John Ashcroft and the War on Terror

Orin Kerr has some comments, bouncing off an article in the Washington Post.

I've long thought that Ashcroft was a misunderstood figure. One interesting example is the drubbing Ashcroft received for the following statement from December 2001, responding to critics of the Patriot Act:

[T]o those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve[.]

The media was completely clueless about what Ashcroft meant by this, and most people simply assumed that he meant that making civil libertarian objections to Bush Administration practices helped terrorists. I always thought Ashcroft meant something dramatically different. When Ashcroft made those remarks, in December 2001, he knew something that most people didn't: many criticisms of the Patriot Act had been surprisingly dishonest. It was embarrassingly common for critics of the legislation to make bogus claims about what the Patriot Act did. (Why that happened is a really interesting question; I haven't seen anything like it before or since.)

Ashcroft must have been deeply annoyed by this, because it was creating a false impression both within the U.S. and abroad that the government had responded to 9/11 by imposing a police state. So Ashcroft criticized those who were trying to scare people with bogus claims of lost rights -- that is, illusions of lost liberty, or, to coin a phrase, "phantoms of lost liberty." But the press and the public didn't understand what Ashcroft meant, so his language was completely misunderstood.

The patriot act

A selection of articles that turned up at a Townhall search on "Patriot Act"...

Three Cheers for the Patriot Act

The 9/11 Commission has revealed another zealot who supports the dreaded USA Patriot Act, insisting that "everything that's been done in the Patriot Act has been helpful." Not a few things. Not even most things. "Everything." Who is this thoughtless pawn of John Ashcroft? None other than former Clinton Attorney General Janet Reno.

Preserve the Patriot Act

That would be particularly true if the Patriot Act’s most vociferous critics on the Left and their less numerous (and most unlikely) bedfellows on the Right were to have their way. They have tended to characterize the Act as an assault on the basic freedoms enshrined in the Bill of Rights and have sought far-reaching changes in the tools it provides law enforcement to detect and prevent terrorist plots inside the United States.

In reality, the Patriot Act is an eminently sensible overhaul of the government’s antiquated counter-terror arsenal, an overhaul that reflects the realization that we cannot hope to fight a 21st century war using 20th century legal instruments. Consider two of its elements whose repeal the critics have most insistently demanded: 1) the so-called “library records” provision (Section 215) and 2) the authorization of what have been derided as “sneak-and-peek” search warrants (Sec. 213).

Overblown fears about the Patriot Act

...terrorists can't be rooted out unless investigators have the means to find them. And for years, federal agents were barred from using tools in counterterrorism work that were readily available to agents pursuing gangsters or drug dealers. Nor could investigators hunting terrorists swap potentially useful information with criminal investigators -- an intelligence "wall" that helps explain the government's failure to expose the 9/11 plot before it was carried out.

The Patriot Act was designed, among other things, to plug those gaping holes. The wisdom of doing so is suggested by the fact that Al Qaeda has not managed to pull off another attack on US soil. The fears some expressed when the law was first enacted -- that it would trigger a wave of repression, that domestic dissenters would be silenced -- turned out to be groundless. If anything, the Patriot Act should be more popular today than when it was passed by a nearly unanimous Congress in 2001.

Checking out the Patriot Act

But while the Patriot Act gives the government important?and limited?new powers, it?s actually being applied only rarely. For example, despite all the complaints from librarians, Attorney General John Ashcroft announced last fall that the federal government has never used Section 215 to search library records. Not once. It?s difficult to understand how Section 215 could be considered abusive of rights when it?s never been used.

But instead of being glad that the law is being judiciously applied, the American Library Association?s executive director said that the lack of warrants proves the law isn?t needed. ?They have demonstrated that there is no need to change the tradition of protecting library patrons? reading records,? Emily Sheketoff sniffed.

Wrong. What the federal government has actually done is prove that it won?t abuse Section 215. But the fact it?s never been used doesn?t prove it?s not needed. As in the Moussaoui case, there may well come a time when we need information, and we?ll be glad we can get it with a judge?s warrant.

We should keep a careful eye out to make sure the Patriot Act isn?t abused, just as we should keep a careful eye on everything the federal government does. But many librarians are stressing out over nothing. Next time, they should do a little research before they get worked up over a sensible reform.

PATRIOT Act and the "message" problem

The USA PATRIOT act of 2001 is crucial for the war on terror. The bill is long. You can read the whole thing at the Cato institute, if you have an iron will. And you should read it. But, if you are a conservative, you have long recognized that the PATRIOT act is a hard sell. The tools that are provided by this legislation are of the sort that make a small-government conservative squirm.

Um...OK, if you say so.

With a heavy dose of irony, Noemie Emery observes the effect of Karl Rove's machinations behind the scenes. Buried in the middle of this piece is a single money graf.

