Strange Bedfellows

Early in the afternoon of July 25, Laura W. Murphy, the director of the Washington legislative office of the American Civil Liberties Union, was waiting for a friend at Houston's Bush Intercontinental Airport. They were due to head off for a quick Mexican lunch, and then to the offices of The Houston Chronicle, to try to impress upon that newspaper's conservative editorial board the potential dangers and ambiguities of the USA PATRIOT Act, passed overwhelmingly by Congress in the wake of September 11.

The friend she was waiting for? Bob Barr, the former Georgia congressman best known for his bellicose role in the impeachment of Bill Clinton.

According to Murphy, a skeptical and understandably confused Chronicle editorial board met her and Barr. For the first 15 minutes, she says, the conversation was polite and stilted. But for the half-hour after that, it was "intense and engaged."

"Bob Barr basically took the approach, 'Listen, I'm one of you, and I have a lot of problems with this, and so do a lot of people we know in common,'" Murphy says. "There was a mixture of conservative insider-speak and traditional civil-liberties rhetoric, and somehow it meshed. Eventually, they were like, 'You mean to tell me they can do what?' They wouldn't quite believe it, then we'd hand them a Department of Justice document or a congressional report. And they'd say, 'Oh ... .'"

The upshot was a July 11 editorial that read as if it could have appeared in, well, this magazine. Under the headline "Heightened Alert: Increased Government Intrusion Is Not Patriotic," the Chronicle averred:

U.S. Attorney General John Ashcroft and other Justice Department officials assure Americans that their liberties and privacy are not in jeopardy. They say the anti-terrorist PATRIOT Act passed after 9/11 does not apply to U.S. citizens.

Ashcroft is wrong, and he knows he is wrong. In the alternative, he lacks the reading comprehension and legal skills required for his office.

The editorial concluded, straight out of an ACLU pamphlet, that the terrorists are attacking our freedom and that "it doesn't make sense for the U.S. government to endanger that freedom in the name of the war on terrorism."

Barr, who lost his 2002 re-election bid and now holds the 21st Century Liberties Chair at the American Conservative Union, has emerged as perhaps the leading conservative voice against Big Brother government and in defense of civil liberties. Though he voted for the PATRIOT Act -- after the Bush administration agreed to certain changes, and out of party loyalty -- he pauses only briefly when asked today if he thinks, in retrospect, that the vote he cast was the correct one. "No," he says. "The administration has not been at all forthcoming since then in explaining in a clear and open way how that act would be used and is being used. The lack of being forthcoming about discussing that has bothered me."

It was just one meeting, and just one editorial. But it is symbolic of a larger trend -- not yet powerful, perhaps, but certainly real -- that finds some conservatives looking anew at their position on civil-liberties questions, a position that for the last 50 years has been at best indifferent and at worst hostile.

Barr is out of Congress, as is Texan Dick Armey, another conservative civil libertarian who, once he decided he was retiring, started speaking out aggressively against government infringement on civil liberties.

But several Republicans who are still in Congress are as concerned as Barr and Armey about the Bush administration's assault on personal liberty, and some of them are even willing to say so for the record.

Rep. James Sensenbrenner Jr. (R-Wis.) is the chairman of the House Committee on the Judiciary, the key seat in which one would like to see a person taking civil liberties seriously. Sensenbrenner, like Barr, voted for the PATRIOT Act (only three Republicans did not). He might not be Louis Brandeis, but ever since the act passed, Sensenbrenner has kept -- or tried to keep, given how parsimonious the Justice Department has been with the details -- a pretty close eye on how it has been implemented. He has joined with Rep. John Conyers (D-Mich.), the veteran liberal and leading Democrat on the committee, to press the Justice Department with questions about how and where the act is being applied. In an April 18 interview with the Milwaukee Journal Sentinel, Sensenbrenner said that any attempt to make permanent the provisions of the PATRIOT Act -- they are scheduled to sunset in 2005 -- would take place "over my dead body."

