But will his PR blitz really lead the public to trust him?
Seeking to defend the administration and defuse criticism of its stance on civil liberties, Attorney General John Ashcroft has hit the road on a speaking tour of the United States. His goal, according to the Washington Post
, is to explain why measures like the USA Patriot Act are so vital, and to reassure Americans that his Justice Department is finding the right balance between liberty and security.
In a strongly worded speech that included quotations from Abraham Lincoln and Winston Churchill, Ashcroft portrayed the Patriot Act as a linchpin of the government's war against terrorism.
"We know now that al Qaeda exploited the flaws in our defenses to murderous effect," Ashcroft said. "Two years later, the evidence is clear: If we knew then what we know now, we would have passed the Patriot Act six months before September 11th rather than six weeks after the attacks."
Ashcroft also issued a veiled warning against any attempts to curtail government powers under the law. Two civil liberties groups have filed legal challenges to parts of the Patriot Act, and the law comes up for review by Congress in 2005.
"To abandon these tools would disconnect the dots; risk American lives; sacrifice liberty; and reject September 11th's lessons," Ashcroft said, adding later: "To abandon these tools would senselessly imperil American lives and American liberty."
The Washington Post follows this news story with an editorial about "Mr. Ashcroft's Roadshow
". The editorial echoes some things I wrote
on TIA and the planned terrorism futures market, regarding the general American sentiment towards the Bush Administration on these issues.
. . . if people are worried about how the Justice Department is wielding its authority under the Patriot Act, a big piece of the blame lies with Mr. Ashcroft himself. Muscular congressional oversight of this new law is critical, but the department has until recently balked at answering reasonable questions from lawmakers. At one point last fall, House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) was so exasperated he was threatening to issue a subpoena to get the information. This is no way to make the public feel better about how the department is handling sweeping new powers. I think that's right.
More important, it strikes us that a great measure of the public's "unease" over the law, as Sen. Patrick J. Leahy (D-Vt.) put it, is in fact discomfort -- legitimate discomfort -- over the administration's broader disregard for civil liberties: its insistence that American citizens can be held for months without access to lawyers simply by designating them "enemy combatants"; its sweeping roundup of non-citizens in the days after 9/11; and its unapologetic stance toward the treatment of detainees who had nothing to do with terrorism but were held for months. Technically, these are separate matters from the Patriot Act. In reality, the Patriot Act has become something of a repository in the public mind for wider worries about Mr. Ashcroft's Justice Department. As the attorney general barnstorms the country, he might do a little less preaching to the already converted and a little more listening to the legitimate concerns of the American public.
Granted, I live in Santa Monica
, which ranks with Berkeley and Cambridge, Mass. as one of the more liberal cities in America. But I associate with a balanced cross section of friends and colleagues, on the left and the right, who all evidence some distrust of John Ashcroft and this admininistration with respect to civil liberties. Mr. Ashcroft has almost become a punchline of sorts to any joke about spying, eavesdropping, or otherwise invading someone's privacy. ("Don't talk about your last date on your cell phone; John Ashcroft's listening.")
The net result of this distrust was seen very clearly in the debates over TIA
and the Pentagon's planned terrorism futures market. Americans -- and their legislative representatives -- didn't care how these programs actually worked. They didn't care that academics on the left and right supported such ideas in the abstract. Despite TIA's fate, we still need computerized tools to look for "non-obvious relationships". And a closed-access futures market for experts could have been a great way to quantify collective expert opinion. Nonetheless, the American public answered these programs with a resounding "Enough already!"
After a series of anti-terrorism measures passed since Sept. 11, I think the Bush Administration has effectively spent its political capital on terrorism. These measures include, but are not limited to:
- The USA PATRIOT Act
, which has become a lightning rod for criticism of the Bush Administration. I think some of that criticism should be directed at others, such as Congress, who raced to pass an omnibus bill after Sept. 11 without considering any of the secondary or tertiary implications of its provision.
- The Homeland Security Act
, which consolidated and reorganized America's domestic security apparatus. I think this consolidation was probably necessary because of the inefficiencies and gaps which existed before, but some people feel threatened by the consolidation of all these agencies under one roof -- and the sharing of intelligence between them.
- The implementation of a new security regime
for airports, including the use of computer-assisted passenger screening system
that may have racial-profiling implications.
- Expanded powers
to detain and deport immigrants, based on the USA Patriot Act and executive rulemaking authority in this area, which have led to the detention and deportation of thousands of immigrants.
- The secrecy of these proceedings
, which has left Americans guessing about their true extent, and left Americans with a tangible distrust of the Justice Department on this issue
- The decision to detain Al Qaeda and Taliban fighters at Guantanamo Bay without formal designation as prisoners of war, despite Art. V
of the Third Geneva Convention. (See this essay
from Feb. 2002)
- The decision to detain two American citizens
and a Qatari man
as "enemy combatants" based on a Presidential declaration
-- a designation which has resulted in their imprisonment without charge or legal process, solitary detention, seclusion from counsel.
