Patriot Act Besieged


The objective of the Patriot Act [is to make] the population visible and the Justice Department invisible. The Act inverts the constitutional requirement that people’s lives be private and the work of government officials be public; it instead crafts a set of conditions that make our inner lives transparent and the workings of government opaque. Elaine Scarry, “Acts of Resistance,” Harper’s Magazine, May 2004

The Patriot Act makes it able for those of us in positions of responsibility to defend the liberty of the American people. George W. Bush, quoted by the National Committee Against Repressive Legislation, May 2004

In March, at the Washington University School of Law in St. Louis, I debated Chuck Rosenberg, chief of staff to James Comey, John Ashcroft’s second-in-command at the Justice Department. A former counsel to FBI director Robert Mueller, Rosenberg, a former prosecutor, has specialized in counterintelligence and counterterrorism.

The next day, the headline in the St. Louis Post-Dispatch story on the debate (March 22) was “Ashcroft Staffer Admits Patriot Act Is Unpopular.” And Chuck Rosenberg was quoted in the story: “We’re losing this fight.”

The reporter, Doug Moore, told me Rosenberg had made that admission during the intermission in our debate. It wasn’t my eloquence that deflated Rosenberg, but rather my focus that afternoon on the insistent resistance to the Patriot Act around the country—and in Congress.

By May, 311 towns and cities—and four state legislatures (Alaska, Hawaii, Vermont, and Maine)—had passed Bill of Rights resolutions instructing the members of Congress from those areas to roll back the most egregiously repressive sections of the Patriot Act, subsequent executive orders, and other extensions of the act.

According to Nancy Talanian, director of the Bill of Rights Defense Committee in Northampton, Massachusetts, and the primary organizer and coordinator of this campaign to preserve the Constitution, “Hundreds more communities and states are considering resolutions. Last December, the National League of Cities approved a resolution calling for amending the Patriot Act.”

And on May 12, The Hill, a Washington publication that gets inside congressional maneuvers, ran a report by Alexander Bolton (“Presidential Push Fails to Quell GOP Fear of Patriot Act”): “A group of libertarian-minded Republicans in Congress is blocking President Bush’s effort to strengthen domestic counterterrorism laws and reauthorize the USA Patriot Act, which the president has made one of his top domestic priorities this year.”

Not the whole Patriot Act, but sections of it, come up for congressional renewal by December 2005. Bush is pressing hard for Congress to renew those parts now. Standing in his way, however, is Republican conservative James Sensenbrenner, chairman of the House Judiciary Committee. According to The Hill: “Sensenbrenner has made it clear to colleagues that he will not consider reauthorization of the bill until next year.”

On April 20, Wired News ( quoted constitutional law professor David Cole, of the Georgetown University Law Center, on the resistance to the Patriot Act. Since 9-11, Cole has been the Samuel Adams of our time, a one-man version of the pre-Revolution committees of correspondence. Said Cole:

“One year after 9/11, National Public Radio did a poll and found that only 7 percent of Americans felt they had given up important liberties in the war on terrorism. Two years after 9/11, NBC or CBS did a very similar poll and they found that now 52 percent of Americans report being concerned that their civil liberties are being infringed by the Bush administration’s war on terrorism. That’s a huge shift.”

And on April 14, in Salt Lake City, when the Senate Judiciary Committee chairman, Senator Orrin Hatch of Utah, came home to harvest support for the Patriot Act, among his fiercest critics was Scott Bradley of the Utah Branch of the ultra-conservative EagleForum. Bradley reminded Hatch—Ashcroft’s premier cheerleader in Congress—of a prediction by Osama bin Laden in a BBC interview after 9-11. The arch-terrorist said:

“The battle has moved to inside America. . . . Freedom and human rights in America are doomed. The U.S. government will lead the American people and the West in general into an unbearable hell and choking fire.”

Scott Bradley went on to tell Hatch: “The United States is stronger and braver than that,” but “we must make absolutely certain that the rush for security does not . . . destroy what we really cherish about this great nation.”

Then, this libertarian conservative confronted Orrin Hatch with a grave warning by James Madison in 1788:

“I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations.”

The next day, as if to confirm Madison’s prophecy, the Associated Press reported, “The number of secret surveillance warrants sought by the FBI has increased by 85 percent in the last three years, a pace that has outstripped the Justice Department’s ability to quickly process them.”

They’ll process these warrants, which are authorized by the secret Foreign Intelligence Surveillance Act, the AP notes, for “wiretaps, video surveillance, property search and other spying on people believed to be terrorists or spies.” And we’ll never know if our records are being included in the databases. These are secret searches.