Steve Sachs Duke


Wednesday, May 14, 2003


What I've been up to: On May 10, U.S. Assistant Attorney General Viet Dinh, architect of the USA PATRIOT Act, visited Oxford to deliver a speech on "Law, Liberty, and the Terrorist Threat." The organizer of the event, Dr. Guglielmo Verdirame, kindly asked me to give 10 minutes of comments in response to begin the discussion. For those who are interested, I've posted my comments below.

I'd like to begin by thanking Assistant Attorney General Dinh for coming here and for sharing his time with us today, and also Dr. Verdirame for giving me the unexpected and deeply appreciated opportunity to begin this discussion with a few minutes of comments.

Many people have approached the issues that Professor Dinh has eloquently discussed as a zero-sum game, a direct and perpetual trade-off between civil liberties, on the one hand, and security from terrorism, on the other--in which any proposal to make us safe will necessarily infringe our liberties, and any principle that keeps us free must also expose us to danger. I think that picture is misleading, for three reasons.

The first is that liberty and security are not always zero-sum; it is perfectly possible to lose both at the same time. In my opinion, there is nothing that would be worse for civil liberties in the United States than another catastrophic terrorist attack. In the face of repeated attacks that made our tradition of constitutional principles and individual privacy seem unable to defend against terror, no restraints on government action could long endure. Regardless of one's views on the proper balance of liberty and security, terrorism is a threat to both--and those who care about civil liberties in the U.S. must hope that our government will use the full range of constitutional tools to fight it.

This brings us to the second reason why the trade-off is misleading: that many government policies could increase our security without placing any limits on our civil liberties. The choice by the Justice Department to give greater decision-making authority to its field offices is an example. Before September 11, a great deal of information was already in the possession of government agencies, but was not always in the right hands. True, hindsight is always 20/20. But had known members of Al Qaeda been put on the immigration watch list and prevented from entering the country; had the memo from the Phoenix field office about terrorists attending flight schools been given more credence; had any of a number of pieces to the puzzle been assembled in time, the U.S. government might have been able to act. When we are asked to give the government additional powers to fight terrorism, we must do it with the assurance that they are making the most effective use of tools that they already have.

And there is a third reason why the trade-off is misleading, namely that it is possible to place limits on our crime-fighting tactics--to safeguard our civil liberties--without in any way substantially compromising our security.

Consider a few of the changes made to what the Bush Administration proposed after September 11 before the PATRIOT Act was enacted in October.

First, the administration's proposal would have created a unilateral, unreviewable power of the Attorney General to classify any immigrant as a suspected terrorist and to keep him or her in custody forever. Instead, Congress required that no immigrant could be held more than seven days before being placed in deportation proceedings or charged with a crime.

Second, under the original proposal, private information obtained in grand jury proceedings could have been shared with any officer or employee of the executive branch--from the Attorney General down to your local postman. Congress sensibly narrowed that provision to law enforcement personnel working in their official capacity.

Third, the administration, through "administrative subpoenas," would have allowed the Attorney General, on his own authority, to require business such as bookstores, libraries, and Internet Service Providers to produce "any tangible things" (books, records, papers, documents, etc.) that he finds relevant to a foreign intelligence investigation. Instead, the Patriot Act requires that this authority can only be granted through a court order, that it must be limited to anti-terrorism or counterintelligence, and that it cannot be based solely on the targeted person's exercise of First Amendment freedoms.

Fourth, and most importantly, Congress added a four-year sunset provision, which required it to revisit these issues by 2006 and to reauthorize many of the Patriot Act's most aggressive provisions. Like the changes I've mentioned thus far, the sunset does little to curb our ability to investigate and prevent terrorism--none of the tools in the government's toolbox are taken away. But a sunset provision can act as a deterrent to abuse, because it forces Congress to decide whether the provisions have done more good than harm. And if we want the government to use every Constitutional means to fight terrorism--if we want them to push the envelope a little--then we should also want Congress to exercise a very active oversight. Liberty and security are not zero-sum--and sensible limits like the sunset will help us to preserve both.

Unfortunately, not everyone sees it that way. As an article in yesterday's New York Times reveals, it was just two days ago that an attempt to repeal the sunset provision was beaten back in the Senate. According to the Times, the proposal by Senator Orrin Hatch was supported by Justice Department officials who sought to have the provision removed.

