Commentary

Cato vs. DOJ, Round 2

Barbara Comstock, director of public affairs at the Department of Justice, says that her boss, Attorney General John Ashcroft, “welcomes discussion about the Patriot Act.” That is certainly a step forward from Mr. Ashcroft’s over-the-top denunciation of his critics for “aiding terrorists” with their criticisms of certain antiterrorism measures. And, to Ms. Comstock’s credit, she has started such a discussion by responding to some questions that I recently posed in a column for National Review Online (NRO). Unfortunately, however, Ms. Comstock’s column was filled with non-responsive responses to those questions. A genuine discussion would have to go further, not because we are likely to come to an agreement in the end, but so that readers will have a better understanding of the on-going controversy about civil liberties and certain Justice Department policies.

I will refrain from labeling Ms. Comstock’s statements with big, bold-faced, descriptive words (e.g., “RHETORIC,” “REALITY”) and let readers reach their own conclusions with respect to who is being candid, factual, and persuasive. Let’s go back to my original questions and then examine Ms. Comstock’s answers, in turn.

  1. Mr. Ashcroft, you say that Congress passed the Patriot Act by an “overwhelming margin,” but do you think the vote would have been different if legislators had known about your plans to hold terrorism suspects indefinitely and to prosecute others in military tribunals, instead of the civilian courts? You may recall that you announced those initiatives once the debate over the Patriot proposal was over and the law was officially enacted.

By way of background, the Patriot Act was signed into law on October 26, 2001. In the months that followed, the Bush administration announced several other controversial initiatives. On November 9, 2001, Mr. Ashcroft announced that attorney-client telephone conversations in prison facilities could be monitored by the FBI without prior judicial authorization. On November 13, 2001, Bush issued a “military order” which asserts the legal claim that he can order the arrest of any non-citizen and hold that person indefinitely in a military brig without judicial review. The order was not limited to battlefield captures; lawful immigrants residing in American cities fall within the scope of the order as well. In May 2002, Mr. Ashcroft announced that he was relaxing FBI guidelines that governed surveillance of people in America (citizen and non-citizen alike). Putting aside the merits of those initiatives, I think it is safe to say that if Mr. Ashcroft had disclosed those plans to Congress before the Patriot Act came up for a vote, it not only would not have been approved overwhelmingly, it might well have stalled.

Now it is certainly true that within the Beltway this sort of bait-and-switch maneuvering by the executive branch is considered to be “savvy politicking” because the Department of Justice “got most of what it wanted” by pulling the wool over the eyes of Congress. Still, Americans who are concerned about the aggrandizement of federal power need to understand what Messrs. Bush and Ashcroft have been up to over the past two years.

Although I did not raise questions about Camp X-ray in Cuba or the round-up of illegal immigrants, Ms. Comstock defends those measures at length. She also notes that a Gallup Poll shows support for the Patriot Act, and that Bush, not Ashcroft, announced the military order, but she never answers the question about whether the vote in the Congress would have been different if the administration had disclosed the other initiatives in advance of the vote. I doubt the non-answer was inadvertent.

  1. Mr. Ashcroft, you say that 132 individuals have been convicted or pled guilty in your terrorism investigations, but there have been reports that federal prosecutors are making veiled threats — that if suspects fight the charges by pursuing a jury trial before an impartial judge, well, then, they’ll be turned over to the U.S. military, where they will be held in solitary confinement indefinitely. Have you investigated these newspaper reports? Is such conduct by a federal prosecutor constitutional, legal, and ethical?

Ms. Comstock could have put this controversy to rest once and for all by simply saying that these newspaper reports are inaccurate, that such an action by a federal prosecutor is illegal and/or prohibited by the attorney general. That was not Ms. Comstock’s answer. After eight years of Bill Clinton, many of us are now on the alert for non-denial denials — and that is what Ms. Comstock’s reply seems to be. Although Ms. Comstock tells us that a Washington Post story contained inaccuracies and that the “Lackawanna Six” were not “threatened,” I have seen and heard enough government-speak to know that we may later discover that the Department of Justice took issue with the term “threat” in this specific context and that “informing” a suspect that he will be designated an “enemy combatant” if he does not plead guilty isn’t a “threat,” it is simply telling him of the facts of life.

Ms. Comstock’s reply focused our attention on a single newspaper story about a single case. But there have been similar stories in other newspapers about other cases. For example, on June 20, 2003, Eric Lichtblau of the New York Times reported that “Prosecutors discussed the idea of declaring [Iyman] Faris an enemy combatant … and that may have influenced his decision to admit guilt to avoid the prospect of indefinite detention, according to a lawyer who demanded anonymity.” Now I will be the first one to admit that I do not know if what this anonymous attorney says is true or not — indeed, that’s why I posed the question in the first place. Given the flurry of reports and having now read Ms. Comstock’s non-denial denial, I strongly suspect that this tactic is being used and that we’ll soon see a loud and unapologetic defense of this “hammer.” The present shyness probably stems from the fact that prosecutors know that federal judges might well consider the tactic to be illegal. Right now, judges are oblivious to what may be going on because the suspect, his lawyer, and the federal prosecutor do not have any incentive to fully inform the judge when a guilty plea is formally accepted by the court. If the person who is under indictment complains openly, he might be whisked away to a military brig the next evening.

