Patriot vs. patriot
One member of the Berkeley faculty helped write the USA Patriot Act.
Another stands ready to disobey it.
By Kerry Tremain
Illustrations by Victor Juhasz
Tom Campbell, dean of the Haas School of Business, welcomes visitors with a bowl of Hershey's chocolates. ("I'm a bit of an addict," he says.) His soft, measured voice puts the listener at ease--a talent surely honed during his many years in Congress--but there's no missing the steel in his convictions. The former Stanford law professor states flatly that the USA Patriot Act intrudes on our constitutional rights, and he is prepared to disobey the law and go to jail in order to test it.
John Yoo also speaks in mild but deliberate tones. A Boalt law professor and former deputy assistant attorney general in the Justice Department, Yoo helped write the USA Patriot Act. (USA PATRIOT stands for United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.) Speaking by phone from the University of Chicago, where he is spending the semester, Yoo stressed the danger of al Qaeda, the foe that he and other authors had in mind as they crafted the Patriot Act's provisions. In light of the terrorist danger, he finds civil libertarian outcries against the act inflated and ill informed.
Campbell and Yoo's different readings of the Patriot Act and its associated perils echo a national quarrel. At a time when American opinion splits down the middle over how George W. Bush's administration has waged the war against terrorism, divisions over the USA Patriot Act cut deep. To its supporters, the act modernizes the government's power to battle ruthless and well-organized terrorists. They argue that, before the act, intelligence agencies were handicapped in preventing tragedies like the one that struck the World Trade Center and Pentagon on September 11, 2001.
To its opponents, the Patriot Act abridges basic and hard-won constitutional protections. The complicated and lengthy bill was passed within a few weeks of the September 11 attacks. In the critics' view, John Ashcroft's Department of Justice simply sent a longstanding and overly aggressive prosecutorial wish list to legislators, who, under threat of being labeled soft on terrorism, enacted it with scant review. They say the Justice Department failed to show how the act's unconstitutional provisions would thwart terrorists and that the department has resisted congressional review of the effectiveness of those provisions against terrorism.
Like Campbell, many Berkeley faculty members, students, and administrators are particularly alarmed about the Patriot Act's potential impact on academic freedom and on individual rights to read, speak, and publish without fear. The act empowers the FBI to search the records, offices, and homes of anyone on campus without informing the person. It prohibits students or scholars from a handful of countries from participating in sensitive research, and forbids publishing the results of such studies.
"I was surprised by the breadth and depth of feeling among the faculty and students and staff for maintaining free and open discussion of research ideas," said Vice Chancellor Paul Gray. With Academic Senate Chair Catherine Koshland, Gray co-chaired a campus committee that reviewed the law's impact and made recommendations for a coordinated University response (see sidebar, page 18).
During an animated discussion of the law at the Academic Senate meeting last April, Campbell urged the campus administration to resist warrants served under the act in order to challenge the law in court. With hundreds of millions of federal research dollars at stake--"There's a big chunk of people in Washington who would be thrilled to end all federal funding to us," said Michael Nacht, dean of the Goldman Public Policy School and a former Clinton security advisor--the committee's recommendations fell short of Campbell's challenge to disobey. Nonetheless, the report urges the University to "assume a pro-active stance in encouraging the UC system to resist through legal challenge aspects of the USA Patriot Act that unnecessarily or excessively compromise the individual rights of faculty, students, and staff."
One of those rights, established by the Fourth Amendment, is that if the police or FBI want to search your home or office, they must convince a judge that they have "probable cause" to believe that you have committed or will commit a crime. They must also give you notice of the search warrant, which enables you to challenge the legality of the warrant and whatever evidence it turns up.
Before the Patriot Act, Congress did allow a narrow exception to the "probable cause" standard for investigations of foreign espionage. To obtain a search warrant under the Foreign Intelligence Surveillance Act (FISA), passed in 1978, the FBI only has to certify to a judge that it believes someone is a foreign agent. The FBI also is not required to notify the subject of the search. A secret federal court hears these special FISA cases.
The Patriot Act expands the use of the FISA court. Agents can now obtain search warrants by telling a judge that part of their investigation is "related to" terrorism--a lower standard than "probable cause." Since a criminal investigation can be "related to" a terrorist investigation, the traditional wall that separated FBI agents who pursue criminals and those who pursue foreign agents has been broken down.