So if I could abuse my position of going first, and suggest a question to the Assistant Attorney General for the discussion period, I'm wondering--is it true that the Justice Department supports a repeal of the Patriot Act's sunset provisions, and if so, why is it necessary that these provisions be made permanent instead of simply subject to regular four-year review?

Because when that review does come, there are a number of provisions that Congress should examine very carefully. As I said before, we want the government to fight terrorism with every Constitutional means; but we also want it to fight terrorism with every Constitutional means.

Our tactics against terrorism should at the very least provide basic safeguards against abuse. In May 2002, the secretive Foreign Intelligence Surveillance Court released a rare public opinion complaining of false or misleading statements in more than 75 different FBI applications for anti-terrorism searches and wiretaps. Yet the Patriot Act does its best to reduce judicial oversight of the executive branch.

In the case of administrative subpoenas, it's true that the Act requires a court order before requesting documents. But under the standards set out by the law--lower than probable cause, or even reasonable suspicion to believe that a crime's been committed--the court has no meaningful opportunity to reject an application.

Similarly, although the act requires immigrants detained as "suspected terrorists" to be charged or put in deportation hearings after seven days, it also allows the Attorney General to keep the immigrants in custody, regardless of any relief from deportation that a court might have granted.1

This resistance to judicial oversight is not just found in the Patriot Act; since September 11, the administration has consistently tried to reduce the influence of courts and the public over executive actions. Despite two federal court rulings (PDF 1, PDF 2), alleged 'dirty bomber' and U.S. citizen Jose Padilla has been kept incommunicado in a naval brig for months, on what a federal judge described as "gossamer speculation" that allowing him access to his court-appointed lawyer would endanger national security. The government has also conducted whole classes of deportation hearings in secret, refusing access to public and press.

And the indications on the future of civil liberties don't look any better. This February, the press obtained a leaked Justice Department draft of the "Domestic Security Enhancement Act" (PDF, text), also known as "Son of Patriot," "Bride of Patriot," or just "Patriot II." Now, I should say, in the interest of fairness, that this document is only a draft. It has not yet been introduced in Congress, and would have to go through several stages of review before being proposed by the administration. Even so, it's quite clear that the ideas it contains are floating around the Justice Department, and some of them are quite worrying.

For instance, Patriot II would codify into law the controversial practice of secret arrests--detaining individuals for months on immigration violations or material witness warrants without releasing their names to the public. The government claims that releasing the names would expose the investigators' methods and endanger national security. But not even the Justice Department believes this holds true for every detainee. In the case of Jose Padilla, for example, Attorney General Ashcroft held a press conference from Moscow to announce his arrest.

Last August, a federal court in Washington ruled (PDF) that each detainee has to be considered on a case-by-case basis; there cannot be a categorical decision against releasing any names at all. Under Patriot II, however, the government could arrest immigrants in secrecy and prohibit any federal agency from revealing their identities to the public.

And this just one provision of the bill. Patriot II would also give the Attorney General the power to summarily deport legal immigrants suspected of terrorism, even if they have not committed any crime. It would let the government strip native-born Americans of their citizenship--rendering them stateless and liable to be deported--if they support the lawful activities of what the government has designated a terrorist organization.2 It would provide immunity from prosecution for federal agents who break into people's homes, set up illegal wiretaps, and violate basic Fourth Amendment protections--even if they know that what they're doing is against the law--so long as they were following orders from the President or Attorney General.

Now, it's hard to see how some of these provisions would help us fight terrorism. For instance, courts already have the power to deport immigrants who are agents of terrorist organizations; why does this decision need to be in the hands of the Attorney General? Yet there would be no sunset for Patriot II; its drastic changes to the law would be permanent.

I'll say again, this is only a draft document, and doesn't necessarily represent the final thinking of the administration. But to those who are concerned by these provisions, the fact that it's a draft is only comforting because we think that the provisions might not get introduced. This brings me to my second question to the assistant attorney general: are there any provisions of Patriot II that the government has rejected, and decided not to put before Congress? Or are all of them still considered to be acceptable even after three months of public outcry?