The conservatives with a libertarian streak also include, chiefly, Rep. Ron Paul (R-Texas), who, though a Republican in name, is at heart a libertarian (he was the Libertarian Party's presidential candidate in 1988). Paul voted against the PATRIOT Act, as did Reps. Butch Otter (R-Idaho) and Robert Ney (R-Ohio), along with 62 Democrats. Rep. Chris Cannon (R-Utah) is another who has parted company with the Republican leadership on some civil-liberties questions.

It's a rump faction, to be sure, and one that, interestingly, includes almost no Republican senators, although Iowa's Charles Grassley and Pennsylvania's Arlen Specter have interjected some civil-libertarian questions at committee hearings. "We're in deep cultivation mode in the Senate," Laura Murphy says. "We're stronger in the House."

She points to an Ashcroft appearance before the House Judiciary Committee on June 5 as a noteworthy moment. "The questions from both sides were all about civil liberties," she says. "Those questions didn't have a [political action committee] behind them, and they didn't have front-page coverage everyday like WorldCom or Enron. Now it's true that some of the questions from Republicans were setups, asked just so Ashcroft could say, 'No, we have no intention of doing that.' But even those mean that there's enough grumbling somewhere that these things have to be responded to."

No one should be naive enough to think that conservative civil libertarians will become a majority next week. Discipline within the House GOP conference is such that not many members will muster up the courage to oppose the White House on something it really, or even mildly, wants. The fight-terrorism, back-what-the-administration-wants faction is still dominant. Sen. Orrin Hatch (R-Utah) recently proposed amendments to remove the PATRIOT Act's sunset provisions. Sensenbrenner attacked him publicly and vowed there would be no such action in the House (there hasn't been).

Still, enough of a shift is under way that it's worth keeping an eye on. Surely the size of the House's overwhelming July 23 vote blocking the Federal Communications Commission's new and looser media-ownership rules -- it was 400-to-21 -- signals a bipartisan concern about free speech and debate. And beyond elected officialdom, conservative activists such as Grover Norquist, Phyllis Schlafly and the American Conservative Union's David Keene have pronounced themselves concerned about civil liberties. They are more likely to call it "personal freedom," but, up to a point, anyway, it's the same thing.

Still, this is all the preseason. The moment of truth will arrive in 2005, when the PATRIOT Act's sunset provisions will be debated.

When we think of the great guarantors of civil liberties, we think first of liberals. Oliver Wendell Holmes and the aforementioned Brandeis are generally credited with beginning to carve out the modern conception of civil liberties, in opinions they wrote starting in the World War I period. These were followed by other famous liberal opinions, such as Justice Robert H. Jackson's in the 1943 West Virginia Board of Education v. Barnette, which held that a student cannot be compelled to recite the Pledge of Allegiance against his or her will. Later, because so many important civil-liberties controversies and test cases came to be associated with infringements upon the rights of the political left -- the FBI's surveillance of the Black Panthers, for example, and more recently the well-known flag-burning case -- civil liberties became identified almost wholly with the left.

But, says Timothy Lynch, director of the Cato Institute's project on criminal justice, there is an alternative history of libertarian -- and in some cases conservative -- defense of personal liberties. Lynch cites as a libertarian touchstone John Locke's "A Letter Concerning Toleration," which includes the sentence, "Each person has a property in his conscience into which the state should not intrude." He also cites a British group dating to the 1640s known as the Levellers, led by John Lilburne and Thomas Overton, which preached religious toleration, low taxes, freedom of the press and something called "self-ownership." "They would say, for example, if they were on trial for sedition or what have you, things like 'I am the owner of my tongue,' which was their way of making the argument," says Lynch.

