I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, March 11, 2006

A trip down right-wing memory lane

What "conservatives" used to say about the Limits of the Federal Government, the Dangers of Surveillance Powers, and Investigations into Alleged Governmental Law-breaking

One of the most truly extraordinary spectacles to witness is the way in which so many self-proclaimed conservatives have shed their core defining "principles" in order to justify and defend the ever-expanding powers of the Federal Government under the Bush Administration. Throughout the 1990s, conservatism was defined by its fear of expansive powers seized by the Federal Government -- particularly domestic law enforcement and surveillance powers. Conservatives vigorously opposed every proposal to expand government investigative and surveillance power on the ground that such powers posed intolerable threats to our liberties.

I've tried to make this general point before, citing, for instance, this article from Free Republic decrying the power of the Federal Government to obtain warrants from a secret court (!) called the FISA court, which authorizes the government to actually eavesdrop on American citizens without their knowledge! But if one goes back and actually reads the statements made by leading conservatives throughout the 1990s regarding not just surveillance powers but all matters relating to Federal Government law enforcement powers and the need for vigorous and objective investigations into allegations of government law-breaking, the complete and total reversal of all of their views upon taking over the government is truly mind-boggling. (And, by the way, John Kerry has no character because he apparently changes his mind on issues, which makes him a spineless flip-flopping opportunist).

Here's your trip down memory lane, when conservatives used to pretend that they believed in principles of limited government powers, the need for investigations into law-breaking accusations, and the preference for individual liberty over increased security:

Let us begin with Sen. John Ashcroft, warning in July, 1997 of the profound dangers posed by proposals for the Federal Government to overcome encryption technology in order to enable the Government to monitor international computer communications (justified by the Clinton Administration on the ground that terrorists use such communications and the U.S. government must therefore be able to monitor them):

J. Edgar Hoover would have loved this. The Clinton administration wants government to be able to read international computer communications – financial transactions, personal e-mail and proprietary information sent abroad – all in the name of national security.

In a proposal that raises obvious concerns about Americans' privacy, President Clinton wants to give agencies the keys for decoding all exported U.S. software and Internet communications. . . .

Not only would Big Brother be looming over the shoulders of international cybersurfers, he also threatens to render our state-of-the-art computer software engineers obsolete and unemployed.

Granted, the Internet could be used to commit crimes, and advanced encryption could disguise such activity. However, we do not provide the government with phone jacks outside our homes for unlimited wiretaps. Why, then, should we grant government the Orwellian capability to listen at will and in real time to our communications across the Web?

The protections of the Fourth Amendment are clear. The right to protection from unlawful searches is an indivisible American value. . . .

Every medium by which people communicate can be exploited by those with illegal or immoral intentions. Nevertheless, this is no reason to hand Big Brother the keys to unlock our e-mail diaries, open our ATM records or translate our international communications.

Those who made such arguments in 1997 were great patriots defending American liberty. Now, anyone who says such things is -- according to Ashcroft himself -- an al Qaeda ally who is working subversively to destroy America.

Next we have Bush supporter Ramesh Ponnuru, writing in the May 8, 2000 edition of National Review on the dangers of federal government "storm troopers," as illustrated by the Elian Gonzales seizure, and specifically protesting the way in which such law enforcement powers are justified by highlighting the difficulties faced by Clinton Administration officials as they struggle with the difficult challenges of exercising power for our own good:

At every step of this drama, we have been invited to ponder how administration officials feel. Network anchors said that the standoff must be "tearing Reno up," given her deep concern for children; her deputy, Eric Holder, told us that he held her as she cried. Afterward, there was endless talk about the patient, compassionate attorney general. The INS agents who did the dirty work were also available to the press. They said they had never encountered such resistance before, citing the couch that had been placed against the door.

Let us hope this administration's mercy is never deployed against us. If that happens, we will be reassured that we are being pummeled and jailed for our own good. Our punishers may be psychiatrists, as Elian's are likely to be. For now, though, the style of government licensed by our carelessness does not touch us. We send a child to suffer tyranny for his own good, and to get him off the evening news. Like Winston Smith, we weep and realize that we love Big Brother.

