Elected Chittenden County state’s attorney at 26, born-and-bred Vermonter Patrick Leahy was first elected to the Senate in 1974 with 49 percent of the vote. He was only 34 — the second youngest in the Senate. Over the next quarter-century, the Georgetown Law School graduate moved from the status of prematurely bald whipper-snapper to senior Democrat, cruising to increasingly easy re-election victories — in 1998 he defeated obscure cult-film hero Fred Tuttle, 72 percent to 22 percent.
While his politics are generally old-school liberal in the Kennedy-Humphrey tradition, Leahy is often willing to let his eccentric Vermontness come out, whether through dry wit or professions of his love for the Grateful Dead and Batman. (Leahy had a bit part in 1997′s abysmal “Batman & Robin”; he provided the voice of the governor of the Arizona territory in an episode of “Batman: the Animated Series,” and wrote the foreword for the 1992 collection “Batman: the Dark Knight Archives.”)
The more seriously-channeled energies of the so-called “Cyber-Senator” have been spent in support of foreign aid programs and in defense of civil liberties and privacy rights. He led the charge against both land mines and the death penalty, long before either cause became trendy.
With the defection of one-time rival and state junior Senator Jim Jeffords from the GOP in June, which handed the Democrats control of the Senate, Leahy jumped to the chairmanship of the powerful and high-profile Judiciary Committee. Even before then, as ranking Democrat on the committee, Leahy caused the Bush White House consternation by objecting to his nominee for attorney general — his former colleague from Missouri, defeated Sen. John Ashcroft — and holding up the nomination of Ted Olson as solicitor general.
In the post-Sept. 11 era, Leahy has emerged as perhaps the biggest obstacle to the sweeping law-enforcement powers sought by the Bush Administration and Attorney General John Ashcroft. After President Bush’s Sept. 20 address to a joint session of Congress, Leahy said that the government’s challenge was “to defend our freedoms and not diminish them in this effort.”
But constitutional freedoms are hardly the top concern of most Americans right now, so Leahy has recently found himself something of a lightning rod for criticism. On Oct. 2, Ashcroft condemned “the rather slow pace” he felt Senate Democrats were displaying in dealing with his anti-terrorism bill. “Talk won’t prevent terrorism; tools can help prevent terrorism,” Ashcroft said. In the closed-door confines of a Republican Senate lunch, he was even harsher. “He said he’s had three weeks of meetings with Vermont Sen. Pat Leahy and the time for discussions is running out,” a GOP source told Salon.
The bill soon passed, but tension between Ashcroft and Leahy — personifying the current face-off between security and freedom — did not. On Dec. 6, Ashcroft came before Leahy’s committee to answer questions about the Bush Administration’s counter-terrorism measures. The attorney general said: “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.”
Ashcroft clarified that he was referring not to critics like Leahy and others on the Judiciary Committee, but to those in the media who mischaracterize counter-terrorism proposals and laws. “The attorney general has the same right of free speech that we all do,” Leahy said after the hearing.
On Wednesday, Dec. 19, Salon spoke with Leahy by phone to discuss our brave new world.
You took some heat during the debate over what ended up being named the “Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,” or USA PATRIOT Act. When that bill passed the Senate with your support, 98-1, you said that “I did my best to strike a reasonable balance between the need to address the threat of terrorism . . . and the need to protect our constitutional freedoms. Despite my misgivings, I acquiesced in some of the Administration’s proposals to move the legislative process forward.” What are your problems with the bill that passed?
First, the sense that we were defenseless without it. Underlying that was the feeling by some that our security was more important than our Constitution. I felt that enough was being said by everybody that neither was true. One, we were not defenseless without it — we have stopped terrorists many times before. We just have to be better with the tools we have. And secondly, even assuming that there was any short term gain in turning back the Constitution, in the long term the damage is greater than anyone could find acceptable.
Like what?
When you start saying that we can forgo the rights to appeal, the rights of the press, that “We should suppress freedom of speech just this one time because it’s important.” It would take years or more to recover.
The American Civil Liberties Union has referred to some of the counter-terrorism measures as “Assaults on our freedoms.” Is the ACLU right?
I think that there are a lot of people who would like to have legislation that would really assault our freedoms. That happens all the time — it has to be up to those willing to put the brakes on to do so. Sometimes it’s easy enough to get enough people so you can be successful and put the brakes on; sometimes it’s not so easy. But the fact that there are more than just a very few of us asking questions about military tribunals indicates to me that at least [in that case] the brakes are going on.
The anti-terrorism legislation originally proposed by the administration — and given strong lip service by others — was stopped because we refused to be steam-rolled into the legislation, and we ended up with a package that had some very good things in it. It had some things in it that otherwise wouldn’t have been there, too, but the overall package was light years ahead of what was originally proposed.
In June, you held an FBI oversight hearing, saying that “the image of the FBI in the minds of too many Americans is that this agency has become unmanageable, unaccountable and unreliable. Its much-vaunted independence has transformed for some into an image of insular arrogance.” This came after a bunch of high-profile bungles — the arrest of Russian spy Robert Hanssen, or the last-minute discovery of more than 4,000 documents that had been withheld from Timothy McVeigh and his attorneys. You were going to hold another hearing after Labor Day, but obviously Sept. 11 postponed that. Do you think that the problems within the FBI may have hindered its agents from preventing the Sept. 11 terrorist attacks?
