‘We Need These Laws’

American Legion Magazine Interview, April 2004

Terrorism expert Victoria Toensing dispels myths surrounding the PATRIOT Act

In the wake of the devastating attacks of Sept. 11, 2001, Congress acted swiftly to approve new legislation aimed at preventing future terrorist aggression against the United States and its citizens. The legislation was given a lengthy title: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001.

Also known as the USA-PATRIOT Act, or USAPA, the act amends some 15 pre-existing laws, giving increased surveillance and investigative powers to U.S. law-enforcement agencies. Although the PATRIOT Act at first was hailed as a powerful tool to combat and prevent terrorism, the act has come under increasing criticism from opponents who charge that it violates civil rights.

One of the act’s strongest advocates is longtime terrorism expert Victoria Toensing. A former deputy assistant attorney general in the criminal division of the Department of Justice, Toensing established the department’s terrorism unit. She worked on a number of high-profile cases, including the bombing of Pan Am Flight 830 and the takeover of the cruise ship Achille Lauro.

Toensing has served in other key posts, including chief counsel to Sen. Barry Goldwater when he was chairman of the Senate Select Committee on Intelligence. Now an attorney in private practice, Toensing says many criticisms of the PATRIOT Act are based on misunderstandings or misrepresentations. She recently discussed the law with The American Legion Magazine.

The American Legion Magazine: Why did you become an expert on the PATRIOT act?

Victoria Toensing: I have been involved in terrorism legislation and the prosecution of terrorists from early on. I started the terrorism section at the Justice Department. That was in the mid-1980s. Up until then, we weren’t prosecuting terrorism cases outside the United States. We had no jurisdiction. We prosecuted cases pursuant to a multilateral treaty. Before the Achille Lauro case (wherein terrorists seized a cruise ship and threw a wheelchair-bound passenger overboard), we had legislation in place for hijacking, but we didn’t have it for shipjacking. We had to pass more legislation. We thought we had it covered then, but we didn’t have it covered. Another terrorism case – the shootings at the Rome airport (in 1985) – was not covered. We had to pass additional legislation. Our legislation started out for hijackings and shipjackings, and it grew to cover any terrorist act outside the United States in which Americans are victims. While I was at the Justice Department, those types of cases were under my jurisdiction. I was there at the very beginning. I always had an interest in terrorism, but other people did not.

TALM: What does the USA-PATRIOT Act do?

VT: It does a lot of things. You really can’t just say, “the PATRIOT Act.” There are many parts to this legislation.

TALM: What are some of the most significant parts?

VT: Let’s talk about the change in the Foreign Intelligence Surveillance Act, or FISA. FISA is how we put wiretaps on people to gain foreign intelligence. You do not use it for criminal cases. This is significant, because the wiretapping law originally was written for criminal cases. That law was written when people only had one phone plugged into a wall. There weren’t cell phones or even portable phones. When you wanted to get a wiretap, you had to figure out which phone was being used by the suspected criminal. You got the tap for that phone and not for the person. If the person used another phone, you had to get a tap for that phone also. As technology advanced, drug dealers in particular began using cell phones. They used one a week then threw it away. This was their cost of doing business. Each time they switched phones, we had to get a new wiretap order. We had to stop and write up new papers, which took at least a week. We, as prosecutors, couldn’t keep up with them. So we changed the law so that we could have a roving wiretap. The ability roved with the person. It went from phone to phone. You didn’t have to go into court each time the person switched phones. So the law was changed for criminal cases but not for terrorism.

TALM: How did that impact our ability to prosecute terrorism cases?

VT: This hurt us in 1985, when TWA Flight 847, en route from Athens to Rome, was hijacked and forced to land in Lebanon. Robert Stethem, an American serviceman aboard the flight, was murdered. Other American males on board were kidnapped and taken to Beirut. We didn’t know where they were. We had reason to believe, though, that the kidnappers would communicate with other people in a major American city. We hoped that if we could listen to these telephone conversations, we could learn where the Americans were being held and execute a rescue. We put in wiretaps, but the wiretaps did not fit within the laws. Even though American citizens were being held captive, and a serviceman had been murdered, we were ordered to take down the wiretaps. We lost that avenue of investigation. The PATRIOT Act changes that. Now we can use roving wiretaps on terrorism investigations. The PATRIOT Act applied the roving wiretap, which we already had for criminal cases, to terrorism crimes.

TALM: The PATRIOT Act has a provision that enables investigators to delay notifying a suspect that he or she is being investigated for terrorism. Can you comment on that?

