Civil Right

by Jeffrey Rosen | October 21, 2002

The Bush administration's proposed Department of Homeland Security is stalled in Congress. It is stalled not, as one might expect, because the Democratic leadership in the House and Senate fear the bill would threaten civil liberties in the United States by vastly increasing the national security state--rather, the Democrats worry that it would create a class of nonunionized federal employees. Instead, the most vocal critics of the bill's impact on American liberties are not Democrats at all but a group that used to be among George W. Bush's most reliable allies: libertarian and religious conservatives. The "[p]roposed legislation not only increases the growth of the federal bureaucracy but establishes an infrastructure, legal and institutional, which, if abused, could lead to serious restrictions on the personal freedoms and civil liberties of all Americans," wrote Paul Weyrich of the Free Congress Foundation in a letter signed by 26 conservative organizations in early September. When the House debated the homeland security bill this summer, Weyrich told The New York Times that enthusiasm for Attorney General John Ashcroft--long a favorite of religious conservatives--was waning thanks to Ashcroft's demands for new federal authority in the war on terrorism. "[T]here is suddenly a great concern," said Weyrich, "that what was passed in the wake of 9/11 were things that had little to do with catching terrorists but a lot to do with increasing the strength of government to infiltrate and spy on conservative organizations." In Congress, libertarian conservatives are equally disenchanted with Bush and Ashcroft's unilateral expansions of executive authority in the wake of September 11. "The attorney general doesn't seem to be making any effort to contain the lust for power that these people in the Department of Justice have, " Dick Armey, the retiring House Majority Leader, told me. "The Justice Department in the U.S. today, more than any federal agency, seems to be running amok and out of control." Representative Bob Barr of Georgia, the former Clinton impeachment manager who was recently defeated in the Republican primary, is equally distressed. "What has been especially troubling in the wake of the enactment of the Patriot Act," he told me, "is that the administration has been resisting any effort to provide information to the judiciary committee detailing how its work is being implemented." If civil libertarians had to pick the two members of Congress most responsible for the defense of liberty since September 11, Armey and Barr would be at the top of the list. Because of their vigilant opposition to the expansion of federal authority, the version of the USA Patriot Act that Bush signed last October was less draconian than the initial draft he and Ashcroft had proposed. Because of Armey's efforts, half of the new surveillance powers in the Patriot Act will expire in four years, and the administration must report to Congress about its use of the Carnivore e-mail surveillance program. Similarly, thanks largely to Armey, the version of the homeland security bill that the House has passed (the legislation has yet to pass the Senate) explicitly repudiates a national i.d. card, and it rejects Ashcroft's proposed TIPS program, which would have encouraged citizens to spy on their neighbors. The House also approved Barr's amendments, which would require the Office of Homeland Security and other federal agencies to perform a privacy impact analysis of all of their proposed regulations. The principled libertarianism of Armey and Barr contrasts sharply with the leadership of the Democratic Party, which might have been expected to defend civil liberties after September 11 but instead has acquiesced at every turn in the expansion of the national security state. Tom Daschle and Dick Gephardt have shown as little interest in protecting privacy in the homeland security bill as they did during the debate over the USA Patriot Act. Eager to appear tough on terrorism, Daschle and Gephardt made no effort to ensure that the Patriot Act or the homeland security bill reserved the most invasive surveillance authority for the most serious crimes. The only Democrats who showed any persistent interest in civil liberties were those on the margins-- such as Maxine Waters and John Conyers Jr. in the House and Russell Feingold and Pat Leahy in the Senate--whose views were considered too extreme to be taken seriously by negotiators from the Justice Department and the White House. As a result, it has fallen to Armey and Barr to carry the torch for civil liberties during the most important negotiations of the past year. And when the history of the response to September 11 is written, it will record that evangelical and libertarian conservatives--with their instinctive suspicion of federal authority--did more to defend liberty than mainstream liberal Democrats, who were captives of the public demand for security measures above all. The conservative movement has long been divided on the question of federal authority; the media just hasn't always noticed. The schism dates back at least to the election of 1940, in which the old right led by Robert Taft complained bitterly about the growth of an intrusive federal government and national security state. Some Taft Republicans were isolationists in the cold war and opposed Eisenhower's military industrial complex as well as the continued nationalization of the economy. Conservative intellectuals split in the 1950s over McCarthyism and Pentagon spending--with libertarians like Frank Chodorov calling both a form of tyranny and Catholic traditionalists like William F. Buckley Jr. insisting that international communism posed the greater threat. Barry Goldwater's candidacy in 1964 briefly united the warring strands of the Republican Party--the critics of federal power (including both the libertarian and paleoconservative isolationists) and the anti-communist interventionists. But these wings were divided again by the Vietnam War, during which the unilateralists supported an expanded security state for the greater good of fighting communism while an anti-interventionist libertarian splinter group in the Young Americans for Freedom broke off to protest the war and defend recreational drug use, making common cause with the new left. Armey and Barr hail from the long anti-government