Return to Transcripts main page

American Morning

Court Ruling Could Revolutionize How Justice Department Wages War on Terror

Aired November 19, 2002 - 07:32   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


PAULA ZAHN, CNN ANCHOR: A court ruling could revolutionize how the Justice Department wages its war on terror. A special federal appeals court handed Attorney General John Ashcroft a victory, clearing the Department to use broad new wiretapping powers. But some worry that civil liberties could be trampled on.
Kelli Arena reports.

(BEGIN VIDEOTAPE)

It's a big victory for Attorney General Ashcroft.

JOHN ASHCROFT, ATTORNEY GENERAL: This will greatly enhance our ability to put pieces together that different agencies have. I believe this is a giant step forward.

ARENA: An appeals court backs Ashcroft's view that the Patriot Act, the new anti-terrorism law, gives the government more flexibility in how wiretap information is used. Wiretaps, otherwise known as FISAs, and issued by a secret court at the Justice Department, are no longer limited to intelligence gathering missions, but can be used to build criminal cases as long as an individual is acting on behalf of a foreign power. Critics say that is dangerous.

ANN BEESON, SENIOR ATTORNEY, ACLU: As I say, our primary concern is that they are going to use the FISA law as an end run around the fourth amendment and spy on citizens when they have no probable cause to believe that those citizens have committed a crime.

ARENA: But one lawyer who used to work for the National Security Agency says the new wiretap rules are a crucial tool for tracking down terrorists.

STEWART BAKER, FORMER COUNSEL, NATIONAL SECURITY AGENCY: If we use them effectively, we'll catch them when they get sloppy, which happens, and we will deny them the use of modern telecommunications for many of the activities that they want to carry out.

DAVIS (on camera): Under the law governing the secret court, the decision cannot be appealed. But legal experts say that the issue could make its way to the Supreme Court if a convicted terrorist or spy challenges the way that information was gathered which led to that conviction.

Kelli Arena, CNN, Washington.

(END VIDEOTAPE)

ZAHN: So where is the line between personal liberties and national security?

Let's turn to our legal correspondent Jeffrey Toobin -- good morning.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Hi.

ZAHN: Let's take a look at some of the specifics of what was decided by the federal appeals ruling. The Justice Department has more latitude for wiretapping and the monitoring of the Internet. It lifts some of the restrictions, as we've just said, on monitoring and removes the wall between intellectuals and the criminal arms of the Justice Department.

What does that mean to the average U.S. citizen?

TOOBIN: What it means is that it's just a lot easier for the Justice Department to conduct surveillance. It used to be that there was sort of two categories of surveillance that the FBI did. The FBI was sort of divided in half. It was really the legacy of the cold war. You had foreign intelligence, you know, chasing Soviet spies, and criminal investigations, you know, chasing John Gotti.

That line, this court decision really sort of eliminates that line and makes it easier for both sides to do wiretapping. You know, that's good if people are looking for, you know, if that makes it easier to track terrorists. It's bad if the FBI abuses that power and there is not much oversight there to determine what the FBI is doing. It's very much sort of trust me legislation.

ZAHN: Well, what kind of oversight exists right now?

TOOBIN: Well, in criminal cases when someone is charged with a crime, they can, the person who's charge can challenge the wiretap, can say that the surveillance was done illegally. What this bill...

ZAHN: After the fact.

TOOBIN: After the fact.

What this bill does is even if there is no prosecution, there's going to be more wiretapping. So there really isn't much oversight. There's Congress, if Congress wants to hold hearings, but there is not -- and there's the Justice Department's internal checks, and there are lawyers who monitor what the FBI does. But in terms of outside scrutiny, there really isn't much.

ZAHN: So what do you see as the potential for abuse here?

TOOBIN: Well, the potential for abuse is whenever the FBI or the government has unfettered discretion, sometimes it has been abused. You know, the most famous examples being, you know, when the FBI monitored Martin Luther King's personal life. I mean that's considered sort of the classic example of FBI abuse. Here, there's no particular evidence that the government has done anything like that with this, with its recent powers, but the problem is, with this legislation, is we probably just won't know if there is a problem.

