Right All Along, Unfortunately
The "Chicken Littles" win the civil liberties debate.
Attorney General Alberto Gonzales and Federal Bureau of Investigation Director Robert Mueller spent much of March doing something neither man was used to doing: apologizing. On March 10, Mueller admitted that the agency hadn't told the truth about its uses of PATRIOT Act powers to investigate Americans, admitting that nearly 50,000 privacy-busting "National Security Letters" had been sent in 2005 instead of the 30,000 Congress had been told of. Three days later, Gonzales walked the same plank to confess that the Department of Justice may have lied to Congress about the reasons why eight U.S. Attorneys had been dismissed and replaced with less-experienced drones who'd be more willing to investigate Democrats.
Six and a half years earlier, Cassandras who warned about abuses like these couldn't get a hearing in Washington. Only one U.S. senator, the Wisconsin Democrat Russ Feingold, opposed the PATRIOT Act in October 2001. Only 47 senators voted against the White House's drive to close debate on PATRIOT Act reauthorization on December 16, 2005—enough to delay the vote, but not enough to force major changes. But on March 20, 2007, 94 senators voted to repeal the PATRIOT provision that let the Department of Justice fire U.S. attorneys and replace them without new nomination hearings.
In the wake of the 9/11 attacks, citizens and legislators alike were quick to go along with the idea that government needed sweeping new powers—and less oversight—if it was going to defend us against terrorism. It was this idea that gave us Gitmo, warrantless wiretaps, the PATRIOT Act, and the Department of Homeland Security. The idea faced critics from the start, but for a long time, most of Congress was willing to meet those criticisms with faith: faith in the president, faith in legal authorities, faith in agents wielding pumped-up powers in the field.
That first, lopsided Senate battle over the PATRIOT Act set the tone. The administration mollified skeptical U.S. senators with small changes to a bill that began as a K-Tel compilation of new state powers: The attorney general would still be allowed to seize education records, for example, but now he was required to present some reasons for doing so. Feingold, who proposed several doomed amendments to the law, was the only senator to break faith with the parties and vote against the entire bill.
"I came to feel that the administration's demand for haste was inappropriate; indeed, it was dangerous," Feingold told a Milwaukee audience after the vote. He worried that "the bill contains some very significant changes in criminal procedure that will apply to every federal criminal investigation in this country, not just those involving terrorism."
In other words, Feingold foresaw many of the problems that would emerge as federal investigations clashed with Americans' civil rights. At every turn, security hawks have argued their critics are overanxious, paranoid "Chicken Littles." At this point, the chickens are looking awfully prescient. It's the hawks who are in trouble, beset by scandals connected directly to the laws for which they begged.
The scandals began to percolate early in 2002, but none of them stuck; complaints about government snooping in library records and among antiwar groups may have gotten some buzz online and in local newspapers, but not in Congress. The first story that did was the revelation in late 2005 that the White House was approving phone wiretaps without getting warrants from the special courts created by the Foreign Intelligence Surveillance Act. The New York Times reported this in December 2005, just as the U.S. Senate was debating whether to eauthorize the PATRIOT Act and extend provisions that had been set to expire.
Civil liberties watchdogs, whose numbers had swelled since 2001, saw the revelations as a confirmation of their worst fears, and PATRIOT reauthorization became a tougher sell. According to Sen. John Sununu (R-N.H.), what really outraged senators wasn't the scandal itself so much as Attorney General Alberto Gonzales' refusal to meet with them to discuss the PATRIOT Act, the expiring provisions, and various related issues.
"The way they handled the reauthorization process was horrible," says Sununu, who went on to filibuster the reauthorization. "The attorney general had an opportunity to develop a rapport with Congress. That's what we wanted. He decided not to engage in discussions. In my opinion, that was the failure that led to the confrontation."
One point of contention between senators and the White House was National Security Letters, documents that compel their targets to release any and all information the FBI requests from them; all the FBI need assert is that the request is somehow related to a terrorism investigation. Under the PATRIOT Act, their use expanded enormously. After watching the FBI send its reported 30,000 letters in 2005, Sununu (as part of the PATRIOT reauthorization compromise) passed a law requiring oversight by the Inspector General's Office and reports to Congress on how the letters are being used.
That earned scorching criticisms from other Republicans, who accused Sununu, Feingold, and other critics of making an issue out of thin air. "The threat to Americans' liberty today," Viet Dinh, one of the lawyers who crafted the PATRIOT Act, said in a 2006 debate with former Rep. Bob Barr, "comes from Al Qaeda and its associates and the people who would destroy America and her people, not the brave men and women who work to defend this country!"
In March 2007, FBI Inspector General Glenn Fine released a report that undermined that argument. It turned out the bureau had underreported the number of requests for National Security Letters, had issued letters before exhausting other options, and had issued them to Americans who were not the targets of ongoing investigations. In short, the FBI had abused its new powers.
"That vindicated my concerns over that provision of the PATRIOT Act," says Sen. Larry Craig, an Idaho Republican who had joined Sununu and most Democrats in the 2005 filibuster. "Not because I have reason to believe that FBI agents were acting with ill intent, but it does show that we shouldn't create shortcuts when it comes to civil rights. Mistakes will, and did, happen."
That scandal was soon chased from the headlines by something even more incendiary: The White House had fired eight competent U.S. attorneys for, among other things, not working hard enough to prosecute Democrats. Washington State's John McKay hadn't dug into claims of Democratic voter fraud in a governor's race; New Mexico's David Iglesias, the model for Tom Cruise's character in A Few Good Men, wasn't willing to rush an indictment against a Democratic state senator before an election. And the power that let the president replace them with cronies was enshrined in the PATRIOT Act.
Presidents had always set up a revolving door for the U.S. attorneys at the starts of their terms, and they had the right to shuffle them out and nominate new blood at any time. But PATRIOT effectively eliminated Congress' role in approving those replacements, by removing restrictions on the length of service for interim U.S. attorneys and allowed them to serve indefinitely without confirmation by the Senate. As first liberals, then conservatives started calling for the attorney general to fall on his sword, the Senate voted to strip the president of that power.
It took its time, but the political class has finally lost confidence in its belief that the government had done the right things to secure America after 9/11. As scandal piled on top of scandal, it became harder, then impossible, to deny that the powers granted to the executive could be abused by some corrupt actors or by agencies enamored of their own secrecy.
This impacts the way Washingtonians play out the decade's big hypothetical scenario: What happens if we get hit again? How will politics change after another 9/11? The thinking had been that politics would pivot right back to the frenzied "whatever my government wants" attitude of 2001. But the validation of civil libertarians' fears has changed all that.
"This is a case where I can say 'I was right all along,'?" says Sununu. "But I am not happy about it."
David Weigel is an associate editor of Reason.