Bush now has three gifts: (l) he has an out, in case there's another attack on the homeland (he tried, but his hands were tied by the Times and the Democrats); (2) he has still more sound bites--"We killed the Patriot Act!"--to add the pile that he had already, and (3), he has the chance to draw still more distinctions between the party of force and of public security; and the party that nitpicks, that is too legalistic, and that somehow always gives the benefit of the doubt to the criminal and/or the accused. In a showdown like this, put your cash on the party of force and security. Willie Horton was not a play on the race card, but a metaphor for the larger use-of-force issue. Does anyone doubt that if Dukakis were president when Saddam Hussein crossed the border, Kuwait and perhaps Saudi Arabia would be permanent parts of Iraq? Remember the Homeland Security Act in the 2002 midterms?

Say what you will about the piece as a whole (I think it's not really up to the usual – or even the Weekly – standard), actions have consequences, and these three items are reasonably foreseeable consequences of the whole to-do over "domestic spying".

I think the Democrats are in gote.

Patriot act abuses

The Los Angeles times has some numbers for the claimed and actual abuses inflicted on our civil liberties under the Patriot Act.

Item	Number	Percentage of civil rights complaints
Civil Rights complaints to Justice Department's Inspector General	7,136	100%
Number of complaints deemed related to Patriot Act	1	0.014%
"Sneak and peek" warrants, allowing searches without telling a subject	155	2.17%
Roving wiretaps	49	0.69%
Personal records seizures under Section 215 of the act:	35	0.49%

How bad theories kill

Thomas Sowell looks at some examples of how a bad theory can kill you.

The disappearance of an American teenager in Aruba has been more than a tragedy for her and for her family. It is the latest of many tragedies to strike trusting people who have long been sheltered from dangers and who have acted as if there were no dangers.

Reality: there are dangerous places in the world, peopled by dangerous people who don't care about your civilized sensibilities. Theory: the world is safe.

Theory works fine, as long as you stay in certain regions of the globe. If you wander into one of these areas where the theory doesn't match reality, you can get in serious trouble.

It looks like someone did.

...continued in full post...

Not only individuals but whole nations have lost their sense of danger after having been protected from those dangers.

Sowell cites polio, cases of which decreased sharply after a vaccine was developed. When people theorized that polio had been eliminated, they quit taking the vaccine, and cases increased. And this fallacy, the belief that because a danger never (or rarely) manifests, it must be inherently rare, shows up in lots of places.

The kind of thinking involved in the polio fallacy has appeared in many other contexts. When some public disorder gets underway and a massive arrival of police on the scene brings everything under control immediately, many in the media and in politics deplore such "over-reaction" on the part of the police to a minor disturbance. It never occurs to such people that it was precisely the arrival of huge numbers of cops on the scene that brought the disturbance to a screeching halt without having to use force.

And so we get to a current issue:

The latest version of the polio fallacy is the demonizing of the Patriot Act. Some people are yelling louder than ever that they have been silenced, that we have had our freedom destroyed, all as a result of the Patriot Act.

Santayana once said, "Those who cannot remember the past are condemned to repeat it." Do you want to be in the vicinity of the slow learners?

Wolf?

Hand-wringing continues over the Patriot Act. To hear people complaining, or to read the e-mails from moveon.org, we're all about to be herded into concentration camps.

The Senate Judiciary committee is preparing to hear testimony about the dangers of this act. Hopefully, this will be an honest evaluation. One will be useful, because a fair amount of misinformation has made it into the public meme pool.

Last fall, just weeks before the presidential election, we even witnessed false reports in newspapers across the country that a federal court had struck down parts of the act as unconstitutional.

In addition, those who cite various dire consequences of the Patriot Act can never seem to cite the provisions that enable them, or cases where such abuses have occurred.

False reports and scare tactics serve no legitimate cause and greatly disserve the American people. Whenever real civil-liberties problems do arise, we must learn about them right away, so that we can fix them swiftly. It is for precisely this reason that I have long been concerned about false allegations of civil-rights deprivations. Every false allegation undermines every true one, and that hurts us all. After all, scaring people about false civil-rights deprivations unnecessarily divides our nation and makes no one safer. If anything, false claims about civil liberties actually make it harder to monitor real civil liberties issues in the future — for the same reason that eventually no one listened to the fabled little boy who kept "crying wolf."

This is a worthy concern. False alarms will undermine any security program. Indeed, I've linked to articles (courtesy of Bruce Schneier) making the case that all the new security protocols implemented in airports and elsewhere fail every time they catch someone carrying a nail trimmer or a poppy-seed muffin. This is a false positive which wastes time and resources, undermines confidence in any positive response from the system, and eats away at the public's ability to tolerate the system.

Oppressive anti-terrorist laws

Orin Kerr, of The Volokh Conspiracy, notes the powers French law enforcement authorities have for the fight against terrorism.

Public debates about the war on terrorism are filled with lots of delicious ironies. The fact that the French government has many powers that are orders of magnitude greater than anything in the Patriot Act surely ranks up as one of the better ones.

Maybe those who object to the Patriot act should be given the option of treatment under the French codes.

Patriot Act – one perspective

A lawyer's take on the Patriot act. He doesn't think it's as bad as the ACLU does.