Nick Gillespie on C-SPAN, Way Too Early (8AM ET) on Jan. 1
2006
When Patriots Dissent
Surprise: Standing up to the PATRIOT Act can be good
politics.
David Weigel
http://www.reason.com/0511/fe.dw.when.shtml
If you asked the Republicans in 2004, Sen. Russ Feingold was
a slow-moving target painting himself ever-brighter shades
of red. The Wisconsin Democrat, who had barely won his last
election with 51 percent of the vote, was running for
re-election in a year the GOP would be marshalling all its
forces to win the state for George W. Bush. Republicans had
dislodged a number of Democrats in other states by casting
them as weak-kneed in the war on terrorism. Feingold was the
easiest mark yet: the only member of the United States
Senate who had voted against the PATRIOT Act.
A year before the election, Republican National Committee
Chairman Ed Gillespie (no relation to Reason Editor-in-Chief
Nick Gillespie) crowed that the party would make use of that
vote in its campaign to take Wisconsin for the first time
since 1984. Republican Senate candidate Tim Michels, a
former airborne ranger and well-heeled construction mogul,
grabbed the PATRIOT Act issue with both hands. One of his
first television ads slammed Feingold for putting “his
liberal ideology before our safety.” Another spot, aired
before the Republican primary, used footage of the 9/11
attacks. As smoke billowed out of the World Trade Center, a
sad-voiced narrator told viewers that “our leaders passed
new laws to keep us safe. But Russ Feingold voted against
those laws.”
Michels destroyed three opponents in the September primary,
and Gillespie came to Milwaukee to boost his campaign,
telling the media that Feingold was “eminently beatable.”
Michels then hammered the PATRIOT theme in two new ads. One
showed video of the smoking Pentagon, with a voiceover
declaring, “Ninety-eight senators vote to pass the PATRIOT
Act. One senator votes no.” Another ad pumped up the drama,
showing a menacing Middle Eastern actor stalking over some
Wisconsin hills before opening up a spy kit and taking
pictures of a nuclear power plant. Michels himself then
appeared on screen. “Unlike Russ Feingold,” he said, “I will
support renewing the PATRIOT Act, because we need to be able
to track and stop terrorists before they strike again.”
According to Michels, these commercials consumed around a
fifth of his ad budget. They fell flat. Michels failed to
make up a gap in the polls, and in mid-October the
Republican National Committee cancelled a major purchase of
TV commercials. On Election Day, as John Kerry was carrying
Wisconsin by barely 10,000 votes and Democrats were losing
four Senate seats nationwide, Feingold won his biggest
victory ever, trouncing Michels by 11 percentage points and
330,000 ballots. Not only had his vote against the PATRIOT
Act not damaged Feingold; by all appearances it had made him
stronger.
“We knew this was an issue that Republicans would use,” says
George Aldrich, Feingold’s campaign manager, who started
laying the campaign’s groundwork in early 2003. “Very early
on we saw this was an issue that Russ Feingold would be seen
favorably on. Russ has listening tours across the state. He
holds these meetings in every county, and what he was
hearing was that people agreed with his vote. The more
people heard about the PATRIOT Act, the more skeptical they
were.”
Today, back at his construction company, Michels says he
“ran into no voters that were not concerned about
terrorism,” and that “my point was that the PATRIOT Act is a
tool that history has proven has not been abused.” But by
the end of 2004 this was becoming a minority view. At a time
when terrorism fears run high and Republicans have won
elections on national security bluster, the PATRIOT Act is
less and less popular among voters and politicians, becoming
the most galvanizing legislation for civil liberties
activists since the Sedition Act of 1918. The movement
against it has grown from a smattering of city council
resolutions to a powerful political coalition.
The law’s defenders are active as well, and so far they have
successfully resisted the most serious efforts to roll back
the government’s PATRIOT Act powers. But stances like
Feingold’s have proven surprisingly popular with the public.
Politicians who have attacked the act are getting re-elected
or seeking higher offices; Republicans who assumed voters
would be easily swayed by rhetoric like Michels’ have
learned a hard lesson. In part, that’s because the issue has
transcended typical right-left politics. Some of the act’s
most influential opponents are very conservative people in
very red states.
How a Bad Bill Becomes Law
Six weeks after 9/11, following very little debate, the USA
PATRIOT Act was approved by a vote of 357 to 66 in the House
of Representatives and 98 to Feingold’s 1 in the Senate. At
the time, Congress was willing to give law enforcement
agencies almost any power, and voters were willing to let
them. A Los Angeles Times poll taken September 13 and 14,
2001, found 61 percent of Americans believed they’d need to
“give up some civil liberties” in order to confront
terrorism. Democratic and Republican leaders pushed their
parties to a quick “yea” vote over the qualms of a few
liberals and libertarians. According to Idaho state Rep. Tom
Trail (R-Moscow), Republican Idaho congressman Butch Otter
wanted to argue against the act, but party whip Tom DeLay
“would not give him two minutes, and said if he spoke
against it he would never win another office.” Otter, Ohio
Rep. Bob Ney, and Texas Rep. Ron Paul were the only
Republicans to vote against the act, even though it was
immediately clear that many members of Congress hadn’t even
read the bill, a casserole of post-9/11 demands from the
administration and pre-9/11 wish list items from the FBI
that had been turned down in previous bills.
