David Cole

My Life Undercover in Hollywood's Right-Wing Underground

The following is an excerpt from Republican Party Animal, by David Cole (Feral House, 2014).

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Will the New President Give Back the Powers Bush Has Grabbed?

As President Bill Clinton assumed office in January 1993, I held out great hope that the Immigration and Naturalization Service's long-standing effort to deport my clients -- eight people arrested in Los Angeles in 1987 for distributing magazines for a faction of the Palestine Liberation Organization -- might finally come to an end. We'd begun the case under President Reagan, and continued under the first President Bush. We had consistently prevailed in the federal courts, before judges appointed by both Republican and Democratic presidents. The FBI director had admitted that none of our clients had engaged in any criminal activities, and that they were arrested only for their political associations. Surely the new Democratic administration -- where some of my best friends were going to work -- would abandon this ill-conceived effort?

Hardly. Instead of dropping the case, the Clinton Justice Department took it all the way to the Supreme Court, where it obtained a favorable ruling written by none other than Justice Antonin Scalia. The Clinton administration also aggressively used secret evidence to seek the deportation and detention of numerous Arab and Muslim immigrants, despite repeated court rulings that such tactics violated the Constitution. And after the Oklahoma City bombing, Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996, which "streamlined" habeas corpus for all prisoners (accused terrorists or not), created a special court to remove "alien terrorists" (again using secret evidence), and made it a crime to provide "material support" to blacklisted groups, effectively resurrecting the McCarthy-era tactic of guilt by association.

So: While there may be many reasons to support Barack Obama, don't assume that a Democratic president will necessarily transform the counterterrorism policies of the current administration. Government officials do not as a rule like to give up power, and President Bush has grabbed plenty of power for the executive branch since 9/11. Democrats in particular often feel vulnerable to being portrayed as soft on crime or terrorism, and far too many tack to the right on these issues, as Clinton did. If the problem is to be fixed -- and it is essential that we fix it -- it will only be because of sustained and popular pressure for change.

Don't get me wrong. I hope a President Obama will be more attuned to civil liberties than Clinton was. And I have no doubt that Obama has historically been better than McCain in this arena. But the project is an enormous one. The list of Bush and Cheney's insults to the Constitution could go on forever, but the low points include:

* They authorized the use of what they call "enhanced interrogation techniques," and what the rest of the world knows to be torture.

* They asserted the right to lock up anyone anywhere in the world -- even US citizens arrested at home -- without a hearing, access to lawyers or the courts, or the protections of the Geneva Conventions.

* They dramatically expanded surveillance powers while bypassing judicial oversight, and ordered the National Security Agency to wiretap Americans without warrants -- flaunting a statute that made such conduct a federal crime.

* They kidnapped suspects and rendered them to countries with a track record of torture.

* They disappeared other suspects into secret cia black sites, where they were subjected to brutal interrogation tactics specifically authorized in White House meetings.

* They locked up in post-9/11 "preventive detention" more than 5,000 foreign nationals in the United States, virtually all of them Arab or Muslim -- not one of whom stands convicted of a terrorist offense today.

* And they asserted that when the president "engages the enemy" as commander in chief, he is for all practical purposes above the law.

Thankfully, some parts of the Constitution remain, including the one limiting presidents to two terms.

There is reason to hope that we are ready for change. A growing consensus recognizes that the Bush administration's post-9/11 actions have not only compromised some of our most fundamental principles, but have actually made us less safe. They have made it nearly impossible to bring to justice some of the worst actors we have captured; rendered it more difficult for our allies to cooperate with us for fear that they will be tainted by our actions; and given Al Qaeda the best recruitment propaganda it could have imagined. Even President Bush admits that Guantanamo is a public relations disaster (he hasn't quite admitted that it is a human rights disaster), and should be closed. And the administration has had to retreat on its positions on torture, unchecked presidential power, the detention of enemy combatants, and the Geneva Conventions.

