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CNN LIVE EVENT/SPECIAL

Privacy And Protection, The Patriot Act Debate

Aired September 7, 2003 - 18:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEOTAPE)
ANNOUNCER: This is a CNN special presentation.

UNIDENTIFIED MALE: This is obviously an act of war that's been committed on the United States of America.

ANNOUNCER: Springing from the tragedy of 9/11.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: Make no mistake, the United States will hunt down and punish those responsible for these cowardly acts.

ANNOUNCER: Designed to protect the innocent lives of America, a law passes, aimed at blowing the lid off terrorist schemes.

UNIDENTIFIED MALE: Never in our nation's history have we asked more from the men and women of law enforcement.

ANNOUNCER: But in the rush to protect a way of life, have we crossed the line?

UNIDENTIFIED MALE: The Patriot Act is not broad. The Patriot Act is narrow and focused.

UNIDENTIFIED MALE: Our No. 1 fight has to be to stop terrorism. We don't have to destroy the Constitution and the Bill of Rights in order to do it.

ANNOUNCER: With sophisticated tracking and wiretapping, the Patriot act muscles in on those who would harm the U.S.

UNIDENTIFIED MALE: We have to ask ourselves where will they stand. How far will our government go?

ANNOUNCER: Is Lady Liberty being shackled in the name homeland security. The Patriot Act, bad for terrorism, but is it good for America. Privacy And Protection, The Patriot Act Debate.

(END VIDEOTAPE)

KELLI ARENA, CNN ANCHOR: Good evening, I'm Kelli Arena. September 11, 2001, al Qaeda struck savage blows hitting American targets and attacking the country's sense of security. This is ground zero now. It is far difference from what many of us remember seeing almost two years ago, when hijackers crashed those planes in New York, Washington, and Pennsylvania. Those acts stunned and outraged America. Some of the loudest voices calling for action came from Capitol Hill. Within weeks lawmakers passed the Patriot Act, designed to give law enforcement much wider latitude in going after suspected terrorists. But the scope of the law leaves many people unsettled. They argue it goes too far.

In the next hour we look at the patriot act in depth. Is it making America safer. We want to hear your comments on the Patriot Act, e-mail us at patriotact@CNN.com.

The Patriot Act was passed overwhelmingly into Congress and signed into law by President Bush in late October of 2001. It contains strong measures to prevent, detect and prosecute terrorism. We start with voices from the front lines of the war on terror.

(BEGIN VIDEOTAPE)

ARENA: There are signs posted throughout this Skokie, Illinois library warning that government may get access to information they think is private. The warnings are just one way librarians who work are here are taking a stand against the Patriot Act.

CORLYN ANTHONY, SKOKIE LIBRARY DIR.: We're taking a very care of look at what kinds of records we keep. And the board adopted a policy we will not keep a record that associates an individual by name with a particular library service or material beyond what is absolutely needed for us to recover the material.

ARENA: Under section 215 of the act, federal agents can more easily access records, from not only libraries, but businesses and even doctors's offices during terror investigations. Without patrons ever knowing.

ROBERT MUELLER, FBI DIRECTOR: In times we go in and request information are those times when we believe that there is information that will be necessary to a particular investigation, and that is when we use that authority.

ARENA: Still, the ACLU has filed a suit against the government, alleging the provision is unconstitutional. And it's not the only section of the act that has come under fire.

LAURA MURPHY, ACLU, D.C. DIR: Sneak and peek warrants are when the government can come into your home, download the contents of the computer, rifle through your personal possessions, sometimes remove items and not tell you they've been there.

ARENA: Led by conservative Congressman Butch Otter, members of the House of Representatives recently voted not to fund the sneak and peek provision, prompting an all-out lobbying effort spearheaded by the attorney general.

John Ashcroft said this was a power the government had prior to the Patriot Act and that all the new law does is set legal boundaries. What's more, the nation's top law enforcers says the new powers are pivotal in making sure terrorists are not tipped off before they strike.

JOHN ASHCROFT, ATTORNEY GENERAL: What if there were a prepositioned bomb that was capable of being detonated by a remote detonation, say using a cell phone, and we were to learn that maybe if we could search certain hotel room, that we could learn the location of the bomb, and go and defuse it before it was detonated.

ARENA: That argument hasn't convinced everyone. Ann Arbor, Michigan is one of 150 cities, towns and counties recently passing resolutions against the Patriot Act. Arguing civil liberties are in jeopardy. But not all of the act is under assault.

MURPHY: Some of it made sense, putting more border patrol agents at the northern border, because the emphasis heretofore had been on the southern border, the Mexican border. That made sense. Hiring more translators made sense.

ARENA: The act allows for so-called roving wiretaps so investigators can tap each phone a person uses under one warrant. And it allows for more information sharing between intelligence agents and those working criminal cases.

Government officials express confidence critics can be swayed concerning the more controversial provisions. So much confidence, that they are already drafting what some are calling Patriot Two.

