The USA-Patriot Act and the American response to terror: Can we protect civil liberties after...

Georgetown University Law Center

DAVID S. LEE: Good evening, and welcome to the American Criminal Law Review's seventh annual debate. I am David Lee, and I have been privileged to serve as the Editor-in-Chief for the past year. The ACLR is published four times annually and our articles, student-authored notes, and events explore the cutting-- edge issues in criminal law. Six years ago, this debate series was instituted to celebrate ACLR's twenty-fifth anniversary here at Georgetown. The debate brings to campus distinguished speakers to discuss contemporary legal and public policy criminal law issues. The transcript of tonight's debate is then published in a future ACLR issue. Once again, I would like to thank all of you for attending tonight and now would like to introduce the main force behind this event, David Suchar, our Executive Editor.

DAVID E. SUCHAR: Thank you, David. Good evening and welcome to this year's symposium. Our symposium topic this year is the USA PATRIOT Act' and the American response to terror. Throughout the past forty years, editors and staff of the American Criminal Law Review have sought to address cutting-edge issues in criminal law, many concerning the appropriate balance between protecting civil liberties and preserving the power of law enforcement in the American justice system. Tonight's topic is a shining example of that tradition. Enacted in late October of 2001 in response to the September 11 [2001] attacks, the USA PATRIOT Act altered the existing balance between law enforcement capabilities and the expectations of American citizens. We are privileged tonight to have IMAGE FORMULA 5

assembled a panel of such great experience and stature in politics, law enforcement, scholarship, and journalism to discuss such a timely topic. On behalf of the editors and staff of the journal, we look forward to a lively and provocative discussion. Without further delay, it is my distinct honor and privilege to introduce tonight's moderator. After graduating from Harvard Law School, our moderator served as an Assistant U.S. Attorney in Brooklyn and as an associate counsel in the office of the Independent Counsel Lawrence Walsh. This was the experience that provided the inspiration for his book Opening Arguments; A Young Lawyer's First Case: United States v. Oliver North.2 He is also the author of some critically acclaimed best-selling books, [including] A Vast Conspiracy: The Real Story of the Sex Scandal that Nearly Brought Down a President3 and The Run of His Life: The People v. O.J. Simpson.4 His latest book, Too Close to Call5 is the definitive description of the Bush-Gore 2000 presidential recount. He currently serves as a staff writer for the New Yorker and as the legal analyst for ABC News. Ladies and gentlemen, please give a warm welcome to our moderator tonight, Mr. Jeffrey Toobin.

JEFFREY TOOBIN: Thank you David. Aw, shucks, but enough about me. What an all-star cast we have here and we will get right to them, but I would like to introduce them to you in exquisitely non-judgmental alphabetical order. Michael Chertoff, the Assistant Attorney General in charge of the [United States Department of Justice] Criminal Division, is the go-to guy on terrorism at this critical moment in history. He is one of the most distinguished lawyers of his generation. He was the U.S. Attorney in New Jersey. He was the first assistant U.S. Attorney in New Jersey. He was an assistant U.S. Attorney in the Southern District of New York, where he prosecuted probably the most important mafia prosecution in history, the famous "Commission" case,6 [for] which he won convictions even though his summer intern on that case was me.

MICHAEL CHERTOFF: It was quite a handicap.

TOOBIN: Just one story, Mike, that I don't even know if he remembers. I had an assignment to write a memo, like summer interns have to do, about the hearsay rule. I wrote, I think, actually a quite brilliant memo about the hearsay rule. The only problem with this memo was that hearsay throughout was spelled h-e-r-e-- IMAGE FORMULA 10

s-a-y and I remember being somewhat embarrassed about that, but as we say in journalism, whatever.

Joining us all the way from the Georgetown University Law Center is David Cole who is an author, writes for the Nation, [and] has a new book out which you should all go buy: Terrorism and The Constitution: Sacrificing Civil Liberties in the Name of National Security.7 I guess you know what side he's on here. And he is the legal affairs correspondent for the Nation. He's the author of the book No Equal Justice.8 He is the subject of an unusual federal regulation which requires every New York Times and Washington Post story about civil liberties to quote him in it. Unfortunately, the same federal regulation requires no one in the government to listen to anything he says ....

Barney Frank has been a Congressman for twenty years, it's hard to believe. A Republican Congressman once said to me, "I'll debate anyone on their side except for one and that's because he's so good at it." He was, as many of you know, a vocal opponent of President Clinton's impeachment on the House Judiciary Committee, but to me his great claim to fame is that when he was in the state legislature in Massachusetts, he had the single best political slogan in American political history, which I believe is still on his wall. It's a big poster of Barney in all his glory and it said "Re-Elect Barney" and at the bottom it said, "Neatness Isn't Everything." Am I right? It's true.

Stuart Taylor is one of the inventors of the field in which I work, which is legal journalism. When he and Steve Brill started the American-well, Steve Brill started it, and got all the money-he was one of the leading lights at the American Lawyer for many years. He now writes for the National Journal and Newsweek, and if things get dull later we'll fight about Kenneth Starr.

Beth Wilkinson is a senior partner, or I guess a partner, are you a senior partner, what does that mean?

BETH WILKINSON: No, I'm very young.

TOOBIN: Beth is a partner at Latham & Watkins but she is probably the most accomplished terrorism prosecutor in the country. She was a lead prosecutor for United States v. Timothy McVeigh9 and a lead prosecutor for United States v. Terry Nichols.10 She is the only person in the Justice Department's history to be twice IMAGE FORMULA 14

awarded the John Marshall Award which is the big deal award, and we were colleagues when I was a lowly assistant in the U.S. Attorney's office for the Eastern District [of New York] and she was a fast-rising assistant in the Eastern District. She asked me to point out before we came out here that she makes much more money than anyone else on the panel, and her view should be accorded deference because of that.

So to begin-that's everybody, I guess. Mike Chertoff, you're the big boss, and we're going to talk about the USA PATRIOT Act, but I think we are going to define anti-terrorism a little more broadly than the law itself. We can talk about military tribunals, the attorney-client stuff, the people being held on secret charges whose names we don't know, but to talk about the USA PATRIOT Act and in context to the administration's efforts, why was this act a good thing, what did it do?

CHERTOFF: Well after September 11, based on things which had occurred before September 11, which we now looked at in a new light, and also based on experiences we had in the days and weeks after September 11, I think there was a general consensus that we needed to update the law in a number of areas to address the very specific things we now face when we deal with the war on terrorism. And they really broke into four sections. There were a series of what we call technological updates designed to create a level playing field or technological neutrality between different kinds of technology when we do investigations. For example, under the old law we could do a trap-and-trace or pen register which is a way of telling what numbers are receiving or making telephone calls. If you had a telephone call but if it were placed over the Internet you had to go get a different kind of court order. And that is simply a matter of having technological neutrality, not allowing people to avoid an investigative technique by using a new technology. The second thing we were very concerned about was information sharing, and it's very practical. If I'm sitting and I investigate and I discover in a grand jury that a group of people are planning to blow up an airplane, the law, as it previously existed, prohibited me from calling the Department of Defense and saying, "you better put F-16s up over Chicago to make sure someone doesn't crash a plane in because we have information we've gotten at the grand jury that that is going to happen." So what we did was we tried to lower the barriers to recognize that in this day and age when we're trying to prevent terrorist acts even more than we're trying to prosecute those people who commit them after they are committed, we've got to be able to exchange information and bring together all of the knowledge in the U.S. government, and we can't afford to have people lose their lives because part of the information is in one department and part is in another department and they are not talking to each other. There are various changes in the immigration laws IMAGE FORMULA 17

and that's really not my area so I am not going to spend a lot of time on that. And there were a series of changes in some of the criminal statutes, lengthening statutes of limitations and things of that sort again as it relates to particular laws involving terrorism.

TOOBIN: Congressman Frank, you voted against the law. Is that because you are not a USA PATRIOT?

