Attila the Pundit

Attack of the Killer Patriot Act from 20,000 Fathoms

Over on The Improvist's blog, I've been making some comments about whether the Patriot Act is really such a big threat to civil liberties as some people are claiming. In response to my comments, Dan Brian (who owns that blog) suggested that I might start a "general rebuff of critics" of the Patriot Act by responding to an article called "Ashcroft's Assault," written by Ralph G. Neas, president of People For the American Way.

What follows is my "fisking" of the article.

As America marks the second anniversary of the terrorist attacks that brought vast changes in our idea of national security, it is important to remember those who lost their lives on that fateful day, and to remind ourselves of the dangers that face us now and in the years ahead. Our nation must have all the tools it needs to fight terrorism while protecting the promise of freedom for our citizens and visitors. To that end, it is absolutely crucial that America’s campaign to protect our security be overseen by an attorney general who can both stand up to terrorism and stand up for the Constitution.

So far, there is little to dispute in what Mr. Neas has written. But I'm sure the evil Patriot Act will soon make an appearance.

Instead, the worst fears of constitutional and civil rights advocates raised after John Ashcroft was named as attorney general in December 2000 have come true. His actions immediately following the 9/11 attacks added fuel to that fire, as the Justice Department seemed to act with little regard for civil liberties.

Ah, now we're getting somewhere. Ashcroft's Justice Departmen now acts with little regard for civil liberties. I assume this means criminal defendants are no longer allowed legal representation, the writ of habeas corpus has been suspended, there are no more jury trials, Assemblies of God is the established religion of the United States, troops are being quartered in private homes, newspapers are not allowed to print anything derogatory about Republicans, blacks and women no longer have the right to vote... Or is it possible that most of our civil liberties are still intact? To say that the Justice Department has little regard for civil liberties is an obvious exaggeration. Still no mention of the Patriot Act, but I assume that's coming up soon.

It is clear that, rather than disproving the predictions of civil liberties advocates by enforcing our country’s laws in a balanced and careful manner, Ashcroft’s Justice Department has become the embodiment of some of the most extreme elements of the right-wing agenda. Ashcroft has sought to undermine existing law on a broad range of issues, such as civil rights, affirmative action and immigration. For example, despite previous support for the University of Michigan's affirmative action plan, the Justice Department filed an amicus brief opposing affirmative action in this year's Supreme Court case. Reports indicate that ultra-conservatives in the Justice Department urged the administration to take an even more aggressive stance opposing affirmative action.

Oh, I see. Opposition to affirmative action = opposition to civil liberties. Isn't it possible that some people might genuinely believe that granting preferential treatment based on race is a violation of civil liberties? (Did the Patriot Act oppose affirmative action? Oh, wait, we're not to that yet.)

Prosecutions under Title VII of the Civil Rights Act, which prohibits employment discrimination in the public sector based on race, gender, religion or national origin, are down drastically compared to previous years. During the last five presidential terms, the Justice Department filed between 12 and 14 Title VII prosecutions each year. At Ashcroft's Justice Department, these cases, which are a cornerstone of civil rights litigation, have fallen to a rate of three prosecutions per year.

So, during the last five presidential terms, the problem of discrimination has remained constant? Despite all the laws, all the efforts that have been made to end discrimination, it did not diminish at all over twenty years? (And, if Title VII truly prohibits employment discrimination based on race, wouldn't that prohibit affirmative action? And, as we know, opposition to affirmative action = opposition to civil liberties.)

It sure seems strange to claim progress in civil rights is made by maintaining a steady rate of prosecutions. Shouldn't we be hoping for the day when we don't need to prosecute anybody for discrimination? (Maybe we could prosecute them under the Patriot Act? No, not there yet.)

Ashcroft’s operation of the Justice Department demonstrates an unacceptable willingness to use his position to further his personal, political and other views.

If this is true, it's not a good thing at all. As a member of Bush's cabinet, he should be furthering Bush's views, not his own.

This is evidenced by his role in the Bush administration's campaign to pack the federal judiciary with right-wing judges whose views are far from the mainstream of legal thought,

Oh, so he is furthering Bush's views. But is Mr. Neas saying that the Justice Department should never help a President get his judicial nominees confirmed? Or is it just right-wing ones? Somehow, I get the impression that liberal nominees "whose views are far from the mainstream of legal thought" would not arouse much opposition from Mr. Neas. This is politics, pure and simple. Nothing to do with civil liberties. (And still no Patriot Act.)

attacks on the First Amendment in the ongoing battle over medical marijuana,

No idea what this is about. In any case, unrelated to the Patriot Act, which is what I hope we're eventually getting to.

the unprecedented filing of briefs by the Justice Department in support of religious organizations that seek to proselytize in public elementary schools,

Under the Patriot Act? No? OK, then let's move on.

and his dogged pursuit of the federal death penalty against the recommendations of career federal prosecutors.

Still not the Patriot Act, but since I actually know something about this... Is the death penalty itself a violation of civil liberties? The Supreme Court (and the Constitution itself) says no. Has Ashcroft changed the death penalty law? No. All Ashcroft is doing is pursuing the death penalty in cases where it is authorized by law. How is this an attack on civil liberties?