(END VIDEOTAPE)

ARENA: But, before the government is granted any more powers, critics and supporters say it is important for Americans to understand the powers that it already has. Critics say the law eliminates critical checks and balances, turning judges into mere rubber stampers instead of guardians to prevent abuse.

But one of the most controversial measures of the act allowing the so-called sneak and peek searches has been approved by judges for years. Joining our debate criminal defense attorney Mickey Sherman in Stanford, Connecticut. And in Boston, Wendy Murphy former federal prosecutor. Want to thank you for joining us.

WENDY MURPHY, FRM. FEDERAL PROSECUTOR: Great to be here.

ARENA: Mickey, let's start with you, is this act Constitutional?

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY: You know, for the most part it probably is. But I have some serious problems. First of all, the name itself, Kelli, the Patriot Act, I sound like Al Franken, to oppose it sounds like one is not a patriot. It's feel good legislation, in some degree. And the timing bothers me as well, six weeks after 9/11, you could have passed a law to make everyone wear blue hats if it made any argument to help find the terrorists.

The problem is, when you are looking into people's backgrounds. When you are looking into what library books they're reading. What's on the Internet, without any judge's approval whatsoever, and just basing it on... ARENA: Well, let me stop you right there, because the Patriot Act, and I've looked at it very closely, obviously, does allow for judges to look at everything, whether it's in a secret court, a FISA court, or whether you get a warrant, but all of those decisions that are made before law enforcement do go before a judge.

SHERMAN: If I'm not mistaken, 215 allows the FBI to do anything they want in terms of looking at what books you're taking out of the library, as long as they can make a case it's an authorized investigation.

ARENA: Right, make a case before a judge.

SHERMAN: It's an authorized investigation, not probable cause to believe that a crime is being committed. And that's where the gap is here. And I think we're giving up the, you know, our right to be safe from secure searches, from searches. There should be some reason other than somebody in the FBI thought it should be an authorized search. It could be a bad authorized search.

ARENA: Wendy, what's your response?

MURPHY: Well, you know, I think Mickey's right, after 9/11. So many of us were just terrified. We were begging the government to do anything at all to protect us. I felt that way, I've got five small children, I was terrified, I would have voted for anything. And I think, you have to be careful making big changes in the law with a high degree of emotion.

But I don't think that's what this law does, and frankly I think, one of the things the government was responding to was our outrage as a nation that this could have happened without somebody noticing, and that's where I think the government stepped up to the plate in the right way by passing this law, because really what the government was the saying, you're right, the red flags were there, the warning signs were all there, we knew something might happen, and we didn't have the right legal tools in place to put our intelligence in touch with our criminal justice officials and so on.

So, really, what they did is bring the law up to date in many instances, both in terms of allowing the sharing of information, but also just in very basic terms, getting up to speed with new cellular technology, and Internet technology and cyberspace. The bad guys around the world know how to take advantage of cyberspace, and we didn't have the tools in place to catch them before that horrible scene on 9/11.

So with regard to...

ARENA: Wendy, I'm sorry. You mentioned information sharing, which is one of the biggest provisions here, is knocking down those walls between intelligence and criminal investigations. It's not something that's gotten a lot of attention, but it seems to be the one thing that law enforcement makes the most of.

Mickey, tell me, is that something that concerns you? SERMAN: No. Actually, no. Like the ACLU's position, I agree with that. I think there had been sufficient information sharing, 9/11 may not have taken place. I think we all agree with that.

Whatever information one agency in the government has, they should be sharing with other agencies. Our problem is where are you getting that information and what type of information is. It is it stuff that basically is portraying people's rights to enjoy their life. What books they're reading. What they're looking on the Internet. There just has to be some supervision, there should not be unbridled authority by the FBI or any agency without some little bit of checks and balances.

ARENA: I'm going to stop you right there. We did promise an in- depth discussion, we will continue, but we have to just take a break right here. Stay with me, okay, both of you.

Not all U.S. cities eagerly jumped on the Patriot Act band wagon. In fact, some cities like Philadelphia passed resolutions condemning the law. They support the war on terrorism, but not at expense of what they call fundamental freedoms. Our Deborah Feyerick brings us Philadelphia story.

(BEGIN VIDEOTAPE)

DEBORAH FEYERICK, CNN CORRESPONDENT: Since the Patriot Act was created in the months after the 9/11 attacks, the attorney general has defended it as a necessary tool and a plan he describes to save American lives.

ASHCROFT: It closes gaping holes in our ability to investigate terrorists.

FEYERICK: The Patriot Act gives government sweeping powers to secretly investigate people, everything from intercepting e-mails to reviewing medical records. The nation's top justice official says it's working.

ASHCROFT: Our human sources of intelligence have doubled. Our counter terrorism investigations have doubled, over 18,000 subpoenas and search warrants have been issued.

