Two years after Congress overwhelmingly passed the USA PATRIOT Act, political debate about civil liberties seems focused on the wrong issues, to the detriment of liberty and security alike.
Many civil libertarians—both liberal and conservative—and Democratic candidates are sounding false alarms about the PATRIOT Act's imperfect but largely reasonable and long-overdue enhancements of the government's investigative powers. Playing to the shallow enthusiasms of the news media and Congress, these critics scare Americans with largely chimerical bogeymen—FBI agents burrowing through their book-borrowing records, John Ashcroft secretly ransacking their bedroom drawers, Adm. John Poindexter surfing through their medical, psychiatric, and credit card files. These "misinformed and overblown" attacks (in the apt words of Sen. Joseph Biden, D-Del.) portray as police-statism just about every type of surveillance that might increase our chances of catching terrorists before they strike.
We should focus instead on the Bush administration's truly alarming and utterly unnecessary abuses of its detention powers. The unjustifiably long incarceration and the shabby, sometimes brutal treatment in the months after 9/11 of hundreds of Middle Eastern men—almost all of whom proved innocent of anything but minor immigration infractions—have been widely condemned, thanks largely to a highly critical report by the Justice Department's own inspector general. But the administration has gotten far less heat than it deserves for its lawless, virtually unprecedented denial of any semblance of due process to the hundreds of other men whom the military has been holding incommunicado for over a year as suspected "enemy combatants," with no access to lawyers or family members, no meaningful judicial review, and no public accountability.
These include three men (two of them U.S. citizens) who were seized and thrown into military brigs in the U.S. Their numbers also include some 660 non-Americans who were captured abroad—by Afghan bounty hunters and similarly unreliable allies, in many cases—and sent to the Guantanamo naval base, which has become a prison colony operating completely outside the law. The implicit threat of receiving similar treatment unless they plead guilty also taints the fairness of the criminal proceedings against other, presumptively innocent people accused of terrorism-related crimes.
Under Bush's sweeping claim of presidential power, anyone, anywhere in the world who is declared by the military to be an enemy combatant can be locked up indefinitely, with no charges, no trial, not even the kind of military hearing mandated by the 1949 Geneva Conventions—and not even if he has previously been being acquitted of any crimes. And under Bush's claim of unreviewable authority over those at Guantanamo, no court in the world would have any power to prevent even torture or summary execution.
For the first time in modern history, "the U.S. government can no longer promise that individuals under its authority will be subject to a system bound by the rule of law," in the words of the Lawyers Committee for Human Rights. The Supreme Court will have an opportunity in the coming months to review Bush's claims of virtually absolute power over suspected enemy combatants. It should reject them. But Congress should reject them first, rather than punting the most serious civil-liberties problems to the not-always-steadfast judiciary.
The American Civil Liberties Union, the lawyers committee, and other civil-liberties groups have played invaluable roles in exposing and attacking the administration's unwarranted and abusive detentions and denials of due process. But their far less persuasive attacks on the PATRIOT Act's far less alarming surveillance powers get far more play in the media, in Congress, and on the campaign trail.
Why this imbalance? Ashcroft's crude rhetoric, his undue secretiveness, and his grudging responses to inquiries about how the government is using the PATRIOT Act's powers are part of the explanation. But the main answer is that the people incarcerated without due process have so far been foreigners, along with just two U.S. citizens (Jose Padilla and Yaser Esam Hamdi) with foreign-sounding names. And foreigners can't vote.
But it is "morally and constitutionally wrong" to deny fundamental liberties to foreigners, as David Cole writes in Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, and "what we do to foreign nationals today often paves the way for what will be done to American citizens tomorrow."
While Congress has largely ignored the administration's abuses of foreigners, the overblown campaign against the PATRIOT Act has already provoked an idiotic vote by the House of Representatives to suspend the act's Section 213, which spells out the judicially recognized power to obtain so-called "sneak-and-peek" search warrants. And by painting the act's now-notorious Section 215 as some sort of fascist plot to spy on our reading habits and to uncover other information held by libraries, banks, businesses, and other institutions in the guise of investigating terrorism, critics have scared countless librarians into destroying borrowers' records.
What the false alarmists neglect to add is that Section 215 is available only in foreign-intelligence investigations and adds relatively little to federal prosecutors' long-standing power to issue grand jury subpoenas for any records that might be relevant to any kind of criminal investigation. (This helps explain why, as of September 18, Section 215 had never been used, according to the Justice Department.) Section 215 warrants must be approved in advance by the Foreign Intelligence Surveillance Court as relevant to a foreign-intelligence investigation; grand jury subpoenas require no advance judicial approval and are subject to little judicial supervision.
The new power that Section 215 does add seems well calibrated to the need to find international terrorists before it's too late. Its main advantages are its availability against foreign agents who are suspected of plotting terrorist acts but who have not yet been implicated in any crime, and its automatic imposition of gag orders on record-holders served with such warrants. A case can be made for amending Section 215 to give libraries and other record-holders a chance to object in court. But this is a molehill, not a mountain. Upsetting as Section 215 is to some librarians, it seems a good way to gather information about the next Mohamed Atta without tipping him off that the feds are watching him.
The "sneak-and-peek" fuss is even sillier. Section 213—which the House voted by 309-118 to suspend, in July—merely codifies federal case law recognizing the government's self-evident need in some cases to delay giving suspected terrorists or other criminals the usual notice that their property has been searched.
Then there is the demonization of Ashcroft, who deserves plenty of criticism but gets a lot more than he deserves. For all the abuses of its detention powers, Ashcroft's Justice Department has done "a pretty good job in terms of implementing" the PATRIOT Act, as Biden said last month.
Might there be abuses of the PATRIOT Act? Of course there might. The greatest risk is that prosecutors and FBI agents will seek to misuse in ordinary criminal cases the enhanced search and wiretap powers that Section 218 added to the Foreign Intelligence Surveillance Act. This calls for close congressional oversight. And some other provisions—such as Section 802's definition of "terrorism"—may be unnecessarily broad and in need of amendment.
All powers can be abused. There is a risk of abuse every time the FBI issues a new agent a gun. But there is also the risk of more 9/11s (perhaps nuclear 9/11s) if we deny the government investigative powers potent enough to catch terrorists trained to live in shadows and to use America's resources—including library computers linked to the Internet as well as jetliners—to murder America's people.
The big question about the PATRIOT Act is whether its 156 sections, many of which will expire in 2005 unless Congress votes to renew them, seem sufficiently likely to help prevent terrorism to justify the risk of abuse. The answer appears to be yes, at least so far. Sen. Dianne Feinstein, D-Calif., who has received more than 20,000 complaints about the act, and whose seat on the Select Committee on Intelligence gives her access to detailed reports on how the act has been used, said last month: "I have never had a single abuse of the PATRIOT Act reported to me."
Let's remember that the PATRIOT Act's most ardent critics were also sure that the government had too much power to investigate terrorists before 9/11. And that the same President Bush who is "certain" that all of the more than 660 men he has incarcerated as enemy combatants are "bad people" claimed with similar certitude on May 29 that "we've found the weapons of mass destruction."