Then there is the Supreme Court, which has now ruled against the administration in all four of the "terrorism" cases in which it has issued an opinion since 9/11. It found -- twice -- that the Guantanamo detainees have a right to challenge the legality of their detention. It rejected the administration's claim that it could hold US citizens as enemy combatants without a hearing. It ruled that the Geneva Conventions govern the conflict with Al Qaeda, and that the military tribunals violated those conventions and U.S. military law. And in its June decision in Boumediene v. Bush, the court for the first time ever ruled against the president and Congress acting together on a matter of national security and, in another first, extended constitutional rights to foreign nationals outside U.S. territory. While we cannot pin our hopes on a court that is one justice away from becoming the most conservative in our history, this track record should give some backbone to those in the next administration who seek to turn the tide.

But the most important reason for hope is the remarkable job that civil society groups -- from Human Rights First and the ACLU to the Muslim Public Affairs Council and the Center for Constitutional Rights -- have done in standing up for the principles that characterize this country at its best. By bringing lawsuits, issuing reports, holding press conferences, and mobilizing members, they have given citizens opportunities for constructive engagement with one of the most important issues of our generation -- what democracy will look like in the face of the threat of terror.

It was not always so. In the McCarthy era, for example, the ACLU was more consumed with purging itself of Communists than defending civil liberties -- and most of the other groups doing crucial work today didn't even exist.

Civil society, of course, is just a fancy term for "us." It is the citizenry, mobilized. And as Judge Learned Hand, perhaps the greatest judge never to be on the Supreme Court, once said, "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it … While it lies there it needs no constitution, no law, no court to save it." The question is whether the audacity of this hope will give way to the politics of terror. The answer lies in us.

Taking Liberties

On Sept. 2 a federal judge in Detroit threw out the only jury conviction the Justice Department has obtained on a terrorism charge since 9/11. In October 2001, shortly after the men were initially arrested, Attorney General John Ashcroft heralded the case in a national press conference as evidence of the success of his anti-terror campaign. The indictment alleged that the defendants were associated with al Qaeda and planning terrorist attacks. But Ashcroft held no news conference in September when the case was dismissed, nor did he offer any apologies to the defendants who had spent nearly three years in jail. That wouldn't be good for his boss' campaign, which rests on the "war on terrorism." Here, as in Iraq, Bush's war is not going as well as he pretends.

The Detroit case was extremely weak from the outset. The government could never specify exactly what terrorist activity was allegedly being planned and never offered any evidence linking the defendants to al Qaeda. Its case consisted almost entirely of a pair of sketches and a videotape, described by an FBI agent as "casing materials" for a terrorist plot, and the testimony of a witness of highly dubious reliability seeking a generous plea deal. It now turns out that the prosecution failed to disclose to the defense evidence that other government experts did not consider the sketches and videotape to be terrorist casing materials at all and that the government's key witness had admitted to lying.

Until that reversal, the Detroit case had marked the only terrorist conviction obtained from the Justice Department's detention of more than 5,000 foreign nationals in anti-terrorism sweeps since 9/11. So Ashcroft's record is 0 for 5,000. When the attorney general was locking these men up in the immediate wake of the attacks, he held almost daily press conferences to announce how many "suspected terrorists" had been detained. No press conference has been forthcoming to announce that exactly none of them have turned out to be actual terrorists.

Meanwhile, despite widespread recognition that Abu Ghraib has done untold damage worldwide to the legitimacy of the fight against terrorism, the military has still not charged any higher-ups in the Pentagon, and the administration has shown no inclination to appoint an independent commission to investigate. It prefers to leave the investigation to the Justice Department and the Pentagon, the two entities that drafted secret legal memos defending torture.

And in late July, resurrecting the ideological exclusion practices so familiar from the cold war, the Department of Homeland Security revoked a work visa for a prominent Swiss Islamic scholar who had been hired by Notre Dame for an endowed chair in its International Peace Studies Institute. DHS invoked a PATRIOT Act provision that, like the McCarran-Walter Act of the cold war, authorizes exclusion based purely on speech. If a person uses his position of prominence to "endorse" terrorism or terrorist organizations, the PATRIOT Act says, he may not enter the United States. The McCarran-Walter Act, on the books until its repeal in 1990, was used to exclude such "subversives" as Czeslaw Milosz and Graham Greene. This time the man whose views are too dangerous for Americans to hear firsthand is Tariq Ramadan, a highly respected intellectual and author of more than twenty books who was named by Time magazine as one of the hundred most likely innovators of the 21st century.

