Commentary

‘Jackboot Liberalism’ Residues

This essay appeared June 19, 2000 in the Washington Times.
By all accounts, President Clinton worries constantly about his legacy. He need not: His assault on constitutional values, as well as conventional morals, is unmatched. Indeed, he has gutted the Democratic Party’s commitment to civil liberties.

Democrats like Jimmy Carter, Walter Mondale, and Michael Dukakis all represented a humane liberalism with a commitment to civil liberties. No one would make that claim about Bill Clinton, who represents a new political philosophy: jackboot liberalism.

Record numbers of wiretaps, repressive “anti-terrorism” legislation, support for mandatory minimum sentences for drug offenses, suspicious Internal Revenue Service audits of political opponents, White House interference with banking investigations, attacks on anti-abortion protesters, threats against critics of federal housing projects, media intimidation, bureaucratic witch hunts, brutal Bureau of Alcohol, Tobacco and Firearms and FBI raids, interference with state laws relaxing use of marijuana for medical purposes, purloined FBI files. It is a record that puts Lyndon Johnson and Richard Nixon to shame. And it continues today.

With administration support, Congress is pursuing legislation to enhance penalties for methamphetamine production. The Methamphetamine Anti-Proliferation Act would also impose a dangerously sweeping ban on information pertaining to drugs and drug paraphernalia. No good is likely to come from the measure, since it will be no more effective than past laws in stopping drug use. Even worse, though, buried within the legislation are provisions gutting Fourth Amendment protections against unreasonable searches and seizures. The federal government would be allowed to carry out secret searches - now allowed only in special circumstances - with notice given three or more months later, if ever (the 90-day requirement could be extended indefinitely).

Moreover, the government would not need to provide an inventory of any intangible property, most importantly computer files or document copies, that were seized. Basic to the operation of the Fourth Amendment is knowing what the government has done. Asks David Kopel, research director of the Independence Institute, “how can a person challenge a warrant if they never find out about it until after the harm has been done?”

An invisible search is inherently unreasonable. Those who dislike being constrained by the Fourth Amendment hid their handiwork in the meth bill for a reason: it wouldn’t pass otherwise. So, according to a Senate Judiciary Staffer quoted by the Asheville Tribune, Senate Judiciary Committee Chairman Orrin Hatch, Utah Republican, and the Justice Department buried the change “deep in the bill, and nobody noticed until the thing had already passed.”

No notice, no hearings. Committee spokeswoman Jeanne Lapatto even disclaimed any knowledge of the provision. The Senate approved the legislation, S. 486, last fall with little debate. The companion measure, H.R. 2987, now is coming before the House Judiciary Committee, where Rep. Bob Barr, Georgia Republican, a former federal prosecutor, is leading the opposition. Mr. Barr opines that “It’s unconscionable that someone would try to sneak these provisions into an unrelated bill.”

He has gained the support of bill sponsor Rep. Christopher Cannon, Utah Republican, as well as House Judiciary Committee Chairman Henry Hyde, Illinois Republican. But proponents were not content to stick the measure in the meth bill. The same provisions are also buried in Senate bankruptcy legislation, now in conference with the House. Conference committee reports are ill-read and notoriously difficult to defeat. Which is why the administration used this tactic to gain authorization for warrantless “roving” wiretaps (of phones used by or near particular individuals): a measure previously defeated on its merits was snuck into a conference committee bill after both houses had voted on the original measures.

The potential deception does not stop there. An aide to Mr. Barr worries that even if the provisions are stripped from both the meth and bankruptcy bills, “I think we’ll see it again, later in the appropriations process. Justice has decided to do whatever it can” to pass the measure. That is, if the amendment fails in its current form, proponents are likely to try to stuff it into one or more omnibus spending bills, which are often approved in a rush at the end of the budget year.

Especially after the disastrous 1995 government shutdown, legislators hesitate rejecting any appropriations measure, irrespective of the poison pills attached. At least in the republic’s early days, legislators occasionally read the measures on which they were voting. Today it is a rare lawmaker who knows the substance of the bills before him, let alone the details. Congressional inattentiveness is bad enough at any time. But when the executive is ever willing to sacrifice individual liberties and the judiciary is ever willing to ratify state aggrandizement, legislative abdication usually allows evil to triumph.

Come next Jan. 20, the public career of America’s premier jackboot liberal will end. But liberty will remain at risk unless Congress and the people remain vigilant.

Doug Bandow is a senior fellow at the Cato Institute.