In fact, that is one of the act's purposes. Some blamed this division for the failure to predict the September 11 attacks. Yoo claims this is a sensible reform and that the FISA standard is simply being extended to a group that requires it: international terrorists. Eliminating the requirement to notify the person searched, he says, is necessary to prevent a targeted terrorist from fleeing.
Campbell insists that the statute opens the door for prosecutors to trample the right to due process and to evade the Constitution's ban on unreasonable searches and seizures. This summer, Congress demanded information from the Department of Justice on its use of FISA warrants--and the report seemed to confirm Campbell's fears. It showed that the department employed FISA warrants against suspected drug traffickers, white-collar criminals, and blackmailers, among other non-terrorists.
A similar warrant executed for student or faculty records at the University, Campbell says, would violate fundamental freedoms. Gray and Koshland's report outlines a protocol for responding to such an event, and ultimately the chancellor would decide whether to legally challenge the warrant. But the precise criteria for such a challenge are not yet specified, nor is the form it would take. "Each case will be treated individually," said Koshland. "We're in uncharted water."
Although the report found no negative impacts in the areas reviewed--records and research--a new task force will focus on the law's adverse effects on foreign students and scholars coming to Berkeley. The next report is due January 1. "There's a lot of anecdotal evidence of problems," said Koshland. "We want to say: 'Here's our data. Here's the drop-off in foreign visitors and students. Here's the loss of revenue.' Then we may have grounds for persuading our legislators to alter the law."
John Yoo
Since the September 11 terrorist attacks, PBS's NewsHour has repeatedly turned to Boalt's Professor Yoo to defend the USA Patriot Act, which he helped author. Yoo clerked for Supreme Court Justice Clarence Thomas and served as General Counsel to Chairman Orrin Hatch on the Senate Judiciary Committee before joining the Justice Department under John Ashcroft. Yoo is confident, courteous, well versed in constitutional law, and comfortable with debate--good survival skills for a conservative Republican in Berkeley. In his television appearances and written articles, he has argued against affirmative action, for the Iraq war, and for the expanded powers permitted the Justice Department under the Patriot Act. He stresses two points: that the law is only a moderate and modernizing reform of existing law; and that fighting al Qaeda terrorists demands aggressive new tools and new levels of secrecy. Since al Qaeda monitors our press and politics, he said on the NewsHour, we can't let them see the methods we use against them. He argued that many legal proceedings must also be secret because, unlike criminal courts, which try someone for a crime already committed, "the justice system now is being reoriented to stopping future attacks."
Has the USA Patriot Act made America safer from terrorism?
It clearly has. It's expanded the powers of the government to conduct surveillance of terrorist activity and prevent new attacks. For example, it helped the government successfully prosecute terrorists in Portland who trained in the U.S. and attempted to reach Afghanistan to fight U.S. forces. Some other cases can't be made public.
Why is the Justice Department so secretive about how the act is enforced?
The al Qaeda terrorist organization is a very savvy, well-informed, adaptive, and smart enemy that operates inside and outside the United States. So you must be cautious about revealing too much in public. The Department of Justice does provide information to Congress, sometimes classified, sometimes not, to perform oversight.
Several congressional efforts to amend the act are underway, especially regarding section 215. Are concerns about potential civil rights abuses justified?
Section 215 allows the government to get a search warrant for third party records--records related to terrorism that are held by businesses, universities, libraries, and just about anyone else. The concerns about that are overblown. In some ways, the act creates more safeguards. You now have to go to a neutral judge and show why you think this information is relevant to a terrorist investigation.
Also, you don't have a constitutional right to privacy for those records. The general rule is: Once you give a record to someone else, you don't have a Fourth Amendment right to privacy any more. This includes records like credit cards and bank account information, which are not under your control. The same with library records; the objections to obtaining those are ridiculous. What makes libraries so special when hijackers clearly use Internet hookups in public libraries to conduct research and communicate?
A key complaint is that the act eliminates the probable cause standard for its search warrants.
