Sunday, August 31, 2003
Copyright © Las Vegas Review-Journal

JOHN L. SMITH: The attorney general and the Patriot Act

Fundamental threats to our basic liberties have been greeted with a rousing ho-hum

Attorney General John Ashcroft, third from left, with his entourage in Las Vegas on Tuesday Photo by Amy Beth Bennett. 'Americans expect that law enforcement tools used for decades to fight organized crime and drugs be available to protect lives and liberties from terror,' Attorney General Ashcroft said Tuesday in Las Vegas. Mr. Ashcroft, pictured above, testifying on Capitol Hill in 2001. AP Photo

The sky boiled over Tuesday morning and began to sprinkle on the few dozen Southern Nevadans who'd assembled outside the Lloyd D. George U.S. Courthouse on short notice to protest the appearance of Attorney General John Ashcroft, who was stumping on behalf of the USA Patriot Act.

While Ashcroft prepared to deliver his message that the Patriot Act was helping win the war on terrorism, representatives of perhaps 20 local groups tried to get out their message of warning. It was a Globetrotters vs. Washington Generals moment with Ashcroft inside, before a packed house of federal officials and local law enforcement officers, speaking in broad strokes about preserving life and liberty

The protestors, such as they were, ranged from those who spoke with intimate knowledge of the Patriot Act and those who preferred to drape Ashcroft and President George W. Bush in Hitlerian hyperbole. The protesters had difficulty being heard over the din of traffic along Las Vegas Boulevard and the rattle overhead of an armed government helicopter.

Seldom are Nevadans likely to find members of the right-wing Independent American Party metaphorically holding hands with the local leaders of the American Civil Liberties Union. But the IAP's Christopher Hansen and the ACLU's Gary Peck almost sounded as if they were reading from similar play books as they excoriated the Patriot Act for anyone who would listen.

Question is: Are common citizens listening?

If they're listening to Ashcroft, they're hearing far more patriotic platitudes than basic facts about the Patriot Act. Even during Tuesday's speech before a choir of federal officials, Ashcroft sounded more like a politician spinning on behalf of the Bush administration than an experienced lawyer building a case of need for dramatic changes in investigative procedures.

After a rousing and respectful introduction by U.S. attorney Daniel Bogden, Ashcroft preached to the converted and along the way quoted Thomas Jefferson and Abraham Lincoln.

"You are the doers," he announced. "You are the achievers. You are the soldiers ... on the ground and in the trenches ... who put your lives on the line to defend American life and liberty. Your spirit is the heroic spirit we saw on September 11th, when New York's finest and New York's bravest ran up the stairs of the World Trade Center while others were running down the stairs.

"It is the work of unknown heroes, heroes whose stories may never be known, but whose spirit is the measure of hope we take from that day in September.

"The cause to which these men and women gave the last measure of devotion, the protection of life and liberty of fellow Americans, it has become the cause of our time. It has transformed the mission of the Justice Department."

That mission, critics say, is getting a big boost from several provisions of the Patriot Act.

But at what cost?

On Tuesday, Ashcroft clearly played fast and loose with the facts when he made it appear the FBI and other federal law enforcement agencies could investigate the Mafia and other complex criminal organizations, but could not investigate suspected terrorists without the Patriot Act.

"Americans expect that law enforcement tools used for decades to fight organized crime and drugs be available to protect lives and liberties from terror," he said.

But those tools are already available through the Foreign Intelligence Surveillance Act (FISA), says American Civil Liberties Union national legal department staff attorney Jameel Jaffer.

"The first thing that I should say is that we're not opposed to the Patriot Act as a whole," Jaffer says in a telephone interview from his New York office. "The Patriot Act has dozens of provisions which may well be good ideas. The provisions that we're focusing on are the provisions that radically alter the laws that existed before the Patriot Act."

The expansion of components already contained in FISA are not essential to fight the war on terror, he says, but do threaten the rights of ordinary citizens in several areas:

• Section 213 of the Patriot Act, the ACLU argues, potentially allows the FBI to conduct so-called "sneak and peek" searches without a warrant not just in cases of terrorism, but in "any criminal investigation."

• Section 215 related to records searches is expanded to include the collection of a broad range of materials -- Justice Department arguments to the contrary -- without establishing probable cause. Under the old law, standard business records could be collected without a court order, but Ashcroft himself has admitted that the new provision would include everything from library cards to medical records and even genetic information.

• Section 218 in part grants the FBI the power to conduct searches in some criminal investigations without applying Fourth Amendment safeguards.

• Section 802, critics contend, defines domestic terrorism so loosely it could include Greenpeace and Operation Rescue.

"We have used these tools to prevent terrorists from unleashing more death and destruction on our soil," Ashcroft said. "We have used these tools to save innocent American lives. We have used these tools to provide the security that ensures liberty.

"The Patriot Act does three things: First, it closes gaping holes that existed in our ability to investigate terrorists. Second, Patriot Act updates our anti-terrorism laws to meet the challenges of new technology, and new threats. Third, the Patriot Act has allowed us to build an extensive team that shares information in an integrated, coordinated fashion to fight terrorism together."

Counters Jaffer, "If he's saying that it's limited to terrorists, it's not true.

"One thing I would say when these laws are on the books, they get used. We've seen it a million times in the past. The government says a law is not going to be used to its full potential, but it does get used. We're going to see it with the Patriot Act unless we narrow these provisions."

But compromise will take a willingness to reach a common understanding, and it's clear neither Ashcroft nor the ACLU speaks the same language. While Ashcroft suggested that anyone interested in learning more about the Patriot Act check out the official Web site, www.lifeandliberty.gov, Jaffer argues that the Web site is not only riddled with misleading statements, but it also attempts to demonize critics such as the ACLU.

"Very early after 9/11, the attorney general accused critics of only aiding the terrorists," he says. "It's unfortunate that the attorney general is using this campaign the way he is, and that they're using the Web site the way they are. ... Unfortunately, I think the Web site is more propaganda than real information about the act."

On Tuesday, Ashcroft drove home his message of overriding necessity by reminding all present that steady progress in the war on terrorism is being made thanks in part to the Patriot Act. As proof he cited the dismantling of four alleged terrorist cells, 255 criminal charges, 132 convictions, 515 deportations, and 3,000 arrests of suspected terrorists around the world.

"Many more have met a different fate," Ashcroft said.

What he didn't make clear is whether it was the unprecedented focus of law enforcement, not the controversial components of the Patriot Act, that should be credited with those successes.

History dictates that the Patriot Act gives federal law enforcement tools it might not need, but will undoubtedly use.

The troubling question remains, is America listening to the collective voices of dissent on a subject so essential to our freedom?

John L. Smith is a Review-Journal columnist.