In Bed With Bob Barr: How conservatives became the ACLU's best friends

In a sense, the only people truly prepared to spring into action after the terrorist attacks on September 11 were the civil-liberties groups. "I knew there was going to be a problem, that we were going to see an effort to restrict civil liberties," recalls Morton Halperin, a State Department veteran and former national-security analyst at the American Civil Liberties Union. The day after the attack, Halperin began e-mailing his colleagues. By the time they called their first press conference on September 20, they had a name (Organizations in Defense of Freedom), a 10-point statement of principles, and even spin-offs (such as Computer Scientists in Defense of Freedom). They also had a secret weapon: Grover Norquist, president of Americans for Tax Reform, scourge of the liberals, conservative guru par excellence. "The Bush administration said, 'We've got a bill that we've gotta pass right away,'" recalls Norquist. "As soon as I heard that, I began to get worried." While Halperin and the ACLU were rounding up the usual suspects on the left, Norquist was working his connections on the right. By the end of September, Organizations in Defense of Freedom included not just the left-leaning Alliance for Justice, Americans for Democratic Action, and Human Rights Watch, but also such conservative groups as Phyllis Schlafly's Eagle Forum, Paul Weyrich's Free Congress Foundation, and the American Conservative Union.

Almost immediately, prominent Republicans on Capitol Hill began to sound a lot like Ted Kennedy. "Why is it necessary to propose a laundry list of changes to criminal law generally and criminal procedure generally and cast such a wide net?" Republican Congressman Bob Barr demanded in the House Judiciary Committee's first hearing on Attorney General John Ashcroft's antiterrorism proposals. "And why is it necessary to rush this through?" Instead of passing Bush's antiterrorism bill in two days, as the administration had originally asked, Congress has spent the past two weeks picking it apart. "We did triage," says Norquist. "We said, 'Slow the bill down, and please read it.' And we said it is legitimate, in the middle of a crisis, to ask questions about this kind of bill."

How did Republican conservatives become the most important defenders of civil liberties on the Hill? A certain brand of high-minded civil-liberties thinking has, of course, always been a part of conservative ideology. But the ACLU's new allies hail from a more grass-roots antigovernment tradition, a conservatism that mixed frontier libertarianism with a bitter loathing of Bill Clinton and his attorney general, Janet Reno. For these hard-core antigovernment types, the early-1990s showdowns at Ruby Ridge and Waco were not tragic accidents but modern Palmer Raids: illegal federal crackdowns aimed at suppressing conservative dissent. And in 1994, the antigovernment conservatives found a political voice. That year, congressmen from the South and the Mountain West became the vanguard of Newt Gingrich's Republican Revolution. The federal government would never be the same again, they declared.

Then, in April 1995, came the Oklahoma City bombings. Two weeks later, the White House unveiled a massive antiterrorism bill that included funding for as many as 1,000 new agents in the Federal Bureau of Investigation and the Bureau of Alcohol, Tobacco and Firearms--"jackbooted thugs," as an NRA fundraising letter sent that March had described them--as well as new wiretapping powers and the establishment of a domestic antiterrorism center. A few days after that, Bill Clinton gave his famous speech that attacked "militias and all others who believe that the greatest threat to freedom comes from government"--drawing a devastating (albeit somewhat unfair) connection between Timothy McVeigh and the Republicans elected to Congress six months earlier. Suddenly, Clinton and the Democrats stood for law and order, while the class of '94 stood for militias and terrorism.

The Republicans were stunned. But so were civil libertarians: Clinton's bill also included provisions to revise the Posse Comitatus Act (which forbids military involvement in domestic-law enforcement), to establish a secret court in which prosecutors could introduce classified evidence, and to institute the most sweeping restrictions on habeas corpus--the process by which prisoners can appeal their convictions in federal court--since the Civil War. Worse, the Senate passed Clinton's bill virtually unchanged; Democratic and Republican leaders in the House were preparing to do the same. The civil-liberties left needed new allies.

So the ACLU called Barr, a recently elected congressman from Georgia. "Conservatives in general were already suspicious of government," says ACLU lobbyist Timothy Edgar. "Given that the administration in question was Bill Clinton's and that the attorney general in charge of enforcing the antiterrorism bill was Janet Reno, that made them even more suspicious." It didn't matter that most of the proposals had grown out of earlier White House plans to combat international terrorism; Barr, Norquist, and others looked at the Clinton bill and saw more Wacos. With the help of conservatives such as these, the civil-liberties groups and their liberal Democratic allies quickly assembled a wide coalition against the bill. It included not just the National Rifle Association, the libertarian Cato Institute, and criminal-defense lawyers but also privacy activists and even Muslim-American and Irish-American organizations (which worried that the bill would criminalize their support of independence movements in the Middle East and Northern Ireland).

