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I am the Director of the Libertarian Institute, Editorial Director of Antiwar.com, author of the book Fool's Errand, Time to End the War in Afghanistan, and I've recorded more than 5,000 interviews going back to 2003, all of which are available at scotthorton.org.
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Hey, you guys, Trevor Tim is the Executive Director of the Freedom of the Press Foundation, and here he's got an important one in The Guardian about the U.S. Senate vote last week on the Patriot Act.
Welcome back to the show.
How you doing, Trevor?
Great to be here, as always.
Happy to have you here.
So, bad news.
Go ahead and give it to us.
Well, everybody knows the Patriot Act, the very controversial and invasive law passed after 9-11 that was supposedly supposed to protect us from terrorism, but has been used to surveil literally every American in some cases when we're talking about the NSA mass surveillance programs.
But this law comes up for renewal every few years, and since the Snowden revelations, there has been a lot of members of Congress who have pushed back against the law.
And so this time around, the law was up for renewal actually earlier this year, and Congress let it expire because they were arguing about something else.
But it is now back, and the Senate had a particularly shameful vote on this law last week.
So what happened was the Attorney General for the Trump administration, William Barr, had been itching to explicitly allow the Justice Department to use this law to get our web browsing histories and our search histories without a warrant.
Now, as anybody can imagine, web browsing histories and search histories are about the most personal information you could ever imagine.
I mean, the things that people type into search engines, they don't even talk to their closest friends and family about in a lot of cases.
So it's obviously a very alarming issue, and you'd think this would be a no-brainer.
Of course, you would think members of both parties would say that a warrant is needed for this information, but that's actually not what happened.
The Republicans were pushing for this.
Mitch McConnell wanted an amendment that would allow this, and there was a couple senators who fought back.
And there was an amendment that was up for vote that would have actually barred the Trump administration from doing this.
It was sponsored by Ron Biden, and unfortunately, it failed by a single vote.
They needed 60 votes out of 100 to have it pass, and they got 59 votes.
And it was an interesting vote, which we can get into in a bit, but it was a huge setback in the sense that it was almost a reality.
There were two senators who missed the vote, including Bernie Sanders, and it was a situation where we almost got a huge privacy protection added to the Patriot Act, but unfortunately, it failed at the last second.
Okay.
Now, if I understand it right, well, I guess I really have no idea.
Now, certainly it was in the Snowden documents that the NSA is scooping all of this stuff up, but not necessarily handing it all over the FBI, or the FBI doesn't have the authority, or didn't have the authority to do this.
But then there were some reforms that were passed since then.
So I guess, what was the standing of this before the new law?
Well, there were some reforms passed in 2014 after the Snowden revelations.
Unfortunately, they were better than nothing, but they certainly didn't go far enough.
They certainly didn't repeal the Patriot Act in any sense.
What they did do was sort of stop one of the NSA's most notorious mass surveillance programs.
Of course, you and everybody listening remembers that the NSA was secretly collecting the metadata on every single phone call in the United States.
So the NSA was, if you called anybody within the United States, the NSA had in their database who you called, when you called them, and for how long, which can obviously reveal tons of private information about you.
So that program was reformed, and it wasn't stopped.
But the Patriot Act has a bunch of other provisions inside of it that have been controversial for civil liberties advocates for years.
And so that is what was up for renewal.
The most controversial is called Section 215, and this gets a bit into the weeds.
But this is the section that the call records program was based on, but it's also used for a whole bunch of other types of data collection that the FBI and NSA are secretly engaged in.
And so one of the things that privacy advocates are worried about is what if they use this section to gather up our search histories and our web browsing habits?
And so that's what this bill was meant to stop.
It was to say that you actually need a probable cause warrant to get anybody's search history.
So then is it right, then, that they have been going ahead and abusing this power ever since the Patriot Act was passed?
Well, we don't know.
That's part of the problem, is that a lot of this stuff is secret.
