On the wall of Viet Dinh's office at Georgetown University, where he now teaches law, there's a large color photo of Dinh being sworn in as assistant attorney general for legal policy in May of 2001. The photo is signed by John Ashcroft with the words, "Thanks for being a great American." In that job with Ashcroft's Justice Department, Dinh was a primary author of the USA Patriot Act in the fall of 2001.
(Courtesy Department of Justice)
Viet Dinh: On September 11, after the first National Security Council meeting, the President turned to the attorney general and said, "John, you make sure this does not happen again." And the attorney general, turning to his leadership team at the Department of Justice, asked us to take a top-to-bottom review of the legal authorities, the resources and the operations of the department to make sure that we have adequate resources in order to combat terrorism - and not simply to combat terrorism, but to carry out the charge of the president: to prevent another catastrophic attack on the American homeland. And, knock on wood, the attorney general, the Department of Justice and all of our counterparts in state and local law enforcement and intelligence communities have been successful in doing that despite the continuing threat of terrorism throughout the world.
The task that fell upon the Office of [Legal] Policy, which I headed, was to orchestrate a set of legislative and administrative reforms to give law enforcement all the legal authorities consistent with the Constitution in order to combat the terrorism in the long run, and to prosecute the investigation into the 9/11 disaster in the short run. We immediately set about that task by convening a group of high-level policy makers and vetters within the Department of Justice, and putting out a department-wide call for ideas and suggestions backed up by operational stories where the investigators had been hampered in the past, and what are the practical and structural reforms in law necessary for us to carry out the charge of prevention.
Robert O'Harrow: Tell us what, in some broad strokes, needed fixing, and where did those rules come from?
Dinh: There are a number of areas where, prior to September 11th, our country was in great need of improvement, simply because terrorism was not on the forefront of American public policy. I think our country was in somewhat of a self-denying malaise, thinking that catastrophic terrorist attacks is something that happens in the Middle East or Europe, but never in the American homeland, despite some indications in the past. And to its credit the Reno Justice Department did propose a number of ideas to Congress to combat terrorism. And, we built upon those ideas, and also, we looked at the excellent work of Sen. [Gary] Hart and Sen. [Warren] Rudman and the Hart-Rudman Commission on combating terrorism. The report of that commission came out about a year before. And so we looked at the situation, and there were three broad areas: One, intelligence and law enforcement needed to communicate better and to coordinate action better in the combating of terrorism. We were no longer in the Cold War world whereby we would collect intelligence for the sake of collecting intelligence, to know what other countries are thinking and doing. Other countries are much more responsible than terrorists. In a counterterrorism world, we need actionable intelligence; we need intelligence that can be transmitted to law enforcement so that law enforcement can take action in order to disrupt and to prosecute nascent conspiracies that would do harm to the security of America and the safety of our people. We needed to relax the legal barriers and the cultural and organizational barriers that prevented such coordination and sharing of information. The second broad area is we needed to update the law to the technology.
The law of government intercept of criminal or terrorist conversations and conspiracies were first drafted as Title 3 of the 1968 Omnibus Crime Act, when communication was effected through rotary telephones and analog lines. In 2001, in 2003, in 2005, that same function of communication can be affected through a myriad of means: wireless, digital, Internet, and a whole host of other methods for criminals and terrorists to communicate their plans. And the law needed to keep pace while, at the same time, preserving the same judicial safeguards and authorizations that protect the privacy and civil liberties of law-abiding Americans.
O'Harrow: Give a concrete example. When you say they can communicate via such and such, what are we talking about? What did you see from - in your deep investigations and so on? How were they actually communicating?
Dinh: There were a number of methods that criminals and terrorists were using to evade communication surveillance by authorized agencies. For example, cellular telephone and cellular telephone lines have become relatively inexpensive, such that it is functional for criminals and terrorists simply to use a cell phone for a very limited period - 24 hours, 12 hours and the like - and constantly to throw away those phones and switch into other phones in order to evade detection. A wiretap that is authorized by a court, previous to the USA Patriot Act, can only attach to a device - that is, a particular phone. And by switching phones and throwing them away, they forced the investigators to constantly go back to court in order to get a new authorization for a new phone. And that is a significant lapse in our ability to intercept communications. The USA Patriot fixed that by giving authorities the ability to do roving wiretaps, that is wiretapping authorized by a court to target a specific individual and any communication device that he would be likely to use. I think that is a critical, critical part of the improvement.
Another example is that we saw terrorist cells actually setting up Internet service providers in order to evade lawfully authorized communications intercepts. And the USA Patriot Act, by making advances in the legal authorities to intercept, fluidly, communications in the Internet world, was able to close down these kinds of loopholes. That's why it is so critical to understand the authorities Congress gave in the USA Patriot Act not as an increase in the size of the intercept or communications surveillance net, but rather, simply to patch the holes in the net that were - that were pre-existing. It doesn't matter how big the net is. If there are holes in the net, then the fish will get away. What Congress did was to patch those holes, thereby making only incremental changes in the law, but changes that have an exponential effect in our ability to collect information related to terrorist and criminal plans.
A third area that we found was that the law punishing terrorism and the legal authorities for us to investigate terrorism were, in some areas, not reflective of the priority that terrorism now should be in our policy. For example, we had ample authority and punishment for drug crimes and even healthcare fraud. And a major part of the USA Patriot Act is to make sure that the law reflects the seriousness of how we consider terrorism, making it at least in parity with drug crimes and other crimes that plague our society.
Dinh: There is no question that the success of law enforcement intelligence agencies in preventing terrorism in the aftermath of 9/11 would have been much more difficult, if not impossible, without the tools and authorities of the USA Patriot Act. The relative safety that we enjoy today is owed to the hard work and courage of Congress after 9/11 to pass these measures. And, it has worked wonders in our ability to combat terrorism while maintaining the respect for civil rights and civil liberties of law-abiding Americans.
O'Harrow: But, it sounded like you may share some of the concerns about what might happen going forward if -
Dinh: I think that in a democratic government, we should always distrust governmental authority. And so, I think the debate over the USA Patriot Act, even though it has been properly implemented, is one that rings true well into the history of this country. To the extent that Congress can think of creative ways to dissipate those fears by limiting the potential for governmental abuse, I think I am all for that. I think that we should be focusing on how to have the cake and also the frosting, rather than taking away the cake and throw it down the sink.
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