Even in the security-über alles
climate that followed 9/11, the Patriot Act was recognized as an extreme and radical expansion of government surveillance powers. That’s why “sunset provisions” were attached to several of its key provisions: meaning they would expire automatically unless Congress renewed them every five years. But in 2005 and then again in 2010, the Bush and Obama administrations demanded their renewal, and Congress overwhelmingly complied with only token opposition from civil libertarians.That has all changed in the post-Snowden era. The most controversial provisions of the Patriot Act are scheduled to “sunset” on June 1, and there is almost no chance for a straight-up, reform-free authorization. The Obama White House has endorsed the so-called “reform” bill called the USA Freedom Act, which passed the House by an overwhelming majority. Yet the bill fell three votes short in the Senate last week, rendering it very unclear what will happen as the deadline rapidly approaches.
Unlike many privacy and civil liberties groups, the ACLU has refrained from endorsing the USA Freedom Act and instead is advocating for allowing the Patriot Act provisions to sunset — i.e., to die a long overdue death rather than being “reformed.” Meanwhile, almost all of the 86 “no” votes in the House were based on the argument that the USA Freedom Act either does not go far enough in limiting the NSA or that it actually makes things worse.
I spoke yesterday with the ACLU’s Deputy Legal Director, Jameel Jaffer, about what is likely going to happen as the June 1 deadline approaches, whether the USA Freedom Act is a net positive for privacy supporters, and what all of this reform means for Edward Snowden’s status. The discussion is roughly 20 minutes and can be heard on the player below; a transcript is also provided.
GREENWALD: This is Glenn Greenwald with the Intercept, and my guest today is Jameel Jaffer, the Deputy Legal Director of the ACLU, and we are here to discuss the still intensifying drama in the Senate and the House over the debate concerning reauthorization of the Patriot Act, key provisions of which are scheduled to expire on June 1st. Jameel, thanks very much for taking some time to talk with me.
JAFFER: Thank you.
GREENWALD: So, just to lay out in a very brief and summary fashion where things stand, there are essentially three factions, broadly speaking, in the Congress, one of which is advocating for a bill called the USA Freedom Act. The White House is behind this bill; it’s being sold as reform of the NSA, essentially to reform some of the excesses, particularly the domestic spying program that was revealed by the documents brought forward by Edward Snowden.
There’s a second faction in the Senate, primarily, that believes there should be no reform of any kind, that wants essentially reauthorization of the Patriot Act as is, if not actually strengthened to give the NSA even more power, and these are kind of the national security hawks led by Mitch McConnell and a few other Republican Senators – Senator Cotton, Marco Rubio, and a couple of other people like that.
And then there’s a faction, both in the House and Senate, led by Rand Paul, Justin Amash, and a bunch of House liberals, who think that the USA Freedom Act doesn’t go far enough, and that it actually makes things worse, and I think about 86 of them voted no on the USA Freedom Act not on the grounds that it restricted the NSA too much, but on the grounds that it restricted the NSA not enough.
So the House voted in favor of the USA Freedom Act. The Senate failed to do the same by, I think, three votes short of the 60 votes needed in the Senate to break a filibuster and enact the law. And so we have this sort of standoff where these key provisions of the Patriot Act are scheduled to expire in about a week. The Senate is in recess. Can you lay out what the plausible scenarios are for how this standstill will be resolved and what you think is the most likely outcome?
JAFFER: I was worried that you were going to ask me that question. I’m impressed that you managed to sum all of that up so neatly. I think it’s really complicated and it’s really difficult to say how it’s going to play out. As you say, there are these three different camps, although it’s actually a little bit difficult to measure the force of each of those camps, because some of the people who are supporting USA Freedom, for example, would actually be in favor of stronger reform, but just think that given the choice between USA Freedom and the other things that are on the table, USA Freedom is the better option.
And then there are some people who say they are in favor of reauthorization, but what they really want to reauthorize is the bulk collection program, the call records program. And then there are other people who are in favor of reauthorization who want to reauthorize everything except that program. You did a good job of summing it up, but it’s pretty messy.
And in terms of what happens next, it’s hard to say. There are presumably negotiations going on right now between some of the big players – Senator Mitch McConnell, for example, Senator Diane Feinstein, Rand Paul, Ron Wyden, Senator Leahy, and maybe something will get wrapped up in a neat bow and presented to us on Sunday when the Senate comes back. You know, I hope not.
Given the way the landscape looks now, I think the best course would be sunset. USA Freedom, in my view, would be a step in the right direction, but a very, very small step. So unless that bill is strengthened, sunset would be the better course.
GREENWALD: Describe what you mean when you say “sunset.”
