ACLU Stupidity

The ACLU also put quite a spin on the news last week, as I blogged earlier, by stating that a recent court decision had stricken part of the Patriot Act and thus dealt a blow to the Bush Administration, when it had actually stricken down a portion of the Electronic Communications Privacy Act of 1986 - a portion that had not been modified by the Patriot Act and had nothing to do with the Patriot Act. Check out the earlier post if you want the excruciating details. Suffice it to say that the ACLU either didn't know what part of the law the Judge had ruled on in this opinion, or they were spinning the story 'round and 'round to generate some undeserved negative publicity for the Bush administrations' Patriot Act. Hey, it's not like the act doesn't lend itself to enough criticism without embellishment. You can find enough to criticize without making stuff up.



Orin Kerr at the Volokh Conspiracy had broken the story and called enough attention to it that the Washington Post and the New York Times published retractions clarifying their articles, which had relied on the ACLU statements as to which statute was at issue.



So how does the ACLU respond to a bit of public correction when they play fast and loose with the facts? They criticize the critics, of course:

"In an e-mail message sent yesterday to Senate leaders and their staffers, a Senate Republican Policy Committee analyst claimed that news reports that the ruling had invalidated a Patriot Action provision were "false." The analyst, Steven J. Duffield, said that because the court's ruling also struck down the underlying 1986 law that the Patriot Act amended, the decision should not be viewed as a blow to the Patriot Act, as reported by many national newspapers.



ACLU Associate Legal Director Ann Beeson called the e-mail message a desperate attempt to insulate supporters of the Patriot Act from criticism. "There is no question that the court struck down a provision of the law that was dramatically expanded by the Patriot Act."

Well, unless I'm really missing something, no they didn't. The Court struck down sub C, which was untouched by the Patriot Act. The only reason sub A and sub B - which were the parts amended by the Patriot Act - were also stricken is because they provisions of C could not be severed from A and B. So if you take a very fast and loose reading of it, yes - it struck parts of the act that had been expanded by the Patriot Act. But the Court specifically did so only because they were unseverable from the impermissible provisions of sub C.



I agree with Orin Kerr over at Volokh, who called my attention yet again to this bit of inanity:

"But it seems to me that when you get caught trying to play games like this, it doesn't help your credibility to switch positions and then "blast" your critics for mounting "a concerted campaign to mislead the American public." I expect better from the ACLU, and I am disappointed by this."