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
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
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
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
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
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.
13 June 2005
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