Rhetoric Vs. Reality
The Department of Justice defends the Patriot Act.


A recent National Review Online piece by the Cato Institute’s Timothy Lynch addressed a number of questions to the Attorney General about the Patriot Act. As Director of Public Affairs at the Department of Justice, I am responding to Mr. Lynch’s questions. We welcome discussion about the Patriot Act and would encourage readers to learn more about it on our new website.

CATO RHETORIC: “Mr. Ashcroft, you say that Congress passed the Patriot Act by an ‘overwhelming margin,’ but do you think the vote would have been different if legislators had known about your plans to hold terrorism suspects indefinitely and to prosecute others in military tribunals, instead of the civilian courts? You may recall that you announced those initiatives once the debate over the necessity of the Patriot proposal was over and the law was officially enacted.”

REALITY: The Patriot Act continues to enjoy 3-1 popular support in a recent USA Today/CNN/Gallup poll, despite a months-long disinformation campaign about it. The Patriot Act was passed in the Senate by a vote of 98-1 and a House vote of 357-66. The same small, but vocal, minority who opposed the Patriot Act when it passed overwhelmingly in October, 2001, opposes it now. These are many of the same groups that opposed the 1996 Anti-Terrorism Act signed by President Clinton. In other words, these opponents not only think we are doing too much now to fight terrorism, they thought we were doing too much on September 10, 2001.

Fortunately, the American people understand that the Patriot Act supplies vital tools for the fight against terrorism. It allows various agencies within the federal government to share information in order to prevent terrorist attacks; it updated the law to keep up with the changing technologies terrorists use; and the Patriot Act allows law enforcement to use the same crime-fighting tools against terrorists that have been used successfully for years against drug dealers and organized crime.

I should point out that this question demonstrates confusion about what is and what is not part of the Patriot Act as well as a misunderstanding of pre-existing law in this country. The detention of illegal aliens was authorized under pre-existing immigration law. Military tribunals have been used throughout our history as an exercise of the President’s well-established war powers. Thus, neither of these was an “initiative” announced by the Attorney General after passage of the Patriot Act.

When Mr. Lynch speaks of “plans to hold terrorism suspects indefinitely,” he may be referring to the detention of approximately 750 illegal aliens who were present in the United States in violation of law and who were of possible interest to the 9/11-attack investigation. The Patriot Act had no effect on law enforcement’s authority to detain those illegal aliens, which existed prior to passage of the Patriot Act. These approximately 750 aliens were detained because they were illegally in the United States. Approximately two-thirds of these illegal aliens have now been deported and only a handful are currently detained. However, all were charged with criminal or civil violations of federal immigration law, and the detention of these individuals was legal, appropriate, and necessary.

Illegal aliens in removal proceedings do not have an automatic right to bond and release; the fact that an alien was of interest to the investigation into the 9/11 terrorist attacks, means that the FBI had concerns that the alien may have posed a danger to the community and/or presented a flight risk. The simple fact is that illegal aliens who are not detained tend to flee. In a report released in February 2003, the Justice Department’s Inspector General found that 87 percent of aliens who are not detained during the pendency of their removal proceedings flee.

Similarly, the Patriot Act did not effect the authority of the U.S. armed forces to detain captured enemy combatants at Guantanamo Bay or elsewhere. Nor is their detention an “initiative” announced by the Attorney General. Rather, these individuals, captured during military hostilities, are under the supervision of the Department of Defense. Detainees at Guantanamo, who have demonstrated their will to cause harm to the U.S. and its allies by participating and supporting terrorism, are detained only until it is determined they are not a threat, or for the duration of hostilities — not for an indefinite time. The United States always has had the authority to detain enemies captured on the battlefield. The purpose of doing so is to deny their services to the enemy as well as to gather intelligence about the enemy to protect our interests.

Military commissions are also unrelated in any way to the Patriot Act and they are not an “initiative” of the Attorney General. The President has always had the constitutional authority to create military commissions. Military commissions historically have been used to try violations of the law of war and are separate from the criminal-justice system. The President has stated that military commissions will be used only to try enemy combatants who are foreign nationals, not U.S. citizens.