Notre Dame is not known as a hotbed of Islamic extremism – and Ramadan is no extremist. He argues for a modernized version of Islam that promotes tolerance and women's rights. Two days after 9/11 he called on fellow Muslims to condemn the attacks. In short, Ramadan is precisely the kind of moderate voice in Islam that the United States should be courting if it hopes to isolate al Qaeda. The barring of Ramadan reinforces the sense that the administration cannot or will not distinguish between moderates and extremists and is simply anti-Muslim.

What is most troubling is that none of these developments – the revelation of prosecutorial abuse in the interest of obtaining a "win" in the war on terrorism; the continuing failure to hold accountable those most responsible for the torture at Abu Ghraib; and the exclusion of a moderate Muslim as too dangerous for Americans to hear – is an isolated mistake. Rather, they are symptoms of a deeper problem. The President thinks he can win this war by "acting tough" and treating the rule of law and constitutional freedoms as optional. With enough fearmongering, that attitude may win him the election. But it will lose the war. Bush is playing right into al Qaeda's hands by further alienating those we most need on our side.

Taking Liberties

"Even in times of national emergency -- indeed, particularly in such times -- it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike." So wrote the US Court of Appeals for the Ninth Circuit on December 18, ruling that foreign nationals held as "enemy combatants" at Guantánamo Bay Naval Base have a right to seek court review of the legality of their detention. The same day, a Court of Appeals on the other coast ruled that the President acting alone lacks the authority to detain US citizens as "enemy combatants."

Never before has the Administration suffered such setbacks to its domestic war on terrorism. And the backlash has been growing. On December 3, a Court of Appeals ruled unconstitutional significant portions of the federal statute criminalizing "material support" to designated "terrorist organizations." The statute has been the linchpin of most of the Justice Department's terrorism prosecutions precisely because it does not require proof of individual involvement in, or support of, actual terrorism -- only proof of some "support" to a proscribed group. The court held that the prohibitions on providing "personnel" and "training" to such groups impermissibly penalized constitutionally protected activity.

On December 9, the military embarrassingly admitted that it did not even know whether supposedly secret information seized from Capt. James Yee, the former Muslim chaplain at Guantánamo, was classified. Yee had been arrested and detained for more than two months, with much fanfare about national security breaches at Guantánamo, for allegedly taking his own notes off the base in a notebook. Meanwhile, in one of the most vindictive prosecutions in years, the military is prosecuting Yee for committing adultery and having pornographic images on his computer, hardly matters of national security.

For all John Ashcroft's blustering, only one 9/11 terrorism case has actually gone to trial -- and the outcome of that trial has now been called into serious question. The case, tried in Detroit, resulted in a mixed verdict this past June. Two defendants were convicted of conspiracy to support some unspecified terrorist act in the unspecified future, and two others were acquitted on the terrorism charges. On December 16 the federal district judge in the case formally admonished Ashcroft for interfering with the trial by violating a gag order and officially praising the government's principal witness while the jury was deliberating. And on December 12 the judge held a hearing on whether to vacate the convictions altogether on the ground that federal prosecutors had failed to disclose evidence that the same witness had lied on the stand.

These developments suggest why the Administration has sought to avoid any meaningful review of its detention of enemy combatants. Due process, checks and balances, and judicial review all have the potential to reveal error and abuse. And when the government launches a "preventive" law -- enforcement strategy based on predictions about future behavior rather than actual evidence of illegal conduct, error and abuse are bound to follow.

As the Ninth Circuit said, courts have an "obligation" to "prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike." Precisely to avoid the confining effects of that "obligation," the Administration has insisted that the more than 650 people held at Guantánamo have no right to any judicial review or even to a hearing before military officers. It has similarly argued that US citizens designated by the President as "enemy combatants" can be held indefinitely, incommunicado, without access to courts or lawyers. In essence, it has argued that when it comes to detentions in the war on terrorism, the President is above the law.

Now two courts have squarely rejected that view. The Ninth Circuit held that the Guantánamo detainees have a right to go to court to make sure the President is acting within the law. And the Second Circuit held that absent authorization from Congress, US citizens captured on US soil may not be detained as "enemy combatants" at all. In both cases, the courts have insisted that in a constitutional democracy, the rule of law has an essential role.

