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]."
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.
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.
In October, as the Ashcroft tour was winding down, Sens. Larry Craig (R-Idaho) and Dick Durbin (D-Ill.) introduced the Security and Freedom Ensured (SAFE) Act, aimed at striking down three of the PATRIOT Act's provisions and enumerating limits on the administrative subpoenas authorized by Section 505. The bill picked up 19 co-sponsors and went to committee. In January 2004 Ashcroft sent a letter to Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) threatening that he'd recommend President Bush veto the bill if it was passed. Five months later, the House considered another effort to limit the PATRIOT Act, a bill proposed by Rep. Bernie Sanders (I-Vt.) that would have stopped the Justice Department from searching bookstore and library records under Section 215. The bill was set to pass, winning 219 votes by the end of the roll call, but the GOP leadership held the vote open beyond the allotted time in order to convince Republicans to change their votes. After 38 minutes of voting--extended from 15--the tally in favor dropped from 219 to 210 and the measure died.
At the start of 2005, the year that some parts of the PATRIOT Act must be renewed or allowed to expire, the administration's clout was shrinking and the anti-PATRIOT coalition was growing. In March former Rep. Bob Barr, a Georgia Republican who had been working with anti-PATRIOT groups for years, launched a coalition named Patriots to Restore Checks and Balances. The group includes not just the ACLU and the Libertarian Party but Paul Weyrich's Free Congress Foundation, Grover Norquist's Americans for Tax Reform, the American Conservative Union, and other groups that support right-wing causes. By July the organization was sending its members to stump at high-profile community events and press junkets. At the same time, the Bill of Rights Defense Committee was supplementing the efforts to pass local resolutions with activism and rallies billed as "PATRIOT Days of Action."
The Justice Department had retooled its strategy too. When
Alberto Gonzales replaced John Ashcroft as attorney general in
February, he brought in staff to beef up and consolidate
the office of public affairs. His P.R. chief, Kevin Madden, had been a spokesman for the Bush/Cheney 2004 campaign. Before leaving the DOJ for Tom DeLay's office in July, Madden coordinated a new public relations offensive that included revamping LifeandLiberty.gov, encouraging U.S. attorneys to talk to communities, and holding morning "PATRIOT Act Working Group" strategy meetings.
"If you look at the rhetorical content used to criticize PATRIOT, a lot of it is out of tune," Madden says. "They trumpet the fact these communities have passed nonbinding resolutions, but those all contain a lot of misinformation." Misinformation, from the DOJ's perspective, has included rumors that anti-war groups could be prosecuted under Sections 411 and 802, and that government agents are examining ordinary Americans' library records. The job of his office, says Madden, is "to provide facts. Critics can make blatantly false statements, and it's construed as balance, as the counterpoint to what the Justice Department is saying."
In June, as President Bush went on a short tour giving speeches supporting total PATRIOT Act reauthorization, the House held another vote on the Sanders amendment to protect bookstore and library records. This time, in a Congress with a larger GOP majority and under the threat of a presidential veto, the measure passed by a vote of 238 to 187. In late July, one day after a terrorist bombing in London, the House voted on the amended bill, which made 10 of 12 temporary provisions permanent, and it passed by 257 to 171. In most respects, the vote was a defeat for the citizens' movement. But the new PATRIOT Act was more limited than the one passed in 2001, and the margin of support had shrunk by 100 votes.
The Senate and President Bush are expected to reapprove the PATRIOT Act later this year, but the climate has changed dramatically since the frantic days of 2001. Government error and bad publicity resulting from use of the PATRIOT Act have reduced the number of Americans who are willing to trade privacy for security. Politicians who vote against measures like PATRIOT will go home to sympathetic voters. And the struggle has put wind in the sails of civil libertarians on the left and right, who after years of culture wars have a unifying, edifying cause.
Just ask Butch Otter's communications director, Mark Warbis. He has seen this skeptical sentiment at the red-state grassroots in Idaho, where Otter continues to discuss the PATRIOT Act's problems and the SAFE Act's potential remedies with legislators and constituents. "People know," Warbis says, "that whenever government is granted additional authority, it creates the opportunity for abuses in the future."