That winter, with the help of Republican Henry Hyde, chairman of the Judiciary Committee, the coalition was able to block Clinton's bill in the House. When the legislation came up again in 1996, they beat back Democrat-led efforts in both chambers of Congress to reinstate the provisions dropped during the earlier debates. The legislation did eventually pass in April 1996--but without the expanded wiretapping authority and other provisions. The coalition almost succeeded in stripping the habeas corpus restrictions, too. After all, argued Republican Helen Chenoweth--the Idaho congresswoman who had previously defended the rights of militias in her state--limiting appeals might hurt citizens "wrongfully prosecuted for exercising their constitutional right to keep and bear arms."

If anything, Clinton's remaining years in office brought the civil-liberties left and the antigovernment right closer together. On the right, episodes of the budding Clinton mythology--such as the White House's purported acquisition of FBI files on prominent Republicans and Reno's refusal to investigate campaign-finance abuses after the 1996 election--began to coalesce around a single theme: Clinton's abuse of power. On the left, civil libertarians were dismayed to find the White House increasingly unreliable on due process and some first-amendment issues. Shortly after passing the antiterrorism bill, for instance, Clinton signed into law the Communications Decency Act (CDA), an Internet smut law so manifestly unconstitutional that the Supreme Court would later--despite a vigorous defense by the Justice Department--strike it down unanimously. The following fall, Clinton signed into law the Illegal Immigration Reform and Immigrant Responsibility Act, which further expanded the use of secret evidence and virtually ended judicial review of deportation proceedings. Still more legislation followed in ensuing years, including a successor to CDA and continued attempts to expand federal wiretapping authority. "It's just a fact that [Clinton] didn't have the same respect for civil liberties that we would expect a Democratic president to have," says the ACLU's Edgar. "We saw a president who was at best wishy-washy on these issues and at worst downright hostile."

Increasingly, the civil-liberties community began to turn to conservative Republicans for traction against the Clinton administration as well as Democratic and Republican centrists. "I think it was principled and it was politics," says one civil-liberties lawyer. "The principle was opposition to government power, and the politics was opposition to Bill Clinton." In 1997, for instance, Republican Senator Conrad Burns of Montana worked with Democratic Senator Patrick Leahy of Vermont to block restrictions on encryption software. In 1999, Hyde and Democratic Representative John Conyers of Michigan passed a long-fought-for reform of draconian asset-forfeiture laws produced by the war on drugs; after initially opposing the bill, Clinton eventually signed a compromise version. And last year, Barr, Alabama Republican Spencer Bachus, and Upper West Side Democrat Jerrold Nadler led the Hill fight against Carnivore, a powerful computer system designed by the FBI to tap electronic communication.

In fact, before the September 11 attacks, an alliance composed of Barr, Conyers, various Muslim groups, and Arab-American Republicans Darrell Issa and Spencer Abraham had almost succeeded in overturning the secret-evidence laws contained in Clinton's 1995 antiterrorism bill. "To have a few conservatives take us seriously gives us an ability to get into the Republican caucus in a way we wouldn't otherwise," argues the ACLU's Edgar. "People became convinced that ending secret evidence was a conservative thing." Indeed, one reason why the Organizations in Defense of Freedom managed to mobilize so quickly against the Ashcroft antiterrorism proposals was that they consisted largely of provisions sought earlier by the Clinton administration. "This is a long-term thing," says Norquist. "We all know each other. We all get along."

Of course, that's not necessarily good. Business-backed think tanks like the Heritage Foundation and the Competitive Enterprise Institute, for instance, are only too happy to fight the cause of deregulation and laissez-faire under the banner of civil liberties. Though Organizations in Defense of Freedom does not take any position on the pending antiterrorism legislation, at least a few of its hundred-odd members are taking advantage of the moment. (The Free Congress Foundation, for example, testified that including anti-money-laundering provisions in the bill "would be giving up our privacy and other civil liberties.") Some conservative organizations, such as the NRA, have unique interpretations of certain civil liberties. Other groups have only selective enthusiasm for them.

But then, so did the Clinton administration. By partnering with Republicans, says the ACLU's Edgar, "we can make conservatives be consistent. We can make them follow through on their principles." Maybe they can do the same for the Democrats.

Your statement offers no credibility to the argument that elimination of Fourth Amendment protections for American citizens should be implemented , because it would have somehow saved the innocent people that perished in the attacks on Sept. 11.

This is how we protect American citizens, by possibly creating more victims by giving government authoritites the right to secretly search American citizens homes and business?

