The Bill That Nobody Read
Brooke Gladstone: From WNYC in New York, this is On the Media with a special hour on the Patriot Act.
Bob Garfield: From its birth in the ashes of 9/11 to this weekend's hamstrung debate on reform.
Speaker 3: The attorney general has fired the first partisan shot since September 11th.
Speaker 4: Virtually no one in this chamber have any idea what's in that bill.
James Sensenbrenner: The Patriot Act on balance was good.
Clémence Bectarte: The French government decided to use fear that new terrorist attacks could happen to pass this law.
Susan Page: We are in a different place as a country than we were right after 9/11. There is much more of an effort to find where the balance is.
Steve Vladeck: Come whatever happens with the surveillance reform bill, people are going to think that that's the end of the story. It is barely the beginning of the story.
Brooke Gladstone: What we do and don't really know about the Patriot Act.
Bob Garfield: Stay with us. From WNYC in New York, this is On the Media. I'm Bob Garfield.
Brooke Gladstone: And I'm Brooke Gladstone. This week we'll be present at the creation of the Patriot Act, a blitzkrieg maneuver that set the stage for the bruising battle now underway in Congress. It's still unresolved as we record this.
Bob Garfield: But it could be resolved by the time you hear this. Production cycles, alas, are unforgiving, but never mind. We decided to proceed because no matter what happens on Capitol Hill, the fundamental struggle between security and civil liberties won't end even if the Patriot Act spontaneously combusts, which it won't. So let's, for the moment, move away from the current legislative battle to the very beginning, a tortured acronym that kind of said it all: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. Put it all together and you've got the USA Patriot Act.
Brooke Gladstone: Born in smoke, ashes, and fear.
Speaker 9: Now remember, oh my god-
Speaker 10: Oh, god.
Speaker 11: Oh my god. What-
Speaker 12: That looks like a second plane, so this looks like it some sort of a concerted effort to attack the World Trade Center that is underway. (crosstalk) [END CLIP]
Brooke Gladstone: You know all that. You don't need a lengthy audio montage to remember September 11th, 2001. So here's a montage you haven't heard from the floor of the House of Representations on October 12th, 2001.
Speaker 3: Mr. Speaker, we had a bipartisan bill, and John Ashcroft destroyed it. The attorney general has fired the first partisan shot since September 11th.
Speaker 13: Today we are asked to buy a pig in a poke. Why a pig in a poke? A 187-page bill hot off the presses that we haven't had a chance to read or analyze.
Speaker 14: I find it to have been done in a sneaky, dishonest fashion. It reflects very poorly on this body.
Speaker 4: I venture to say that virtually no one in this chamber outside of perhaps a few people on the committee have any idea what's in that bill. Why should we care? Well, it's only the Constitution. It's only individual liberty at stake. [END CLIP]
Brooke Gladstone: We'll return to that House vote on October 12th, but first-
John Ashcroft: Today, America has experienced one of the greatest tragedies ever witnessed on our soil. These heinous acts of violence are an assault on the security of our nation.
Bob Garfield: Nobody took issue with the Attorney General John Ashcroft on that awful afternoon but his next sentence-
John Ashcroft: They're an assault on the security and the freedom of every America citizen.
Bob Garfield: In English class they call that foreshadowing. At the time he wasn't talking about American countermeasures, but later many would come to read it that way. Here's Ashcroft a few days after the attacks.
John Ashcroft: We need additional tools in order to stop the kind of tragedy that happened. As a matter of fact we'll be going to the Hill some time in the next few days with a variety of upgrades and strengthening provisions in our statutes to help us do some things to curtail the assault of terrorism which we are fighting.
Bob Garfield: On Capitol Hill that October with new barricades erected in front of federal buildings, anxiety crossed party lines. That included the liberal chairman of the Senate Judiciary Committee, Vermont Democrat Patrick Leahy who had been at the Supreme Court on 9/11 monitoring news from lower Manhattan.
Patrick Leahy: We heard a bump, and we could actually see smoke across the river that that was when the Pentagon got hit. At that point we had no idea how many other attacks there might be, and we sat there and waited.
Bob Garfield: You were a long-time staunch defender of civil liberties, but 14 years ago like everyone else, you were highly motivated to prevent further attacks, and negotiations with congressional Republicans in the White House went pretty well at least at first, did they not?
Patrick Leahy: Well, they did. We actually worked out a general framework that we agreed on and with the then attorney general, John Ashcroft, and then the next thing I knew he called a press conference, described something entirely different: We got to do it immediately or we're in grave danger. I said, "John, that's entirely different than what you agreed on yesterday." He said, "Well, I've changed my mind. If people are going to stand up for America, they'll go along with it. In fact they said, 'Just pass it and we'll tell you what to put in it afterwards.'" It was almost that bad. Fortunately enough of us, Republicans and Democrats said, "We'd kind of like to see what we're voting on."