FEYERICK: But, now the Patriot Act is facing increasing scrutiny. Opponents saying it violates individual rights.

MARWAN KRIEDIE, ARAB-AMERICAN ASSN.: All this has been open season in the Arab/American and Muslim community and it hasn't, in my view, done anything to protect us or stop a possible repeat of 9/11.

FEYERICK: Critics question whether the powers to snoop with little judicial oversight is too powerful and undermine the Constitution.

UNIDENTIFIED MALE: They've been abused number one, and may not be necessary to fight war on terrorism. FEYERICK: Republicans and Democrats in Congress both voted overwhelmingly in favor of the Patriot Act. Fast-forward two years, now more than 160 local and state governments in 28 states have passed resolutions denouncing it. Philadelphia so far the largest city to say no.

JANNIE BLACKWELL, PHILADELPHIA CITY COUNCIL: We can't arrest our way out of problems and we have to be careful and realistic about what we're doing when we eavesdrop and when we try to take await rights of people.

FEYERICK: The backlash against the Patriot Act is mainly in Democratically controlled cities. Two-thirds of the resolutions demand it be limited or abolished. Madison, Wisconsin restricts collecting library and records even if authorized by the federal government. Detroit urges people, not to spy on neighbors or co- workers. And in Philadelphia, police are not allowed to ask a persons immigation statue if stopped for a minor violation.

In creating the constitution one of the things the founding fathers struggled with was establishing a government that was strong enough to provide national security but not so strong as to trample the rights of its citizen.

So, the person whose e-mails were searched he doesn't even want to come forward.

Critics like Marwan Kreidie, say the Patriot Act has had a chilling effect, instead of being the eyes and ears for the FBI and police. Many Arab-Americans are afraid to say anything or do anything that could make fear the target of the investigation.

KRIEDIE: The fear that has been created with 9/11 and the Patriot Act has silenced the community. People don't go out. People don't talk. They're scared of being wiretapped. I mean, people won't say things on the phone.

FEYERICK: This fear of the Patriot Act is founded in part on what happened after 9/11. More than a thousand immigrants were jailed, labeled by the government as suspected terrorists or material witnesses. Eventually they were deported, almost all on immigration charges.

DAVID RUDOVSKY, UNIV. OF PENN. LAW SCHOOL: Essentially what the government's position is trust us. Give us all the broad new powers, we'll use them judiciously and we won't use them against you, we'll only use them against terrorists.

FEYERICK: The attorney general has been trying to rally support, visiting cities like Philadelphia, talking mainly to prosecutors and police. Democrat Russ Feingold, the only Senator to vote against the Patriot Act two years ago says.

RUSS FEINGOLD, (D) WISCONSIN: Our No. 1 fight has to be to stop terrorism. We don't have to destroy the Constitution and the Bill of Rights in order to do it. FEYERICK: Feingold says the resolutions against the Patrioc Act may embolden some members of Congress to reign in those powers. Deborah Feyerick, CNN, Philadelphia.

(END VIDEOTAPE)

ARENA: Coming up, is he the victim of hysteria following the September 11 attacks or a major terrorist fundraiser.

(BEGIN VIDEOTAPE)

NARLA AL-ARIAN, WIFE: I never thought this would happen here.

Al Arian's day job, a computer engineering professor, his spare time spent, urging support for the Palestinian cause.

ARENA: The government's case against a Florida professor accused of being a terrorist.

(END VIDEOTAPE)

(COMMERCIAL BREAK)

ARENA: The Patriot Act has led to a growing number of arrests of both immigrants and Americans, such as in the case of Sammy al Arian, a Florida University professor accused of funding terrorists.

Is the Palestinians arrest an indicator of an anti-Muslim atmosphere in the United States or simply evidence of the effectiveness of the legislation.

Here's our national correspondent, Susan Candiotti.

(BEGIN VIDEOTAPE)

N. AL-ARIAN: When it's been like him, I'm sorry to say that, but I'm like half dead since my husband left his home and his kids.

SUSAN CANDIOTTI, CNN NATIONAL CORRESPONDENT: In her first extensive broadcast interview since Sammy al Arian's arrest, his wife insists he's broken no laws.

N. AL-ARIAN: He did everything in public. He was everywhere, he wasn't hiding behind closed doors and conspiring. I never thought this would happen here.

CANDIOTTI: Al Arian's day job, a computer engineering professor, his spare time spent urging support for the Palestinian cause. In speeches like this, Sammy al Arian called for death to Israel.

SAMMY AL-ARIAN, ACCUSED OF BEING TERRORIST FUNDRAISER: I never meant death to individuals. I meant death to, or end of, I should say, end of occupation, oppression, the apartheid state that Israel has been as far as the Palestinians are concerned.

CANDIOTTI: After a ten-year investigation, the U.S. justice department paints a totally different picture of al Arian in a 50- count indictment.