JAFFER: Section 215 of the Patriot Act, which was enacted in 2001, gave the government broad surveillance power, but also had language that said the law would disappear unless Congress reauthorized it periodically. And the sunset is scheduled to take place on June 1; in other words, the law – Section 215 – is going to disappear. Two other provisions too, but Section 215 is the most controversial of them. That law is going to disappear on June 1 unless Congress re-authorizes it. That’s why we find ourselves in the situation we find ourselves in now.
GREENWALD: You know, it’s interesting – when you talk about the temporary provisions in the Patriot Act, it’s actually quite unusual for a law to be enacted with a 3-year, 4-year, or 5-year sunset where it just disappears unless Congress renews it. Can you describe why the Patriot Act has this sunset provision?
It was renewed in 2005. It was renewed again without a great deal of opposition – in fact, with the Obama administration behind it – in 2010. Why was this in the Patriot Act to begin with, even in the wake of 9/11?
JAFFER: That’s important. Right after 9/11, there was a demand on the part of the intelligence community for more power. In fact, they’d been asking for some of these powers even before 9/11, but in the wake of 9/11, there was the opportunity to ask once more for powers that had been rejected in the past. And nobody really knew what these powers meant, in part because the surveillance laws are very complicated.
The Patriot Act was drafted in a way so that the Act itself is just a series of amendments, so you can’t really read the Patriot Act from cover to cover and know what’s going on. You need to read the Patriot Act, which is hundreds of pages, cover to cover, and also read from cover to cover all of these laws that have been enacted in the past, including the Foreign Intelligence Surveillance Act, which is a law enacted in 1978. And nobody had any time to do that in the wake of 9/11, and the country wasn’t in the mood to be asking or answering questions about the need for more surveillance authorities. So really what happened was that the intelligence community proposed these powers, and most legislators declined to ask questions.
The one good thing that happened at that point was that some legislators said, “Well, if we are going to put these new powers in place, powers that we don’t understand and could be used in a million different ways, we need to have language ensuring that we can come back and reconsider the necessity for the powers once more is known about how they were used.”
GREENWALD: It’s amazing how even back then, the Patriot Act was regarded as a pretty radical step, so much so that it needed these time limits, and fourteen years later, the radical position is to say, “Well, actually, we can live without the Patriot Act, like we did throughout our whole history.”
Now, there’s this split, even among privacy and civil liberty groups, about whether to endorse the USA Freedom Act. There are several groups that have a really long and impressive history of advocating for privacy who actually are not only advocating for the USA Freedom Act, but actively lobbying for it, trying to get Senators who voted no the first time to change their vote and vote yes. Whereas the ACLU came out, first in an op-ed by its director, Anthony Romero, and since then in various ways, essentially saying “No, the best course is to let the whole thing lapse.”
Can you explain the contours of that debate a little and the rationale behind the ACLU’s position that the best thing to do is just let these provisions lapse instead of trying to reform them with this law?
JAFFER: Sure. I don’t want to overstate the disagreement between the groups because the groups, I think, are largely in the same place about where we want to go eventually in this debate. The disagreement is really one of tactics rather than strategy or grand vision or anything like that. But still, you’re right that there’s a disagreement between what the better choice is right now between the USA Freedom Act as it’s currently drafted and the possibility of just a straight sunset of these provisions.
Our position from the beginning has been very bureaucratic sounding: “We take no position. We are neither in support nor in opposition to the USA Freedom Act.” But between USA Freedom as it’s drafted right now and sunset, our preference is sunset.
The USA Freedom Act would make some important improvements to the law. For example, it would end the bulk collection of call records. It would also limit the government’s ability to collect other kinds of records in bulk. It would impose some new transparency requirements. It would also create a new amicus provision – a kind of “friend of the court” provision – for the Foreign Intelligence Surveillance Court, so those are all very important things. But they are limited things. And we think the scheduled expiry of these provisions presents Congress with a unique opportunity to enact broader reform.
We would like to see the USA Freedom Act strengthened in some respects. I mentioned that it would end the call records program. It wouldn’t prevent the large-scale collection of other kinds of records. And while it has transparency provisions, it exempts some key information from those transparency requirements.
For example, the FBI’s use of the Foreign Intelligence Surveillance Act amendments of 2008 to conduct what some people are calling backdoor searches of some Americans’ electronic communications. I should explain: the Foreign Intelligence Surveillance Act was enacted in 1978, but there were these big amendments in 2008 that essentially allowed the government to collect Americans’ international communications in bulk – large volumes of Americans’ international communications. And what happens is that the FBI then goes into this database that houses all of those communications – millions and millions of communications – and searches through them using identifiers associated with US persons. In other words, an American’s name, or email address, or phone number. It searches through the database for communications associated with those identifiers. And it does all of that without a warrant.
