This didn't have much national impact. Ann Arbor, after all, was a liberal town whose other resolutions included a measure demanding "action regarding genetic engineering in food and agriculture." But on March 18, the Denver City Council took up a PATRIOT Act resolution, and after two hours of debate, it passed by a vote of 7 to 4. The city's Democratic mayor, Wellington Webb, signed onto a statement demanding that the war on terror "not be waged at the expense of essential civil rights and liberties of the people of Denver and the United States."
Local media were aghast. The Denver Post's editorial board called the vote "pernicious," and Councilman Charlie Brown, who voted against the resolution, wrote a column calling it "a shame and a sham." Local radio host Mike Rosen blustered that "the ACLU will applaud Denver officials for their uncompromising dedication to civil rights. So will terrorists. Most of the rest of America will think we're idiots." But similar resolutions kept passing in towns across the country. In April 2003, Hawaii became the first state to pass an anti-PATRIOT resolution. During the Ashcroft tour the Bill of Rights Defense Committee recorded a huge wave of activity, as 29 cities passed resolutions and nearly 100 local chapters sprung to life.
In February 2004 the movement made its biggest splash when the New York City Council passed an anti-PATRIOT resolution by a voice vote. Bill Perkins, the Harlem Democrat who sponsored the resolution, says it took a long time for the council to consider the action. "It was challenging in the sense that we were the target of terrorism," says Perkins. "I lost a member of my family on 9/11, a cousin. But in the name of patriotism, we were being bamboozled. It did not protect us. It seemed to be an attack on the patriots."
The measure didn't pass until after months of community forums and publicity about what the PATRIOT Act contained. "Once people got to understand what it was," Perkins says, "my constituents were appreciative, and even conservatives were appreciative."
New York, of course, has a liberal city council. The most surprising anti�PATRIOT Act resolution came more than a year later, in March 2005, when the Idaho state legislature--85 percent Republican--unanimously approved a measure asking Congress to amend the Act so "that it does not unnecessarily compromise essential liberties of the citizens of the United States." According to state Rep. Tom Trail, a sponsor of the resolution, two factors fanned the state's skepticism toward the law. The first factor was U.S. Rep. Butch Otter, who spoke against it across the state, both alone and in joint appearances with the Idaho ACLU, and "changed a lot of minds." The second was Sami Omar Al-Hussayen.
Al-Hussayen was a Ph.D. candidate at the University of Idaho, a native Saudi who lived in the United States for nine years studying computer science. In February 2003 the FBI raided his home; he was charged with three counts of terrorism, four counts of making false statements, and seven counts of visa fraud. He had helped design a Web site for the Islamic Assembly of North America, which the government said promoted "radical Islamic ideology." Such work was prohibited by a PATRIOT Act provision that made it a crime to give "expert advice or assistance" to foreign terrorist groups. As Idaho watched, al-Hussayen spent a year in prison while the government built a case. At his trial the government insinuated terror ties based on al-Hussayen's computer records, and al-Hussayen's attorneys argued that the "expert advice" provision violated the First Amendment. In June 2004 al-Hussayen was acquitted of all terrorism charges.
Local opinion about the PATRIOT Act soured throughout this period. Attorney General Ashcroft hyped the case, calling al-Hussayen part of "a terrorist threat to Americans that is fanatical, and it is fierce," which didn't comport with local sentiment regarding the suspect and his family. Jurors told the Idaho Statesman newspaper that they balked at the government's case because it violated al-Hussayen's First Amendment rights.
The case "really got the community concerned," says Trail. Boise and Moscow, where the University of Idaho is located, both passed resolutions against the PATRIOT Act as Trail built support for his own statewide bill. After it passed, Trail says he got nothing but compliments. "It goes back to that there is a very strong libertarian, constitutional concern among our citizens," Trail says. "To protect our civil rights [and] the Constitution overrides pressure from the president or from the national leadership of the Republican Party."
What happened in Idaho was just the most vivid example of how public support for the PATRIOT Act can go wobbly. Activists have publicized the use of the law's most controversial sections, which allow sneak-and-peek searches (that is, searches conducted without notifying the targets) and government inspection of bank, library, and other records. (As of January 2005 there had been 155 sneaks-and-peeks, and as of April there had been 35 record inspections--all in banks.) This kind of information has taken a toll, and so has the use of the PATRIOT Act to chase ordinary crimes and to prosecute people based on tenuous leaks to terrorism. After the al-Hussayen verdict, Georgetown University law professor David Cole told the Los Angeles Times the case was a very useful illustration of PATRIOT Act abuse. "When President Bush and Dick Cheney say, 'You have not shown me a single abuse of the Patriot Act,' " he said, "I think people can now say, 'Look at the Sami Omar Al-Hussayen case.' "
Local anti-PATRIOT resolutions have proven popular, with some politicians who endorsed them gathering momentum to win higher office. New York City Councilman Perkins is a leading candidate for Manhattan Borough president, and Butch Otter is expected to be elected governor of Idaho in 2006. At the same time, the body that so lopsidedly voted for the PATRIOT Act in 2001 is bucking pressure from the Bush administration by voting to scale it back.
Storming Capitol Hill
There was always a constituency in Congress for reforming the PATRIOT Act among those legislators who had wanted more time to debate the bill but hadn't dared to vote against it. Their numbers reportedly grew after John Ashcroft appeared before the Senate in December 2001 and angrily denounced criticism of the Justice Department. "To those who scare peace-loving people with phantoms of lost liberty," Ashcroft famously said, "my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends."
"My sense is there was some outrage and umbrage at that," says Lisa Graves, a staffer on the Senate Judiciary Committee who in 2005 became the ACLU's counsel for legislative strategy. "This idea that to question him was unacceptable--that was very McCarthyesque."
In the 2002 elections the Republicans used national security issues to defeat some Democrats, but none of the candidates who voted against the PATRIOT Act were defeated. Nick Rahall, a West Virginia Democrat, got 70 percent against a Republican who brought up his no vote. Butch Otter ran against a Democrat who criticized his anti-PATRIOT vote, but he won with 59 percent. The next Congress, even though it included eight more Republicans, started maneuvering to weaken the act.
In July 2003 the Justice Department was sideswiped when Otter introduced an amendment to the funding bill for the Commerce, Justice, and State departments. Otter's measure prohibited the use of federal funds in sneak-and-peek searches. It wasn't even close--the measure passed the House by 309 to 118. The administration scrambled on two fronts to fight back. In public, it worked to strike the amendment in the Senate. In private, the Justice Department sent a memo to U.S. attorneys asking them to "call personally or meet" with members of Congress to discuss "the potentially deleterious effects of the Otter Amendment" as part of a campaign to "educate the public concerning the Act's effectiveness against terrorists." The disastrous Ashcroft tour was part of that effort. While the tour largely backfired, congressional maneuvering managed to kill the Otter Amendment.
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