BARNEY FRANK: In part because I do not believe that we should call laws things like USA PATRIOT I'm a great believer in free speech but I would not mind amending the Constitution to ban the use of acronyms, particularly offensive ones like this one. Literally the notion that-and of course it was a typical House-Senate conference-the Senate called it the USA Bill and the House called it the PATRIOT Bill and pride of authorship prevailed in conference and it got called the USA PATRIOT Act. I actually voted for a version of it. The points that Mr. Chertoff mentioned I was supportive of, and in fact I voted for a very good bill, I thought, that came out of the House Judiciary Committee unanimously with a fairly broad spectrum. The administration objected because-I think they objected to what we saw as necessary safeguards against the powers being abused. The problem we have is this: I do want to give law enforcement more power, they are the good guys, and in most cases they do good stuff, but there are also abuses and we put into the Act as it came out of the House Judiciary Committee some constraints against the abuses. They were eroded to the point where I couldn't vote for it. For example, I do agree on more surveillance. But we have in our history J. Edgar Hoover, the head of the FBI who when he was not able to prove through surveillance that Martin Luther King was either a crook or a Communist since he was neither, broadcast elements of Martin Luther King's personal life, wholly inappropriately throughout the press, and that wasn't the last time we've had FBI abuses. We had a series of horrendous FBI abuses that were just now being uncovered up in Boston by a very courageous federal judge involving the outrageous abuse of people's rights because informants of the FBI were considered so valuable. We had problems with the cover-ups within the FBI of misbehavior after Ruby Ridge. We had problems with people having been found to do things wrong who were then promoted, so I wanted more safeguards. The particular safeguard that I thought important over the administration's objections was a very straightforward one: a sunset. We proposed that the FBI and the other law enforcement agencies have all these powers for two years, and at the end of two years, we would then have to start all over again and extend them. I think the fact that you have to fight for these-again, inertia being such an important force in government, particularly in Congress-would have been a good constraint. There were a couple of other things that got eroded, to five years finally it was four, I still think that was too little [constraint]. The other area that most troubled me was in the immigration area. In particular, one of the things that I worked hardest on when I came to Congress was to clean up American immigration law, particularly with regard to who could come to America. We had an immigration law including a whole bunch of reasons to exclude you, which were deeply offensive. If you were gay you couldn't come in. If you had ever been mentally ill you couldn't come in. If you believed in polygamy you couldn't come in, although the Saudis seemed to have been able to evade that one. If you were an anarchist you couldn't come in because somebody shot McKinley so they stuck that in the law-and that's literally the case-100 years ago. We cleaned up that law pretty much in the 1990 Immigration Act" and too much of this law began to go back towards deciding that we would keep people out of America because of their associations and I did not think that was appropriately defined, and I think that the notion that the American people have to be sheltered from various kinds of opinion is a wrong one. The argument was, "well, they might be terrorists." But I thought that was much too loosely drawn. But my major reason for switching from voting yes in committee to voting no on the floor in addition to protest[ing] against the outrageously undemocratic way in which they put the bill through with no chance to amend it or really to debate it was the erosion of the safeguards, so I was for the powers, particularly those that Mr. Chertoff mentioned, but I thought they had too few safeguards.

TOOBIN: David, you, I think, more fundamentally object to the bill in all its forms. Tell us a little why.

DAVID COLE: Well, I don't object to every line in the bill but my sense is that the immigration provisions which Mr. Chertoff didn't mention are I think the worst provisions in the bill. I don't think that is any kind of mistake or coincidence. While many people have talked about in the wake of September II the need to balance security and liberty, I think what we have generally done in the wake of September 11 is to trade off the rights and liberties of a vulnerable minority, immigrants, in particular Arab and Muslim immigrants, for the purported security of the rest of us. And just to give a little specificity to this, the PATRIOT Act makes immigrants deportable for wholly innocent associations. Before the PATRIOT Act if you supported terrorist activity in any way, if you engaged in terrorist activity in any way, you were deportable-and should be. But in the PATRIOT Act, they make people deportable not for engaging in terrorist activity, not for supporting terrorist activity, but for providing any kind of support whatsoever to any group which we decide to label a terrorist group, including retroactively, we can label any group we want essentially a terrorist group. Now, if this law had been on the books in the 19$0s, the thousands of immigrants who gave money to support the lawful anti-Apartheid work of the African National Congress would be deportable, IMAGE FORMULA 23

presumptively deportable, no defense even if they could prove that their support only furthered lawful, non-violent anti-Apartheid work in South Africa. Why? Because the ANC was designated by the Secretary of State as a terrorist organization every year until it came into power. Why? Because it did in fact engage in some terrorism. But it also engaged in a lot of fully lawful non-violent work. Should people be treated as terrorists for supporting non-violent lawful anti-- Apartheid work? I don't think they should. The PATRIOT Act makes them deportable for that.

In addition I think in the name of fighting terrorism the law enforcement community used this Bill as a way of expanding their powers far beyond the war against terrorism. I'll just give two real quick examples. One is the so-called "sneak and peek provision," which allows the government to conduct secret searches of anyone, including citizens, without notifying the person that they have a search warrant and that the search is authorized. The provision allows the government to delay notification for a reasonable period of time upon showing the court that notifying the individual would jeopardize the criminal investigation-a very broad standard that probably could be met in a tremendous number of cases and is not limited to fighting terrorism in any way, shape or form. A second example, the Foreign Intelligence Surveillance Act, 12 allows the government to get secret wiretaps and to conduct secret searches without any notice ever of anyone who is an agent of a foreign power. Now that is defined very broadly to include a member of a foreign political organization. Any of you who are members of Amnesty International technically could be treated as an agent of a foreign power and have your phone tapped, have your house searched without any notice ever that that happened. Before the PATRIOT Act, that [power] was limited to intelligence gathering. The government argued, "well, we might want to do it in a criminal case." Before the PATRIOT Act, if you were investigating someone for a crime, you had to show probable cause of criminal activity in order to get that wiretap or in order to conduct that search. Under the PATRIOT Act, the government can avoid the probable cause requirement and do an end run by going the foreign intelligence route, which does not require probable cause of a crime. All they have to do is show the person is an agent of a foreign power. Again, that's going to be used almost exclusively against immigrants, and it's not in any way, shape, or form limited to terrorist investigations or terrorist crimes.

TOOBIN: I would like everybody to respond to each other. Let everybody talk once first and then we'll sort of mix it up. By the way I didn't say this at the beginning: Towards the end we would like you to have questions, so if you have any questions, please think about them. Beth, you are sort of alone among us [in that you] have actually prosecuted terrorists. Are the problems and difficulties of IMAGE FORMULA 26

prosecuting terrorists, are there a lot of legal impediments and did you find you were hemmed in? Is the problem that there are not enough laws on the books? Or what? Or is it simply just finding the people?

WILKINSON: I don't know if there [were] legal impediments. There were some technical impediments, and I think the bill took care of some of these things. The example David gives about the sneak and peek warrant, that's nothing new to experienced prosecutors. We do that in mafia cases and in all different kinds of cases, so the idea that that is being codified in law is really nothing new to anyone who has any experience in law enforcement. There are many good reasons why you want to go and look for something and not let people know that you were in there, but there are difficulties in terms of tracking down and investigating terrorists, and we've found after the McVeigh case and after September 11 that most of what these people do are lawful activities in furtherance of an unlawful ultimate act. For example, Timothy McVeigh and Terry Nichols planned the bombing for seven months. They went out and bought explosives. They hid them in storage sheds under false names-all lawful activities that were very difficult to uncover until the day they built the bomb and detonated it in front of the Murrah building. The same with September 11. If you look at what we know from the media about these individuals, they were taking flying classes. They were getting money from different organizations. They were working together, but they weren't doing anything that law enforcement would be able easily to identify as acts in furtherance of terrorism. So we do need some additional tools to track some of those people that we think are more likely to participate in those types of activities instead of waiting until the act occurs. Because we're not seeing them conduct all kinds of unlawful activities that you could go back and point to law enforcement and say, "why didn't you intercept most of these people? [After all,] you looked at Mr. Moussaoui." It's quite amazing, I think, that an agency even held him after they learned that he had asked, you know, "I don't need to learn how to land and I don't need to learn how to take off, I just want to learn how to fly the plane." And I think but for some very observant citizens and some good law enforcement agents he might have been another one of the hijackers on the plane. So I think there are issues here that the government is trying to address.

