Let Us Now Remember Those Conservatives Who Bashed Us 10 Years Ago for Worrying About PATRIOT Act-Enabled Surveillance


Do you know what's a fun search string for the Reason archive? "Patriot" and "215." With those terms, which reference the USA PATRIOT Act and its controversial Section 215 (and form the legal justifications for much of the domestic surveillance revelations that have shook the country this spring and summer), you can find all kinds of citations from conservatives ridiculing unserious civil libertarians for worrying about the federal government having the ability to snoop on Americans' innocuous activities without probable cause.

So, for instance, this September 2003 article by Julian Sanchez (who has since gone on to do valuable work on the subject of government snooping), links to a sneering Washington Times editorial from almost exactly 10 years ago titled "Hype, hysteria and the Patriot Act." Excerpt:

One of the most unfairly maligned provisions of the 2001 Patriot Act is section 215, which permits the FBI to apply for a court order requiring production of library and business records in the course of a terrorism investigation. According to Stanford Law School Dean Kathleen Sullivan, the provision is downright "threatening." The American Civil Liberties Union (ACLU) asserts that, under section 215, "the FBI could spy on a person because they don't like the books she reads, or because they don't like the Web sites she visits."

The above is nothing more than hyperbole that bears little relation to the facts. […]

Moreover, this section of the act actually imposes more restrictions on its uses than a federal grand jury subpoena for the same records. […]

It would be a serious mistake to cripple the Patriot Act based on misinformation about the law and misunderstandings about the real-world challenges the law-enforcement community faces in preventing future September 11ths.

Huh. So what does the Washington Times editorial board say now about Section 215?

The National Security Agency has been lying to Congress and the public. For years, employees at the spy agency have sworn they absolutely, positively never engage in domestic snooping. Thanks to the revelations of fugitive former spook Edward J. Snowden, we know these assurances were lies. Nothing the secretive agency says can be trusted. […]

An amendment introduced by Rep. Justin Amash, Michigan Republican, would have cut off all funding for the dragnet collection of personal phone calls, GPS location history and related "metadata" from Americans not suspected of any misdeeds. The measure would have erased the overly broad interpretation of Section 215 of the Patriot Act, which has enabled the domestic electronic dragnet. Snooping on foreign nationals, which the spy agency claims is the sole purpose of the program, would not have been affected.

Reluctant House leaders consented to schedule a vote on Mr. Amash's amendment only after setting up a "cover" amendment that allowed members to vote in favor of what appeared to be a protection from spy agency abuse but does nothing to stop abuse of Section 215. […]

The surveillance state prefers to work in the dark, not because it's afraid terrorists will learn the United States is listening — al Qaeda is already aware of that — but because it fears an outraged public will take away its playthings, the tools of the trade that entrusts secretive agencies with power no government in history has ever before had.

A strange coalition of spooks, veterans of the George W. Bush White House, Republican and Democratic committee chairmen and the Obama administration emerged from the shadows to prevent the defunding of the domestic spying. Nothing creates "bipartisanship" quite like undermining the Constitution.

You could run similar archival fact-checking exercises for Ramesh Ponnuru, Heather Mac Donald, John Ashcroft, and plenty of others, only some of whom will have dropped the "baseless hysteria" charge that Ashcroft and other surveillance-state enthusiasts made popular a decade ago.

I don't mean to single out the Washington Times here, especially since the paper has come around. Instead, I mean to point out the habit of mind so common then, and likely to be common the next time Republicans run Washington. When Americans have their sense of fear heightened, they over-trust their government. When conservatives approach policy issues of life and death, too many of them suspend the skepticism of government power they otherwise apply to the provision of health care or the collection of taxes. When partisans have power, they work hard to marginalize libertarians. And when government has the ability to, it lies its face off.

These rules are eternal, and require constant pushback.