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Bruce Fein: Patriot Act does not defend national security, it defends a military empire

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in Washington. And on February 8 in Washington, members of the House–libertarians and Tea Partiers on one side and progressive Democrats on the other–got together and defeated a bill that would extend three key sections of the Patriot Act. Now joining us in our Washington studio to talk about what happened and why it matters is Bruce Fein. Bruce was at one time associate deputy attorney general under President Reagan. He’s author of the book American Empire: Before the Fall. Currently, one of his clients is Turkish American Legal Defense Fund. And you are also, if I understand, Bruce, a part of, an advisor to the Campaign for Liberty, sort of Ron Paul’s advocacy–.


JAY: Think tank?

FEIN: Yes, that is correct.

JAY: So tell us, first of all, what happened. What happened on February 8? And where are we now?

FEIN: Well, on February 8, on special calendar, a bill to extend three provisions of the Patriot Act–one concerning roving wiretaps on terrorist suspects; another considering the authority of the government to surveil what are called “lone wolf terrorists”, those who have no connections to any organization or nation; and third, to require the production of what’s called “tangible evidence” from any business that is said to be connected to a terrorist investigation on the declaration of the Federal Bureau of Investigation. They are critical provisions. I wouldn’t necessarily characterize them as the most important of the Patriot Act. As you recall, when it initially was enacted in the aftermath of 9/11, it had literally hundreds of provisions in there. Some have been held unconstitutional since that time. But the bill then went back on regular calendar, because under special calendar you need two-thirds vote in the Senate.

JAY: Which on February 8, it was on special calendar.

FEIN: [inaudible] special calendar. It went back to regular calendar, and then it passed by a comfortable margin. Now it’s in the Senate. The Senate is different than the House in that its bill is–at least according to Senator [Patrick] Leahy, its chief sponsor, also addresses this question of national security letters. Those are akin to what the founding fathers protested as general writs of assistance. They enable the FBI unilaterally to announce that, to a business, they’re searching for some kind of records. It could be your credit records, your bank records, your library records. And simply by stating that it relates to a terrorist investigation, those records must be forthcoming. And there are gag orders imposed on persons who receive a national security letter that prevent them from disclosing the fact that they are being asked to provide information to the public. The idea is, well, if they disclosed it, maybe the actual culprit who’s being investigated could be forewarned and take evasive kinds of action. I think the importance of the Patriot Act that you unidentified, Paul, is that it basically is a landmark between two ideas of a republic and an empire. I think we’re an empire at present. In a republic, the ordinary rule of life is freedom for the individual. That’s what the Declaration of Independence says, that the sole purpose of government [is] to secure rights to unalienable life, liberty, and the pursuit of happiness, and that the government must establish a very, very strong case to justify invading liberty before that can–the right to be left alone can be invaded. The empire is different. The empire assumes the government can go in and invade and surveil you and make you transparent to the government, unless you can show tyranny is the next step. That’s the opposite of what the founding fathers said. They said, no, in a republic, the preference, the goal of the government is freedom first. The government has to satisfy that high threshold of danger in order to encroach. And the Patriot Act recognized the empire attitude is because under the Patriot Act, the government established no case whatsoever that any of these extraordinary powers could have ever solved any terrorism case ever. Indeed, John Ashcroft, the then-attorney general, conceded, if we had the Patriot Act on 9/11, it still would have happened.

JAY: Okay. Now, let’s just back up. There’s the political side of this, which is very interesting, which is a section of the Democratic Party defies the Obama administration, ’cause the Obama administration actually wanted the extension of these three sections of the Patriot Act till 2013. Then you’ve got the libertarian Tea Party section of the Republican Party votes against the leadership of the Republican Party. So let’s just–well, let’s talk a bit about what you make of this, the politics of this.

FEIN: But that coalition between, you know, the libertarians, if you will, the genuine Tea Parties, as opposed to the bogus, and then the progressives–.

JAY: ‘Cause not all the Tea Parties voted the same way on this.

FEIN: No, no, no, ’cause some–no, some of the Tea Parties really aren’t what I call genuine Tea Parties, in the sense that they reflect more empire than they do a republic. They’re Tea Party ’cause they want to cut domestic spending, but that’s all. They really don’t have an understanding of liberty and freedom and not going abroad in search of monsters to destroy by fighting what Don Rumsfeld called “anticipatory self-defense” wars. But putting that aside, I think you have, you know, a substantial number of members who belong either to the Dennis Kucinich or the progressive side of the Democratic Party, and the Ron Paul, Walter Jones libertarian side of the Republican Party, but at present they’re really not enough, I think, in general, to dominate the House or the Senate. I think that they can throw spanners in the works, but as you saw, once this went on regular calendar from suspension calendar [inaudible] simple majority, it passed reasonably comfortably. And that doesn’t mean in the next couple of years that coalition couldn’t enlarge in numbers, where it becomes a dominant force, but right now I would say we’re still at a minority phase of this kind of coalition. I don’t really see it breaking apart. You know, we always say politics has strange bedfellows, and even though they may disagree enormously on a lot of domestic issues–same-sex marriage, prayer in school, abortion, and things like that–there is a convergence that the government is out of control in some respects, certainly with regard to encroaching on privacy.