ASHCROFT: Directed the audit of all moneys and property of the Palestinian Islamic Jihad throughout the world.

Palestinian Islamic Jihad is one of the most violent terrorist organizations in the world.

CANDIOTTI: Among the charges, that he was linked to a 1995 suicide bombing that claimed the life of American student Alyssa Flato.

LAILA AL-ARIAN, DAUGHTER: I find it ridiculous, he's my father, I know this, this whole portrayal -- it's convenient, because it scares people. Oh, this man had a double life, or he has two personalities. It's completely ridiculous.

N. AL-ARIAN: Let's prove it, and we will see. I do not believe that my husband sent one penny to support any terrorist act, any evil act, ever. I believe in that, I know my husband. He's a peaceful man.

L. AL-ARIAN: He has always taught us to be proud to be Americans. I mean, dinner conversations are him asking us to name the Supreme Court Justices or impressing us by naming every president from Washington to Bush.

S. AL-ARIAN: It's all about politics. It's all about politics.

CANDIOTTI: In this jailhouse note, he quotes American patriot Patrick Henry, "Give me liberty or give me death." Susan Candiotti, CNN, Tampa.

(END VIDEOTAPE)

ARENA: Al Arian was the focus of FBI investigations for nearly a decade, but he wasn't arrested until the Patriot Act passed. That gave federal agents access to years of wiretaps, faxes and overseas intelligence. Now, they say that information made their case.

I want to bring back our legal experts so they can weigh it. Former federal prosecutor, Wendy Murphy, is with us in Boston. And criminal defense attorney, Mickey Sherman in Stanford, Connecticut.

Wendy, let's start with you, the government touts this as its prime example of how the Patriot Act has helped it. Do you think that this is a good example?

MURPHY: Well, I think that it is. You know, there's no qustion that with the Patriot Act in place, the government had a lot more flexibility and freedom to use technology to gain access to intelligence information that previously they really couldn't use, at least not efficiently.

So, here's a guy who was quite smart and for many, many years was clearly engaged in financing the PIJ as we heard in the package. And that organization was engaged in terroristic behavior that led to the murders of many people. That's very serious terrorist conduct.

And it was difficult for us to get access to information, in part because he was hiding behind liberty, hiding behind academic freedom, hiding behind the first amendment and almost thumbing his nose at law enforcement's inability to do anything, in part because of our constitutional freedom.

And frankly, I think, this is a careful balance we're talking about here, the balance of the individual against the power of the state. And you never want to give the state too much power. It's not an American free way of life. But when the cost of too little government power is that a thriving terrorist organization is assisted by a professor in a university in this country and we can't do anything about it, then it's time for the law to change, and the right thing has happened.

If he's guilty of the things he's charged with it's very serious.

ARENA: All right, Mickey I'm going to give you -- I'm sorry, because we are on limit time. But Mickey, you heard his family. His family says, this is because he was outspoken and this is a case of law enforcement coming down on people who in his opinions that they simply do not like.

SHERMAN: And they're horrific opinions. For him to publicly declare death to Israel is incredibly offensive. But I don't think that's what they're prosecuting him for. I don't think that's what the evidence is. At least I'd like not to believe that.

The issue is, the evidence that they accumulated from him, which apparently was legal but couldn't be used against him is being grandfathered in by the Patriot Act so now it's legal evidence and that will be the subject of a motion to suppress the evidence. And I don't think a judge or jury is going to be happy with letting this man go on a technicality. If they have the goods.

And by goods, not by his way of thinking, not his speeches, but clear and convincing evidence that he was channeling money to terrorist forces, period.

ARENA: All right, Mickey Sherman, Wendy Murphy, we thank you, both for joining us.

MURPHY: Thank you.

ARENA: Well, when it comes to fighting terror in America, he is the administration's point man. Coming up, Attorney General John Ashcroft answers the tough questions.

(BEGIN VIDEO CLIP)

ASHCROFT: We need this as a tool to fight terror. So my view is that this is not something we should retreat on, this is something necessary to defend America.

ARENA: And why has the attorney general decided to take to the road to drum up support for the Patriot Act? We'll get some analysis from our political analyst, Bill Schneider.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

ARENA: Despite naysayers, Attorney General John Ashcroft staunchly defends the Patriot Act as a necessary tool in the war on terrorism. Earlier, I had the chance to sit down and talk with him, in depth about the highly controversial sneak and peek provisions of the law.

(BEGIN VIDEOTAPE)

ASHCROFT: The judicially supervised delayed notification of a search warrant is which is what we're talking about when the court says it's okay not to give notice that the search was undertaken immediately, because sometime you don't want to tip off the criminal. This has been part of our criminal justice system for decades, it's been approved by the courts, affirmed as a constitutional respectful of the civil liberties of Americans for decades.