With a warrant issued under the Patriot Act, the requirement is that the records must be related to an international terrorist investigation. It's very close to the standard that's used domestically for wiretaps of drug dealers. Last year, a federal appellate court ruled that, with the war on the al Qaeda terrorist organization, you don't necessarily need the same standard for a warrant as you'd need for garden-variety law enforcement.
Many people in Berkeley remember the FBI abuses of the '50s and '60s.
There is very little chance such abuses would happen now. The agencies themselves have internal safeguards. Congress is much more informed and involved with the way law enforcement performs its functions. The high separation between intelligence agencies and law enforcement agencies were in part an overreaction to what some bad people did in the '60s. We have seen the cost of this separation to national security.
Then why do you think there is so much concern?
There's a lot of exaggerated public criticism of the Patriot Act; it's become a vague term of reference for concern about civil liberties during wartime. I don't think that civil liberties in the United States after September 11 have been infringed upon. Senator Feinstein, our senator from California, said she gets thousands of letters complaining about the Patriot Act, but she's not aware of a single violation of a civil liberty because of it. Civil liberties are in remarkable shape in this war, especially when compared to wars of the past.
Tom Campbell
Campbell, dean of the Haas School of Business since 2002, taught law at Stanford, then served five terms as a Republican member of the House of Representatives from the South Bay. He stepped up his advocacy for civil liberties after an encounter in a Washington hallway in 1997. A Yemeni woman approached him and asked if he would help her brother, who had been held in a Florida jail without charges for three years. "I didn't believe that kind of thing could happen in America," he says. Ultimately, Campbell found 26 such prisoners being held and wrote a bill to end the practice. Despite 160 co-sponsors, it failed to reach the House floor. He did, however, win a symbolic victory in the House, when it voted to delete the cost of the imprisoning the 26 men from the Bureau of Prison's budget. That vote helped convince him that most Americans wouldn't support such a practice if they knew about it. "It was a remarkable day," he says.
What are your concerns about the Patriot Act?
The Fourth Amendment reads, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause." The Patriot Act allows criminal searches without probable cause.
As dean, I have custody over the e-mail system at the Haas School of Business. Under the Patriot Act, we could receive a subpoena for a person's e-mail records based upon something less than probable cause--the standard established by the Fourth Amendment. Under the Patriot Act, the subpoena could require that we not inform the subject. But if we did not inform that person, a violation of a fundamental freedom may have occurred. That person would also be unable to challenge the warrant.
Would you honor such a warrant?
I would follow the instruction of my superiors, Vice Chancellor and Provost Paul Gray and Chancellor Bob Berdahl. If they allowed me to exercise my own judgment, then I would refuse to comply with the warrant. I would allow the government to prosecute me, and then I would take the case forward because that's my duty. If I did not do that, then a violation of the constitutional rights of someone would never have been challenged. Only we can stand up for our freedom.
Have you urged Vice Chancellor Gray and Chancellor Berdahl to challenge such a warrant?
I would rather leave my communication to them out of this interview, but by making clear my own personal view, I think I've probably answered your question. The right and obligation to assert the University's position belong to the Board of Regents and the chancellor, who could remove me if I disobeyed a direct order. But I feel passionately about this. I would have to make a decision as to whether I wanted to work at an institution that would give me such an order.
Professor Yoo says that agencies have built internal safeguards against the kind of abuses seen here in the 1960s.
The fact that a law enforcement agency assures us their heart is in the right place and that they won't gratuitously violate our civil rights cannot be satisfactory. If that is satisfactory, we don't need the Bill of Rights and we don't need courts.
He also pointed to increased congressional scrutiny.
Constitutional protections are written for the people who are not popular. Don't count on Congress to stand up for what is unpopular--I speak from experience. Who would need a First Amendment to protect an essayist or a political columnist who said the incumbent was deserving of re-election?
After September 11, critics said the high walls between intelligence gathering and criminal investigation weakened our ability to prevent terrorism.
Aspects of the Patriot Act allow information sharing between the intelligence and law enforcement communities that are beneficial and do not violate the Constitution. But nobody has said: If only we could have kept somebody in jail incommunicado for a long period of time they would have told us about the plan. No one is saying that September 11 was preventable if we could have intercepted and read people's e-mail without probable cause.
Do you think that the Patriot Act in particular has made us safer?
It may have. You can always increase your security by sacrificing your freedom.
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