Debate Rages on 4-Year Anniversary of Patriot Act

The debate over the Patriot Act's surveillance and security provisions continues, four years after President George W. Bush signed it into law. Madeleine Brand discusses the Patriot Act and its implications with Richard Gid Powers, history professor at the City University of New York, and Georgetown law professor David Cole.

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NOAH ADAMS, host:

It's DAY TO DAY from NPR News. I'm Noah Adams.

It's four years this week since President Bush signed the Patriot Act into law. It expanded law enforcement's ability to go after suspected terrorists, but civil libertarians say it goes too far and punishes innocent people. Today on the program, the second of our two-part series continues. We hear two opinions on what should be the government's response to security threats. Here's our colleague Madeleine Brand.

MADELEINE BRAND reporting:

Yesterday, we heard a report about how the government responded to threats in the past, notably the Communist threat during the Cold War. Today, we move to the present and see what's changed. I'm joined by two experts who've written on the government's response to terrorism. David Cole is a law professor at Georgetown University, and Richard Gid Powers is a history professor at City University of New York.

First to Professor David Cole. As opposed to the past, the '50s in particular when this country faced a national security threat, we are not interning people like we did during World War II. We're not punishing people for being members of groups like the Communist Party. So haven't we learned something from the past?

Professor DAVID COLE (Georgetown University): Well, I think we have learned something from the past, but I think it's in much more significant ways we are repeating the mistakes of the past. So what we ought to have learned is that when the government sort of puts aside fair processes for distinguishing the innocent from the guilty, when the government adopts broad statutory violations like guilt by association or criminalizing speech or today criminalizing material support to proscribed groups, many, many innocent people get harmed. Many resources are wasted on people who don't, in fact, pose any real threat whatsoever.

BRAND: Professor Powers, what do you say to that, to the notion that not only do these new measures violate civil liberties but they're simply not effective?

Professor RICHARD GID POWERS (City University of New York): Well, I kind of look at it from a slightly different angle. I wouldn't advocate anything that minimizes or erodes American civil liberties, but I think that in both the McCarthy era and today, there was an effort to politicize a threat. No one would disagree that there is a terrorist threat today, but I think that the action on the part of the government politicized it and I think deliberately politicized it, so that something like 9/11 which should have actually unified the country in a commonsense reaction against terrorism, instead has split the country apart.

BRAND: The Patriot Act expanded the government's ability to conduct covert surveillance. It allowed for the easier deportation of people. Aren't those things that we need in terms of tools to fight potential terrorism, what you call, Professor Cole, preventive law enforcement?

Prof. COLE: Well, that's certainly the government's contention. I don't think the evidence bears it out. I mean, for example, the fact that not one of the 5,000 foreign nationals who've been detained, largely using immigration authorities, turned out to be a terrorist. So these are misses, not hits, in terms of finding any actual terrorist.

BRAND: People look at 9/11 and they see who conducted the attacks and they think, `Well, if you're logical about it, you should go to the Arab or Muslim communities and look there first.' So when is targeting justified?

Prof. COLE: Well, targeting is certainly justified if you're targeting perpetrators. What's impermissible is to say because the 19 hijackers were Arab and Muslim men, we should treat all Arab and Muslim men as presumptively suspect.

Prof. POWERS: The comment that was made about not profiling groups is very well taken, but the only alternative for that is for the FBI to know about groups so that it then can investigate people who are likely suspects. And the way they do that is by developing informants in communities. And they would do this in some cases by walk-ins, people that want to cooperate with the FBI; in other cases, they would turn people. But in any case, they have to know a lot about these groups. I would agree that the divisiveness created by actions like the Patriot Act is counterproductive because the only way the FBI can function is if the public trusts it. And in that sense, the Patriot Act has certainly kept the FBI from doing its job in that respect.

BRAND: Well, why can't the FBI be effective without compromising civil rights?

Prof. POWERS: Oh, it certainly can. And that has to be its goal. What happened really under Louis Freeh was that the FBI internalized an extreme civil libertarian perspective and that, of course, was the situation most notoriously in the FBI's reaction to the Phoenix memo which proposed to the bureau that they do a nationwide canvas of flight schools to see if there was a pattern of Middle Eastern men taking flight training in ways that raised suspicions among their flight instructors. That was certainly commonsensical, and yet a supervisor in Washington said, `It smelled like ethnic profiling; the FBI isn't going there.'

BRAND: The larger scope, though, of the FBI's investigations since 9/11 have focused a lot on purported suspects who have gone to terrorist training camps or who have fought in Afghanistan or those kinds of activities with the assumption that they then would have turned those activities against the United States.

Prof. COLE: That's right. And, you know, I don't think there's anything wrong with investigating people who have gone and trained in a terrorist training camp. I don't think there's anything wrong with making it a crime to go train in a terrorist training camp. There are very few such cases, actually, but the most prominent case is the young men in Lackawanna, New York, who were taken up by a charismatic religious leader who got them to go to Afghanistan to attend a training camp. They came back to the United States and the FBI properly put them under investigation and conducted massive surveillance of these individuals for more than a year.

Prof. POWERS: Well, when we talk about these prosecutions, of course, the FBI doesn't prosecute anyone. These are decisions made by US attorneys and by the Justice Department. And in many of the cases that I've read about, they've been misguided. I think that the FBI is at this point much more a creature of the Justice Department and of US attorneys than it used to be.

BRAND: And, Professor Cole, what would be your prescription then for how the government should handle this threat?

Prof. COLE: Focusing on the enterprise, investigating suspicion of crime when you have suspicion, but not going out and sweeping up thousands of people who you have very little evidence on, rounding up large numbers of them and thereby alienating the very communities that we need to get intelligence from if we're going to find the actual terrorists and reduce the animosity towards the United States.

Prof. POWERS: I would say that that kind of analysis makes so much sense. But the fact that the administration did not go in that direction leads me to believe that they deliberately rejected a consensus approach and wanted to turn it into something that was politically divisive.

BRAND: Richard Gid Powers is a professor of history at the City University of New York. His latest book is "Broken: The Troubled Past and Uncertain Future of the FBI." David Cole is a law professor at Georgetown University. His latest book is "Enemy Aliens: Double Standards & Constitutional Freedoms in the War on Terrorism."

And thank you, both of you, very much for joining us.

Prof. COLE: Thank you.

Prof. POWERS: Thank you.

ADAMS: That interview by NPR's Madeleine Brand. You can read what supporters and opponents have to say about the Patriot Act's most controversial sections and about the law's alleged successes and abuses at our Web site, npr.org.

More to come on DAY TO DAY from NPR News.

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