ZAHN: So there's really nothing an American citizen can do to protect himself or herself from potential monitoring?

TOOBIN: Absolutely not. There is nothing you can do. And the whole point of this legislation is that it's secret, that you don't know that you're being monitored, because otherwise what good would it do?

ZAHN: Let's come back to some of the concerns civil libertarians have with the Homeland Security Bill, the ability of the government to track information through your bank records, Internet, e-mail transactions. Is this a big deal?

TOOBIN: Well, it could be. I mean John Ashcroft decided after 9/11 that the Justice Department was going to completely change its focus. Instead of catching criminals who have already committed criminal acts, the whole idea now is prevention because prevention, the...

ZAHN: That sounds pretty good to the average person sitting out there very much affected by September 11...

TOOBIN: Well, it does. It does and...

ZAHN: However...

TOOBIN: And it may be good, too. But the risk is that when you're just, when you're preventing people, they haven't done anything wrong yet. You are looking for some excuse, whether it's a small violation like an immigration violation, to catch them before they've done something really bad. And Ashcroft says and I think, you know, there's some justification to this, we simply can't take the risk. The stakes are too great to let a crime take place because the crime is so huge. So we are going to look for every little violation by potential terrorists and grab them, whether it's, you know, a credit card matter, an immigration matter, grab them before they do something bad.

ZAHN: Will most Americans tolerate that?

TOOBIN: I think they will. I mean, I think, you know, the culture in America has always been very pro-law enforcement and after, and after 9/11, I think the country is just willing to give the government a few more tools in its tool case than take the risk. But if there are abuses, and abuses tend to be found out, that may change the, people's attitudes.

ZAHN: Jeffrey Toobin, always good to see you.

TOOBIN: All right. ZAHN: Thanks for drop[ping by. You're usually working both sides of the clock. Sometimes he works late in prime time, but he's always willing to come here early in the morning.

TOOBIN: Absolutely.

ZAHN: Delighted.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com




Wages War on Terror>


Aired November 19, 2002 - 07:32   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
PAULA ZAHN, CNN ANCHOR: A court ruling could revolutionize how the Justice Department wages its war on terror. A special federal appeals court handed Attorney General John Ashcroft a victory, clearing the Department to use broad new wiretapping powers. But some worry that civil liberties could be trampled on.
Kelli Arena reports.

(BEGIN VIDEOTAPE)

It's a big victory for Attorney General Ashcroft.

JOHN ASHCROFT, ATTORNEY GENERAL: This will greatly enhance our ability to put pieces together that different agencies have. I believe this is a giant step forward.

ARENA: An appeals court backs Ashcroft's view that the Patriot Act, the new anti-terrorism law, gives the government more flexibility in how wiretap information is used. Wiretaps, otherwise known as FISAs, and issued by a secret court at the Justice Department, are no longer limited to intelligence gathering missions, but can be used to build criminal cases as long as an individual is acting on behalf of a foreign power. Critics say that is dangerous.

ANN BEESON, SENIOR ATTORNEY, ACLU: As I say, our primary concern is that they are going to use the FISA law as an end run around the fourth amendment and spy on citizens when they have no probable cause to believe that those citizens have committed a crime.

ARENA: But one lawyer who used to work for the National Security Agency says the new wiretap rules are a crucial tool for tracking down terrorists.

STEWART BAKER, FORMER COUNSEL, NATIONAL SECURITY AGENCY: If we use them effectively, we'll catch them when they get sloppy, which happens, and we will deny them the use of modern telecommunications for many of the activities that they want to carry out.

DAVIS (on camera): Under the law governing the secret court, the decision cannot be appealed. But legal experts say that the issue could make its way to the Supreme Court if a convicted terrorist or spy challenges the way that information was gathered which led to that conviction.

Kelli Arena, CNN, Washington.

(END VIDEOTAPE)

ZAHN: So where is the line between personal liberties and national security?