Nevertheless, the President and the Defense Department have ordered that those tried by military commission receive many of the protections afforded to the accused in civilian courts. For example, military-commission procedures apply a presumption of innocence, require proof of guilt beyond a reasonable doubt, apply a privilege against self-incrimination, and prohibit drawing an adverse inference if the accused chooses not to testify. Anyone tried before a military commission will be represented by a military defense counsel free of charge. In addition, the accused may hire civilian defense counsel at his own expense. Military-commission proceedings will be open to the maximum extent practicable, consistent with protecting national-security information. Commission panel members will have as their primary duty ensuring a full and fair trial.

CATO RHETORIC: “Mr. Ashcroft, you say that 132 individuals have been convicted or pled guilty in your terrorism investigations, but there have been reports that federal prosecutors are making veiled threats — that if suspects fight the charges by pursuing a jury trial before an impartial judge, well, then, they’ll be turned over to the U.S. military, where they will be held in solitary confinement indefinitely. Have you investigated these newspaper reports? Is such conduct by a federal prosecutor constitutional, legal, and ethical?”

REALITY: Among the 132 individuals who have been convicted or pled guilty are shoe-bomber Richard Reid and “American Taliban” John Walker Lindh, as well as individuals who were financing terrorism or had provided false documents or other assistance to terrorists. As to alleged reports about “veiled threats,” Mr. Lynch appears to be referring to a story in the Washington Post on July 29, 2003, entitled “No Choice But Guilty,” which contained several errors and misquoted the U.S. Attorney in Buffalo, Michael Battle. The U.S. Attorney wrote the following letter to the editor to correct those errors but the Post declined to publish it, perpetuating the false information. U.S. Attorney Michael Battle’s letter follows in its entirety:

To the Editor:

Michael Powell’s story “No Choice But Guilty” in the July 29, 2003 Washington Post contains several errors in quotes attributed to me; the reporter appears to have attributed quotes or statements to me that I did not make, in order to justify his story.

For example, I did not say that the U.S. Attorney’s Office for the Western District of New York never explicitly threatened to invoke enemy combatant status, but that all sides knew the government held that hammer. I did not say: “I don’t mean to sound cavalier, but the war on terror has tilted the whole legal landscape… We are trying to use the full arsenal of our powers.” What I explained to the reporter was that the issue of enemy combatant status for the Lackawanna Six defendants was not raised by my office. The issue was raised by defense counsel, which sought assurances that enemy combatant status would <u>not</U> be considered. At the request of defense counsel, that assurance was provided in the agreements that accompanied the guilty pleas of the defendants in this case.

I also did not say, as the reporter writes: “Battle said defense lawyers came to realize two facts of life. Attorney General John D. Ashcroft would not hesitate to veto any deals. And the Defense Department stood ready to ask Bush to designate the defendants as enemy combatants.” I never said that, directly or indirectly. What I did say, in response to a question about who approved the plea deals, is that my office worked on reaching the deals, in proper consultation with the Department of Justice. As is standard practice in all terrorism cases, consultation occurs with the Department of Justice; in some cases, all the way up to the Attorney General’s office.

Proper context is important in every news story. In this case, my quotes were either taken out of context, or mischaracterized, in order to feed the reporters’ perception that federal prosecutors offered the Lackawanna Six defendants “No Choice But Guilty.” As I’ve already stated, that is completely false — there were no threats by the government, implicit or otherwise. At the plea hearings for each defendant, the court asked each defendant under oath whether they were pleading guilty because of any threats. Each defendant stated they were pleading guilty freely and voluntarily. Each of the defendants’ lawyers, as officers of the court, were present, and none of them stated to the court that any of the pleas were based on threats or coercion.

Thank you,
Michael Battle
United States Attorney, Western District of New York

CATO RHETORIC: “Mr. Ashcroft, in congressional testimony, you have claimed that federal law-enforcement agencies have been making steady ‘progress’ in the war against terrorism. In support of that claim, you note that ‘more than 18,000 subpoenas and search warrants’ have been executed. In other words, the federal government has threatened more than 18,000 people (citizen and noncitizen alike) with fines and imprisonment if they do not comply with government demands. My question is this: When you say that American soldiers have laid down their lives for the ‘cause of liberty,’ what do you mean by ‘liberty’? And do you expect your department will be making even more ‘progress’ by executing more subpoenas and search warrants this year?”

