From the Oct. 16 edition of Street Roots
For eight years now, nearly all things bad coming out of the federal government were tainted by the jingoistic Patriot Act, that sweeping piece of patchwork legislation that chewed up the U.S. Constitution and spit out a new era of government spying, imprisonment and corporate impunity.
That may sound a bit harsh, but considering it created warrantless wiretapping and secretive investigations on U.S. citizens, bound and gagged federal watchdogs, and subsequently allowed telecommunication companies to spy on us with impunity, it’s tough to pitch it harshly enough.
But there are efforts underway in Washington, D.C. to correct at least parts of the Patriot Act’s most egregious elements. Oregon’s freshman senator, Democrat Jeff Merkley, has signed on as an original co-sponsor of the Judicious Use of Surveillance Tools in Counterterrorism Efforts, or Justice Act, introduced by Sens. Russ Feingold (D-Wis.) and Richard Durbin (D-Ill.). The Justice Act would reform the USA Patriot Act, the Federal Intelligence and Surveillance Act (FISA) Amendments Act, and other surveillance authorities to help restore judicial oversight.
In addition to the Justice Act, Merkley also has co-authored the Retroactive Immunity Repeal Act to amend the FISA Amendments Act, which shielded companies from liability for illegally violating their customers’ privacy during the Bush administration.
Merkley talked with Street Roots about the need for the legislation and the tough road it faces to a signature from the Obama White House.
Joanne Zuhl: There are three expiring provisions to the Patriot Act that the Justice Act addresses: that includes the government searches of people’s personal records, roving wiretaps and greater government oversight on national security letters, which cleared the way for surveillance on broadly defined targets, including U.S. citizens. Give us your views on what significant changes this bill would make.
Jeff Merkley: The Bush administration went way out of bounds in violating the constitutional privacy of Americans, and we are trying to re-establish that right while setting it in reasonable balance to access to information. The National Security Letters, for example, should be used to obtain records of people who have connections with terrorism or espionage, but not to have a broad authority to obtain basic information without a court order on basically anyone for any reason. In each of these areas it’s really significantly establishing more oversight and tightening the oversight of how these powers can be used.
J.Z.: You say the Bush administration went way out of bounds with the Patriot Act. Give us some examples of what you consider some of the most egregious activities under this act.
J.M.: One was granting immunity to the telecom companies. Americans have every right to know exactly what their companies did and they should be accountable under the law. But that immunity provision means we’ll never know what happened and there will be no accountability, which makes it very hard to make sure that in the future, companies thoroughly respect the constitutional safeguards of Americans. So that’s one example: Use of FISA courts to obtain information without warrants when they could have obtained the warrants with very little trouble. But they just basically wanted to establish their authority that they had the right to anything at any time, rather than demonstrating their case and getting a suitable warrant or doing so within the former appropriate time period.
J.Z.: Is this merely a correction to the checks and balances of the government, or are you looking at rescinding the broad powers that were granted under the previous administration?
J.M.: I think this will put us back much closer to where we were before the Bush administration tore big holes in the privacy protections for American citizens.
J.Z.: The Inspector General has documented in a series of reports the repeated misuse of National Security letters, which the FBI and the National Security Agency issue to justify collecting personal records from people. This has included broad notions of relevance and having “contact” with a suspect, sometimes three or four people removed, and even roving wiretaps for John Doe identities. How are those concerns specifically being addressed? Are we talking about not allowing them or simply having a process to oversee how they are being pursued?
J.M.: Let me give you an example on one of the issues that came up. The FISA Amendments Act ensures that essentially if the government is listening in on foreign conversations primarily to obtain information on an American citizen, they’re really listening in on the conversation with the American without appropriate protections and process. That would be basically banned. We can only imagine all that the government did under the Bush years. This is called reverse targeting; Section 305 of the bill, where the government, in order to listen in on an American citizen without going through appropriate protocol to demonstrate that that’s appropriate, would listen in on someone overseas who is having a conversation with that individual. So this basically ends reverse targeting.
J.Z.: We know that these activities did occur; do we know how widespread or how often? How much was the government taking advantage of these broad openings in the law?
J.M.: I don’t know that we have a lot of information on how widespread it has been. The government tends to be very protective of that. As the powers of electronic surveillance collection increase, through the use of computers and the whole electronics revolution, if you will, it becomes very easy to absorb enormous amounts of information that it wouldn’t have been logically possible to get before, so there are new challenges to the privacy of Americans in the face of powerful new tools available to the government.
J.Z.: Much of the FISA activities are inherently secretive. Will the JUSTICE Act open this up to the general public to understand better what the government is doing?
J.M.: There are some provisions in this bill for public disclosure. It’s a very complicated series of provisions. For example, with the FISA court, there are new provisions to require more public recording on the use of FISA. However, the FISA court operates in secret so there wouldn’t be as much oversight as you and I might hope.
J.Z.: The JUSTICE Act includes a provision to repeal the protection granted to telecommunication companies that conspired with the U.S. government in warrantless wiretaps. But you’ve also co-authored the Repeal Retroactive Immunity Provision in FISA Amendments Act as a separate act that would repeal a provision that shields telecommunications companies from legal repercussions if they participated in the National Security Agency’s program of warrantless wiretaps on U.S. citizens. Why is this separate?
J.M.: There are about four of us who cosponsored this bill, we feel very adamantly that you have to take it very seriously when a company abuses the rights of Americans, and that basically sweeping that under the rug or covering it up is unacceptable. Both to understand what’s happened but also to understand how we prevent it from happening again.
J.Z.: What will this mean for the companies that are using that protection now against lawsuits from citizens who say their rights were violated?
J.M.: Right now, the door is slammed shut, so that there is no opportunity for citizens to make their case in court. Citizens need to have the chance to make their case if their rights were violated.
The intent is not only fairness for individuals whose rights may have been trampled on. Right now, that door is slammed shut, so we haven’t had any sort of court process that introduces evidence, so we really know what went on or in what manner or how many times this occurred and to what level of egregiousness. But it would also say to folks that you must respect the laws that were laid out to protect the privacy of Americans. There were reasonable alternatives throughout for the executive branch to go through the appropriate steps in a very timely manner to protect the privacy of Americans. They chose to go right over the top of that and if indeed those rights were trampled, we need to make sure we know what happened and make sure it won’t happen again.
J.Z.: Is there any safeguard against these rights just being reversed under the next administration, if it was so easily done under the Bush administration? Are these laws just blowing in the wind?
J.M.: No, I don’t think so, because the protections have served very well. Administrations have respected them — Democratic and Republican. But then we had the Bush administration, which did not. Hopefully, this is an anomaly, but it’s more likely that it is going to be an anomaly if we have a very strong statement about the privacy of Americans and respect for the constitution.
J.Z.: President Obama said he was open to changes in the legislation. However, as a senator, he voted for the provision that granted immunity to telecom companies. There is speculation that this is not going to fly because of wanting to appear tough on terrorism, tough on defense. What is the political environment for this bill?
J.M.: I want to make absolutely clear that this bill is tough on terrorism and strong on defense. What it does is state the reasonable steps you take to protect privacy in obtaining information. In fact under FISA, prior to the Bush administration, you could gain information as long as you got a warrant within a certain time period. But the administration just ignored all that. While opponents may try to cast this, we have to push back very, very strongly. This, if anything — because it lays out the principles this nation stands for, while giving plenty of opportunity for appropriate access to information in cases related to espionage, counter-espionage, terrorism and so forth — this is the right way to go. You’re correct, we’re going to have to fight very hard in order to succeed.
By Joanne Zuhl, Staff Writer