In late 2001, in response to the terrorist attacks of 9/11, the Bush administration proposed the USA Patriot Act, which gave law enforcement agencies expanded surveillance and intelligence-gathering powers. Congress overwhelmingly approved the Patriot Act on the condition that most provisions of the act would expire in 2005. President Bush now wants all provisions of the act extended. Should they be? Or are the provisions dangerous and unnecessary infringements on our civil liberties? Peter Robinson speaks with Jenny Martinez and John Yoo.
Peter Robinson: Today on Uncommon Knowledge: how should a patriot act toward the Patriot Act?
Announcer: Funding for this program is provided by the John M. Olin Foundation.
Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson. Our show today: should the Patriot Act be renewed? In late 2001 in response to the terrorist attacks of 9/11, the Bush Administration proposed the USA Patriot Act. That's an acronym for the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. The Patriot Act passed Congress overwhelmingly but on condition that most provisions in the Act expire or sunset in 2005. Now that 2005 is here, President Bush wants all provisions of the Act extended. Should they be? Or do some provisions represent dangerous and unnecessary infringements of our civil liberties.
Joining us today, two guests. Jenny Martinez is a professor of law at Stanford University. John Yoo is a professor of law at the University of California at Berkeley and a former Deputy Assistant Attorney General in the Bush Department of Justice.
Title: Give Me Civil Liberties or Give Me…Safety?
Peter Robinson: Former Attorney General of the United States and John Yoo's old boss, John Ashcroft. "Some people think that every time there's a law that freedom somehow shrinks. I submit to you that the law is what enshrines freedom. It doesn't undercut freedom when it's properly done." Does the Patriot Act undercut our freedoms or enshrine them? Jenny?
Jenny Martinez: It undercuts our freedoms and it needs to be fixed.
Peter Robinson: John?
John Yoo: I don't think it undercuts them. I don't it enshrines the freedoms either but it expands government's powers. That's true. That's got to be clear.
Peter Robinson: All right. Before we turn to specific provisions of the Patriot Act, let's talk about the tension between defending the nation and civil liberties as a matter of principle. Let's go back 140 years. Civil War, Abraham Lincoln, "Suspended habeas corpus detains more than 13,000 people without bringing them to trial or even producing evidence against them. Lincoln's defense, that preserving habeas corpus would have meant, Lincoln's so good to quote isn't he, that he would have allowed "all the laws but one to go unexecuted and the government itself to go to pieces lest that one be violated." Now we begin our discussion of the Patriot Act by asking whether Lincoln did right. What do you think?
Jenny Martinez: Well, it's hard to second guess President Lincoln but it's also important to keep in context what he did. He did suspend habeas but he afterwards went back to Congress for authorization to do that and there were some important limits on the suspension of habeas. There were time limits so if persons weren't indicted by a grand jury by the end of that grand jury's term, they had to be released. So they--there wasn't indefinite detention.
Peter Robinson: So you--what I'm trying to tease out here is your fundamental view of civil liberties. Are they pretty close to absolute? Are they sacrosanct in your judgment? Or can they be expanded and contracted as the defense of the country requires?
Jenny Martinez: Well, I think as it's been famously said the Constitution isn't a suicide pact and so there are circumstances where we need to strike a balance between individual liberty and the interest of the community as a whole. I think that's hard to dispute.
Peter Robinson: You don't disagree with a word of that?
John Yoo: No. I think civil liberties--clearly if you look at it historically have expanded and contracted depending on whether we're in war time and what's necessary to win the war. I'd also say if you compare this period of history to previous periods like the Civil War or Quasi War with France or World War II with President Roosevelt, we're nowhere near the civil liberty restrictions that existed during those previous wars. And so it is true that--I very much agree with Jenny that civil liberties contracts and expands but in this particular war, the war on terrorism, I don't think we're anywhere near something serious as we saw in these previous conflicts.
Peter Robinson: Okay. Let me ask you this last question before we turn to the Patriot Act itself. Judge Richard Posner argues that civil liberties and I'm quoting him now, "should be curtailed to the extent that the benefits in greater security outweigh the costs in reduced liberty," cost-benefit analysis, "All that can be reasonably asked of the responsible officials is that they weigh the costs as carefully as the benefits." Is that a nice tight statement of a standard that you'd be willing to apply to the Patriot Act?
