonableness clause applies to FISA even when you don’t need a warrant.
He then concluded by stating that this is a profoundly important debate.
There were four questions from the audience, the first one on non-citizens’ rights. Prof. Dinh replied that immigration law applies to all non-citizens, and that non-citizens in US soil should be granted constitutional protections. US citizens abroad have all the rights as when being in the USA, not foreigners abroad. As to the detention of enemy combatants in Guantanamo (which are under Dept of Defense jurisdiction), it is under review by two judges.
Question 2 pertained to Section 213 regarding drug seizures but not terrorism, and whether should it be made permanent? Prof. Dinh wants it permanent, and to tighten its provisions, and also said that a lot of the brouhaha over the Patriot act has come about because it has made people realize how much power the government has. The questions he asked during the writing of the Act were,
- Is it operationally necessary
- Is it wholy consistent with the Constitution
- What unintended consequences can be mitigated
all within our commitment to liberty.
A man who stated he’s a criminal lawyer asked a very lengthy question, which he started by saying he was concerned by the rapid drafting of the legislation. He saw the want to access libraries and use something other than judicial review as an attack on the Warren Court and serving conservatives and neoconservatives’ purposes. Prof. Dinh explained the derivation and process by which the Patriot Act was formed. The process was quick and deliberate because after 9-11 it was “the only game in town”, and everybody wanted to get it done, and to get it done right. The name came as a compromise; the PA was first called the Anti-Terrorism Act of 2001, while Sen. Lahey of the Senate Judiciary Committee was developing a USA act, and another senator (sorry I missed the name in my notes) was working on the PATRIOT Act*. The Senate version was led by Democrats — the Democrats had majority.
Prof. remarked that terrorism is a crime and it makes no sense to draw an artificial wall between terrorism and crime.
As to the preconceived aspect of the question, he stated that some ideas were pre-existing and had been proposed under Janet Reno, but hadn’t passed due to opposition from conservatives.
The terrorism investigation’s deliberate strategy is to interdict and prosecute early, and that no one has a constitutional right to violate the laws of this country.
The final question was from a student who had heard that the PA was breaking up families. Prof. Dinh stated that on January 2004 he had testified before Congress and before, during and after his testimony he had asked if there were any documented cases of this, and no one could come up with any. He then talked of Section 1011, a provision regarding civil liberties, and emphasized that liberty and safety are necessary and essential; the question is how to protect both.
The lecture ended at 5:45. It was worth attending.
* Rick Ballard tells us (in Roger L Simon’s blog) the acronym stands for, the `Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001′. My notetaking was not up to that many words in an acronym.