Clerk: Mr. Bennett.
Mr. Bennett: Aye.
Clerk: Mr. Biden. Mr. Bingaman. Mr. (crosstalk)
Bob Garfield: On October 11th, the Senate voted on a version of the bill very much to Ashcroft's liking, passing it 96 to 1. But Leahy and the House leadership wouldn't give way entirely on the need to set time limits on the new powers they've endowed on the White House.
Patrick Leahy: We agreed that there were so many new tools given to the government that we'd better put a sunset provision in it so that future Congresses would be forced to look at it, not in the stress of the moment but after a few years of actually seeing how it works.
Bob Garfield: On October 17th with Capitol Hill half-shot down by Anthrax attacks, a small group of leaders of both houses met to reconcile House and Senate versions of the bill only to have a Bush administration envoy demand the sunset provisions be removed. Leahy says that speaker of the House, Dennis Hastert, told the man to shut up or get out. The White House acquiesced but also had the last laugh by interpreting the law pretty much the way it wanted to regardless of the Congress's intent.
Patrick Leahy: Both Republicans and Democrats never expected them to go so far beyond what we'd written in the law.
Bob Garfield: That possibility was either written right there in the legislation or sort of conspicuously not written there in the legislation. Yet, all but one Democrat, including you, voted for the Patriot Act. That one Senate Democrat was Russ Feingold, former Senator from Wisconsin.
Patrick Leahy: Yep.
Bob Garfield: As you look back on it, in voting "no," was he right?
Patrick Leahy: In many ways he perhaps was.
Bob Garfield: By the way the full Senate Judiciary Committee never got a crack at that bill. It was negotiated by the leadership with Justice Department and White House staff behind closed doors. When it came time to vote, majority leader, Democrat Tom Daschle, discouraged amendments. A few were offered, notably by Russ Feingold. None passed.
Russ Feingold: I think it's important to remember that the Constitution was written in 1789 by men who had recently won the Revolutionary War.
Bob Garfield: Russ Feingold.
Russ Feingold: They didn't live in comfortable and easy times of hypothetical enemies. They wrote the Constitution and the Bill of Rights to protect individual liberties in times of war as well as times of peace.
Brooke Gladstone: Now, on to the House vote the following day. There the entire Judiciary Committee under the leadership of Republican chairman, James Sensenbrenner, had done painstaking work emerging with many hard-won concessions and a unanimously supported bill, all for nothing.
Barney Frank: Mr. Speaker, I have never seen the legislative process more degraded than it is by this process.
Brooke Gladstone: Massachusetts Democrat Barney Frank was outraged. The bill hammered out by the Judiciary Committee was not the one being offered for a vote on the floor.
Barney Frank: It was dumped. And we have today an outrageous procedure, a bill drafted by a handful of people in secret subjected to no committee process comes before us immune from amendment.
Peter DeFazio: This is still warm. It just came off the Xerox machine. There could be problems. I don't know.
Brooke Gladstone: Democrats like Peter DeFazio of Oregon were in an uproar.
Peter DeFazio: I just asked a member of the Judiciary Committee who voted for the bill in committee, "What's in the bill?" He said, "Who could know what's in this?" It was just handed to him. And we're going to be required to vote on it in the next few hours. Why? Will these laws go in to effect this weekend to make a difference in protecting people and making them more safe? No.
Brooke Gladstone: This new substitute bill was a black box. In fact, there may have been only one copy. They knew only the rough outlines, none of the details.
Louise Slaughter: What we have before us is a tale of two bills.
Brooke Gladstone: New York Democrat Louise Slaughter.
Louise Slaughter: One bill was crafted by the standing committee of the House. The other was crafted by the attorney general and the president. One bill is limited in scope and sunsets after this crisis will have passed. The other bill is a power grab by prosecutors that can be used not just in terrorism cases but in drug cases and gun cases long after the bombing stops and the terrorists are brought to justice.
Brooke Gladstone: It was not the bill that was negotiated in the House.
Republican James Sensenbrenner, then chairman of the House Judiciary Committee.
James Sensenbrenner: The administration did not like the civil liberties protection that resulted in the unanimous vote. As a result, they went to the Senate Democrats, specifically Senator Daschle, to water down some of those civil liberties protection. The deal that was made was that the sunset would stay in despite vigorous objections from the administration, President Bush on down. That was what was passed and signed into law.
Brooke Gladstone: This new bill reportedly had been pushed through by House Speaker Dennis Hastert under pressure from the White House.
James Sensenbrenner: If we were to pass anything in this area, it had to be signed off by Dennis Hastert and approved by the Rules Committee, and it was.
Brooke Gladstone: Congressman, did you actually have any choice in this matter?
James Sensenbrenner: No.
Brooke Gladstone: And as in the Senate, there would be an up or down vote, no amendments. Barney Frank.
