Balance Between Justice and Security

This is a partial transcript of "Special Report with Brit Hume", April 23, 2004 that has been edited for clarity.

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JIM ANGLE, CO-HOST: The nation is still struggling to find the right balance between aggressively pursuing terrorist suspects on one hand while not infringing on civil liberties on the other. A federal appeals court has just cleared the way for the trial of Zacarias Moussaoui (search), even as President Bush spent two days this week campaigning on behalf of the Patriot Act (search).

To talk about these and other issues, we're joined by Jim Comey, the deputy attorney general.

Thanks for joining us.


ANGLE: Let me ask you, first, about the Moussaoui case. There were a couple of issues here, and the court decided in your favor on one, and not in your favor on the other.

One, it said that you do not have to supply other terrorists, like Khalid Sheikh Mohammed, to actually give testimony, which Moussaoui had sought. But that you do have to provide some access to them so the defense can get statements from them. Why was it important for the government not to have these suspects -- these other terror suspects appear in court?

COMEY: Well, first of all, it's a terrific decision on balance, because we didn't win everything. It strikes the right balance between our need to collect national security information to interview these captured al Qaeda guys, and also to have the fullest and fairest criminal justice system in the world. And so this opinion strikes that balance.

It says the government doesn't have to produce these al Qaeda guys and break up the interrogation, expose them to lawyers and to defendants in criminal cases. But it also gives the defendants, such as Moussaoui, access to information he claims can help him. It strikes the balance that we had very much hoped the court would find a way to strike.

ANGLE: So they can go in and get a statement from Khalid Sheikh Mohammed (search) about whether or not Moussaoui was, as some people suspect, the 20 hijacker. Or was for a second wave of hijackings, that sort of thing?

COMEY: Yes, that sort of thing. It upholds what we believed in, which is our obligation to tell the defendant if we come across any information that could conceivably help him, provide that to him. But it does not allow him to then use that to hijack the national security collection system, hold us hostage, in essence. It allows us to continue that collection and to give him a fair trial.

ANGLE: And you don't want other terror suspects brought into court and to become part of this process, because that would somehow interfere with their interrogation?

COMEY: Yes, absolutely. Our absolutely first responsibility is to collect information that will save lives. And we have to be in a position where we can collect that information without worrying that a Khalid Sheikh Mohammed, for example, will clam up because he meets some American lawyer coming to conduct a deposition. The American people wouldn't want that and the courts don't want that. Which is why this is a good opinion.

ANGLE: Now, on another point, though, the courts ruled against you. The government had argued that the courts have no right to review these cases at all. The courts seem to have taken the view that they do, indeed, have the right to review what the government is doing and made that point in this case. Does the government now accept that the court does, in fact, have jurisdiction over what it's doing in terrorist cases?

COMEY: Well, the Moussaoui case, obviously because we're in federal court, we believe very much that federal judges should be involved. We made an argument that the court should not review the government's decision not to provide access to someone being held outside the United States. We lost that argument. We accept that. You can't win them all.

ANGLE: Not going to appeal?

COMEY: I don't think we're going to appeal. It's the way -- our judgment, we got it yesterday. Very long is that this is a good opinion. That it doesn't need to be appealed because it strikes the right balance. It allows a fair trial and allows us to protect Americans.

ANGLE: Let's move to the Patriot Act. President campaigned two days this week defending the Patriot Act, even though the provisions that are sun setted don't expire until December of 2005. Why now? Why is it important to talk about this now?

COMEY: Oh, because it's too important to wait for a couple of reasons. We've had two years of a lot of confusion and misconceptions about the Patriot Act. And it's also too important a set of tools to wait like a kid waiting to do your term paper till the night before it's due. It's too important to wait till 2005. The American people have to understand the Patriot Act now, and that's our mission. The president's mission to explain how important it is.

ANGLE: There is a new case today that the Justice Department argues was helped by the Patriot Act. Tell us about that.

COMEY: There's a fellow in -- who had e-mailed some threats to an Islamic center in Texas, saying that if they didn't reach out to people in Iraq and do certain things, that he was going to explode, attack, the center.

We were able to use the commonsense tools of the Patriot Act. One of which allows communications providers, e-mail providers, to voluntarily help the government by providing certain -- not content of e-mails, but certain subscriber information if it will save lives.

The government in this case went to the Internet service provider, said here is the circumstance. They of course, being good people immediately made available the access to this subscriber information. And we locked this guy up, and probably saved lives. So that's just one example of the way in which the Patriot Act is smart, updates our tools, and allows us to stop bad things from happening.

ANGLE: We have got about a minute and a half left. Two quick issues for you. One, a lot of people worry about access to business records that you can go in and get business records.

Particularly controversial are library rather records. People worry that they're going to get swept up somehow in the search for what terrorists are doing in libraries with computers or checking out books. Tell us why that is not the case.

COMEY: Well, this is why it's so important for folks to demand the details about this sort of thing. The Patriot Act allows FBI agents investigating international terrorism to go to a federal judge, make a written application, and get an order to allow access to business records.

Not library records. Libraries aren't mentioned, believe it or not in the Patriot Act, but credit card records, rental car records, conceivably library records; and then to use those in international terrorism investigation.

There's a federal judge involved in supervising it. It's, frankly, harder for the international terror investigator to get records using that provision than for a regular criminal investigator.

ANGLE: Hmm. Now, the other thing -- about 30 seconds left -- sneak- and-peek, as they're called, delayed notification searches. You want to do a search, not tell the people you searched right away so that you can continue the investigation. A lot of people want to curtail that and give you, like seven, 14 days to tell people what happened. Why not?

COMEY: Well, folks need to understand that tool too. It involves an application to a federal judge where lives would be jeopardized or major investigations blown by notification. And a judge is able to extend the notification obligation for a reasonable period of time. If folks know how it's used, they'll want us to have that tool.

ANGLE: And you don't want to tip off the terrorists that you are on to them.

COMEY: Absolutely. We don't do it unless we're saving lives or protecting the evidence in major investigations.

ANGLE: Jim Comey, thank you very much.

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