If so, I think there's good reason to be concerned. Even where proposals, such as Patriot II, would require Congressional approval, that doesn't always imply meaningful Congressional oversight. Allow me to read a short excerpt from last Friday's New York Times:

"The Bush administration and leading Senate Republicans sought today to give the [C.I.A.] and the Pentagon far-reaching new powers to demand personal and financial records on people in the United States as part of foreign intelligence and terrorism operations...

"The proposal, which was beaten back, would have given the C.I.A. and the military the authority to issue administrative subpoenas--known as 'national security letters'--requiring Internet providers, credit card companies, libraries and a range of other organizations to produce materials like phone records, bank transactions and e-mail logs. That authority now rests largely with the Federal Bureau of Investigation, and the subpoenas do not require court approval.

"The surprise proposal was tucked into a broader intelligence authorization bill now pending before Congress. It set off fierce debate today in a closed-door meeting of the Senate Intelligence Committee... Democrats on the panel said they were stunned by the proposal because it appeared to expand significantly the role of the C.I.A. and the Pentagon in conducting domestic operations, despite a long history of tight restrictions..."

The article goes on to say that "A C.I.A. official said the provision had come from the Bush administration, after the White House's Office of Management and Budget signed off on it."

Now, regardless of the merits of this proposal, I think everyone can agree that it would represent a significant change to our system of domestic intelligence. Unlike the Justice Department, the CIA and the military are not subject to the Attorney General's guidelines for the proper use of information. And also unlike the Justice Department, they will never need to prove the information they gather to be admissible in a court of law. We can also rely on the experience of history: during the 1960s and 70s, the CIA and the military repeatedly engaged in covert surveillance of purely domestic targets. If we as a society are deciding to give this kind of power to agencies with a history of abusing it, at the very least it should be done in the full light of day--not hidden in an appropriations bill that is considered behind closed doors.

These comments have been focused on the laws of the U.S. But we must remember that this is not just an American issue. The United Kingdom faced similar questions in fighting the IRA, and today countries around the world must choose their tactics in combatting the threat of terrorism. Yet the U.S. has a special role to play, for if we make the wrong decisions, other societies--and not necessarily democratic ones--will undoubtedly cite our example.

It is therefore even more important that we be watchful; that that we do not allow the twin interests of liberty and security to be compromised; and that we do not treat our safety and our freedom as a zero-sum game.

1 As Dinh noted, an alien finally determined to be non-deportable will have to be released. However, my understanding is that if the original pretext for initiating deportation proceedings is stayed, the alien will be kept in custody.
2 I agree that supporting terrorist organizations--e.g., sending a check to Hamas, even if it'sostensibly to support their social programs--is wrong and should be illegal. I just don't think it should be cause for losing your citizenship, especially when child rapists and serial killers get to keep theirs.


The event as a whole was an interesting one; Dinh began his presentation by citing Burke and upholding a certain view of ordered liberty; in his view, the aim of the government's anti-terrorism efforts is not to sacrifice liberty for security, but to act so as to maximize liberty, recognizing that it cannot exist without secure foundations. More specifically, he described how the Justice Department's old list of priorities ("guns, gangs, and ganja") had to be radically revised in the light of 9/11, and some of the enforcement actions they had taken thus far. (One friend of mine asks why the priority list hadn't been revised already--isn't the government supposed to be ahead of the curve on things like terrorism, instead of lagging behind?)

The question-and-answer period was largely civil and candid. Dinh's answers to the two questions above may have left something to be desired (the DOJ acquiesced in Hatch's effort, but wasn't actively supporting it; the provisions of Patriot II are all still under review), but in general he answered more than I had expected him to.

I was fortunate to be able to spend some time with Dinh afterwards, and he's a very interesting guy. (Check out his bio if you haven't already.) His job seems to be at the intersection of the policymaking process and the political process, which is never an easy place to be. He noted that it had been a long time since he had had a good public discussion free of political rhetoric, and seemed quite ready to go back to the academic life. As a result, I wasn't too surprised when I read in today's L.A. Times that he submitted his resignation on Tuesday, two days after returning to D.C., and will be going back to teaching law at Georgetown. (Someone promptly emailed the organizer of the event, asking, "What did you do to him?") I wish him well.

UPDATE: A reader asks if Dinh's speech is available online as well. Unfortunately, it isn't. However, you can read a speech he gave before the District of Columbia bar in June 2002, as well as watch several of his C-SPAN appearances.

UPDATE II: The Justice Department press release concerning Dinh's resignation.




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