That’s one of the things we have to find out. One of the problems is that the Congress got in the habit of not having real oversight over the FBI. There was a feeling that, in a number of areas where the FBI had problems, that [former FBI director] Louis Freeh had corrected them. And indeed he had; after Ruby Ridge and some other problems he greatly improved a lot in the FBI. But there’s also a reluctance, for whatever reason — whether it goes back to the days of J. Edgar Hoover, I don’t know — to have responsible oversight.
But I said I would have no such reluctance. And when I became chairman, I said it would be one of the first priorities. It was an ideal time to do it; we had a new director coming in, and a new attorney general. And early on the attorney general and I talked, and we said let’s look at this anew. Let’s look at where there have been problems in the past and correct them in the future. One very obvious problem is that the FBI’s computer systems and communication systems are antiquated. And that’s been a problem in their ability to manage the flow of critical information. They’ve also had a lack of translators to handle the materials they were picking up.
I’ve felt this — I’ve said it publicly for years — that we need to have more of an emphasis on terrorism. I’ve felt that way as a member of the defense appropriations subcommittee. I’ve said it so many times I’m almost tired of hearing it: I’m not concerned about someone marching an enemy against us, or flying an air force against us, or sending a barrage of ICBMs against us because we’re far, far too powerful. The reaction and retaliation of the United States would be massive. I’m far more concerned about terrorists, who are dedicated and have state-sponsored financing and training, driving into one of our major cities with a U-Haul truck containing weapons of mass destruction — it could be chemical or nuclear or a dirty bomb, any number of things. The only way to stop something like that is before it happens. And the only way to do that is with good intelligence.
Are we doing enough now?
Well, I think we’re doing more. But a lot of these things don’t get put in place over night. To get a cadre of people who can translate languages other than fairly common languages. To put into place the connections — sometimes which are diplomatic as much as anything else — to get a heads-up. To realize that there are people — and always will be people — who want to damage the United States for whatever reason, whether because of our freedoms, our technology, our advanced wealth or power, whether it’s done out of envy or ideology, if they’re moved to attack us it’s the same.
It sure doesn’t feel like we’ve done enough.
In the past 10 years, with different FBI directors, different directors of the CIA, different attorneys general — I’m talking about both Republican and Democrat — we’ve had a number of successes. Most of which have not been publicized. I’ve been briefed about times when we’ve stopped an attack, and there hasn’t been lot of press conferences about it for obvious reasons; we hope they won’t do it again.
But we defend ourselves by defending ourselves — not by taking away all our freedoms. I’m constantly encouraged by a quote attributed to Ben Franklin at a time when he literally faced the hangman’s noose if he’d been unsuccessful. He said, “People who would trade their liberty for security deserve neither.”
What’s your take on the thousand or so individuals who have been detained by the FBI in the wake of the Sept. 11 attacks? Apparently 600 or so of them are still in police custody. Does that concern you?
It concerns me because I think it was done very, very quickly. It’s been more reactive than proactive. It’s too easy to say, “We’re only holding people who are out of status on their visas.” But there could be people [in custody] from a lot more countries than the ones who were targeted. It’s a better thing to say, “Let’s have a better way of tracking those with visas in the United States.” But it seems that there are probably better checks and balances now. Though I’m not absolutely certain that there are as many as there should be. Look at the number of people whose lives have been disrupted. It seems to me that a better job could be made in determining why someone has been picked up and detained.
Last week, White House spokesman Ari Fleischer took you to task, on the president’s behalf and probably behest, for not confirming enough of his judicial nominees. “There are more vacancies in the federal judiciary now than when President Bush came into office,” Fleischer said. “The Senate has failed to act on 37 of the President’s nominees to the bench. The failure to confirm qualified individuals in the judiciary hurts the American people.” Fair criticism?
We’re actually moving a lot faster than the Republicans did during the six years they were in charge, but I’m not using them as a touchstone in any way. Look, I’ve only been here since mid-July as the chairman of the full committee. It hasn’t been quite six months, and we’ve had to get organized. We’re moving very, very fast. We’ve gotten more judges through than either the first year of the first Bush’s term or the first year of Clinton’s first term, I forget which it is. And in between we’ve had a few distractions. There was Sept. 11, the anti-terrorism bill, staffs of 50 senators were forced out of their offices because of anthrax. Two anthrax letters were sent here to the Senate, including to my office. I think we’ve done pretty darn well.
On a personal level, how was it dealing with that anthrax letter sent to you — was it frightening?
Well, I was more worried about the people in my office. Senators don’t usually open their mail — so much comes in there. We’ve got some awfully good people working in this office, and they often start off in the mailroom, as an entry-level job, and work up to a much better job. These are very talented, highly educated, highly motivated young people. So I was more concerned about them. Obviously, like all Americans, I was shocked about the people who did die because they did come in contact, either directly or indirectly, with the anthrax in the letter to Sen. [Tom] Daschle or the one intended for me. I come from Vermont where these things don’t happen. We know each other, everybody’s on a first-name basis, everybody’s friends and neighbors.
How have you been getting along with your friend the attorney general? That was a bitter confirmation fight in January — Ashcroft was confirmed 58-42, a close vote considering his status as a former senator. It can’t be easy to work together after you opposed his nomination so vociferously.
