It may not quite be the French Open, but James Carafano of the Heritage Foundation and I have been discussing the pros and cons of the virtual fence in a series of recent blogs. At least I thought that was what we were discussing. In his most recent post, Carafano doesn’t mention the virtual fence once. Instead he takes a potshot at me for “condemning the United States.”

Here’s a good rule of thumb for policy debates: when your opponent can’t argue for the policy in question on its merits and tries to change the subject, you’ve won the argument.

Nevertheless, the ACLU is never one to shrink from a fight when it goes below the belt. There is little debate out there about whether we are succeeding in securing the border. The Border Patrol is certainly not to blame for this: As Carafano describes vividly and accurately, Congress has repeatedly failed to recognize the challenges dedicated Border Patrol agents face on the ground and fund border security initiatives that will actually make their jobs easier. The virtual fence is a perfect example of this disconnect –a fat cash payout to Boeing Corp. for a program proven to be a miserable failure.

On human rights, we have a long way to go. In the 14 years since Operation Gatekeeper pushed the bulk of border crossing into the harsh Arizona desert, more than 5,000 migrants have died from exposure. That’s an intolerable statistic for both the United States and Mexico. Again, this is not the fault of the men and women who go to work on the border everyday and approach their jobs with professionalism and compassion. It’s the underlying national policy, courtesy of Washington, that is putting at risk the lives of migrants and Border Patrol agents alike.

In Carafano’s world, criticizing a failed Washington policy that endangers Border Patrol agents is tantamount to “bad-mouthing the Border Patrol.” If that sounds like a bogus argument to you, that’s because it is. Carafano still fails to answer my original point: that the virtual fence is a fiasco that not only threatens civil liberties, but is also indefensible from the fiscal conservative philosophy that the Heritage Foundation claims to promote. By questioning our patriotism, he is not furthering an open, responsible discussion about policy – he’s trying to short-circuit the discussion because he’s out of arguments.

The ACLU and the Heritage Foundation often disagree, and we like to engage them when we do because they’re known and respected for defending conservative principles with passion and intellectual rigor. Needless to say, we’re disappointed.

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