Two Law Professors Debate the Legality of the Patriot Act (2003)

She's also a regular columnist for the nation in Professor Williams. You heard the president referring to his desire to untie the hands of law enforcement by extending and refining the Patriot Act. What's the problem with that? I think the problem has to do with a general tendency of this administration to have expanded the powers of the executive at the expense of a balance of powers, particularly at the expense of the judiciary. That's troublesome. In addition, there's a continued shift from the very notion of a presumption of innocence toward a presumption of guilt or we can detain or hold until the defendant proves that he's not guilty. And thirdly, I think with these expanded policies there has been a great deal of secrecy about the standards used to enforce them, to apply them. There are unstated policies to which the executive, the police, the prosecutorial power located in the executive must be held accountable. And we have very little information about that through John Ashcroft's office or through any other administrative office.

Any specific objections to the extensions to the Patriot Act that have been proposed in the past couple of days deny bail to terrorist suspects, widening death penalties, bypass grand juries for administrative subpoenas. I think certainly the most troublesome, the deservedly the most controversial of those, is the attempt to bypass the judiciary in favor of so-called administrative subpoenas. I think the president referred to the fact that there are certain medical investigations that you can have an administrative subpoena. And that's sort of fast because those administrative subpoenas are usually associated with administrative sanctions, not criminal sanctions with life and death. And again, when one has the police power, when has the prosecutorial power, our system of government depends upon a balance of powers that the judiciary holds, the application of due process, the input of the community, through the judge or through the grand jury, certainly as well.

The power to deny bail, shifting the presumption essentially, so that in all cases for these so-called, for this laundry list of terror-related crimes, this new expanded list of terror-related crimes, the defendant would have to prove, rather than the state would have to prove the expansion of the tendency to fight. This is unnecessary. And when one looks at the list of crimes that would be included in this, it includes many which one does not think of as international terrorism, and the possibility of drawing, of essentially holding people with no good reason for extended periods of time, so that it begins to resemble the kind of detention we have that has been so controversial in other areas. I think that that's what this new bail proceeding risks. Professor Yu, you've heard Professor Williams bemoaning the added powers to the prosecution, what she perceives as power being drained away from the judiciary as a referee in some of these proceedings.

How do you respond? Well, I think the concern that this is unbalancing of the separation of powers, I don't think that's quite right. Look at the First Patriot Act. That was passed by overwhelming majorities of Congress. It's not that the executive said we're going to start doing this by ourselves. It was passed by Congress after proposal by the president, and the heart of the Patriot Act, which is issuing warrants to get voicemails to listen on telephone calls, emails, the records that the librarians are complaining about. Those are all issued by a judge. The executive branch has to go to a judge and say, this is why we think this person is linked to terrorism, and we want you to judge to look at the evidence and issue a warrant to allow us to get that information. So, in the Patriot Act, all three branches participate in the expansion of law enforcement powers under the Patriot Act. As to the specific proposals that the president made yesterday, those are, I think, evolutionary. There's no radical change in the way the government's going to do business.

For example, the denial of bail is already something that can be done to drug kingpins and embezzlers. This would just be adding terrorist linked suspects to that kind of treatment by the court system. Additionally, it's not that they're being held without charge without any kind of judicial review at all. When someone is arrested and arraigned, they're presented before a judge. The decision to make bail is something that Congress grants as a right and it can take it away. But it's not that the executive could go see someone off the street, throw them in detention, and they're never seeing a judge. They do see a judge. The other proposal about administrative subpoenas. Right now, under the Patriot Act, you can get a lot of this information, either through a grand jury, without a judicial review at all, or through a warrant where you go to a judge under the Foreign Intelligence Surveillance Act, ask for a warrant for a judge because a team can get it. This is an effort to make that simpler procedure. It does exist in other areas of the law, for example, environmental law, and a number of other regulatory schemes you can use administrative subpoenas. Look, it won't be the end of the world if the administration doesn't get it, but it would be helpful.

It would be an administrative convenience for the executive branch to get that kind of information through the simpler procedure. Are you troubled at all by the fact that it's kind of difficult to assess the impact of the original Patriot Act, even without these amendments, because it's so hard to gain the information about which cases it's been used and which cases the extended powers have been found to be useful? I understand why people like Professor Williams or other civil liberties advocates might be concerned, but there's a good reason for it, which is this is an area where we're trying to fight terrorists in a place where they act covertly and they can learn things from the way we conduct activities. So, for example, suppose we had to release information about all the secret warrants that the government was getting, and suppose they said 500 warrants were issued for telephone taps in San Diego. That's helpful to Al Qaeda, isn't it?

To know that we're concentrating efforts in San Diego, they would respond to their very sophisticated organization. They would respond to the information they see from our government releasing publicly. But it's not that it's not without oversight. Congress gets classified reports on the use of the Patriot Act under the use of the foreign intelligence surveillance act.