Devil in the Details

Patriot Act II, and Means to Weigh It, Emerge in Bits

Adrenaline coursing, civil liberties watchers have anticipated the coming of Patriot Act II for months. The Bush administration was expected to demand a colossal package of new anti-terrorism powers from Congress as early as this spring, according to a draft of legislation leaked in February and a Justice Department statement to the Voice in March.

Scores of local citizens' groups across the country and a bipartisan bunch of congressmembers got on the alert. They insisted the administration account for its use of existing authorities before demanding a sweeping, new Patriot Act II. They waited.

Now the moment has arrived, just not with the expected bang. Both Patriot Act II and the means for evaluating it have begun to materialize, in scattered pieces. On June 5, U.S. Attorney General John Ashcroft slipped a wish list of major new anti-terrorism powers into a day of congressional testimony that ranged widely from Al Qaeda to intellectual property to DNA evidence. A wealth of revelations about the Bush administration's anti-terrorism conduct has also emerged, not in one grand exposé but sprinkled among various reports, court outcomes, and congressional Q&As.

The public now has access to a great deal of information to rate the administration's conduct in the war on terrorism and to tell its representatives in Congress whether to pass or block a Patriot Act II. Yet some of the most telling tidbits, especially from two major developments in recent weeks, have not been reported as such.

Ashcroft urged Congress to boost anti-terrorism powers in three major ways: make more acts punishable as terrorism under a broadened definition of providing "material support" to suspect groups, allow longer pre-trial detention for people accused of a terrorism-related offense, and make it easier to sentence people accused of "terrorist acts" to death. Asked last Friday whether these would make it into a final White House request, and what other ideas would be added in the end, Justice Department spokesperson Mark Corallo would not specify, saying only, "There will be a package of legislation sooner rather than later."

Although Ashcroft's pitch for new powers made headlines, unreported were parts of his testimony that might help Americans decide whether he should get them. For one, there was his understated slant on death sentences. The possibility of execution would be most valuable as a way to "encourage cooperation" in suspects, he said, not dwelling on the more concrete result of such a sentence.

He put an oddly pleasant spin on the FBI's interviews of "thousands of individuals of Iraqi origin" during the recent war, an effort widely reported at the time to be aimed at flushing out domestic insurgents. Ashcroft couched the sweep instead as a public relations blitz, one meant "to make sure that they knew that we would do everything we could to make sure they were not in any way infringed—their rights weren't—in this country."

He pushed for a definition of material support so sweeping that it ventured into the extreme. "We need for the law to make it clear that it's just as much a conspiracy to aid and assist the terrorists to go and fight," he said, "as it is to carry them a lunch." Corallo would not clarify whether Ashcroft was exaggerating for effect, or whether delivering takeout was the sort of low-level conduct that would actually make it into a final proposal. But an early draft suggests the attorney general would enjoy wide discretion to label acts terrorist.

Still greater insight into the Bush administration's anti-terrorism approach comes from a damning June 2 report by the Justice Department's internal, but independent, inspector general. Despite being jailed sometimes for many months and sometimes incommunicado, not one of 762 Arab and Muslim immigrants detained in the post-September 11 investigation was ultimately accused of any terrorist activity, according to the probe. The review has drawn wide attention for exposing apparent physical abuses of immigrant detainees.

But another aspect of the report ripples far beyond noncitizens: the overarching picture of law enforcement sloppiness and, at times, arrogance. Such problems concern everyone in America, since the Bush administration, after all, is not seeking new Patriot Act powers—including freer use of the death penalty—to wield against noncitizens only.

The FBI followed a classic guilt-by-association game plan with the detainees, or in many cases, guilt-by-misfortune. Immigrants who happened to be discovered in the course of pursuing leads were swept up along with identified suspects. Moreover, leads were typically vague and seemed inspired more by a target's ethnic appearance than by his conduct, according to the report. "[A] landlord reporting suspicious activity by an Arab tenant" or someone complaining that a retail store had "too many" Middle Eastern employees could lead to arrest. Agents ran checks on "all names, addresses, and telephone numbers" lifted from detainees' cell phones and address books.

Such a casual approach is distressing when even American citizens—Jose Padilla and Yaser Hamdi—are currently being held incommunicado, as enemy combatants, without access to a lawyer or any way to challenge the government's claims against them. (Ashcroft told Congress in his June 5 testimony, "In the event that [the detention of an American] was thought to be abusive or a mistake, I'm sure the president has the power to correct it . . . and I'm quite confident that he would if he thought he had made a mistake.")

The inspector general's report also revealed a widespread failure to leave a paper trail on serious policy decisions. Paper trails, history has shown, are crucial for holding public officials accountable. For instance, the inspector general could not document the source of the widely criticized "hold until cleared" policy, in which detainees were jailed—often in maximum-security conditions and with limited or no access to a lawyer—no matter how benign the facts of their case, until the FBI had cleared them. Clearance took an average of 80 days, or nearly three months, and as long as 244 days.

It was a wholesale suspension of liberty, in effect, a major decision that challenged core values of American law. Yet the policy "was not memorialized in writing, and our review could not determine the exact origins of the policy," the inspector general writes. Officials who were interviewed had inconsistent stories about what happened and who was responsible. Ashcroft, who tops the chain of command, "stated that he had no recollection of being advised that the clearance process was taking months, nor did he recall hearing any complaints."

For months congressmembers, legal advocates, and the press demanded to know how many detainees were trapped in prolonged detention. In the inspector general's report, the Justice Department's public affairs office explains that it refused to give out information "because the statistics became confusing."

Obfuscation hardly inspires confidence. Last week the administration set out to win over the skeptics. In an uncharacteristic show of self-criticism, it pledged to make reforms based on the inspector general's recommendations. Corallo told the Voice, "There were problems, and we can always do better." He stressed the monumental nature of law enforcement's task in the immediate aftermath of the 2001 terrorist attacks. Within a week of the tragedies, the FBI reportedly received more than 96,000 tips or potential leads from the public. Now, Corallo said, "the FBI is absolutely better prepared."

Indeed, "hundreds of suspected terrorists have been identified and tracked throughout the United States," according to Ashcroft's report to Congress. "Most important, no major terror attack has occurred on American soil since September 11," he said.

This record is an indisputable triumph. Then perhaps even Ashcroft's supporters will not see the need to expand anti-terrorism laws further? Counters Corallo, "There are still weaknesses in our law that the terrorists can exploit"—as, in any free society, there are bound to be.

As people weigh the push for a Patriot Act II, Corallo urges them not to be swayed by the "heated rhetoric" of media critics and politicians. He advises citizens to read government documents—such as the text of the 2001 Patriot Act and the FBI's investigative guidelines, both available online—for themselves and to get their news from a variety of sources. Says Corallo, "There's so much information out there, you've just got to sift through it. This is America. The people decide."

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