VT: This is not a new power. This is where opponents of the PATRIOT Act do their arguments and the public an injustice, when they complain about the delayed-notification law. They act as if it’s never been allowed. But it has. Case law throughout the ages says that people need to be notified if there has been a personal search of something that belongs to them. This includes a search of someone’s house or mail. The court started carving out exceptions, for … a delayed notification. This was in cases where there was a need to preserve a life, to preserve the integrity of the investigation, to prevent flight or to prevent intimidation of witnesses. In terrorism cases, you want to be able to conduct your investigation without these risks. Let’s say a terrorist is sending money from the United States to someone in the Middle East. Wouldn’t we want to follow that money and see who’s receiving it and what they’re trying to do with it? If we get a search warrant, and the suspect is notified right away, that process will be shut down immediately.

TALM: A number of American cities have passed resolutions condemning the PATRIOT Act for violating civil rights. Are these legitimate concerns? Does the act impinge on our civil liberties?

VT: If the PATRIOT Act is violating civil rights, then it will go up in the usual process to the Supreme Court, and it should. A local authority, such as a city or a state, does not have the authority to say, “We’re not going to obey a federal law.” The concept is federal pre-emption in specific areas of law. Federal law trumps local law. That’s just it. The only thing that trumps that is if the federal law is unconstitutional. That would be a civil-rights violation, and the person being aggrieved would have to take it up, not a local government.

TALM: Critics have charged that the PATRIOT Act enables the government to spy on our library habits. Can you comment on this?

VT: Again, this is like the delayed-notification provision. This has been a power of the grand jury for ages. Investigators have been able to get library records. If, for example, you have a case where someone has used a bomb in a particular city, the grand jury has always been able to go to a library to see who has checked out a book on bomb-making within the past six months or year. Additionally, the FBI could get business records. Under the old law, this meant travel records. The FBI could get hotel records. It could get storage records. The PATRIOT Act says terrorism investigators can also get library records. There is good reason for this. We knew that several terrorists had used library computer systems. They went there because the libraries were like a refuge. But we don’t have to have the situation where terrorists can go to libraries because libraries are sacrosanct. Let’s say you have a situation whereby the subject of a terrorism investigation has used a library computer. This information comes up at 7 a.m. on a Saturday. The grand jury won’t be available until Monday morning, two days later. You want to be able to search those computer records. Previously, you would have to wait for the grand jury to issue a subpoena. Under the PATRIOT Act, you don’t have to wait for that process to go through. You can go to the library and search the records. You still have to have a judge look at it ahead of time and give the order, but you don’t have to wait to take it before the grand jury. This is a practical thing. It is carrying out the law in a speedy way.

TALM: What about notification? Do you have to tell the subject about the search?

VT: We’re talking about business records. When you go to the library, those records are the library’s. In the same way, hotel records belong to the hotel. This is not a personal search.

TALM: Does the PATRIOT Act have loopholes that could benefit terrorists, or allow them to evade detection?

VT: Of course, although I wouldn’t phrase it that way. Have we done everything possible under the law so that people cannot move? No. We’re an open society. We’re a democracy. We balance our freedoms against the needs for national security. Even in a closed society, such as Saudi Arabia, you cannot prevent attacks.

TALM: What are the act’s weaknesses?

VT: Every one of these laws can be used for good. They also can be used for evil. There is the concern that they could be misused by some U.S. attorney who just gets off on having power. The problem with the Justice Department is that it is reluctant to rein in U.S. attorneys who abuse their power. The Justice Department has got to learn that when allegations are made against U.S. attorneys, they have to take them seriously. That’s where I come down on my constitutional-protection side. Any law can be abused. The grand jury can be abused. The PATRIOT Act can be abused. We need sufficient oversight from the Justice Department and from Congress.

TALM: Is this why the act has been so controversial?

VT: We as a people believe strongly in our liberty. We know that people can abuse laws. But those who oppose the PATRIOT Act would do a much better job expressing their concerns if they were truthful about their concerns. You can’t complain about the library provision without saying that we’ve always been able to look at library records. Let’s debate the act on its merits.

TALM: What are the act’s strengths?

VT: I believe we have to rearrange our concept of law enforcement. Prevention is a different concept for us to grasp. We are accustomed to waiting for a crime to take place. Now we can’t do that, when an entity like al-Qaida has declared war on us. We need these laws. I stick up for the PATRIOT Act.