Conservative constitutional catfight!

Right-wing activists team up with the left-wing ACLU to bash the PATRIOT Act. The Justice Department is not amused.

Published April 11, 2003 11:33PM (EDT)

One year ago, on April 10, 2002, influential conservative activist Grover Norquist was at the Arab American Institute Foundation's annual Kahlil Gibran Spirit of Humanity Awards dinner when he saw one of the more liberal members of Congress, Sen. Russ Feingold, D-Wis.

Norquist felt compelled to shake his hand. Feingold had been the only senator to vote against the USA PATRIOT Act, which Norquist opposed for giving the government too much power and robbing citizens of basic rights to privacy and civil liberties. Norquist had worked on curtailing some of the government's powers on the House side with then Majority Leader Dick Armey, R-Texas, and members of the American Civil Liberties Union. He assumed that the Senate -- then under Democratic control -- would make even further movements in that direction. It didn't. In fact, in Norquist's view, what came out of the Senate was even worse -- fewer protections for citizens, more power for government, more secrecy.

He asked Feingold why that was. At the very least, the Senate could have adopted the House version. Why didn't they?

Feingold pointed across the room, at then Senate Majority Leader Tom Daschle, D-S.D., also a dinner attendee. "Because Daschle told us to fold," Feingold said.

When asked about Norquist's story, Feingold's office referred a reporter to the senator's remarks on the floor of the Senate on Oct. 11, 2001, when he was denied the opportunity to offer amendments to the bill. That day, Feingold condemned Daschle for having "asked senators to not vote on the merits of" the legislation, "one of the most important civil liberties bills of our time."

With leaders like Daschle on the left, Norquist feels compelled to take up the fight he says he previously "always sort of assumed the ACLU and the liberals would take care of. I'm not sure ... we can count on our left-of-center friends."

There seems to be agreement on both sides of the aisle on that point. So the result was an ACLU forum Thursday billed as the "first time organizations from the left and right in Washington have come together publicly to discuss their growing common ground on civil liberties in the post-9/11 world," featuring not only Norquist, president of Americans for Tax Reform; but three other notable conservatives as well: David Keene, president of the American Conservative Union; Lori Waters, executive director of the conservative Eagle Forum; and outspoken former Rep. Bob Barr, R-Ga., a 1998 House impeachment manager. The four were invited by Laura Murphy, director of the ACLU Washington legislative office, and the event provided an interesting glimpse at not only some of the problems conservatives have with how the war on terror is being fought at home, but the limits of even their influence over the Bush White House.

This did not go over well at the Department of Justice. Responding to their criticism, Barbara Comstock, the DOJ's public affairs officer, took issue with their complaints, and also with the idea that the four represented the conservative movement at large. (It also probably didn't help that, according to Comstock, a Justice Department communications staffer was barred from attending the event, purportedly because the staffer didn't have press credentials. The ACLU denies that anyone was refused admission to the room, though reporters were given priority seating.)

Deeming the criticisms "inaccurate and intentionally misleading," Comstock noted that "time and time and time again what we have been doing has been held up in the courts," including the expanded authority to designate individuals as "enemy combatants" and the sharing of foreign intelligence surveillance information between intelligence and law enforcement agencies.

Critics have long been charging the Justice Department with moving to erode the checks and balances on law enforcement powers -- particularly regarding the ease with which it can be granted permission to conduct surveillance. The ACLU in particular has taken issue with provisions in the USA PATRIOT Act to permit some prison monitoring of attorney-client conversations, and the easing of judicial review requirements for wiretapping and other surveillance. But the department has continued doing what it deems right regardless; Attorney General John Ashcroft last summer rewrote DoJ guidelines to permit FBI agents to surf the Internet and attend public events -- like political rallies -- whereas beforehand they were prohibited from doing so.

Comstock also pointed out that the PATRIOT Act passed 357-66 in the House and 98-1 in the Senate. "So many of their statements demonstrate their lack of understanding of the law," Comstock said. "Aside from Bob Barr -- who did vote for the bill -- the other people involved are not lawyers. Grover is not a lawyer, nor should he play one on TV."

By way of explanation of the lopsided vote, the ACLU's Murphy quoted conservative Rep. Don Young, R-Alaska, who said on a call-in show on Alaska Public Radio that the USA PATRIOT Act was the "worst act we ever passed. Everybody voted for it, but it was stupid, it was what you call 'emotional voting.'"