Jenny Martinez: I'm not sure that's what the Constitution requires. The Constitution sometimes speaks in more absolute terms and the Constitution is designed to be a framework that will be applied even in circumstances where there is the most temptation to infringe on individual rights. And so I'm not sure that a simple cost-benefit analysis really is consistent with what the Constitution requires in terms of restrictions on the government.
Peter Robinson: She is now striking out on her own. After giving you something to agree with John…
Jenny Martinez: We got to disagree at some time.
Peter Robinson: You go with Posner here?
John Yoo: Yeah. And the problem is and I think this is the argument civil libertarians make is that we just don't accurately measure the cost of the civil liberties violation. So when you measure benefits against costs, it's very easy to see the benefits in wartime because they're immediate. The costs might be longer term and we can't measure them well. I think in this war actually I think we've thought a lot about it, a lot harder than previous conflicts about exactly what are the long-term costs of civil liberties of doing different things.
Peter Robinson: Let's turn to several of the most controversial provisions of the Patriot Act itself.
Title: FISA: It's Everywhere You Want To Be
Peter Robinson: Section 218, which amended the 1978 Foreign Intelligence Surveillance Act or FISA. You will now tell us how the law stood under FISA and then tell us what Section 218 of the Patriot Act did to FISA. Will you please?
John Yoo: Yeah and let me say before I do that I worked on this particular section but I'm not saying anything secret or classified about it. And I also was present at the case where this change was argued before a special FISA court, which we could talk about later. But before the Patriot Act, one got a FISA warrant, a Foreign Intelligence Surveillance Act warrant based on probable cause if someone was an agent of a foreign power.
Peter Robinson: Warrant to…
John Yoo: To conduct search, tap phones, read emails, bug people's residences, all in secret.
Peter Robinson: Right.
John Yoo: And usually based on classified information that someone was a spy. Now the law as it stood before required that the primary purpose of the surveillance was to gather what's called foreign intelligence information. The Patriot Act changed that language to significant purpose. And the reason for that is a very long complicated history but essentially the reason for that was because under the previous standard, the courts and the Justice Department across several different administrations built this famous wall we've heard about--the wall between foreign intelligence and domestic law enforcement. So, for example…
Peter Robinson: And they built that wall why?
John Yoo: Because they thought that this primary purpose language under the pre-Patriot Act standard required them to keep those two functions of our government separate. So to give you an example, if the government got a FISA warrant to surveil someone they thought might be a terrorist domestically, they could not share that information with the CIA or the NSA unless--except--unless they thought the guy was actually going to commit a crime.
Peter Robinson: Right.
John Yoo: And so that barrier which was criticized by pretty much everyone who's looked at 9/11 now, including the 9/11 Commission, was changed by this part of the Patriot Act--doesn't seem so obvious that it changes it--but that was the primary purpose of the change in the statute…
Peter Robinson: Of Section 218?
John Yoo: Of 218, was to get law enforcement and intelligence agencies to share information because as we saw in 9/11, terrorists cross our borders. There's no difference between domestic and foreign anymore.
Peter Robinson: Sweet reason--obvious change needed to be made. Correct?
Jenny Martinez: The problem is that I think that Section 218 was neither necessary nor sufficient to make that change. I think everyone would agree that it's important to break down the barriers between different agencies of the government that weren't sharing information before. But, for example, the 9/11 commission found that it wasn't defects or a lack of power in the law prior to 9/11 in terms of surveillance that caused the intelligence failures. It was a misunderstanding by the agencies involved of what powers they had. And the wall requirement is not something that the prior law actually required…
Peter Robinson: They misapplied the prior law?
John Yoo: Yeah. It's clear you could say well the original text of the statute didn't really require the law but not just the agencies but the district--federal district courts required the wall because of that provision of the statute. So after 9/11, you have to pull the wall down by changing that law--language in the statute. And I'll give you an example. This actually made a big difference in the case before 9/11 that could have made a difference. So you've heard about this case of Zacharias Moussaui. The guy was in Minnesota who the FBI found out, you know, was involved in 9/11 conspiracy because he wanted to learn how to fly planes but not land them. And when they caught him before 9/11, he had a laptop computer and we found out after 9/11 that laptop computer had plans about flying planes into things, using crop dusters and so on.
