Tech Talk: The Patriot Act Turns 20 - Talking Tech W/ Laura Murphy & Fmr. U.S. Senator Russ Feingold
We have another exciting show for you this week!<br><br>Twenty years after the passage of the #PatriotAct, CDT took some time to dig deep and ask a few fundamental questions: What were the key civil liberty concerns back in the fall of 2001 and how has government surveillance activities changed over the last two decades? With the benefit of 20 years of experience, what authorities does the government need in order to keep the country safe while preserving civil liberties and civil rights in the U.S. and abroad? And lastly, Should there be a comprehensive reexamination of government #surveillance authorities today? What changes should be made?<br><br>On October 5th, 2021 CDT hosted a discussion to tackle these and other questions. The event featured a fireside chat between former U.S. Senator Russ Feingold, the lone "no" vote in the Senate against the Patriot Act, and Laura Murphy, who managed the ACLU’s Legislative Office in Washington, D.C. during the bill’s passage.<br><br>Full Event: https://cdt.org/event/the-patriot-act-turns-20-taking-stock-and-rethinking-surveillance-powers/<br><br><br>More on our host, Jamal https://bit.ly/cdtjamal<br><br><br>Attribution: sounds used from Psykophobia, Taira Komori, BenKoning, Zabuhailo, bloomypetal, guitarguy1985, bmusic92, and offthesky of freesound.org.
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Transcript
Hi. I'm Devon Hankerson Madrigal. I'm the research manager at CDT. You may not realize, but as a nonprofit, CDT relies on the generosity of donors like you. If you enjoyed this episode of Tech Talk, you can support it and our work at CDT by going to cdt.0rg/techtalk. If you have already donated, thank you. If you have not, we would love your support. Thank you for enhancing civil rights and civil liberties in the digital age. Welcome to Tech Talk. Bye. CT.
Welcome to CDT's Tech Talk, where we dish on tech and Internet policy while also explaining what these policies mean to our daily lives. I'm Jamal Magby, and it's time to talk tech. Twenty years after the passage of the Patriot Act, CDT took some time to dig deep and ask a few fundamental questions. What were the key civil liberty concerns back in the 2001, and how has government surveillance activities changed over the last two decades? With the benefit of twenty years of experience, what authorities does the government need in order to keep the country safe while preserving civil liberties and civil rights in The US and abroad? And lastly, should there be a comprehensive reexamination of government surveillance authorities today? What changes should be made? On 10/05/2021, CDT hosted a discussion to tackle these and other questions. The event featured a fireside chat between former US senator Russ Feingold, the lone no vote in the US Senate against the Patriot Act, and Laura Murphy, who managed the ACLU's legislative office in Washington DC during the bill's passage.
And, senator, it is so great to see you after all of these years. Great to see you. We've been through quite a lot together. But, today, we get to go down memory lane a little bit. And maybe we can start by you telling us where you were when the events of nine eleven happened. Tell us about that day.
Well, Laura, thank you. And when I look at you, I one of the faces I most remember from those weeks because you were key in our understanding the problems with the bill, and I wanna thank you for that twenty years later. So where was I? I have an apartment directly across from US Capitol, couple 100 yards away, right across from the Supreme Court. My, senate office was across the street in the Hart Building, and, you know, I was watching the Today Show, and just like everybody else, saw the first plane. And, actually, I was doing an interview with Time magazine, and all of a sudden, I could see out of the corner of my eye that the second plane had hit. And, so we I said to my staff, come over, come across the street into my apartment. And believe me, Lord, nobody ever got to come into that apartment because it was not in great shape. All of a sudden, I had 50 staff members in there. And then about fifteen minutes later, I noticed all these little kids running and kinda laughing across the Supreme Court grounds. And it turned out the police were telling them to get the heck out of there because they thought flight 93 might be coming to the capital. And bang, bang, bang on my door in the apartment, David Corn of the nation said, you guys gotta get out of here immediately. And so we we went five blocks down, to, another staff member's place, and, stayed there, you know, for hours as we were trying to figure out what was going on. So we were we were right there thinking that we were still involved in the actual action that was gonna occur.
