The Burden of Bad Memes

PATRIOTs and Chicken Littles

It's official: The fashionable fall meme for unreconstructed Bush administration cheerleaders is the notion that civil-libertarian concerns about the PATRIOT Act have been much ado about nothing: the squawking of so many Chicken Littles.

The defense of PATRIOT has been slow in coming, in part because it was possible, at first, to dismiss criticism as predictable carping from the usual suspects: the American Civil Liberties Union, the Electronic Frontier Foundation, and other notorious "fifth columnists," to borrow the new right's sledgehammer-subtle imprecation du jour. Things became trickier once American Baptist Churches, the American Conservative Union, Gun Owners of America, and folks like Georgia ex-representative Bob Barr began voicing reservations. The conservative base has begun to get nervous.

The most widely cited Chicken Little piece so far is an article in the Summer issue of City Journal by Manhattan Institute scholar Heather Mac Donald, who has presumably shifted her attention away from stumping for Total-cum-Terrorism Information Awareness now that even the Republican controlled Senate has backed away from the proposal to create a national data panopticon. Abbreviated follow-up defenses—mostly Cliffs Notes to Mac Donald's argument—have since issued from the pens of the Washington Times' editors and, most recently, National Review's Rich Lowry.

Each piece trots out the "don't you realize we're at war?" trope, which it's tempting to read as an imputation to civil libertarians of almost mindboggling naiveté. They are not (as one might think) animated by a concern that liberties may be sacrificed without any appreciable gain in security, or an insistence that law enforcement show that existing powers have been used effectively—a highly dubious proposition—before expansive new powers are granted. No, the ACLU and company have apparently just been snoozing for two years: They missed the news about that little dust-up involving a couple of planes and skyscrapers two Septembers ago.

In reality, though, civil liberties groups may well be unaware that we're "at war" in the sense that Mac Donald intends the phrase. She avers, for example, that the detention of executive-designated "enemy combatants" is "fully justified under the laws of war." She means, in short, that all the powers a government might exercise during a conventional military war, say World War II, are equally appropriate in the War on Terror. Since "terror" is a notoriously nebulous enemy—it is, after all, an abstraction, not a country—and the conditions of victory uncertain, this amounts, if we take it literally, to a functionally indefinite arrogation of "emergency" powers to the executive.

Oddly, this sweeping claim of authority is typically coupled with the insistence that PATRIOT has given us nothing (or nothing much) new under the sun. PATRIOT apologists point out, for example, that grand juries have long been able to subpoena the sorts of records—including, potentially sensitive financial documents, the membership rosters of religious or political organizations, and lists of books checked out from local libraries—now available to federal investigators. Tim Lynch, director of the Cato Institute's Project on Criminal Justice and co-author of the study "A Grand Façade: How the Grand Jury Was Captured by Government", argues that this reasoning gets things backwards. "The grand juries are already out of control," Lynch says, "and now they're saying 'let's build on that'?"

Grand juries, after all, were initially intended as a check on prosecutorial power, a means of verifying that solid evidence existed to justify an indictment. It may be that they have, over time, become an extension of prosecutorial power, but it's not clear that this one means of circumventing the Fourth Amendment should be allowed to metastasize. The situations are not entirely analogous either: Unlike grand jury subpoenas, those allowed under PATRIOT's Section 215 come with gag orders attached. Those served with demands for records are unable to make the public aware of those demands or to challenge them in court. Grand jury subpoenas for potentially sensitive materials are at least subject to challenge on First or Fourth Amendment grounds.

Lowry and others are quick to point out that judicial review is not entirely absent from the process:

The fact is that federal authorities cannot do any of the nasty things under the Patriot Act that critics complain about—electronic surveillance, record searches, etc.—without a court order and a showing of probable cause. A federal judge has to sign off on any alleged "violation of civil liberties."

This would be welcome news—if it were true. Alas, Lowry is here mistaken, incorrect, uttering un-facts, speaking that-which-is-not. Law enforcement agents need not show probable cause, nor were they required to do so when exercising the equivalent powers under the Foreign Intelligence Surveillance Act of 1978. The difference is that whereas previously, authorities were required to adduce some "reason to believe"—a lower standard than "probable cause"—that the target of investigation was an agent of a foreign power (including a terrorist group), it now need only claim that records are "sought in connection with" a terrorist investigation, with no requirement of particularized suspicion.

