Official Defends PATRIOT Act

The Department of Justice official who assembled the USA PATRIOT Act said in an Institute of Politics debate with an American Civil Liberties Union (ACLU) leader yesterday that the legislation continues to offer protection without infringing on rights.

Assistant U.S. Attorney General Viet Dinh ’90 told the audience at the John F. Kennedy Jr. Forum that he believes most criticism of the PATRIOT Act—which permits increased governmental scrutiny of civilians by authorizing techniques like secret subpoenas and wiretaps and by creating more stringent immigration controls—is excessive.

“I recognize that there are some genuine, if, in my opinion, unfounded fears relating to the PATRIOT Act,” he said. “But I disagree fundamentally that we have sacrificed any constitutional rights as a result of the act.”

But Carol Rose, executive director of the ACLU of Massachusetts, argued the legislation threatened rights by upping executive power without increasing security.

“They offer what I prefer to call ‘pretend security,’” she said of the act’s authors. “The line between terrorism and traditional civil disobedience has been blurred.”

Rose recounted a list of anecdotes about citizens who had been investigated under the PATRIOT Act for undertakings that had no apparent link to terrorism. An eight-year-old student, she said, was investigated after gathering information from the library for a research project on bridges.

Similar criticism came from the audience during a question-and-answer period. Maria Plati, a Kennedy School of Government graduate who now works for a cable programming company, said that she and her associates were accused of aiding and abetting terrorism for scheduling non-political programming from the Middle East via satellite.

But Dinh said such cases are anomalies. The PATRIOT Act increased security markedly by establishing countermeasures against the “pervasive and symmetric threat” of terrorism, he said.

Still, he said he recognized the potential for governmental power to spin out of control under dire circumstances.

“Part of terrorism is to goad democracies into illiberal responses,” he said. “The...task is to find the tools that are required for law officials to respond effectively while at the same time realizing that there will be opportunities for abuses.”

So far, Dinh said, such opportunities have gone unexplored. But he said he thought the Act’s provisions could be used more selectively as the Sept. 11 attacks receded further into the past.

“Should they be used more selectively, as a rapier rather than a broad sword?” he asked. “Certainly.”

Dinh said he thought legislation such as the PATRIOT Act remained important following Sept. 11 because a “war on terrorism” required some of the “deference” traditionally accorded to military bodies to be transferred to U.S. political leadership.

According to Rose, though, the government never lacked the capability to prevent the Sept. 11 terrorist attacks but rather lacked the organization to use existing information meaningfully. Information-seeking measures established in the PATRIOT Act will not make prevent terrorism, she said, comparing the Act’s method to the concept “that if you’re looking for a needle in a haystack, you put more hay on the stack.”

But Dinh said he thought that the increased scrutiny the act offers was necessary—and universally so. He said he did not support an exemption from certain PATRIOT Act restrictions for universities, a refinement higher education activists have been pushing.

“I think any restriction would not only be impractical, it would be counter-productive,” he said after the debate.

While Rose criticized the extension to local law enforcement of investigatory privileges formerly reserved for federal investigations, Dinh said he thought this provision enabled necessary communication.

“Terrorists don’t go around wearing t-shirts saying ‘I’m a terrorist,’” he said. Because of the inherent difficulty in identifying subjects for further scrutiny, he added, investigative methods should not be segregated.

Asked by Juliette N. Kayyem ’91, who moderated the talk, whether she thought that the lack of a second major terrorist act was evidence of the legislation’s success, Rose said that she—and the ACLU chapter she represents—was not opposed to all of the PATRIOT Act’s recommendations. Many, though, overstepped the boundary of constitutionality based on their infringement of rights, she said.

According to Dinh, Rose’s expectations were unrealistic. Anonymity is not constitutionally guaranteed, he said.

“Do not mistake privacy with anonymity,” he said.

Dinh also cast aside allegations from Rose and the audience that the PATRIOT Act was hastily drafted.

“It was the most deliberate process I’ve ever participated in,” he said.

—Staff writer Nathan J. Heller can be reached at heller@fas.harvard.edu.