How Attorney General Ashcroft Can Earn Trust
by Steve Lilienthal
December 2003/January 2004
Attorney General John Ashcroft went on tour in the waning days of summer to defend the USA-PATRIOT Act.
The tour came right after the House voted overwhelmingly for the Otter Amendment to de-fund delayed notification searches (more popularly known as `sneak and peek’) that the USA-PATRIOT Act appears to give to law enforcement to use in virtually all circumstances.
It came right before the Attorney General announced the so-called PATRIOT II powers that the Justice Department is now seeking.
Unfortunately, the Attorney General failed to engage in a true debate with those citizens and organizations that have expressed serious concerns about the powers contained within the Act.
Measures such as the Section 213 delayed notification search provision (often called “sneak and peek”) and the Section 215 records searches could easily be abused based on the open-ended way in which they are written with a lack of requirements for meaningful oversight and accountability.
He used the tour to spin his argument that the PATRIOT Act is working, not to seriously address the concerns held by defenders of privacy and constitutional liberties that the Act needs its language tightened up in specific provisions to prevent future abuses.
The message he and the Justice Department have been delivering is essentially “trust us.”
That alone fails to cut it with many conservatives who know how government bureaucracies tend to seek more power against real and imagined threats.
The Clinton Administration’s attempt to target pro-life groups for prosecution under the RICO statutes is not forgotten by the right-to-life movement.
Many property-rights activists remember when the National Park Service showed that there is a dark side to the smiling rangers most people know from their visits to national parks. The case is recounted in “A Lawyer’s Life” by noted attorney Johnnie Cochran.
In their zeal to increase the Santa Monica Mountains National Recreation Area the NPS, along with the Los Angeles County Sheriff’s office, and other state agencies searched Donald Scott’s home. Scott had refused to sell his land to the NPS.
The pretense?
Someone had tipped a representative of the Los Angeles Sheriff’s Department that marijuana was being grown there. If true, the government could seize the land under federal asset forfeiture laws.
No marijuana was visible as the Scott ranch was searched, including photos taken by the Air National Guard. But a Drug Enforcement Administration official thought he saw some plants.
On October 2, 1992 law enforcement officers broke down the Scott home’s door and agents swarmed into the home. Scott, not fully understanding what his wife was upset about, brought out his gun and met the officers, only to be shot to death because he failed to drop his weapon fast enough.
No single marijuana plant was ever found and no law enforcement officer ever charged with a misdeed. But the Ventura County District Attorney issued a report stating that the authorizing warrant for the raid was replete with “numerous misstatements, evasions, and omissions” and “was not supported by probable cause.”
Eventually, after years of legal wrangling, the case brought forth by his widow against the government was settled for $5 million.
A case like this demonstrates why the “trust us” message from the Justice Department is downright insufficient. If the PATRIOT Act’s powers are not being abused now, they can easily be in the future. Thoughtful revisions are necessary to avoid the possibility of future misuse in the manner of a case like that involving the late Donald Scott.
The Attorney General said a great deal during his tour in tightly controlled presentations. He shows no inclination to engage the defenders of privacy and constitutional liberties in serious debate about provisions such as sneak and peek or the open-ended definition of domestic terrorism which enables law enforcement to deem any violation of state of federal law that they consider harmful to human life to be an act of terrorism. Political activists such as right-to-lifers and property-rights activists run the risk of someday finding themselves targeted under this provision. All it would take is a change of administration.
The Attorney General, the nation’s top cop, owes it to the country to engage in an honest dialogue with his thoughtful critics — both legislators and the public — about how the PATRIOT Act can be calibrated to ensure greater accountability and oversight without costing law enforcement the tools necessary to protect us from terrorists.
Simple, honest actions on the part of the Attorney General could go a long way toward reassuring the public that the possibility for abuse of the PATRIOT Act powers — whether now or in the future — have been dramatically lessened. Trust is earned by frank, honest exchanges of opinion. The way Attorney General Ashcroft can really earn “trust” would be to have frank talks with those Americans who have made clear their desire to fight terrorism, but who want the USA-PATRIOT Act’s powers harnessed so they cannot be used for purposes other than what Congress intended when it enacted the legislation in the wake of 9/11.
These Americans want to make sure the Founding Father’s desire for checks and balances in respect to executive power is indeed respected. These Americans, including conservative Senators Larry Craig (R-ID), Mike Crapo (R-ID), and John Sununu (R-NH), have reservations about certain provisions of the PATRIOT Act as it is currently written. The Attorney General should really listen and attempt to understand why many Americans believe there is a need to provide greater oversight of the sneak and peek power. Or why Section 215 of the PATRIOT Act needs revision to ensure its powers for record searches are based on individualized suspicion and articuable facts that provide reason to believe the person whose records are being sought is either a foreign power or an agent of a foreign power. Their SAFE Act, co-sponsored with four Democratic senators, does exactly that.
He might consider listening to these Americans on why there is a need to tighten up the definition of “domestic terrorism” to ensure political activists exercising their legitimate First Amendment rights do not get ensnared by a politically motivated dragnet. Under the PATRIOT Act, any violation of federal or state criminal law — even misdemeanors — deemed dangerous to human life could be construed as an act of terrorism. In the hands of overly zealous law enforcement officials this provision could presumably be used to ensnare right-to-lifers and other protestors who engage in civil disobedience. The Protecting the Rights of Individuals Act that Senator Lisa Murkowski (R-AK) is sponsoring confines the definition to only those acts dangerous to human life that are clearly Federal crimes of terrorism.
People like Larry Craig and Lisa Murkowski are not interested in fighting the Justice Department to deprive it of the power to fight terrorism. They want to work with the Justice Department to ensure the PATRIOT powers are being used in the very way that Congress intended.
Simple actions on the part of the Attorney General can go a long way toward improving the PATRIOT Act’s powers so they cannot be abused in the future, building additional support for the Justice Department’s mission, and respecting the founding principles of this country.
“An ounce of prevention is worth a pound of cure” may be an old saying. It is still very relevant.
Steve Lilienthal is Director of the Center for Privacy and Technology Policy at the Free Congress Foundation.
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