On the other hand, you have to balance what works for law enforcement and what doesn't, and one of the things that troubles me that isn't part of the PATRIOT Act but has been part of the Justice Department's package of new techniques is intercepting attorney-client communications with some of these defendants who are under arrest. And that is something that until now you would always go get a Title III wiretap. You would go to a federal judge and you would intercept those conversations and you have to show some reason why you are breaching the attorney-client privilege. And we've heard from the Justice Department that the reason they are doing this is they think that some of the individuals are giving either coded messages to their lawyers or directions to their lawyers that might further new terrorist activities. How they've defended it is, "well, we're going to tell the people in advance, we're going to tell the lawyer and the defendant that we are intercepting them." Well, if the purpose is to assist law enforcement so they can find out what these people are doing, I don't know how it really benefits law enforcement to tell the bad guys, "Okay, we're going to listen to your phone." The reason wiretaps work is because nobody knows you're listening. So you're breaching the privilege which is something that is very important, especially to the individuals I think David is talking about who are mostly members of a minority population, have very little ability to speak out in the current environment, and rely on their lawyers having those kind of privileged conversations. And by intercepting [them] I think we've done something that doesn't seem very useful to law enforcement and is a kind of an abridgement of a fundamental right we rely on, which is getting good counsel when you are under investigation by the government.

TOOBIN: Stuart, you've covered the intersection of law and politics for a long time. I mean, how much do you think that this act, and the administration's response in general, was a legitimate response to the needs of law enforcement and how much was it kind of political hysteria?

STUART TAYLOR, JR.: Broad brush, I think it's by and large a legitimate response-particularly the USA PATRIOT Act-with some political hysteria. The one thing that comes to my mind when you mention political hysteria is the Attorney General's sort of outrageous suggestion that if you criticize the administration's policy and he would say if you criticize it inaccurately you're assisting terrorists and giving, he did use these words, giving ammunition to America's enemies.13 He did use those words and to borrow from David Cole I don't endorse every line of the USA PATRIOT Act but I endorse, for example, the silly name.

I agree with Barney Frank [about] the sunset. I wrote at the time that I thought they should have a six-month sunset. The idea being there isn't time to think about this now, not so much six months because we won't need it in six months, [but] six months to think about it and do it over more carefully. It was probably unrealistic in terms of the congressional process. The provision David Cole focused on about deporting people for their associations and some of the hypothetical applications-- Nelson Mandela, and so forth-trouble me. I can see why the government-and I IMAGE FORMULA 32

have some sympathy for the government wanting to be able to deport people they think are dangerous. And that, I think, is a proxy for people they think are dangerous. But I think it's too broad a proxy.

But sticking to the Act for a moment, the surveillance provisions I by and large like. I'm not an expert on every provision, but trap and trace, pen register, search and seize, what's the other phrase? Sneak and peek, I love sneak and peek. I must have missed the part in criminal law class where telling the person you've searched him is such an important part of the Fourth Amendment. I think I missed it when I read the Fourth Amendment too. But I have a broad brush reason for endorsing surveillance-pure cost-benefit analysis. One: I think surveillance is essential to our safety. It may be the only way, better surveillance, the best surveillance possible that some day somebody can prevent Washington and all of us from being incinerated by nuclear terrorists. If you don't know who's coming, you don't know where they're coming from, it's very hard to defend against it. That's the benefit, preventing all kinds of bombs, all kinds of acts of terrorism. I think they've probably stopped some acts of terrorism already through the programs they've done. On the cost side, the last major abuse of search and seizure surveillance wiretap authority that really hurt someone I can think of was Martin Luther King. That was more than twenty-five years ago and he wasn't killed as a result of that. (Obviously he was killed.) Nobody in COINTELPRO 14 was killed, I'm not sure many people were put in jail as a result of abuses of authority and so when we're ... and now we have all sorts of civil protections, procedural protections, overlapping reviews and, I think, a consciousness about civil liberties in this country that makes it unlikely those types of abuses would recur. But even if they do recur, I would take some FBI abuse to stop a few bombings that kill hundreds of people, let alone thousands of people.

I would criticize the Administration's treatment of some of the detainees. There have been a lot of newspaper stories with troublesome indications that they were rounding people up based on a fairly thin suspicion-"well, this guy may be a terrorist and he overstayed his visa for a day so let's lock him up"-and then [he] proves not to be a terrorist, but he gets treated pretty bad anyway. I sympathize with the preventive detention instinct to some extent, actually, when there is a legal basis for it-an immigration charge-but I think it's been abused. But by and large I don't see a whole lot of hysteria. IMAGE FORMULA 34

TOOBIN: Mike, how much of these, including the Act, but all the efforts, rely on your good faith, that you are saying to Barney, "well, you know, J. Edgar Hoover was J. Edgar Hoover, he's not here any more and we're just not going to do that?"

CHERTOFF: I do think that many of the things people talked about when they said you have to worry about a repeat of abuses in the past are not abuses that come from the laws or laws of the type that we just passed, they are abuses of pre-existing laws. For example, some of the FBI misconduct here didn't rely upon an expansion of FBI power. If you in fact conduct a wiretap and you leak the content of the wiretap, that's a violation of existing law and continues to be a violation of existing law, so that hasn't changed. I think the things that people were concerned about historically really are not changed by this Act. There is not a greater likelihood this Act is going to lead to those things by and large. But I do think that the over-arching point is this: The fact of the matter is that we are faced with a threat which is of a different character than the threat we face with ordinary criminal law. In particular, when we discuss the issue of prevention, which is different from the issue of prosecution. You said to Beth, "Well, how has the law hampered your ability to prosecute?" More important than prosecuting is stopping something from happening. And the surveillance portions of the law, the information-sharing portions of the law are designed to help us to the extent humanly possible to identify people who are potential threats to human life and then incapacitate them using pre-existing legal tools. You know, the immigration laws, other criminal laws, things of that sort.

FRANK: I partly support what Michael said because there is a qualitatively more difficult element that law enforcement has. It makes surveillance more important and that is when you are talking about people ready to kill themselves, deterrence diminishes. Much of what law enforcement relies on is deterrence, and deterrence means that in many cases there is a very high probability that if you attempt this you may succeed but we'll catch you and we may kill you in the bargain. And I agree. There is a need for more surveillance because when you are dealing-and one of the sad things about this is learning that there are mature thoughtful adults prepared to kill themselves and that's a qualitatively more challenging problem for law enforcement. But I disagree with Michael that because J. Edgar Hoover is dead that these are things in the past, You say, "Well, it's illegal to leak information." That's true. The problem, though, is that one of the things we are doing in this law is giving the FBI and other law enforcement people a lot more information. For example, I support allowing people to apply to the Internet the trap and trace. Now the argument for trap and trace is, "Well, we're just getting the phone numbers, that doesn't tell you anything." But you know, if you know my Internet web sites you know an awful lot. If you know that I have been going to footfetishes.com you don't have to monitor my e-mail traffic [for it] to be embarrassing. And I wish it were the case that there had been no more leaking, but there continues to be leaking by law enforcement personnel. It is frustrating when you think the son-of-a-bitch did it and you can't prove it and so there is this temptation to leak. And one of the justifications we've heard is, "Well, they are only leaking things that are true. After all, these things may be embarrassing but they're true, these are things people did." And the answer, of course, is that if you've gotten to be thirty years old and there was nothing in your life that would embarrass you when it was leaked, you have my sympathy.

And there were people who were sent to jail who shouldn't have been by the FBI's misuse of informants and in Waco and Ruby Ridge-I had no sympathy either for the Koresh people or for the Ruby Ridge militants, and I think what the FBI did was essentially right, but there were clearly cases of abuse and misuse that went unpunished. And let me give you one other one: Wen Ho Lee. It was admitted that an FBI agent lied to the judge, maybe he didn't personally lie, he gave false information to the judge which contributed to a man being imprisoned in very harsh circumstances. And I wrote to Freeh and complained and to date no FBI agent, no one in the FBI has been disciplined for an admitted falsehood told to a federal judge which a federal judge said he relied on in treating someone more harshly. So yes, I'm for the increased surveillance and I think the suicide element means it's justified, but I want more safeguards.

