- When Congress passed the Patriot Act in 2001, it granted
law enforcement authorities unprecedented surveillance powers. Lawmakers
approved the act not only because of the crisis of 9/11, but because it
was aimed primarily at foreign nationals.
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- Most Americans believed the powers would never be applied
to them, according to Georgetown University law professor David Cole. But
Cole says history shows that once the American government goes after foreigners,
it's only a matter of time before it turns the same laws on Americans.
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- A graduate of Yale Law School, Cole is a volunteer staff
attorney at the Center for Constitutional Rights and teaches at Georgetown
University Law Center alongside Patriot Act author Viet Dinh, who has called
Cole "the Clarence Darrow of his generation" for his defense
of underdogs.
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- Wired News spoke with Cole about his new book, Enemy
Aliens, and efforts to revise the Patriot Act.
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- Wired News: Critics have accused the government of overreaching
with the Patriot Act. The government in turn has accused critics of misinterpreting
and mischaracterizing the law to generate fear about it. Have critics overreacted?
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- David Cole: The Patriot Act has become a symbol for a
much broader range of concerns about this administration's abuse of civil
liberties in the war on terrorism. Many of those are real abuses that warrant
real concern, but don't stem specifically from the Patriot Act. Rather,
they stem from initiatives that the Bush administration undertook outside
the authority of the Patriot Act, such as the mass preventive detention
campaign that John Ashcroft undertook after Sept. 11, which to date has
led to over 5,000 foreign nationals being detained.
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- WN: In January, Attorney General John Ashcroft said that
neither the court system nor Congress had "reported a single example
of civil-liberties abuse under the Patriot Act, despite intense scrutiny."
Is this true?
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- Cole: I can give you one example that's exactly contrary
to what John Ashcroft says. In January, a federal district court in California,
in a case that I have argued -- Humanitarian Law Project v. Ashcroft --
declared unconstitutional a provision of the Patriot Act that makes it
a crime for people to provide expert advice or assistance to any organization
that has been designated a terrorist organization.
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- The Humanitarian Law Project is a human-rights organization
in California that had been providing advice and assistance to the Kurdistan
Workers Party in Turkey. The Kurdistan Workers Party seeks to further the
Kurds' interest. It does so through political and violent means. The Humanitarian
Law Project was seeking to encourage the Kurdish group to pursue the rights
of the Kurds through lawful means by giving them expert advice and assistance
on human-rights advocacy. Even though the intent of our client was to discourage
the use of violence and encourage the use of peaceful means to resolve
their disputes, the Patriot Act makes no distinction between advocacy of
human rights and advocacy of terrorism.
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- WN: From a civil-liberties perspective, which Patriot
Act provisions represent the most egregious violations?
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- Cole: The provision that authorizes the government to
freeze an organization's and individual's assets on the basis of secret
evidence that they have no opportunity to confront or rebut (is one example).
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- But the immigration provisions are the most troubling
provisions. Sections 411 and 412 give the government power to deny entry
to foreign nationals based on pure speech and to deport foreigners, including
permanent residents, based on innocent association with any group that
the attorney general doesn't like and puts on a blacklist. They allow the
attorney general to lock up foreigners without charges and without making
a showing to a court that they are dangerous or a risk of flight.
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- Section 218 removes the probable cause requirement for
wiretaps and searches whenever the government has a significant foreign
intelligence interest in a criminal investigation. It is one of the most
questionable provisions in the act constitutionally, and is very likely
to be challenged when the government seeks to use evidence obtained in
one of these wiretaps. But thus far we haven't got there.
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- The libraries provision (Section 215) gives the government
the power to get records from any business without showing that the suspect
is a terrorist, a criminal or even a foreign agent.
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- And the "sneak and peek" provision, which allows
the government to delay notification to homeowners of searches -- to engage
in secret searches whenever the government says that prior notice would
undermine the criminal investigation, which they're going to be able to
say in every case.
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- WN: Viet Dinh, the main author of the Patriot Act, said
Section 215 simply grants law enforcement the same type of investigative
powers in national security cases that it already has in criminal cases.
Is that an accurate summation of the section?
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- Cole: I don't think so. There are several differences
between that pre-existing authority and the Section 215 authority. Under
the criminal side, you have to have a pending criminal investigation that
is serious enough to empanel a grand jury of the citizenry. Under Section
215, you don't have to have any grand jury in place at all. You only have
to have a foreign intelligence investigation, which can be as minimal as
having an individual that is an employee of an organization whose membership
is more than 50 percent foreign. You can have an investigation into a British
national who is living here simply on the basis that he is an employee
of Amnesty International. You don't have to make any showing that he's
a terrorist, you don't have to make any showing that Amnesty International
is a terrorist organization.
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- The second significant difference between the criminal
authority and the authority under Section 215 is that the subpoena under
the criminal authority is not a secret. The individual can go to the press
and complain about it, as Monica Lewinsky and Kramer Books did when the
government sought President Clinton's or Monica Lewinsky's book-purchasing
records. That means there's going to be a level of public scrutiny that
will deter abuse.
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- Under Section 215, the entity to whom the request is
made is barred by law from disclosing that to anyone other than the lawyer
who helps them respond to it. That gag order means that the government
investigators know in most cases this will never come to public light.
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- WN: You and Dinh are colleagues at Georgetown University.
How does that relationship work out, with you being opposed to certain
provisions of the act and him supporting it?
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- Cole: Viet and I are actually good friends. We disagree
deeply about many of these provisions, but we remain good friends. I don't
doubt Viet's or other people's good intentions in seeking to keep us safe,
but I believe they went too far in the Patriot Act. I don't hold anyone
personally responsible. The act was enacted at a time where it was very
difficult to have any reasoned debate about the civil liberties concerns.