Citing the work of University of Virginia law professor Barry Cushman, Lynch argues that in our century, some conservative Supreme Court justices were better on civil liberties than history has allowed. Writing in the Virginia Law Review, Cushman explained that the famous "four horsemen" of the Court who opposed Franklin Roosevelt's New Deal programs -- Willis Van Devanter, James McReynolds, Pierce Butler and George Sutherland -- were actually pretty reliable defenders of free speech. "Before World War II, the old right had a better conception of liberty," says Paul. "It meant economic liberty, and the fact that the government didn't get involved in your personal affairs."

It was after that point that conservatism attached itself strongly to a censorious agenda. In the post-World War II period, American conservatism developed an increasingly and uniformly bellicose posture toward civil liberties. There's no need to recount here the horrors of the anti-communist witch hunts of the 1950s, only to say that it was during that period that conservatism became -- willingly, happily -- entwined with attempts to place limits on free speech in the interest of national security. True, there were several Democratic thrusts in this direction -- Harry Truman's loyalty oaths, notably -- but they were limited in comparison with Republican and conservative efforts to limit free speech.

That tendency created its opposite, from the anti-anti-communism of some McCarthy-era liberals to the Berkeley campus Free Speech Movement of 1964. The passions of the 1960s calcified both positions, and since then the two sides have been blown even farther apart. As liberalism came to rely more and more on the courts to do what it could less successfully accomplish at the ballot box, civil liberties was expanded to include such things as abortion rights and gay rights. Meanwhile, conservatism became increasingly associated with religious fundamentalism, and obviously could not abide civil liberties as defined by the left. Conservatives did have their own conception of liberty, but they tended to express it chiefly in economic terms -- opposing government regulation on everything from restraints on corporations to the mandated wearing of seat belts. In the lifetimes of most Americans alive today, these are the familiar, and apparently unalterable, lines in the ideological sand.

Those lines are shifting, though, chiefly on privacy grounds and in some surprising ways. Barr, for one, even supports the recent Lawrence v. Texas decision by the Supreme Court, which effectively legitimized same-sex relationships and possibly cleared the way for gay marriage. This from the man who was the prime sponsor of the 1996 Defense of Marriage Act. "I saw no problem with the decision in Texas," Barr says. "To me, that was a privacy case, and it was decided correctly on privacy grounds."

Let's not get carried away: It's not likely that Republicans are going to start joining the ACLU or the Human Rights Campaign en masse. But it may well be the case that we are at the beginning of a historical turning point. The Bush-Ashcroft use of 9-11 as a justification for traditional -- that is, post-World War II -- conservative apathy or outright aggression toward civil liberties sits uncomfortably with a contemporary conservative conception of liberty, and reduction in the power of the state. Paul, clearly the most outspoken Republican on the topic, says he hears the rumblings all the time. When asked if his GOP colleagues have reservations about the PATRIOT Act, he says: "A lot more do now than they did back in October 2001. There are many who've come up to me and said [voting for it was] the biggest mistake they ever made. They understand why they did it. It was the pressure. From the president, from the attorney general, from others. But now they're getting a lot of grief back home, and not from the left only." Paul is also furious that "much of our legislation passed after 9-11 wasn't written after 9-11. It was written before. It's just that 9-11 was the opportunity to get it passed."

A litmus test will arrive in 2005, when Congress will take up the question of whether to extend the PATRIOT Act's provisions or let them die. "It is going to be a big test," says the Cato Institute's Lynch, who also notes that it's impossible to tell at this point how it will go. Lynch doesn't see that many GOPers bucking the White House if George W. Bush is re-elected. And, of course, should there be another terrorist attack, all bets are probably off, even among many Democrats.

But if some controversy erupts between now and then over implementation of the act, or if a Democrat takes the White House and appoints an attorney general anywhere to the left of John Ashcroft, it wouldn't be shocking to see many Republicans vote "good riddance." At least, under such circumstances, without enforced party-loyalty being a factor, we'd get a true reading of the contemporary conservative temperature on questions of personal liberty. And there's some reason to think it might be more complicated than we'd assume.