The Guantánamo issue is already before the Supreme Court in another case, which will be decided by June. The Court is also virtually certain to take up the question of whether US citizens may be held as "enemy combatants." Will the Supreme Court live up to the "obligation" identified by the Ninth Circuit? It was willing to step in to protect the rights of George W. Bush as he sought to block a recount in order to be selected President with fewer votes than his opponent. But how will it respond to the Administration's argument that Bush ought to enjoy not only the powers of a President in a system of checks and balances but the prerogative of a king, unfettered by the limits of law?

An Ounce of Detention

In Steven Spielberg's Minority Report, set in the not-all-that-distant future, police in Washington, D.C., have hit upon a way -- through the enslavement of psychic visionaries -- to predict and prevent future crimes. Would-be criminals are apprehended before they actually break the law and are punished for their intent to do so. But as one might expect, things go awry when one officer learns that the psychics' visions can be manipulated, and an innocent man is implicated in a future murder he does not intend to commit.

Neither President George W. Bush nor Attorney General John Ashcroft has discovered any psychic visionaries -- with the possible exception of Karl Rove, and his field of vision is limited -- but in fighting the war on terrorism, they have nonetheless adopted sweeping new "preventive" strategies that depend on the ability to predict the future. At home, the Department of Justice's goal is no longer simply to prosecute criminals after the fact but to keep violent acts from occurring in the first place -- in Ashcroft's terms, "a paradigm of prevention." Abroad, the Bush administration's national-security strategy has redefined self-defense to encompass preventive war -- the initiation of hostilities to forestall not only imminent threats but also dangers that might develop at some point down the road. These strategies are rarely considered together, but they are in fact two sides of the same coin. They share not only a common origin and justification but a common philosophy -- one that ultimately depends upon double standards and secrecy, disdains the rule of law for the rule of force and is very likely to render us less, not more, secure.

The impetus to strike first is understandable. All other things being equal, preventing a terrorist act is certainly preferable to responding after the fact, all the more so when the threats include weapons of mass destruction and our adversaries are difficult to detect, undeterrable and seemingly unconstrained by considerations of law, morality or human dignity.

But all other things are not equal. Detention and killing, whether through the justice system or waging war, are the two most extreme acts a state can take, and both carry substantial risks of abuse. For these reasons, both the criminal law and the law of war strongly disfavor locking up human beings or launching a war for preventive purposes. As long as the future remains unpredictable, preventive strategies are bound to harm innocents and to substitute subjective will for the ideal of objective justice.

We've seen this kind of approach before. The federal government justified the excesses of the McCarthy era and the Japanese internment of World War II in preventive terms. In 1951, the Supreme Court adopted that reasoning to uphold the conviction of several American Communist Party leaders for subversive speech. In Dennis v. United States, the Court reasoned that in assessing whether speech posed a "clear and present danger," courts "must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." Because the threat posed by a communist overthrow of the United States was so great, it did not matter that there was no evidence that it was likely to come to pass.

Similarly, the Court in Korematsu v. United States upheld the internment of 110,000 Japanese Americans in the absence of any actual evidence that they posed a danger, deferring instead to the military's unsupported assertions of national-security concerns. Today, Dennis is widely seen as a low point in the Court's protection of speech and its standard has been abandoned, while Korematsu is universally repudiated. Yet the Bush administration has invoked the same failed reasoning to defend both the domestic and foreign sides of its war on terrorism.

The administration's domestic and foreign-policy preventive strategies share three common features. First, they rely on double standards. Most of the government's domestic incursions on fundamental rights have been targeted at foreign nationals, including the detention of more than 5,000 noncitizens in an initial roundup immediately following September 11 and two subsequent initiatives directed at registering and deporting Arab and Muslim foreign nationals. Only one of these detainees has been convicted of any terrorist crime; nonetheless, the most sweeping campaign of ethnic profiling the country has undertaken since the Japanese internment continues. By contrast, when the government has proposed measures that would affect citizens more directly, the political process has often imposed constraints -- as when Congress last year killed post-9-11 proposals to create a national identity card and to set up "Operation TIPS," a network of 11 million citizen spies. We want prevention, it appears, only when the costs are borne by someone else.