Barney Frank: So all of that thoughtful process, all of the compromise, all of the anguishing decisions we had to make about how do you balance self-defense with protections against abuse, that's all to be compressed into a five-minute partisan motion. Shame on the people who have brought this forward.
Brooke Gladstone: It passed by a vote of 337 to 79. As for the final bill, a handful of House and Senate leaders negotiated behind closed doors and issued no report. James Sensenbrenner.
James Sensenbrenner: A law had to be passed. I am not one that will let the perfect defeat the good. The Patriot Act on balance was good. (singing)
Bob Garfield: Coming up, remind me again, what's in the Patriot Act?
Brooke Gladstone: And as goes Washington, so goes France. This is On the Media.
Bob Garfield: This is On the Media. I'm Bob Garfield.
Brooke Gladstone: And I'm Brooke Gladstone. So in the end, the birth of the Patriot Act becomes an emergency surgery, the doctor's fraught, scrambling and sliding on a floor slick with broken promises while outside the operating theater an unseen voice directs the chaos it's created.
Bob Garfield: But now that we've discussed the birth, how about a quick sketch of the baby. It was designed to deliver us from evil doers. The administration told us, "Hurry, not a moment to lose." But the solutions it sought were oddly unproductive, like the guy in that old joke searching for lost keys under a lamppost because the light was better there.
Morton Halperin: People don't have the time to think of solutions to what actually happens. So what they do is they pull off the shelf things that they've been trying to get done for the last 10 years or more.
Bob Garfield: Morton Halperin served as a national security official in the Johnson, Nixon, where he was spied on, and Clinton administrations and is a senior advisor to the Open Society Foundations. He says that a key aspect to understanding the Patriot Act is realizing that it actually had very little to do with the events of 9/11.
Morton Halperin: I think everything in the Patriot Act you will find was proposed to the Congress by one of the past administrations and that Congress failed to do it because they understood that it went too far and violated people's liberties.
Bob Garfield: Like what for example? Well, expanding wiretap capabilities, allowing the use of secret evidence in prosecutions, and the potential for indefinite detention of non-US citizens, all included in the Patriot Act but first proposed in 1995 in a bill called the Omnibus Counterterrorism Act sponsored by then Senator Joe Biden. That bill failed. But as the Patriot Act was being debated in 2001, Senator Biden proudly told a New Republic reporter, "The bill John Ashcroft sent up was my bill."
Brooke Gladstone: Another crucial element, the Patriot Act allows for the greater sharing of intelligence between departments. When conducting foreign intelligence to track terrorists, you don't need to find probable cause for a warrant to invade a suspect's privacy to search and to seize, but when tracking criminal suspects, you do need those things.
Bobby Scott: Therefore there was no incentive to cheat because if you found some incriminating evidence, you couldn't use it in a criminal prosecution.
Brooke Gladstone: That's Virginia Democrat Bobby Scott who voted against the Patriot Act partly because it suddenly offered an incentive to cheat. Law enforcement working in an interagency taskforce would say the CIA might ask a favor.
Bobby Scott: You could say, "Look, I think we've got a suspect over here. I don't have probable cause to listen in, but you can use intelligence gathering, and if you see something, bring it to me."
Brooke Gladstone: But if you were going to charge somebody, would you be permitted to give this kind of intelligence in court?
Bobby Scott: It's admissible because once you've got it, you can share it, and you can run your criminal investigation without the normal civil liberty protections, and you have an incentive to do it.
Bob Garfield: The act also includes Section 213 which allows federal agents to secretly enter a home or office, even seize materials. They're called sneak and peek searches, and the government can now take up to 30 days to inform the inhabitant that they were there. The Justice Department claims such searches are crucial for investigating without tipping off terrorists.
Brooke Gladstone: But the Electronic Frontier Foundation reported in 2014 that of over 11,000 sneak and peek requests, only 51 were used for terrorism. Speaking of which, there's also Section 411 which expands the official definition of terrorism and Section 806 which allows the government to seize the assets of any individual or organization engaged in or planning to commit an act of domestic or international terrorism to be determined, of course, by the government.
Bob Garfield: Then there are those provisions that have been used to extend wiretapping, spying, and the collection of personal information, namely Sections 214, 216, 505, 206, and 215, the latter two of which are set to expire this weekend.
Brooke Gladstone: Thus, concludes our quick trip through the Patriot Act. Although, as you know, there's quite a gap between what it says and how it's used. More on that later. Now finally the news.
Announcer: The Senator from Kentucky.
Rand Paul: There comes a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer. That time is now, and I will not let the Patriot Act, the most unpatriotic of acts go unchallenged.(crosstalk)
Bob Garfield: That's Senator Rand Paul last week embarking on an unofficial 10 and a half hour filibuster to force a vote on the expiring provisions of the Patriot Act.
