Kim Zetter covers privacy, security, cyberterrorism and public policy for Wired News.

When Congress passed the USA PATRIOT Act in 2001, it granted law enforcement authorities unprecedented surveillance powers. Lawmakers approved the act not only because of the crisis of 9/11, but because it was aimed primarily at foreign nationals.

Most Americans believed the powers would never be applied to them, according to Georgetown University law professor David Cole. But Cole says history shows that once the American government goes after foreigners, it's only a matter of time before it turns the same laws on Americans.

A graduate of Yale Law School, Cole is a volunteer staff attorney at the Center for Constitutional Rights and teaches at Georgetown University Law Center alongside Patriot Act author Viet Dinh, who has called Cole "the Clarence Darrow of his generation" for his defense of underdogs.

Wired News spoke with Cole about his new book, Enemy Aliens, and efforts to revise the Patriot Act.

Wired News: Critics have accused the government of overreaching with the Patriot Act. The government in turn has accused critics of misinterpreting and mischaracterizing the law to generate fear about it. Have critics overreacted?

David Cole: The Patriot Act has become a symbol for a much broader range of concerns about this administration's abuse of civil liberties in the war on terrorism. Many of those are real abuses that warrant real concern, but don't stem specifically from the Patriot Act. Rather, they stem from initiatives that the Bush administration undertook outside the authority of the Patriot Act, such as the mass preventive detention campaign that John Ashcroft undertook after 9/11, which to date has led to more than 5,000 foreign nationals being detained.

WN: In January, Attorney General John Ashcroft said that neither the court system nor Congress had "reported a single example of civil-liberties abuse under the Patriot Act, despite intense scrutiny." Is this true?

Cole: I can give you one example that's exactly contrary to what John Ashcroft says. In January, a federal district court in California, in a case that I have argued "Humanitarian Law Project v. Ashcroft "declared unconstitutional a provision of the Patriot Act that makes it a crime for people to provide expert advice or assistance to any organization that has been designated a terrorist organization.

The Humanitarian Law Project is a human-rights organization in California that had been providing advice and assistance to the Kurdistan Workers Party in Turkey. The Kurdistan Workers Party seeks to further the Kurds' interest. It does so through political and violent means. The Humanitarian Law Project was seeking to encourage the Kurdish group to pursue the rights of the Kurds through lawful means by giving them expert advice and assistance on human-rights advocacy. Even though the intent of our client was to discourage the use of violence and encourage the use of peaceful means to resolve their disputes, the Patriot Act makes no distinction between advocacy of human rights and advocacy of terrorism.

WN: From a civil-liberties perspective, which Patriot Act provisions represent the most egregious violations?

Cole: The provision that authorizes the government to freeze an organization's and individual's assets on the basis of secret evidence that they have no opportunity to confront or rebut (is one example).

But the immigration provisions are the most troubling provisions. Sections 411 and 412 give the government power to deny entry to foreign nationals based on pure speech and to deport foreigners, including permanent residents, based on innocent association with any group that the attorney general doesn't like and puts on a blacklist. They allow the attorney general to lock up foreigners without charges and without making a showing to a court that they are dangerous or a risk of flight.

Section 218 removes the probable cause requirement for wiretaps and searches whenever the government has a significant foreign intelligence interest in a criminal investigation. It is one of the most questionable provisions in the act constitutionally, and is very likely to be challenged when the government seeks to use evidence obtained in one of these wiretaps. But thus far we haven't got there.

The libraries provision (Section 215) gives the government the power to get records from any business without showing that the suspect is a terrorist, a criminal or even a foreign agent.

And the "sneak and peek" provision, which allows the government to delay notification to homeowners of searches"to engage in secret searches whenever the government says that prior notice would undermine the criminal investigation, which they're going to be able to say in every case.

WN: Viet Dinh, the main author of the Patriot Act, said Section 215 simply grants law enforcement the same type of investigative powers in national security cases that it already has in criminal cases. Is that an accurate summation of the section?

Cole: I don't think so. There are several differences between that pre-existing authority and the Section 215 authority. Under the criminal side, you have to have a pending criminal investigation that is serious enough to empanel a grand jury of the citizenry. Under Section 215, you don't have to have any grand jury in place at all. You only have to have a foreign intelligence investigation, which can be as minimal as having an individual that is an employee of an organization whose membership is more than 50 percent foreign. You can have an investigation into a British national who is living here simply on the basis that he is an employee of Amnesty International. You don't have to make any showing that he's a terrorist, you don't have to make any showing that Amnesty International is a terrorist organization.

The second significant difference between the criminal authority and the authority under Section 215 is that the subpoena under the criminal authority is not a secret. The individual can go to the press and complain about it, as Monica Lewinsky and Kramer Books did when the government sought President Clinton's or Monica Lewinsky's book-purchasing records. That means there's going to be a level of public scrutiny that will deter abuse.

Under Section 215, the entity to whom the request is made is barred by law from disclosing that to anyone other than the lawyer who helps them respond to it. That gag order means that the government investigators know in most cases this will never come to public light.

WN: You and Dinh are colleagues at Georgetown University. How does that relationship work out, with you being opposed to certain provisions of the act and him supporting it?

Cole: Viet and I are actually good friends. We disagree deeply about many of these provisions, but we remain good friends. I don't doubt Viet's or other people's good intentions in seeking to keep us safe, but I believe they went too far in the Patriot Act. I don't hold anyone personally responsible. The act was enacted at a time where it was very difficult to have any reasoned debate about the civil liberties concerns. This was six weeks after 9/11 in the heart of the anthrax scare. So it was passed in a very rapid and unthinking way. Only one senator voted against it. Yet today many of the senators who voted for it have sharply criticized it.