What the Patriot Act did was to put restraints around it, to put a uniform set of conditions on it, so that it would be respectful of civil liberties. And those who thought the Patriot Act somehow expanded this authority or power in a way that changed significantly the civil liberties of Americans, they misinterpreted that.

The Patriot Act simply said that the safeguards that had been put in place by the circuit court of appeals which were different in various parts of the country should be made uniform.

ARENA: Given the move in Congress, is there any openness on the part of government to allow for a modification of that provision, which is causing a great deal of concern?

ASHCROFT: Delayed notification for search warrants is something that is judicially supervised so a federal judge has to supervise it, it happens when it can be done to save lives. It's the framework for doing it is now well established, has been established for decades in our system, but now supervised by the federal court system. We need this as a tool to fight terror. So my view is, this is not something we should retreat on, this is necessary to defend America.

ARENA: You have more than 150 communities that have adopted resolutions against the Patriot Act. You have three states that have adopted legislation against the patriot act. You yourself on a -- for lack of a better word -- roadshow going out to defend the Patriot Act. What is it that people aren't getting, then, in your estimation?

ASHCROFT: Well, I think they don't understand the Patriot Act's value in fighting terror and the fact that the Patriot Act didn't open up new ways in which the government has capacities against people, basically took resources that the government's been able to use against organized crime figures and drug figures, use those against terrorists, and it is important that this be explained and understood. And is basically, obviously, put -- took the wall down between agencies, so that we could exchange information, recently, we had an indictment against an individual alleged to have been ready to sell a shoulder-fired missile in the United States for use allegedly against U.S. targets.

That indictment was possible because we had the increased capacity to have information passed in the system that was provided by the Patriot Act. Not just passing of information between American agencies, but internationally.

And I believe every American knows what a shoulder-fired missile could do in terms of the devastation it could impose on a commercial airliner, for example.

We need these authorities. The Patriot Act took down this barrier about exchanging information. It gives us the ability to use the tools that had been available against organized crime and drug dealers against the terrorists. And it brings up to date. It allows us to tap digital phones in a way that we had previously been unable to attach and then serveille individuals terrorists who were using analague phones.

ARENA: While you are facing Congress on some of these issues, critics at the ACLU, you've also gone before Congress to talk about more increase in powers even a further increase, for example administrative subpoenas or long pretrial detentions. Is part of what you're doing right now in visiting this variety of states and communities laying the groundwork for support for even more powers under the Patriot Act or Patriot Act II?

ASHCROFT: First of all, I think that any time we learn that there are ways that we can effectively defend against terror that are consistent with the Constitution and civil liberties of the United States we ought to be thinking about doing it.

You mentioned administrative subpoenas. There are about 330 areas of the law in which federal authorities have the right to issue administrative subpoenas in order to get certain records. Terrorism is not one of them. I really believe that for most Americans defending against terror is somewhere in their priority list above number 330.

ARENA: Some of the most vocal critics of the Justice Department have suggested that the Patriot Act in effect removes much of the responsibility in the role of the judiciary system, much of the responsibility in other parts of government and puts an awful lot of power into the administration's hands. What do you say to those critics?

ASHCROFT: For us to operate under the Patriot Act, we virtually always have to have a federal judge's prior approval and this is even a more substantial guarantee of civil liberties than say a subpoena is in the normal criminal process because normally criminal processes using subpoenas are just grand jury subpoenas that don't come to the attention of a judge unless someone resists the subpoena. The issuance of the orders under the Patriot Act come from a federal judge who sees the thing in advance; and secondly, of course, you have this review of what's happened under the Patriot Act by the Congress twice a year. The last utterance that I know of out of the House Judiciary Committee having looked at the review, put it this way, there isn't any evidence of abuse here.

(END VIDEOTAPE)

ARENA: With terror around the world and at home on his mind, Ashcroft is taking his impassioned defense of the Patriot Act on the road. His unprecedented campaign is designed to counter the critics who argue the government does not need all that power to spy on the public but why is he stepping up his defense now?

Well, to help us sort this one out, I want to bring in CNN's Senior Political Analyst Bill Schneider. He joins me from Los Angeles. Bill, how are you?

BILL SCHNEIDER, CNN SR. POLITICAL ANALYST: All right thanks, Kelli.

ARENA: So why is the attorney general touring the country at this point?

SCHNEIDER: Kelli, I think the White House wants to test the waters on this issue. They want to see how big an issue it's likely to be in the upcoming campaign and there are some troubling signs.

The loudest criticism of the Patriot Act has always come from liberals but now a growing number of conservatives are speaking out in criticism. Over 300 members of Congress voted in July to cut off funding for certain surveillance warrants under the Patriot Act and that number included over 100 Republican members.

You know that makes the White House nervous so they sent Ashcroft out on, I guess you could call it a flack catching mission, they want to see how restless the natives are getting, if I may mix my metaphors.

ARENA: Well, how restless are the natives getting? How unpopular is the Patriot Act nationwide?