The conservative activists' main complaint seemed to focus on how broadly these laws meant to target suspected terrorists could be applied. "You're a suspect," Waters said at the beginning of her remarks, pointing to a reporter in the audience. "Everyone in this room is a suspect until it's proven that you're not." Barr said that the "approach reflected by many of these initiatives" would allow the government to "gather information on law-abiding citizens" in an unconstitutional fashion.

The conservatives come to the debate from a different perspective than the ACLU's Murphy, of course, which means that some of their concerns don't even register with their liberal counterparts. Like the fear that the government wants to begin recording how many guns citizens own; or that the surveillance of antiwar protesters today will lead to surveillance of antiabortion protesters tomorrow. Police powers have a way of mission-creeping, they said; racketeering laws were passed to go after the mob, but have since been used against antiabortion groups. They passed because lawmakers thought, "Do whatever you want to guys named Guido -- that doesn't affect me," Norquist said. "Someday Hillary Clinton's going to be attorney general and I hope conservatives keep that in mind."

"Or president!" Murphy exclaimed, flustering Norquist a bit.

Comstock rebutted Norquist's logic, saying, "You can't pass laws based on the fact that you think there are going to be corrupt people who misuse the system some day."

All four activists expressed shock and awe at the recent report that some in the Senate were considering the removal of the "sunset" provisions in the PATRIOT Act, which will phase out the powers granted the government in 2005.

"I would support legislation that would sunset all legislation passed during a time of war," Norquist said. "And I would vote against any legislation somebody felt they had to name 'PATRIOT,'" which no one would have felt the need to do "if it were a worthwhile bill," he said. That name -- an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" -- "was used to mau-mau people because it looks bad on a 30-second commercial to have voted against it."

The PATRIOT laws will not affect law-abiding citizens, seconded Comstock's deputy, Mark Corallo, "not unless you're a foreign spy or a terrorist." Comstock took issue with the idea that the government's powers had been expanded -- she thinks they've simply been refined -- and feels as though the powers are often misrepresented. Take, for instance, the "roving wiretap" invoked by PATRIOT critics. "They're constantly making it sound like we're roving the country listening to everyone's calls," she said. Rather, the roving applies to distinct individuals -- a suspected agent of a foreign government or power or terrorist group -- on whom law enforcement has received permission to conduct surveillance.

"The roving wiretap allows us to keep up with the technology," she said. "We know they change phones. This way, when Mohammed Atta changes phones on his way to Maine we don't have to stop in court to get new warrant" since the wiretap is specific to the suspect -- and not the phone.

Corallo says criticism about the FBI's access to library records is equally mischaracterized. The new law "allows the FBI to seek a warrant for certain business records," and that can include library activities, "but only if the FBI can convince a judge that the subject of an investigation is a foreign spy or a member of a terrorist organization." Before Sept. 11 the FBI couldn't monitor what suspected terrorists were doing at the public library computers, and 9/11 terrorists freely sent e-mails to each other that way. "They knew we couldn't go in there," Corallo says. "They used it as a safe haven." But the idea that the FBI will be spying willy-nilly on the public's reading habits is false, he says. "The FBI is specifically prohibited from investigating U.S. persons based on activities protected by the First Amendment, and certainly reading falls into that category."

But the PATRIOT Act -- and those specific provisions -- weren't the only issues that Murphy and the conservative activists slammed. These included the omniscient Total Information Awareness system, a Pentagon-run multi-agency, multilingual database that will detect certain possibly terrorism-related transactions; the second Computer Assisted Passenger Pre-Screening System (CAPPS II) soon to be implemented by the Transportation Security Administration, which will perform background checks and conduct risk assessments on airline passengers; and of course, the sequel to the PATRIOT Act, -- dubbed PATRIOT II or, as Barr called it in full horror-movie fashion, "Son of PATRIOT" -- a draft of which was leaked in February to the Center for Public Integrity.

In its January draft form, PATRIOT II seemed to propose giving the attorney general authority to strip Americans of their citizenship based on their connections to organizations designated terrorist, and to create a DNA database for a broad range of individuals including those suspected of being members of terrorist groups. Comstock reiterates that the January draft was just that, a draft and that now, three months later, it has changed quite a bit. "There were things in there that aren't in play anymore," she says, noting that Justice Department lawyers would never propose a bill they thought couldn't pass constitutional muster.

The conservative activists took great pains to say nice things about Bush and Ashcroft -- the laws are "not because they're bad people, but because they think these are good things, because they think they can protect us," Keene said. It was quite a change in rhetorical tone from that taken by the right toward Clinton administration Attorney General Janet Reno. "I'd prefer not to focus on individuals," Barr said. "This is an institutional problem regardless of who the attorney general is, regardless of which party is in power."