The national-security strategy abroad is also predicated on double standards. We would not tolerate a world in which every nation that was concerned about another nation's potential threat could use that as a justification for unilateral offensive military action -- a world in which Pakistan could attack India, India attack Pakistan, Iran attack Israel and so on. And as at home, our preventive strategy abroad targets the most vulnerable. As Jonathan Schell has convincingly argued in The Nation, we attacked Iraq rather than Pakistan, North Korea, Russia or Iran, all of which pose much more serious dangers, "not because it [was] the worst proliferator, but because it [was] the weakest."

Second, the administration's strategies seek to circumvent processes designed to forestall precipitate action by requiring objective proof of wrongdoing. As the government's treatment of Zacarias Moussaoui and Jose Padilla has demonstrated, guarantees associated with the criminal process -- such as the right to a lawyer, to call witnesses and to confront the government's evidence -- are obstacles to a preventive strategy. By using noncriminal proceedings -- including immigration hearings, detention of people as material witnesses and military custody of "enemy combatants" -- the administration has denied most of its targets these basic rights. Indeed, the inspector general's recent report on the treatment of immigration detainees labeled "of interest" to the September 11 investigation makes clear that the administration's modus operandi has been to use immigration law for precisely this end.

Where the administration has resorted to the criminal process, it has generally relied on a sweeping statute that allows it to obtain convictions without proof of individual wrongdoing. Virtually every post-9-11 terrorism prosecution has included a charge under a 1996 statute making it a crime to provide "material support" to designated "terrorist organizations." Under this statute, which was hardly ever used before September 11, an individual can be convicted for providing anything of value -- from a book to his own time -- to any group designated "terrorist" in a secret administrative process. It is no defense that one's support furthered only lawful, nonviolent activity. This statute essentially resurrects "guilt by association," a tempting tool for preventive law enforcement. [See "Immaterial and Unsupportable," Alexander Gourevitch.]

The preventive national-security strategy similarly relies on shortcuts, as Bush's decision to bypass the United Nations Security Council when it would not do his bidding illustrated. And the administration's revision of the standard for going to war virtually paraphrases the Supreme Court in Dennis: "The greater the threat, the greater is the risk of inaction -- and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack."

Finally, prevention at home and abroad depends on secrecy. The government has refused to identify most of the approximately 1,200 people it arrested in the first seven weeks after September 11, and to disclose even the number of people detained since then. It tried several hundred foreign nationals in secret. And it has refused to reveal the most basic facts concerning its use of broad new surveillance powers granted it in the wake of September 11.

Secrecy has also ruled the day in foreign affairs. Throughout the run-up to the Iraq War, the administration claimed it knew the Iraqis had weapons of mass destruction and links to al-Qaeda, but simultaneously suggested that it could not reveal the evidence because that would expose critical sources of intelligence. But as months go by without finding evidence of either one, it appears that the administration exploited claims of secrecy to conceal the fact that it simply lacked solid evidence.

The reason that international and domestic laws have long rejected preventive detention and preventive war is that these three defining characteristics -- double standards, avoidance of procedural safeguards and secrecy -- are anathema to the rule of law, which depends upon consistency, procedural regularity and transparency.

Throwing off the constraints of law does not make us more secure. It undermines the legitimacy of our efforts to quell terrorism and makes it less likely that Arab and Muslim communities, the targets of our double standards, will work cooperatively with us to root out al-Qaeda enemies. And it fuels today's unprecedented anti-Americanism, which in turn supports recruitment by the other side.

Our long-term security in the world rests neither on locking up thousands of suspected terrorists who turn out to have no connection to terrorism nor on attacking countries that have not threatened to attack us. On the contrary, it lies in a commitment to fairness, justice and the rule of law. That is the only true strategy of prevention.

David Cole is a professor at Georgetown University Law Center and a lawyer with the Center for Constitutional Rights.

On the Road With Ashcroft

Attorney General John Ashcroft marked the two-year anniversary of the terrorist attacks of September 11 by launching a national publicity tour to sell Americans on the USA Patriot Act. That he felt the need to do so was itself revealing. The act is, of course, already law, and when it came to a vote just six weeks after the 9/11 attacks only a single senator (Russell Feingold) and sixty-six members of the House voted against it (even though almost no one had had time to read the 342-page bill before voting). But the act has come under increasing grassroots criticism ever since; more than 150 towns, cities and states have enacted ordinances condemning it, and the Justice Department finds itself on the defensive.