I mean, we didn't even find out about the call records program, even though it was being used for six or seven years, until somebody leaked it.
Well, they certainly interpret their authority as broadly as they can to apply to it.
They always interpreted the authorities broadly.
They go to the secret FISA court.
And they ask a judge to rubber stamp some radical new interpretation of the law that the public doesn't know about.
And at least in the past, the FISA court has acquiesced.
Now, thanks to this note in Revelations, there is a little bit more transparency.
Certainly, the government is still doing this secret interpretation of laws the public doesn't know about.
But they are forced to release more than usual.
And when it comes to search histories and browser histories, we don't know exactly how they're using this.
But what we really don't want is to leave the door open for them to start this mass collection in the future, even if they're not doing it currently.
Yeah.
Now, it's funny, because from the very first time I ever got the Internet, I always presumed that they're saving everybody's search history on their permanent record forever anyway, regardless of whatever a law might say.
They pretty much do what they want.
But is that exaggerated theory there?
Well, it might be or it might not be.
But I think the point is, even if they are doing this illicitly, it should be illegal.
And if it's explicitly written into the law that it's illegal, it will be a lot easier to fight them in court and potentially stop them in the future.
And now, even if they're not doing it right now, we don't want them to secretly start doing it.
And if they do start doing it, we want recourse under the law to potentially go to court and stop them.
So either way you look at it, I still think it's important for Congress to pass this type of restriction.
Yeah.
OK.
Now, so one thing is that you say that the House has already passed this law, but the language is quite a bit different.
So they're going to have to go to conference committee and then send the versions back.
And so that gives us another chance to do something about this.
I mean, you did say within one vote last time.
So no matter how cynical you are about politics, it's within the realm of possibility that something could be done here, right?
Yeah, absolutely.
I mean, of course, I'm not saying it's a great chance.
I would put it at 10 to 15 percent.
But this got tons of media attention last week.
And so the House passed a different bill a few months ago.
And so now they have to figure out how to merge the bills and vote on them again.
There are a bunch of very strong privacy advocates in the House of Representatives who may be emboldened by the fact that this only lost in the Senate by one vote.
And it lost by one vote, and that's excluding the two senators who missed the vote who would have voted for it as well.
So in a way, they actually had the votes in the Senate to pass this.
And so if the House decides, OK, you know what, we're going to put this provision in our bill because obviously it's incredibly popular with the American people.
It crosses party lines.
That was one of the interesting parts about this vote is this isn't a Democratic-Republican issue.
There is a left-right coalition who is very much in favor of providing warrant protections to our search histories and advocates for privacy in general.
And then there is the more moderate establishment wing of both parties, mostly the leadership, who is fighting to allow the Trump administration to continue to do this.
And so there is still a chance that if people are loud enough, that this could make its way back into the bill.
And, you know, even though it's terrible news, I don't want to give up yet.
Yeah, well, good call.
So what can people do?
Does your organization actually have an ongoing drive about this or anything like that?
Yeah, absolutely.
Go to our website, freedom.press.
It's the top article on our website right now.
We tell you how you can get in contact with your member of Congress.
And then the other thing that I would mention is that actually, because there was so much outrage about this, there was actually another amendment that nobody really knew about or that wasn't getting a lot of attention that actually did provide substantive reform to the FISA court, making it more transparent, making it easier for privacy advocates to make arguments to that court.
Again, one of the big problems is this court was only hearing one side of the argument, and now it's going to hear both sides of the argument.
And the reason that a lot of senators voted for this provision is not because, you know, they were potentially excited about protecting people's rights, but it was because people were instantly outraged about this web browsing amendment.
And so they actually listen to people at least sometimes.
And so this is one area, because it's such a close vote, where it could make a difference.
So I would encourage everybody to reach out to the representative and ask them about the Patriot Act, because this should be happening in the next few weeks.
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Yeah.
So talk about this amendment about the, to reform the Foreign Intelligence Surveillance Court.