Yeah. We just didn't know where where that other plane was headed, so we were at a state of fear. And I remember there was a large donor meeting at that the ACLU was hosting on P Street right off of DuPont Circle, and I was headed from my house there when the first plane crashed into it into the World Trade Center. And so, you know, it was really it was really jarring and scary, and people didn't know where to convene. And we were we were all, on a high state of alarm. So let's go from that day and the whole idea that the Bush administration and Congress needed to react to this terrible tragedy and attack. What was going through your head leading up to the Patriot Act?
Well, in the hours afterward, we figured out we should go down to the Capitol Police, which was just a couple blocks away. It turns out there was kind of a rump congress there. There were, like, 40 random members of congress. I remember Joel Lieberman was there, some of the most conservative members of the house, and it was sort of like a general Hague moment. Like, maybe we should be in charge here. Of Of course, the leadership had been taken somewhere else. But, you know, nobody really knew the scope of this thing at this point. And within forty eight hours, we were in caucus. And I remember senator Schumer, a senator from New York, said they thought 20,000 people might have died. And our job immediately was to react to the administration's proposal for an incredibly sweeping authorization for the use of military force. And under the leadership of a number of the senior Democratic senators, it was cut back to what is still a problem, but an AUMF that is near not nearly as bad as it would have been. It would be completely open ended for anything they could label terrorism, anything in the world. So I actually felt that that process went fairly well. I thought that president Bush's speech right after 09:11 was one of the best ones I've ever heard by a president. It was inclusive. It said don't victimize Muslim Americans and South Asians. And so we also knew, Laura, as you did, that we thought there would be a bill in a fairly soon that would update various law enforcement authorities. And I assumed I would probably vote for that too until at your urging, I read it. And people laugh when I say, I actually read the bill. And with your help and the help of the ACLU and others, we were able to see that this was being used as an opportunity. As Robert Novak, the CNN conservative columnist, said at the time on Crossfire, this is an old wish list of the FBI that's been shoved into the Patriot Act because they knew it was gonna pass. So that did not go as well as the first part part of the process.
Well, we had an anti terrorism bill that passed congress a few years before, and I remembering the day of the the attack. Greg Nochime, who works at CDT, and I sat down with a yellow legal pad and wrote out all of the authorities that the FBI was trying to get in that previous bill but were unable to get. And I remember that when it got when we finally saw the Patriot Act, we we predicted some of the authorities, but then the authorities went far beyond anything we could have imagined. And so, you know, we scrambled to come up with talking points, analysis of all of these provisions and why there were a violation of civil liberties. And we, we got some warnings from our colleagues in the movement, like, you guys, this may not be the time for you all to oppose the Patriot Act. And I said, this is the moment the ACLU and was made for, to stand up to excessive use of power or power grabs, violations of civil liberties. And so there was a bit of a fight among some of the people in the ACLU, but we were able to prevail. And then we were able to go public with you and tell you exactly what our concerns were. But I mean, this was happening, like, in maybe a twenty four, forty eight hour time period. We weren't getting any sleep because the bill was so huge. And we were able to slow down the bill in the house, and they actually marked up a different bill. And at 3AM in the morning, a new bill was substituted, and, you know, the the one the administration wanted. So let's get to your no vote in the senate. How did you how did you develop the courage of your convictions? I mean, we all have courage. You've always had courage. But that was a special moment where there was an intense pressure on you. Tell us about your decision to vote against the Patriot Act.