So some members of Congress, Senator Wyden in particular, have been trying to convince Congress to prohibit that practice, to ensure that the government gets a warrant before reviewing Americans’ electronic communications. But the USA Freedom Act doesn’t do that. So we would like to see the USA Freedom Act amended to include that kind of fix.
GREENWALD: Let me ask you about that specifically, because we talked before about the three factions, and there’s this faction that voted no in the House. And their argument is not, “The USA Freedom Act: we wish it went further in limiting the NSA, it goes in the right direction but we wish it went further and therefore we’re voting no.” Their argument is actually that it’s a net negative for privacy. That it actually strengthens the USA’s surveillance powers above and beyond even what the status quo allows. Is there validity in that argument?
Is it clear to you that the USA Freedom Act – obviously your preference is to just let the Patriot Act provisions lapse – but between the other two options, which is to enact the USA Freedom Act or just keep the status quo, is it clear to you that the USA Freedom Act, on balance, is a better alternative to the status quo? Or is there validity to the concern that it actually strengthens the NSA’s power to beyond what it has now?
JAFFER: I definitely don’t think their argument is frivolous, or anything like that. I think there’s a serious argument on that side. That’s not where I come down in the end.
We think that USA Freedom would, on balance, be a step in the right direction. But the argument that they’re making on the other side is that, “Look, some of the language in USA Freedom, which is meant to limit bulk collection, would also have the effect of entrenching what’s sometimes called ‘bulky collection,’ or large-scale collection that doesn’t reach the scale of the call records program but is still very broad collection.” And they might be right about that.
It’s very hard to say because the language is still very abstract and at the end of the day, it’s the NSA and the FISA court who are going to implement this, at least in the first instance. So that’s why I say it’s not a frivolous argument.
But at the same time, there are things in the USA Freedom Act that I think are unmitigated positives, like the transparency requirements, the amicus provision in the FISA court, and the end of the call records program. And those things are good. They’re limited, but they’re good.
GREENWALD: Now, obviously the Obama administration is –
JAFFER: Let me just say one other thing about that. The fact that we’re having that argument only underscores how limited USA Freedom actually is.
GREENWALD: Right. Even if it’s a step in the right direction it’s a very small step in the right direction.
JAFFER: That’s right.
GREENWALD: Now, the Obama administration’s argument, even though they’re behind the USA Freedom Act, is that they’re very much opposed to the course of action that the ACLU is advocating which is letting the Patriot Act provisions lapse entirely – just go away.
And the new Attorney General, Loretta Lynch, sounds like she has been fear mongering for many years when she went on CBS with Nora O’Donnell and talked about how scary it would be if the Patriot Act provisions lapsed; that it would make us less safe, that it would give a blind spots to the intelligence community.
Are there any legitimate dangers to just letting these provisions lapse?
JAFFER: No. There aren’t.
There have been a number of reviews now of precisely these questions, especially with respect to Section 215. So there was the Privacy and Civil Liberties Oversight Board review of the call records program. There was another one by the President’s Review Group.
These are all executive branch appointees or entities that are doing the reviews. And they conclude that the call records program has never been pivotal in any terrorism-related investigation. That was from the Privacy and Civil Liberties Oversight Board. And the President’s Review Group concluded essentially the same thing. That was about the call records program specifically.
But there was a report issued earlier this week by the Department of Justice’s Inspector General which concluded essentially the same thing about Section 215 more generally. In other words, that Section 215 had never been crucial in any terrorism investigation. Not just the call records program, but any surveillance under Section 215.
So it’s very hard to see why the sky would fall if Section 215 were allowed to expire. And Section 215 is overlapping with a number of other authorities. So even if it were the case that certain targeted surveillance under Section 215 had actually been crucial, or even useful, in any terrorism investigations, there’s no reason why the government couldn’t conduct that kind of targeted surveillance under other provisions. So I just don’t see it.
I don’t see why anyone should believe that the sky would fall or even that the government’s investigative authority will be limited in any meaningful way.
I think the better question comes from the other side, which is: Do you think the sunset of Section 215 will be a meaningful step towards reform?
GREENWALD: That’s what I was going to ask next, actually.
JAFFER: That’s a good question. The problem –
GREENWALD: Let me just interject there: the argument that people make, and I’m sympathetic to it, which isn’t the same thing as saying I agree with it, is how significant would it really be?
The NSA has all of these other authorities. They can cite executive orders and other things, on top of which they’ve done a really good job of co-opting laws in the past. We had this FISA law that said you can’t eavesdrop on Americans’ communications without a warrant, and they did it anyway.