WN: The government was criticized for not acting on information it had before 9/11. Are we hitting them from both sides, saying they didn't do enough before 9/11 and now they're doing too much?

Cole: If there are shortcomings and problems that were identified that existed before 9/11, we needed to respond to them. But I don't think the Patriot Act for the most part is a fix for the problems that have been identified. One example is we didn't put sufficient resources into analysis of data. We had lots of data but weren't analyzing it well. The Patriot Act doesn't say 'Let's put more money into analysis.' It just gives the government broader authority to collect more and more data, much of which won't have anything to do with terrorism.

Another frequent criticism of pre-9/11 is the failure to communicate between the various law enforcement and intelligence entities. Almost nothing in the Patriot Act addresses that problem because primarily it's a bureaucratic problem. It's not a problem of the law. We have many, many entities and you need to respond by bureaucratic reform rather than by expanding the government's power.

WN: Have you changed the way you live or conduct your activities since the passage of the Patriot Act? Have you become more cautious about the information you give out or otherwise become more careful about leaving a trail?

Cole: No, I don't think so. I don't expect that I'm going to be the target of these measures. One of the reasons that measures like the Patriot Act do get through relatively easily is that many people believe it's going to be somebody else who is going to feel the brunt. The fact that it's somebody else's ox that is likely to be gored does not mean that we shouldn't be concerned.

My book, Enemy Aliens, argues that the pattern of government responses to national security is to first target foreign nationals and then later to expand those tactics to Americans. It's only when they actually get extended to broader and broader segments of the American citizenry that the political process works to say, 'Wait a minute, you went too far.' But my view is that if it's going too far when it affects all of our rights, then we ought to stop it before it gets there.

WN: Is it possible to balance security and freedom?

Cole: Absolutely. In fact, I think in some instances, civil liberties provisions and protections create incentives to do a more effective job. For example, the probable-cause requirement of the Fourth Amendment"which requires you to have some objective suspicion of criminal activity before you search somebody's home or take them into detention"requires the government to develop good evidence on individuals, to do the hard work of investigation rather than to, in a lazy way, sweep broadly and pick lots of people up without good reason. Those kinds of measures have not proven to be very successful in identifying terrorists.

I think there are trade-offs between liberty and security, and most of the rights in the Bill of Rights are not absolute. But our Constitution is premised on the notion that you do have to balance liberty and security.

WN: One of the most common responses to criticism of government surveillance is: If you're not doing anything wrong, then you don't have anything to fear from the government. What do you say to that?

Cole: Yeah, they said that to Martin Luther King Jr., who was one of the greatest national heroes and yet had his personal life intruded upon and bugged for years by the FBI, including surveillance of his private sexual relationships in his private hotel room in Washington, D.C. At one point the FBI threatened to make (the surveillance) public if he didn't turn down the Nobel Peace Prize. History shows that many, many innocent people get caught up as targets of government surveillance and government detention.

WN: An unlikely coalition of Republican and Democratic legislators, as well as conservative and liberal organizations, has backed legislation introduced last year"the Security and Freedom Ensured Act of 2003, or SAFE Act"that would restore some checks and balance to the Patriot Act. Would this be a reasonable compromise, rather than retiring the Patriot Act?

Cole: Oh yeah, I think that the SAFE Act is a good start. One of the problems with the SAFE Act is it doesn't address the immigration provisions, the foreign-national provisions. But there will soon be introduced a bill called the Civil Liberties Restoration Act, which would deal with that side of the problem. I'm not of the view that the Patriot Act needs to be repealed. I think that there are many provisions of the Patriot Act that are non-controversial, there are many provisions that are helpful and that we need to focus on the ones that are problematic.

WN: What is the likelihood that something like this would be passed? The SAFE Act is stalled and not going anywhere.

Cole: It's hard to say. Most of the provisions of the Patriot Act had been introduced prior to the Patriot Act (and) never went anywhere, and then they did. The sunset clause of the Patriot Act surveillance provisions means that Congress will have to confront those provisions. I think that will be an opportunity to debate and put in place some of the reforms suggested in the SAFE Act and the Civil Liberties Restoration Act.

One year after 9/11, National Public Radio did a poll and found that only 7 percent of Americans felt they had given up important liberties in the war on terrorism. Two years after 9/11, NBC or CBS did a very similar poll and they found that now 52 percent of Americans report being concerned that their civil liberties are being infringed by the Bush administration's war on terrorism. That's a huge shift.

You see that shift reflected in the fact that all of the following people have criticized the Patriot Act: Al Gore, Newt Gingrich, Howard Dean, Dick Armey, John Kerry and Bob Barr. It would be very hard to come up with any issue on which those six people agree, and yet they all agree that there are fundamental problems with the Patriot Act.

The real question is, when the next terrorist attack occurs, are we going to remember the lessons that are now being learned about whether we went too far, or is the public going to say we didn't go far enough and pass Patriot Act II and more? This is a critical moment for the public to engage on this issue about the proper balance between liberty and security.

My hope is that the next time around, Congress will hear from the civil liberties concerns before they pass the act. And that there will be a recognition that while we need to give the government sufficient authority to keep ourselves secure, we also need to ensure that we limit the government's ability to render us more insecure by its own abuses directed toward the citizenry. Only time will tell.

Editor's Note: This piece originally appered in Wired News on April 20, 2004.