Pitching the Patriot Act
Vanessa Blum
Legal Times
http://www.law.com/jsp/article.jsp?id=1090180276083

The Ashcroft Justice Department and the American Civil Liberties
Union don't find themselves on the same side of many issues --
least of all the USA Patriot Act. Yet the DOJ and the ACLU Web
sites devoted to the controversial law share an ironic symmetry.

On the DOJ site, a banner reads "Preserving Life and Liberty." On
the ACLU site, the motto is "Keeping America Safe and Free."

Liberty. Security. Life. Freedom. It's easy to get the patriotic
buzzwords mixed up.

They're part of the dueling public relations campaigns over the
Patriot Act that the Bush administration and its critics have been
locked in for the past two years. The act, a massive legislative
package passed in 2001, bestowed new powers to law
enforcement in the fight against terror.

On one side, administration officials led by Attorney General John
Ashcroft aver that without the law, America would be doomed to
suffer more terrorist attacks. On the other, civil libertarians argue
it is the act itself that poses the greatest threat to the American
way of life by eroding constitutional protections.

While political spin is nothing new, the level of hype, hyperbole
and outright hysteria surrounding the act is extraordinary. And
with the presidential election months away and several key
provisions of the Patriot Act set to expire in December 2005, both
sides have stepped up to market their interpretation to the
American public by launching Web sites, reaching out to local
politicians, writing letters to newspapers, and traveling on whistle-
stop campaigns.

"The law has taken on symbolic proportions over and above the
nitty-gritty impact of its actual provisions," says Timothy Lynch,
director of the Project on Criminal Justice at D.C.'s Cato Institute.

"There's been misinformation on both sides," Lynch says. "On the
one end of the spectrum, you have protesters chanting that
Ashcroft is Hitler. On the other end, you have an administration
that responds to critics by questioning their patriotism."

After a measure that would have barred the Justice Department
from using one Patriot Act provision nearly passed -- the vote was
deadlocked -- in the House of Representatives in July, Ashcroft
released a 30-page report outlining the law's "usefulness." The
document, intended to bolster support for the act in a wavering
Congress, met immediate criticism from the ACLU for focusing
on anecdotal law enforcement successes and failing to address
controversial aspects of the act. Many of the accomplishments
cited in the report were unrelated to terrorism.

"President Bush and Attorney General Ashcroft need to spend less
time waging public relations campaigns and more time
responding to the specific, legitimate concerns of the American
people," said ACLU Executive Director Anthony Romero in a
statement.

But the ACLU has been busy, too. So far this year, its president,
Nadine Strossen, has given more than 20 speeches on the Patriot
Act and civil liberties after Sept. 11.

For opponents, even the law's name -- an acronym derived from
the awkward title Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism -- suggests Orwellian government, and has given rise to
buttons and bumper stickers with slogans like "The Patriot Act?
That's SO 1984" and "Dissent IS Patriotic." Critics frequently
attribute policies to the act that are not technically included.

"The USA Patriot Act has become a brand," says Georgetown
University Law Center professor Viet Dinh, who was instrumental
in drafting the act as head of the DOJ's legal policy shop from
2001 to 2003. "Activists lump everything that is objectionable
about the war on terror, anything wrong with the world really,
onto the USA Patriot Act. No more than 10 percent of what
people ascribe to the USA Patriot Act on any given day, is in the
Patriot Act itself."

FANNING THE FLAMES

The Patriot Act passed Congress by overwhelming margins six
weeks after the Sept. 11 terrorist attacks. Section 215, perhaps the
law's most ballyhooed provision, authorizes the Federal Bureau of
Investigation to demand court orders for tangible records related
to national security cases held by third parties -- which could
include places such as libraries or hospitals. Another controversial
part of the law permits federal law enforcement to wait before
notifying the target of a search warrant in certain circumstances.

The word "library" never actually appears in the act. Yet, mention
the law in many parts of the country, and folks think it gives the
FBI free rein to snoop on the books they read.

The association -- while overly simplistic -- has enormous
resonance with the American public and has been seized upon by
the law's opponents to tap into Americans' natural distrust of
government.

"We don't like federal agents poking around our libraries,"
Democratic wunderkind Barack Obama, a Senate candidate from
Illinois, said last week in his keynote speech at the party's national
convention.

One ACLU handout alerts citizens that, under the Patriot Act, the
government can "collect information about what books you read,"
"search your home and not even tell you," and "take away your
property without a hearing."

"The ACLU would like to depict that we've returned to the Age of
McCarthy," says Stuart Gerson, a partner at D.C.'s Epstein, Becker
& Green and a senior DOJ official in the first Bush
administration.

Dinh accuses critics of deliberately peddling misinformation. "A
lot of the fears out there are based on misconceptions," he says.

Administration detractors concede that the law has become a
lightning rod for an array of concerns, including some not directly
related to the Patriot Act.