When the confirmation hearing was over and the attorney general was confirmed I made a point to tell both him and the president, “He’s now the attorney general, he got the votes necessary for confirmation, he was sworn in, and as far as I’m concerned he gets a clean slate and we start anew.” We worked together on a lot of things as senators — the E-Privacy Act, encryption technology. . .
Which is interesting, since Ashcroft as a senator leaned toward the privacy side of the privacy vs. national security debate. And as you said, you and he worked to allow American companies to export encryption technology abroad, despite the opposition of many in the law enforcement community, who argued that would hamper their investigations, including those of potential terrorists. Now, of course, the attorney general seems to have assumed a different side in that debate. Do you see this as indicative of hypocrisy or more just a sign of the changed times?
To be fair to John Ashcroft, he would say that he is now attorney general carrying out the directives of the president, which is different than the position he took as an elected senator, when he would carry out the position of his constituency. [Former Michigan Republican Senator, current Energy Secretary] Spence Abraham is also friend of mine. When he came in here he was supportive of completely doing away with the Department of Energy. Now he’s the Secretary of Energy. I don’t have any problem with that. In one position he was an elected senator, and the people of Michigan could make up their minds if they wanted to vote for or against him. It’s another thing when you have the mandate to be Secretary of Energy and you’re trying to make sure the department will run the best that it can.
And in fact since Ashcroft’s been attorney general I’ve worked with him on the whole issue of FBI oversight. We used to talk several times a week about that and with the appointment of the new FBI director I told him I intended to begin a series of oversight hearings and he promised me nothing but complete cooperation and I received nothing but that.
But it got contentious recently.
I think we had a strained time during the terrorism legislation. I think he felt that if the administration said “Do it this way,” the Congress would simply do it that way. But we wouldn’t have done that when he was a member of Congress, we’re not going to do it now, and we’re not going to do it in the future no matter who the next president is. From his point of view he should be glad we improved it.
Why should he be glad?
Well, suppose we arrested someone under the law as it was originally proposed. They announce we’ve gotten a highly dangerous terrorist but then the courts have to void any arrest because it was based on a law that’s unconstitutional.
As a former prosecutor I can tell you that arresting someone is easy. Making someone convicted, and making sure that conviction is sustained, that’s the hard part.
I’ve heard you say that your job as a prosecutor was the best job you ever had.
No question. If you come into my office today — my Senate office — you’ll see there’s only one thing with my name on it, and that’s a plaque up on my door from when I was state’s attorney. The only photographs in my office are photographs which I’ve taken of family or of places in Vermont or around the world, which is no different than it was in my state’s attorney office.
You told an interesting story to Jane Mayer of the New Yorker about a sting operation from those days, an investigation you conducted of Paul Lawrence, a state trooper with a high arrest rate, whom you caught setting up an innocent man, an undercover cop you’d brought in from Brooklyn. This influenced you in making sure that there are checks and balances when it comes to law enforcement. The story said this motivates you today in your battles with the Ashcroft Justice Department. Was that case really so powerful?
Well, I don’t know what’s the chicken and what’s the egg on this. Whether my own thinking grew and evolved as a state attorney and that’s why I was able to go after this person, or while I was going after this person I realized more fully that those of us with positions of trust and authority should respect that. In any event, I knew we had someone who had run pretty well free throughout the state — except in my county — arresting people, some of whom were probably guilty, but an awful lot of whom were framed.
When he came to my county, where I was the prosecutor, I saw an opportunity to expose him for who he was. So we arrested him, and put in motion what came out a year or so after I left the state’s attorney’s office when the governor made a very difficult decision and pardoned everybody [Lawrence] had arrested prior to my arresting him. He did that knowing that some of the people he had pardoned were of course guilty. But it was impossible to determine which ones were guilty and which ones had been framed. The governor had been put in an impossible situation.
But he also knew that had I not moved to arrest him — and had we not had some police officers in that jurisdiction who felt as I did about positions of trust and authority — he would have continued to operate as he had. And a whole lot of innocent lives would have been wrecked. So those police officers worked with me in my efforts to trap the person.
One of the things you learn very quickly as a prosecutor: it’s very easy to charge someone, it’s very easy to wreck someone’s reputation just by bringing charges. Because no matter what they say about the presumption of innocence, usually the presumption is that the prosecutor has the right person and otherwise he wouldn’t be in court.
That’s why there’s a greater burden on the prosecution to make sure that people’s rights are protected. The defense attorney comes in after the arrest has been made, the courts come in after the arrest has been made, but it’s the prosecutors who decide whether the arrest should be made at all. Or they decide that this person shouldn’t be arrested and tried in the first place. The most discretion belongs to the prosecutor. He can do things police can’t do, things a judge can’t do, things a defense attorney can’t do.
Do you really think the state’s attorney job was better than the one you have now?
Well, I say that somewhat from a sense of irony. But it was a better job in this sense: I could make determinations for the public often on my own, and make sure that what I felt was right was the outcome. But when I was a prosecutor, I said that nobody should have that job for more than ten years or so. Because you do have the ability to play judge and jury. You don’t have the checks and balances that you might have in a legislative body. Obviously I’ve been able to use talents — to the extent that I have talents — to a greater extent in the Senate than I could as a prosecutor. But it’s also faster as a prosecutor.