This was six weeks after 9/11 in the heart of the anthrax scare. So it
was passed in a very rapid and unthinking way. Only one senator voted against
it. Yet today many of the senators who voted for it have sharply criticized
it.
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- WN: The government was criticized for not acting on information
it had before 9/11. Are we hitting them from both sides, saying they didn't
do enough before 9/11 and now they're doing too much?
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- Cole: If there are shortcomings and problems that were
identified that existed before 9/11, we needed to respond to them. But
I don't think the Patriot Act for the most part is a fix for the problems
that have been identified. One example is we didn't put sufficient resources
into analysis of data. We had lots of data but weren't analyzing it well.
The Patriot Act doesn't say 'Let's put more money into analysis.' It just
gives the government broader authority to collect more and more data, much
of which won't have anything to do with terrorism.
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- Another frequent criticism of pre-9/11 is the failure
to communicate between the various law enforcement and intelligence entities.
Almost nothing in the Patriot Act addresses that problem because primarily
it's a bureaucratic problem. It's not a problem of the law. We have many,
many entities and you need to respond by bureaucratic reform rather than
by expanding the government's power.
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- WN: Have you changed the way you live or conduct your
activities since the passage of the Patriot Act? Have you become more cautious
about the information you give out or otherwise become more careful about
leaving a trail?
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- Cole: No, I don't think so. I don't expect that I'm going
to be the target of these measures. One of the reasons that measures like
the Patriot Act do get through relatively easily is that many people believe
it's going to be somebody else who is going to feel the brunt. The fact
that it's somebody else's ox that is likely to be gored does not mean that
we shouldn't be concerned.
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- My book, Enemy Aliens, argues that the pattern of government
responses to national security is to first target foreign nationals and
then later to expand those tactics to Americans. It's only when they actually
get extended to broader and broader segments of the American citizenry
that the political process works to say, 'Wait a minute, you went too far.'
But my view is that if it's going too far when it affects all of our rights,
then we ought to stop it before it gets there.
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- WN: Is it possible to balance security and freedom?
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- Cole: Absolutely. In fact, I think in some instances,
civil liberties provisions and protections create incentives to do a more
effective job. For example, the probable-cause requirement of the Fourth
Amendment -- which requires you to have some objective suspicion of criminal
activity before you search somebody's home or take them into detention
-- requires the government to develop good evidence on individuals, to
do the hard work of investigation rather than to, in a lazy way, sweep
broadly and pick lots of people up without good reason. Those kinds of
measures have not proven to be very successful in identifying terrorists.
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- I think there are trade-offs between liberty and security,
and most of the rights in the Bill of Rights are not absolute. But our
Constitution is premised on the notion that you do have to balance liberty
and security.
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- WN: One of the most common responses to criticism of
government surveillance is: If you're not doing anything wrong, then you
don't have anything to fear from the government. What do you say to that?
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- Cole: Yeah, they said that to Martin Luther King Jr.,
who was one of the greatest national heroes and yet had his personal life
intruded upon and bugged for years by the FBI, including surveillance of
his private sexual relationships in his private hotel room in Washington,
D.C. At one point the FBI threatened to make (the surveillance) public
if he didn't turn down the Nobel Peace Prize. History shows that many,
many innocent people get caught up as targets of government surveillance
and government detention.
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- WN: An unlikely coalition of Republican and Democratic
legislators, as well as conservative and liberal organizations, has backed
legislation introduced last year -- the Security and Freedom Ensured Act
of 2003, or SAFE Act -- that would restore some checks and balance to the
Patriot Act. Would this be a reasonable compromise, rather than retiring
the Patriot Act?
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- Cole: Oh yeah, I think that the SAFE Act is a good start.
One of the problems with the SAFE Act is it doesn't address the immigration
provisions, the foreign-national provisions. But there will soon be introduced
a bill called the Civil Liberties Restoration Act, which would deal with
that side of the problem. I'm not of the view that the Patriot Act needs
to be repealed. I think that there are many provisions of the Patriot Act
that are non-controversial, there are many provisions that are helpful
and that we need to focus on the ones that are problematic.
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- WN: What is the likelihood that something like this would
be passed? The SAFE Act is stalled and not going anywhere.
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- Cole: It's hard to say. Most of the provisions of the
Patriot Act had been introduced prior to the Patriot Act (and) never went
anywhere, and then they did. The sunset clause of the Patriot Act surveillance
provisions means that Congress will have to confront those provisions.
I think that will be an opportunity to debate and put in place some of
the reforms suggested in the SAFE Act and the Civil Liberties Restoration
Act.
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- One year after 9/11, National Public Radio did a poll
and found that only 7 percent of Americans felt they had given up important
liberties in the war on terrorism. Two years after 9/11, NBC or CBS did
a very similar poll and they found that now 52 percent of Americans report
being concerned that their civil liberties are being infringed by the Bush
administration's war on terrorism. That's a huge shift.
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- You see that shift reflected in the fact that all of
the following people have criticized the Patriot Act: Al Gore, Newt Gingrich,
Howard Dean, Dick Armey, John Kerry and Bob Barr. It would be very hard
to come up with any issue on which those six people agree, and yet they
all agree that there are fundamental problems with the Patriot Act.
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- The real question is, when the next terrorist attack
occurs, are we going to remember the lessons that are now being learned
about whether we went too far, or is the public going to say we didn't
go far enough and pass Patriot Act II and more? This is a critical moment
for the public to engage on this issue about the proper balance between
liberty and security.
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- My hope is that the next time around, Congress will hear
from the civil liberties concerns before they pass the act. And that there
will be a recognition that while we need to give the government sufficient
authority to keep ourselves secure, we also need to ensure that we limit
the government's ability to render us more insecure by its own abuses directed
toward the citizenry. Only time will tell.
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