Is that at all like the way we hear about how George Bush wakes up every day thinking about how to protect Americans and we should therefore be grateful to him for his spying on us as he struggles to defend us? Like Winston Smith, we weep and realize that we love Big Brother.

Then we have Bush follower Kate O'Beirne, expressing outrage in the September 27, 1999 issue of National Review over the inadequacies of the Congressional investigation into allegations of Federal Government abuses of power at Waco. It seems that our democracy is threatened when allegations of abuse of power are made against an Administration, the Administration withholds documents from Congress relating to the controversy, Congress fails to adequately investigate the allegations, and the wrongdoers are left in power with no scrutiny over their actions:

The FBI has returned Washington's attention to Waco by admitting that it used incendiary military devices during its raid on the Branch Davidians. There have been calls for special committees to conduct new investigations into the "cover-up," and conspiracy theorists are enjoying a new respectability. But the charge of a cover-up risks masking the truly important issues raised by the Waco tragedy.

Two House subcommittees held hearings in 1995. On the opening day, Democrat John Conyers declared that there was nothing to warrant the scheduled eight days of hearings. Another Democrat, Tom Lantos--who had presided over no fewer than 27 hearings on a now-forgotten HUD scandal--raised questions only about the gun lobby's interest in the hearings. Other Democrats cared about nothing but allegations that Branch Davidian leader David Koresh had committed child abuse.

For its part, the administration made a show of cooperation, but tried to impede the committees' access to relevant material. Thousands of documents were not made available until the hearings began. The Department of Treasury delivered documents in no apparent order, and provided an index only to the committees' Democrats. . . .

We already know the basic story of Waco, including many of its key details. And that story makes unmistakable what the real scandal is: that Janet Reno, who presided over the whole debacle and has never seriously investigated it or held anyone to account for it, remains the top law- enforcement official in the country.

So, according to O'Beirne, it is just outrageous when Congress refuses to conduct investigations into allegations that Administration officials broke the law, and the scandal is that much worse when the Administration withholds documents relevant to that investigation.

And then we come to Deroy Murdock, writing on April 13, 2001 in National Review Online on the grave dangers to our country from allowing political officials to act in violation of the U.S. Code without so much as an investigation:

[Cato Institute's Timothy] Lynch exposes a maddening culture of impunity in which few officials face serious consequences for violating the law. This double standard, in which federal badges become licenses for lawlessness, typified the Clinton-Reno years. The Bush-Ashcroft team should end this intolerable situation by prosecuting those federal officials who apparently broke the law at Waco and thereby contributed to the injury and deaths of scores of innocent American citizens. . . .

"Because numerous crimes at Waco have gone unpunished," Lynch states, "the people serving in our federal police agencies may well have come to the conclusion that it is permissible to recklessly endanger the lives of innocent people, lie to newspapers, obstruct congressional subpoenas, and give misleading testimony in our courtrooms."

While it is ugly but legal to lie to reporters, these other acts clearly are criminal. Private citizens are jailed for less. Unless "equal justice under law" is a slogan as hollow as a spent bullet casing, federal prosecutors must indict and try the law enforcement officials who, as Timothy Lynch convincingly argues, set the U.S. Code ablaze eight Aprils ago . . . .

Convicted felon and current Bush official Elliot Abrams spoke so very eloquently in the September 27, 1997 issue of National Review of the need in our system of government to have objective oversight and investigation -- not politicized and friendly rubber-stamping from the Justice Department -- when our highest government officials are accused of breaking the law:

For conservatives, Waco is in large part a quis custodiet problem: Who guards the guardians? Whatever faith we may wish to place in the professionals of the FBI, who guards them from error? Who looks over their shoulder? Who punishes their abuses?

This is a problem only in practice, not in theory. In theory, the answer is easy: the professionals of the Department of Justice. Distinguished practitioners of the law who are presidentially appointed to the department work together with Justice's career staff to provide a check on the FBI and other federal law-enforcement agencies. This is critical, because the balance between energetic law enforcement and limits on excessive government power will not be maintained if the Justice Department does not seek vigorously to maintain it.