Long before Sept. 11 you said, “Everybody is in favor of the First Amendment, but we’d have a hell of a time ratifying it today.” You must feel that in today’s climate it’d be doubly tough.
Not just in today’s climate, in any climate. Take the worst-case scenario. Imagine we’re in the McCarthy era. People would say, “What do you mean you want the First Amendment for Communists too?!” Today it would be, “What? For terrorists, too?!” It’s easy to say “Free speech — but not for that idiot that says ‘fill-in-the-blank.’”
The beauty of the First Amendment — it’s an absolute. That’s what so beautiful about it. You have the right to practice a religion — or not to practice a religion — as you see fit. It allows you to say what you want, including unpopular speech. It guarantees diversity. And when you guarantee diversity, you guarantee democracy.
The Senate Judiciary Committee on Thursday delayed its vote in the confirmation of Ted Olson as President Bush’s solicitor general. The move came after Sen. Patrick Leahy, D-Vt., publicly questioned inconsistencies in the answers Olson has provided about his role in the Arkansas Project, a $2.4 million, five-year effort to dig up dirt on President Clinton.
Fearing that his confirmation could be derailed by the allegations, Olson has attempted to downplay his role in the Arkansas Project, but with each new response, he seems to backpedal from his original account even further.
Olson’s evasiveness drew a rebuke from the ranking Democrat on the committee. “The credibility of the person appointed to be the Solicitor General is of paramount importance,” Leahy warned in a May 4 letter that followed Olson’s written responses to additional questions forwarded by the committee following his April 5 confirmation hearing.
In 1998, Salon ran a number of stories investigating Olson’s relationship with the right-wing magazine American Spectator, under whose auspices the Arkansas Project was run, and the circumstances under which he came to provide pro-bono legal representation for key Whitewater witness David Hale. Salon’s reporting refutes many of the statements made by Olson at his confirmation hearing and in his subsequent written responses and raises serious questions about his fitness for the office of solicitor general.
Salon compared the testimony provided by Olson at his confirmation hearing and his subsequent written answers to follow-up questions by the committee with the findings of exhaustive investigative reporting conducted by Murray Waas, Joe Conason and Jonathan Broder for Salon during the investigation of President Clinton. Here’s what we found:
On Olson’s role in the Arkansas Project:
Leahy: Were you involved in the so-called Arkansas Project at any time?
Olson: Only as a member of the board of directors of the American Spectator I became aware of that. It has been alleged that I was somehow involved in that so-called project. I was not involved in the project in its origin or its management.
The facts: An investigation by Murray Waas revealed that Olson “provided legal advice to both the American Spectator and the Arkansas Project,” in addition to serving on the boards of four conservative political groups funded by Richard Mellon Scaife, the reclusive Pittsburgh billionaire who has funded and has ties to many prominent right-wing groups, including the Federalist Society, which has served as a veritable breeding ground for Bush’s judiciary appointments. Both Olson and his then-colleague John Mintz at the law firm of Gibson, Dunn & Crutcher advised the Arkansas Project from its inception in 1993. “Olson is somebody who Scaife would trust to see that nothing went wrong and that his money would not be wasted,” a source told Waas at the time.
On Olson’s disputed presence at meetings of the Arkansas Project:
Leahy: There were no meetings of the Arkansas Project in your office or …
Olson: No, there were none.
The facts: The first meeting of the Arkansas Project took place in 1994 at Olson’s Washington law office and was attended by Olson, Stephen Boynton, Dave Henderson and others from the American Spectator and other Scaife-funded organizations, according to reporting by Jonathan Broder and Joe Conason. In a subsequent article about the extravagant, “tax-exempt” lifestyle of American Spectator editor R. Emmett Tyrrell, a third of whose $598,000 McLean, Va., home was owned by the nonprofit foundation that publishes the magazine, Salon obtained documents outlining “frequent visitors to Bob’s home/office for business purposes” and “dinners and meetings at RET’s home” in 1996 and 1997. Theodore Olson was among those “frequent visitors” — a list of whom reads like a who’s who of anti-Clinton journalists.
As reported by Salon’s Jake Tapper, Olson amended his response in a letter he sent to Leahy last week: “I do recall meetings, which I now realize must have been in the summer of 1997 in my office regarding allegations regarding what became known as the ‘Arkansas Project.’” Olson elaborates in the letter that he was the American Spectator’s attorney during the same period of time that the Arkansas Project took place. Olson also confirms that he did, in fact, convene a meeting about the Arkansas Project in his office prior to 1998. Of the 1994 meeting, he writes, “I do not recall the meeting described.” Olson adds, “I certainly was not involved in any such meeting at which a topic was using Scaife funds and the American Spectator to ‘mount a series of probes into the Clintons and their alleged crimes in Arkansas.’”
How Olson came to represent Starr’s key anti-Clinton witness:
Leahy: Mr. Olson, you represented David Hale — there’s no surprise here. These are some questions I asked you when we met. He was the sole witness to make specific allegations against President Clinton in the investigation of the Whitewater matter. How did you come about representing him and were you paid for that?