Even more telling, however, is the fact that Ashcroft's national tour will not address the public. His speaking engagements are all before closed audiences, primarily law-enforcement officers. The choice to speak to police and exclude the people captures much of the flavor of the Administration's war on terrorism: It has repeatedly sought to maximize police power while minimizing public oversight. But that tactic may be backfiring, as the American people are starting to fight back.

The Administration has done everything in its power to duck scrutiny of its actions. In the initial weeks after the attacks it arrested hundreds of people in secret, and it has continued to fight to keep their names secret, despite an Inspector General's report in June revealing that virtually all those arrested have been cleared of any connection to terrorism. It held secret trials for all those held on immigration charges and then staved off Supreme Court review of the practice, telling the Court that the trials had been completed and therefore there was no need to find whether the practice was constitutional (one court of appeals had declared it unconstitutional; another had upheld it).

The Administration has also opposed any judicial review of its detention of the more than 650 foreign nationals held incommunicado in Guantanamo Bay, Cuba, without charges, hearings or trials. And it initially argued that American citizens declared "enemy combatants" were similarly barred from seeking court review, abandoning that view only after the courts rejected it. Now it argues that the only "review" a court can exercise vis-a-vis citizens is a highly deferential perusal of a written declaration filed by a midlevel government functionary. The courts may not hear evidence from the detainee and may not look into the declaration's statements to determine whether they're true. According to the Administration, there is literally no opportunity for a person to present evidence that would prove his innocence.

The Administration has invoked a similarly one-sided process in its attacks on Muslim charities. It has frozen the assets of three of the country's largest, alleging that they have ties to terrorist groups. But when one of them -- the Holy Land Foundation -- produced evidence showing that the government's claims were false, the government moved to keep the evidence out of court, arguing that the charity had no right to present new evidence and that the court should uphold the government's actions on its evidence alone.

The Foreign Intelligence Surveillance Act (FISA), greatly expanded by the Patriot Act and heavily relied upon by the Justice Department since 9/11, is even more one-sided. It allows the government to conduct secret searches of "foreign agents" in criminal investigations without establishing probable cause of criminal activity, which the Fourth Amendment generally requires before a warrant can be issued. The fruits of these searches can be used in criminal trials, but the law does not permit those against whom the evidence is used access to the original search-warrant application, rendering illusory any review of the search's validity.

The Administration has also used less formal measures to limit review of its actions. It has moved three detained "enemy combatants" to South Carolina, attempting to insure that any legal challenges would be heard in the Fourth Circuit Court of Appeals, the nation's most conservative. It has reportedly threatened defendants with onerous sanctions, including implications that they might be declared enemy combatants. These threats have helped prosecutors secure guilty pleas and avoid trials even where defendants have strong constitutional defenses. In Lackawanna, New York, for example, six young men who had attended an Al Qaeda training camp pleaded guilty to violating a law that another court in New York has since declared unconstitutional.

So why, given this history of secrecy and obfuscation, the sudden desire to launch a publicity tour? The Administration apparently fears the tide may be turning, and there are increasing signs its concerns are warranted. A May CBS News poll found that 52 percent of Americans were "very concerned" or "somewhat concerned" about losing their civil liberties at the hands of the Administration. Democratic presidential candidates are competing over who can criticize Ashcroft more harshly. A GOP-introduced bill to repeal the Patriot Act's "sneak and peek" authority, which allows searches without prior notification of the homeowner, passed in the House 309 to 118. A House bill to protect library and bookstore records has more than 130 sponsors, and a Senate version is likely to be introduced shortly. The ACLU and the Center for Constitutional Rights recently filed lawsuits challenging the constitutionality of parts of the act, and the February leak of a Justice Department draft of "Patriot Act II" led to such widespread criticism that Ashcroft has not yet dared introduce the bill.

The Administration has also come under increasing heat for its treatment of the Guantanamo detainees. The American Bar Association has criticized hobbling restrictions on defense lawyers in the upcoming military trials, and the National Association of Criminal Defense Lawyers has gone even further, urging its members to refuse to serve in the trials. In August bar leaders from England, Canada, Scotland, Sweden, Northern Ireland, Australia, France and Wales published a joint letter condemning the planned military trials and demanding that the detainees be tried fairly in civilian courts.

