BRANCACCIO: There have been new developments in another issue facing the country: how the war on terror touches our personal lives.
Just six weeks after 9/11, the White House pushed through the USA PATRIOT Act, greatly expanding the ability of government to conduct wiretaps and surveillance on Americans.
Then last February, NOW reported on a Justice Department plan dubbed PATRIOT Act II that would give law enforcement even greater powers.
Opposition was swift. Some 200 local governments adopted resolutions opposing it, and the legislation was never introduced in Congress. But the story doesn't end there.
In September, at the FBI Academy in Quantico, Virginia, President Bush pushed again for more tools to fight terrorists, saying the first PATRIOT Act is just not strong enough.
PRESIDENT BUSH: Under current federal law, there are unreasonable obstacles to investigating and prosecuting terrorism, obstacles that don't exist when law enforcement officials are going after embezzlers or drug traffickers.
For the sake of the American people, Congress should change the law and give law enforcement officials the same tools they have to fight terror that they have to fight other crime.
BRANCACCIO: So now the White House has come up with a new legislative tactic. PATRIOT Act II has been broken into small bites, which are appearing as attachments to other appropriation bills.
Here's how it works. Buried deep inside the 77-page Senate Intelligence Authorization bill, parts of which are classified, comes a one paragraph provision titled listen carefully; it's not fine print, it's the title: MODIFICATION TO DEFINITION OF FINANCIAL INSTITUTION IN THE RIGHT TO FINANCIAL PRIVACY ACT.
Many lawmakers, when they voted to pass the measure this summer, didn't realize the tiny provision would significantly expand government powers.
We talked to the American Civil Liberties Union and they told us the legislation allows the FBI to secretly sift through our financial transactions with car dealers, travel agencies, post offices, casinos, pawnbrokers, as well as securities dealers and currency exchanges, all without a judge's approval.
Bob Barr joins us now to sort through the latest on this issue. He's a former Republican Congressman from Georgia, dubbed "Mr. Privacy" by the columnist William Safire.
Mr. Barr is a contributing editor for the AMERICAN SPECTATOR and sits on the board of the National Rifle Association.
Bob Barr, welcome to NOW.
BARR: Always a pleasure and an honor. Thanks for having me.
BRANCACCIO: Give me a sense of this. Are these theoretical privacy concerns? Or are these things that you me, my grandmother have to worry about right now?
BARR: None of these concerns that I and many others across the country have expressed are theoretical. These are very real concerns. And we're seeing people, I know personally from people coming to me either as an attorney or as an activist on privacy issues with very real stories about very real adverse effects that have befallen them.
Bank accounts that had been closed out with no reason. And the PATRIOT Act cited as the reason. Now, these are powers that are affecting real people, real citizens, law-abiding citizens every day. And we all ought to be concerned about the extent to which our privacy is being invaded.
BRANCACCIO: What do you think about this apparent strategy to insert a little paragraph here into a new law? Or maybe a little paragraph there instead of trying to push for a whole new PATRIOT Act II?
BARR: I always hate to tell people I told them so. But I've been warning for months now that in the wake of the adverse reaction to the initial draft of what I call the Son of PATRIOT Act early this year, the government would probably switch tactics to start trying to insert separate specific provisions of it into other bills. And that's particularly dangerous during the final few months of any Congressional session when all of the spending bills come up.
So this doesn't surprise me. It's very unfortunate that the government is doing this. But it's happened time and again. I remember it from the years that I spent in the Congress. And I'm sure that we'll see it again. It's sort of an underhanded way of doing it. But it's common practice in Washington.
BRANCACCIO: So this whole idea of giving the government broader authority to get access to your financial records, is that not okay with you?
BARR: It's not okay with me. And it ought not to be okay to all law-abiding citizens in this country. And even those that are doing something wrong, as both a former prosecutor and as a defense attorney, I like to see the government play by the rules. In other words, if the government has a legitimate reason to suspect that you or I or somebody else has, in fact, violated the law, the financial laws of this country, I have no problem with them going before a court, getting a court order, getting a subpoena in order to look at that information and build its case.
What I strongly disagree with are these efforts that seem to be moving into high gear now such as what we heard at the beginning of the program with the expanded ability now of the FBI to get financial records. Is the power of the government to start getting all of that private information without any reasonable suspicion whatsoever that the target has done anything wrong? That represents a dramatic change in the Fourth Amendment law of this country.
BRANCACCIO: But this is what I don't understand. You said law-abiding citizens. Why should a law-abiding citizen even care? We have nothing to hide.