Olson: Two of his then-lawyers contacted me and asked — at the time, Mr. Hale was and is a citizen of Arkansas, and he was going to be — he was a witness down in the Whitewater proceedings that were being conducted by the independent counsel in Arkansas.
In his May 9 follow-up letter to the committee, Olson changed his tune, claiming he wasn’t sure who contacted him: “I cannot recall when I was first contacted about the possibility of representing Mr. Hale … I believe that I was contacted by a person or persons whose identities I cannot presently recall sometime before then regarding whether I might be willing to represent Mr. Hale …”
The facts: Salon’s Murray Waas conducted an extensive investigation into how Olson came to represent Hale in 1998. A disgraced former Arkansas municipal judge and con man, David Hale testified at the trial of then-Gov. Jim Guy Tucker and Jim and Susan McDougal that Bill Clinton had pressured him to issue an illegal $300,000 loan to the McDougals — a loan that became the center of the Whitewater investigation. Ultimately, his allegations were never substantiated. Waas’ reporting showed that Hale gave “false and misleading” testimony to a federal jury “in an effort to conceal his relationship with conservative political activists who ran a secret anti-Clinton operation.”
Among those activists was Olson, who was brought on board to quash a subpoena requiring Hale to testify before the Senate Whitewater Committee. During the April 1996 criminal trial of Tucker and the McDougals, Hale testified that he found Olson through Randy Coleman, who was his attorney at the time. However, sources with intimate knowledge of Hale’s defense said Coleman played no role in securing Olson. In fact, according to the sources, Hale was directed to the Washington lawyer by Stephen Boynton and Dave Henderson, two “decades-long friends” who were running the Arkansas Project.
Had Hale revealed his relationship with Boynton and Henderson, it would almost certainly have revealed the existence of the secret Arkansas Project, including his own role in it.
The assertion that Hale was directed to Olson by Boynton and Henderson was corroborated by Caryn Mann, who was the live-in girlfriend of Parker Dozhier, a fishing resort proprietor in Hot Springs, Ark., who was working as the “eyes and ears” of the Arkansas Project and was, according to Spectator records, paid at least $48,000 by the magazine. Mann told Salon, “David needed a separate attorney in Washington, D.C.. Parker was talking a lot to Henderson and Boynton about the problem. Henderson said that he would look for an attorney for Hale … Dave Henderson came up with a Ted Olson.”
Mann and her son, Joshua Rand, also alleged that Dozhier made numerous cash payments to Hale while the former judge cooperated with the Starr investigation. Those embarrassing charges sparked an investigation of Starr’s investigation by Michael Shaheen at the Justice Department — and raised serious conflict of interest questions for Kenneth Starr, a longtime Olson friend who had been planning to become dean of the Scaife-endowed Pepperdine University School of Public Policy. (He subsequently withdrew himself from the job.) Shaheen’s investigation remains under seal.
Since when do liberal Democrats support the death penalty? Since when does Massachusetts Sen. Ted Kennedy support mandatory minimum sentences for 14-year-old offenders? Since when does California Sen. Barbara Boxer turn a deaf ear to the disproportionate number of African-Americans in prison?
Since Thursday, May 20, 1999.
That’s when the Violent and Repeat Juvenile Accountability and Rehabilitation Act passed the Senate, 73-25, with nearly unanimous Democratic support. And while debate over the gun-control provisions in the act, known as the juvenile justice bill, received much fanfare and media ballyhoo, what is less well-known are the conservative Republican measures that constitute the larger share of it.
These were provisions that Democrats in the Senate had adamantly opposed last year, creating an impasse on legislative action and sticking the bill in senatorial purgatory. Then known as S10, the bill was reported out of the Judiciary Committee but it never hit the Senate floor because so many Democrats found much of the bill irreparably odious.
But it lives! Even though Majority Leader Trent Lott, R-Miss., took a lot of right-wing heat for his role in the passage of the juvenile justice bill’s gun-control measures, in a just and fair world his conservative critics would also be giving him major props. Because when Lott went looking for a bill that would allow the Senate to look like it was addressing the massacre at Columbine High School, it was a modified S10 that he picked — a fine right-wing horse to which he allowed the Democrats to hitch their gun-control wagon.
With some tweaking, the bill that the Senate passed a few weeks ago, with added gun-control amendments, is the same one the Los Angeles Times described as taking a “rigid, counterproductive approach” to juvenile crime prevention, the same one the St. Petersburg Times called “an amalgam of bad and dangerous ideas.”
How could Lott have so easily given S10 a pretty new dress and shoved it out on the Senate dance floor, where so many Democrats lined up to give it a big fat smooch?
“I don’t think people had any serious awareness of what was in the juvenile justice bill,” says Sen. Russ Feingold, D-Wis. Thus, pro-gun conservatives should take solace in the fact that left-wing civil liberties and civil rights groups are now as miserable about the bill as they are — and specifically about the way the bill was handled. The world’s most deliberative body opted not to deliberate all that much on juvenile justice in this heated go-round.
How could liberals like Kennedy, Boxer, Vermont Sen. Patrick Leahy, Michigan Sen. Carl Levin — in fact, every Democrat present except for Feingold and Minnesota’s Paul Wellstone — not have known what was in the bill?