SCHNEIDER: You know surprisingly it's not very unpopular. Only 22 percent of Americans believe the Patriot Act goes too far in restricting people's civil liberties in order to fight terrorism. About the same number say it doesn't go far enough.

But there is evidence that the mood of the public has shifted since just after 9/11. Just four months after the attacks the public was split over whether the government should take steps to prevent additional acts of terrorism even if those acts violate people's civil liberties and that was the environment in which the Patriot Act was passed.

Two years after the attacks the mood of the public has shifted. Now, the public is firmly opposed to any measures that may violate civil liberties. It's that shift in move, more than any specific complaints about the Patriot Act, that's causing concern in the White House.

ARENA: Well, Bill, do you think that this venom that's out there could really be targeted at John Ashcroft and not really about the Patriot Act?

SCHNEIDER: Well, certainly a lot of it from the left is targeted at Ashcroft. Conservatives - for conservative critics it's really a matter of principle. They don't want to give the federal government too much power.

But for liberals, John Ashcroft really is a lightning rod. He was controversial when the president first picked him in 2001 and many Democrats opposed his confirmation because they thought his views were too extreme.

And, as attorney general, he's drawn a lot of criticism from Democrats and from liberals not just because of the war on terrorism but also because of his aggressive involvement in death penalty cases, because of his raids on medical marijuana providers and because of his opposition to gun controls.

You know one candidate, Democrat Howard Dean running for president he described John Ashcroft as perhaps the worst attorney general in history, worse even than John Mitchell who, Dean pointed out helpfully, was a convicted criminal.

You know attorneys general have always been lightning rods in American politics. Conservatives were hugely unhappy with Ramsey Clark back in the 1960s and liberals felt the same way about Edwin Meese in the 1980s. To survive in that job you have to have a pretty thick skin like say Janet Reno.

ARENA: All right, Bill Schneider, thank you very much for joining us.

SCHNEIDER: Sure.

ARENA: Coming up tracking terrorists in America.

(BEGIN VIDEO CLIP)

ALICE FISHER, FMR. JUSTICE DEPT. OFFICIAL: The Patriot Act brought us up to date with technology in the 21st century.

(END VIDEO CLIP)

ARENA: The use of modern technology in the war on terror.

(COMMERCIAL BREAK)

ARENA: While the Patriot Act has plenty of critics, law enforcement officials are not among them. The act gave investigators powers they had wanted long before September 11th and they say without it the new dictate should prevent terrorist acts rather than merely react to them would be impossible.

(BEGIN VIDEOTAPE)

ARENA (voice-over): Across the country in cities including Chicago, Houston, and New York, government sources tell CNN the FBI has as many as 300 people with suspected terror ties under active surveillance. Among those being watched some who trained, sources say, at terror camps in Afghanistan.

LARRY MEFFORD, FBI COUNTERTERRORISM CHIEF: Overwhelmingly it's our view that the majority of these individuals are involved in support activities perhaps fundraising or recruiting, things like that, not planning an attack; however, we're very tuned into that issue because certainly somebody could transition rapidly.

ARENA: Officials say the new powers under the Patriot Act, the ability to conduct secret searches or tap several phones at once under one warrant have been crucial in being able surveil these individuals and determine whether they are poised to commit a violent act.

FISHER: The Patriot Act brought us up to date with technology in the 21st century. It allowed us to get trap and trace warrants where we can track somebody that's online with the Internet and immediately identify who that person is and we used those tools in our cases.

ARENA: The FBI has yet to arrest the individuals under surveillance, opting instead to gather more information about their possible plans as prevention of terrorism is mission number one.

MEFFORD: We may develop beneficial intelligence information from watching that group operate and there may be benefit to allowing that operation to proceed. On the other hand, based on other factors it may be at the point where we need to interrupt that operation.

ARENA: There are individuals the government has taken action against with a lot of the credit, it says, going to new information sharing abilities under the Patriot Act, which broke down the legal obstacles between intelligence and law enforcement.

Officials cite these examples. In New York, Uzair Paracha was charged with trying to help an al Qaeda operative get into the United States.

Ohio truck driver Ayman Faris pled guilty after admitting to surveilling possible terror targets, including the Brooklyn Bridge for al Qaeda.

And, in Oregon, a group of men was indicted for conspiring to go to Afghanistan to fight against American troops after the September 11th attacks.

FISHER: We had intelligence that could be shared with law enforcement and they could connect the dots to identify those people that had come back to the United States and were here living among us.

ARENA: Still, critics charge the new powers given to law enforcement could be easily abused and say so much is done in secret that it's hard to determine if agents are stepping over the line.

(END VIDEOTAPE)

ARENA: But those on the front lines in the war on terror say if the average American had access to the intelligence showing just how dangerous al Qaeda is there would be no resistance to giving agents the necessary tools to fight it.

