The Missing Patriot Debate (Page 3)

So the Patriot Act debate will focus on at most a handful of provisions in a sweeping law. It will not address many of the most troubling provisions of that law, or other practices of the Administration that raise far more substantial constitutional questions. And even with respect to the few provisions that will be addressed, the most fundamental issues will be skirted. This is attributable to two factors. First, many of the most pernicious aspects of the Patriot Act, and of the "war on terror" generally, affect foreign nationals exclusively, or nearly exclusively. The act's immigration provisions haven't generated the same concern as the surveillance provisions, not because they are less problematic but because they apply only to "them," not "us." The same is true with respect to practices like torture and rendition, tactics largely reserved for foreign nationals, which have failed to generate the kind of grassroots concern that the libraries provision has.

This double standard also infects the surveillance provisions. The foreign-intelligence-gathering powers apply very differently to visiting foreign nationals (those who come to this country to work, study or visit) than to "U.S. persons" (citizens and permanent residents). In order to invoke these powers against the latter, the government must show something much closer to criminal probable cause and may not rely solely on First Amendment-protected activity. There is no logical or legal reason why a foreign student living here should have fewer privacy or speech rights than her US citizen classmate. The reason is political--it is always easier to impose such burdens on the most vulnerable.

The second reason for the inadequate debate is less deeply rooted, but no less troubling. These days it seems that the only issues on which the current national political stage offers liberals any traction are those of mutual concern to conservatives. Understanding this, the ACLU has entered into an alliance, called Patriots to Restore Checks and Balances, with conservative groups such as Grover Norquist's Americans for Tax Reform, Phyllis Schlafly's Eagle Forum and the Citizens Committee for the Right to Keep and Bear Arms. Members of the House of Representatives have similarly formed a "tripartisan" "Patriot Act Reform Caucus" featuring unlikely bedfellows Bernie Sanders, a Vermont Independent; Butch Otter, an Idaho Republican; and John Conyers, a Michigan Democrat.

In the short term, such alliances may well be necessary. It's hard to see how else to get anything done in Congress. But the cost of this compromise has been to submerge significant parts of the liberal reform agenda. The ACLU's brief on what Congress should do about the Patriot Act does not mention the immigration provisions detailed above, nor the use of secret evidence to close down charities. Material support is buried at the end of the memo. The memo does not even take on the double standard embedded in foreign intelligence law. These are not issues that conservative groups have championed, and therefore the ACLU's focus has become the conservatives' focus--the surveillance provisions that might be used against American citizens.

Balancing short-term gains against long-term costs is never easy. Were I in the ACLU's shoes, I might do the same thing. With the conservatives, liberals have a chance of achieving some reform; without them, there might well be no chance. But we should not ignore the long-term costs associated with such an approach--we reinforce the notion that the rights conservatives care about are somehow more important.

A more promising strategy for the long haul, particularly given the anti-alien character of so many initiatives in the war on terror, would be to emphasize a human rights approach. Human rights, after all, are owed to every person, by virtue of their human dignity, irrespective of the passport they carry. As a strategic matter, human rights campaigns can tap into the power of world opinion and bring it to bear at home, especially when the United States selectively abuses the rights of other countries' nationals. By shrinking the world, the Internet has made international mobilization far more efficient and effective. Such a human rights strategy has proved particularly successful, for example, with respect to Guantánamo Bay, where the Bush Administration has been forced from confident assertions of literally unchecked power to a search for a face-saving exit strategy. Critical voices from abroad, especially Europe, mobilized by human rights concerns, created pressure that forced the Administration to negotiate and likely led the Supreme Court to take the legal challenges more seriously than it otherwise would.

One of my favorite postelection maps showed the United States divided along the traditional, and increasingly ossified, red and blue state lines. But it was a map of the world, not only of the United States--and the rest of the world was blue. That may not be entirely accurate, but it does suggest that we might find more fruitful allies by appealing to international human rights and principles of human dignity than by joining forces with progun, antitax conservatives.

• « Previous
• 1
• 2
• 3

• Get The Nation at home (and online!) for 68 cents a week!
• If you like this article, consider making a donation to The Nation.
• Reprint this article. Click here for rights and information.