From mass surveillance to indefinite detention, the last fourteen years seem to have been driven by the Patriot Act. Brooke and Bob revisit the bill's frenzied conception in the six weeks after 9/11, a period marked by fear, confusion, and deceit.
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BOB: From WNYC in New York this is On the Media, I’m Bob Garfield.
BROOKE: 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: 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 us move away from the current legislative battle to the very beginning, a tortured acronym that kinda said it all: “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.” Put it all together and you get the USA Patriot Act.
BROOKE: Born in smoke, ashes, and fear…
Reporter: Now remember.- Oh my God. [gasping]
Anchor: That looks like a second plane….So this looks like it is some sort of a concerted effort to attack the World Trade Center that is underway...
BROOKE: 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 Representatives on October 12th 2001.
Maxine Waters: Mr. Speaker, we had a bipartisan bill! And John Ashcroft destroyed it. The Attorney General has fired the first partisan shot since September 11.
Jerrold Nadler: ...and today we are asked to buy a pig in a poke. Why a pig in a poke? A 187-page bill, hot off the press, that we have not had a chance to read or analyze.
John Dingell: ...and I find it to have been done in a sneaky, dishonest fashion. It reflects very poorly on this body.
David Obey: ...and I venture to say 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? It's only the constitution. It's only individual liberty at stake.
BROOKE: We’ll return to that House vote on October 12, 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: Nobody took issue with Attorney General John Ashcroft on that awful afternoon. But his next sentence…
John Ashcroft: They are an assault on the security and the freedom of every American citizen.
BOB: In English class, they call that “foreshadowing.” At the time, he wasn’t talking about American counter-measures, 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: 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. 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: You're a longtime staunch of civil liberties, but 14 years ago like everyone else, you were highly motivated to prevent further attacks. And negotiations with congressional Republicans and 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'd 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. And 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 and if people are going to stand up for America, they'll go along with me. 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.
[sound of roll call vote]
BOB: On October 11th, the Senate voted on a version of the bill very much to Ashcroft’s liking, passing it 96 to one. But Leahy and and the House leadership wouldn't give way entirely on the need to set time limits on the new powers they had 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: On Oct. 17th, with Capitol Hill half shut 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 any 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: That possibility was either written right there in the legislation or sort of conspicuously not written there in the legislation. And yet all but one Democrat, including you, voted for the PATRIOT Act. That one Senate Democrat was Russ Feingold, the former Senator from Wisconsin. As you look back on it, in voting no, was he right?
Patrick Leahy: In many ways, he perhaps was.
BOB: 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 is important to remember that the Constitution was written in 1789 by men who had recently won the Revolutionary War.
BOB: Russ Feingold.
Russ Feingold: They did not 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 in times of peace.
BROOKE: Now onto 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: 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: Democrats like Peter DeFazio of Oregon were in an uproar.
Peter DeFazio: I just asked a Member of the Committee on the Judiciary who voted for the bill in committee, what is in the bill. He said, "Who could know what is in this?" It was just handed to him. We are going to be required to vote on it in the next few hours! Why? Will these laws go into effect this weekend and make a difference in protecting people and making them more safe? No.
BROOKE: This new substitute bill was a black box. In fact, there may have only been 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: 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.
James Sensenbrenner: It was not the bill that was negotiated in the House.
BROOKE: 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, and as a result they went to the Senate Democrats, specifically Senator Daschel, to water down some of those civil liberties protections. The deal that was made was that the sunset would stay in despite vigorous objections from the Administration, President Bush on down. And that was what was passed and signed into law.
BROOKE: 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: Congressman, did you actually have any choice in this matter?
James Sensenbrenner: No.
BROOKE: 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 is all to be compressed into a 5-minute partisan motion. Shame on the people who have brought this forward.
BROOKE: It passed by a vote 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.
["Hello, NSA" - The Overstatistics up and under]
BOB: Coming up, remind me again what's in the Patriot Act?
BROOKE: And as goes Washington, so goes France. This is On the Media.