Published in the September 22, 2003 issue of The Nation
On the Road With Ashcroft
by David Cole
Attorney General John Ashcroft marked the two-year anniversary of the terrorist attacks of September 11 by launching a national publicity tour to sell Americans on the USA Patriot Act. That he felt the need to do so was itself revealing. The act is, of course, already law, and when it came to a vote just six weeks after the 9/11 attacks only a single senator (Russell Feingold) and sixty-six members of the House voted against it (even though almost no one had had time to read the 342-page bill before voting). But the act has come under increasing grassroots criticism ever since--more than 150 towns, cities and states have enacted ordinances condemning it--and the Justice Department finds itself on the defensive.
Even more telling, however, is the fact that Ashcroft's national tour will not address the public. His speaking engagements are all before closed audiences, primarily law-enforcement officers. The choice to speak to police and exclude the people captures much of the flavor of the Administration's war on terrorism: It has repeatedly sought to maximize police power while minimizing public oversight. But that tactic may be backfiring, as the American people are starting to fight back [see David Sarasohn, page 23].
The Administration has done everything in its power to duck scrutiny of its actions. In the initial weeks after the attacks it arrested hundreds of people in secret, and it has continued to fight to keep their names secret, despite an Inspector General's report in June revealing that virtually all those arrested have been cleared of any connection to terrorism. It held secret trials for all those held on immigration charges and then staved off Supreme Court review of the practice, telling the Court that the trials had been completed and therefore there was no need to find whether the practice was constitutional (one court of appeals had declared it unconstitutional; another had upheld it).
The Administration has also opposed any judicial review of its detention of the more than 650 foreign nationals held incommunicado in Guantánamo Bay, Cuba, without charges, hearings or trials. And it initially argued that American citizens declared "enemy combatants" were similarly barred from seeking court review, abandoning that view only after the courts rejected it. Now it argues that the only "review" a court can exercise vis-à-vis citizens is a highly deferential perusal of a written declaration filed by a midlevel government functionary. The courts may not hear evidence from the detainee and may not look into the declaration's statements to determine whether they're true. According to the Administration, there is literally no opportunity for a person to present evidence that would prove his innocence.
The Administration has invoked a similarly one-sided process in its attacks on Muslim charities. It has frozen the assets of three of the country's largest, alleging that they have ties to terrorist groups. But when one of them--the Holy Land Foundation--produced evidence showing that the government's claims were false, the government moved to keep the evidence out of court, arguing that the charity had no right to present new evidence and that the court should uphold the government's actions on its evidence alone.
The Foreign Intelligence Surveillance Act (FISA), greatly expanded by the Patriot Act and heavily relied upon by the Justice Department since 9/11, is even more one-sided [see Steven Donziger, page 24]. It allows the government to conduct secret searches of "foreign agents" in criminal investigations without establishing probable cause of criminal activity, which the Fourth Amendment generally requires before a warrant can be issued. The fruits of these searches can be used in criminal trials, but the law does not permit those against whom the evidence is used access to the original search-warrant application, rendering illusory any review of the search's validity.
The Administration has also used less formal measures to limit review of its actions. It has moved three detained "enemy combatants" to South Carolina, attempting to insure that any legal challenges would be heard in the Fourth Circuit Court of Appeals, the nation's most conservative. It has reportedly threatened defendants with onerous sanctions, including implications that they might be declared enemy combatants. These threats have helped prosecutors secure guilty pleas and avoid trials even where defendants have strong constitutional defenses. In Lackawanna, New York, for example, six young men who had attended an Al Qaeda training camp pleaded guilty to violating a law that another court in New York has since declared unconstitutional.
So why, given this history of secrecy and obfuscation, the sudden desire to launch a publicity tour? The Administration apparently fears the tide may be turning, and there are increasing signs its concerns are warranted. A May CBS News poll found that 52 percent of Americans were "very concerned" or "somewhat concerned" about losing their civil liberties at the hands of the Administration. Democratic presidential candidates are competing over who can criticize Ashcroft more harshly. A GOP-introduced bill to repeal the Patriot Act's "sneak and peek" authority, which allows searches without prior notification of the homeowner, passed in the House 309 to 118. A House bill to protect library and bookstore records has more than 130 sponsors, and a Senate version is likely to be introduced shortly. The ACLU and the Center for Constitutional Rights recently filed lawsuits challenging the constitutionality of parts of the act, and the February leak of a Justice Department draft of "Patriot Act II" led to such widespread criticism that Ashcroft has not yet dared introduce the bill.
