[Fredricka Whitfield, Cnn Anchor:] Does the FBI change jeopardize American civil liberties? Joining us now is Gregory Nojeim, associate director of the American Civil Liberties Union's Washington office, and Roger Pilon, vice president of legal affairs for the Cato Institute. Thanks very much for joining me this evening, gentlemen. Well, Gregory, let me begin with you. Sensenbrenner says it is a setback; Ashcroft says this will be proactive. How do you see it?
[Gregory Nojeim, Aclu:] I think Sensenbrenner got it right, and the reason I think that is because the FBI already had the authority to act when it had even very minimal evidence of crime. What the attorney general has done is said that the FBI can attend any demonstration, it can go to any meeting, it can surf the Internet, it can monitor chat rooms even when it doesn't have any evidence that anyone there is doing anything wrong.
[Whitfield:] You see it as a real constitutional violation, don't you?
[Nojeim:] Well, we don't think that that is the proper rule of the federal government, or the proper role of the FBI. The FBI ought to be investigating when it has at least some evidence of crime. What the attorney general has done is set the FBI loose when there is no evidence whatsoever.
[Whitfield:] But, you know, Roger, I am sure you would in this case be defending Ashcroft who says in order to be proactive, in order to do exactly what they are aiming to do, counterterrorism, you have to be able to be where people are going general places of public viewing, where they are attending, and you have to be able to watch them closely?
[Roger Pilon, Cato Institute:] That's right, Fredricka. And let me say first that it pains me to be on the opposite side of my good friend Greg Nojeim on this issue. And, of course, it's not every day that someone from the Cato Institute is out defending the Justice Department. But here it strikes me that the proposal that proposed changed are nothing extraordinary. All Attorney General Ashcroft is doing is saying that the guidelines are going to be adjusted so that agents can do what you and I would be able to do: Visit Internet Web sites and chat rooms, go to libraries and political rallies and the like, the kind of thing, as I said, that you and I could do in order to gather information. In other words, you don't have to have a specific criminal lead to do that. Let's face it, we're living in a time when we have to have a good deal of information. One of the great debates right now is whether we had enough information, and we ought to allow agents to do that within the constrains set forth by the constitution and statutes, and nothing in these new guidelines changes any of that.
[Whitfield:] Well, Roger, isn't part of the argument too, though, whose rights are being protected, the citizens' or the agency's rights in this case?
[Pilon:] Well, we have got a complex set of rights that we're talking about here. We're talking about the rights of American citizens to be free from the kind of terrorism acts that we saw on September 11, but we're also talking about the rights that they have got against their own government. The government has a very complex...
[Whitfield:] But isn't then the claim of the citizens that their right to privacy is being violated here, that Big Brother is watching?
[Pilon:] No, that Big Brother is watching does not mean that their rights are being violated. After all, if you can go to a political meeting to take notes and so forth, no one's rights are violated by that. So too with an agent. An agent can go to a meeting, an agent can go to a chat room, an agent can go on to the Internet and gather information. None of that violates anyone's rights.
[Whitfield:] Well, then, Roger, whose job should it be to then be watching the FBI, because now you are leaving it to the discretion of all these FBI investigators to then discern when they have crossed the line, who is going to be watching them to say, you have crossed the line here, you've gone too far?
[Pilon:] Fredricka, that's Greg's job, that's my job, that's your job. We all have to monitor the government. After all, "eternal vigilance is the price of liberty," Jefferson told us, and he was absolutely right.
[Whitfield:] Gregory.
[Nojeim:] Actually, one of the problems is that the FBI insists and the Department of Justice insists that they can monitor themselves. And one of the problems with the attorney general's actions recently was that he took away one of the monitoring mechanisms. He made it so that agents in the field can start a preliminary investigation, and find nothing for an entire year without ever having to report to headquarters. And they could use very intrusive investigative techniques. They could use informants, they could attend rallies, they could go to places of worship, they could use pen registers and trap and trace devices to find out who's phoning whom. So it's very intrusive, and there's not much oversight.
[Whitfield:] Now, Gregory, are you saying that this is just an extension of more of the same for the FBI? If they have to police themselves, already, you know, the agency is in hot water now because it has not been. The criticism has been that they have not been doing a good job of policing themselves or communicating.
[Nojeim:] Well, there are two problems. One is policing themselves, but the other is analyzing the information that they've already collected. Now, it's become clear that the problem was not too much the problem was not that too little information was collected. Problem was that the FBI was not properly analyzing information was being collected, the problem was that the FBI wasn't properly analyzing information that it already had. This solution, to collect primarily irrelevant information, information that's not relevant because there has not been any evidence of crime that triggers the collection of the information, is not going to solve that problem. And I have to add, the FBI director himself testified before the Senate Judiciary Committee that these hijackers left no paper trail. They didn't have laptop computers. These are not the kind of people who are hanging out in chat rooms, writing letters to the editor and marching in demonstrations.
[Whitfield:] But then the argument is that then everyone has to be subjected to being scrutinized by the FBI, because they are uncertain of who exactly they are looking for or what clues they are looking for.
[Pilon:] Fredricka, could I jump in right here, because I think Greg has put his finger on a very serious problem that we've seen. As we know from this "Newsweek" story that's coming out this week from Mr. Isakoff, the CIA had a good deal of information. They didn't tell the FBI. We have a history of 40-some agencies of the federal government that are engaged in foreign intelligence gathering each one talking to itself alone, not sharing information, engaged in the kinds of turf wars that bureaucrats are notorious for. This is the kind of culture that has to be addressed by the committees that Congress will put together.
[Whitfield:] And speaking of culture, that was the point of Attorney General Ashcroft, who if we're allowing this sort of autonomy, if you will, without any probable cause, searching all public places, infiltrating all public places, then isn't this a repeat of what we saw in the '50s and '60s, when this very activity was taking place then?
[Pilon:] There is a potential for that, to be sure. But let's look at it this way. Count the number of agents there are, the number of chat rooms, the number of libraries, political rallies and the like, and you will see they are going to have to husband their resources. If they are going to spend their time at a Quaker rally, I think that's when Congress should jump in say, hey, guys, let's get serious. I don't think that that's the serious problem at all. I think the more serious problem is the culture within the intelligence agencies that has allowed this kind of thing to happen when we had so much information but nobody was putting it all together.
[Whitfield:] All right, well, we're out of time, gentlemen. Appreciate it very much. Roger Pilon and Gregory Nojeim for joining us this evening, I appreciate it.