PATRIOT Act: The Ho-hum Strategy and Catch-22

Proponents of the Patriot Act seem to have settled on a strategy for selling its extension to the public: Ho-hum. The Act doesn't do as much as you think it does. The Bush administration's most egregious abuses of civil liberties have other causes and are irrelevant.

In a rant just before he gaveled his subcommittee's June 10 hearings to a close and left Democrats talking into dead microphones, Republican Congressman James Sensenbrenner made the case this way:

We ought to stick to the subject. The Patriot Act has nothing to do with Guantánamo Bay. The Patriot Act has nothing to do with enemy combatants. The Patriot Act has nothing to do with indefinite detentions.

The Washington Post changed this argument just enough to avoid plagarism when its lead editorial of June 13 endorsed the Patriot Act's extension:

Although the Patriot Act has become a catch phrase for civil liberties anxieties, it in fact has little connection to the most serious infringements on civil liberties in the war on terrorism. It has nothing to do with the detention of Americans as enemy combatants, the abuse of prisoners captured abroad or the roundup of foreigners for minor immigration violations.

Having barred the administration's headline-grabbing abuses from consideration, the Post then notes that there have been no headline-grabbing abuses.

The law's key sections were designed to expand investigative powers in national security cases and permit more information-sharing between intelligence and law enforcement agencies. These have sparked controversy more because of abuses they might permit than because of anything that is known to have happened. Indeed, there is little evidence of abuse -- and considerable evidence that the law has facilitated needed cooperation.

Where, you might wonder, does this evidence come from? The Post explains:

Far from regularly releasing information about its use of the law, the administration has generally hidden even basic information -- only to release it when politically convenient.

We're now deep into the logic of Catch-22. We have a law that allows the most secretive administration in American history to operate in even deeper secrecy, releasing only the information that favors its cause. And lo and behold: The available information favors its cause! There is "little evidence of abuse"!

How should civil libertarians cope with this strategy? Begin by recognizing what the administrations' water-carriers have yielded: They can't defend the overall Bush policy. If the Patriot Act renewal is a referendum on civil liberties post 9/11, they lose.

The challenge, then, is to bring enemy combatants, Abu Ghraib, and Guantanamo back into the conversation. But how? Sensenbrenner and the Post are correct in a technical sense: None of those policies were authorized by the Patriot Act. None of them will go away if the key provisions of the Patriot Act are allowed to expire on schedule at the end of this year. All the Bush administration's visible abuses of human rights rest on two major pillars: on the administration's frighteningly loose interpretation of the President's constitutional powers as Commander-in-Chief, and on another resolution that Congress passed in the post-9/11 panic, the Authorization for the Use of Military Force.

The Patriot Act, by contrast, operates invisibly. It concerns secret investigations and how the government handles the information it gathers. Unless and until the FBI starts blackmailing private citizens, only the investigators themselves know whether they are abusing their powers.

And that's how we connect the dots: The Patriot Act has a big "Trust Me" sign on it. By the nature of secret investigatons, the public cannot check up on how the government uses this power. Consequently, no question is more relevant to the renewal of the Patriot Act than whether or not the U.S. government can be trusted to take care of our civil liberties. Because the subject matter of the Patriot Act is invisible, we must pay attention to what is visible: this administration's widespread contempt for human rights of all sorts.

The abuse, torture, and wrongful death of enemy combatants at Guantanamo and elsewhere, the kidnapping of suspects and "rendition" to countries that practice torture, the indefinite detention without charges of an American citizen like Jose Padilla (now in its fourth year), and the fabrication of the case for invading Iraq are all totally relevant to the trustworthiness of the government.

The administration would like the debate over the extension of the Patriot Act to be specific, technical, and too boring to deserve major media coverage. It wants secrecy to be self-justifying, hiding any evidence that might argue against it. We can't let that happen.

We need to frame the issue like this: The government is asking you to trust it with even more power to invade your privacy. But it has proved again and again that it does not respect human rights and cannot be trusted to preserve your civil liberties. That is a broad and very interesting discussion that ought to be covered widely.

Doug Muder

13 June 2005

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