Yeah, so I mean, this also gets a bit into the weeds and...
Nah, go ahead.
People like weeds.
People like weeds.
This is why it didn't generate a bunch of headlines.
I mean, there was, if you go online and search for Trump administration web browsing history warrant, you'll find dozens and dozens of articles about this amendment that failed by one vote.
But what you won't find as many articles at all about a vote that happened 12 hours later.
And that involves the FISA court.
Like I said, the secret court that has been rubber stamping surveillance orders for decades.
A huge issue has always been that the government gets to make its arguments and then the court doesn't hear any other side.
So you could imagine if you're judging any case, no matter what your views are on privacy, and you only hear one lawyer talk, and then you have to make a judgment, anybody is going to probably come down on the side of the argument that they heard.
And so this is what the FISA court does all the time.
Thanks to the Snowden revelations, we actually, in the 2014 reform that I referenced earlier, there was a small provision that basically said, at the court's discretion, in a very specific small set of cases, the court can appoint a lawyer to give the civil liberties perspective when it deems necessary.
Now, so that language was very, very vague.
It basically left it up to the judges to decide.
And so you can imagine they didn't actually use this provision very often, because the judges like to side with the government.
But when they did, almost inevitably, it made a huge difference.
There was a couple cases that had to be declassified that showed that the NSA is still systematically violating people's privacy.
And the reason, part of the reason that the judges ruled that way was because they had this what they call friend of the court or amicus brief in the legal Latin.
And so this has been a very subtle and unknown game changer.
And so what this provision did, the second provision that nobody really heard about, was that it radically and substantively expanded the ability of the civil liberties advocate inside the FISA court to get access to classified information, to argue in virtually every case where there is any sort of that where the issue touches on privacy rights for any type of group of people.
Any case involving the First Amendment or First Amendment issues, this person will now be given unrestricted access and will actually be able to appeal cases all the way to the Supreme Court if they disagree with the FISA court decision.
This person will be enabled to bring this case to the Supreme Court, which would be absolutely unprecedented.
And so certainly this doesn't fix all the problems, but it does actually quite level the playing field in a way that has never happened in our modern history.
And so you can see why, you know, that you really have to add like five paragraphs of explanation to why this amendment is important.
And so it doesn't grab the headlines like the web browsing controversy does.
But, you know, when you when you really dig down into it, this could be quite a game changer.
Yeah.
Now, so it's funny because it's like, wow, what a relief that they're going to tinker with their wholly unconstitutional and illegal star chamber court here.
That sounds like a pretty substantial reform to it.
So that's pretty good.
You know, I guess you take what you can get.
So it was so substantive and I think it caught the Trump administration off guard because they actually said after the fact, after probably not realizing this is going to pass, as soon as it did, they released a statement saying that this bill is unacceptable and this will let the terrorists win.
And anytime they're claiming that some sort of, you know, Fourth Amendment respecting privacy provision is going to let the terrorists win, you know, that they are, number one, you know, totally full of it.
And number two, probably this is a good thing.
And so that's the case here.
And so that gives me even more confidence.
This is actually bigger than people think.
Yeah.
All right.
Now, so I'll tell you what, man, I was wondering if you could do me a favor and talk with us a little bit about Chelsea Manning and Julian Assange because their cases are still so important.
And, you know, I had made a joke in an article back before the suicide attempt a couple of months ago about how, due to Eric Cherimella, now the media loves whistleblowers so much.
And that's why all of the recent fawning coverage of Chelsea Manning.
And then that was a link to the Google News results for the search term Manning.
And for the first 10 pages, every single result was about the football player or some other, you know, completely irrelevant thing.
You have to go back months and months and months and months and months to even find any coverage of Chelsea Manning whatsoever at that point, who was sitting in a prison cell in contempt of court.
And as I just mentioned, tried to kill herself and was only allowed out of jail after trying to kill herself.
And so but it just seems like, you know, it's important in its own right.