Good question, Republicans say. “This bill has been around for two years, we didn’t ‘sneak’ anything through,” says Jeanne Lopatto, press secretary for the Senate Judiciary Committee. “We had hearings, a [Judiciary] Committee mark-up and quite a lengthy debate on the bill. All these issues have been aired in the last two years.”
“The bill was hijacked by two different agendas,” Feingold explains, “by those who were supporting, after Columbine, certain aspects of gun control, and by those who wanted to use it as an excuse to blame Hollywood and TV. But the bill is supposed to be about intervening, and addressing problems with juveniles — how to get an 11- or 12-year-old kid on the right track. The Senate ended up approving a bill that is very harmful in terms of creating wise public policy. And also very regressive.”
Calling the Senate bill “mean-spirited and wasteful,” Rep. Bobby Scott, D-Va., a member of the House Judiciary Committee, says that he “was disappointed at the Senate action. In the House, we have two juvenile justice bills that are constructive, that we have had hearings on and that are a result of a bipartisan consensus — not only of politicians, but of experts.”
Scott fears what might happen to the House’s bills in the current climate, given that the Senate set the debate on what he feels is the wrong path. “Once you allow explosive politics to set in, there’s no telling what might happen.”
Explosive politics carried the day in the Senate, advocates say. Senate Democrats “sold their souls for gun control,” is how Rachel King, legal counsel for the American Civil Liberties Union, puts it.
King and other analysts from liberal advocacy organizations rattle off a laundry list of problems they have with the bill that passed so overwhelmingly just a few weeks ago.
These provisions include creating a new death penalty for animal-rights activists and eco-terrorists who kill, one of Sen. Orrin Hatch’s pet causes due to recent violence in his home state of Utah. “Senators were laughing on the floor [of the Senate] when that was being voted on, it was so ridiculous,” Feingold reports. “Even its supporters. We were frivolously voting for an expansion of the death penalty — it reminded me of when I was in the [Wisconsin] state Legislature, the seriousness with which we passed a Girl Scout week resolution.”
Another provision under fire from liberal groups includes establishing mandatory minimums for young criminals. “We don’t like mandatory minimums for anyone,” says the ACLU’s King. “But especially for children. Lots of things drive children to commit crimes — it’s unhealthy to take away a judge’s ability to do something more creative or useful for a specific” juvenile offender. “When this bill passed, Senate Republicans were saying, ‘We can’t believe they voted for this.’” The juvenile justice bill also makes it easier to prosecute children as adults, and unlocks the criminal records of juveniles, heretofore sealed once they reach adulthood.
The most controversial measure in the bill, however, and the provision that was the largest obstacle to S10 reaching the floor of the Senate last year, would repeal a requirement that states assess and make plans to combat what is called “Disproportionate Minority Confinement.” In 1988, Congress passed a law requiring states to assess and implement strategies to combat the fact that larger proportions of minority youth, especially African-Americans, are locked up than whites.
Hatch wanted this law repealed.
But juvenile offenders who are African-American are treated with more severity in every step on their path in the justice system, supporters of the 1988 provision say. According to statistics from the Department of Justice, black kids between the ages of 10 and 17 constitute 15 percent of the U.S. population, 26 percent of juvenile arrests, 32 percent of the referrals to juvenile court, 41 percent of those kids detained in delinquency cases, 46 percent of the juveniles secured in correctional facilities and 52 percent of the juveniles transferred to adult criminal courts. Minority kids on the whole constitute 68 percent of the kids in juvenile detention facilities — a percentage that far exceeds that of minority kids at the beginning of the process, when they’re first arrested.
And as Wellstone pointed out on the Senate floor, “black males and females were six times more likely to be admitted to state juvenile facilities than their white counterparts — same crimes, six times more likely. Property crimes: Black males were almost four times more likely to be admitted to state juvenile facilities than white males, and black females were almost three times more likely to be committed than white females. Drug offenses: Black males were confined at a rate 30 times that of white males. In fact, among all offense categories, black youth were more likely to be detained than white youth during every year between 1985 and 1994 … These are damning statistics.”
Not, apparently, to Hatch, who — throughout the S10 debate in 1997 and 1998 — insisted the Disproportionate Minority Confinement requirements be removed from law altogether.
In the 1998 debate over S10, “Hatch and [Alabama Republican Sen. Jeff] Sessions and a bunch of other senators and staffers wanted that stuff out of there,” reports Jason Ziedenberg, a policy analyst with the liberal Justice Policy Institute. “It got to the ludicrous point that Republican Senate staffers suggested that instead of the word ‘race,’ the bill should use the word ‘class.’ So we had these Republican staffers turning around and becoming Marxists.” The suggestion didn’t take. “It died on that issue,” Ziedenberg says. “In the final hours, the Republicans wouldn’t allow any mention of race, and the Democrats wouldn’t allow the issue of race to die.”
Not so this year. According to Ziedenberg and others, Patrick Leahy — the ranking Democrat on Judiciary — didn’t put up half as much of a fight on the issue this time. “Leahy’s staffers were front and center last year,” Ziedenberg says. This time, he says, “they folded their cards.” Leahy press secretary David Carle insists that this year’s bill was much improved from last year’s, and explains that Democrats tried to refine it even further during the amendment process.
And indeed, on May 19, Wellstone, Kennedy, Feingold and Sen. Dianne Feinstein, D-Calif., introduced an amendment to restore the “Disproportionate Minority Confinement” requirement.