There were several apparently unconstitutional measures in
the legislation’s 400-odd pages. Section 412 allowed non-U.S.
citizens to be detained for a week without charge and for an
indefinite period between charging and trial. Section 215
sidestepped the Fourth Amendment by allowing law enforcement
to seize “any tangible things” deemed to be part of an
investigation “to protect against international terrorism or
clandestine intelligence activities.” Section 505 authorized
administrative subpoenas of personal records without
probable cause or judicial oversight. Sections 411 and 802,
if read broadly, seemed to imply that political dissent
could be considered “domestic terrorism.”
With terrorism still a kitchen table issue so soon after
9/11, the act was widely discussed and downloaded, and
rumors quickly spread about the scope of this thing the
president had just signed. By January 2002, a Gallup poll
found only 47 percent of people agreeing that “the
government should take all steps necessary to prevent
additional acts of terrorism in the U.S. even if it means
your basic civil liberties would be violated.” That fell to
40 percent in June and 33 percent in September; by 2003 it
had settled to around 30 percent, where it has remained.
The Justice Department recognized it had a public relations
problem. On August 6, 2003, it announced that Attorney
General John Ashcroft would conduct a national speaking tour
to promote the PATRIOT Act and drum up support for another
expansion of government power, the VICTORY Act. It was a
complete disaster. Invitation-only Ashcroft appearances were
picketed by hundreds or, in New York, thousands of people.
The Justice Department’s pro-PATRIOT Web site,
LifeandLiberty.gov, didn’t even list the stops on the tour.
Rep. Otter told the St. Louis Post-Dispatch: “It was not a
big issue to [constituents] until Mr. Ashcroft started his
campaign. Before, I felt like a big old tree falling in the
wilderness. Suddenly, it brought a lot of attention to what
the PATRIOT Act was, and now I’m finding overwhelming
support [against it].”
Prairie Fire
A few weeks after the PATRIOT Act passed, a small group of
liberal activists in Northampton, Massachusetts, founded the
Bill of Rights Defense Committee. It was the sort of group
you would expect to find in the hometown of Smith College:
Its early membership included Nancy Talanian, a longtime
anti-apartheid activist, and Bill Newman, an American Civil
Liberties Union activist. In addition to personal and
foundation donations, the group earned money by selling Bill
of Rights get-well cards with a cartoon of the Constitution
laid up and sucking a thermometer. The group’s mission was
to launch a citizens’ movement against the PATRIOT Act.
“The concept,” says Talanian, “was if you have a few people
and have them calling their congressmen, it won’t have the
same effect as communities educating themselves and
appealing to local legislatures.” Groups in Northampton and
other small Massachusetts cities—Leverett, Cambridge,
Amherst—pressed their city councils to pass resolutions
decrying the PATRIOT Act. At the same time, the City Council
of Ann Arbor, home of the University of Michigan, was
circulating its own anti-PATRIOT resolution. On January 7,
2002, it became the first municipal government to pass a
resolution against the law.
This didn’t have much national impact. Ann Arbor, after all,
was a liberal town whose other resolutions included a
measure demanding “action regarding genetic engineering in
food and agriculture.” But on March 18, the Denver City
Council took up a PATRIOT Act resolution, and after two
hours of debate, it passed by a vote of 7 to 4. The city’s
Democratic mayor, Wellington Webb, signed onto a statement
demanding that the war on terror “not be waged at the
expense of essential civil rights and liberties of the
people of Denver and the United States.”
Local media were aghast. The Denver Post’s editorial board
called the vote “pernicious,” and Councilman Charlie Brown,
who voted against the resolution, wrote a column calling it
“a shame and a sham.” Local radio host Mike Rosen blustered
that “the ACLU will applaud Denver officials for their
uncompromising dedication to civil rights. So will
terrorists. Most of the rest of America will think we’re
idiots.” But similar resolutions kept passing in towns
across the country. In April 2003, Hawaii became the first
state to pass an anti-PATRIOT resolution. During the
Ashcroft tour the Bill of Rights Defense Committee recorded
a huge wave of activity, as 29 cities passed resolutions and
nearly 100 local chapters sprung to life.
In February 2004 the movement made its biggest splash when
the New York City Council passed an anti-PATRIOT resolution
by a voice vote. Bill Perkins, the Harlem Democrat who
sponsored the resolution, says it took a long time for the
council to consider the action. “It was challenging in the
sense that we were the target of terrorism,” says Perkins.
