Georgetown University Law Center PANEL DISCUSSION:
The USA-PATRIOT Act and the American Response to Terror: Can We Protect Civil Liberties after September 11?

A Panel Discussion with:
Congressman Barney Frank; Assistant Attorney General Michael Chertoff; Professor David Cole; Mr. Stuart Taylor, Jr.; Ms. Beth Wilkinson

Moderated by Mr. Jeffrey Toobin
March 6, 2002

...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 moresurveillance. 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].

...FRANK: I partly support what Michael [Chertoff] 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] [*1512] 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.

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.

...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.

...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.