We began the show with the assumption that in the wake of 9/11, if our elected officials had just been able to read the Patriot Act,then maybe we could have avoided all of the mayhem and mass surveillance that has ensued. But most of what we associate with the Act today...has nothing to do with the Act itself. Brooke and Bob reflect on the surprising irony of where the Patriot Act leaves us, fourteen years later.
BOB: 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:
OLBERMANN: The Bush administration’s roundup of Muslim immigrants, of course…
FOX: He leaked highly classified secrets, now Edward Snowden, the man at the center of this major scandal, has been formally charged with espionage.
NBC: The Electronic Frontier Foundation, or EFF, is suing the government, claiming the mass surveillance of Americans is unconstitutional.
HOST: President Bush has defended the CIA and insisted that it does not torture terrorist suspects…
BOB: But, maybe, reading it wouldn’t have mattered, anyway.
Bobby Scott:. People make great fanfare about reading the bill.
BOB: Congressman Bobby Scott.
Bobby Scott: The bill itself is a bunch of cross references and words out of context that - reading the bill, you don't get a good understanding. So I mean, the fanfare and who quote “read the bill” is more fanfare than substance.
BOB: 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 take out 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: Even Jim Sensenbrenner, who penned one version of the bill and read all of them, was stunned by the revelations of recent years
Jim 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 Americans' records. The government's over-broad collection is based on a blatant misreading of the law.
BOB: 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...
Jim 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, uh, make recommendations to improve the administration of the law, they ended up being cheerleaders for the intelligence community, and that's why we are facing a problem.
BROOKE: But we also began with another assumption: that somehow, that story of overreaching surveillance, the widespread violations 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.
Mort Halperin: Right. And that's a profound, profound misunderstanding.
BROOKE: Mort Halperin, a denison of several White Houses, now with the Open Society Foundations, says most of the big stories we associate with the Act were not found in or justified by, the act. .
Mort Halperin: Guantanamo, the CIA secret prisons, and these seizures of people, including American citizens, in the United States and putting them in the military prisons - all of that was done under the President's claimed inherent authority under the Constitution as the Commander-in-Chief. They relied not at all on any word in the Patriot Act.
BROOKE: 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 bogey 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.
Mort Halperin: Oh absolutely. Absolutely. We'd been much better off had the Bush Administration had, you know, dealt with Al Qaeda using the Patriot Act.
BROOKE: But you did think that it was a bad bill. A bad law.
Mort Halperin: Yeah, but I actually thought nowhere near as bad as most people did. But given that 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 gonna do was gonna be much worse.
BROOKE: In looking to a brighter future -- with limited surveillance, legal detention, and stronger government oversight -- Mort Halperin, devout civil libertarian, draws a surprising conclusion:
Mort Halperin: We're coming back, now, too, because the excesses of the Bush Administration and the ways in which they relied on inherent authority are 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 that everybody understands and agrees what authority they're giving. And I think we're getting back there.
BROOKE: 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 heard of all that’s not in the act, all that’s essentially unregulated and unchecked. It turns out, that now, if Congress adhered to and oversees the actual Patriot Act, it can make inroads on what’s been some pretty wild executive territory. Now, maybe Congress will put up a fence or two where once the intelligence agencies ran free. That’s better than nothing, says Halperin. And what’s more, it’s a delicious irony. Of all the unintended consequences of the Patriot Act, this certainly was the least likely.
[Andy Griffith Show theme song up and under]
BOB: That's it for this week's show. On the Media is produced by Kimmie Regler, Meara Sharma, Alana Casanova-Burgess, Kasia Mychajlowcyz, Sam Dingman, and Jesse Brenneman, who did most of the heavy lifting for this special episode. We had more help from Jenna Kagel, Nell Wachsberger, Iman M'fah Traore, and a great deal of help from the ACLU. And our show was edited... by Brooke. Our technical director is Jennifer Munson. Our engineer this week was Greg Rippin.
BROOKE: 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.