Peter Robinson: But the FBI did not…
John Yoo: They would not search his laptop.
Peter Robinson: Oh, they wouldn't search the laptop.
John Yoo: Because of this standard in the statute.
Peter Robinson: Okay. So what is your argument--that it was unnecessary, that they were simply misinterpreting the law as it already stood?
Jenny Martinez: What the 9/11 Commission found was that there was misinterpretation and misunderstanding of the powers that the government already had. And I think more importantly the law doesn't--the fact that now you can have these expanded powers to conduct searches and seizures independent of the sort of normal protections that you have for that doesn't mean that there's going to be communication among the different intelligence agencies or law enforcement.
Peter Robinson: How do we evaluate the ways in which this law has been used since it was enacted in 2001, Section 218?
Jenny Martinez: Well, that's a real big problem because the government has said in response to public congressional questions and response to requests from different groups that most of the information about how these laws are being used is classified, that there can't be public debate and evaluation of how well they're being used.
Peter Robinson: Department of Justice however has to reveal this information to at least a couple of committees in congress, right? That's the oversight…
Jenny Martinez: That's correct.
Peter Robinson: …structure.
Jenny Martinez: They do.
John Yoo: Right. This is really a fight about the senate committees and their jurisdiction because the Justice Department and the CIA and the NSA all report this information and how these powers are using the information, where it goes to the intelligence committees and it's classified and it's closed hearings. That's the way it's been ever since 1978. Now the Judiciary Committee wants to know that information too and they want to have it more public and, you know, the agencies are saying look, we've never done that. We're not required to under the statute.
Peter Robinson: I want to get to another couple of sections so let me ask--you're now not lawyers but you're members of the senate, let's say. Let's give you an esteemed position. Are you going to vote to extend Section 218 as it is, to amend and extend, or to permit it to expire?
Jenny Martinez: I would permit it to expire.
Peter Robinson: John?
John Yoo: I would vote to extend it as I think many Democratic senators will, including Senators Feinstein and Biden.
Peter Robinson: On to the Patriot Act, Section 213.
Title: Sneak Previews
Peter Robinson: Section 213, so-called "Sneak and Peek." Authorize the use of delayed notification search warrants, which allow the police to search and seize property from homes and businesses without telling occupants until later. Former U.S. Attorney and Congressman, Robert Barr, conservative in Congress, "The Justice Department often claims that the use of such warrants was common before. Courts however put specific checks on these warrants. They could only be authorized when notice would threaten life or safety, endanger evidence or incite flight from prosecution. The Patriot Act greatly expanded such justifications." Are you happy with 213?
Jenny Martinez: No, I'm not and I think it's representative…
Peter Robinson: Is that a fair statement of what's wrong with it?
Jenny Martinez: I think that is a fair statement and I think it's also relevant that an overwhelming majority of the House of Representatives, including some very conservative Republicans voted in an appropriations bill to change the Sneak and Peek warrant requirements because people on all ends of the political spectrum view it as a dramatic departure from…
Peter Robinson: Okay, now let me ask you--do they somehow object in principle to something that they thought was a delightful idea in 2001 or do they have specific evidence that it's being misused?
Jenny Martinez: Well, I think it goes back to the general problem with the Patriot Act, that there was inadequate time in Congress for consideration of some of its more controversial provisions, that it was passed on a rush schedule without the kind of normal House and Senate reports and debate that you would have with normal legislation, which means that some of them may not have thought it through before they voted for it the first time. And again, in terms of monitoring how exactly it's been used, it's another situation where we don't have a lot of public evidence about how it's being used. And so…
Peter Robinson: So the objection more or less--your objection, the objection in congress--is really to the--to Section 213 on its face? People don't know--people don't know how it's being used.
Jenny Martinez: I think it needs to be scaled back to be more in line with what had been the practice in the courts before the Patriot Act. So in terms of time limits for how long the government could keep the search secret, members of Congress want to restrict that to seven days with the possibility of extension.
Peter Robinson: John is giving us very nice reaction shots. He's looking puzzled. All right.