But it's also so illustrative of, you know, everything that's going on around here these days with the way that the government and the media interact, mostly in conspiracy against the rest of us.
But, you know, also, there are a lot of people listening to this show who are too young.
You know, 10 years ago was a blink of an eye to you and me, but it was a lifetime ago, half of one to a lot of people listening, probably.
And and there's people who just weren't even interested in politics at all at that time, or they were a warmonger back then.
And so they were on the wrong side of it all, or just for whatever reason, they don't know the story of Manning and Assange.
And yet, as I was saying, it's still so important right up to this day.
So I figured, you know what, who better to get people educated on the issue than you?
Yeah, I mean, Chelsea Manning is one of the most important whistleblowers in modern history.
You know, Edward Snowden is now a household name, but before Edward Snowden, it was Chelsea Manning.
Back in 2010, when the Iraq War and Afghanistan War were still raging, she leaked hundreds of thousands of classified military and State Department documents to WikiLeaks.
And these documents were the basis of thousands and thousands of important news stories about our conduct in both wars and diplomacy around the world.
WikiLeaks had partnered with The New York Times and The Guardian and several other papers throughout the world.
And it was one of the most important journalistic projects that we've seen in the past couple decades.
Chelsea Manning was, of course, after this, held incommunicado in military prison.
She was legitimately tortured by the U.S. government.
This is not just the opinion of peace activists, but the opinion of hundreds and hundreds of law professors who have studied this for a living.
Even an Obama administration official was forced to resign because he criticized the deplorable treatment of Chelsea Manning.
She ended up getting 35 years in jail.
She served seven.
And at the end of the Obama administration, President Obama commuted the rest of her sentence.
So even though he didn't serve out the remainder of her sentence, thankfully, she served more jail time than any other whistleblower indicted under the Espionage Act in history.
So it was a terribly tragic story, but one that was at least she got to get out of prison and move on with the rest of her life.
Unfortunately, the Trump administration then turned around and subpoenaed her for a grand jury investigating Julian Assange and the idea that Julian Assange should be also be prosecuted under the Espionage Act, even though he's not a government employee and that he's a publisher.
Obviously, a huge First Amendment danger.
So Chelsea Manning refused to testify and unfortunately, a judge ruled that she had to go back to jail.
So she spent an additional year in prison after many, many protests and legal filings by her legal team and others.
The judge finally released her earlier this year.
And it was as terrible as that case was, it was just such a relief to hear that Chelsea was going to finally be released because she has been through way, way more, just a terrible treatment than anybody else can imagine.
And so, you know, it was a small bit of good news and the torrent of bad news that we have had in 2020.
Yeah, man.
And so, you know, tell me about the legalities of a judge keeping Manning in jail on contempt charges like that when she had said, one, she had no intention of elaborating on her elocution at the court martial whatsoever and couldn't.
Well, that was the real terrible part about this case.
I mean, Chelsea Manning had already testified at her trial.
The government had already talked to her about Julian Assange's ad nauseum.
So really, this looked like an attempt not to actually legitimately investigate anything, but it looked like a further way that they could retaliate against Chelsea Manning because they didn't like her.
And so that was the real travesty of justice in this case, was they didn't really need to call her.
We know they didn't need to call her because they indicted Julian Assange on 17 counts involving the publication of the Manning cables anyways.
So the fact that they indicted him on 17 counts, what did they need Chelsea Manning's grand jury testimony for?
It never made sense from the start.
But unfortunately, the judge for a year didn't listen to any of these arguments.
And finally, after the year realized that this is just crazy, like you had referred to, Chelsea Manning did reportedly attempt to commit suicide while in jail.
And after that, the judge thankfully relented finally and released her.
Mm hmm.
All right.
So now, back in 1917, Woodrow Wilson had signed this terrible law, the Espionage Act, which the way it's written, and we've discussed this before over the years, the way it's written is broad enough that it could very well apply to newspaper publishers, anyone who disseminates classified information, not just a government employee.