WILKINSON: I was going to say Mike is absolutely right, that prevention is the issue because prosecuting terrorists gives you very little comfort. I mean it's way too late when you're prosecuting Timothy McVeigh and Terry Nichols. We want to stop it before. But the reality is that even though the Justice Department and the President have changed the mission, that is, given Justice and the FBI really the go-ahead to say prevention is your first and foremost goal, the practical reality of law enforcement is after a few months when they, I'm sure, have prevented some terrorist acts, there is pressure on them to say they've arrested people. That is what we expect the FBI to do, that is what we all want. We want to see people behind bars for these things, and when they do arrest people the problems that I've seen are more the public statements that the Attorney General is making and other people are making about what they are doing. For example, the government announcing that they were going to do military tribunals without telling us what the limitations would be on those, which were quite frightening to people thinking about what kind of rights if any a defendant might have in the military tribunal. That doesn't mean a tribunal isn't appropriate in certain circumstances. When the government comes out and announces [the tribunals] without any limitations it frightens people. The most recent example is the announcement of the arrest of John Walker Lindh. As you might recall there was a complaint issued, and in something that was really shocking to me, they actually detailed all of Mr. Lindh's confessions. Now as you all know, a confession may or may not be admissible, depending normally on a suppression hearing and pretrial proceeding. And when Terry Nichols confessed, his confession was totally protected by the government and by the judge. We went through an entire pretrial proceeding and a public suppression hearing where that statement was redacted and no one was allowed to announce to the public what he said until the judge ruled that the statement was admissible because if it wasn't, obviously, he didn't want to prejudice the jury pool. Instead, in this instance, Attorney General Ashcroft got up at a press conference and announced all of the details of Mr. Lindh's confession so now if that is for some reason not admissible, and I'm not telling you it won't be admitted, it's too late-the jury pool has heard that entire confession. Why? Because the government wants to look like they have arrested someone, they have a strong case. Of course Mr. Lindh has nothing really to do with what happened on September 11. He deserves to be prosecuted, but I'm not sure that his confession deserves to be outlined for the entire public before a judge rules whether it's admissible.

CHERTOFF: Let me say that's actually not right because particularly in a situation where you have to detain somebody who wants to get out on bail it is absolutely appropriate to discuss the strength of the charge and their state of mind and there is no better evidence of their state of mind than what they actually said what their state of mind was. So that although I agree gratuitously putting a confession out would not be appropriate, when you draft a complaint with an understanding you're going to have to have a detention proceeding to keep someone in jail, you put your best foot forward and you don't sacrifice your ability to put your best foot forward out of a solicitude for the fact that it may reveal something that you're going to have to litigate later.

FRANK: Unless, Michael, they are immigrants who are put in jail with no cause that I can see and don't even tell us who they are. I mean this solicitude for giving the full circumstances that justify detention-I wish I saw some of that with some of the immigrants. By the way, I do believe if you've overstayed your visa I want you out of here. I'm a great supporter of liberal immigration and people who overstay their visas are a problem. We have a defect that is the fault of the congressional and executive branches together. We should have a way to check visa overstays among other things. It generally takes you more than ninety days to do an elaborate plot so doing visa overstays is a big deal, but the penalty is to deport them. We've got people who admittedly could be deported and should be deported because they overstayed their visas but they are locked up indefinitely in detention and, as I said, I wish we had the solicitude for making clear why you would detain people, but I think that is one of the real problems today. There are several hundred people apparently locked up and we don't know why.

CHERTOFF: I'm think I'm going to be in the role of defender here, but when we say we don't know why, this is a fascinating issue to me because, as you know, in the immigration process you do have an immigration judge, it's not an Article III judge. The immigration procedures themselves do not provide for the same kind of public proceeding that you get with respect to a criminal case partly because the Constitution doesn't require it and that is something that ....

CHERTOFF: That is something that exists--

FRANK: But it's the decision you make not to tell us.

CHERTOFF: Here's the interesting thing. The request that was repeatedly made was to give out, publicize a list of people who had been picked up on immigration charges and detained as part of the 9/11 investigation. In other words, it was not a request for the identity of every single person who has been detained by Immigration but it was for us to identify that sub-category of people who were picked up as part of 9/11, in other words to label them as people who we picked up in our suspected terrorist investigations, and make that public. Now, I have two responses to that. One is-as it happens the law frowns on doing that kind of publication. It frowns on singling a group of people out and labeling them in a certain way. And I can tell you that for example convicted sex offenders successfully litigate against publicizing their convictions because of this concern about their privacy and constitutional rights. Second, and more important, who's complaining? Every single person who was picked up has a right to an attorney and has a right to make his situation public. They were absolutely free, and a few have, to say, "I was picked up, I'm being held as part of that 9/11 issue." But most of them haven't. So the question is, is it the right of the individual involved to publicize the fact that they were picked up in the 9/11 investigation? Or do third parties have a right to say, "Whether you want to publicize it or not, I'm going to publicize it?"

FRANK: That's just disingenuous to a certain extent. First of all, I do not believe for a second that you were keeping these people's names secret out of concern for them. That's just the most implausible thing I've ever heard. I mean the fact is-and secondly we have heard from many of them that they were bewildered, they were unsophisticated, they've had trouble getting to a lawyer. It's also not the case, by the way, that people insisted only on people being identified who were picked up regarding 9/11. Our understanding is that it is only those people who are being indefinitely detained even though they are not willing to be deported. But the notion that you are doing this for them, Michael, really is ... I don't understand why you would say that. Nobody believes it! The point is that I think the problem has been that it has been long since clear that the overwhelming majority of them, if not all of them, have no connection to those mass murders and people were reluctant to admit that. I don't understand why they can't still ...

TOOBIN: Dave, what do you think about that?

COLE: Just look at the numbers. As of November 5 [2001 ], the government said they have detained about 1200 people in connection with the investigation of September 11. They were getting criticized about how high that number was with not a single person charged with any involvement in the crime. And so what did they do? They stopped giving us a running tally. So at this point it's probably 2000 but they won't tell us how many it is. We do know that as of December [2001], 725 people were held on immigration charges. Every one of those cases-it's not just they are not giving us the names of those people, every aspect of every one of those cases is closed. Closed to the public, closed to the press, closed to family members. Your husband, your father, could be facing the question of whether he's going to live in this country or be deported, is at stake and you can't even attend that proceeding. No matter how routine the proceeding is, the judges have been instructed not to list the cases on the docket and if asked whether such a case exists neither to confirm nor deny the case exists. Again, not one of these 700-plus people has been charged with any involvement in the crimes of September 11. The only person who has been charged is Zacharias Moussaoui, and he was picked up before September 11. Now you know the government talks about prevention, but when you start engaging in prevention by locking people up about whom you have the faintest of suspicions, who you can't bring any charge against, and then you do it entirely in secret, I think there is real ground to be concerned. Michael Chertoff says, "Well, why don't the people complain?" I'll tell you why they don't complain. Because when they do complain the government comes down hard on them and in immigration proceedings the government has tremendous discretion over whether the person can stay or leave, and so immigrants are scared. There was a case in New York where an immigrant brought a habeas case, and what did the government do? They responded by filing a criminal charge against him. There was a case here [in the Washington, D.C. area] of a material witness, an African Roman Catholic who was mistakenly thought to be an Islamic man, and was detained as a material witness for four and a half months. The Washington Post did a front page story on him.15 What happens? The government files a criminal charge against him. And the charges are for lying to an immigration official. 16 The kind of charge you could bring against virtually every immigrant, so I think there is a concern about retaliationb ... no, I mean in every immigration case where there is a charge of immigration, you're going to say, "Well, we don't believe what they say, therefore, they are lying," you can turn that into a criminal charge. So I think the IMAGE FORMULA 49

real concern here is [that] we're engaged in an unprecedented veil of secrecy over the detention of hundreds of people who have not been charged with a crime and [for] who[m] every aspect of their proceeding is closed to the public, to the press, to the media, to legal observers. I don't think that's the way we ought to do justice in America.

CHERTOFF: I though thte complaint was they were being charged with a crime.

COLE: No-only, if they complain then they are turned around and charged with a crime.

TOOBIN: Let me just-an issue that is sort of around this one is sort of profiling and Stuart wrote a very provocative column, called "The Case for Using Racial Profiling at Airports"17 and the Attorney General is on record that he's against profiling, but Stuart wrote,

[P]lease try a thought experiment: A few weeks hence ... you are about to board a cross-country flight. Glancing around the departure lounge, you notice lots of white men and women; some black men and women; four young casually dressed Latino ... men; and three young, well-dressed Arab-looking men. Would your next thought be, "I sure do hope that the people who let me through security without patting me down didn't violate Ashcroft's policy by frisking any of those three guys"? Or [would it be] more like, "I hope somebody gave those three a good frisking to make sure they didn't have box cutters"? If the former, perhaps you care less than I do about staying alive. If the latter. you favor racial profiling-at least of Arab-looking men boarding airliners. 18

So what do you think?