BARR: Well, maybe we do. Maybe a law-abiding citizen doesn't want the government to know what they're talking about on their e-mails with a friend or an associate. Maybe the law-abiding citizen doesn't want the government to know exactly how much money they have coming in and out of a bank at a particular time. Or that they've made certain credit card purchases. Or that they've exercised their Second Amendment rights to purchase a firearm.
Maybe the citizen just doesn't want the government to know that on a regular daily basis for a couple reasons. One, you don't know what some bureaucrat is going to think is wrong behavior on your part or not. Secondly, it has a chilling effect on how we all operate in this country if we know the government is gonna have regular secret access to that information.
And it's going to dramatically change the way we operate not only with the government but interface with each other in our society. And that's wrong. That's bad. And that creates a sort of secretive state that America has never stood for in the past.
BRANCACCIO: One of my colleagues here on NOW opened up his mail I think last night. And he got a message from his mutual fund here. Important notice. It was from Fidelity it turns out.
And it said, "The USA PATRIOT Act of 2001 requires Fidelity to get his name, social security number, address, DOB, date of birth." And then it concludes, little paragraph. It says, "Be assured that this information will be treated with the highest regards for your personal privacy." Sort of ironic I think.
BARR: Well, it's ironic and it's not true. The fact of the matter is that under not just the PATRIOT Act but a number of other provisions of laws that have gone into effect in recent years and procedures that have gone into effect that aren't even laws, that are just government data-mining programs that the government is involved in, this sort of information is not protected properly under privacy safeguards.
There's one program, for example, that the government is involved in where they're allowing a private company, an outside company, to maintain and manipulate the data that the government is paying for. And the person whose information is part of that database maintained by a private company has no assurance whatsoever that there are going to be privacy guarantees to prevent the unauthorized disclosure of that information. So these sorts of notices are simply made to make people feel good. They have literally no meaning.
BRANCACCIO: So your mutual fund wants to know exactly who you are and your social security number, again, to pass it along to the government. But is there other areas of likes that we're already running into where the US PATRIOT Act touches us?
BARR: Very much so. There's one particular provision in the PATRIOT Act that has received a great deal of attention because it places or gives the government much expanded power to gain access to library records, for example. Even though the government says, "Well, trust us, we're not using that provision."
There are a number of different ways under the PATRIOT Act, for example, that the government gets the same information. That same power that the government gained in the PATRIOT Act to gain easier and secret access to library information can be used in virtually any situation where you have an entity, a business, for example, or an agency of a local or state government, that gathers information on you.
That could mean a pawn shop. A person, a company that maintains records of your firearms purchases. That raises very serious Second Amendment concerns among those of us who care about our Second Amendment rights. Medical records is another area that is in danger of becoming a repository for information that the government can get access to without you knowing about it, without any basis whatsoever other than some vague notion on the part of the government that this will help them in an investigation. And most problematic perhaps is the person to whom the subpoena is directed is prohibited under penalty of criminal laws against them, being brought against them, from even telling you that the government has sought the information.
BRANCACCIO: Now, you just said "in danger of." I was reading the speech by Democratic Senator Dianne Feinstein. She said she got about 21,000 concerned e-mails about the PATRIOT Act which she looked through them. And couldn't find sort of a verified instance of the PATRIOT Act being abused in the complaints.
It was more concerns about the future. What do you think? I mean, "is it happening already?" is what I'm trying to get at.
BARR: It is happening already. One has to presume, I think, it is a sort of a law of nature, that if government has a certain power it's going to use it. I know of no instance in which government has sought or has been given a particular power in which they've sort of put it on the shelf and never used it.
There's a reason why the government wanted those powers. They wanted to use them. And I think we have to legitimately and realistically presume that they are using these powers. Whether that represents an abuse is just a rhetorical game.
The problem is I think these powers, many of them are un-Constitutional in and of themselves. But the main problem in terms of Senator Feinstein or other public officials saying, "Well, you can't point to a particular instance of abuse therefore the PATRIOT Act ought to stand as it was passed," is something that you can never refute because the danger here is… and the problem here is that these powers are exercised in secret.
So you never know what the government is doing. They have effectively taken the court out of the equation. So even the courts cannot participate in any sort of meaningful oversight over what the government is doing.
BRANCACCIO: Now, I know that you were concerned about some of these issues when you were in Congress and this was on the table. But you did end up voting for it. Ever wonder what you were thinking back then?
BARR: Well, I knew what I was thinking. And I was thinking the same thing that a lot of folks were thinking. One is the fact that we knew that there were, in fact, some specific powers that the government did need to specifically address acts of terrorism. Unfortunately, the PATRIOT Act goes far beyond that. And it applies… most of its provisions apply generally to criminal laws, not just acts of terrorism.