So now I guess typically, just what traditionally, they have not used it that way.
And yet, I guess the question then is, is Julian Assange technically guilty of violating the Espionage Act for publishing the State Department cables and the war logs?
Yes, you know, as we've talked about before, you know, if you read the Espionage Act word for word, basically, we're all guilty of it.
If you've ever read a newspaper that contains a story in it, that has classified information in it, which if you've ever read a story about national security or foreign policy, then this is you, because all of those subjects are heavily classified.
And the only way we find out about them is if somebody leaks them to the media.
So the Espionage Act is written so broadly that not only is any journalist who writes these types of stories, guilty of it, but so is anybody who reads it and maybe passes the paper to somebody else to say, hey, check out this story or share the link online.
So the law is so, so broad that the government has never tried to use it in this way.
It would normally get struck down as unconstitutional, and they know it.
But they want to keep it on the books so that they can threaten people with it, which they have done over the years.
And, you know, the Obama administration itself, which is obviously no fan of Julian Assange, you know, even admitted privately.
They're like, you know, they would probably have preferred to prosecute Julian Assange because they hated him.
But what they realized was that they cannot prosecute Julian Assange without creating a precedent which would allow any administration to prosecute any journalist in the United States, including New York Times journalists or Washington Post journalists or the like.
And so they declined to prosecute Julian Assange.
But what the Trump administration did was they came in, they dusted off these old legal memos, and they turned it into an indictment.
You know, they have, the Trump administration has no qualms about this issue because they hate the New York Times and the Washington Post and all other journalists as much as anybody else in the country.
And they surely would like to be able to prosecute them.
And so the easiest way to do this is go after an unpopular figure like Julian Assange, who in the mainstream Democratic and Republican parties is quite unpopular.
And so the Trump administration has assumed that no one will put up a fight if they go after this type of unpopular figure.
And so they have, for the first time in history, indicted somebody, a private person who is not a government employee, who published information, truthful information.
They have indicted him under this act.
And so if this prosecution goes through, it would quite literally outlaw or criminalize national security journalism in the United States.
And to me, this is actually the biggest press freedom issue of not only 2020, but potentially the decade beyond.
And so, you know, the cops are saying that, no, because this is different because of the way that Assange helped encourage Manning to do the leaking that Manning did, something like that.
So one, is there anything to that argument?
And two, do the other media, you know, especially the major media people and, you know, characters at places like The Post and The Times, is that the argument that they seem to be buying too?
Is that they feel like they're going to be safe here because Assange really isn't like them?
No, they actually aren't buying it, which is a pleasant surprise.
As you know, mainstream media has hated Julian Assange since the beginning.
Well, and they've certainly forsaken him when it comes to defending him from this stuff.
Yeah, they haven't wanted to defend him publicly before.
And, you know, that was a lot of us were saying that that was a huge risk, that you should come out forcefully and defend him from the start, because if not, he may end up indicted and it may be your rights at stake.
And that's exactly what happened.
Thankfully, the press seems to have woken up to the danger in this case, or at least when they were announced.
It was, like I said, it was a pleasant surprise to see The New York Times and Washington Post forcefully condemn these charges, you know, to not really equivocate at all.
And for them to admit that, yeah, even the conduct, if you believe every single word of what the Justice Department says in the Assange indictment, it basically describes in 99% of the cases, normal journalistic practices of using encrypted messengers to talk with sources, you know, promising anonymity to people who may be at risk.
You know, talking about information that the source had given them to figure out what it was about and asking for more information if needed.
This is common journalistic practice, as everybody knows.
But because the person's name is Julian Assange, the government is trying to pretend it is some sort of criminal act.
What that's going to end up doing, again, is actually criminalize what everybody else does.
And, you know, just because Julian Assange may be potentially more abrasive or has opinions that people don't like does not mean that this is any less dangerous than it is.