Well, you know, it wasn't an example of intentional courageousness. It was an example of where it ended up looking like that. What I wanted to do was make sure there weren't provisions in there that had nothing to do with terrorism. And because of your work, we could see that this was, things like the provisions having to do with sneak and peek searches and the library records and so on. This was this was a big power grab. And so, you know, I started raising questions, expecting that, as a member of the judiciary committee, I'd have a chance to raise amendments in committee. You are right in the house on a bipartisan basis. People like Jim Sensenbrenner, conservative from Wisconsin, they were working to clean up the bill. But when it came to the senate, we got shortchanged. Senator Leahy wasn't allowed to have a markup, And senator Daschle wanted to go straight to the floor with this because they were afraid that the Republicans were gonna use this as a way to get the majority. Well, of course, they ultimately did by doing the same scam with regard to the Iraq war. But that's what was going on. And I said, look. I'm not gonna give unanimous consent to have this thing go forward unless I can offer some amendments. And and, frankly, Dashel was furious with me. I said, look. We we have to get this right. There are things that should be removed or or changed. And so all they did in the end to get me to remove my objection was allow me to offer four amendments the night of the vote on a limited time basis. But the interesting thing is, Laura, we had speeches by not only Democrats but Republicans in support of my amendments. People like Arlen Specter, people like Fred Thompson, and others said, you know, actually, he's got a point here. And, obviously, they Daschle came in and shut down the whole process and said, no. It's time to vote. We gotta do it right now. And all of a sudden, as the vote was going, I was completely comfortable with my vote. I knew I had to do this. You know, for whatever reason, I was in the senate at this moment in human history, basically, and I had to get it right. And I didn't realize until near the end of the roll call that I was the only one, voting no. Really? I was a chairman of the constitution subcommittee. I remember. So I thought maybe I ought to do my job.
Well, you did an amazing job, and I remember talking to you from the senate floor to help you argue against some of the accusations made about your, amendment. You did an amazing job, and I think you you've gone down in history as a hero and as a huge defender of civil liberties. And, do you do you have any last thoughts about, what this did to you personally? Like, did it affect your friendships in the senate? How did your constituents handle it at home? What is the political consequence of being, a loner in this moment?
Well, I was very surprised because I really wasn't thinking about the consequences. You may not believe that, but it's true. What I do remember was that on 09/11 I mean, a lot of times, I did think about political consequences. But on 09/11, I thought to myself, well, I'm glad I went to law school because I remember a phrase. The constitution is not a suicide pact. And you might think that was a a reason to bend civil liberties, but that's not what the case where that justice Goldberg's opinion in that case ended up being in favor of civil liberties, saying that our founders risked being caught and hanged every day and that they lived in terrible times too, and so, were we because of this incident. And so, I was amazed to go home, and all of a sudden people were were not just Democrats and Liberals, but conservatives were saying, way to go. Thanks for asking some questions. And, you know, to be honest with you, it was a very positive thing, for me politically because conservatives thought I had an open mind about their feelings about civil liberties. A lot of it had to do with guns. I I give you that. And the thing I like to say, Lawrence, it's funny, but for many years, when I give a speech, I'd be introduced. And in the introduction, it would mention that I had voted against the Patriot Act, the only center to vote against the Patriot. I get a standing ovation. And and I wouldn't get a standing ovation at the end of my remarks. It was it was it wasn't that good of a speech. It was just that vote. So, you know, truth be told, it it didn't hurt me politically, but I really had no way of knowing that at the time.
Well, you know, it's interesting. I had members of my family say, you know, you could be really ruining your career, and, you know, I didn't I didn't pay them much mind because I just felt in my heart we were doing what was right. And the most satisfying thing about the campaign that the ACLU, waged in after the Patriot Act passed was all of these local jurisdictions, some totally conservative jurisdictions, passing resolutions saying the Patriot Act must be amended. The Patriot Act is an affront to civil liberties. And we had organizers stretched out all over the country who were working with these local jurisdictions to pass these resolutions, and those resolutions made a difference.
And you know who was helping you on that? You know who was helping you on that? Who was that? The librarians.
Yes. I remember the Librarian Library Association. Curious
at the section two fifteen library records. It's a mistake to get all the librarians in the country mad at you at the same time, And they were very effective.
But can I tell you a little story? We did polling immediately after the act, and we asked people what excessive powers were they concerned about. And people had a real thing about the government snooping on what they were reading. And that was, that was a revelation. And so when we shared that with the librarians, and they said absolutely. And then they started to do their own polling and talking and I mean, they were an outstanding, partner in this effort. But I I do think it took a long time. It wasn't until the USA Freedom Act, which I think passed in 2016, that we had the first substantive amendment to the Patriot Act. But I really believe that the revelations of Snowden led to that. And so now that we have a government that has, these powers, you're at the American Constitution Society now. And what are you what are you working on to to help people understand why they need to control, you know, surveillance, you know, warrantless searches, those sorts of things?