Norquist noted that Ashcroft as a senator (he was defeated in his reelection campaign in November 2000 by ex-Gov. Mel Carnahan, who was dead at the time) seemed to have quite a different view of civil liberties than in his present post. "When John Ashcroft was a senator, if you asked me who were the senators most sympathetic to our [civil liberties and privacy] causes I would have offered Ashcroft as one of the top guys."

Regardless, much of their consternation seemed focused on the Congress. "I don't know that 5 percent of the people who voted for that bill ever read it," Keene said.

"You're always an optimist," Barr quipped.

The conservative activists' thoughts on these issues put them in a somewhat awkward position since -- particularly in Norquist's case -- all are known for being fairly influential with the GOP-controlled House, Senate and White House. If Daschle told his caucus to "fold," as Feingold said, one couldn't help but wonder if the conservatives -- gung-ho for the GOP and President George W. Bush in almost every other policy area -- were self-folding a tad on their own. How vociferous were they willing to be?

"You can't walk into this White House and say if you don't give us this we won't support you for reelection because that's not credible," Norquist allowed. But he insisted that in his meetings with "friends" in the White House he brought the matter up quite a bit. "It's not the 15th issue, it's one of the top issues," he said.

But surely these individuals could exert some influence with Bush, Ashcroft, or Senate Judiciary Committee Chairman Orrin Hatch, R-Utah? Not one activist claimed to have specifically met with any of those officeholders to discuss that issue. Surely the influential group could exert their power and change these laws?

"Perhaps it means we're not as powerful as you think we are," Keene smiled.

Eagle Forum's Waters reported on a previous left-right coalition, when her organization called allies in the Senate to support an amendment to hamstring plans for the Total Information Awareness program offered by a liberal Democrat, Sen. Ron Wyden of Oregon. But other problems remain -- CAPPS II will require airline passengers to give airlines their name, address, date of birth and phone number, which will be checked against any number of databases. Waters said that Congress had been assured that the Transportation Security Administration won't check the information against Social Security, Internal Revenue Service, or medical records databases. But, she said, "there are no legal parameters" preventing them from doing so.

Comstock pointed out that many conservatives -- especially those in the Federalist Society -- supported the laws, so the four at the press conference were hardly representative. Moreover, she wondered about the company her fellow conservatives were keeping. "The ACLU has opposed not only the PATRIOT Act, it opposed the Anti-Terrorism Act of 1996," she said, archly adding that "the ACLU not only thinks we're doing too much to try to stop terrorism now, they think we were doing too much on Sept. 11."

Comstock and Corallo, clearly eager for anyone to listen to the Justice Department's side of the story, rebutted what they regard as myths about what Ashcroft and his team have been up to. They're not harassing the Arab-American and Muslim communities, they say; they were investigating the paths of the 9/11 hijackers and since then have worked closely with those communities. There weren't "thousands" of Arabs and Muslims detained secretly, they say; 765 were detained on violations of immigration laws, of whom 478 were deported and 134 charged with other crimes, leading to around 100 convictions. And while the Justice Department didn't provide a list of those being detained, they were all able to go to the media themselves if they wanted to, they say.

At the press conference, this reporter repeated a response one occasionally hears from the Bush administration when asked about these criticisms: There hasn't been any major terrorist attacks in the U.S. since Sept. 11, and both the president and the attorney general enjoy high approval ratings. "It's always difficult to disprove a negative," Barr said. That we haven't had another major terrorist attack in the U.S. may be because the government is better aware of the mistakes it made before that fateful morning, and because of the "increased awareness on the part of the public. You can't legitimately say that it's because of the expanded powers ... that we haven't had another terrorist attack," he said.

As for the overwhelming support for the Bush administration's national security policies, "that's a perennial problem in dealing with these kids of issues," Barr said, and the only solution is educating the public through forums, like Thursday's. People need to learn that "we're all subject to having our privacy invaded, but just because people feel that they don't have anything to hide or they feel safer, that doesn't mean these proposals should be allowed to go forward." These laws "will dramatically change the way we go about conducting our society," Barr said, before invoking the Big Brother thought control of George Orwell's "1984." Comstock notes that at the press conference, these conservatives referred to themselves as the "Leave Us Alone" coalition, in reference to former Supreme Court Justice Louis Brandeis' famous remark that "the right to be let alone is the most comprehensive of rights and the right most valued by civilized men."

"We're trying to get the terrorists to leave us alone," Comstock noted. "Terrorists aren't in the 'Leave Us Alone' coalition."

By Jake Tapper

Jake Tapper is the senior White House correspondent for ABC News.

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