They invented this incredibly radical interpretation of the Patriot Act – of 215 – that says “This lets us collect everything we want,” and that was the interpretation the Second Circuit, ten years later, rejected, finally, just a couple of weeks ago.
So given how adept they are at kind of co-opting the process to do what they want – the other authorities – and their propensity to circumvent the law or even break it to do what they want, how significant would it really be?
JAFFER: A couple of responses to that. One is that the authorities are overlapping, and so the sunset of any one of them alone is not going to achieve a lot.
It’s got to be the first step in a broader effort. And if we thought that sunset would be the end of the conversation, then I don’t think we’d be too enthusiastic about sunset. But we’re hopeful that sunset would be the beginning of the conversation, and not the end. So that’s one thing.
But the second thing is, no matter what legal changes of the kind we’ve just been discussing get made, there is always the possibility the laws will be co-opted. The laws are abstract, and they’re malleable, and especially when they are interpreted in secret, it’s relatively easy for an executive agency to read them to mean one thing when the world thinks they mean something else. And so you need to have multiple safeguards.
And one safeguard is transparency. You require the government to be more transparent about what it’s doing.
Another safeguard is the FISA court itself. You require the FISA court to have some form of adversarial process. You require the FISA court to make public some of its decisions relating to these consequential decisions that implicated individual privacy.
Another safeguard, then, is the ordinary federal courts. You’ve been writing about this, Glenn, for many, many years, but the ordinary federal courts have been, until very recently, unreceptive to challenges to government surveillance.
Every time somebody walks in saying “I think this particular government surveillance program is unconstitutional,” or “I think this particular surveillance statute is unconstitutional,” the response that the executive has given has been, “Well, all of this is covered by the state secrets privilege, and anyway, these guys don’t have standing to challenge the law because they can’t prove that they were monitored under it.”And the courts have accepted those arguments over and over again. I hope that that’s changing now; I think that the Second Circuit’s decision is a positive sign. But it has been a real issue in the past.
And I think unless the ordinary federal courts become more receptive or more open to those kinds of challenges, then one crucial safeguard isn’t going to be there.
GREENWALD: Right, and one other safeguard, and sort of the safeguard of last resort, is that if all those institutions fail to do their job and to compel adherence to the law, then you know the safeguard is an Edward Snowden, or a Tom Drake, or a Daniel Ellsberg, or whomever, or a Chelsea Manning, who comes forward and shows us what’s been going on that shouldn’t have been kept from us.
And that’s what my last question is about, Jameel. There has been this sea change in journalists and pundits who have said, “you know what, I was wrong about Snowden, attacking him this whole time, when it turns out what he did was right.” There was a column in Salon by Hodding Carter; Juan Williams, who was really harsh on Snowden for two years, wrote a column saying, “I was wrong.”
The Second Circuit decision says that the program he revealed was clearly illegal. And now this debate – and we’re going to have some kind of change in the law; it seems almost inevitable; with regard to the program that he came forward to expose – shines new light on him, for everyone other than the most entrenched ideological critics.
Do you think that this bodes at all well for the future for him, in terms of being able to reduce the charges against him to something reasonable, or at some point even being able to come back to the US without having to go to prison for a long period of time? I don’t think I’ve even discussed this question with you in any form before, so I’m interested in your thoughts on that.
JAFFER: I hope that’s right. I think that at this point, as you say, there really has been a tremendous shift in the political landscape, and that could not possibly have happened without Snowden.
It’s not just that people think now that some of these policies were unwise; that some of them went too far. It’s that we have multiple institutions, including, most recently, a three-judge panel, the Second Circuit, saying that some of these activities were unlawful and unconstitutional.
I think that that’s a pretty big deal, and it would be pretty difficult for somebody to make the argument that we all would have been better off if this unconstitutional activity had never been brought to light and nobody would have known about it. I don’t even see people making that argument anymore. So I hope that that has the kind of effect that you hope it does.
I think that we owe Snowden a huge debt, collectively. We really owe him a huge debt. Because this kind of stuff was kept secret for almost fifteen years. Behind closed doors, these powers got broader and broader. The government learned to use them in new ways, and more and more intrusive ways. The checks and balances that were meant to limit those activities failed, one after another.
And all of that would just have continued, but for Snowden’s courage. So I think we owe him a huge debt, and I think it’s a travesty that he is stuck in Russia. He ought to be here, but there’s no reason he should be here behind bars. So I hope that debate goes in the way that you speculate it might.
GREENWALD: Well, it’s very rare to have a debate in Congress that is both interesting and where the outcome is uncertain, but that’s what we have now, and I really appreciate your taking the time to help sort it all out.
JAFFER: Great to talk to you.
Photo: Mark Wilson/Getty Images