“I lost a member of my family on 9/11, a cousin. But in the
name of patriotism, we were being bamboozled. It did not
protect us. It seemed to be an attack on the patriots.”
The measure didn’t pass until after months of community
forums and publicity about what the PATRIOT Act contained.
“Once people got to understand what it was,” Perkins says,
“my constituents were appreciative, and even conservatives
were appreciative.”
New York, of course, has a liberal city council. The most
surprising anti–PATRIOT Act resolution came more than a year
later, in March 2005, when the Idaho state legislature—85
percent Republican—unanimously approved a measure asking
Congress to amend the Act so “that it does not unnecessarily
compromise essential liberties of the citizens of the United
States.” According to state Rep. Tom Trail, a sponsor of the
resolution, two factors fanned the state’s skepticism toward
the law. The first factor was U.S. Rep. Butch Otter, who
spoke against it across the state, both alone and in joint
appearances with the Idaho ACLU, and “changed a lot of
minds.” The second was Sami Omar Al-Hussayen.
Al-Hussayen was a Ph.D. candidate at the University of
Idaho, a native Saudi who lived in the United States for
nine years studying computer science. In February 2003 the
FBI raided his home; he was charged with three counts of
terrorism, four counts of making false statements, and seven
counts of visa fraud. He had helped design a Web site for
the Islamic Assembly of North America, which the government
said promoted “radical Islamic ideology.” Such work was
prohibited by a PATRIOT Act provision that made it a crime
to give “expert advice or assistance” to foreign terrorist
groups. As Idaho watched, al-Hussayen spent a year in prison
while the government built a case. At his trial the
government insinuated terror ties based on al-Hussayen’s
computer records, and al-Hussayen’s attorneys argued that
the “expert advice” provision violated the First Amendment.
In June 2004 al-Hussayen was acquitted of all terrorism
charges.
Local opinion about the PATRIOT Act soured throughout this
period. Attorney General Ashcroft hyped the case, calling
al-Hussayen part of “a terrorist threat to Americans that is
fanatical, and it is fierce,” which didn’t comport with
local sentiment regarding the suspect and his family. Jurors
told the Idaho Statesman newspaper that they balked at the
government’s case because it violated al-Hussayen’s First
Amendment rights.
The case “really got the community concerned,” says Trail.
Boise and Moscow, where the University of Idaho is located,
both passed resolutions against the PATRIOT Act as Trail
built support for his own statewide bill. After it passed,
Trail says he got nothing but compliments. “It goes back to
that there is a very strong libertarian, constitutional
concern among our citizens,” Trail says. “To protect our
civil rights [and] the Constitution overrides pressure from
the president or from the national leadership of the
Republican Party.”
What happened in Idaho was just the most vivid example of
how public support for the PATRIOT Act can go wobbly.
Activists have publicized the use of the law’s most
controversial sections, which allow sneak-and-peek searches
(that is, searches conducted without notifying the targets)
and government inspection of bank, library, and other
records. (As of January 2005 there had been 155
sneaks-and-peeks, and as of April there had been 35 record
inspections—all in banks.) This kind of information has
taken a toll, and so has the use of the PATRIOT Act to chase
ordinary crimes and to prosecute people based on tenuous
leaks to terrorism. After the al-Hussayen verdict,
Georgetown University law professor David Cole told the Los
Angeles Times the case was a very useful illustration of
PATRIOT Act abuse. “When President Bush and Dick Cheney say,
‘You have not shown me a single abuse of the Patriot Act,’ ”
he said, “I think people can now say, ‘Look at the Sami Omar
Al-Hussayen case.’ ”
Local anti-PATRIOT resolutions have proven popular, with
some politicians who endorsed them gathering momentum to win
higher office. New York City Councilman Perkins is a leading
candidate for Manhattan Borough president, and Butch Otter
is expected to be elected governor of Idaho in 2006. At the
same time, the body that so lopsidedly voted for the PATRIOT
Act in 2001 is bucking pressure from the Bush administration
by voting to scale it back.
Storming Capitol Hill
There was always a constituency in Congress for reforming
the PATRIOT Act among those legislators who had wanted more
time to debate the bill but hadn’t dared to vote against it.
Their numbers reportedly grew after John Ashcroft appeared
before the Senate in December 2001 and angrily denounced
criticism of the Justice Department. “To those who scare
peace-loving people with phantoms of lost liberty,” Ashcroft
famously said, “my message is this: Your tactics only aid
terrorists, for they erode our national unity and diminish
our resolve. They give ammunition to America’s enemies and
pause to America’s friends.”
“My sense is there was some outrage and umbrage at that,”
says Lisa Graves, a staffer on the Senate Judiciary
Committee who in 2005 became the ACLU’s counsel for
legislative strategy. “This idea t