The Burden of Bad Memes

PATRIOTs and Chicken Littles

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Of course, that's roughly what one should expect from a law distinguished by the amount of secrecy it imposes. Lowry's demand amounts to: "Show me just one classified, top-secret abuse of power!" As such, the request is disingenuous at the very least. The American Civil Liberties Union (ACLU) filed a Freedom of Information Act request for information on the uses of PATRIOT powers last August, and was rebuffed. "It is literally impossible," observes ACLU staff attorney Jameel Jaffer, "to know in what contexts the government has used these powers unless they tell us of their own accord, which they have so far refused to do."

Even if we assume officials have thus far been positively angelic in their use of PATRIOT powers, there is something disconcerting about this line of attack. The argument that there's nothing to fear because we have not, in the two years since PATRIOT's hasty passage, seen egregious civil liberties violations is a warped bit of inductive logic on par with concluding that Russian roulette is safe because the chamber's clicked twice. It used to be a distinctive conservative virtue to focus on the institutional tendencies created by a law, rather than taking comfort because it's good ol' John Ashcroft rather than Janet Reno at the helm.

The broadest thing wrong with this standard, though, is where it places the burden of proof. Civil libertarians want the answer to questions that as yet have barely been asked and never been answered: How will these new powers make us safer? Would they have prevented the September 11 attacks? Do they add anything to the existing powers the government failed to deploy effectively before then? Are they broader than necessary to aid in the fight against terror?

The PATRIOT apologists will have none of this. The default, as they see it, is to grant new powers unless there's proof that they'll lead overnight to tyranny. The presumption of liberty is replaced by a presumption of power. The sad reality, though, is that even a police state can't guarantee total safety: Whatever we do, the coming years will see more terror, more attacks. If we conclude, each time, that the culprit must be an excess of domestic freedom, a lack of government power, we are traveling a road with no end.

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