A liberty-loving lawyer gets in on the act
I was in the lunch line at the June 18 Vermont Media and Democracy Conference in Burlington when I noticed a dapper, bearded gentleman with an eye-catching lapel button that read, "LIES = WAR." Turned out he'd made it himself, and had good advice for buying button-making equipment online.
We parted by the desserts, but during an after-lunch lull in the proceedings I asked, "So, what do you do besides make buttons?" Ben Scotch laughed, and I realized I should have read his nametag more closely. He was one of the conference's principal speakers and the executive director of the Vermont chapter of the American Civil Liberties Union.
In the 1970s, Scotch led environmental-enforcement efforts in the state Attorney General's office. But he really learned how laws were created, he said, when he served as aide to Senator Pat Leahy on the Constitution Subcommittee of the Judiciary Committee from 1981 to 1985. Scotch then worked as chief staff attorney for the Vermont Supreme Court until 2000, and took his post at the ACLU last year.
Finally, I thought, I'd met someone willing and able to answer my questions about the genesis of the USA PATRIOT Act. We began a dialogue that continued after the conference, by phone and email, as he traveled the country lecturing about threats to civil liberties. Excerpts from that conversation follow:
SEVEN DAYS: It seems to me that practical questions about the PATRIOT Act offer insight into its origin and purpose. How was it that this long and complex document -- explained to the American public as a response to 9/11 -- was ready to be presented to Congress within 20 days? Was it wholly or partially pre-written?
Ben Scotch: No report has surfaced about a pre-written USA PATRIOT Act as such. So a narrow answer is, at this point, that the bill was not "sitting on the shelf" at the Department of Justice. But that is not the whole answer. There seems to be little doubt that many of the provisions of the PATRIOT Act were on the shopping list of some folks over at Justice.
You have to appreciate that [the bill] was presented to Congress and passed in what had to be record time -- even considering other times of national urgency. And although Congress may have seen an early draft in October 2001, the actual bill that passed was a substitute given to the lawmakers a scant few days before passage on October 26, 2001.
So, whether or not parts of it were literally pre-written... it is clear that the drafters had time, before getting input from Congress, to draft a bill that Congress had not had a good look at, and which seemed hard to vote against, given 9/11.
One small point: Do you mind if we don't keep using the words "USA PATRIOT Act?" The name of the law is an acronym for "Uniting and Strengthening America to Provide Appropriate Tools to Intercept and Obstruct Terrorism." George Orwell got it right: What you name something is an important part of getting people to believe in the thing you're naming. There's not much patriotism in this law, so can we call it "USAPA" from here on?
SD: Maybe your substitution will catch on. Meantime, it seems we're talking, historically, about two different bills. The first was given to the House on Oct. 2, 2001, and the Senate two days later. A layman like me needs to ask someone like you: Is it likely that every one of those hundreds of pages of new laws was conceived, researched, and written from scratch between September 12 and October 1?
BS: Could the bill have been produced in three weeks? Sure. Much of USAPA consisted of changes to the Foreign Intelligence Surveillance Act of 1978, which was already in print, of course. But in one sense there was a "shelf." The DOJ team surely saw USAPA as a way to "right old wrongs" -- to drive around limits the courts had set on the government's power to search homes and businesses without probable cause.
SD: The House and Senate versions of that first bill passed with extraordinary speed, but in the process of reconciling those versions, an enormous amount of entirely new "anti-terrorist" material was inserted at the last minute. Almost no one in either chamber actually read the bill. How extraordinary -- or ordinary -- in terms of American history was this law-making process?
BS: The way USAPA was passed was unprecedented. The bill was so far-reaching and had such a potential impact on everyone's rights that more, not less, congressional attention and debate was in order. It didn't get that attention, and the new provisions inserted into the bill a few days before passage were offered up by the leadership with that old enticement: "Trust me."
SD: Is USAPA just the latest in a series of measures -- going back at least as far as the "Antiterrorism and Effective Death Penalty Act of 1996" -- by which the government has sought greater power in domestic investigations?
BS: The best evidence of your observation can be found in USAPA itself. Take the so-called "sneak and peek" section -- a provision that allows the FBI to obtain a search warrant to investigate an ordinary crime -- one that has no connection whatever to terrorism. The usual, pre-USAPA warrant requires that the law-enforcement officer let the target know that the search is taking place, or, if the target is not present, that the search has taken place. Makes sense, right? But under sneak-and-peak, the officers can postpone informing the target for a very long time. In other words, they can search through private property in the spirit of the Watergate "black bag" jobs.
Traditional criminal laws -- tough on crime but respectful of basic constitutional guarantees, like the right to privacy -- can do a good job of fighting crime and a good job of protecting the rights of the accused. This balance is not only the American way, but in the end it is the most effective way to keep us all safe -- from crime and from the threats of terrorism.
Let's get back to your original question about whether parts of USAPA were pre-written. Again, I don't know about any smoking gun, er, word processor. But there is an underlying attitude here about including Congress in policy-making decisions post-9/11 that is troubling... Congress and the American people were bypassed.
At the same time -- and with what I believe was the same motivation -- freedom of information was curtailed by government as a matter of DOJ policy. Even Congress now has a harder job getting information about executive-branch policies and actions. Without inclusion in the processes, the people and their representatives in Congress will have a harder time keeping the nation safe and at the same time keeping it free.
SD: Can you characterize the "motivation" you referred to?
BS: [It] was the weakening of the system of checks and balances that doesn't let any one branch of government run off with the Constitution.
Information is the fuel that checks and balances run on. In October 2001, Attorney General Ashcroft told the heads of executive agencies that they should lean toward refusing access to any government document over which they had discretion. And he expanded the conditions under which DOJ would defend an agency's decision not to disclose, reversing the longstanding presumption in favor of freedom of information. The motivation was pretty clear.
SD: What does history tell you about the chances of rolling back the USAPA and other post-9/11 encroachments on civil liberties?
BS: Thanks to some hard bargaining by Senator Leahy, some USAPA provisions have "sunsets." They will disappear next year unless the next Congress reenacts them. That includes the so-called "library" section that allows access to any record -- really any "tangible thing" -- without probable cause. A lot depends on the outcome of the elections in November, but I think there will be support from folks all across the political spectrum to modify or eliminate some of USAPA's worst provisions.