Rand Paul: My voice is rapidly leaving. My bedtime is long since past. I think it's time that we summarize why we're here today and what my hope is for the future with this issue. (crosstalk)
Bob Garfield: Now, a filibuster typically serves to prevent a vote, but Paul's peroration unleashed during a discussion of an unrelated trade bill was a protest against the unwillingness of the majority leader, Mitch McConnell, a fellow Kentucky Republican, to even schedule a debate about the expiring provisions. McConnell wants to extend those provisions. Paul fervently disagrees, and he's joined in that by such unlikely bedfellows as Tea Party Republican Ted Cruz and Democrat Ron Wyden.
Ron Wyden: I thank my colleague. It is good to be back on the floor with him once again on this topic, and as we have indicated, this will not be the last time that we are back on the floor.
Brooke Gladstone: We spoke to Senator Wyden last week about the impending standoff.
Ron Wyden: Of course it is a dangerous world. If you've been on the Intelligence Committee, you know that. But that's not a reason for reauthorizing a program that does not make America safer and impinges on our privacy. So what I've been telling my colleagues is we ought to recognize that the status quo caucus, really the leadership of the Senate Republicans, they're just expecting people to blink. I'm not going to blink in the face of a flawed, misguided law that does not make us safer and compromises our liberties.
Brooke Gladstone: Wyden supports the Freedom Act that would prevent the government from collecting our phone data, the matter at issue here, but would still allow the government some access to it under certain circumstances and so does a majority of both houses of Congress. But as the clock ticks down to Sunday's midnight deadline and deals are made behind the scenes, maybe, we onlookers can see nothing but glimpses of what appears to be a petrified forest of gabardine. Bob, you live pretty close to the nation's capitol, what's going on in there?
Bob Garfield: I don't know. But maybe Susan Page does. She's Washington bureau chief of USA Today. Susan, welcome to the show.
Susan Page: Bob, it's great to be with you.
Bob Garfield: The latest is that the Senate will convene 4:00 p.m. on Sunday for final negotiations giving them exactly eight hours to get something done. Can you lay out their options?
Susan Page: Basically they've got three options. One is to extend the current provisions. That's what the Senate majority leader, Mitch McConnell, wants to do, but he can only get 45 votes for that, so that doesn't look like it's going to fly. The second thing they could do is pass the USA Freedom Act which the House has already has passed which allows the mass collection of telephone metadata as is going on now, but it provides that the telephone companies keep it not the government, and it sets up a process by which the government would ask to search that data. That's passed the House that's supported by a majority of the Senate but not enough to get over a filibuster. The third thing they can do is to do nothing. If that happens, the Patriot Act provisions lapse, and that program goes out of existence.
Bob Garfield: Meantime, the White House, particularly through Attorney General Loretta Lynch, is saying, "We almost don't care what you do, but do something." What happens if the Patriot Act provisions for mass data gathering expire? Does the NSA just turn off the lights?
Susan Page: The administration says they will start the wind down of the program at 4:00 p.m. on Sunday so that it will be closed down by midnight when the authorization for this program would expire. It's not the main thing the NSA does. The surveillance that the NSA provides would certainly go on. While the administration has argued this is a crucial program, they have at the same time been unable to point to a single terrorist incident that has been undermined by the use of this mass collection of data. I think that it's hurt them in the argument that it's really urgent to extend the program, that it would be catastrophic if it expired.
Bob Garfield: Speaking of catastrophic, that was exactly the word that was flying around Capitol Hill back in 2001. Even in that environment, everything was done, as we've heard in this hour, so haphazardly. And here we are again.
Susan Page: What this tells me is how different the climate is now than it was immediately after the 9/11 attacks because at that point, as you say, there was an incredible impetus to do anything that might help protect citizens of the United States against a terrorist attack. There's still the threat of terrorism here, but now there is much more of an effort to find where the balance is between protecting personal liberties and protecting against terrorism. We are in a different place as a country than we were right after 9/11.
Bob Garfield: There's also questions as to why Rand Paul would ride this bill right over a cliff. Is it because he is a Libertarian and objects to any kind of government intrusions into our lives, or is because he's running for president?
Susan Page: Rand Paul has been pretty consistent in standing up against these kinds of programs, but then again, he's also running for president. While he was doing what was not technically a filibuster but it sure looked like a filibuster, his campaign was sending out fundraising appeals based on this. So I think it has excited his base, but it is, to be fair, completely consistent with the positions he has taken ever since he came to the Senate.
Bob Garfield: One final thing, Susan, we are speaking Thursday afternoon. Congress isn't expected to act before Sunday night. Just tell me what's going to happen.
Susan Page: Generally the safe bet when you're dealing with Congress in a big issue on which there's a big division is to bet on inaction. The only way in which something gets done quickly is if Mitch McConnell concedes that his extension is not going to go forward. If he throws his support behind the USA Freedom Act that the House has already passed, if that happens, then you could see action.
Bob Garfield: Rand Paul can't crater this thing all by himself?
