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Transcripts

September 17, 2003

Host: Michael Grant
Topics:
· Patriot Act debate
In-Studio Guests:
Paul Charlton, United States Attorney for the District of Arizona;
Eleanor Eisenberg, Executive Director for the American Civil Liberties Union in Arizona

>> Michael: Tonight on "Horizon," after September 11th, Congress passed the USA Patriot Act to combat terrorism. But many feel parts of this legislation threaten our rights and freedoms. The Arizona U.S. Attorney hosts a forum about the controversial proposal. We'll hear what went on there and have guests to discuss issues on both sides of the Patriot Act. Good evening, I'm Michael Grant.

>>> You probably have heard of the Patriot Act, passed by Congress after the September 11th attacks to enable law enforcement to enhance their investigatory tools for combatting terrorism. The name, "USA Patriot Act" is actually an acronym. It stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." Federal officials say it is vital for national security. But Civil Libertarians say it erodes Americans' constitutional rights. Today a town hall meeting was held at the U.S. Attorney's office in Phoenix. It was an opportunity for panelists on both sides of the issue to speak and for a limited audience to present questions. A few of the major concerns of the Patriot Act were addressed. One of those is the extent to which law enforcement's authority is extended.

>>> Joining me now to talk about the Patriot Act, Paul Charlton, United States Attorney for the District of Arizona, and Eleanor Eisenberg, Executive Director for the American Civil Liberties Union in Arizona.

>>Paul Charlton: Laws that were in effect and have been in effect for many years, and we've been using those laws to fight Narco terrorists or Narco traffickers. For example, one of the controversial aspects of the Patriot Act deals with delayed notification, more commonly known as "sneak and peek warrants." These kinds of warrants, those warrants which allow for delayed notification of a search warrant having been executed have been in place and used by criminal investigators and prosecutors for years.

>> Michael: Now, I don't think the audience is going to know what "delayed notification" means. How is that different than a standard search warrant procedure?

>> Paul: That's a good question. The way it typically works out is that the prosecutors for a case will go to a judge and show a judge probable cause to believe that evidence of a crime is located at a residence. Typically what happens is that when they execute that search warrant, the individual whose place is being searched receives notice at that time that a search warrant has been executed at their house. There are times in Narco trafficking investigations, in drug trafficking investigations, when it is appropriate with the permission of the court to delay notification. What does that mean? That means you are enabled, you are authorized by the court to enter into that location, do your search, and leave, without giving notification to the individual whose house has been searched. Why is that important? Because many times these investigations are more important to see them continue on so that you understand the true breadth of a conspiracy than it would be to stop that investigation, which is what would happen if you gave notice immediately.

>> Michael: And the concern being that I would tell somebody else involved either in the terrorism group or in the La Cosa Nostra group if we were dealing with RICO? Is that concern as to the delayed notification?

>> Paul: Precisely. That's the model that was used in the Patriot Act to say that when it comes to terrorists investigations, we should be able to use the same tool that's available to us to investigate Lo Cosa Nostra or Narco traffickers. That's the tool that's been accepted by the courts. We should be able to use that tool here.

>> Michael: We've got two issues going on. I want to give you a chance to respond on both of them. First, is the Patriot Act merely extending to terrorist activities, national security matters, techniques that law enforcement has been using against criminal organizations for a long time?

>> Eleanor Eisenberg: Well, I think that the RICO analogy is a good one for a reason other than that which Paul cited, and that is how the breadth of that legislation has grown immensely. It was a piece of legislation that was designed to deal with racketeering, with criminal syndicates, and it has been used so much more broadly than that. And that is one of the problems with the USA Patriot Act. But there's still another difference, and that is one that we are truly, truly concerned about in terms of the constitution. The court that one goes to now, under the USA Patriot Act, to obtain a warrant, is not the usual court. It is a secret court. It is a court in which only the prosecutor goes. They don't have to establish probable cause any more. They simply have to say that they need the warrant because it's related to and relevant to an investigation, and the judge on the FISAC, Foreign Intelligence Surveillance Act Court, does not have the authority or discretion to say no. The USA Patriot Act says in plain language, the judge shall issue the requested warrant.

>> Michael: Let me clarify a point, though, the judges that sit on the FISAC court are otherwise district court judges; correct? That have been placed on this assignment. From that standpoint, they are not secret, they've been vetted by congress, for example.

>>Eleanor: They are operating in secret. So much of this government is operating in secret, and the courts are not an exception. The courts, when they sit as the FISAC court, they are exclusively within the executive branch of government. One of the most fundamental aspects of our jurisprudence and protection of our constitutional rights is that courts are open. You get a public trial.