“You still can’t ignore the fact that these kids are committing crimes,” countered Hatch, who hails from a state that is 1 percent black, during debate over the Wellstone-Kennedy amendment. “Just because you would like the statistics to be relatively proportionate, if that isn’t the case, because more young people commit crimes from one minority classification than another, it doesn’t solve the problem by saying states should find a way of letting these kids out … If there is literally a civil rights violation or a discrimination against minority youth, then that is a problem I think would need fixing. But I don’t think that is a case that has been made so far.”
A majority of Hatch’s colleagues agreed with him, and the Wellstone-Kennedy amendment was voted down — or “tabled,” to be precise — by a largely party-line vote of 52-48. Republican Sens. John Chafee of Rhode Island, Jim Jeffords of Vermont and Arlen Specter of Pennsylvania joined the Democrat minority.
That angered members of the Congressional Black Caucus, who were already in an uproar due to recent high-profile police abuse cases — the NYPD’s brutality against Abner Louima and killing of Amadou Diallo, the Riverside, Calif., police shooting of Tyisha Miller and increased attention to the issue of police stops for “driving while black.”
“The problem could be racial prejudice on the part of the criminal justice system, it could be that prevention programs need to be placed in high crime areas — but you don’t know what it is unless you address the problem,” says Bobby Scott, who is a member of the Congressional Black Caucus. “But the suggestion that you don’t even have to look is ridiculous. The politics of the juvenile justice bill in the Senate became so overwhelmed by the gun provisions that people paid very little attention to the other provisions in the bill.”
Feingold agrees. “One of the ways we prevent some of this stuff is to give a bill proper committee consideration,” he says. “When you get into a committee hearing, you can make an argument against some provision that is just extreme, and often you’re able to shame people into backing off. When you take the committee role out, you end up passing a lot of stuff that has not been properly considered and vetted. Especially when the leadership is urging you to look at the big picture.”
But the Senate Democratic leadership saw the gun control issue as a political winner, and chose to ignore what they’d fought in previous versions of the bill. “Politically, the bill represents a loss for Republicans and a win for Democrats — even if we don’t like everything that’s in it,” said one Senate staffer in the Democratic leadership.
Many liberal groups express hope that some of the bill’s problem provisions can be rectified in the House. Feingold says that the presence of real, live African-Americans in the House should help. “During debate over the bill, I looked across the room and I noticed that now — with the loss of [ex-Illinois] Sen. Carol Moseley-Braun, there are no African-Americans in the Senate,” he says. “Had there been an African-American on the floor of the Senate, that racial disparity provision would not have passed.”
But the Democratic leadership staffer insists Feingold and advocacy groups are missing the big picture. “The advocacy groups are dealing with the world as it ought to be,” the staffer says. “The Senate is a place where we deal with the world as it is. On balance, it represents a meaningful step forward in the efforts to keep guns out of the hands of kids and to reduce some gun violence. We had to take some bad with the good, but we were willing to do it. It does suck, but that’s just the way it is.”
You’ve probably received an e-mail petition protesting a proposal to cut Congressional funding for public broadcasting and the arts. In fact, you’ve likely received it more than once.
What you may not know is that it has been making the rounds since 1995, when two University of Northern Colorado freshmen — who, like most people at the time, were new to the Internet — e-mailed it to their friends. Recipients were supposed to tack on their names, pass it along and — after every 50th signature — forward a copy to the authors.
The petition snowballed, and not in a good way. The university’s server was inundated with replies, many of them venomous.
“A lot of people consider those things spam,” says a programmer at the university’s information services department, who asked not to be identified. “There were a lot of suggestions as to what to do with the creators, most of them not very kind.”
The pair’s frosh mistake was to presume that flooding e-mail inboxes with a well-intentioned petition would be well received. But as this ceaselessly circulating petition and many others have shown, e-mail activism doesn’t always have a WD-40 effect on the wheels of participatory democracy: It backfires as often as it succeeds. The secret to making online activism effective seems to be knowing when to turn to e-mail and what to use it for.
There is, of course, a distinction to be made between using e-mail to communicate and using it to reproduce spam-like petitions. Chain letters have proven themselves to be fairly useless; more sophisticated petitions, posted to a Web site that collects signatures, have garnered more respect.
Plenty of people argue that e-mail simply doesn’t lend itself direct communication between the people and their representatives. “You want to make noise as an advocate — you want the walls to shake,” says Jonah Seiger, co-founder of Mindshare Internet Campaigns, a Washington new-media political consulting firm. “E-mail has no weight, no mass. It comes in quietly.”
Seiger says e-mail is best used by an organization to communicate with its members. “It’s the single most important tool in its ability to keep people informed and keep them interested in something,” he says. Groups ranging from the World Wildlife Federation to the National Rifle Association have e-mail action alert lists, and many provide standardized letters on hot-button issues that can be edited and then sent to members of Congress by e-mail or fax.