But something that neither I nor others knew at the time was, one, the extent to which the government would use these acts for example, non-terrorism investigations. Secondly, we really didn't have any inkling at the time exactly how far the government would go with other programs. That when you sort of add them on top of the PATRIOT Act present a very oppressive privacy invasive move on the part of government.
So now after two years if you look at what the PATRIOT Act has done in conjunction with all of these other powers, the Total Information Awareness Program, for example. The Passenger Profiling System, for example. It becomes much more problematic than it appeared to us two years ago.
BRANCACCIO: The airline passenger profiling system?
BARR: That's correct.
BRANCACCIO: Now, you have impeccable conservative credentials. You're on the board of the National Rifle Association. You oppose same-sex marriages. What do your conservative colleagues make of your outspoken stance on an issue that puts you right in there with the American Civil Liberties Union?
BARR: Most people know me well enough to understand that this is not an epiphany that I've had, that I've all of a sudden changed. I've actually worked on these very same issues for the entire time that I was in the Congress. And that was frequently with the ACLU as an ally.
Now, the ACLU and I disagree on many issues. But on these type of issues regarding civil liberties and particularly protecting the right to privacy we have worked. I have worked personally with the ACLU and have very high regard for their work in this area. And what's been interesting is we have brought the right and the left together.
Very conservative organizations and very liberal organizations on these issues. And I think that's perhaps the main reason why these concerns about the PATRIOT Act and other government programs are starting to now surface and be heard in the halls of Congress, which is good.
BRANCACCIO: Sometimes, though, this right/left division can be confusing. There are different kinds of left and different kinds of right. I was reading one of your columns recently. You were talking about those neo-conservatives.
And you were critical of the neo-conservative view. You defined it this way. Your quote is, "The problem is that such total global American military dominance would require a huge federal bureaucracy. And even worse," you write, "it would require an essentially permanent state of war abroad as well as a climate of fear at home leading to ever-increasing levels of government power." Is that your broader concern here?
BARR: It is very much a concern. We've seen this in other societies around the world. Other countries around the world where in order to bolster a particular regime or a particular government over either a short or long period of time, you not necessarily conjure up but you either conjure up or focus on an external enemy.
And people in any state are always willing to rally around the flag and rally around their government if they're presented by the government with a situation that the government says threatens our national survival and overlook a lot of what the government is doing domestically simply because their attention is focused on an assertion of national security concerns abroad. That is now in this country a very real concern on the part of a lot of us.
And I would hope that the administration would listen to these concerns and work with those of us that have concerns rather than sort of just circling the wagons, hunkering down and saying, "No, we're not gonna listen to any dissent. As a matter of fact, what we're gonna do is we're gonna go ahead and propose more powers."
BRANCACCIO: What is it about you that makes you so concerned? I know you grew up, what, overseas? Does that play into this?
BARR: It does. Probably at sort of the fundamental level, two things. One, having lived, worked and grown up in the Middle East in Baghdad, Tehran, as well as in other parts of the world where I've seen these sort of police powers and privacy invasive powers used on a regular basis. I've grown up in areas where you don't have the liberties that we've always sort of taken for granted in this country.
Secondly, I spent a number of years as a federal prosecutor and as an official with the CIA, so I've been sort of on the other side. And I have, I think, a pretty good understanding of just how powerful government already was before it got these new powers. And in my opinion, in virtually every instance where we've had a problem with acts of terrorism succeeding, for example, it was not the result of the government not having enough power, but simply having made mistakes in exercising existing power or simply made policy decisions.
BRANCACCIO: People who even share your concerns about the abuses of liberty, may say, "Look, we're at a time of war here, and we don't want to do anything that gives aid and comfort to those who wish to attack us. You worry that your efforts to highlight possible abuses to our liberties, might in fact, have unintended consequences in our fight against terrorism?
BARR: Absolutely not. None of us, as citizens of this land, based on the rule of law, and with a Bill of Rights which underlies our very form of government, our very existence as a nation, ought never to be intimidated, into not speaking out on these issues. Simply because somebody says, "Well, to speak out against them gives aid and comfort to the enemy." That is not what these concerns are about. What we're trying to do, is we're trying to strengthen America by standing up for giving government the tools that it needs, but not those tools that are violative of the very liberties that the terrorists are trying to take away from us.
BRANCACCIO: Well, Congressman Barr, thank you so much for joining us on NOW.
BARR: It's an honor, thank you.