>> Michael: Paul, it does sound a little -- to use a legal term of art, hinky, if the judge if he just stops in this information for the prosecutor and says well, okay, whatever you think?

>> Paul: Well, it does, phrased in that way it certainly would be a fair definition to call it hinky but that's not accurate. It's not accurate to say that you don't have to demonstrate probable cause. I want to begin this description by encouraging people -- it is important to read the law themselves. Now, what I'm going to say is that Eleanor wasn't exactly accurate in the way she described this law, but more importantly, it's going to be something that people need to look at themselves to make their own determination. Let me tell you why I think it wasn't exactly accurate. In order for a prosecutor to go to the foreign intelligence surveillance court and to obtain the warrant that Eleanor is talking about, you, the prosecutor, would have to demonstrate that there is probable cause to believe that the individual you wish to execute a search warrant on is an agent of a foreign power or is a member of a recognized terrorism organization. So you do need to demonstrate probable cause.

>> Michael: Well, it sounds to me, though, like you are demonstrating probable cause as to his identity, not necessarily as to a particular -- probable cause as to a particular act he is alleged to have committed.

>> Paul: That's an important distinction. The FISAC courts relate to identities of individuals because we're proving by probable cause to an independent judge, and I think the district court judges would object to the characterization that they were within the executive branch when they were acting as FISAC court judges, but nonetheless, you are demonstrating to a judge, that there is reason to believe, probable cause to believe that this individual is acting as a terrorist. What you are looking at is the individual, not the criminal act. It's also -- let me just finish.

>> Michael: Yeah, but I just heard a different thing there though. You said probable cause that he's acting as a terrorist. That sounds different as acting as an agent, just necessarily an agent of a foreign government.

>> Paul: That's true, they are two different things. You can be a spy working for a foreign country, or you can be here working for Al-Qaeda.

>> Michael: Or I could be an agent of a foreign government here on legitimate business or vacation or whatever. I guess I was probing for, do you need to demonstrate that a possible crime has been or may be is even being anticipated to be committed?

>>Paul: The demonstration on the espionage in the foreign person act is that you are committing acts of espionage. Acts of terrorism are something different and they are two different things. That's where the distinction lies. As to the prosecutor going ex parte to the judge, we do that in criminal proceedings as well to get a warrant.

>> Michael: Eleanor, I want to move to another subject in just a second. Your reaction to that? It sounds like some element of probable cause has to be demonstrated to the judge.

>>Eleanor: In my reading, Section 215 which allows the government -- a lot of people are talking about the libraries as now being fair game, and our records of the books that we've borrowed and where we're going on the Internet on the library computer. Very clearly Section 215 talks only about relevancy to an investigation. And shockingly, it goes on to say that for U.S. persons that that search warrant and the interest that the government has and law enforcement has in that person cannot be solely based on their First Amendment protective activities.

>> Michael: I want to get back to you on that, but in fact, we have a couple of clips from the town hall on that. That issue was discussed at the town hall. That issue being fears about the monitoring of library records.

>> Jeff Breinholt: They claim that the FBI is going to start systematically monitoring the reading habits of the American public, the American bibliofiles. I saw a pamphlet circulated before this thing. I noticed that that was one of the provisions that was on there. Let me just say, I think this fear assumes bad faith by American law enforcement. This notion that somehow we're collecting records for no other reason than to harass Americans overlooks the fact that there aren't any criminal statutes that provide for any sort of consequences based on what people read.

>>Eleanor Eisenberg (tape): If the investigation is taking place in the library, the librarian is not allowed to tell you that the FBI was there demanding your records. And I know of at least one situation where the librarian who reports to her board every month, can't tell them that they've been there. So she simply reports "This month the FBI did not visit us." And it's pretty clear that in the other months it did.

>> Michael: That would be a short report, I would tend to agree with you. Now, Eleanor, the concern here is that law enforcement is going to go roving through library records with no sort of -- they could look at my checkouts from the library with no other foundation or basis for doing so or requesting those records?

>> Eleanor: We try to limit this discussion to the USA Patriot Act, but I think that we have to recognize the environment in which it was passed, and the environment in which it is being enforced. And it is not unknown in this country for governments to engage in fishing expeditions. It's always in the time of national crisis that we encounter these kinds of measures, the McCarthy era, the interments of the Japanese, we have had abuses of government by government.

>> Michael: There is no doubt about that.

