So the Patriot Act imposes guilt by association, punishes speech, authorizes the use of secret evidence and allows detention without charges--yet none of that will be subject to the Patriot Act debates. Nor will the debates address the civil liberties abuses committed by US law enforcement agencies or the military outside the Patriot Act--such as the incommunicado detention, without charges or hearings, of hundreds of "enemy combatants" around the world; the use of immigration law to launch a nationwide campaign of ethnic profiling and to detain more than 5,000 foreign nationals, virtually all Arabs or Muslims, none of whom have been convicted of a terrorist crime; the development and application of computer data-mining programs that afford the government ready access to a wealth of private information about all of us without any basis for suspicion; the FBI's monitoring of public meetings and religious services without any grounds for suspecting criminal activity, under guidelines written by John Ashcroft; and, of course, the use of "coercive interrogation" to extract in-formation from suspects in the war on terror, including such tactics as "waterboarding," in which the suspect is made to fear that he is drowning.
Even with regard to the handful of Patriot Act sections that are actually being reviewed, the debate is sharply limited, and fails to confront fundamental civil liberties questions. Consider Section 218, which allows the government to obtain warrants for wiretaps and searches in criminal investigations without showing probable cause of criminal behavior, so long as the investigation also has a "significant [foreign intelligence] purpose." "Foreign intelligence" wiretap warrants have increased by 74 percent over the past four years, and now annually outstrip criminal wiretap warrants. In no other area have the courts permitted criminal search or wiretap warrants on less than probable cause of crime. Yet because the government credits this provision with collapsing "the wall" between law enforcement and intelligence agents, and everyone seems to agree that the wall was a bad thing, this section is almost certain to be made permanent.
In fact, federal law never barred intelligence agents conducting a foreign intelligence investigation from sharing evidence of crime with prosecutors. Many defendants were successfully prosecuted using information obtained during foreign intelligence searches before the Patriot Act was enacted. But the myth of "the wall" is so widely accepted that there's hardly room for disagreement.
The more fundamental myth is that "foreign intelligence" investigations are about terrorism. The government repeatedly claims, for example, that the Patriot Act merely extended to terrorism investigations various tools--such as roving wiretaps, telephone traces and document subpoenas--previously available for drug crimes. But such tools have long been available for investigation of terrorist crimes. What the Patriot Act did was to extend them to "foreign intelligence" investigations, which may have nothing whatsoever to do with terrorism or crime. A "foreign intelligence" investigation need only concern foreign-policy-related information about an agent of a foreign power--defined so broadly that it includes any foreign national employee of any organization not composed substantially of US citizens.
Thus, the Patriot Act permits tools previously limited to criminal investigations to be used to investigate, say, a British lawyer working for Amnesty International who is not suspected of any involvement in terrorism or crime. Yet no one has suggested limiting the definition of an agent of a foreign power to "terrorists and spies," the examples the government invariably uses when it defends the law.
The same point applies to Section 215, the libraries provision. The government claims that the power to demand records from libraries or other business entities established in Section 215 already existed before the Patriot Act, in the guise of a grand jury subpoena. But a grand jury subpoena is available only when the government has sufficient grounds to believe a crime has been committed to go to the trouble of empaneling a grand jury. Section 215 can be triggered without any evidence of wrongdoing whatsoever--the law would justify a search of library records to see who has checked out the same books as the Amnesty International lawyer, for example. The critical shift is from an investigation focused on crime to one focused on political activity of foreign agents. Yet critics of Section 215 have not suggested narrowing the expansive definitions of "agent of a foreign power" or "foreign intelligence," which are at the root of the problem.
So the Patriot Act debate will focus on at most a handful of provisions in a sweeping law. It will not address many of the most troubling provisions of that law, or other practices of the Administration that raise far more substantial constitutional questions. And even with respect to the few provisions that will be addressed, the most fundamental issues will be skirted. This is attributable to two factors. First, many of the most pernicious aspects of the Patriot Act, and of the "war on terror" generally, affect foreign nationals exclusively, or nearly exclusively. The act's immigration provisions haven't generated the same concern as the surveillance provisions, not because they are less problematic but because they apply only to "them," not "us." The same is true with respect to practices like torture and rendition, tactics largely reserved for foreign nationals, which have failed to generate the kind of grassroots concern that the libraries provision has.
This double standard also infects the surveillance provisions. The foreign-intelligence-gathering powers apply very differently to visiting foreign nationals (those who come to this country to work, study or visit) than to "U.S. persons" (citizens and permanent residents). In order to invoke these powers against the latter, the government must show something much closer to criminal probable cause and may not rely solely on First Amendment-protected activity. There is no logical or legal reason why a foreign student living here should have fewer privacy or speech rights than her US citizen classmate. The reason is political--it is always easier to impose such burdens on the most vulnerable.
The second reason for the inadequate debate is less deeply rooted, but no less troubling. These days it seems that the only issues on which the current national political stage offers liberals any traction are those of mutual concern to conservatives. Understanding this, the ACLU has entered into an alliance, called Patriots to Restore Checks and Balances, with conservative groups such as Grover Norquist's Americans for Tax Reform, Phyllis Schlafly's Eagle Forum and the Citizens Committee for the Right to Keep and Bear Arms. Members of the House of Representatives have similarly formed a "tripartisan" "Patriot Act Reform Caucus" featuring unlikely bedfellows Bernie Sanders, a Vermont Independent; Butch Otter, an Idaho Republican; and John Conyers, a Michigan Democrat.
In the short term, such alliances may well be necessary. It's hard to see how else to get anything done in Congress. But the cost of this compromise has been to submerge significant parts of the liberal reform agenda. The ACLU's brief on what Congress should do about the Patriot Act does not mention the immigration provisions detailed above, nor the use of secret evidence to close down charities. Material support is buried at the end of the memo. The memo does not even take on the double standard embedded in foreign intelligence law. These are not issues that conservative groups have championed, and therefore the ACLU's focus has become the conservatives' focus--the surveillance provisions that might be used against American citizens.
Balancing short-term gains against long-term costs is never easy. Were I in the ACLU's shoes, I might do the same thing. With the conservatives, liberals have a chance of achieving some reform; without them, there might well be no chance. But we should not ignore the long-term costs associated with such an approach--we reinforce the notion that the rights conservatives care about are somehow more important.
A more promising strategy for the long haul, particularly given the anti-alien character of so many initiatives in the war on terror, would be to emphasize a human rights approach. Human rights, after all, are owed to every person, by virtue of their human dignity, irrespective of the passport they carry. As a strategic matter, human rights campaigns can tap into the power of world opinion and bring it to bear at home, especially when the United States selectively abuses the rights of other countries' nationals. By shrinking the world, the Internet has made international mobilization far more efficient and effective. Such a human rights strategy has proved particularly successful, for example, with respect to Guantánamo Bay, where the Bush Administration has been forced from confident assertions of literally unchecked power to a search for a face-saving exit strategy. Critical voices from abroad, especially Europe, mobilized by human rights concerns, created pressure that forced the Administration to negotiate and likely led the Supreme Court to take the legal challenges more seriously than it otherwise would.
One of my favorite postelection maps showed the United States divided along the traditional, and increasingly ossified, red and blue state lines. But it was a map of the world, not only of the United States--and the rest of the world was blue. That may not be entirely accurate, but it does suggest that we might find more fruitful allies by appealing to international human rights and principles of human dignity than by joining forces with progun, antitax conservatives.
