Patrick Leahy

Patrick Leahy

John Biewen: Can you remember when you first had thoughts about what this [9/11] might mean for the kinds of things that your committee deals with?

Leahy: Well, I thought about that almost immediately. I was chairman of the Judiciary Committee. I knew we'd be faced with a number of things - what are the law enforcement aspects of this? Remember, at this point we didn't know whether this was from outside the country or is this a Timothy McVeigh-type thing? The most horrible terrorist attack we had prior to that was Timothy McVeigh in Oklahoma City; is this a disgruntled person here? And there are a number of groups in the United States, I mean homegrown groups, that have raised questions about whether they want to change the government and everything else. All those thoughts were going through my mind. At that point, I really didn't know much of anything; I started getting calls from the FBI, from the Department of Justice, from the CIA, filling me in on what little we knew, which was not a great deal at that time. But this was really formative. I certainly wasn't sitting there within a few hours saying, "Okay, we've got to do this, this and this," because we didn't know enough about what happened.

Robert O'Harrow: At some point, you did conclude that laws had to be dealt with. There was going to have to be some reformation. Why don't you tell us a little bit about that process.

Leahy: Sure. I think we all knew that something had to slip through the crack. I mean, how could this happen? And it's not just one plane being hijacked, but three being hijacked, and we're getting reports that there may have been others-there may have been attempts on hijacking. First question is how in heaven's name did all of this slip through the cracks with airport security and everything else? So you started thinking, 'Do we need different laws?' Or, 'Do we have to use what we have a lot better than we have?' My inclination was we probably had a lot of laws already on the books, but we have to ask ourselves, where did they slip up?

Almost immediately, we got a reaction from the Department of Justice and from Attorney General Ashcroft with a major piece of legislation saying, 'We need all of this to make us safer.' At a quick glance, it appeared to be everything that could possibly be on a wish list, including a whole lot of things that had been rejected by the Congress before, by the Department of Justice. But they just threw everything in- plus.

Some were just saying, 'Well, we should just pass this today, we should pass this immediately.' I suggested maybe we ought to read it because there were some parts at just a first glance that were obviously unconstitutional. They were not going to bring back the lives that were lost on September 11, but they may create more problems in this country. And so it became a lot of negotiating back and forth about what we would put through.

There was a natural reaction, and I've seen it many, many times in this country, that when something like this happens, 'quick, pass a law.' You see it even at the local level; somebody's been burglarizing all these homes, 'quick pass a law.' Well, we have laws; the question is are they enforced? There was a reluctance to talk about how well they were enforced; rather there was an interest in having more laws.

I went down to the command center at the FBI; I was shocked at what I saw. They had people [on] open lines to Los Angeles, Miami, New York, other places. Information would come in, somebody would write it down, walk it over, hand it to somebody else, who would re-write it, who would hand it to somebody else, re-write it, and put it in a file. County sheriffs have far better departments than that. It turned out they had no ability to email the photographs of the people that they suspected. They were putting FBI agents on airplanes and flying copies of these photographs.

It was apparent at that point that if there was information that might have stopped them, there were so many cracks it could fall through that we ought to be looking at how do you plug those cracks, some of it mechanically.

I remember a discussion in the Cabinet room with the president. I talked about going over and seeing that; he said he'd gone over and he'd had exactly the same impression. For the most powerful nation on earth this was a pretty antiquated way of collecting information. It didn't have computers that could talk to each other.

Subsequently, we found out that there was more than just the computers in the information, there was an institutional problem. You had a well-respected agent in Arizona that wanted to talk to headquarters about the fact that some of these hijackers were out taking flight lessons and he had some concerns about it, and he was told this was basically 'You don't know enough about what you're talking about, just leave us alone. We'll decided if it's a threat.' Well, it was a threat. I mean these are the people that then hijacked a plane and killed thousands of Americans. So you had both institutional and mechanical problems.

The drive, however, from the Department of Justice was not so much addressed to the mechanical and institutional problems, but just 'pass more laws.' We had a Congress that did not want to appear to be favorable to terrorists and were ready to pass just about anything. The difficulty was to try to get it into more constitutional shape. Interestingly enough, one aspect of it, I was aided by very conservative members of Congress, almost Libertarian members-at that time Republican Majority Leader Richard Armey of Texas to put in "sunset" provisions on a number of parts of it so that we'd have to come back and revisit whether they really did improve our security.

O'Harrow: What are the key issues on "sunset" [provisions]? Give us three examples.

Leahy: Primarily, to what extent you can get records secretly, it becomes a little more complicated than that, but can you get records secretly. How long can you maintain surveillance without somebody knowing about it, to what extent do you diminish the usual type of efforts to get search warrants. That's an oversimplification but that's what it requires.