But some groups say e-mail’s uses go beyond information and mobilization — it can also bring concrete results. The U.S. Public Interest Research Group (U.S. PIRG) uses e-mail to rally support for its Arctic wilderness campaign. The effort aims to prevent oil drilling in the Arctic National Wildlife Refuge, which the group claims is the only area along Alaska’s north slope not open for oil and gas drilling. By urging university students to e-mail British Petroleum, ARCO and Chevron (Exxon, as far as U.S. PIRG can tell, has no public e-mail address) and ask them to cancel their drilling plans, the group has sparked three separate waves of e-mail protest.
“We got their attention and held it,” says Athan Manuel, director of the campaign. A month after the first Arctic action day, the group got a call from BP, its biggest target, he says. “We’ve met with them three or four times now, and each time, we met with someone more and more senior — the last meeting was even with someone who was British! That was a first.”
Web-based petitions, too, have shown an ability to harness public sentiment and support. A petition protesting the Communications Decency Act in 1995 collected 115,000 signatures, according to Seiger. He helped organize both the petition and the related “black page protest,” in which many Web sites went dark to demonstrate opposition to the law. More recently, the Censure and Move On campaign — founded by Joan Blades and her husband Web Boyd — used a Web-based petition to urge Congress to formally admonish President Clinton and get on with its business, gathering 500,000 signatures along the way. Move On also used e-mail to direct people to the site, asking interested parties to send it only to friends and not spam indiscriminately.
“E-mail is a unique way for people to be involved directly,” says Blades, adding that the Web-based model works best for single issues that attract a broad range of participants. The Move On site now features a new Littleton, Colo.-inspired petition, asking visitors to add their names in support of the idea that it is time for government to accept its proper role in regulating firearms.
Web-based petitions work because they have the potential to channel protest to the most appropriate recipient, the sender’s representative or senator, says Chris Casey, a Congressional staffer and author of “The Hill on the Net: Congress Enters the Information Age.” That’s key, since a recent study shows that most members of Congress don’t pay attention to e-mail from outside the home district. (Many legislators don’t post their e-mail addresses and some, like Dick Armey, have introduced elaborate forms to ensure that their only communication is with their own constituents.)
Meanwhile, other groups have discovered Web-based activism. Visitors to Families USA can sign a petition urging their congressperson to enact a patient’s bill of rights. At the June 4 site (named for the date of the Tiananmen Square massacre), visitors can add their names to a petition protesting China’s human rights record that will be delivered to Chinese President Jiang Zemin, U.N. Secretary General Kofi Annan and U.N. High Commissioner for Human Rights Mary Robinson. And Toledo, Ohio, voters can participate in a movement to recall mayor Carty Finkbeiner — although the site requires people to print out the petition and physically sign it. “Opportunities in this area are going to continue,” predicts Casey.
To be sure, it can be hard to pin down the results of online activism. The Communications Decency Act ultimately passed Congress (it was later ruled unconstitutional by the Supreme Court), while Censure and Move On didn’t convince Congress to do either. Though organizers didn’t achieve their political goals, they say they did have an impact. Blades of Move On concedes that the petition got very little direct feedback from Congress, but as signatures started coming in, it seemed to bolster the Democrats to speak up against impeachment. Move On also attracted $13.2 million in campaign contributions, and volunteers pledged to spend a total of 750,000 hours supporting candidates who oppose those who voted for impeachment.
Meanwhile, Congress is getting more receptive to e-mail. A 1998 Bonner & Associates/American University survey of 270 Congressional offices showed that 90 percent of the offices used e-mail, with most of the others planning to do so within a year.
Sen. Patrick Leahy (D-Vt.), who co-founded and co-heads the bipartisan Congressional Internet Caucus, pays attention to electronic messages. “He’s put e-mail on par with phone and mail messages,” says
Leahy’s spokesman David Carle. But not everyone is so inclined. When considering a policy position, most Congressional offices give the most weight to personal letters, followed by personal visits, telephone calls, faxes, personal e-mails, paper petitions, form letters, postcards and form e-mail, according to a recent study by OMB Watch, a nonprofit group focusing on activities at the Office of Management and Budget.
Basically, congressional offices don’t give equal weight to preprinted, postage-paid postcards and handwritten, stamped letters, and they apply that same framework to e-mail. “People think, ‘Why stop with my own congressperson? I can cc them all!’ Somehow they think they have a louder voice if they send it to every member of Congress,” says Casey. In fact, legislators treat such spam-like messages the same way we all do.
Sites that use the “click here and e-mail every member of the U.S. Senate” aren’t effective, adds Casey, and “e-mail sent to everyone in Congress is likely to be received by no one.” To be counted, send it to a single member — either your own representative or a committee head responsible for a particular issue. “E-mail, done right, has every expectation of being received and responded to,” he says.
That response will still likely come by regular mail. And just 15 percent of the Congressional offices surveyed use e-mail to keep constituents up-to-date on issues that may be important to them, according to the Bonner/American University study.
Casey is optimistic that e-mail and other forms of electronic democracy are increasing participation, saying that there’s no indication that phone and letter contacts are going down. But he urges people to think beyond the confines of e-mail petitions. When e-mail doesn’t provoke an anti-spam rage, or generate petition fatigue, it can give people a false sense of having done something worthwhile. “People end up feeling that they’ve had a voice,” he says. “In fact, they’ve been misled.”
E-mail activism actually follows the common-sense rules that govern most communications. It can be effective — but only when the medium is used respectfully, by one individual or group making a sincere attempt to share ideas with another.
