Legal Commentary

Is Dissent Today Any Less Patriotic?

By Jonathan H. Adler

In December 2001, then-Attorney General provoked howls of outrage when he made the following statement at a Congressional hearing:

To those who pit Americans against immigrants, citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve. They give ammunition to America?s enemies and pause to America?s friends. They encourage people of good will to remain silent in the face of evil. (emphasis added)

While some think Ashcroft?s remarks were misinterpreted (including some of us at the VC), there was widespread agreement that it is inappropriate for government officials to suggest that criticism of or dissent from government policy is unpatriotic.

This past week, deputy National Security Advisor John Brennan made a similar statement in a USA Today op-ed.

Politically motivated criticism and unfounded fear-mongering only serve the goals of al-Qaeda.

While some conservatives have objected to this remark, the broader response has been somewhat muted, particularly from the civil liberties community.  What explains the difference?  Is Brennan?s comment less inflammatory or objectionable?  Is the broader context in which the comment was made ? debate over specific counter-terror efforts as opposed to broader policy measures ? less threatening to civil liberties?  Or is this just Kerr?s Law in action?  While I think some of the GOP response to Brennan?s comment is overdone, I felt this way about the response to Ashcroft?s remark as well.

Full post as published by The Volokh Conspiracy on February 14, 2010 (boomark / email).