TAYLOR: You gave part of the thought. I actually wrote another column amending that one a couple of weeks later.'9 The amendment, I think, was important but not fundamental. The amendment was "national origin profiling." And I think the distinction is important. You could call it racial profiling in shorthand but an Arab-American, you know, or someone from the other-who came to this country a generation ago, or fifteen years ago, or ten years ago would not fit the profile, as I would design it, because you could tell from some combination of pattern of speech and travel documents, usually. You know this guy has been around for a long time. You don't have to worry that he's somebody al Qaeda sent in recently. So when I say national origin, I'm talking about the IMAGE FORMULA 56

countries known to harbor al Qaeda terrorists and there are a lot of them. Basically the entire-all the countries in the Muslim world. Now the reason I favor that kind-by the way I don't really believe the Attorney General when he says he doesn't believe in racial profiling, in national origin profiling. The 5000 people that the Attorney General decided to go question were chosen on the basis of national origin, by and large. The people who they are going to focus on in looking for people who have been ordered to deport and who are at large are by and large chosen on the basis of national origin. Most of the people who have been detained and who remain locked up happen to be from the Muslim world. I don't think those are coincidences and he in fact has amended what he said. I think racial profiling is troubling, national origin profiling is troubling. I wrote against them before September 11, but in the context of airport security screening, I think-and this is very important-I think the intrusion is pretty minimal. There is an insult factor, but I was searched five times last week in airports. I traveled a little more last week than usual. The full search that someone would get as a result of the profiling I'm talking about: shoes off, frisk, the wand, take your jacket off, the whole bit, go through the toilet kit. You know, it was a little bit of a pain, but it's not that bad. It's not as though you're locking people up on the basis ....

TOOBIN: So who among our panelists does not want to see the three young well-dressed men frisked because they might be singled out?

FRANK: I want to see everybody frisked. That was the one question I had. Stuart, you said I hope that they were frisked the way you weren't." I want better security for everybody. But I would just say that I think Stuart made a very good point when he said, "the question is to some extent what is the consequences of the profiling." Pulling over some black kid because he's driving is a terrible intrusion, it shouldn't be done, it scares people, but I don't understand the problem of searching people. For one thing, frankly, when they search anybody they are inconveniencing all of us because the plane is not taking off until we're all on. I get searched sometimes. I don't get searched in Washington and Boston where they tend to know me. I get searched elsewhere.

TAYLOR: Maybe that's where you should be searched.

FRANK: No, they already know what they're going to find.

TAYLOR: And they still let you get on the plane.

FRANK: They want to sit next to me. The question is-look, nobody objects if a cop-and any cop with street sense does this, he's going to decide who is acting a little strange but who may look like in the certain circumstances [he] might be a problem, I have no objection to that kind of surveillance ....

TOOBIN: Beth, what do you think about profiling? I mean you are an experienced prosecutor, is this something that should never be considered, you know, ethnicity, or I mean is that something cops just should pretend doesn't exist?

WILKINSON: I have to say I think this is a hysteria on the left a little bit about this issue. If you look at Terry?o and those lines of cases and you think about reasonable suspicion, this is what cops do every day on the street. They try and-again, it goes back to our prevention issue. They try and identify a few indicators that show someone might be likely to be committing criminal activity, and to prevent something from happening. So we have to look at what happened on September It. What are the indicators? It isn't just that you are an Arab male, although those are two factors, but that you might have bought a cash ticket, which is something. If you check into airports these days-and since I travel a lot, once in a while I buy my ticket last-minute-if I buy it that day, I get searched because I'm buying a cash ticket or even a credit card ticket that day along with other things. So if you put those factors together, I don't think there is anything unreasonable about stopping those people at the airport and frisking them, especially in the exact same situation we saw occurring on September 11, which is people getting on an airplane, hijacking and taking the planes into buildings. What's more troubling, though, is what they do that we haven't thought of yet. I mean we seem to be always fighting the last war. Everyone is so upset because we're at least fighting something we know was a problem on September 11. What is much more troubling and difficult for law enforcement is to figure out how are we going to stop the people who again might be engaging in what appears to be lawful activity with another plan that we haven't been creative enough to think about.

COLE: I think there is a lot of misunderstanding. I don't think anybody, on the left or the right, is against profiling: the tactic, the technique of using various types of conduct to make an assessment about whether or not someone is suspicious or not. That is what police officers are paid to do. They should do that. We hope they do that well. What people are concerned about is the use of race or ethnicity as a factor in the profiling. I don't think it actually is sufficient to say, "Well, it's one IMAGE FORMULA 65

factor among many." If a cop says, "Well, I think this person is suspicious because he's young, black, male, and walking in Harlem," that's a number of factors. And wearing baggy pants, that's another factor, but race is an impermissible factor unless you can show-for the government to make a generalization based on race is impermissible unless they can show it's necessary to further an important law ....

TOBIN: Wait a second, does al Qaeda, which is obviously, I think we would all agree, is a threat, does it have any non-Arab members?

COLE: Yes. John Walker Lindh, according to the government, number one.

FRANK: Excuse me. That's the practical point I want to make. I worry, from the practical law enforcement standpoint, you know, these are not morons that we're dealing with, unfortunately. And they know what we know-yeah I think they could find some white guys. I mean ... the problem is that you are going to say to them, okay, when you announce the profile, "Here's the profile," here comes the other profiles and the anti- people and so that's another problem with profiling. If you rely on it too much, what's to stop them from finding some white guys?

WILKINSON: So we shouldn't use the profile because they might be able to improve? I mean, I don't understand.

FRANK: No, you shouldn't rely on that. I'll tell you what-one, when you're talking about people on the plane, I want security measures for everybody. It is not only-and, by the way, Nichols and McVeigh would not have been caught by some of the profiles we're now using for terrorists, I assume, unless being slack-jawed was somehow relevant to the profile. But what I'm saying is that profiling can become-there is a danger from the practical law-enforcement standpoint that it can become-kind of a crutch and, you know, on the airplanes I want thorough security for everybody. Although I must say, again, I agree with Stuart's point that I don't think it is intrusive. I don't think anybody is going to complain if you get singled out to be searched because you're not taking off any later than anybody else and they don't ruin your clothes and I just have a sock drawer now with socks without holes in them for the days that I'm flying.

TAYLOR: Two points in response to whoever. I think Barney said he would like to see everybody searched thoroughly. I completely agree. The problem is, it is not logistically possible now unless you think people are going to wait in line for seven hours to get onto a plane and we don't have nearly enough bomb detection machines. From what I've read, fewer than five percent of all checked bags are screened for bombs, maybe many fewer. And what I think that means, and I think this is the main danger, [is] that if al Qaeda sent another nineteen people onto nineteen airplanes with nineteen bombs concealed in their luggage simultaneously tomorrow, I think the odds are that more than fifteen of them would get them through. I think that illustrates the need for some kind of profile. Yes, McVeigh, if they've got a guy who looks like McVeigh or Terry Nichols or who was that character with the bombs in his shoes? I'm not sure.

OTHERS: Richard Reid.

TAYLOR: Yeah, if one of them looks like him, and the profilers aren't smart enough to catch him on behavioral characteristics, as they should have been in his case, okay maybe one of the planes gets blown up, but I don't think al Qaeda is going to have enough recruits from outside the Muslim world to make that the main problem.

FRANK: One factual point, though. We did pass laws, and we put, I think, an unrealistic schedule, but there will be machines at some point so that you will get above that five percent. We have it mandated. I talked with the Raytheon people today who are hungering for the contract to build the machines, and I think a year from now we will have a very high percentage of the baggage technically screened for bombs.

COLE: I just want to mention one cost of racial profiling which has not been mentioned, and I think it is a very important pragmatic one: that is, the effect it has on the community that is targeted. And you see this in the inner city, with the way that the black community in the inner city looks at law enforcement, which makes it very hard for law enforcement to do their jobs because people are unwilling to be witnesses, unwilling to work with law enforcement. Well, the same thing is happening today in this community with the Arab community and the government. Because the government has acted towards the Arab community as if they are suspicious because of their ... whether you call it national origin or ethnicity, I think it's too fine a point for the community to see. That community is extremely suspicious of the government. That means they are going to be much less willing to work with the government to provide information, et cetera. If we think that there might actually be some threats in the Arab community among the millions of Arabs living in this country, wouldn't it be much better to work with that community in a positive way to try to get the millions of law-abiding members of that community, who are just as horrified and disgusted by the attacks of September II as the rest of us, to help us? We don't get them to help us when we say, "We're going to treat all of your young men as suspicious by virtue of their Arab immigrant identity." That creates a tremendous amount of enmity and, I think, undermines law enforcement; it does not further security.