Susan Page: Rand Paul can try to mount a filibuster. He could possibly delay it for a while. But you get three more votes and, yes, he'd be able to go ahead and override the objection of the people of Rand Paul. The path that people see for there to be action on this is if Mitch McConnell wants to change his position on this issue, but I think it's all up to him.
Bob Garfield: You know this guy. He has dug his heels in so far. He has vowed not to compromise, not to surrender. But there's also a lot pressure on him from his own caucus. Is there a chance that he can be sweet-talked or coerced into coming around?
Susan Page: One of the things that we've heard some of his people talk about is trying to adjust the House version of the bill so it meets some of the Senate objections. I'll tell you, the people in the House side say they like the bill they've passed. It involves balancing interests from people of different sides. It's got bipartisan support. So they have not been interested in offering the kind of gestures that might let Mitch McConnell claim a partial victory. In ordinary times when things were not so gridlocked it would be no surprise that members of Congress would be able to find a deal on something like this, someplace in the middle. It's just that lately we've got out of the habit of doing that.
Bob Garfield: Have we ever. Susan, thank you so much.
Susan Page: Bob, it's been a pleasure.
Bob Garfield: Susan Page is Washington bureau chief for USA Today. The defensive posture expressed in the Patriot Act is not unique to the US. Last January's deadly attack on Charlie Hebdo was met with an outpouring of international support and reflexive calls from French politicians for legal measures to prevent future attacks. Within days, critics were warning that a French Patriot Act was near at hand. But this idea, plausible as it seemed, was roundly dismissed. A New York Times article published a week after the attack quoted French politicians and civil libertarians all citing the many failings of the US Patriot Act and demonstrating why France would never respond in such a manner. Within 82% of French citizens rejecting the US version of domestic surveillance, "C'est impossible," they said. Well, it turns out, au contraire.
Speaker 28: Today, France's parliament has passed its own intelligence act.
Speaker 29: It's been dubbed the French Patriot Act. That's what critics are calling it at least and one of the critics-
Speaker 30: The French parliament passed a bill to increase the government's ability to spy on civilians without a court order.
Speaker 31: It is a law that would enable a massive uptake of data allowing the surveillance of many individuals, some of which have nothing to do with terrorism, organized crime, or spying. [END CLIP]
Bob Garfield: Clémence Bectarte is a lawyer for the International Federation for Human Rights and a French citizen. She has been astonished by the speedy shift from ridiculous to reality.
Clémence Bectarte: We were very disappointed when we learned that this law was presented by the French government to the Parliament because in the immediate aftermath of the Charlie Hebdo attacks, the official reactions were more confident in saying we need time to understand how this was possible, how three young men born on French soil, French citizens were able in their 20s and 30s to perpetrate such terrorist acts, horrible terrorist acts in France. This is the true question that we have to answer now. This was a positive signal from the French government again in the immediate aftermath of the Charlie Hebdo attacks. But then things changed, and they decided to use fear that new terrorist attacks could happen to pass this law. This is very disappointing.
Bob Garfield: It's one thing in a period of panic for politicians and those in the security apparatus to overreact, to overreach with security measures, but you have suggested that this law merely makes official security programs that have either been underway or have been in preparation long before Charlie Hebdo.
Clémence Bectarte: Yeah, we're convinced of this. Two years ago there were media revelations from two important French newspapers that the French intelligence services already had a program which enable them to implement surveillance measures including massive interception of data from French citizens. The French government strongly denied the existence of this program. But then when they came out with this law two months ago, they admitted that, in fact, this program already existed and that the purpose of this law was to legalize what is already being used but without any legal basis or any legal framework. So we think that the French government used the fear of the post-Charlie Hebdo attacks to take out a piece of legislation of the desk drawers and to present it to the French Parliament saying this is the most reasonable way to prevent any terrorist attacks to take place in the future.
Bob Garfield: Now, there's one thing I want to clarify. It is not as though before January France was a, here's another one, laissez-faire society that just allowed terrorists to run around willy-nilly. There was a pretty significant existing body of law giving the government fairly broad powers before the terrorist attack.
Clémence Bectarte: Yeah, France was one of the first democratic states to enact specific legislation at the end of the '80s when France was under the pressure of attacks coming from terrorist groups in Algeria. France was very proud of its legislation. The WikiLeaks, for example, cables have shown revelations that a very famous antiterrorist judge in France regularly came to the US embassy in Paris to boast about the merits of legislation that he could use in his everyday work as antiterrorist judge.
Bob Garfield: Let's talk about the political context for all this that makes it perhaps more surprising, and that is you don't have a right-wing president. Your president isn't Marine Le Pen, and it isn't even George W. Bush. It's François Hollande who is a socialist. How did that happen?
Clémence Bectarte: It's true that we would have more expected such piece of legislation coming out from the Sarkozy administration than from the Hollande administration, but on these considerations there seems to be a political unanimity in France saying that security is more important than the respective individual liberties and freedoms.
