The Magazine

Not Defending the Defensible

Justice's civil liberties record is better than it lets on.

Sep 22, 2003, Vol. 9, No. 02 • By THOMAS F. POWERS
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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?

For starters, the Bush administration continues to avoid addressing Americans' concerns about civil liberties. Faced with an opportunity to defend the administration's record, amid mounting criticism, Ashcroft failed to do so. 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. 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."

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. 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.

This is a fundamentally negative posture and one that threatens to frame debate over the issues in an unhelpful way. It is also, politically, a sure loser.

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. "The first responsibility of government is to provide the security that preserves the lives and liberty of the people." "Because we are safer, our liberties are more secure." Freedom is thus, above all, "freedom from terrorism." 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.

This rhetorical strategy is both evasive and unnecessarily timid. By hiding behind security, the government does a disservice to its own (eminently defensible) civil liberties record since September 11. 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 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. Which is true, but beside the point. After all, strictly speaking, the internment of Japanese Americans during World War II was also perfectly legal.

Subtler thinking is needed--because there is no magic formula for deciding what is or is not an appropriate "balance" between liberty and security. 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. And up to now these questions have necessarily been addressed in the heat of the moment and without prolonged discussion or debate.

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. 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. Wise and strong leadership in a liberal democracy necessarily means facing civil libertarian criticisms directly and clearly. 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.

And reassuring the public at large is what the protection of civil liberties is all about. In the logic of liberal democracy, freedom is first and foremost the sense that we have nothing to fear from the government. 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.

Public perception in the current situation suggests that the strategy set forth by Ashcroft is not adequate to the task. Opinion polls show the gradual advance of civil libertarian concern among the public over the past two years. 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. And, of course, the Patriot Act has become a whipping boy for Democratic presidential candidates, though Republican politicians, too, are signaling concern. In the House, 113 GOP members voted in July to block funding of some Patriot Act searches.