REALITY: Yes, we do believe that subpoenas issued by grand juries comprised of United States citizens, and search warrants issued by a judge upon a showing of probable cause, allow us to make progress in the war on terror. The use of subpoenas and warrants has long been a standard investigative technique in virtually every type of criminal investigation. Justice Department prosecutors have done no more than make use of these centuries-old legal tools to fight a 21st-century war.

In order to effectively fight terrorism, we must gather information about the terrorists’ plots. In the aftermath of 9/11, thousands of subpoenas and court orders were issued so we could learn about the 19 hijackers’ travels, the places they lived or stayed, their associates, the people they encountered, the phones, banks, or rental stores they used. Without the use of grand-jury subpoenas and judicially approved search warrants, we would not have the wealth of information that we have about the 19 hijackers and their associates today.

Far more important, however, is the use of subpoenas and court orders to prevent terrorists from launching future attacks. Subpoenas and court orders are used to follow up on the hundreds of pieces of valuable intelligence information we have obtained from our investigations and battles overseas and elsewhere. They are also used to track the activities of alleged terrorist cells in this country in communities as diverse as Buffalo, Seattle, Detroit, and Portland.

Mr. Lynch appears to believe that Americans can acclimate themselves to intermittent terrorism. As he explains in the introduction to his study, “Breaking the Vicious Cycle: Preserving Our Liberties While Fighting Terrorism“: “The American people can accept the reality that the president and Congress are simply not capable of preventing terrorist attacks from occurring.” We profoundly disagree. The fact is that we have disrupted, detected, and dismantled hundreds of terrorists and their networks worldwide as well as in this country — and we must continue to do so. Terrorism will remain a threat to this country, but there are legal tools and methods that can assist us in making every effort to prevent further acts of terrorism. We can — and will — attack the terrorist threat legally and consistent with a free society.

CATO RHETORIC: “Mr. Ashcroft, you have said that if Congress were to ‘abandon the tools’ of the Patriot Act, it would ‘senselessly imperil American lives and American liberty.’ As you know, the Patriot Act makes it a crime for anyone who has been served with a subpoena to speak to anyone about the matter. Writing to the local newspaper or placing a call to one’s representative in Congress about such a subpoena would constitute a criminal offense. Are you saying that if the Congress were to revisit and abandon that ‘tool’ and legalize speech about FBI subpoenas, that liberty would be imperiled?”

REALITY: Section 215 of the Patriot Act allows the FISA (Foreign Intelligence Surveillance Act; passed in 1978) court to issue orders for business records in international-terrorism or espionage cases — just as federal grand juries have long been able to obtain the same records through subpoenas in ordinary criminal cases. Records can be obtained under section 215 only through a court order (not, as Mr. Lynch states, through a “subpoena”), and only if the court determines that the FBI is legally entitled to them (the FBI has no authority to issue such orders unilaterally).

Section 215 of the Patriot Act does not make it “a crime for anyone who has been served with a subpoena to speak to anyone about the matter.” However, Section 215′s confidentiality rule is necessary to protect our national security, and is based on nondisclosure orders that courts always have been able to enter in ordinary criminal cases. For example, the judge in the Kobe Bryant case may order the news media to refrain from divulging information about the alleged victim’s personal life, in order to protect her privacy. In the same way, if we were to serve a court order on a flight-training school to find out if a Mohammed Atta is taking flight lessons, we obviously would not want the school to tell Atta, who might then accelerate his terrorist plot. As with any court order, the FISA-court can consider sanction, but the Patriot Act does not make such violations criminal offenses.

We do enthusiastically welcome debate about the Patriot Act and invite all Americans to learn the facts about this important legislation by logging on to Our new website includes an overview of the Patriot Act, its entire text, statements from Members of Congress explaining the law, factual information dispelling some of the major myths perpetuated about the act, as well as other information.

Barbara Comstock is Director of Public Affairs at the Department of Justice.


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