JAY: I won’t take you up on why libertarians are against same-sex marriage. But, anyway, we’ll argue about that one, [an]other time. But let’s go to the substance of what those three parts of the Patriot Act, where–why do they matter? Like, what were they, exactly, and how do they impact people’s lives?

FEIN: Well, let’s take the one with regard to the surveillance of lone wolf terrorists, so to speak. That means that these extraordinary authorities of the government, national security letters, which are designed to address just enormous threats, existential threats, now can be applied to just a single individual–who by definition is not going to be an existential threat. No one person is going to stand–even Goliath wasn’t going to overthrow the United States of America with our $1 trillion defense budget. So it matters not in, necessarily, the detail, ’cause the vast majority of Americans aren’t going to be subject to that surveillance. It matters because it continues this mentality, by God, after 9/11, you know, any tiny danger is the equivalent of war, and just one single individual, Abdulmutallab, on an airplane, you know, is an existential threat, and we got to have him in the brig, and we have to have war–we treat him as a prisoner of war. And it invokes this whole architecture of war, rather than civil liberties in a civilian population, where criminal law enforcement applies.

JAY: So it keeps chipping away at the whole question of constitutional individual rights [inaudible]

FEIN: That’s right. It sets a precedent, if you will.

JAY: Okay. Let’s get to one that does impact everyone’s lives. And it wasn’t one of these three pieces, if I understand it correctly, but it’s in the Patriot Act, and I think most people aren’t aware of it, which is how the Patriot Act affects privacy on the Internet. Can you talk a bit about what the provisions are? ‘Cause I don’t think most people know. If I understand it correctly, I think it’s after 90 or 120 days, if your emails are sitting on a third-party cloud like Gmail, the government essentially just has to go and say, well, we think it’s important, and let us look.

FEIN: Well, they say–if it’s related, they say, that electronic [inaudible] is related to a terrorist investigation. That’s it. Then the information has to be forthcoming.

JAY: There’s no real process, just a–.

FEIN: Yeah, a letter, right, a national security letter. There’s no judge that reviews it. There’s no outside party that reviews it. It’s just the FBI says, hey, this is related to a terrorist investigation.

JAY: So let’s be really clear on this. So, if I understand it correctly, with one of these letters from the Department of Justice–but I think it can also come from other agencies. Or is it only–?

FEIN: Yeah, but mainly it’s the FBI who runs the majority [inaudible]

JAY: FBI sends a letter to Google or Yahoo! and says, we want to look at so-and-so’s email.

FEIN: Yeah, it’s related to a terrorist investigation. That’s it.

JAY: That’s it. And not only that, I understand a lot of these companies, including Verizon and others, are actually making money out of this, because they get to charge every time the government asks for one of these things. So it’s actually becoming a side business to hand over our emails.

FEIN: Well, it does, but they aren’t the one who initiate the request, so they can’t generate, if you will, the demand. The demand is on the public side or the government’s side, saying, hey, we have all these terrorist investigations [inaudible]

JAY: So what exactly–what can–what privacy can they break down, or what do they have access to?

FEIN: Well, [inaudible] the government can have access to the contents of your–they can get your cookie or whatever and look at what you’ve been doing on the Internet, saying: as long as it’s related to a terrorist investigation. There’s no prevention of–there’s no, even, ability to protest those kinds of national security letters, because the idea is, since you have volunteered, in this Orwellian sense, to leave this information with a third party, you have no privacy interests in protecting it. Like, you write out a check and your bank knows where it is, then you have no privacy interests in having the bank not reveal that to the whole world. I said, that is basically the legal theory behind establishing these national security letters, purportedly consistent with the Fourth Amendment’s protection of privacy interest, which to me seems utterly and completely nonsensical, because that’s very, very much privacy. It’s almost like looking at your diary when you’re tracking somebody’s email. That becomes as regular as what used to be the post office, where you clearly did need warrants to intercept people’s mail from one place to another.

JAY: Now, there hasn’t been a heck of a lot of hue and cry about this, and I would suspect most people don’t even know about it. Hold on.

(OFF CAMERA): There’s a fire alarm.

JAY: Okay. We have an actual fire alarm going on, and we’ve been told we have to get out of the building, so we’re going to end the segment here. But who knows? Perhaps this conversation sparked the alarms. I don’t know. We won’t go there. Anyway, thank you very much for joining us, and we will pick this up again if they let us back in the building. And thank you very much for joining us on The Real News Network.

End of Transcript

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Bruce Fein is the founder of the American Freedom Agenda. He served in the US Justice Department under President Reagan and has been an adjunct scholar with the American Enterprise Institute, a resident scholar at the Heritage Foundation, a lecturer at the Brookings Institute, and an adjunct professor at George Washington University. He was an advisor to Ron Paul. Bruce is also the author of the book "American Empire: Before the Fall."