Taking Dictation from the ACLU
A case study in anti-Patriot Act propaganda.
October 18, 2004
By Heather Mac Donald
IMAGINE THE New York Times writing a damning article about the Clinton administration's tax policies cribbed exclusively from a Heritage Foundation press release. Can't do it, can you?
How about the Gray Lady recycling ACLU misinformation about the Patriot Act without any additional research? This time, no need to imagine anything: Both the New York Times and the Washington Post did exactly that recently and thereby published a tissue of fabrication. Both papers issued tight-lipped corrections the next day, but the damage had been done: The mainstream media's overpowering lust for anti-Patriot Act propaganda had been exposed as neatly as if a trap had been laid by the Ashcroft Justice Department.
The unmasking began on September 28, when a federal judge overturned a 1986 law allowing the FBI to seek customer records from phone and Internet companies in terrorism investigations. Section 2709 of the Electronic Communications Privacy Act allows the FBI to issue a "national security letter" (a type of subpoena) to a communications carrier demanding the name, address, length of service, and billing records of a customer when such information is relevant to stopping terrorism. The FBI may not see the content of the customer's communications. But simple billing records might establish, say, that a particular Moroccan engineering student about whom the Bureau had received classified information had been calling an al Qaeda handler in Pakistan.
In April, the ACLU sued to invalidate the national security letter (NSL) provision of the Electronic Communications Privacy Act on primarily two grounds: first, that section 2709 failed to spell out any process whereby a phone or Internet company could try to quash an NSL in court, and, second, that it prohibited the recipient of an NSL from disclosing that he had received such a request from the FBI. These features of the law violate the First and Fourth Amendments of the Constitution, according to the ACLU.
Surprisingly, the government agreed with at least one of the ACLU's assumptions. The recipient of a national security letter, no less than the target of any other subpoena, the government acknowledged, should be able to contest the document request in court--and, in fact, he can. Such a right of challenge is implicit in section 2709, according to Justice Department attorneys; thus, the absence of an explicit procedure for court review was no reason to throw out the law.
On the question of whether the FBI could prohibit an NSL recipient from disclosing the request, the Justice attorneys by contrast disagreed sharply with the ACLU. Secrecy is absolutely essential to counterterrorism work, maintained the government; revealing that particular individuals are under surveillance could fatally jeopardize an investigation and put informants' lives at risk. But even here, the government conceded that an NSL recipient could at some point go to court to argue that the disclosure ban was no longer necessary.
Federal judge Victor Marrero of the Southern District of New York sided with the ACLU and declared section 2709 of the Electronic Communications Privacy Act unconstitutional. He declined to read an implied right of challenge into the provision--thus finding that it impermissibly forbade court review, and he dismissed the presumptive need for absolute secrecy in terrorism cases.
Marrero's decision--Doe v. Ashcroft --was a victory for the ACLU, to be sure, but what it wasn't was a repudiation of the Patriot Act. The judge mentioned the Patriot Act maybe three times in a 120-page decision, merely to note that it had modified the 1986 law in a way that had nothing to do with the court challenge. (Specifically, the Patriot Act continued a process begun in 1993 of broadening the application of NSLs to communications customers who were not foreign agents. This Patriot Act amendment was not at issue in the ACLU case; only the absence of a judicial review provision in the original 1986 law and the original disclosure ban were under litigation.)
But the ACLU spun Doe v. Ashcroft as a major blow to the Patriot Act and to the Bush administration's war on terror. Its September 29 press release crowed: "Federal Court Strikes Down Patriot Act Surveillance Power as Unconstitutional." The release quoted executive director Anthony Romero: "'This is a landmark victory against the Ashcroft Justice Department's misguided attempt to intrude into the lives of innocent Americans.'" Another attorney's blurb declared: "'As this decision suggests, certain provisions of the Patriot Act should never have been enacted in the first place.'" Associate legal director Ann Beeson melodramatically opined: "'It is an enormous relief to be able to tell the world just how dangerous and extreme this Patriot Act power is.'"