Of his activities, none has been more pernicious than Ashcroft’s assault on the protections guaranteed by the Fourth, Fifth and Sixth Amendments under the banner of combating terrorism. During his watch as the country’s highest law enforcement officer and the first face of Bush’s "war on terrorism," Ashcroft has arrested and locked up hundreds of individuals, most of whom have been held for weeks or months without charges and in some cases, according to critics, whose only identifiable connection to any terrorist organization appears to lie in the color of their skin, their religious affiliation or the origin of their ancestors.

Now we're getting somewhere. Locking people up and holding them for weeks or months definitely sounds like a potential civil liberties problem. Let's hear more about this.

In a stunning indictment, the Justice Department’s Inspector General

Just for the sake of consistency, shouldn't that be "Ashcroft's Justice Department's Inspector General?"

found that Ashcroft’s classification process of designating alien detainees as "high interest," "of interest" or "of undetermined interest" -- the primary factor used in determining whether a person was held in a high-security federal prison or an INS detention facility -- was seriously flawed and randomly applied.

I don't believe it. Ashcroft's Justice Department, the department with little regard for civil liberties, criticized Ashcroft's classification? How is that possible?

The inspector general criticized the process, describing it as "indiscriminate and haphazard" and finding that many of the 750 immigrant detainees were wrongfully designated as "high interest," "of interest," or "of undetermined interest" when they "had no connection to terrorism." Eighty-four men arbitrarily classified as people of "high interest" in the FBI investigation were jailed at the Metropolitan Detention Center in New York between September 14, 2001, and August 27, 2002, and were subject to what the inspector general’s report called a "pattern of physical and verbal abuse."

OK, if this is true -- and according to John Ashcroft's Justice Department, it is -- then it seems there were some violations of civil liberties.

So, which provision of the Patriot Act was this done under?

Here's a link to the Patriot Act, which was passed by overwhelming majorities of both houses of Congress on October 24, 2001.

Forty days after the detentions started.
That is one powerful law. It started hurting civil liberties more than a month before it was passed! More than two weeks before either of the bills it was based on were even introduced!

So, if the detentions weren't done under the Patriot Act, what were they done under? Pre-existing law.

All of the people who were detained were violating U.S. immigration law. (Funny -- Mr. Neas mentioned that they were immigrants, but forgot to mention that they were all violating immigration law. Not that it justifies physical abuse, but it certainly makes the detention more understandable.)

OK, so maybe the detentions were first made under pre-existing law. But the Patriot Act must have extended the detentions, right?

Wrong. In fact, under Section 412 of the Patriot Act, suspected terrorists who are detained under the Patriot Act must be either charged or have removal proceedings instituted against them within seven days. Otherwise, they must be released. In fact, the Lawyers Committee for Human Rights put out a press release criticizing the Justice Department for avoiding these requirements of the Patriot Act.

I'm sure the 750+ detain illegal immigrants wish they were being detained under the Patriot Act. Any civil liberties problems they have don't come from the Patriot Act.

Could that be why Mr. Neas still hasn't mentioned the Patriot Act?

Until recently, Ashcroft and the Bush administration were able to distract the American public from his overly aggressive investigative and enforcement policies by fiercely maintaining a shroud of secrecy, and fostering a climate of fear. Americans were kept so preoccupied by the varying shades of domestic terror alerts and by our increasing international activities that the farreaching effects of Ashcroft’s actions had been largely overlooked. Now, however, communities across the 50 states have come to understand the reality behind the smoke and mirrors: that the impact of Ashcroft’s actions on this country’s most basic rights in the name of conducting a war on terrorism has been devastating.

Yes, devastating: criminal defendants are no longer allowed legal representation, the writ of habeas corpus has been suspended, there are no more jury trials, Assemblies of God is the established... But I've done that already.

A broad spectrum of public servants, public interest organizations and citizens have increasingly voiced their complaints about the attorney general and the administration’s tactics, demanding that in their efforts to protect this nation they do not undermine the most basic principles upon which it is founded. The second anniversary of the tragic attacks on our nation on 9/11 is a time to recall with pride the heroism of so many, to remember sadly the fates of innocent victims, and to remind ourselves of the security dangers that America faces in the 21st century. It is also a time to rededicate our country to the values that we stand for and that distinguish us as a nation, and to reject improper assaults on those values in the name of security. Unfortunately, rather than leading us in that rededication, Ashcroft has led us in the opposite direction. In his actions in the name of the war on terrorism and his troubling civil rights and civil liberties record, Attorney General Ashcroft has undermined key American precepts and values.

Did I miss where he talked about the Patriot Act?

As you can see, this article really had nothing to do with the Patriot Act. Yet Dan seemed to think it did. Why is that? Because the Patriot Act provides a convenient focus for those who oppose the administrations conduct of the war against terrorism. Therefore, anything bad that happen with regard to civil liberties tends to get blamed on the Patriot Act -- even if the Patriot Act has nothing to do with it.

Now, in this post I haven't dealt with Dan's major Patriot Act concerns, which have to do with privacy. I'll deal with those in a future post.

[UPDATE: The context in which Dan linked to the article made it seem like he thought it was a criticism of the Patriot Act, but that was a mistake. He meant to refer to it as a more general assault on Ashcroft. This was written before he explained that.]