When Patriots Dissent

Surprise: Standing up to the PATRIOT Act can be good politics.

David Weigel from the November 2005 issue

If you asked the Republicans in 2004, Sen. Russ Feingold was a slow-moving target painting himself ever-brighter shades of red. The Wisconsin Democrat, who had barely won his last election with 51 percent of the vote, was running for re-election in a year the GOP would be marshalling all its forces to win the state for George W. Bush. Republicans had dislodged a number of Democrats in other states by casting them as weak-kneed in the war on terrorism. Feingold was the easiest mark yet: the only member of the United States Senate who had voted against the PATRIOT Act.

A year before the election, Republican National Committee Chairman Ed Gillespie (no relation to Reason Editor-in-Chief Nick Gillespie) crowed that the party would make use of that vote in its campaign to take Wisconsin for the first time since 1984. Republican Senate candidate Tim Michels, a former airborne ranger and well-heeled construction mogul, grabbed the PATRIOT Act issue with both hands. One of his first television ads slammed Feingold for putting "his liberal ideology before our safety." Another spot, aired before the Republican primary, used footage of the 9/11 attacks. As smoke billowed out of the World Trade Center, a sad-voiced narrator told viewers that "our leaders passed new laws to keep us safe. But Russ Feingold voted against those laws."

Michels destroyed three opponents in the September primary, and Gillespie came to Milwaukee to boost his campaign, telling the media that Feingold was "eminently beatable." Michels then hammered the PATRIOT theme in two new ads. One showed video of the smoking Pentagon, with a voiceover declaring, "Ninety-eight senators vote to pass the PATRIOT Act. One senator votes no." Another ad pumped up the drama, showing a menacing Middle Eastern actor stalking over some Wisconsin hills before opening up a spy kit and taking pictures of a nuclear power plant. Michels himself then appeared on screen. "Unlike Russ Feingold," he said, "I will support renewing the PATRIOT Act, because we need to be able to track and stop terrorists before they strike again."

According to Michels, these commercials consumed around a fifth of his ad budget. They fell flat. Michels failed to make up a gap in the polls, and in mid-October the Republican National Committee cancelled a major purchase of TV commercials. On Election Day, as John Kerry was carrying Wisconsin by barely 10,000 votes and Democrats were losing four Senate seats nationwide, Feingold won his biggest victory ever, trouncing Michels by 11 percentage points and 330,000 ballots. Not only had his vote against the PATRIOT Act not damaged Feingold; by all appearances it had made him stronger.

"We knew this was an issue that Republicans would use," says George Aldrich, Feingold's campaign manager, who started laying the campaign's groundwork in early 2003. "Very early on we saw this was an issue that Russ Feingold would be seen favorably on. Russ has listening tours across the state. He holds these meetings in every county, and what he was hearing was that people agreed with his vote. The more people heard about the PATRIOT Act, the more skeptical they were."

Today, back at his construction company, Michels says he "ran into no voters that were not concerned about terrorism," and that "my point was that the PATRIOT Act is a tool that history has proven has not been abused." But by the end of 2004 this was becoming a minority view. At a time when terrorism fears run high and Republicans have won elections on national security bluster, the PATRIOT Act is less and less popular among voters and politicians, becoming the most galvanizing legislation for civil liberties activists since the Sedition Act of 1918. The movement against it has grown from a smattering of city council resolutions to a powerful political coalition.

The law's defenders are active as well, and so far they have successfully resisted the most serious efforts to roll back the government's PATRIOT Act powers. But stances like Feingold's have proven surprisingly popular with the public. Politicians who have attacked the act are getting re-elected or seeking higher offices; Republicans who assumed voters would be easily swayed by rhetoric like Michels' have learned a hard lesson. In part, that's because the issue has transcended typical right-left politics. Some of the act's most influential opponents are very conservative people in very red states.

How a Bad Bill Becomes Law

Six weeks after 9/11, following very little debate, the USA PATRIOT Act was approved by a vote of 357 to 66 in the House of Representatives and 98 to Feingold's 1 in the Senate. At the time, Congress was willing to give law enforcement agencies almost any power, and voters were willing to let them. A Los Angeles Times poll taken September 13 and 14, 2001, found 61 percent of Americans believed they'd need to "give up some civil liberties" in order to confront terrorism. Democratic and Republican leaders pushed their parties to a quick "yea" vote over the qualms of a few liberals and libertarians. According to Idaho state Rep. Tom Trail (R-Moscow), Republican Idaho congressman Butch Otter wanted to argue against the act, but party whip Tom DeLay "would not give him two minutes, and said if he spoke against it he would never win another office." Otter, Ohio Rep. Bob Ney, and Texas Rep. Ron Paul were the only Republicans to vote against the act, even though it was immediately clear that many members of Congress hadn't even read the bill, a casserole of post-9/11 demands from the administration and pre-9/11 wish list items from the FBI that had been turned down in previous bills.

There were several apparently unconstitutional measures in the legislation's 400-odd pages. Section 412 allowed non-U.S. citizens to be detained for a week without charge and for an indefinite period between charging and trial. Section 215 sidestepped the Fourth Amendment by allowing law enforcement to seize "any tangible things" deemed to be part of an investigation "to protect against international terrorism or clandestine intelligence activities." Section 505 authorized administrative subpoenas of personal records without probable cause or judicial oversight. Sections 411 and 802, if read broadly, seemed to imply that political dissent could be considered "domestic terrorism."

With terrorism still a kitchen table issue so soon after 9/11, the act was widely discussed and downloaded, and rumors quickly spread about the scope of this thing the president had just signed. By January 2002, a Gallup poll found only 47 percent of people agreeing that "the government should take all steps necessary to prevent additional acts of terrorism in the U.S. even if it means your basic civil liberties would be violated." That fell to 40 percent in June and 33 percent in September; by 2003 it had settled to around 30 percent, where it has remained.

The Justice Department recognized it had a public relations problem. On August 6, 2003, it announced that Attorney General John Ashcroft would conduct a national speaking tour to promote the PATRIOT Act and drum up support for another expansion of government power, the VICTORY Act. It was a complete disaster. Invitation-only Ashcroft appearances were picketed by hundreds or, in New York, thousands of people. The Justice Department's pro-PATRIOT Web site, LifeandLiberty.gov, didn't even list the stops on the tour. Rep. Otter told the St. Louis Post-Dispatch: "It was not a big issue to [constituents] until Mr. Ashcroft started his campaign. Before, I felt like a big old tree falling in the wilderness. Suddenly, it brought a lot of attention to what the PATRIOT Act was, and now I'm finding overwhelming support [against it]."

Prairie Fire

A few weeks after the PATRIOT Act passed, a small group of liberal activists in Northampton, Massachusetts, founded the Bill of Rights Defense Committee. It was the sort of group you would expect to find in the hometown of Smith College: Its early membership included Nancy Talanian, a longtime anti-apartheid activist, and Bill Newman, an American Civil Liberties Union activist. In addition to personal and foundation donations, the group earned money by selling Bill of Rights get-well cards with a cartoon of the Constitution laid up and sucking a thermometer. The group's mission was to launch a citizens' movement against the PATRIOT Act.

"The concept," says Talanian, "was if you have a few people and have them calling their congressmen, it won't have the same effect as communities educating themselves and appealing to local legislatures." Groups in Northampton and other small Massachusetts cities--Leverett, Cambridge, Amherst--pressed their city councils to pass resolutions decrying the PATRIOT Act. At the same time, the City Council of Ann Arbor, home of the University of Michigan, was circulating its own anti-PATRIOT resolution. On January 7, 2002, it became the first municipal government to pass a resolution against the law.