But what of that precious judicial oversight? Are PATRIOT critics trying, as Mac Donald alleges, to "hide the judge," who presumably can be relied upon to check abuse of these new powers?

It would be more accurate to say that apologists are hiding behind the judge. FISA courts have rejected precisely one federal wiretap or subpoena request in the course of 25 years. Worse, the text of the Patriot Act stipulates that judges "shall issue" warrants, provided that the request certifies that the records specified are sought in connection with a terror investigation. This is neither a "check" nor a "balance": It is a tricycle-sized speed bump placed in the path of an Abrams Tank.

Equally misleading is the claim that the authorization of "roving wiretaps" represents nothing more than the natural extension to terrorism cases of a power that already exists for domestic organized crime investigations. This is a red herring: Civil liberties advocates do not argue that roving taps are inappropriate to terrorism investigations. They do note, however, that the roving tap authority was quite deliberately not limited to such cases: Federal authorities insisted on having comparable powers for drug trafficking or tax evasion inquiries. The drug and terror wars may now be fused still further by the Vital Interdiction of Criminal Terrorist Organizations Act, which has been dubbed the "VICTORY Act," despite the failure of the drafters to come up with a final two words to complete the acronym. Perhaps the meanings of the "R" and "Y" are classified.

As Jim Dempsey of the Center for Democracy and Technology noted at an April forum sponsored by Cato, amendments to the roving wiretap authority in the Intelligence Authorization Act may broaden its effect still further. Warrants may now rove, not only over places and telephones, but over persons as well. The government, in short, may request a blanket order covering an "unknown person at an unknown location."

Debate over these particulars, however, is probably secondary. Most troubling is the lax standard some conservatives now seem to have adopted for evaluating expansions of government power. According to Lowry, "The challenge to critics should be this: Name one civil liberty that has been violated under the Patriot Act." One might, at least arguably, cite news that the FBI had sought and obtained the records of several million students at SCUBA schools as evidence of a troubling fishing-expedition approach, but it's true that there are few clear cases of overreach at which PATRIOT critics can point.

Of course, that's roughly what one should expect from a law distinguished by the amount of secrecy it imposes. Lowry's demand amounts to: "Show me just one classified, top-secret abuse of power!" As such, the request is disingenuous at the very least. The American Civil Liberties Union (ACLU) filed a Freedom of Information Act request for information on the uses of PATRIOT powers last August, and was rebuffed. "It is literally impossible," observes ACLU staff attorney Jameel Jaffer, "to know in what contexts the government has used these powers unless they tell us of their own accord, which they have so far refused to do."

Even if we assume officials have thus far been positively angelic in their use of PATRIOT powers, there is something disconcerting about this line of attack. The argument that there's nothing to fear because we have not, in the two years since PATRIOT's hasty passage, seen egregious civil liberties violations is a warped bit of inductive logic on par with concluding that Russian roulette is safe because the chamber's clicked twice. It used to be a distinctive conservative virtue to focus on the institutional tendencies created by a law, rather than taking comfort because it's good ol' John Ashcroft rather than Janet Reno at the helm.

The broadest thing wrong with this standard, though, is where it places the burden of proof. Civil libertarians want the answer to questions that as yet have barely been asked and never been answered: How will these new powers make us safer? Would they have prevented the September 11 attacks? Do they add anything to the existing powers the government failed to deploy effectively before then? Are they broader than necessary to aid in the fight against terror?

The PATRIOT apologists will have none of this. The default, as they see it, is to grant new powers unless there's proof that they'll lead overnight to tyranny. The presumption of liberty is replaced by a presumption of power. The sad reality, though, is that even a police state can't guarantee total safety: Whatever we do, the coming years will see more terror, more attacks. If we conclude, each time, that the culprit must be an excess of domestic freedom, a lack of government power, we are traveling a road with no end.