tradition that Richard Hofstadter, in his famous 1964 essay, identified with "the paranoid style of American politics"-- including the anti-Masonic movement; the nativist and anti- Catholic movements in the nineteenth century; the John Birch Society; and, on the left, the black Muslims. In the years since Hofstadter wrote, this tradition has been associated most famously with the anti-government wing of the Republican Party. The paranoid style, needless to say, has led to nutty or even violent extremes--the Oklahoma City bombing being its ugliest manifestation to date--but it has also served as the foundation for a principled libertarianism that resists the excesses of executive power. As Hofstadter himself emphasized, "[N]othing entirely prevents a sound program or a sound issue from being advocated in the paranoid style." Since the '60s, a central concern of paranoid-style critics of the federal government has been guns. Hofstadter cited the three anti-government conservatives from Arizona who drove 2,500 miles to Washington in 1964 to testify against a bill to tighten federal controls over the sale of firearms in the wake of the John F. Kennedy assassination. The bill was "a further attempt by a subversive power to make us part of one world socialistic government," said one of the Arizonans. Its passage threatened to "create chaos" that would help "our enemies" to seize power. The anti-government movement's hatred for President Bill Clinton was fueled by his support for globalization and gun control, both symbols of one world government. Libertarian conservatives were especially galvanized in 1992, therefore, when FBI agents stormed the Ruby Ridge home of Randy Weaver--a white separatist who had failed to show up in court to settle a low-level gun charge-- and shot and killed his wife and son. The FBI's subsequent raid on the Branch Davidian compound in Waco, Texas, followed the same pattern: In an initial attempt to prosecute cult leader David Koresh for violating gun laws, the federal government precipitated a conflagration.; "The FBI files sure heightened my awareness of how careless and malevolent people in government can be." To the most radical paranoid-style conservatives, Ruby Ridge implied that the "end times," or the final period before Christ establishes his thousand- year reign at Jerusalem, had begun; they pledged a violent holy war against the federal government to restore the nation to biblical rule. Their views were expressed in a tract called the Turner Diaries, which painted a gruesome picture of a white-supremacist holy revolution set off by the enactment of federal gun-control laws. An excerpt from the Turner Diaries was found in Timothy McVeigh's car after he was arrested for exploding the truck bomb that killed 168 people in Oklahoma City. For saner libertarian and religious conservatives, however, Waco and Ruby Ridge represented not an invitation to armed revolt but a reminder of the dangers of federal power. Libertarian concerns about FBI overreaching were exacerbated when the FBI files of Republicans ended up in the Clinton White House. "The FBI files sure heightened my awareness of how careless and malevolent people in government can be," Armey told me. "When I heard the story of raw FBI files being sent to the White House, it just blew my mind." With the help of an unusual coalition of conservative libertarians on the NRA right and civil libertarians on the aclu left, Armey and Barr successfully opposed many of Clinton's efforts to expand federal surveillance authority in the wake of Oklahoma City. Armey denied Clinton the authority to use roving wiretaps that can follow a suspect rather than being tied to a particular phone, for example. He also successfully opposed efforts in the '90s to allow law enforcement to "trap and trace" electronic communications over several networks with a single court order. After September 11 both of these Clinton proposals were dusted off by Bush and passed as part of the USA Patriot Act. Indeed, far from representing a nuanced response to the challenges posed by Al Qaeda, many of the most draconian provisions of the USA Patriot Act were rewarmed versions of proposals that had been submitted to Congress by the Clinton Justice Department. During the negotiations over Ashcroft's draft, Armey told me, "One of these hotshots from the Justice Department said, 'This isn't new; we've been asking for this for a long time.' I said, 'We've been saying no for a long time.' They were trying to seize the momentum of the Patriot Act to try to get these things we had not given them for years." During one meeting in which the Bush administration defended its proposal to blur the line between foreign intelligence gathering and domestic surveillance, Armey exploded in anger: Didn't the conservatives remember Ruby Ridge? Democratic leaders such as Daschle and Gephardt, by contrast, went out of their way to oppose any efforts by the handful of civil libertarians in their party to stop the Republican juggernaut. "I certainly have not seen any sympathy for civil liberties on Daschle and Gephardt's part," says David Boaz, executive vice president of the libertarian Cato Institute. "Whether it's a reflection of their ideological preconceptions or their political calculations or both, they seem little more sympathetic to civil liberties than they are to economic liberties." As The Village Voice's Nat Hentoff has reported, Daschle did his best to stifle the civil libertarian objections to the Patriot Act raised by Feingold, who was the only senator to vote against the bill. In May, Feingold told The Progressive magazine that Daschle had instructed Democrats to vote for the bill unanimously, without amendments or debate. After Feingold refused, he told The Progressive, "The Majority Leader came to the floor and spoke very sternly to me, in front of his staff and my staff, saying, 'You can't do this, the whole thing will fall apart.'" When Feingold proposed his amendments to the bill that night, he said, Daschle told other Democratic senators: "I want you to vote against this amendment and all the other Feingold amendments; don't even consider the merits." In the House, Democratic opposition to the Patriot Act was a little more vocal: The bill passed 337 to 79, with all but four of the dissenting votes cast by Democrats. Nevertheless, Gephardt did little to encourage the civil libertarian