TOBIN: Before we open it up to questions, just one more topic, and Stuart again wrote about this: All of these points have been in the general area of, "Has the government gone too far in violating people's civil liberties to fight terrorism?" How about an area where they might not have gone far enough? The Brady bill established rules that said there had to be a record of gun purchases for all except for gun shows, which is the famous "gun show loophole." And these records exist. The Bureau of Alcohol, Tobacco and Firearms, among others, said, "Well, let's check the names of the suspected terrorists against gun purchases," but the Administration said no, because that would violate gun purchasers' rights. Why is that, Michael? Why did that happen?

CHERTOFF: There was at the time, I don't know whether it was the statute or a regulation that limited the use that could be made of this information when someone was not rejected for purchasing. I think that there is now in the works, there are proposals now to change that regulation or statute.

TOOBIN: But it was changed by the ... the Reno Justice Department said it was okay to use that.

CHERTOFF: I don't actually know that that is correct. My understanding is there was a regulation or statute, now I'm not an expert in the genesis of that law.

TOOBIN: There are some cynical journalists who suggest that the relationship between the Justice Department (the current one) and the National Rifle Association, which was very opposed to that interpretation, had something to do with that.

CHERTOFF: Honestly, Jeff, I think that really, it was either regulation or statute that dealt with this issue. Now you can argue about why the regulation or statute was originally enacted, and I don't know the answer to that. I think it predates this Justice Department, though. But I don't think anybody that I know at the Department is overly solicitous of the right of terrorists or people who are likely to become terrorists owning any kinds of weapons, whether they be box cutters or guns or nuclear devices.

WILKINSON: This morning, and this was Attorney General Ashcroft, I think, who made those statements when asked, "Well, there is a statute prohibiting" or an order, or regulation, or whatever he said. But if you saw [yesterday's] Washington Post, he also announced that he was going to get the law changed so that he could collect DNA on all the detainees down in Guantanamo Bay.2' I think that is where IMAGE FORMULA 82

some of the cynicism comes from when it's something, and I don't think most of us would disagree on either that collecting the DNA or finding out whether these folks who are defendants or detainees or whatever it is carrying firearms, but I think that the hypocrisy that appeared in the media, whether it's accurate, Mike, I don't know, was that they didn't seem to want to advocate changing the gun laws, but they were happy this morning to announce that they were going to change the laws on collecting DNA evidence.

TOOBIN: Can we get some questions because we're running a little low on time? Professor Paul Rothstein, I don't recognize you outside one of those boxes on the T.V.

PAUL ROTHSTEIN: How are you? I know a couple of you well. This is addressed to Barney Frank. Congressman Frank, just a very few years ago I was on a panel of the National Academy of Sciences dealing with new technologies of airline security and passenger screening, and the technology was not really very encouraging at that time. Has it progressed enormously in a couple of years?

FRANK: I think with regard to testing bombs, I have not heard, I'm no technological expert. I have heard people [remark] that the problem is getting the machines produced quickly enough and getting them put in place, and they are very big and very heavy and in some cases you are going to have to reinforce the floors, but the technology does appear with regard to bombs, people seem to think that it was okay.

But there is one other thing. You know, we all tend to be very critical. There is one area where the government has gone neither, it seems to me, too far. You can't say they went either too far or not far enough, they've done it right and I think this is-I feel somewhat congratulatory about this. I am not aware of any situation, certainly with the federal government, and I'm not aware of any at the state and local [levels], maybe a public university or two, where anybody with regard to the post-September 11 operation has been persecuted or prosecuted by officials for opinion, and that is not something to be taken for granted. There has been no McCarthyism, there has been no round-up of the Japanese-Americans, although I think primarily the illegal immigrants have been mistreated. There is no Red scare or Palmer raid and I really think that was a fear that some people had and that's one area of civil liberties, respect for the right of dissent. Now, I think some of the members of the administration have made some comments I don't agree with, but people need to understand: the First Amendment gives you a right to say things and it gives other people the right to say things about what you said. And I do think that it is a good sign about the country that while there have been some problems in the areas that we have talking about, there has not been the kind of oppression of dissent that I think some people were afraid of and we've seen at some previous similar outbreaks.

TOOBIN: Come on, there must be someone out there who is really pissed off, come on, everybody, there is all this good feeling here, go ahead.

SPEAKER: Yes, I've beard a lot of talk about prevention tonight in terms of the USA PATRIOT Act and I wanted to know if the USA PATRIOT Act had been passed before September 11, would it have stopped the events of September 11 ?

TOOBIN: Mike, that's a good question.

CHERTOFF: I don't think anybody is ever going to know the answer to that. I know a lot of people have spent time thinking about that and I know there are going to be hearings at some point and there is a congressional investigation now that is designed not to look specifically at the Act but to look at things in general before. So I can't say whether things would have changed. I can tell you one of the things that, looking back, I think there was a flaw in the way we conducted our business prior to September 11, was this compartmentalization, the fact that you had ... the intelligence community did its thing, law enforcement did its thing and people didn't pull together all the information and analyze it in a cohesive whole. And although the new law doesn't perfectly change it and there are issues which you would call culture which have to be addressed, I certainly think that had we had more information-sharing and analysis before September 11, the chances of averting it would have been greater. Whether at the end of the day that would have been enough is only speculation.

FRANK: One thing that I think would have helped, and it's something that several of us have been talking about for a while, we have to change the way we enforce the immigration law. People who overstay their visas, the ninety-day visas. We need to do a good job of keeping track of them. And I want to have more immigrants, but if you're here for ninety days, you've got no complaint if we say, "We want to know where you are so we can make sure that you left after ninety days," and it does, given the complexity of this, if we were better at enforcing the ninety-day situation, I think that would have helped. Some of those people could have been kept out and that is a very important point that they tell me we're working on and I hope we are.

TOOBIN: Yes sir.

SPEAKER: Yes, just a chance to ask a follow-up on that question because it was similar to mine. You say that you don't know whether or not things would be different, Mr. Chertoff. Is there any duty on the part of the Justice Department or the Administration to outline why things went wrong and why this ... rather than being called before Congress in hearings, is there any duty before you press for a law, before you change the version that comes out of the House committee, to say instead, as you stated, today with vague notions that there were some things we knew before and there were some things we later learned that need to be addressed. Isn't there a duty on the part of government in a democracy to let us know what those things are, so that we can ask ourselves whether we have addressed those things with the quote, unquote PATRIOT Act?

CHERTOFF: I do think there is an obligation we have to go back and reflect on what might have been done differently. And I think that is what Congress is going to do and surely internally people have analyzed that and sought to ask that question, but remember, we don't have a lot of time. The decision to make changes was made with the recognition that terrorists were not going to give us a six-month time-out to go figure out what went wrong, and get a new law, and now we'll come back in six months. We did not know-and it's an important point to reflect on-because, in thinking about the whole way we've handled this and I really have compliments to pass out to Congress as well as the executive branch because, notwithstanding disagreements, everybody worked together in good faith. We operated in a situation where there was an enormous amount at stake in terms of human life, and no luxury of down time to reflect on what you ought to do. So at the same time that we made adjustments that we felt, based on a kind of rough and ready analysis, needed to be made. I think it was always obvious that in the fullness of time there would be a more complete and comprehensive analysis of what happened and what might be changed going forward. But the point is we don't have the luxury of waiting for that.

COLE: Why, then, did the Administration oppose a sunset if their notion was that in the fullness and fairness of time we would be able to assess it? Because they did oppose a sunset, and indeed many of the provisions in the law, including all the immigration provisions that I outlined, which I think are the worst, are not sunsetted at all. So if the Administration thought, well, we need this quickly, but we also recognize we need time to really think about this carefully, why not sunset it? In the immigration provisions I laid out, I've been told by government officials, none of them have actually been invoked yet. So here we are six months into it. This is something that John Ashcroft told Congress, "If you don't pass this overnight, essentially, the blood of the victims is going to be on your hands and we need this yesterday," and six months later they haven't even invoked it, and they opposed any kind of sunset. That seems to me like opportunism and grabbing as much as you can get at a time when you know you're going to get it, and not, "Well, let's think about this and reflect on it and come back to it in good time."

CHERTOFF: The point is you have to be able to both proceed to get the tools you may need at the same time that you do an analysis. You see, that's the key. Sometimes you get tools even if you don't necessarily know when you are going to need to use them, but when you need to use them, you have to have them handy. I think that is the approach that we took, bearing in mind always this fact, this overwhelming fact: if you guess wrong, a lot of people are going to die. So that puts a premium on making sure you have everything that you need at hand--

COLE: That doesn't answer why you didn't agree to the sunset.