John Yoo: Well, I just think about the practicalities of this. Right. And this--I think this gets to one of the primary confusions about the war on terrorism is, is terrorism a crime or is it war? And you see a lot of people think many of these arguments are we should use the same standards we use for the criminal justice system and apply them to terrorism, which I think failed and we saw that on September 11th. And let me give you an example in this particular context. Yeah, we do want to give notification to people that they're being searched, that they've been subject to warrants. But do we want to do that with terrorists? Right. The practicality of it is don't we want to follow terrorists around for long periods of time without them knowing so we can find out who else they're connected with, the network…
Jenny Martinez: There's nothing in the law that limits it to terrorists.
John Yoo: The FISA Statute is limited to terrorists and spies. It doesn't apply to drug dealers, it doesn't apply to normal drug crimes, doesn't apply to garden variety federal crimes.
Jenny Martinez: Not all the sneak and peek stuff.
John Yoo: Yeah but there's other sneak and peek ones which are used in other contexts but which weren't created by the Patriot Act. The Patriot Act in amending FISA only applies to, you know, foreign terrorist organizations, agents of foreign powers, right. I mean, there's a list in the FISA Statute. Doesn't apply to all federal crimes.
Peter Robinson: Would you vote to amend?
John Yoo: No I would keep it the way it is.
Peter Robinson: You think it's fine the way it is?
John Yoo: Yeah, I think it's fine the way it is.
Peter Robinson: You would vote to amend or let it expire?
Jenny Martinez: I'd vote to amend.
Peter Robinson: You would. Okay, so it's important to be able to do some snooping frankly. You just want it done under stricter oversight.
Jenny Martinez: Absolutely.
Peter Robinson: Let's discuss one more controversial section of the Patriot Act.
Title: Checking Out the Library
Peter Robinson: Section 215. Prior to the Patriot Act, the government needed at least a warrant and probable cause to gain access to private records. Under the Patriot Act, third party holders of records, including libraries, holders of library records, financial, travel, video rental, telephone, medical records, can now be searched without the knowledge of the subject as long as the government can claim that it's preventing or pursuing terrorism. That's a fair summary of the way you understand Section 215 and what do you think about it?
Jenny Martinez: I think 215 is problematic because it doesn't require that there be any specific or articulable evidence that the individual whose records they're seeking has any connection to terrorism. So without making any kind of claim or showing that I have a connection to terrorism, they can go to my public library, they can get the records of the books I've taken out of the library or the books I've bought from a bookstore. They can go to my doctor's office and get my medical records as long as it's pursuant in some broad sense, to an investigation of terrorism or foreign intelligence with nothing at all to say that I have anything to do with terrorism.
Peter Robinson: Section 215 is an invitation for the FBI and others to engage in fishing expeditions. John?
John Yoo: Well, it does require that the search be relevant to terrorism and an investigation. It's not an open-ended…
Peter Robinson: As judged by whom?
John Yoo: By what's called the FISA court. It's a federal district court. They issue the warrants and they judge whether the warrant's applicable in any case and it has to be relevant to terrorism investigation, not, you know, let's just randomly search a hundred thousand people's records to see if any of them might be a terrorist. Now it's not the same as being a target or suspect but it is someone who's relevant to a terrorism investigation. The second thing that's so…
Jenny Martinez: It would require that the individual be relevant to the terrorist…
John Yoo: No, but the search has to be relevant to terrorist…
Peter Robinson: Can I ask--the FISA court, regular--so these folks--the judges who sit on that court are appointed by the President and confirmed by the senate in the usual manner.
John Yoo: Yes.
Peter Robinson: Do we have any statistics, gross statistics, even about ratio of warrants issued as against requests for warrants? Do we know anything…
John Yoo: Yes.
Peter Robinson: …that goes on in the FISA court?
John Yoo: Well, the FISA court is actually staffed by existing federal judges whose day job it is to just hear normal cases.
Peter Robinson: Oh, I see.
John Yoo: Yeah, so federal district judge in Washington, D.C. who's usually hearing criminal cases, civil cases, can be assigned to the FISA court and that's sort of their night job too.
Peter Robinson: I see.
John Yoo: Which is good because they bring to them therefore their experiences in other areas of criminal law. So…
Peter Robinson: So it's not as if you have a separate bench that…
John Yoo: No, you don't. They're all existing federal judges.
Peter Robinson: …lives in secret for twenty years or something like that.
