The Magazine

Taking Dictation from the ACLU

A case study in anti-Patriot Act propaganda.

Oct 18, 2004, Vol. 10, No. 06 • By HEATHER MAC DONALD
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THIS WAS PUREST DECEPTION. Doe v. Ashcroft did not "suggest [that] certain provisions of the Patriot Act should never have been enacted in the first place," because it did not adjudicate the Patriot Act. In fact, the decision was a rebuke to Democratic senator Patrick Leahy, who had introduced section 2709 in 1986, calling it a "clear procedure for access to telephone toll records in counterintelligence investigations." But the ACLU's press release was utterly silent about the existence of the 1986 Electronic Communications Privacy Act or section 2709's author.

And therefore, so too were the New York Times and the Washington Post the next day. Both simply repackaged the ACLU spin without any further fact-checking--and, apparently, without reading Marrero's decision. Their headlines parroted the press release: "Judge Strikes Down Section of Patriot Act Allowing Secret Subpoenas of Internet Data" (New York Times); "Key Part of Patriot Act Ruled Unconstitutional" (Washington Post). The New York Times made its ACLU-induced misreading of the decision as unambiguous as possible: The case concerned a "kind of subpoena created under the [Patriot] act, known as a national security letter," it explained.

The newspapers' only emendation of the ACLU's gloss was to strengthen the alleged anti-Patriot Act significance of the decision. The New York Times called the invalidated section of the electronic communications law an "important surveillance provision" of the Patriot Act; the Washington Post dubbed the discredited section a "key component of the USA Patriot Act" (emphasis added). This sudden significance of the NSL provision was surprising, because in all the avalanche of anti-Patriot Act propaganda that the papers had previously published in the three years before the ACLU lawsuit, the New York Times had never mentioned the national security letter amendment in the Patriot Act, and the Washington Post had done so in merest passing only six times, without ever deeming it "key."

Now, however, national security letters had become the very linchpin of the Bush administration's war on terror. The Times cited the ACLU's Anthony Romero to evaluate the ruling: "'a stunning victory against John Ashcroft's Justice Department.'" The Post quoted the ACLU's Ann Beeson: "'a wholesale refutation of the administration's use of excessive secrecy and unbridled power under the Patriot Act.'"

No other newspaper fell for the ACLU snow job as slavishly as the New York Times and the Washington Post. Every other paper managed to find out--though to varying degrees of accuracy--that national security letters did not originate with the Patriot Act. The Boston Globe, USA Today, and the Los Angeles Times all reported that a 1986 law had authorized NSLs, but they still argued that Doe v. Ashcroft was a major setback to the Patriot Act and the Bush administration.

Only the New York Times and the Washington Post, therefore, were forced to issue corrections the next day. The Washington Post's retraction was particularly grudging, conceding icily that "while the Patriot Act loosened restrictions on the use of the letters, most of U.S. District Judge Victor Marrero's ruling focuses on earlier statutes governing the letters." The Post couldn't bring itself actually to explain the significance of those "earlier statutes."

The ACLU had suddenly lost its advantage, and it went berserk. In a hilarious effort to turn the tables, it accused the Justice Department of trying to spin the decision. "ACLU Blasts Justice Department's Attempts to Manipulate Truth About Patriot Act Ruling," screamed the headline of its next press release, issued the same day as the Times's and Post's corrections. "In what appears to be a concerted campaign to mislead the American public," the release continued, "the Department of Justice and some of its Republican allies in Congress are attempting to minimize the impact of a landmark ruling this week against so-called National Security Letters." Proof of this skullduggery? An email from a Senate Republican Policy Committee analyst to Senate leaders pointing out the fact that Doe v. Ashcroft had struck down the 1986 law creating NSLs (mentioned here for the first time in ACLU publicity materials), and thus should not be regarded as a rebuke to the Patriot Act.

The ACLU declared itself shocked by such allegedly deceptive practices. Ann Beeson called the Senate email message "desperate." What was in fact desperate was the ACLU's agonized response to this unaccustomed collision with the truth: "There is no question that the court struck down a provision of the law that was dramatically expanded by the Patriot Act," it whined, in a dramatic deflation of its original claims.