BOB GARFIELD: From WNYC in New York, this is NPR's On the Media. Brooke Gladstone is away. I'm Bob Garfield. When Attorney General John Ashcroft was preparing a second phase of The Patriot Act, the Center for Public Integrity got a hold of a working draft and released it publicly. The ensuing uproar over draconian police powers killed that legislation aborning. Call that the frog jumping into a pot of boiling water, and jumping in a panic right out. But what if you put the frog in warm water and raised the temperature one slow degree at a time? That seems to be the Bush administration's strategy behind a new provision in the Intelligence Re-Authorization Bill signed by the president late last year. Unbundled from the scuttled Patriot Act II and inserted into the routine spending bill, it gives subpoena power to federal investigators for a whole range of information from any broadly-defined financial institution, which means the government can now obtain a terrorist's credit card expenditures -- or yours -- secretly, without a court order. But where were the shouts of warning this time? James Dempsey, executive director of the Center for Democracy and Technology, says the slow boil method has a lulling effect, and the media are only partly to blame.

JAMES DEMPSEY:Well I think to some extent we all dropped the ball. My office, which I think was the first who discovered it, we didn't realize the import of this provision until after it had passed both houses. We did issue a little press thing at the time, when it was still not finally enacted. We didn't push it. We didn't hype it. We didn't pump it. And it did remain very much below the radar screen. There was a little blowup on the floor, when the conference report, the final form of the bill was brought forth for final passage, but by then it was certainly too late.

BOB GARFIELD:Maybe I'm naive, but it seems to me that when some legislator is trying to bury a particularly sensitive provision in an otherwise mundane piece of legislation, that there's a staffer on the hill will immediately get on the phone and call all the usual suspects in the interest groups and in the press to say, you know, check out paragraph such and such of the omnibus such and such spending bill, because this is a really bad deal. Where were those tip calls during the debate over the Intelligence Authorization Act?

JAMES DEMPSEY:Well, I have to say that to some extent, those staffers are nervous about their own jobs. They -- again, the Intelligence Authorization Bill, although the bill itself is ultimately public, the numbers behind it are secret, and almost all of the debate leading to it is conducted in a cone of silence. And there is a specific case within the past year and a half where a staffer did precisely what you suggested, and that staffer lost his or her job over that. So that has a chilling effect, absolutely. Those folks -- it's a tough job, and they really are very nervous.

BOB GARFIELD: And is there any reason that I shouldn't be terrified by the scenario that you just described?

JAMES DEMPSEY:Well, I think overall, in the past two and a years since 9/11, one of the major themes of concern has been the growth of secrecy, including secrecy, again, that I don't think comes close to protecting the national security, but that does obscure government decision-making from the kind of oversight that the public deserves and the kind of oversight that will actually help us win this war. We need that oversight to win this war on terrorism, but I'm afraid that secrecy has become the byword, not only in the executive branch, but increasing sensitivity in Congress. I think the -- there's a concern that the intelligence committees of the Congress generally are being certainly less publicly questioning of anything that the government is undertaking.

BOB GARFIELD:Well apart from admonishing us to generally be vigilant, how would you advise the press to recognize these end-arounds that -- I don't know if they subvert the process, but they certainly avoid the scrutiny of the media and enable legislation like this to become law.

JAMES DEMPSEY:Well, I think that the press by and large has been pretty good on covering the issues and of recognizing that a lot of what the government is saying just doesn't quite add up and of being prepared to report on that. I'm really looking at this incident from the perspective of what I need to do differently. When I finally said to a reporter, you know, "Why didn't you cover this when it could have made a difference?" He said "Well, why didn't you call me up and stick it in front of my nose?" And he had a point. So, I didn't do that. Next time I'm going to try to.

BOB GARFIELD: Well, Jim, thank you very much.

JAMES DEMPSEY: My pleasure.

BOB GARFIELD: James Dempsey is executive director of the Center for Democracy and Technology.

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