  1. Mr. Ashcroft, in congressional testimony, you have claimed that federal law-enforcement agencies have been making steady “progress” in the war against terrorism. In support of that claim, you note that more than 18,000 subpoenas and search warrants have been executed. In other words, the federal government has threatened more than 18,000 people (citizen and noncitizen alike) with fines and imprisonment if they do not comply with government demands. My question is this: When you say that American soldiers have laid down their lives for the “cause of liberty,” what do you mean by “liberty”? And do you expect your department will be making even more “progress” by executing more subpoenas and search warrants this year?

The first thing to note about Ms. Comstock’s reply is that it does not tell us what the attorney general means when he uses the term “liberty,” and, further, that it does not tell us if the Department of Justice expects that it will be executing more subpoenas and search warrants this year than last. Once again tip-toeing around the questions, Ms. Comstock reminds us that subpoenas and search warrants are standard investigative techniques and are very useful in the war on terrorism. However, it has become apparent that Mr. Ashcroft has been captured by a bureaucracy that has totally lost sight of the fact that those legal instruments impinge upon the liberty of Americans. Subpoenas are now served so frequently and casually that it is almost as if they were flyers on the windshields of automobiles — except that if you toss these papers away, you go to jail.

Yes, the Department of Justice was investigating a case of mass murder and is still engaged in an effort to stop similar atrocities. But when Mr. Ashcroft tells audiences that 18,000 subpoenas and warrants have been executed since the 9-11 attacks, he says it in such a way as to suggest that if there were only more agents, the FBI might have been able to surpass the 20,000 mark! The point here is that if “liberty” were not just an empty term to Mr. Ashcroft, he would lament the necessity of so many subpoenas and warrants, and not boast about it as if it were some sort of an achievement.

  1. Mr. Ashcroft, you have said that if Congress were to “abandon the tools” of the Patriot Act, it would “senselessly imperil American lives and American liberty.” As you know, the Patriot Act makes it a crime for anyone who has been served with a subpoena to speak with anyone about the matter. Writing to a local newspaper or placing a call to one’s representative in Congress about such a subpoena would constitute a criminal offense. Are you saying that if Congress were to revisit and abandon that “tool” and legalize speech about FBI subpoenas, that liberty would be imperiled?

Ms. Comstock’s reply to this question is so rife with obfuscation that she even confused herself. For example, one paragraph begins with the admission that “Section 215 of the Patriot Act does make it a `crime for people who have been served with a subpoena to speak to anyone about the matter.’” By the end of the same paragraph, Ms. Comstock withdraws the admission: “the Patriot Act does not make such [gag order] violations criminal offenses.” Let me cut through the legalisms. Call it what you will (court order or 215 subpoena; confidentiality provision or gag order), if a person speaks out about a Patriot Act 215 order, such as by contacting his senator, Leavenworth awaits.

Ms. Comstock makes several other misleading statements in her reply to this question. First, the impression is left that the FISA Court issues 215 orders. True, but FBI agents can also get a 215 order from any federal magistrate. Second, the impression is left that a judicial officer will scrutinize and “check” executive branch applications for 215 orders. In truth, the Patriot Act says that once an application is submitted, the order “shall” issue. That means the judge is not authorized to scrutinize the application. And that means the judicial “check” is not there. Third, the impression is left that 215 orders are limited to “business records.” In truth, 215 orders can be used to obtain any tangible item, including personal belongings, directly from a person’s home.

Ms. Comstock’s main argument seems to be that since gag orders have been used sparingly in the past, it is necessary and appropriate that they now be issued on the demand of any FBI field agent, without real judicial scrutiny. Such a view can certainly be held in good faith, but make no mistake, Section 215 treats the right to free speech very casually and it will eventually be invalidated by the courts as unconstitutional.

Let me conclude with a final point. The Patriot Act is a textbook example of how our laws should not be made. Gigantic, “omnibus” bills almost always contain provisions that would never pass the legislature on their own merits. When the Patriot Act was initially proposed, Rep. Dick Armey (R-Tex.) tried to break it down into several parts for deliberation and debate. Armey had the right idea because some provisions of the Patriot Act make sense, while others do not. Mr. Ashcroft and Ms. Comstock are trying to convince Americans that they must either accept or reject the entire Patriot Act “package.” That is a false choice, plain and simple. Conservatives should welcome a reexamination of the Patriot Act by the Congress on a section-by-section basis.

Timothy Lynch is director of the Project on Criminal Justice at the Cato Institute and the author of the Cato study “Breaking the Vicious Cycle: Preserving Our Liberties While Fighting Terrorism.”