BETWEEN THE LINES Q&A with Kevin Bankston

Between the Lines Q&A

A weekly column featuring progressive viewpoints
on national and international issues
under-reported in mainstream media
for release Oct. 7, 2009

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Congress has Opportunity to Revise Patriot Act
and Restore Civil Liberties Protections

RealAudio

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Interview with Kevin Bankston,
senior staff attorney with the Electronic Frontier Foundation,
conducted by Scott Harris

wiretap

In the aftermath of the Sept. 11, 2001 terrorist attacks in New York City and Washington D.C., President Bush succeeded in pushing Congress to pass the USA Patriot Act, a far-reaching bill that many legislators never read before voting for it. The act, signed into law on Oct. 26, 2001 gave sweeping new powers to both domestic law enforcement and international intelligence agencies, while eliminating checks and balances that previously gave courts the opportunity to ensure that such powers were not abused.

At the end of 2009, three provisions of the Patriot Act will expire. Many civil liberties advocates are now urging Congress to review the nation's surveillance laws and amend those that have been found unconstitutional or have been abused by law enforcement agencies to collect information on innocent people.

Among the Patriot Act provisions that will sunset on Dec. 31 are National Security Letters which compel Internet companies, libraries, banks and other institutions and businesses to turn over sensitive information on their customers; the Material Support Statute, which criminalizes providing "material support" to terrorists, regardless of whether they actually or intentionally further terrorist goals -- and 2008 amendments to the Foreign Intelligence Surveillance Act or FISA, that authorizes the government to conduct warrantless, dragnet collection of U.S. residents' international phone calls and e-mails. Between The Lines' Scott Harris spoke with Kevin Bankston, senior staff attorney with the Electronic Frontier Foundation, which has filed lawsuits against the telecommunication companies participating in warrantless surveillance. He assesses efforts in Congress to roll back some provisions of the USA Patriot Act that are seen by many as standing in violation of basic constitutional rights.

KEVIN BANKSTON:Well, despite the vaunted super-majority in Congress and despite taking the White House last year, the Democrats are yet again negotiating against themselves rather than succeeding in presenting a unified front for surveillance reform, just as they're having difficulty rallying around a single health care proposal. As I'm sure your listeners know, the Patriot Act was a very broad surveillance bill that passed immediately after 9/11 and significantly expanded the government's authority to conduct a variety of types of surveillance, not only in foreign intelligence investigations dealing with terrorists and spies, but also in garden variety criminal investigations.

For example, one of the Patriot authorities for sneak-and-peak searches, where they execute a search warrant secretly and only notify you about it later. As Sen. Russell Feingold has noted recently, in the vast majority of cases, that power has been used to investigate drug crimes and not terrorism crimes, despite it being sold as an anti-terror power.

Meanwhile, last year, Congress also passed something called the FISA Amendments Act amending the Foreign Intelligence Surveillance Act, which deals with wiretapping and other foreign intelligence surveillance, something that Patriot also amended a few times. I'd like to say that Patriot in a lot of ways, presented nips and tucks to the law, although taken together, all of its powers are very worrisome. It didn't up-end the fundamental structure of the law. While I call the FISA Amendments Act, or the FAA, a radical facelift of surveillance law that incredibly, expanded the government's ability to warrantlessly wiretap American citizens. So, as three particular Patriot provisions have come up, are set to expire at the end of this year, many have seen that debate over reauthorization as an opportunity to broadly reform Patriot, not just the expiring provisions. And, in particular, to reform something called the National Security Letter Authority. This is the power of the FBI to essentially just write a letter and demand private Internet-owned and credit records without any court oversight. And without those records having a demonstrated link to any terrorist or spy.

Others have also felt, including us at the EFF, that this is a good opportunity to address the FISA Amendments Act from last year, because in many ways, addressing Patriot reform alone is from a civil liberties perspectives like rearranging deck chairs on the Titanic, because the FAA was so powerful compared to what Patriot did.

So, Sen. Feingold, apparently on the same page as we are, introduced a great bill several weeks ago, called the Justice Act, co-sponsored by Sen. Richard Durbin, D-Illinois, was going to be the base bill that the Senate Judiciary Committee would consider when considering a bill to send to the floor of the Senate to reauthorize these expiring Patriot provisions. Unforunately, Sen. Patrick Leahy came out with his own bill, and it was a disappointing step back, a watering down of the Feingold bill. It contained some important reforms. But it didn't address the FISA Amendments Act at all, unlike the Feingold bill, which not only would provide new protections (for) Americans against warrantless wiretapping, but would also have repealed immunity for the telecoms, like AT&T who we are suing for helping in the U.S. wiretapping program. So, the Leahy bill didn't contain any FISA Amendment Acts reform, it contained much fewer Patriot reforms.

BETWEEN THE LINES:After the Sept. 11 attacks, it seemed that a lot American citizens were very willing to let go their civil liberties and constitutional protections in favor of security. I wonder eight years after the attack, do you feel the public is aware, following these developments with regard to the government's ability to spy on citizens and revisiting the Patriot Act and replacing some of the protections lost?

KEVIN BANKSTON: I would hope so. I've been very disappointed, though, in a general lack of this issue in the past few weeks. I'm particularly disappointed that, when it comes to the FISA Amendments Act that passed last year, there have already been reports of abuses of that law implicating the privacy of millions of ordinary Americans. Right now, the NSA is sucking up millions of Americans' private email communications and yet, our Congress seems wary of even addressing minor reforms to the Patriot Act. I think it's an incredibly worrisome state of affairs, and I think that it's important that those who do care about privacy make their voice heard now, because if we don't get a good bill out of this judiciary committee process, we're going to be in big trouble when it comes to civil liberties and privacy protections into the Patriot Act, much less the FISA Amendments Act.

The Electronic Frontier Foundation currently has lawsuits against AT&T, the government and is challenging the constitutionality of the law granting telecommunication companies immunity. Contact the foundation by calling (415) 436-9333 or visit their website at www.eff.org

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Scott Harris is a producer of Between The Lines, which can be heard on more than 45 radio stations and in RealAudio and MP3 on our website at http://www.btlonline.org. This interview excerpt was featured on the award-winning, syndicated weekly radio newsmagazine, Between The Lines for the week ending Oct. 16, 2009. This Between The Lines Q&A was compiled by Anna Manzo.

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