- The executive order
establishing military tribunals as an option for non-citizen terrorists -- an option that would incorporate fewer legal protections for the defendant than a civilian criminal trial or military court martial. It's not clear whether the President has the power to issue such an order, let alone conduct such tribunals.
- The prosecution of so-called "little fish" for providing "material support
" to foreign terrorist organizations, under a statute added by the 1996 Anti-terrorism and Effective Death Penalty Act. It appears that most of these individuals have contributed some measure of support, whether money or training, to some terrorist organization, but there is no clear nexus between these men and a) actual terrorist activity and b) future terrorist acts. At most, defendants like the Lackawanna Six appear to have visited Al Qaeda training camps in Afghanistan (which is probably a bad thing). These men appear
to have pled guilty in order to avoid designation as enemy combatants. But the prosecution of these little fish -- in the absence of any big fish prosecutions -- makes Americans feel threatened. It may ultimately be the right course of action
, given the way Al Qaeda's network depends on these little fish, but it has political consequences.
- The secret detention
of top-level Al Qaeda operatives at undisclosed locations, where they are being interrogated with undisclosed methods, and where their fate is uncertain. We are at war, and it is legal to detain and interrogate enemy prisoners of war. But there are rules
for doing so, developed after abuses during WWII created an international consensus about the proper treatment of prisoners of war. Following the rules may impede us in some respects, but it helps us retain the moral high ground in the war on terrorism. We should not discount the importance of the moral dimension of warfare. That is what gives us international support to lead campaigns in places like Iraq; that is what enables foreign politicians to support us, because their population supports us. Moral capital is one more form of ammunition in the war on terrorism, and we squander it when we don't live by the rules of war.Blowback
: The term "blowback" refers to the unintended consequences of a policy choice. The classic example is Al Qaeda -- which appears to have developed out of the Afghan Arab movement that fought the Soviets in Afghanistan with our covert funding and support. (See Peter Bergen's Holy War, Inc
. for more on Al Qaeda's history)
Now we are seeing another form of blowback, from the policy choices made by the Bush Administration in its war on terrorism. The common perception (true or not) is that this administration has a cavalier attitude towards civil liberties -- and that it will not let those things stand in the way of fighting terrorists. That's a normative judgment, and one that may be justified if you think the threat of terrorism on the scale of Sept. 11 is real and imminent.
But this normative judgment also has consequences
-- the biggest one being that the American public no longer trusts John Ashcroft or the administration with their civil liberties. Every policy recommendation -- whether from the Pentagon or DoJ -- that touches civil liberties will meet a firestorm of criticism from now on. I'm not sure how the administration can remedy this distrust, or prevent this blowback from reoccuring. But I don't think Mr. Ashcroft's roadshow is going to do the trick.Update
: This isn't going to do the trick either.
The Washington Post reports
that the AG has instructed his 94 U.S. Attorneys to lobby Congress about the success of the USA Patriot Act and the problems with a provision in a pending House bill that would cut off funding for "sneak and peek" searches.
An Aug. 14 memorandum from Guy A. Lewis, director of the executive office for United States Attorneys, encourages federal prosecutors "to call personally or meet with . . . congressional representatives" to discuss "the potentially deleterious effects" of an amendment approved in the House last month that would cut off funding for "sneak and peek" warrants in terrorism cases.
Attached to the memo is a list of names and telephone numbers of House members, with an asterisk next to the names of those who voted in favor of the amendment sponsored by Rep. C.L. "Butch" Otter (R-Idaho).
Justice officials said they believe the effort does not violate the Anti-Lobbying Act, which generally prohibits government employees from lobbying for or against legislation. But Rep. John Conyers Jr. (Mich.), the ranking Democrat on the House Judiciary Committee, wrote a letter to Attorney General John D. Ashcroft yesterday questioning whether a current speaking tour by Ashcroft and contacts between U.S. attorneys and members of Congress amount to a violation of the law.
Justice spokeswoman Barbara Comstock said the campaign was fully vetted by government attorneys, and the memo warns that only U.S. attorneys themselves, who are political appointees, can initiate and attend the congressional meetings. "Congress has been saying they want to know how the Patriot Act is being used. The 93 U.S. attorneys are people who can . . . help tell members of Congress how the Patriot Act is working and how important it is," she said.
I'll reserve judgment on the Anti-Lobbying Act (18 U.S.C. 1913
) issue, except to say that there is
an issue here that could land U.S. Attorneys and their staffs in trouble if they don't follow the letter of the law. If anything, this order almost screams for some sort of independent prosecutor, because it would be odd for the Justice Department to prosecute one of its own U.S. Attorneys for something the AG told him or her to do.
Furthermore, this could frustrate attempts by the AG to sell the Patriot Act as something that's not threatening. Waging guerilla warfare (also known as lobbying) in the halls of Congress is not something the American public probably wants to see on this issue -- it will only make them more suspicious