Bob Garfield: Is this an unstoppable course of action?
Clémence Bectarte: Well, the fact that there are a lot of critics in France to this text will contribute to a true debate. We know that there have already been amendments, but it remains largely insufficient for us. Given the importance pressure and opposition to this text by civil society groups and others in France, the President François Hollande has announced recently that he would submit this piece of legislation to the control of the constitutional court to see whether this text is in conformity with the Constitution and in particular the provisions concerning freedom of expression, right to privacy and individual liberties as a whole.
Bob Garfield: Clémence, thank you so much.
Clémence Bectarte: You're welcome. Thank you.
Bob Garfield: Clémence Bectarte is a lawyer for the International Federation for Human Rights.
Brooke Gladstone: Coming up, why the Patriot Act doesn't matter.
Bob Garfield: This is On the Media.
Brooke Gladstone: This is On the Media. I'm Brooke Gladstone.
Bob Garfield: And I'm Bob Garfield. During his filibuster, Rand Paul didn't merely condemn the expiring provisions of the Patriot Act or the notorious bulk collection of telephone metadata under Provision 215, he wanted to stop all surveillance including the programs no one knows about.
Rand Paul: So we know about this one, but what other programs are out there? There's something called Executive Order 12333. There are some who believe that this is just the tip of the iceberg, the bulk collection, that there's a enormous amount of data being collected on people through this other program.
Bob Garfield: Now, Senator Paul has been known to throw his lot in with, let's just say, the conspiracy inclined. Several weeks ago he vowed to look into whether the federal government was planning to invade Texas, and in 2011 he compared the right to health care to slavery. But in this case, he's right. Consider Executive Order 12333.
John Napier Tye: 12333, it's not a law. It's not a statute. It was never passed by Congress.
Bob Garfield: John Napier Tye is a former state department official turned whistleblower. Here he is during a TED Talk last year shedding some light on the mysterious executive order.
John Napier Tye: Most members of Congress have no idea how this is being used at all. The NSA is using this authority to collect the majority of intelligence, but it actually got no press at all for a year after the Snowden leaks. A huge amount of data is being collected under 12333.
Brooke Gladstone: In fact, according to documents leaked by Edward Snowden, more than half of the metadata the NSA has collected comes not from the Patriot Act but through 12333. So what is it? Here's what we know. 12333 was signed by President Reagan in 1981 to lay out rules for the intelligence community including the surveillance of non-US citizens on foreign soil. But that was before the internet, which is to say before our communications were routinely bounced across the globe. Steve Vladeck is co-editor and chief of the Just Security Blog and a professor at the American University Washington College of Law. He says that the whole foreign/domestic divide is continually, inevitably breached.
Steve Vladeck: The problem that has arisen is that although it's primarily aimed at surveillance of non-citizens outside of the US, it seems increasingly clear that the government is collecting an awful lot of US-person communications as well perhaps not intentionally but certainly knowingly.
Brooke Gladstone: Well, does that have partly to do with the fact that the information that we send out digitally goes all over the world in packets? I could be sending something down the street, but it might make a stop in Bulgaria before it gets there.
Steve Vladeck: Indeed. I think there are two reasons why this happening. One is the fact that data is, in effect, borderless. We don't control where the data is going. Second, I think, is about the technological capabilities of our surveillance agencies. It just isn't possible based on what we know right now for those agencies to segregate communications from a US person from communications from a non-US person at least at the moment of collection. They can't know who's the sender and who's the receiver when they just intercept a packet. They won't know until they actually look at more information about that specific communication.
Brooke Gladstone: Well, what kind of information are we talking about here? Phone metadata? Telephone numbers and duration of calls and so on? Or are we actually talking about content?
Steve Vladeck: We don't actually know the whole story here because so much of the government's activities under 12333 remain classified, but there seems to be no question that some of what they're collecting under 12333 are the contents of emails, telephone calls, web searches. We just don't know where the lines are, what the rule are for when certain content is and is not collected.
Brooke Gladstone: And Congress doesn't know either.
Steve Vladeck: Senator Feinstein, who was chair of the Senate Intelligence Committee, has said publicly we really don't pay nearly as much attention to what the government does under 12333 as Congress does to what the governments do under statutes Congress has passed if for no other reason than Congress, I think, have long assumed that most of the 12333-based surveillance is directed overseas. That's why I think there are all these concerns about these authorities blurring together and all this focus on 215 perhaps distracting us from the larger puzzle of which 215 is really a very, very small, almost infinitesimal piece.
Brooke Gladstone: There are a couple of other programs that achieved their 15 minutes of fame right after the Snowden leaks, one called PRISM and the other called Upstream. PRISM collected information from technology companies. Upstream collected communications literally upstream from the users as data moves through the infrastructure like cables and so on. Neither of those programs are in the Patriot Act. They both come from Section 702 of the Foreign Intelligence Surveillance Act. So regardless of what happens with the Patriot Act, these two programs are going to continue, right?