CHERTOFF: Because I think frankly most of the areas of legislation in question are non-controversial and don't really require a sunset.

TOOBIN: All right, we're running low on time and I want to be able to get in some more questions. Beth.

WILKINSON: I just think we're asking the wrong questions. The question that this person asked about "Would it have stopped the terrorists on September 11?" is not the full question of the bill, it's "Will we prevent the next act?" And if we're always going back to the last one, of course not all these tools would have been used. But the point is when we realized the threat is so much greater than we had any idea, it makes the Oklahoma City bombing look like nothing, we had to reassess and figure out what tools would we need to stop a variety of acts, not just the same type of act that happened on September 11. I think you are asking the wrong question and when you talked about the sunset provisions, I'm not saying whether we should have them or not, but I think it's fair for the government to say, "Look, we may not know in six months or two years whether these tools were useful because al Qaeda is not on a time line, they are not going to commit them especially if we tell them within six months or two years so we may need some of these new tools, these more innovative tools to stop new acts that we can't totally anticipate right now."

TOOBIN: We're running real low on time so if we could have short questions and short answers that would be great.

SPEAKER: I have two questions for the entire panel. First--

WILKINSON: Big mistake.

TOOBIN: Breakfast will be served.

SPEAKER: Very briefly, number one, in terms of both the PATRIOT Act and military tribunals, what real substantive shanges in your views have been made in terms of protections?

TOOBIN: Can I exercise my veto power as moderator? It's like a lot of changes in the law. I mean, what's number two?

SPEAKER: If there were one or two things anybody had in mind I would be interested in the answer to that. Secondly, Professor Dershowitz has recently come out in support of [the] government overseeing torture and I just wondered what the panel's response is to that.

FRANK: I do want to say one thing about the military tribunals because one of the things that most bothered me about the Attorney General was when, in defense of the military tribunals, he completely denigrated the American criminal justice system. His comment when he said, "Well, what do you want? To have trials and hire Johnnie Cochran?" I mean that was the single most offensive thing he said. And I got to say if somebody on the left, in criticism of our war effort, had said, "And then there is the American criminal justice system. What a joke that is," et cetera, he would have been criticized for being unpatriotic. John Ashcroft's denigration of the American criminal justice system was wrong. In the first place, you are trying Moussaoui, you are trying Lindh. I realize you're doing it in Virginia and you know why they are doing it in Virginia? Because they closed the courts in Salem. Virginia is their next best choice, but

CHERTOFF: Of course we're trying Reid in Boston, so what does that tell us?

FRANK: You are bringing those trials .... John Ashcroft's denigration of the American criminal justice system was outrageous, and it turns out that the Administration, fortunately, didn't really believe it because the military tribunals at least at this point appear to be ... that just caused a lot of problems for no good reason.

SPEAKER: Short answer on torture.

TOOBIN: Okay. Sure. Torture, pro or con?

TAYLOR: Let me quickly disagree with Professor Dershowitz, first because he's Professor Dershowitz--

TOOBIN: Why do we have to talk about Alan Dershowitz? I mean, he is not even here. It's like this specter of Alan Dershowitz that hovers over all criminal law debate, just a pet peeve ....

TAYLOR: I think that most of us can imagine a situation hypothetically in which torture might be necessary. There is an atomic bomb somewhere in New York or a huge bomb and this guy knows where it is, when it's going to go off, that's the only way you can learn it, but I think in situations like that it's far fetched. You need a general rule that just says, "no torture." If you start crafting exceptions to that rule in advance, you degrade the whole principle. I think you should craft the exceptions on the spot if and when you need to.

TOOBIN: Yes sir.

SPEAKER: There are several aspects that are very troubling to me about it and I think one of them is that there seems to be a mixture between military and civilian function and military and civilian justice and much of what's being proposed. But also I think there are specific provisions and they are trying to adopt these here in a local bill in D.C., as well, that say that somebody engaged in public demonstration who also becomes involved in some act of violence and that isn't always on the part of the demonstrator,.... Well, I'm addressing the specifics of this because you can be then legally called a terrorist and face some mandatory sentence of ten years. But I think also I wouldn't rest as you do Congressman Frank about this witch hunt question. James Jarboe, identified recently in the papers as a terrorism expert to the FBI, publicly testified that the Earth Liberation Front is the largest and most active--

TOOBIN: We need a question here

FRANK: Let me respond. Yes, people will testify, people will say things. My statement was that there has been no act of repression against dissent by anybody certainly at the federal level that I'm aware of officially, and I don't know of any state and local with the exception maybe of a couple of public universities. The fact that some FBI terrorism agent says something doesn't constitute repression. I also think that the interpretation you gave, while I voted against the Act, is a very strained one at least under the federal Act. I think that is very, very unlikely ever to be invoked.

TOOBIN: Yes ma'am.

SPEAKER: There have been references made to searches at the airport being minimally intrusive and a lot of us have experienced them. Now I go into the airport, they take my shoes off, hey, like, I'm a white woman, I look totally innocent, I feel good about it, it's a duty to my country. But I don't think you can compare that to the Arab who feels uncomfortable in his skin right now, compound that with the feeling of an Arab in an airport which I can only imagine is just unbelievably uncomfortable and then have him searched, everyone staring at him, probably scared. So I just don't think that you can analogize the two as both, you know, "minimally intrusive."

COLE: Well said.

FRANK: I would disagree. I do think ... I am reluctant to have the government take into account people's hyper-sensitivity in some cases. If there is no real harm done to you, I don't think that is a problem. People stare at me when I'm being searched. I think people probably ....

COLE: But Barney, the reality is that we're white men, we're not profiled and so we don't have the experience of a young black man or an Arab person today who does feel ... who does have that experience and so it's a completely different experience.

FRANK: No it's not. In the first place, I have some experience with being different as a gay man and having been treated ... and I had to learn to differentiate if people aren't doing anything that's really going to be a problem, I don't worry about it. But secondly, if no harm is done, no foul. The extent to which people's unjustified feelings come up, unjustified in the sense that in the first place they are not the only people being searched, other people are being searched. Secondly, as I said, no harm whatsoever is being done. If in fact the search is unduly intrusive, if in fact people are ordered off the plane, this notion that pilots can simply order you off the plane is outrageous. That's of a different order. That's much more intrusive, but I think ... and I have also been, as a member of a group-from time to time, you are subjected to scrutiny. If no harm is being done and you are not being in any way disadvantaged, I am reluctant to think that there is any great problem.

COLE: And I guess I think if you had a public policy of searching every black passenger you did it in a very ....

FRANK: That would be wrong and we don't have one and it's not the same.

COLE: And if you did it in a very nice way, and non-intrusive way it would still be wrong and it would be wrong because of the singling out based on ethnicity and whatever the treatment is, it is the singling out ....

FRANK: Well, in the first place, it is simply wrong to say that they are the only ones who get searched. You've made that up. The fact is that a lot of people get searched. She got searched and she's not Egyptian, I think.

COLE: I am not suggesting--

FRANK: Well, you just said that--

COLE: No, that was a hypothetical Barney, that is what law professors do ....

FRANK: Which allows them to back away from it when it is challenged.

COLE: Exactly.

TOOBIN: Sir, you're on.

SPEAKER: I just wanted to ask, as each of these proposals came out, the USA PATRIOT Act and then the attorney-client privilege and some of these other things, the immediate reaction, it seemed, from civil liberties groups was constitutional concerns. The debate tonight seems to be more based on policy concerns. I was just wondering do any of the panelists still have constitutional objections or concerns with first the USA PATRIOT Act, but [also with] any of the [measures]?

FRANK: First of all, Beth mentioned the attorney-client thing was one of the worst and I hope somebody can bring some kind of a challenge. But with regard to some of this on the PATRIOT Act, the constitutional rights of immigrants, particularly immigrants who are here illegally, is very tenuous. Now there have been some good court decisions because Congress began being very abusive towards immigrants back in 1996 and there have been a series of very good decisions including--

COLE: It began in 1900, I think.

FRANK: That's right, but we got better in 1990.

COLE: 1990 was the high point.

FRANK: In 1990, we peaked, and then we've gone back down. But there have been several Supreme Court opinions and some circuit court opinions that are calling it into question, so I say it's an open question about the constitutionality of some of what has happened to immigrants. Traditional law has maybe been no, but there have been some good decisions from our standpoint that have begun to restore some constitutional rights for immigrants.