No discussion whatsoever, as to why the terrorists behind these attacks, had expired visas, and yet were permitted to freely roam around our country unchecked, and unrestricted?

No discussion whatsoever, as to why foreign nationals are permitted to enter the USA without more detailed and thorough screening?

To make the absolute argument that one must embrace all the demands of the Justice Department, (including the new immense power to secretly search citizens homes and business), in order to prevent a repeat of 9-11, is the same as saying that if we only lockup all of America, we will then be safe.

as many as 1,000 new agents in the Federal Bureau of Investigation and the Bureau of Alcohol, Tobacco and Firearms--"jackbooted thugs," as an NRA fundraising letter sent that March had described them--
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I was under the impression (since I didn't receive the letter myself) that the NRA letter merely alluded to the fact that there are indeed in existence some individuals who act in an intimidating manner. There actually do exist individual policemen and government agents who exceed the limits (I know since a close relative of mine was on a jury that convicted a policeman of murder by shooting a kid he had just handcuffed and who was just standing there). Just like there are good and bad people in every profession.

I really think it iw wrong for the author to give the false impression that the NRA specifically NAMED the FBI, BATF, etc. and he should rewrite his article to eliminate that misreading.

I'd remind all who read this that it was one of histories most notorious socialist tyrants, Adolph Hitler, who correctly declared

"What great luck for rulers that people do not think."

Yes, 9-11-01 was a terrible event and we must find and punish those responsible. And, sadly, there WILL be others.

But we must not punish ourselves and those who come after us by killing the idea that was America and for which idea so many have already paid the ultimate price. Should THAT happen, America the PLACE will no longer be worth saving. What’s to save?

Although Bush has apparently turned thumbs down to the NATIONAL ID CARD some in government have lusted after for decades, trust me, it WILL – like some perverted Phoenix -- rise from the ashes of the NEXT tragedy. The fact is that IF government at the state level – often commanded to be so by the feds -- had NOT been so free and easy with, for example, DRIVER’S LICENSES and a number of other “official” documents (which we now know several of the murderers secured from various states), it’s possible their miserable lives might have been complicated and their plot foiled.

But here’s the more fascinating question: WHY THE HELL WERE SOME OF THESE GUYS EVEN IN THIS COUNTRY? Much to the FBI’s and CIA’s consternation, it has come out that a number of them had long histories of suspicion of complicity in OTHER terror attacks and DIRECT ties to bin Laden.

It is common knowledge that the INS (ask any of the guys in the field!) had its hands tied in rounding up and deporting Hispanics ON ORDERS FROM ON HIGH to “go easy.” I wonder how much of THAT attitude slopped over to ALL aliens, legal and illegal.

And isn’t it interesting that we have heard so little lately about AMNESTY for illegals? And the operative term here is “heard.”

If the tragic events of 9-11 prompt a long overdue review of our entire immigration policy, the 5,000+ may not have died in vain.

Now the same government that so miserably failed in its prime Constitutional duty to protect America from all enemies, both foreign and domestic by allowing 5,000 of them to be slaughtered like helpless cattle – after we have ALREADY handed over huge chunks of our freedoms – may now be poised to seize the remainder. That that seizure is with the acquiescence of a majority of the citizens here DOES NOT make it acceptable. That is why America was INTENDED to be a CONSTITUTIONAL REPUBLIC and NOT the DEMOCRACY the Founding Fathers abhorred.

The strong, self-reliant men who created this place understood the danger of trading freedom for “security.”

"Gentlemen may cry, 'peace, peace'--but there is no peace. The war is actually begun! Is life so precious, or peace so dear, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty, or give me death!" -- Patrick Henry to the Virginia Convention on March 23, 1775.

"Those who would give up essential Liberty, to purchase a little temporary safety, deserve neither Liberty nor safety."
Benjamin Franklin, Pennsylvania Assembly, Nov. 11, 1755

Let me conclude by reminding you that the Nazi concentration camps and Soviet gulags were some of the most secure places on the planet -- for all BUT the inmates.

Is THAT what YOU want for YOUR kids and grand-kids?

Let's work the problem, people -- starting with thinking it all the way through.

No country on earth has willingly sacrificed its individual liberties in order to "protect" itself from terror more than Israel. It has gotten them nowhere.

If our liberties are taken way in the name of protecting ourselves from the "evil-doers" we have nothing to protect.

In the end, vigilance against evil is primarily a matter of individual responsibility. Individuals and private organizations must have the flexibility to deal with their security as they see fit. The constitution provides a great framework for this. Placing limitations upon the constitution will only inhibit our ability to combat evil at the ground level. It is little more than an elixir for mass consumption; an attempt to numb the public from the painful realization that the centralized federal government is actually incapable of protecting us.

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