Ashcroft's response? In addition to the speaking tour in which he will preach only to the converted, he has launched a website, www.lifeandliberty.gov, ostensibly designed to correct the "myths" surrounding the Patriot Act and to tout the Justice Department's "success" in the war on terrorism. But Ashcroft's defense fails to address most of what the public is worried about.

Public concern is not limited to the Patriot Act's four corners but arises from a whole range of measures this Administration has advanced, from secret detentions to ethnic profiling to "Total Information Awareness" and the "enemy combatant" designations. The Patriot Act has become shorthand for these excesses. Ashcroft's defense, however, ducks virtually all this criticism, focusing only on a handful of the act's provisions. He doesn't mention, for example, its most troubling sections, those affecting immigrants. They allow the government to exclude foreign nationals for their speech, to deport them on the basis of wholly innocent associations with any group Ashcroft blacklists and to lock them up on his say-so, without showing that they are dangerous or a flight risk (the only two constitutionally recognized justifications for preventive detention). Nor does he bother to defend a provision authorizing freezing of assets based on secret evidence. And his website makes only passing reference to the act's dramatic expansion of FISA power to authorize search warrants in criminal investigations without probable cause of criminal activity.

At the same time, Ashcroft's defense of the few provisions it chooses to address is highly misleading. In response to criticism of Section 215, for example, which allows the government to demand access to library and bookstore records without probable cause, Ashcroft claims that this authority has always been available through grand jury subpoenas. But he does not say that those subpoenas are limited to criminal investigations and are public, while Section 215 requests need have no connection whatsoever to crime and are carried out entirely in secret. He also stresses that records requests must be approved by a court upon a showing that the records are related to an investigation concerning a foreign national and, if the investigation concerns a US citizen or permanent-resident alien, that the investigation is not based solely on First Amendment-protected activities. But he fails to acknowledge that these limitations apply only to the target of the investigation and not to those whose records are sought. Once the government has a legitimate investigation under way, the act allows it to obtain library records on unlimited numbers of citizens, without making any showing that these citizens were involved in illegal activity.

Ashcroft's most questionable claim is that the Patriot Act has led to crucial successes in the war on terrorism. First, his linkage of the act to indictments he has handed down is dubious. He typically points to an indictment, asserts that it depended on cooperation among local, state and federal intelligence and law-enforcement officials, and then vaguely claims that the act broke down the "wall" that previously blocked communication between law enforcement and intelligence agencies. But with the exception of a single provision allowing prosecutors to share grand jury information with intelligence officials, the Patriot Act did not eliminate any legal "wall." As insiders have observed, the "walls" between agencies were cultural and bureaucratic, not legal, and the Administration did not need the Patriot Act to bring them down.

Second, Ashcroft greatly exaggerates his "successes." He claims to have brought 255 criminal charges in terror investigations, but the vast majority of those charges were pretextual criminal charges (like credit card fraud or lying to an FBI agent) used to justify holding people who turned out to have no connection with terrorism. Similarly, he claims to have deported 515 people in the investigation but fails to mention Justice Department policy that authorized deportation only after the FBI cleared immigrants of involvement in terrorism. To call these successes is to treat bullets that miss the target completely as bull's-eyes.

Third, and most important, Ashcroft fails to account for losses in liberty and privacy. If we were to repeal the Fourth Amendment, every police department in the country would be able to point to arrests that were made possible as a result. But to judge whether we lived in a better world for it, we'd want to know how many innocent people had been searched and how much the loss of privacy had undermined our quality of life. Ashcroft tells us only one side of the story. But there are by now thousands, mostly Arabs and Muslims, who could tell us the other side.

In the end, Ashcroft's self-promotion recalls Benjamin Constant's account of Jacobin excesses during the French Revolution: "They dreamt of nothing else but measures of public safety, great measures, masterstrokes of state; they thought themselves extraordinary geniuses because justice seemed to them a narrow preoccupation. With each political crime they committed, you could hear them proclaiming: 'once again we have saved the country!' Certainly we should have been adequately convinced by this, that a country saved every day in this manner must be a country that will soon be ruined."

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