THIS WAS PUREST DECEPTION. Doe v. Ashcroft did not "suggest [that] certain provisions of the Patriot Act should never have been enacted in the first place," because it did not adjudicate the Patriot Act. In fact, the decision was a rebuke to Democratic senator Patrick Leahy, who had introduced section 2709 in 1986, calling it a "clear procedure for access to telephone toll records in counterintelligence investigations." But the ACLU's press release was utterly silent about the existence of the 1986 Electronic Communications Privacy Act or section 2709's author.
And therefore, so too were the New York Times and the Washington Post the next day. Both simply repackaged the ACLU spin without any further fact-checking--and, apparently, without reading Marrero's decision. Their headlines parroted the press release: "Judge Strikes Down Section of Patriot Act Allowing Secret Subpoenas of Internet Data" (New York Times); "Key Part of Patriot Act Ruled Unconstitutional" (Washington Post). The New York Times made its ACLU-induced misreading of the decision as unambiguous as possible: The case concerned a "kind of subpoena created under the [Patriot] act, known as a national security letter," it explained.
The newspapers' only emendation of the ACLU's gloss was to strengthen the alleged anti-Patriot Act significance of the decision. The New York Times called the invalidated section of the electronic communications law an "important surveillance provision" of the Patriot Act; the Washington Post dubbed the discredited section a "key component of the USA Patriot Act" (emphasis added). This sudden significance of the NSL provision was surprising, because in all the avalanche of anti-Patriot Act propaganda that the papers had previously published in the three years before the ACLU lawsuit, the New York Times had never mentioned the national security letter amendment in the Patriot Act, and the Washington Post had done so in merest passing only six times, without ever deeming it "key."
Now, however, national security letters had become the very linchpin of the Bush administration's war on terror. The Times cited the ACLU's Anthony Romero to evaluate the ruling: "'a stunning victory against John Ashcroft's Justice Department.'" The Post quoted the ACLU's Ann Beeson: "'a wholesale refutation of the administration's use of excessive secrecy and unbridled power under the Patriot Act.'"
No other newspaper fell for the ACLU snow job as slavishly as the New York Times and the Washington Post. Every other paper managed to find out--though to varying degrees of accuracy--that national security letters did not originate with the Patriot Act. The Boston Globe, USA Today, and the Los Angeles Times all reported that a 1986 law had authorized NSLs, but they still argued that Doe v. Ashcroft was a major setback to the Patriot Act and the Bush administration.
Only the New York Times and the Washington Post, therefore, were forced to issue corrections the next day. The Washington Post's retraction was particularly grudging, conceding icily that "while the Patriot Act loosened restrictions on the use of the letters, most of U.S. District Judge Victor Marrero's ruling focuses on earlier statutes governing the letters." The Post couldn't bring itself actually to explain the significance of those "earlier statutes."
The ACLU had suddenly lost its advantage, and it went berserk. In a hilarious effort to turn the tables, it accused the Justice Department of trying to spin the decision. "ACLU Blasts Justice Department's Attempts to Manipulate Truth About Patriot Act Ruling," screamed the headline of its next press release, issued the same day as the Times's and Post's corrections. "In what appears to be a concerted campaign to mislead the American public," the release continued, "the Department of Justice and some of its Republican allies in Congress are attempting to minimize the impact of a landmark ruling this week against so-called National Security Letters." Proof of this skullduggery? An email from a Senate Republican Policy Committee analyst to Senate leaders pointing out the fact that Doe v. Ashcroft had struck down the 1986 law creating NSLs (mentioned here for the first time in ACLU publicity materials), and thus should not be regarded as a rebuke to the Patriot Act.
The ACLU declared itself shocked by such allegedly deceptive practices. Ann Beeson called the Senate email message "desperate." What was in fact desperate was the ACLU's agonized response to this unaccustomed collision with the truth: "There is no question that the court struck down a provision of the law that was dramatically expanded by the Patriot Act," it whined, in a dramatic deflation of its original claims.
That the ACLU engages in non-stop deception about the war on terror is not news. But it is not every day that the eagerness of the elite media for such deception is so clearly exposed. The mainstream press already knows that the Patriot Act is a dangerous assault on civil liberties, so when the ACLU confirms this knowledge, why bother to check the facts?
Heather Mac Donald is a contributing editor at the Manhattan Institute's City Journal and the author of "Are Cops Racist?"
©2004 The Weekly Standard
About Heather Mac Donald: articles, bio, and photo