>> Eleanor: This is an invitation.

>> Michael: Is it your position or your understanding that the Patriot Act would allow that kind of search to occur without some sort of indication, again, to a FISAC judge, that here's the reason we want to look at Mike Frant's records?

>> Eleanor: I would suggest that relevant to an investigation, doesn't come anywhere near probable cause.

>> Michael: Paul?

>> Paul: Once again, it's important for people to read this act. Here's how the act reads. Before you get to a FISAC court, you have to demonstrate probable cause to believe that the individual is acting as a foreign agent, here to commit espionage, or working for a recognized terrorist organization. That's the first probable cause standard you have to show an independent Article 3 district court judge, before you can get to this aspect of the law that we're talking about right now. Once you've demonstrated that probable cause, then you are permitted to go to district court judge and say this evidence is relevant to an ongoing investigation. And what is also important to talk about, when you talk about this aspect of the law, is that nowhere, nowhere in the law does it mention libraries. It talks about records. Now, it's also important to recognize that when we talk about this law, we're only talking about foreign intelligence agents. It doesn't deal with general criminal matters. So even if the government were investigating an individual for a Title 18 violation, a regular criminal law, treason, you wouldn't be able to access this law. Even if you were a domestic terrorist, a domestic terrorist, you wouldn't be able to access this law. It's very narrowly tailored.

>> Paul: And it's important to note today that Attorney General John Ashcroft had a press conference in which he indicated that relevant to this concern, the government was going to release its records as to whether or not this provision is being used to access library records.

>> Michael: Paul, you can understand, can't you, the suspicion by many, after all the United States Constitution is the most solid evidence that people are in many respects, not supposed to trust their government. We busted the thing up all sorts of way to keep one branch from talking to another and that kind of thing. I take it you do have some understanding as to why Americans, I think, intuitively get a little suspicious about these sorts of powers to law enforcement.

>> Paul: Not only do I understand it but I embrace it. I think Eleanor Eisenberg and the ACLU are a necessary aspect to this debate. It is important to hear out individuals who have concerns about it. It is important to have discussions like the one we had today, but it is important that people understand exactly what it is the law deals with, so that they can make their own decisions.

>> Michael: Eleanor, on the other hand, though, I think sometimes people get a little whacky. It's okay to be paranoid because sometimes people are in fact out to get you.

>> Eleanor: That's true.

>> Michael: But many times they aren't, and I do have a hard time believing that the federal government would be all that interested in my reading habits if I'm not the agent of a foreign power. Is there any empiric evidence to indicate that some of these concerns articulated are in fact occurring in reality?

>>Eleanor: Just focusing again on the libraries, the University of Illinois did a study and that was back in 2002, over 158 libraries had been visited. We know that the FBI -- I don't know if the CIA was there, were all over university campuses checking student records. There are records that have heretofore been protected under federal law, but foreign students and you know, this raises issues, each issue rolls into the other about ethnic and racial and national origin profiling.

>> Michael: And we'll get to that in just a second.

>> Eleanor: So, again, I try really -- I do, to restrict myself to the language of the USA Patriot Act, but we really do have to look at it in context.

>> Michael: Here is a concern, though, and you tell me if you think it's legitimate. We have such free and open access to this country and certainly admit a whole lot of different people foreign students and others, that isn't it a little difficult from time to time to figure out exactly who is here for legitimate purposes and indeed, who might not be here for legitimate purposes? And those circumstances call for extraordinary means, perhaps, in addressing one from the other?

>> Eleanor: Well, I think that one of the constitutional standards that a law like the USA Patriot Act or the executive orders being issued by this administration, is whether or not they are actually meeting the compelling need that the government has to articulate before they can interfere with our fundamental rights. And I think there is a compelling need. There is a need for security, and with regard to immigrants in this country and seeking to come into this country. But let me give you an example. This is not from the USA Patriot Act, of where I think that the government is acting in a way that not only is not making us more secure, but in fact is counterproductive. The attorney general Ashcroft ordered men between the ages of 16 and 45, because apparently when you reach 46 you are no longer interested in being a terrorist, to show up. Those who come from certain middle eastern countries, to show up at the immigration service and register. When they got there, many of them were detained. Students were detained on immigration status issues for having dropped a single course and being out of status. These were the law-abiding people of the middle eastern community in the United States. They are the people whose help we need if we're going to find terrorist cells if they are here, and we just really angered them and alienated.

>> Michael: Another concern raised in today's town hall, the Patriot Act encourages people to spy on one another and that racial profiling is another result.