Well, Americans have endured many changes since 9/11 but is the public comfortable with secret searches and roving wiretaps and homeland spying and could the war on terror proceed without the Patriot Act?

Joining the debate are Justice Department Spokeswoman Barbara Comstock in Washington and Nadine Strossen, President of the American Civil Liberties Union in New York.

First, I'd like to thank you both for joining us to talk about this issue.

NADINE STROSSEN, PRESIDENT, ACLU: Thank you.

BARBARA COMSTOCK, JUSTICE DEPARTMENT SPOKESPERSON: Thank you, good to be here.

ARENA: Barbara, I'm going to start with you. What is the definition of terrorism under the Patriot Act?

COMSTOCK: Oh, well I could tell you on our website, www.lifeandliberty.gov, we have the entire Patriot Act and it does define domestic terrorism, international terrorism.

I'm sorry I don't have the precise quote here but what we're looking at when we are conducting the type of surveillance that you've looked at here tonight is people who have been involved with activities overseas, you know your training camps. They've been at training camps or they're here (unintelligible).

(CROSSTALK)

STROSSEN: (Unintelligible) isn't limited to that though and that's an excellent question because concerns that have been shared by conservatives as well as liberals, is that the definition of terrorism is so broad that it could extend to peaceful protesters.

COMSTOCK: No, it definitely does not.

STROSSEN: Including peaceful anti-abortion protesters.

COMSTOCK: No, I would - no, it does not (unintelligible)...

STROSSEN: Moreover, this is really important. The law is not even limited to terrorism. Most of its provisions apply to every kind of crime aside from terrorism and the attorney general has admitted to Congress that it has been used to go after ordinary criminals. I'm not condoning crime but the American public supported these extraordinary powers in the mistaken belief that it would only be applied to terrorism. That is not the case.

ARENA: OK, Barbara, say what you were going to say.

COMSTOCK: OK well, Kelli, it does not apply to peaceful protesters. It is - the domestic terrorism is very carefully defined. It has to include a criminal act and something that threatens, you know, mass destruction, kidnapping, assassination...

STROSSEN: And the lies of several individuals, right?

COMSTOCK: ...in changing government action so there is a very careful definition that would never apply to the type of peaceful action that Nadine was talking about.

STROSSEN: That's not true.

COMSTOCK: That is true.

STROSSEN: That is why conservatives oppose it is that they're afraid that it can be used in a future administration against anti- abortion demonstrators.

COMSTOCK: OK, well I would ask people to take a look.

STROSSEN: I agree, take a look at the language.

COMSTOCK: Take a look at the definition. That will be the best way to learn but, you know, it's there in the law but the points that conservatives oppose it, I mean there really are very few. I mean you had 357 members of Congress, 98 Senators. The people who have opposed it, such as Nadine, they opposed the 1996 anti-terrorism act.

STROSSEN: Yes and that is a very important point because this is not partisan criticism. It is criticism neutral that no matter who is president...

ARENA: OK, we know there's a lot of criticism and we know that it's coming from all ends of the spectrum but what I want to get to is that there has been a very healthy debate. We have people like Nadine saying, hey, the government is lying. We have the Justice Department saying, hey, the ACLU was lying.

Barbara, what is the most popular misconception that you'd like to clear up right now about the Patriot Act?

COMSTOCK: Well, I think actually one of the popular misconceptions that you've carefully shown tonight is that judges are involved at every step of the way. We have judges on the front end that have to - like in the case of any type of business records we get or anything that we do, action we take, a search, we have to go to a judge first and we have to tell them, you know, what the particular situation is. In the case of records it has to be an international terrorism case or espionage and we have to show we have a specific case and specific facts why we're asking for the information in that case.

ARENA: Nadine, I know that you're going to have a problem because you think that judges don't have enough authority here. Give us your version.

STROSSEN: It's not only me but it's also members of Congress that are supporting bipartisan legislation to, in fact, amend the law to do what Barbara thinks it already does.

ARENA: Well, tell us what your problem is. What is the problem?

STROSSEN: For one thing, for example, the provision that concerns most people because it allows the government to get their library records, their financial records, their health records. First of all it is before a secret court so people don't even have the opportunity to challenge it and the statute doesn't give them the opportunity to challenge it.

Secondly, the judge has almost no power, almost has to rubber stamp. All the government has to do is specify that the information is relevant to an ongoing investigation. It doesn't have to specify that your records are relevant or that you are suspected of terrorism and the judge has to then issue the warrant. That is not...

ARENA: You know what guys I'm going to cut you off right here. We will continue this debate. Stay with me, don't move.

COMSTOCK: OK.

ARENA: Coming up we'll continue our debate on the Patriot Act and we will put your comments on the air. Stay tuned.

(COMMERCIAL BREAK)

ARENA: Welcome back.

We are debating the merits of the Patriot Act and we are answering your e-mail with Justice Department Spokeswoman Barbara Comstock and ACLU President Nadine Strossen.

