Patriotic Questions

August 21, 2003 • Commentary
This article originally appeared in National Review Online on August 21, 2003.

The Patriot Act has been taking a pounding since it was enacted in the aftermath of the September 11th terrorist attacks. It’s a rare thing, after all, to have 120 American cities and towns declaring themselves to be “civil liberties safe zones” and for some localities to declare that their police departments will not assist the feds when it comes to enforcing the provisions of the Patriot Act. Attorney General John Ashcroft has apparently concluded that he had better shore up public support for the controversial law before the political situation gets even worse. This week, Ashcroft launched a speaking tour to tout the Patriot Act as an “essential” weapon in America’s war against terrorists.

Many conservatives have flocked to Ashcroft’s defense because the ACLU and liberal Democrats have been his most‐​outspoken critics. It is also true that Ashcroft has been on the receiving end of some ugly personal attacks, particularly with respect to his religious convictions. Some luminaries on the Left may believe that the war in Iraq was a crass “blood for oil” gambit and that Ashcroft is using the war on terror as a pretext to extinguish the rights of minorities and political dissidents, but those outlandish claims simply cannot explain the growing opposition to the Patriot Act. Ashcroft recognizes this too. In his kickoff speech at the American Enterprise Institute, Ashcroft made it clear that he thinks his critics are spreading much more specific “myths” and disinformation about what the Patriot Act does and does not do. To set the record straight, the Department of Justice has established a new website in support of the Patriot Act.

Unfortunately, the debate over civil liberties is not likely to be advanced by Ashcroft’s new speaking tour. The attorney general’s much anticipated defense of the Patriot Act mostly stressed the least controversial aspects of the law — e.g. the law has simply “updated” the federal code to deal with digital and wireless technology. The thrust of the speech was that if policymakers take his critics seriously and revise or repeal portions of the Patriot Act, America will be insecure. The attorney general did not take a single question from the audience.

Ashcroft is right that there has been too much politics and propaganda in the debate over security and civil liberties, but he is blowing his opportunity to elevate the discourse by skirting the tough issues. This is unfortunate because the threat posed by terrorism is not a short‐​term crisis, but a long‐​term security dilemma. The nagging questions about our recent lurch toward more surveillance and less privacy are not going to go away anytime soon. Here are a few questions that Ashcroft ought to be addressing on this speaking tour:

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 necessity of the Patriot proposal was over and the law was officially enacted.

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?

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?

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 to anyone about the matter. Writing to the 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 the Congress were to revisit and abandon that “tool” and legalize speech about FBI subpoenas, that liberty would be imperiled?

Reasonable people can and will disagree about the proper scope of the government’s surveillance powers in the post‐​9/​11 environment, but the stakes need to be clearly understood — and that cannot happen when government officials employ doublespeak, such as by using the terms “liberty” and “coercion” as if they were interchangeable.

About the Author
Tim Lynch
Adjunct Scholar and Former Director, Project on Criminal Justice