Not Defending the Defensible
POWERS, THOMAS F.
Not Defending the Defensible The Justice Department's civil liberties record is better than it lets on. BY THOMAS F. POWERS WHAT'S THERE to say about Attorney General John Ashcroft's 16-city...
...No one who understands the logic of liberal democracy will think that civil liberties concerns (real or imagined) can long be ignored by those who govern...
...The attorney general's strategy—to talk only about security—makes defending that record impossible and, indeed, fuels suspicion that it's not being defended because it cannot be...
...Others, like federal appeals court judge Michael Chertoff, onetime head of the Justice Department's criminal division, have waded into the debate at the crucial level of the many details of the law...
...Public concern is also reflected in a grass-roots campaign involving more than 150 cities and towns (and the states of Alaska, Hawaii, and Vermont) officially critical of elements of the Patriot Act...
...The only problem is that Ashcroft seems to think that touting the contributions of American policing to domestic security will by itself alleviate anxiety about civil liberties...
...The first responsibility of government is to provide the security that preserves the lives and liberty of the people...
...The closest thing in Ashcroft's speeches to an attempt to address directly the criticisms of civil libertarians is his oft-repeated claim that the government's efforts have been carried out in accordance with the law...
...The attorney general's vision also sets the stage for an empty standoff between a camp of security and a camp of liberty that will ultimately serve no purpose other than the perceived partisan advantages of each side...
...The Bush administration has a good post-9/11 record on civil liberties, a record that it can and must defend...
...And up to now these questions have necessarily been addressed in the heat of the moment and without prolonged discussion or debate...
...In a number of speeches, most notably in his June address to the American Civil Liberties Union, FBI director Robert Mueller welcomed the opportunity to debate the many civil liberties issues that have emerged and even admitted that the debate poses hard questions...
...Civil libertarians may be wrong about the Patriot Act and about the record of American law enforcement to date, but that doesn't mean the Justice Department should ignore them...
...The central theme of Ashcroft's speeches is that the defense of America's security at home and abroad is the defense of Americans' liberties...
...And, of course, the Patriot Act has become a whipping boy for Democratic presidential candidates, though Republican politicians, too, are signaling concern...
...soil) and the legal conundrums posed by such cases...
...The standing ovation Mueller got from the ACLU is not the point of such efforts (he also faced hostile questions), but it does suggest that open debate would be a good strategy for trying to alleviate public anxiety...
...Without having to trust the other side to be fair in its criticisms (the partisan dimension of this debate need not— indeed, should not—be forgotten), the government can safely assume that by addressing its critics it begins to reassure the public at large...
...Subtler thinking is needed— because there is no magic formula for deciding what is or is not an appropriate "balance" between liberty and security...
...One problem with the original Patriot Act was that it had to be drafted and passed quickly, without a thorough debate in Congress...
...Public perception is not always a reliable guide to policy, but in the case of civil liberties it is in a way the entire point of policy...
...Wise and strong leadership in a liberal democracy necessarily means facing civil libertarian criticisms directly and clearly...
...BY THOMAS F. POWERS WHAT'S THERE to say about Attorney General John Ashcroft's 16-city speaking tour on the subject of the Patriot Act, which ended in New York two days before the second anniversary of september 11...
...After all, strictly speaking, the internment of Japanese Americans during World War II was also perfectly legal...
...Because we are safer, our liberties are more secure...
...This rhetorical strategy is both evasive and unnecessarily timid...
...And now that the president is asking Congress to broaden the powers granted by the Patriot Act, critics of the administration have their talking points handed to them on a platter...
...It is also, politically, a sure loser...
...Public perception in the current situation suggests that the strategy set forth by Ashcroft is not adequate to the task...
...In the House, 113 GOP members voted in July to block funding of some Patriot Act searches...
...Here's an opportunity to make a lasting contribution to the constitutional question of wartime civil liberties that could unite left and right in a common aim...
...More of this sort of open and public dialogue and debate by the government would go a long way to dispel civil libertarian worries...
...And reassuring the public at large is what the protection of civil liberties is all about...
...citizens captured abroad or aliens captured on U.S...
...Fortunately, there are members of the administration whose public statements suggest a different approach...
...Opinion polls show the gradual advance of civil libertarian concern among the public over the past two years...
...At any rate, the government needs to make an effort that is unmistakable and effective...
...Consistent with this message has been the choice of audiences on this tour: As his critics have pointed out, Ashcroft has taken his message to law enforcement, not to the public, and he has not been willing to answer questions from the press...
...Faced with an opportunity to defend the administration's record, amid mounting criticism, Ashcroft failed to do so...
...By staking its case on the importance of security vis-a-vis civil liberties, the government has allowed its critics to present themselves as the one and only voice for civil liberties...
...Which is true, but beside the point...
...The second observation to make is that Ashcroft's failure was largely one of rhetorical strategy, which is in a way fortunate, since that can be fixed...
...Take the response of House Judiciary Committee member John Conyers to the president's request: "We will continue to say no until Ashcroft explains why he has abused the power he already has...
...Perhaps the administration should present the current effort to stiffen anti-terrorism laws even further as precisely an opportunity to review the record to date and to clear the air...
...But to make a lasting impression, something more may be needed...
...Thomas F. Powers teaches constitutional law at the University of Minnesota, Duluth...
...This is a fundamentally negative posture and one that threatens to frame debate over the issues in an unhelpful way...
...For starters, the Bush administration continues to avoid addressing Americans' concerns about civil liberties...
...In the logic of liberal democracy, freedom is first and foremost the sense that we have nothing to fear from the government...
...Another possibility mentioned on both the left and right would be a new court to deal with terrorists (either U.S...
...By hiding behind security, the government does a disservice to its own (eminently defensible) civil liberties record since september 11...
...Freedom is thus, above all, "freedom from terrorism...
...our situation today is characterized not by any one simple civil liberties challenge or question, but by an extraordinarily complex set of questions about police powers in a time of terrorism...
Vol. 9 • September 2003 • No. 2