John Yoo: And from what we know, the FISA court until 2002 had never rejected the government's request for a FISA warrant which is because instead what they would do is say you need to fix this--fix this and submit it again.
Peter Robinson: I see.
John Yoo: And actually this allowed the FISA court to exercise a lot of oversight over the way the Justice Department and the other agencies used FISA. So we actually have fairly good statistics. They are publicly known. So, you know, obviously after the Patriot Act, there's been a lot more warrants issued than there were before the Patriot Act which I think would be justified after the September 11 attacks. But this FISA court is very well known for being independent and being very tough on the Justice Department. And actually the only…
Peter Robinson: You grant that? That's the reputation of the FISA court?
Jenny Martinez: I think there's not enough public information for me to be able to say what the FISA court's really doing. I mean, Mr. Yoo's been there and I haven't.
Peter Robinson: Next, how does public sentiment bear on the debate over civil liberties versus national security?
Title: Hurts So Good?
Peter Robinson: One aspect of applying this Posner Standard of trying to weigh the costs and the benefits could be that you just have to. If you were the Attorney General, you just have to try to take into effect--into account rather--the political outcome from some of these measures. So it could very well be that Section 215, in some sense it does advance the war against terrorism but, on the other hand, the ACLU has been in a constant lather about it ever since it was enacted. Jenny's upset about it. It's very difficult to get enough information to satisfy Jenny Martinez, the ACLU and large segments of the public. So isn't there some sense in which you might almost want to argue look, that one hurts us more than it helps us?
John Yoo: Well, the librarians one is a good example. You know, so the ACLU got librarians to raise a big uproar. Turned out the Justice Department never sought a warrant under this section for a library at all. So there's a lot of…
Jenny Martinez: Well, that's what they said as of that time.
John Yoo: As of the date they did it, yeah.
Jenny Martinez: As of the date they did it. And subsequent surveys have shown that some libraries say they have received such warrants.
John Yoo: Yeah, I don't know how that's possible.
Jenny Martinez: It's supposed to be secret.
John Yoo: Yeah, they're not allowed to say that.
Jenny Martinez: It's supposed to be secret but in any case…
John Yoo: You make a very important point is that sometimes we rely too much on the courts to be the check on what we do in civil liberties in wartime. And the point you're making and a very important point, is that the Executive Branch and the legislature can check themselves and check each other without involvement in the court. So an Attorney General who might be concerned about the Fourth Amendment issue and privacy rights might order that you not use the FISA powers and the Patriot Act powers as broadly as we can. And I think that's true of libraries. There has not been a lot of use of library--in libraries.
Jenny Martinez: We just don't know. Right. They're not telling us and if a library is served with a request, they're supposed to keep it secret. It's a crime for them to tell although I have seen survey data that shows that some of them have claimed to receive notices.
Peter Robinson: What's going on here is that the way this is all structured places an increased import--a quite dramatically increased importance on the oversight committees in the House and Senate. Is that not correct?
Jenny Martinez: Yes.
Peter Robinson: And so are you--is the ACLU--is somebody beating up on them? Is there any way for the public to satisfy itself that these men and women on these oversight committees are up to the job, that they're stepping up to the new importance of their position?
Jenny Martinez: I think one of the things in a democracy is you need to have the possibility of some public debate where it's not just a Senate Intelligence Committee sitting in closed session talking amongst itself, but where you have the ability for our representatives to have a public discussion.
John Yoo: I think that's a nice principle when you're not in a war. That's a principle that applies to all of the forms of legislation. Right. But in wartime and certainly during the Cold War, we made the judgment as a society that there's some things which are better kept secret now, may be publicly known later. Otherwise, we wouldn't have a CIA. We wouldn't have covert operations at all.
Peter Robinson: Let me because we're going to a broader debate, which I want to. But on Section 215, you'd let that one expire, you'd amend it, what would you do?
Jenny Martinez: I think it should be amended to require that there be some specific, articulable suspicion that the particular individual whose records are being seized has some connection to terrorism.
Peter Robinson: Sounds reasonable.
John Yoo: I would just make it that the documents or information you need are relevant to terrorism.
Peter Robinson: All right. So you would simply extend it in its current form?
John Yoo: Yes.
Peter Robinson: Finally, why John Yoo thinks both the right and the left have mischaracterized the Patriot Act.