Well, we're deeply concerned about government surveillance. We're deeply concerned about the unitary theory of the executive that allows the notion that the president or the executive can do whatever they want here. And we're also worried that, in response to this terrible January sixth insurrection, one of the worst things in American history, that another mistake might be made maybe from the other side. In other words, there may be legislation that would to help get after those that did this terrible thing that could be drafted in a sloppy way like the Patriot Act was, and it could victimize, not necessarily people that did the insurrection, but Black Lives Matter people, people protesting the pipeline. And so once again, we as a organization, I wrote an op ed that the Wall Street Journal printed saying, be on the lookout here. Let's not let's not screw this up again. Let's make sure that what we do goes after those who have done wrong and get the information as appropriate about those who did wrong. But let's not have a sweeping thing that can be abused by law enforcement or by the executive in a way that will harm legitimate protests. So that's that's how we look at this today in addition to, of course, wanting to continue to reign in the abuses and some of the provisions of the pay original Patriot Act.
Well, it's shocking to me how often legislation is written, with a certain constituency in mind, and there's a lack of imagination about if this power was in the hand of someone who was opposed to your interest, how it could be used against you and the constituencies you serve. So, I mean, I just think, one of the scary things about this moment that we're in is the polarization and the lack of empathy and conversation that goes on between these various constituencies. And the idea that you could be concerned about the rights of protesters from across the spectrum, whether they were at the Capitol on January 6 in a nonviolent capacity, or whether they were Black Lives Matter protesters, also nonviolent, that you could be concerned about both of them. It's just sad to me how few elected officials are talking that way right now. And and and and and even though we the Patriot Act passed, and it was amendment amended in 2015, not in 2016, by the way. Even though it was amended I mean, we we still are not having the kinds of conversations about our liberties and how we need to protect them for everyone.
Well, that's right. And, you know, one of the things that happened, even though I was the only one to vote against it, immediately after the vote, a number of senators from both parties came up to me and said, you know, I'm not sure that this was a good idea. Let's work together to try to fix it. And, you know, of course, it was people like Dick Durbin, but it also included, Sununa from New Hampshire, Larry, Thomas, no. Larry Craig. I think I think, a couple of other Republican senators. We formed, Lisa Murkowski, we formed a group of six or seven senators working with you, and we were the ones that really started making progress on a bipartisan basis because they were getting think of the states those people are from. These are very conservative places. New Hampshire less so, but live free or die. And, so, what what we had then was this ability to come up together that really doesn't happen now. Now they are they've they've drawn up sides. There's a little bit of it going on in terms of reining in presidential intervention, military intervention power. But in this area, it's still not where it should be, and and that was one of the inspiring things about this. You know, Alaska, Idaho, Wyoming, Montana, those were the hotbeds of opposition to the Patriot Act. Maybe not always for the same reasons I would have been upset about it, but it did show that Americans could come together with very different ideologies to try to do the right thing in terms of protecting themselves from undue government interference or surveillance.
Beautifully said. And, I just wanna give you the chance to to make any, last reflections before I turn it over to, Shane Harris. Do you do you have what do you what's your what's your overall feeling about the arc of the Patriot Act moment?
Well, it's a feeling of sadness that we had this moment of unity in the country that I thought president Bush and his administration, many members of Congress, were simply trying to get this right. And that was a moment where we put these things aside. But so soon, those who always exploit a a a catastrophe or a tragedy came in and said, hey. We jam this thing through without changing it. If Democrats vote against it, we can punish them. Hey. If we make up some stories about what we need to do in Iraq, we can pun we we can punish them electorally. So it was brutal opportunism, and that is what characterizes our politics today. Somehow, if we want a country we can all enjoy, we have got to get away from this slash and burn, winner take all politics. And this is an example of where doing more to fix this could begin begin to get us on that road.
You can find more information regarding the event and our panelists by clicking the link in our show notes and, as always, by visiting cdt.org. I'm Jamal Magdi, and thank you for talking tech.