The Administration has also come under increasing heat for its treatment of the Guantánamo detainees. The American Bar Association has criticized hobbling restrictions on defense lawyers in the upcoming military trials, and the National Association of Criminal Defense Lawyers has gone even further, urging its members to refuse to serve in the trials. In August bar leaders from England, Canada, Scotland, Sweden, Northern Ireland, Australia, France and Wales published a joint letter condemning the planned military trials and demanding that the detainees be tried fairly in civilian courts.
Ashcroft's response? In addition to the speaking tour in which he will preach only to the converted, he has launched a website, www.lifeandliberty.gov, ostensibly designed to correct the "myths" surrounding the Patriot Act and to tout the Justice Department's "success" in the war on terrorism. But Ashcroft's defense fails to address most of what the public is worried about.
Public concern is not limited to the Patriot Act's four corners but arises from a whole range of measures this Administration has advanced, from secret detentions to ethnic profiling to "Total Information Awareness" and the "enemy combatant" designations. The Patriot Act has become shorthand for these excesses. Ashcroft's defense, however, ducks virtually all this criticism, focusing only on a handful of the act's provisions. He doesn't mention, for example, its most troubling sections, those affecting immigrants. They allow the government to exclude foreign nationals for their speech, to deport them on the basis of wholly innocent associations with any group Ashcroft blacklists and to lock them up on his say-so, without showing that they are dangerous or a flight risk (the only two constitutionally recognized justifications for preventive detention). Nor does he bother to defend a provision authorizing freezing of assets based on secret evidence. And his website makes only passing reference to the act's dramatic expansion of FISA power to authorize search warrants in criminal investigations without probable cause of criminal activity.
At the same time, Ashcroft's defense of the few provisions it chooses to address is highly misleading. In response to criticism of Section 215, for example, which allows the government to demand access to library and bookstore records without probable cause, Ashcroft claims that this authority has always been available through grand jury subpoenas. But he does not say that those subpoenas are limited to criminal investigations and are public, while Section 215 requests need have no connection whatsoever to crime and are carried out entirely in secret. He also stresses that records requests must be approved by a court upon a showing that the records are related to an investigation concerning a foreign national and, if the investigation concerns a US citizen or permanent-resident alien, that the investigation is not based solely on First Amendment-protected activities. But he fails to acknowledge that these limitations apply only to the target of the investigation and not to those whose records are sought. Once the government has a legitimate investigation under way, the act allows it to obtain library records on unlimited numbers of citizens, without making any showing that these citizens were involved in illegal activity.
Ashcroft's most questionable claim is that the Patriot Act has led to crucial successes in the war on terrorism. First, his linkage of the act to indictments he has handed down is dubious. He typically points to an indictment, asserts that it depended on cooperation among local, state and federal intelligence and law-enforcement officials, and then vaguely claims that the act broke down the "wall" that previously blocked communication between law enforcement and intelligence agencies. But with the exception of a single provision allowing prosecutors to share grand jury information with intelligence officials, the Patriot Act did not eliminate any legal "wall." As insiders have observed, the "walls" between agencies were cultural and bureaucratic, not legal, and the Administration did not need the Patriot Act to bring them down.
Second, Ashcroft greatly exaggerates his "successes." He claims to have brought 255 criminal charges in terror investigations, but the vast majority of those charges were pretextual criminal charges (like credit card fraud or lying to an FBI agent) used to justify holding people who turned out to have no connection with terrorism. Similarly, he claims to have deported 515 people in the investigation but fails to mention Justice Department policy that authorized deportation only after the FBI cleared immigrants of involvement in terrorism. To call these successes is to treat bullets that miss the target completely as bull's-eyes.
Third, and most important, Ashcroft fails to account for losses in liberty and privacy. If we were to repeal the Fourth Amendment, every police department in the country would be able to point to arrests that were made possible as a result. But to judge whether we lived in a better world for it, we'd want to know how many innocent people had been searched and how much the loss of privacy had undermined our quality of life. Ashcroft tells us only one side of the story. But there are by now thousands, mostly Arabs and Muslims, who could tell us the other side.
In the end, Ashcroft's self-promotion recalls Benjamin Constant's account of Jacobin excesses during the French Revolution: "They dreamt of nothing else but measures of public safety, great measures, masterstrokes of state; they thought themselves extraordinary geniuses because justice seemed to them a narrow preoccupation. With each political crime they committed, you could hear them proclaiming: 'once again we have saved the country!' Certainly we should have been adequately convinced by this, that a country saved every day in this manner must be a country that will soon be ruined."
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