Steve Vladeck: At least for the time being. Here I think it's worth to try and situate these programs within the larger story. 12333 is directed at non-citizens outside the US. 215 and the Patriot Act is directed at citizens within the US. [inaudible 00:38:58] is for non-citizens outside the US who communicate through US servers whose emails go through a Google server in California or a Microsoft server in Massachusetts.
Brooke Gladstone: Taking my Bulgarian example again, it's not me sending information that might end up momentarily in Bulgaria and then get ensnared by 12333. It's somebody in Bulgaria whose material ends up in a server in California, say.
Steve Vladeck: That's what the statute's directed at. The problem is is how does the government know which email is from the Bulgarian and which email is from you. So the statute's directed at the problem of non-citizens overseas whose communications are routed through the US. The whole idea is that the government can go to Google, to Microsoft, to all these other internet service providers and basically ask them directly for that content. But once again, we run into the technological problem which is how does the government segregate that information so that it's not also collecting your email which just happens to bounce through the same server in the same packet as the email from the Bulgarian to his friend in, say, the Czech Republic.
Brooke Gladstone: Won't they just dump my stuff when they get it because they're not authorized to have it?
Steve Vladeck: So the government is supposed to, as you put it, dump that stuff so long as it's not relevant, and that's the whole purpose of these so-called minimization procedures.
Brooke Gladstone: I don't know what those are.
Steve Vladeck: Well, no one does. The minimization procedures are statutorily required rules fashioned by the government and administered the FISA courts that's basically supposed to govern not the collection of information but what the government does once it's collected it. The problem is that one of the things we've learned since the Snowden disclosures came out is that the government has repeatedly violated the minimization rules that it has promulgated that the FISA court has administered.
Brooke Gladstone: How do we know that?
Steve Vladeck: Because we've had these FISA court opinions that were previously classified that were some combination of leaked and declassified by the Office of the Director of National Intelligence including an especially telling October 2011 opinion by John Bates who was then the presiding judge of the FISA court where he basically excoriates the government for a series of, in his view, completely intentional and perhaps even flagrant violations. So the regime is supposed to work on the theory that, yes, the government's going to accidentally collect some of our emails, too, but they're never going to do anything with them. Yet, everything we've learned over the last couple of years suggests that we shouldn't trust that that's how it's actually working on the ground.
Brooke Gladstone: So if the entire Patriot Act were to go up in a puff of smoke, would that diminish the kind of surveillance overreach that is currently underway, or would it simply happen through other means?
Steve Vladeck: I think the government would just find ways to cleverly shoehorn existing programs into new authorities. I think the real lesson for all of us has to be how do we bolster not just the substantive authorities the government has but the ability of other institutions to check those authorities. As much as we might trust the government, as much as we might support this president or that president, at the end of the day it's not going to be the executive branch that checks itself. I think it's a very real possibility that come whatever happens with the surveillance reform bill, people are going to think that that's the end of the story. Not only is it not the end of the story, it is barely the beginning of the story.
Brooke Gladstone: Steve, thank you very much.
Steve Vladeck: Thank you.
Brooke Gladstone: Steve Vladeck is professor of law at the American University in Washington College of Law and co-editor and chief of the Just Security Blog. Now, Andy of Mayberry gives Opie a lesson on civil liberties.
Andy Griffith: Opie, I can't listen to this. Now, I told you about eavesdropping.
Opie Griffith: But Pa, this is different.
Andy Griffith: Yes, it's worse. You overheard a conversation that was supposed to be private. Now, I can't be a party to that.
Opie Griffith: But Pa, if you just listen to this.
Andy Griffith: Opie, I can't listen.
Opie Griffith: Pa, you're erasing the tape.
Andy Griffith: That's what I mean to do. You bugged a conversation between a lawyer and his client. Now, that's violating one of the most sacred rights of privacy.
Opie Griffith: But Pa.
Andy Griffith: No buts.
Opie Griffith: But if it helps the law.
Andy Griffith: Opie, the law can't use this kind of help because whether a man is guilty or innocent, we have to find that out by due process of law. (singing) [END CLIP]
Bob Garfield: When we embarked upon this show, we began with the assumption that in the terrifying wake of 9/11, if our elected officials had just been able to read the bill, then maybe we could have avoided all of this.
Speaker 33: The Bush administration's round up of Muslim immigrants of course-
Speaker 34: He leaked highly classified secrets. Now Edward Snowden, the man at the center of this major scandal, has been formally charged with espionage.
Speaker 35: The Electronic Frontier Foundation, or EFF, is suing the government claiming the mass surveillance of Americans is unconstitutional.
Speaker 36: President Bush has defended the CIA and insisted that it does not torture terrorist suspects. [END CLIP]
Bob Garfield: But maybe reading it wouldn't have mattered anyway.