>> Deborah Euler-Ajay: The Patriot Act 1 was passed like that [ snaps fingers ] in immediate response without due deliberation and reflection and without time. It has bred quickly, a culture of spying. It has encouraged -- it does encourage officially and unofficially people to spy on each other, both in terms of work and individually on your neighbors, on your co-workers, at the libraries, at public meetings, through utility workers, through records, et cetera, et cetera. It has also led to -- immediately led to a tremendous amount of profiling, racial, ethnic, religious, which have been used in some dreadful, dreadful ways, and I truly fear that the worst is yet to come.

>>Steve Twist: But if there is a culture of spying, what drives it isn't the government, what drives it is people's concern about not being a victim of a horrible crime.

>> Michael: How does the Patriot Act encourage Americans to spy on each other?

>> Paul: That's a question you have to ask Eleanor. I don't believe it does encourage people to spy on one another. I think, again, that one of the important aspects that everybody has to avoid is that kind of hyperbole. If you believe that the Patriot Act encourages people to spy on one another, then it probably isn't going to do much good for to you read the law and try to understand what it really says, because you need to come at this issue with a perspective of wanting to learn about the law. You need to come from a perspective of trying to understand what it is the law tries to do. And in doing so, it is important to see, for example, Eleanor Eisenberg's web site, the Department of Justice's web site, but the kind of statements such as this law encourages citizens to spy on one another, as it relates to the Patriot Act, I don't think it's helpful to a meaningful discussion on the debate.

>> Michael: One of the drifts that I got from the comment there was that it was encouraging, for example, record keepers to spy on you, librarians, for example, we were just talking about. We mentioned public utility workers, I suppose that might be records kept in that fashion. Does it encourage that in some way? You are using those people to a certain extent as agents, are you not?

>>Paul: I love that example, because I think the most vociferous opponents to the Patriot Act are the librarians. They would be the first to tell you that they are not going to spy on individuals who check out books at their library. So if that's an example, and it's a good example for the government, because those folks are not going to be encouraged to spy.

>> Michael: Eleanor, are we into hyperbole here?

>>Eleanor: I think not. I think we're talking about the real world. I'm very, very grateful that "TIPS" program was not approved. You may remember that the Department of Justice under John Ashcroft asked to implement a program called "TIPS" through which the cable guy, the dentist, the sales woman, would, if they noted anything suspicious, and that was sort of undefined, would call a number to report it. I'm so grateful that was rejected by this congress. And in fact, there was an intrepid investigative journalist who joined the group and got the phone number and maybe a secret decoder ring, who knows, and when he called the number, he found that he was calling "America's Most Wanted," and that the FBI had requested that they take their calls.

>> Michael: Racial profiling, I wanted to -- let me touch on racial profiling really quickly. Is it racial profiling or are we zeroing in on people more likely than others, perhaps, to be appropriate targets of investigations in relation to national security matters?

>> Eleanor: Well, there is something in logic called the tautology. Because all of the people who were flying the planes on 9/11 were middle eastern men between the ages of 16 and 45, you cannot conclude that all middle eastern men between the ages of 16 and 45 have the propensity to fly planes into buildings.

>> Michael: Absolutely.

>> Eleanor: And it's that concern, and it has been racial, national origin, ethnic and in fact religious profiling.

>> Michael: Let me ask you this, though. Is it more likely, though, that they might be involved, then, say, Swedish people?

>> Eleanor: That may be, but in this country, we don't do that.

>> Michael: All right. Eleanor Eisenberg, a half an hour goes fast. I appreciate your input. Paul Charlton, good to see you again.

>>> For transcripts of this program and other information about "Horizon," please check out our web site, www.kaet.asu.edu, click on "Horizon" and follow the links. Here's a look at what's coming up tomorrow on "Horizon".

>> Reporter: Where will the Valley be in the year 2012? Will we be a has-been or front runner. That was a topic of a recent conference that was addressed by Janet Napolitano who issued a call for action. Join us as we discuss the many different factors that will lead to the Valley's prosperity or floundering, Thursday at 7:00 on channel 8's "Horizon" program.

>> Michael: Then after "Horizon" tomorrow, Channel 8 presents "Horizonte," Arizona issues through an Hispanic lens. Governor Janet Napolitano will be a guest on the broadcast premiere. And of course on Friday join us for the Journalists' Roundtable edition of "Horizon." That's it for a Wednesday. I thank you very much for joining us. I'm Michael Grant. I hope you have a great one, good night.

 

 

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