It really is a clear and present danger to the journalism that our society relies on to understand what the government is doing in the national security and foreign policy realms.
And then, so, you know, you're a lawyer.
So is this a clear-cut case where if they did get a conviction against him that you could take it to the Supreme Court and whoop their behinds and keep us free in the name of the First Amendment?
Well, that's really the crux of the issue.
And, you know, me, as a First Amendment lawyer, I think it's an open and shut case.
This case should absolutely be thrown out.
The Espionage Act should be ruled unconstitutional, especially as applied to publishers and journalists or even ordinary citizens who aren't government employees.
But as you and I know, that's not how the law always works.
And that's not how judges always rule.
It is quite possible that because Julian Assange is a hated figure in the establishment, a judge or judges may rule against him, even though it should be clear what the law is.
And so that's what I'm really worried about, is the fact that this is an unpopular defendant, you know, the old adage that bad facts make bad law.
It's a situation where, you know, it's hard to predict what will happen.
And that's why the best option is for the Justice Department to drop this immediately so we don't have to, you know, worry about this for five years.
And so we will see what happens.
Julian Assange is still in the UK, waiting to be extradited.
And it may take many years to extradite him.
So this case might be going on for a very long time.
Yeah.
You know, I guess, I mean, the fact that we don't have an Official Secrets Act is because the Espionage Act really is that broad.
But just the U.S. government has never dared to enforce that part of it because they have feared, I guess, that the Supreme Court would side with the Bill of Rights against them.
And so they never even really pushed that, right?
I mean, like the case against the New York Times during the Pentagon Papers.
It wasn't an Espionage Act case, right?
So the Pentagon Papers case is really interesting and a perfect example here.
You know, it was a bit different in the sense that it did tangentially involve the Espionage Act, but it was really about censorship, not prosecution.
So the Nixon administration was trying to stop the New York Times from publishing the Pentagon Papers.
They weren't, at least at that point, trying to throw them in jail for it.
And, you know, if you go back and read the Supreme Court case, the decision, which was one of the most important First Amendment decisions in the 20th century, you know, they talk a lot about the Espionage Act.
And, you know, some of the judges talk about how it should be flagrantly unconstitutional, and that it is still an open question of if the prosecution, rather than the censorship of a newspaper, came up, what would happen?
And so, you know, you can go back and read the tea leaves from that case to understand the legal arguments.
But because they left that question open, we really don't know one way or the other how the Supreme Court would rule.
But just, it does go to show, though, that, I mean, they've had plenty of opportunities, you know, before Assange to go after different papers for publishing secrets that they wish had not been published, as opposed to very official leaks, as they often do.
Oh, yeah.
But they haven't really dared, because they didn't think that they could get away with it, right?
No, yeah, that's exactly right.
They have actually, on half a dozen occasions, threatened journalists with prosecution under the Espionage Act.
So they did so with Cy Hirsch back in the 1970s.
They did so with James Risen when he was reporting on the NSA warrantless wiretapping program during the Bush years.
They did in the early 80s and late 70s with James Bamford, the celebrated author who wrote the first book on the NSA.
But in each of these cases, the government backed down, because while they wanted to use the law as a threat, they knew, and we've actually seen internal documents that show them discussing this, they knew if they actually went ahead, the law would probably be ruled unconstitutional and they would lose.
So they didn't want to lose that ability to threaten journalists.
And so they have never actually brought a case until now.
Yeah, that's interesting.
They never use it so that they can continue to bluff with it.
Exactly.
Yeah, and continues to work in many cases, it seems like.
Okay, well, great.
Listen, thank you so much for your time, Trevor.
I appreciate it.
Oh, thank you.
Anytime.
All right, you guys, that is Trevor Timm.
He is the executive director of the Freedom of the Press Foundation.
Freedom.press.
What a great URL.
Freedom.press.
And here he is at The Guardian.
The U.S. Senate voted to let Trump spy on your search history, but all is not lost.