"People are commenting on a lot of policies they find unfair. If
they use the wrong name, I don't think they should be blamed,"
says Nancy Talanian, director of the Bill of Rights Defense
Committee, a Massachusetts-based grassroots organization that
pushes anti-Patriot Act resolutions at the local level.

Regardless of whether the ACLU has been fair in its
characterization of the Patriot Act, its public relations campaign
has been enormously effective. Since Jan. 2002, the organization
has recruited more than 240,000 new members. In 2003, the
ACLU collected roughly $1.6 million in donations over the
Internet, compared to $630,000 in 2001.

The ACLU's grassroots success is evidenced in 342 resolutions
passed by towns, cities, counties and states in opposition to the
law and other anti-terror policies. Many, including one passed
July 26 in Des Moines, Iowa, include boilerplate language posted
on the ACLU's Web site.

Damon Moglin, ACLU national field coordinator, says the
resolutions should influence members of Congress as they prepare
to vote on whether to renew those provisions that sunset at the end
of next year.

"The fact is there is going to be a showdown in 2005, and tens of
millions of people have come out and said, 'You went too far, too
fast,'" Moglin says. "I think the politicians have heard that."

While the resolutions have scant, if any, legal impact, their
proliferation frustrates the Justice Department, in part because the
movement shows no sign of slowing. In 2002, 12 resolutions were
passed. In 2003, 214. So far this year, 106 resolutions have
already passed.

DOJ spokesman Mark Corallo says the resolutions don't reflect
true public opinion.

"These are cookie-cutter ACLU resolutions," Corallo says. "In
most cases, the city council is presented with a resolution, usually
from the ACLU, and they pass it without conducting any meetings
or hearing any input from their local U.S. Attorney."

SPIN CYCLE

According to Corallo, fear of losing support in Congress drove the
Justice Department last year to finally crank up its own public
relations machine and respond to the claims of critics like the
ACLU.

"When we realized there were members of Congress who had
voted for the act who were having second thoughts, we thought
we'd better get out there," he says.

The department launched its Life and Liberty Web site devoted to
defending the Patriot Act and urged U.S. Attorneys to reach out to
community groups and become more vocal advocates for the law.

In August 2003, Ashcroft set out on an unusual publicity blitz. In
just over one month, Ashcroft stumped for the act in visits to 32
cities in more than 20 states, including Pennsylvania, Ohio,
Michigan, Nevada and South Carolina.

"We have used the tools provided in the Patriot Act to fulfill our
first responsibility to protect the American people," Ashcroft said
in one speech. "We have used these tools to prevent terrorists
from unleashing more death and destruction on our soil. We have
used these tools to save innocent American lives. We have used
these tools to provide the security that ensures liberty."

More recently, Justice Department officials and U.S. Attorneys
have been encouraged to participate in debates, write letters to
newspapers, and communicate with local government officials
who may be considering passing anti-Patriot Act resolutions.

Mary Beth Buchanan, U.S. Attorney for the Western District of
Pennsylvania, took a leading role in the campaign and made
dozens of appearances over the past year.

"When we started talking to people in the community about the
Patriot Act, we realized there were a number of serious
misconceptions," says Buchanan, who heads the Executive Office
of U.S. Attorneys. "I've accepted any offer to debate whether it's a
town hall meeting, a university, a Rotary Club, a local television
network."

The DOJ strategy consists of downplaying the act's intrusion on
Americans' privacy and playing up the fear of future attacks. Still,
with much of the American public entrenched in their views, it's
unclear how effective the campaign has been.

According to Gallup Polls, public approval of the Patriot Act has
decreased slightly since the department launched its PR offensive.
In August 2003, 22 percent of those questioned felt the act went
too far in restricting civil liberties. In February, 26 percent said the
law went too far.

DOJ's Corallo says the 64 percent of respondents who feel that the
law struck the right balance or did not go far enough is a victory
for the department. In addition, 57 percent said they had great or
moderate trust in Ashcroft to strike the right balance in the war on
terror, with 43 percent supporting the ACLU.

Still, some wonder whether it was a tactical mistake for the
Justice Department to wait so long before entering the debate.
While the department has tried to sell last month's 210-210 vote in
the House as a win, it doesn't bode well for the administration that
an amendment nearly passed that would have repudiated a part of
the act it has portrayed as necessary and innocuous.

"The Justice Department justifiably wants to be seen as tough and
uncompromising on terrorism, and so, for a long time, their
company line was that there is nothing to discuss or debate," says
Gerson, who served as acting attorney general during the first
months of the Clinton administration "Probably, the public
discourse would be better if the department had engaged in a
more-detailed discussion of the law's various provisions."

Chris Link, executive director of ACLU Ohio, has been debating
DOJ officials for the past year. Before each debate, she says she
checks out the DOJ Web site to "see what the spin of the day is."

She adds, "The Justice Department loves to spin, and we love to
spin right back."

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