And then we have Newt Gingrich, who, as reported by the May 11, 1995 issue of Roll Call (not available online), told us how those rugged individualist conservatives in the West and Midwest fear the Federal Government and insist on limiting its intrusion into our lives even if it meant giving up some security. Apparently, fear of the Federal Government is part of the core American character:

When asked on NBC's "Meet the Press" about Rep. Helen Chenoweth's (R-Idaho) outrageous proposal to force federal law enforcement agents to check with local sheriffs before making an arrest, Gingrich finally got around to opposing it, but not before cautioning that "Easterners...and people who live in big cities ought to understand that there is, across the West, a genuine sense of fear of the federal government. This is not an extremist position in much of the West."

As a result of the federal assault on the Branch Davidian complex in Waco, Texas, and a shoot-out at a white supremacist's cabin in Idaho, Gingrich repeated, "There is in rural America a genuine - and particularly in the West - a genuine fear of the federal government and of Washington, DC . . . .

That was the glorious era when conservatives were fond of claiming that engrained in the American spirit is a fear and distrust of federal government power that the government ignored at its peril. Those who express distrust now over the Federal Government's having unlimited powers to detain and engage in surveillance against American citizens are paranoid, anti-American freaks. Back then, they were the rugged patriots from the salt of the earth. From the Los Angeles Times on May 15, 1995 (not available online):

Shedding an earlier caution, many Republican politicians have been speaking out with increasing boldness to support positions taken by right-wing militia groups.

Even as President Clinton has attacked the groups' claims to patriotism, House Speaker Newt Gingrich (R-Ga.) and a growing corps of allies from Western states have recently expressed sympathy for some citizens' fears of encroaching government, called for new scrutiny of federal law officers and rejected demands for investigations of the militias themselves.

While none are defending the Oklahoma City bombing or anti-government violence, they are seeking to focus the policy debate stirred by the attack not on the militias but on the government agencies that militia members and their sympathizers consider the enemy. . . .

Last week, Gingrich declared that Westerners have a "genuine fear" of the federal government that Easterners and city dwellers should try to understand. . . . Sen. Craig Thomas (R-Wyo.) has declared his sympathy for Westerners angry at government, saying: "I don't disagree with their arguments." And Rep. Helen Chenoweth (R-Ida.) has said plainly that citizens "have a reason to be afraid of their government."

It is not only the most conservative Republicans who have joined the cry for new scrutiny of alleged excesses by federal agents. Sen. Arlen Specter of Pennsylvania, the most liberal member of the GOP presidential field and a subcommittee chairman, jousted with Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) last week over which one of them would preside at hearings into the federal assaults on the Branch Davidian compound and Weaver's home in Idaho.

Self-identified conservatives spent the 1990s relentlessly claiming to believe in principles of limited federal government power, and insisting that our very democracy and basic protections of individual liberty were gravely endangered by the existence of law enforcement and surveillance powers which are a small fraction of those which have been seized and are now exercised by the Bush Administration. And conservatives then demanded all sorts of sweeping Congressional investigations into every allegation of law-breaking by Administration officials, and depicted any resistance or insufficiently vigorous investigation to constitute a "cover-up" that was simply inconsistent with the rule of law and intolerable in our democracy.

It is the case, of course, that hypocrisy is common and our political discourse is not exactly characterized by great intellectual consistency. But when the contradictions spewed by political figures and pundits are this glaring and complete on matters of such central contemporary importance -- when our country's dominant political movement articulates positions which fundamentally contradict virtually every principle it previously claimed to believe in -- shouldn't they at least be asked about these things and compelled to provide some explanation?

Illustrating the utter corruption and dishonesty of Bush followers, both in the Congress and in the pundit class, is accomplished simply by comparing what they said then to what they say now. Isn't this something which the media ought to be doing much, much more of as Bush followers seek to suppress investigations into every allegation of wrongdoing on the part of our highest government officials?

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