These are almost wartime-type provisions; these are the kind of thing you do, and the kind of restraints you're willing to do when you're actually in a war. I go back to the time of Abraham Lincoln and the Civil War when the armies were facing each other across the Potomac in the Washington area. It is hard to conceive of them having these kinds of powers to give to any administration during a time of complete peace.

O'Harrow: Why not go ahead and just let these authorities last, as the president and Attorney General John Ashcroft have asked for, ad infinitum? What's the risk to society? We trust our government, right?

Leahy: No we don't. Nobody should ever trust the government. We should love our country. We should all love our country. But we should always be skeptical about our government. And I don't care if it's Democratic or Republican-led government. We should be skeptical about that.

Remember, we want to be safer. We don't want to just feel safer. And much of this legislation didn't make us any safer. It might make us feel safer. There is an enormous difference. Are we willing to give up our basic liberties as Americans just to feel safer?

I go back to the statements of Benjamin Franklin. Here's a man [who] helped put together this country. Had they failed most of the people involved would have been hanged by the British. Instead they put together a government. They are now they are the government. They put in the Bill of Rights to protect the citizens from themselves. Benjamin Franklin said, in words like this, that any people who are willing to give up their liberties for security deserve neither.

What I want to make sure is that the liberties that have kept America safe and great-and I truly believe this is the world's greatest democracy-are maintained. What people have to understand, these extra powers extended ad infinitum do not make us any safer. Getting rid of the bureaucracy and mindset that refused to allow an FBI agent to raise to the highest level the concerns about those who are taking flying lessons because he suspected what they might be doing; remove the bureaucracies that stopped that from going to the highest level.

The safest thing in a terrorist attack is to stop a terrorist attack before it occurs. Now we seem to have an administration that more and more wants to make it appear we're doing something [more] than we are. They've listed, for example, these hundreds upon hundreds of terrorist arrests they've made. Then when they investigate - this is Syracuse University, with their track system- have gone into that, they find the vast majority of them did not result in any kind of prosecution and of those that did, the vast majority were for minor, insignificant things that might lock somebody up for a month or two, at best, [but] had nothing to do with terrorism. Just giving us numbers and saying look at how much safer you are doesn't make you safer.

O'Harrow: Does this all end when we resolve the Patriot Act? Or are we at the beginning of this struggle?

Leahy: I think we've made a mistake if we think the Patriot Act is the end all, be all of civil liberties in this country. It's not. We have a lot of things we can do, and do properly; search warrants, judicial warrants and all that, that we need to be able to do. I'm a former prosecutor; I know how important that is.

What we don't see are the things we don't see. And [those] are the enormous databanks that are going on, on every single American. The temptation is going to become more and more, especially in a polarized society and a society where there is a fear; whether it was the Red scare in the '50s, terrorism during this century, or whatever it might be, to use those databanks. At some point it reaches a blurring; it doesn't really make a difference whether they're government databanks or private databanks. If they're going to be used by the government to determine who is a good American and who is a bad American, not determined through prosecution or trial presumption of innocence or anything else, but based on what came up on somebody's computer screen. That frightens me very, very much. If I do nothing else during the rest of the time, whatever amount of time that is, that I'm in the Senate; I want to keep raising the issue.

Fortunately there are people in both parties, both the Republican and the Democratic parties, keep raising this issue. Many would say the horse is out of the barn, and to some extent it is, because there is no way of stopping all these banks. But there is a way of making public what the information is, on you. Today you can't do that. Tomorrow we better be able to.

Leahy: If the Patriot Act went away tomorrow, the issue of privacy is still here. Because in an electronic world, every time you use your credit card, use the Internet, you traveled, you bough gas, you've gone out to a restaurant, this goes into a databank somewhere. The computers are getting more and more sophisticated for the crosschecking and the profiling. All that profiling may be done by commercial interests. If it's then picked up by the government and used to determine what rights you're going to have as an American citizen, that is a danger.

The Patriot Act is almost irrelevant in that area. The question is, are those profiles of you going to be used to determine your rights? We all know it's wrong we have racial profiling, if an African American is stopped for a traffic matter that a White would not, that's so obvious. What is not going to obvious is going to be when millions of Americans find they can't get jobs, they can't get promoted, their kids can't get [into] college and all that, and it's all because in some government databank a profile said you're not the proper kind of American. And it's not going to make any difference whether you're White, Black, yellow, brown or anything else. There's not going to be any recourse. There's not going to be any right of appeal. That's where we have to stop.

I don't want to sound like George Orwell in here, but today that is what could happen. It's not going to make a difference whether it's the Patriot Act, whether it's Attorney General Ashcroft, whether it's a Democratic president or Republican president. The temptation will be there if the information is there. If the information is secret from the person who's included in it, then the temptation gets far, far greater.

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