TOOBIN: We all turn into pumpkins at 9:30, so go fast.

SPEAKER: Okay, I think that racial profiling is damaging to our sense of community as a whole and Americans and how we look at each other. So my question is for those of you who are pro racial profiling, or national origin [profiling], would you feel comfortable looking in this room and picking out who's from the Middle East and who isn't? Because I feel there is a lot of ....

FRANK: No I wouldn't and I wouldn't try and it wouldn't be relevant. But when people are getting on a plane--

SPEAKER: But doesn't it affect how we as Americans look at each other?

FRANK: No, look-I must say I disagree with that. The fact is that Americans look at each other. I think you've got cause and effect confused and in fact we're not talking .... If only people from the Middle East, young men from the Middle East were being profiled, it would be, yes, a problem. There are a number of people, there are a number of criteria that are being used, and in very limited situations, getting on an airplane, when a lot of .... In the first place I think I have the least privacy getting on an airplane than in anything [else] I do. They look through my bag, they look through a lot of things, even if I'm not being singled out. And I think the marginal increment there is quite small and it is also the case that you don't do it just visually, you do do it, I would hope, by some of these other factors. But the notion that this is destroying the sense of community I think, as I said, has cause and effect reversed. That's not why people become suspicious of each other, because some people were searched at the airport.

COLE: I think it's part of why you destroy the community, and when you combine that with interviewing 5000 people because they are Arab--

FRANK: I wasn't for that--

COLE: Right. But it's a whole host .... You have President Bush going out and saying after September 11, "We can't treat people as suspicious based upon their ethnic identity, vigilantism is wrong, et cetera, et cetera. We're going to go against hate crimes," and then the government turns around and engages in the very same kind of national-origin-based suspicion that they are criticizing private citizens for engaging in.

WILKINSON: But look what the passengers did with Richard Reid. They got suspicious for a variety of reasons, right? He lit a match, how he looked, and they were right, and they prevented what would have been an incredibly tragic event that probably would have stopped air travel in the United States if there had been another plane blown up at that time. So I don't think-you're calling it racial profiling, I don't even like to call that, because that is not what it is. It's combining a certain set of factors and being suspicious based on those facts.

TOOBIN: And one factor is if you have wires sticking out of your shoes that's a... We'd all agree that that's a factor that may be considered.

FRANK: But nobody knew that, that was not a cause of suspicion.

WILKINSON: Nobody knew that. That is not why they first stopped him. They smelled the match and they looked at the guy and he was acting suspicious which people described before he got on the plane. The point is, I think people's suspicions come from some very real factors about what happened on September 11 and afterward, and I guess I agree with Congressman Frank that I don't think it is destroying the fabric of our society.

TOOBIN: Stuart, did you want to say something?

TAYLOR: Just quickly that I think there is a very big difference between national origin profiling because you are looking for drugs, say, and the imposition then, I think, may outweigh the gain. So you found some drugs? Big deal. We're talking about doing it to save maybe hundreds, maybe thousands of lives. I think the whole calculus is entirely different.

FRANK: I agree.

TOOBIN: That's an interesting point. Real fast, yes.

SPEAKER: A couple of you mentioned deterrence and I was wondering what you think the optimal punishment would be in terms of deterrence. Do you think the death penalty would serve that purpose at all?

TOOBIN: There's a small subject with two minutes to go. What do you think of the death penalty?

FRANK: In general, I think a sentence of life without parole is equivalent to the death penalty as a deterrent, but the qualitative problem we have here now is that it becomes, for law enforcement, an enormously more difficult job when you have a significant number of people prepared to kill themselves because the ability of the police to deter is then diminished. So deterrence, unfortunately, with some of these people doesn't work well. But on that specific issue, I think life without parole is equivalent in deterrence terms to a death penalty.

TOOBIN: Two more questions.

SPEAKER: I would like to hear from Ms. Wilkinson and Mr. Frank on this question regarding the racial profiling again. Would you find acceptable some system that profiled people based on suspicious behavior such as buying a one-way ticket, buying in cash, buying the same day, and particularly based on their known associations, which is something that Mr. Frank mentioned earlier, and leaving race or national ethnicity out of it entirely?

FRANK: I actually have more problem with known associations because you couldn't go after people on known associations unless you gathered information on everybody's associations. I mean literally, you've got to have a data base there, and one of the people we were meeting with today was talking about the photo I.D. system where they matched your photo as you went into the airport. Again, the question is what's in the data base and who put you there? So no, I don't want association in there, because that would require that somebody do a lot of associational data. The other things that you mentioned are part of it, but I do think that at this point, origin would be part of it. Look, we have difficulty, we recognize that-and people tell us that-there are angry people, we do polls and in certain countries people are angrier at us than elsewhere. It wouldn't only be those countries, there could be some others as well. But I agree with Stuart [in that] if you take into account the harm that you are trying to prevent, the zero actual harm that is being done, yeah, I would look at a bunch of factors.

SPEAKER: But wouldn't associations, whether you belong to a very angry, very extremist association, be more of an indication than what race you are?

FRANK: But the problem is that I don't want the government-that would be worse, because the government would then have to have all of the associations of all of us, and I don't want that kind of database to be collected and checked out, so I think that is a harm that is worse than the disease.

WILKINSON: It's also incredibly impractical. I mean, you have to think of it from the law-enforcement perspective. What can they do as you're walking into the airport and assess immediately? And you are talking about collecting information, and I agree with Congressman Frank that it is kind of frightening that you would have all this association data in some data bank that somebody ... you know the people who are checking you are not law-enforcement officers. The people who work for the airlines who check you in at the desk and then the security personnel: do you want them all having access to the groups that you associate with? I mean that's impractical and I think ....

SPEAKER: But what if you based it on nothing related to race and left the associations out of it? Also, would you consider that sufficient to be based on suspicious characteristics for your particular flight? Or would you consider ....

FRANK: How about age and gender?

WILKINSON: Yeah, what about gender?

TOOBIN: Yeah where are all the girl terrorists?

FRANK: Yeah, well, there aren't many, and I think gender is a legitimate factor because--

WILKINSON: Funny you should mention it-ther are zero.

TOOBIN: That's right, that ... I mean, that's different.

SPEAKER: I'm a New Yorker and I have to tell you that what keeps me up at night is not the thought of going home for the weekend on a plane but it's the thought of going up to Union Station, getting on the train where nobody checks me, nobody knows what I'm doing and the thought has crossed my mind every time I've gone home on the train whether the person in back of me has a bomb overhead that is going to blow up underneath Madison Square Garden. I often wonder when we look at changes like the PATRIOT Act, when we get mired down in details like looking at my shoes, which they've checked out mine so maybe I am a girl terrorist, are we not missing the big picture and are we not missing logical next targets? I believe, as I think many other people have said, that these terrorists are a lot smarter than we probably give them credit for, sometimes.

TOOBIN: Mike? What about that?

CHERTOFF: I think that's a very good point and I guess there is good news and bad news. The good news is, that perception you have is shared by everybody that I know who works on this at the FBI and the Department of Justice. Although it is true that we do tend to focus some of our attention on what happened. I think the Reid case actually is an illustration of why that is sensible. I mean the fascination with airplanes which goes back historically even with prior terrorist groups, but even with this group-in the 1990s there was a plot that hatched in Manila to blow up eleven or twelve planes simultaneously, which got foiled because somebody got picked up beforehand. But we do have to look at other things and we do do that. And there is a lot of focus on trying to kind of put ourselves in the mind-set of terrorists and try to harden vulnerable infrastructure, look for specific intelligence. But you are right, the great challenge here is not to spend all our time looking at the barn door that is open, but to look at the barn doors that are still locked and figure out how to keep do we them locked.

FRANK: But just to reassure you, if you want to blow up the Garden you wouldn't do it with a bomb on a train, that's not a good place. Seriously, if someone wants to blow up the Garden they will bring the bomb into the Garden. Actually the train is pretty far away from where it sits.

SPEAKER: It runs right under it.

FRANK: No, but that's a practical fact. The reason is trains are not-you can't use a train as a weapon. You can do damage on there, [but] why we sensibly put more worry on the airplanes [than trains is] because an airplane is a weapon and a train can't be made to jump the tracks and go up. But, yeah, there is a concern about bombs and things elsewhere.

TOOBIN: I think that's going to be the last word and I thank the American Criminal Law Review. And I thank our panelists and I thank you all for coming.