BROOKE: And I'm Brooke Gladstone. So in the end, the Birth of the Patriot Act becomes an emergency surgery -- the doctors 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: 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 happened and so what they do is they pull off the shelf things that they have been trying to get done for the last 10 years or more.
BOB: Morton Halperin served as a national security official in the Johnson, Nixon (where he was spied on), and Clinton administrations, and is a senior adviser 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 the Congress failed to do it because they understood that it went too far and violated people's liberties.
BOB: 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: 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 suspec ts 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: That’s Virginia Democrat Bobby Scott, who voted against the Patriot Act partly because it suddenly offered an incentive to cheat. Law enforcement working on an interagency task force with, say the CIA, might ask for 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 some intelligence gathering and if you see something, bring it to me.
BROOKE: 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 could share it. And you can run your criminal investigation without the normal civil liberties protections. And you have an incentive to do it.
BOB: 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 they were there. The Justice department claims such searches are crucial for investigating without “tipping off” terrorists...
BROOKE:...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: And 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: 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.