Title: Double Fault
Peter Robinson: Quote, quoting John to you, "The Patriot Act debate reflects a mutual accommodation between left and right to avoid airing the challenges of the new terrorism. This debate may be reassuring but it reflects a politics as usual attitude that avoids the hard issues before us." John, explain yourself.
John Yoo: Well, I think both the right and the left exaggerate what the Patriot Act really does. Patriot Act is just a bunch of amendments to a law we've had for twenty-five years called FISA. And I think it's very reassuring to have this great national security versus civil liberties debate over the Patriot Act. But the Patriot Act doesn't do a lot more. I agree with Jenny it may be helpful in some circumstances to capture terrorists but it's not going to stop Al Qaeda. It's not going to stop Al Qaeda from trying to attack the United States. It might help us stop a plot maybe if we're lucky. But it's not going to really confront the fact that terrorism and Al Qaeda in particular, are very different and…
Peter Robinson: And the hard issues before us are?
John Yoo: We're fighting a non-state actor and we've used criminal justice methods before and they failed. How do we deal with them? We can't bomb their cities. We can't attack their populations. They don't have any armies.
Peter Robinson: Okay, now brace yourself for this next quotation. He has said in print, in the same article from which I've already quoted that we need--the legal community needs to address questions including targeted killings, collective sanctions, preventive detention and aggressive interrogations. Right?
John Yoo: Yeah.
Peter Robinson: And if we're serious about terrorism, not only the political system needs to step up and consider these things, but the legal field needs to get its arms around these as well. You agree?
Jenny Martinez: I agree absolutely and I think…
Peter Robinson: But your view would be he's a madman. What we need to do is make sure that he can't do those things. Right?
Jenny Martinez: Yeah, I think Congress has really dropped the ball in--well I don't know, I think John may be a madman but, you know, I think Congress has really dropped the ball in the broader legal community. I'm not sure I'd agree on that but congress in particular in addressing some of these issues like detention of individuals at Guantanomo or here in the United States about treatment and interrogation of detainees about military commissions where Congress just hasn't come in and done anything. And so I guess I agree…
John Yoo: These are all things that other countries have done to respond to terrorism. It's not like, you know, we made up a list of things.
Peter Robinson: And John is suggesting that the nation is at war and that the legal profession has its eyes closed. They're just not helping the way they ought to. Is that what--that's roughly your argument?
John Yoo: Yeah, and in fact, I think a lot of it is because we expect the courts to do it all for us. That's something we talked about in this show before. Everyone just--and Jenny's litigated some of these cases. I've been in some of them. We just expect the courts to decide it all for us and that precludes us from having a debate. But we as a society should make our decisions on each of these policy things we can do to beat terrorism, not wait for some judges to decide it for us.
Jenny Martinez: I think what the experience of other democracies like the UK and like Israel show is that you need all three branches of the government involved. You need the executive branch. You need your legislators and you need the courts.
Peter Robinson: Yeah, but what he's saying is--if I understand John--he's saying implicitly Jenny, look, next article you write for an academic journal, why don't you consider the pros and cons of targeted killings? How does that sit with you?
Jenny Martinez: You know, I've actually been in conferences where that's been discussed. But, for example, on the issue of preventive detention, I have written about it and I've argued in the courts about the legislation in other countries like the UK and Israel and preventive detention. And what I told the Supreme Court in the Padilla case was not you ought to make up all the rules on this but that unless Congress comes in and provides some guidelines, the executive branch shouldn't do this at all.
Peter Robinson: Final question--television, we have to tie it all up--President George W. Bush on February 14th, "To protect the American people, Congress must renew all provisions of the Patriot Act this year." Prediction now--will the president get what he wants? Jenny?
Jenny Martinez: No, I predict not.
Peter Robinson: They're going to amend it?
Jenny Martinez: I predict they'll make some amendments.
Peter Robinson: John?
John Yoo: I think functionally they'll keep it in place. There might be some cosmetic changes but I think it's going to be very hard for congressmen or senators to vote to restrict the Patriot Act's powers in the middle of a war.
Peter Robinson: Jenny Martinez, John Yoo, thank you very much.
Peter Robinson: I'm Peter Robinson for Uncommon Knowledge. Thanks for joining us.