Bobby Scott: People make great fanfare out of reading the bill.
Bob Garfield: Congressman Bobby Scott.
Bobby Scott: The bill itself is a bunch of cross-references and words out of context that reading the bill, you really don't get a good understanding. So I mean the fanfare and who "Read the bill" is more fanfare than substance.
Bob Garfield: In fact, the more people we spoke to, the clearer it became that despite the hasty, even sneaky passage of the initial bill, not reading it wasn't really the issue. Here's Senator Ron Wyden.
Ron Wyden: If you read the Patriot Act, you scratch your head and say, "Where does it say here that the government can collect millions and millions of phone records on law-abiding Americans?"
Bob Garfield: Even Jim Sensenbrenner, who penned one version of the bill and read all of them, was stunned by the revelations of recent years.
James Sensenbrenner: I was the chairman of this committee on September 11th and the author of the Patriot Act. I can say in no uncertain terms that Congress did not intend to allow the bulk collection of American's records. The government's over-broad collection is based on a blatant misreading of the law.
Bob Garfield: No, he says this toxic situation was not caused by the failure to craft a good bill or the failure to read that bill. It is most of all-
James Sensenbrenner: The failure of oversight by the two intelligence committees in Congress that instead of doing oversight to see if the law was being properly applied and make recommendations to improve the administration of the law, they ended up being cheerleaders for the intelligence community. That's why we are facing a problem.
Brooke Gladstone: But we also began with another assumption that somehow that story of overreaching surveillance, the widespread violation of civil liberties, the detentions, the noxious hum of bad news buzzing like a media mosquito in the background, that all that is somehow related to the Patriot Act.
Morton Halperin: And that's a profound, profound misunderstanding.
Brooke Gladstone: Morton Halperin, a denizen of several White Houses now with the Open Society Foundations, says that most of the big stories we associate with the act were not found in nor justified by the act.
Morton Halperin: Guantanamo, the CIA secret prisons, and these seizures of people including American citizens in the United States including in the military prison, all of that was done under the president's claim and inherent authority under the Constitution as the commander in chief. They relied not at all on any word in the Patriot Act.
Brooke Gladstone: I find something very ironic here for such a long time. I mean you would certainly say that the Patriot Act was being used as something of a boogie man, but now if we are in fact living in the world of the Patriot Act, at least we're all in the same legislative arena.
Morton Halperin: Oh, absolutely, absolutely. We'd been much better off if the Bush administration had dealt with al-Qaeda using the Patriot Act.
Brooke Gladstone: But you did think it was a bad bill, a bad law.
Morton Halperin: Yeah, but I actually thought nowhere near as bad as most people did. But given the people had flown airplanes into the Twin Towers, I actually would have guessed beforehand that the bill that would pass would have been much worse than the Patriot Act. Now, what I didn't know is that what we were going to do was going to be much worse.
Brooke Gladstone: And looking to a brighter future with limited surveillance, legal detention, and stronger government oversight, Mort Halperin, devout civil Libertarian, draws a surprising conclusion.
Morton Halperin: We're coming back now to... because the excesses of the Bush administration and the ways in which they relied on inherent authority, one by one being discredited, we're now living much more in the world of the Patriot Act and the Patriot Act as Congress passed it at the time than we ever have been before. I think we're finally in the right arena, which is these things have to be done in the Congress. They have to be done by passing statutes that mean what they say and that have their plain meaning and everybody understands and agrees what authority they're giving, and I think we're getting back there.
Brooke Gladstone: Wow, that's kind of a kick in the pants. A post-Patriot Act world has been the dream of countless lawyers, lawmakers and activists since October 2001. But if you hung around this hour, then you've heard of all that's not in the act, all that's essentially unregulated and unchecked. It turns out that now if Congress adheres to and actually overseas the Patriot Act, it can make inroads into what's been some pretty wild executive territory. Now maybe Congress will be able to put up a fence or two where once the intelligence agencies ran free. That's better than nothing says Halperin. What's more, it's a delicious irony. Of all the unintended consequences of the Patriot Act, this certainly was the least likely.
Bob Garfield: That's it for this week's show. On the Media is produced by Kimmie Regler, Meera Sharma, Alana Casanova-Burgess, Tasha Mihaljevic, Sam Dingman, and Jesse Brenneman who did most of the heavy lifting for this special episode. We had more help from Jenna Kagel, Nell Watsburger, Imam Mufad Traore, and a great deal of help from the ACLU. Our show was edited by Brooke. Our technical director is Jennifer Munson. Our engineer this week was [Greg Ribbon 00:50:24].
Brooke Gladstone: Katya Rogers is our executive producer. Jim Schachter is WNYC's vice president for news. Bassist, composer Ben Allison wrote our theme. On the Media is produced by WNYC and distributed by NPR. I'm Brooke Gladstone.
Bob Garfield: And I'm Bob Garfield.
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