opposition, led by people such as John Conyers Jr. of Michigan. Although the minority leader initially supported a more moderate version of the act--unanimously passed by the House judiciary committee--when that version was defeated, he proceeded to have it both ways by embracing the administration's more draconian substitute. In the final negotiations it fell to Armey and Barr, rather than the Democrats, to try to rein the administration in. But despite their best efforts, Armey and Barr failed to block several expansions of surveillance authority that they had previously resisted. The Patriot Act now allows "sneak and peak" warrants, which authorize the search of a house without informing its occupants if a judge decides that giving notice would hurt the government's investigation. It permits the Foreign Intelligence Surveillance Court to order roving wiretaps. And it gives the government essentially unregulated access to "dialing, routing, addressing, or signaling" information on the Internet--a phrase whose meaning isn't entirely clear but seems to refer to the addresses of the e-mail we send and the websites we visit. "We weren't nearly as successful as I might have hoped," says Barr, "although we were able to secure some changes to the act, there are other provisions that are extremely problematic." In the debate over the homeland security bill, evangelicals and libertarian conservatives joined Armey in opposing not only national i.d. cards but also Ashcroft's proposed tips program, which would encourage private employees--such as delivery men and utility workers--to spy on their fellow citizens and report suspicious activity to the FBI. "We signaled that Congress is not interested in tips," said Armey. "But [the Justice Department's] attitude is, 'We're going to do it anyway.'" He then pointed to Ashcroft's recent appeal of a decision of the secret Foreign Intelligence Surveillance Court that criticized the Justice Department for lying on its applications for surveillance authority. "This agency right now is the biggest threat to personal liberty in the country," he said. Other libertarian conservatives, pointing to what they perceive as the excesses of the Clinton years, are equally concerned about Ashcroft's proposal to expand FBI authority to conduct Internet surveillance on individuals or groups without authorization from headquarters or a credible allegation of wrongdoing. "Ashcroft made some ill-advised comments about agents not being able to surf the Internet, which, taken beyond a colloquial sense, simply wasn't true," Bradley Jansen of Weyrich's Free Congress Foundation told me. Because of his background as an Assemblies of God Pentecostal, Ashcroft has strong personal and political ties to evangelical Christian anti-government conservatives, which makes his apotheosis as the voice of federal power especially disappointing to his natural allies. As a senator, Ashcroft pressured the Clinton Justice Department and the FBI to abandon their efforts to give the government backdoor access to all encrypted documents transmitted on the Internet. Ashcroft also opposed the FBI's Carnivore e-mail surveillance system, as well proposals for a national i.d. card. "Ashcroft has been disappointing to some of the people who worked with him on civil liberties during the Clinton years," says Boaz. "If Ashcroft had won his Senate race and stayed in the Senate, would he now be a critic of the Patriot Act?" But Ashcroft's transformation from an anti-executive Manichean conservative to a pro-executive Manichean conservative has been entirely in character. As both a senator and attorney general, he has been convinced of his own virtue and the perfidy of his opponents. When he moved from criticizing the Justice Department to running it, executive authority become trustworthy to him because the purity of his motives was, in his own mind, axiomatic. Instead of abandoning his apocalyptic vision, Ashcroft redirected it toward international enemies. But there is one issue on which he has stood by his former allies on the anti-government right: guns. Although he refused to release the names of the 1, 200 detainees picked up after September 11, he also refused to let the FBI examine the background checks to determine if any of them had recently purchased guns. And based on his interpretation of the Second Amendment as a protection for individual rather than collective rights, scores of defendants in Washington, D.C., courts have filed briefs challenging the constitutionality of D.C. gun laws. The devotion of religious and libertarian conservatives to the Second Amendment shouldn't be dismissed by civil libertarian liberals any more than the devotion of civil libertarian liberals to abortion rights shouldn't be dismissed by libertarian conservatives: Both are part of a principled commitment to restrict the power of government to intrude into private life. But, unlike his conservative allies, Ashcroft is not able to extrapolate from his devotion to the right to bear arms a broader principle of individual liberty that leads to suspicion of government across the board. They have a principle; he has only an attitude, which is the self-evident truth of his own righteousness. If Armey and Barr's opposition to Ashcroft makes them the heroes of the post- September 11 privacy movement, the future of that movement--at least in Congress--is uncertain. Armey is retiring after years as majority leader, and Barr was defeated by a less rigorous libertarian in the Georgia Republican primary. "Privacy doesn't have a political constituency," he told me soon after his defeat. "The fact that it didn't seem to be front and center with people is certainly worrisome." Nevertheless, a few new anti-government conservatives in Congress are beginning to find their voice--Armey is impressed by Jeff Flake of Arizona--and the alliance between the libertarian right and the civil libertarian left remains vital even if it has little obvious grassroots support. At a time of national trial, this alliance has done more to check executive overreaching and to defend individual liberty than the big-government liberals running the Democratic Party, who have been all too happy to respond to demands by the public and the president for security above all. For this we have the paranoid strain in American politics to thank.

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