The Magazine

The Patriot Act's Surprising Defenders

From the November 3, 2003 issue: Joe Biden and Dianne Feinstein step up to the plate.

Nov 3, 2003, Vol. 9, No. 08 • By DAVID TELL, FOR THE EDITORS
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IT WAS A TOUGH AND TRICKY CROWD. When Joe Lieberman took the stage, on October 17, and politely reaffirmed his commitment to the security of a Jewish state in Israel, he was booed and heckled for it. Yet the next day, when it was his turn to address the Dearborn, Michigan, candidates' forum sponsored by James Zogby's Arab American Institute, Howard Dean went over like gangbusters. Not because his message on the Middle East was so much better received, mind you. Dean's condemnation of deliberate, violent assaults on civilian innocents--"the vast majority of Arab Americans and Arabs in general do not think that terrorism is appropriate, and we need to be clear about that"--fell noticeably flat, in fact, winning only "scattered applause," as the session's official transcript recounts. Dean's lusty attacks on the Bush administration, however, were a great deal more successful. Particularly when he went after the Justice Department for its implementation of domestic counterterrorism measures authorized by the USA Patriot Act of 2001, a law which is "shameful" and "morally wrong" and "unconstitutional." For this, Howard Dean got a standing ovation.

It never fails. Democrats running for office think attacking the Patriot Act is a winner. Wesley Clark, Dean's leading rival for the presidential nomination in every national poll, says the Patriot Act has "essentially suspended habeas corpus," and nobody seems to mind that Clark's charge is "essentially" baseless. Senator John Edwards says he's "horrified" by what the Patriot Act has wrought and wants a fair chunk of it canceled--this, barely two years after Edwards, along with every other Democratic senator but one, voted to enact the thing to begin with. Edwards, too, routinely denounces the Patriot Act for producing law enforcement "excesses" that, truth be told, long predate that law, lie far outside its purview, or are entirely imaginary. And Edwards, too, routinely gets standing ovations in the process.

So who'll defend the Patriot Act? Unfortunately, there's hardly a single Republican who can do the job effectively.

A fair number of Republicans don't want to defend the Patriot Act, of course. Patrick Leahy of Vermont--yet another Democratic senator who was only recently proud to vote yes on the question--now boasts that opposition to the law exists "across the political spectrum, from the far right to the far left." And he is right about that, though his inadvertently suggestive "far" speaks more to a certain irritable, anti-government reflex than to any coherent ideological impulse, conservative or liberal.

Former Republican congressman Bob Barr has lately joined forces with the ACLU to campaign against a Patriot Act ("Mr. Barr? Mr. Barr votes 'aye.'") that represents "an official step into the Brave New World of 1984." Longtime Republican activists Grover Norquist and David Keene are pleased to appear, with the likes of Alec Baldwin and People for the American Way's Ralph Neas, at anti-Patriot Act teach-ins. Pretty much the entire, all-Republican Idaho congressional delegation is now leading a forceful legislative charge to repeal certain key sections of the Patriot Act, and they are winning bipartisan support even from senators and representatives whose home states don't--yet--have a black helicopter problem.

Indeed, so low has the Patriot Act's reputation fallen that Marc Racicot, the chairman of President Bush's reelection campaign, is afraid to endorse it in public. "I'm not aware of any act, or any piece of legislation ever that has been undertaken by human beings, who are certainly subject to imperfections, that has ultimately ended up in a situation where it did not have to be refined," Racicot stuttered in response to an audience member's question during his own presentation to the Arab American Institute on October 17. His "expectation," Racicot offered, "although I certainly have not talked with the president about this issue," is that "refinements to that act . . . so that it does not end up invading the civil rights of any American [is] a cause that will be undertaken."

This will be news to Attorney General John Ashcroft, who for his part continues to stump the country hither and yon, giving speeches about the 150-plus terrorism convictions made possible only by the Patriot Act--about how federal agents, using investigative tools freshly granted to them by that law, have since disrupted terrorist cells in Buffalo, Seattle, Portland, and Detroit. And so on.

But here, alas, Ashcroft is engaged in what's probably a hopeless effort. For all practical political purposes, the poor man is no longer one of those imperfect human beings Marc Racicot talks about. Ashcroft, instead, has become a cartoon, as sometimes happens in our public life (think Dan Quayle). And the cartoon Ashcroft is "authoritarian"--and too "divisive" to persuade any but the already persuaded that "authoritarian" isn't quite the right word to apply to his Justice Department or to the Patriot Act the department is administering. It's gotten to the point where Ashcroft is automatically blamed for things he can't possibly have done. At a Senate Judiciary Committee hearing on the Patriot Act last week, the attorney general came under a shower of abuse for ducking an appearance even though, as committee chairman Orrin Hatch eventually pointed out, Ashcroft hadn't actually been invited.

Now, Orrin Hatch is a fine fellow, don't get us wrong. And he is not exactly alone; Ashcroft and the Patriot Act still enjoy broad Republican support on Capitol Hill. But party loyalists like Hatch are less than ideally situated to reassure America that the Bush administration's war on terrorism is other than a fascist plot. In an atmosphere of such intense suspicion, the arguments of party loyalists can only be sold at the deepest of discounts--insofar as they can be sold at all.

No, what the Patriot Act really needs are some Democratic defenders.

And, we're pleased to report, it now has two. They deserve a loud round of applause, and a great deal more publicity.

At last week's Senate hearing, Joe Biden of Delaware didn't have to say that "the tide of criticism" being directed against the Patriot Act "is both misinformed and overblown," that "I stand by my support" of that law, and that the Ashcroft Justice Department has "done a pretty good job in terms of implementing" the law's provisions. But Biden did say all these things, anyway. And California's Dianne Feinstein went further still, in a stern and lengthy lecture about the concrete reality of U.S. anti-terrorism law--as opposed to the paranoiac fantasy version now being circulated throughout the land by the likes of Bob Barr and Howard Dean. How's about we concentrate on some facts, Feinstein suggested.

"I've tried to see what has happened in the complaints that have come in," she said, "and I've received to date 21,434 complaints about the Patriot Act." Except these turned out to be unrelated civil liberties gripes, or complaints about a "Patriot Act II" that doesn't yet exist. "I have never had a single [verified] abuse of the Patriot Act reported to me. My staff emailed the ACLU and asked them for instances of actual abuses. They emailed back and said they had none."

The widespread hullabaloo over the Patriot Act, Senator Feinstein concluded, proceeds from "substantial uncertainty . . . about what this bill actually does do." And "perhaps some ignorance," she added.

We'd challenge that "perhaps" part. Otherwise, we're with Dianne Feinstein a hundred percent. Wonders never cease.

--David Tell, for the Editors