Barbara, I'm going to start with you. There's been some criticism of the Justice Department in saying that it's not providing enough information either to Congress or the public as to what exactly it is doing under the Patriot Act and that if in fact, you were just open that it would quell a lot of this criticism. Why has the department been so reticent to provide that information?

COMSTOCK: Well, actually we've been providing information, as the attorney general pointed out, twice a year. We do provide reports. Again, I'd refer you to our website, www.lifeandliberty.gov, which has our recent 60-page answers to detailed questions from Congress. The attorney general was before the House Judiciary Committee this year. I can tell you one of the most vocal critics, Congressman Conyers, came to that four hour hearing and didn't ask the attorney general one question on the Patriot Act. But you have a situation here where we are answering the questions. We're explaining how these provisions are being used (unintelligible).

ARENA: I'm talking about in terms of the numbers of times you've asked for information, of course not revealing anything investigatively.

COMSTOCK: Right.

ARENA: But just giving people a sense of how many times these provisions are being used to help them put it in perspective?

COMSTOCK: Well, for example, on the delayed notifications, judicially supervised delayed notification searches that the ACLU opposes, we provided information to Congress explaining those have only been used 47 times and they are carefully circumscribed cases and actually that particular provision of the law all it did was codify existing law and allow it to be used in terrorism cases.

And, Senator Leahy, Senator Pat Leahy, a very liberal member of the Senate and Senator Hatch drafted that portion of the Patriot Act to codify existing law and existing practice that have been used for decades and only used 47 times.

ARENA: Nadine, I hear you shaking your head. I can hear you sighing back there.

STROSSER: (Unintelligible) I had noises. That is so clearly incorrect and that is why by almost a three-to-one vote Congress recently voted to repeal that, including more than 100 Republicans, almost half the Republican members of Congress.

What that bill did was to vastly expand the prior authority to grant sneak and peak warrants only with respect to a very certain kind of evidence, electronic evidence, and only with respect to a few very serious crimes.

Under the USA Patriot Act, what had become an exception becomes the rule and, again, the judicial role is minimized. All the government has to allege is that delayed notification is necessary for the investigation or helpful to the investigation and the judge has no choice but to allow it.

ARENA: Right. We do need to at least let our viewers know that sneak and peak warrants were issued before the Patroit Act. I mean that is something...

STROSSEN: But in much more limited circumstances with much tighter judicial review.

ARENA: You know I want to bring in one of our comments from our viewers for you both to hear. Geroge Navarre from Florida says: "Quit picking apart quickly legislated tools, such as the Patriot Act, that were implemented to tighten our country's security. Are we so spoiled that we'd rather lay ourselves open to another attack?"

STROSSEN: Well, that's the problem. The criticism is not only that some of these provisions are unduly violating individual rights but also that they are not effective. The presumption that underlay this law was that the problem was the government did not have enough power to gather enough information.

In fact, all of the analysis that's been done after the passage of the law was that the government already had ample power. It already had ample information but they weren't handling it effectively.

ARENA: Well, let me ask you this. Barbara, are we safer today? Are we safer today as the result of the Patriot Act than we were pre- 9/11?

COMSTOCK: Yes, Kelli, we are and we - and Congress made that decision and the recent report by Congress on 9/11 demonstrates how important it is to have tools such as information sharing that you've highlighted here tonight and to have updated technology and to be able to use these same type of tools judicially supervised with congressional oversight, which we have been extensively participating in and the American people agree. They get it. They understand that we have to be able to use constitutional...

ARENA: Well, Nadine doesn't get it, so Nadine you get the last word.

STROSSEN: And it's not just me. It's all of the American people in all of those 28 states who have supported the resolution, not to mention many members of Congress on both sides of the aisle.

COMSTOCK: OK but there are 180 (unintelligible).

STROSSEN: Maybe Ashcroft himself when he was...

ARENA: All right well, you know what, obviously we picked a good issue, right because this is something...

STROSSEN: And it's not going to go away.

ARENA: ...that's going to be debated for a while. We want to thank you both, Barbara Comstock.

STROSSER: Thank you.

ARENA: Nadine Strossen.

COMSTOCK: Thank you.

ARENA: We will be back in just a moment. Stay with us.

(COMMERCIAL BREAK) ARENA: You're looking at a live picture of the White House this evening where in just about 90 minutes President Bush will address the nation from the Cabinet Room.

With criticism mounting and his poll numbers falling, President Bush plans to try to level with Americans about what lies ahead in the war on terror and in Iraq.

Our coverage of the president's live televised speech begins at 8:00 Eastern tonight with a CNN special report anchored by Paula Zahn and Aaron Brown from Washington.

Coming up next a special edition of "CNN PRESENTS: AMERICA REMEMBERS" a look at the events of September 11.

Thank you for joining us.

(COMMERCIAL BREAK)

(NEWSBREAK)

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