Let's turn to our legal correspondent Jeffrey Toobin -- good morning.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Hi.

ZAHN: Let's take a look at some of the specifics of what was decided by the federal appeals ruling. The Justice Department has more latitude for wiretapping and the monitoring of the Internet. It lifts some of the restrictions, as we've just said, on monitoring and removes the wall between intellectuals and the criminal arms of the Justice Department.

What does that mean to the average U.S. citizen?

TOOBIN: What it means is that it's just a lot easier for the Justice Department to conduct surveillance. It used to be that there was sort of two categories of surveillance that the FBI did. The FBI was sort of divided in half. It was really the legacy of the cold war. You had foreign intelligence, you know, chasing Soviet spies, and criminal investigations, you know, chasing John Gotti.

That line, this court decision really sort of eliminates that line and makes it easier for both sides to do wiretapping. You know, that's good if people are looking for, you know, if that makes it easier to track terrorists. It's bad if the FBI abuses that power and there is not much oversight there to determine what the FBI is doing. It's very much sort of trust me legislation.

ZAHN: Well, what kind of oversight exists right now?

TOOBIN: Well, in criminal cases when someone is charged with a crime, they can, the person who's charge can challenge the wiretap, can say that the surveillance was done illegally. What this bill...

ZAHN: After the fact.

TOOBIN: After the fact.

What this bill does is even if there is no prosecution, there's going to be more wiretapping. So there really isn't much oversight. There's Congress, if Congress wants to hold hearings, but there is not -- and there's the Justice Department's internal checks, and there are lawyers who monitor what the FBI does. But in terms of outside scrutiny, there really isn't much.

ZAHN: So what do you see as the potential for abuse here?

TOOBIN: Well, the potential for abuse is whenever the FBI or the government has unfettered discretion, sometimes it has been abused. You know, the most famous examples being, you know, when the FBI monitored Martin Luther King's personal life. I mean that's considered sort of the classic example of FBI abuse. Here, there's no particular evidence that the government has done anything like that with this, with its recent powers, but the problem is, with this legislation, is we probably just won't know if there is a problem.

ZAHN: So there's really nothing an American citizen can do to protect himself or herself from potential monitoring?

TOOBIN: Absolutely not. There is nothing you can do. And the whole point of this legislation is that it's secret, that you don't know that you're being monitored, because otherwise what good would it do?

ZAHN: Let's come back to some of the concerns civil libertarians have with the Homeland Security Bill, the ability of the government to track information through your bank records, Internet, e-mail transactions. Is this a big deal?

TOOBIN: Well, it could be. I mean John Ashcroft decided after 9/11 that the Justice Department was going to completely change its focus. Instead of catching criminals who have already committed criminal acts, the whole idea now is prevention because prevention, the...

ZAHN: That sounds pretty good to the average person sitting out there very much affected by September 11...

TOOBIN: Well, it does. It does and...

ZAHN: However...

TOOBIN: And it may be good, too. But the risk is that when you're just, when you're preventing people, they haven't done anything wrong yet. You are looking for some excuse, whether it's a small violation like an immigration violation, to catch them before they've done something really bad. And Ashcroft says and I think, you know, there's some justification to this, we simply can't take the risk. The stakes are too great to let a crime take place because the crime is so huge. So we are going to look for every little violation by potential terrorists and grab them, whether it's, you know, a credit card matter, an immigration matter, grab them before they do something bad.

ZAHN: Will most Americans tolerate that?

TOOBIN: I think they will. I mean, I think, you know, the culture in America has always been very pro-law enforcement and after, and after 9/11, I think the country is just willing to give the government a few more tools in its tool case than take the risk. But if there are abuses, and abuses tend to be found out, that may change the, people's attitudes.

ZAHN: Jeffrey Toobin, always good to see you.

TOOBIN: All right. ZAHN: Thanks for drop[ping by. You're usually working both sides of the clock. Sometimes he works late in prime time, but he's always willing to come here early in the morning.

TOOBIN: Absolutely.

ZAHN: Delighted.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com




Wages War on Terror>