OPINION: In fight over civil liberties, that pesky Constitution

Like many conservatives, I have agonized over the years about just how
much power the government should be allowed to exercise in the name of
national security. Following 9/11 and the passage of the Patriot Act,
then the creation of the Department of Homeland Security, many of us
wondered where the government’s thirst for more power might be
reasonably limited.

Even in the heat of the anti-terrorist mania, as the Patriot Act was being debated in Congress, some of us argued that while a case could be made that under some circumstances one might be able to justify giving broader powers to the government to prevent a future terrorist event, that power should be narrowly focused and not be used to lower the constitutional standards that protect Americans in general. Many members of Congress and more than a few conservatives raised these concerns. We were assured by the Justice Department, the legislation’s sponsors and the Bush White House that what was being sought were tools to be used exclusively in terrorist rather than run-of-the-mill criminal investigations.

{mosads}Within weeks of its passage, however, attorneys around the country were notified that these new investigative tools and powers were available to be used across the board, and since then the government has used these new powers in all sorts of non-terror-related investigations. The left went nuts, of course, but a few of us on the right were also concerned, and said so.

An attempt was made to mollify some of us. The late Paul Weyrich, for example, was visited by representatives of the Bush Justice Department who assured him that while they recognized the new powers they had are awesome and could be abused, Weyrich should take comfort in the fact that they would never do so, as “they were the good guys.”

In relating this conversation to me, Paul said they couldn’t answer his next question: “What happens when these powers fall into the hands of an administration with a far different agenda?” I told Paul I was worried about such powers regardless of whether they are in the hands of “good” or “bad” guys, because history tells us that, at some point, virtually all government powers get used for purposes never initially intended.

During those years I often sided with liberals, but invariably asked my liberal friends if their concerns would be as great if “their” people had those powers. They assured me that their concerns trumped ideology and partisanship.

The protests that received so much attention during the Bush years have all but vanished. Human nature being what it is, the Democrats who were obsessed with civil libertarian concerns a few years ago now talk about national security. Leftists who fought to prevent the passage of surveillance measures they saw as over-intrusive during the

Bush administration are silent or even supportive of a Democratic president’s desire to extend and expand those measures today.

The Justice Department that could do nothing right when it was headed by John Ashcroft can seemingly do nothing wrong now that Eric Holder is in charge. Ashcroft was more sensitive to and wary of the new powers than Holder, who seems intent on using them to advance not our national security interests, but a political and ideological agenda. Ashcroft refused to go along with his own president when he believed he was being asked to go too far. Holder facilitated President Clinton’s abuse of the pardon process and seems to have few qualms about mixing politics and his constitutional duties today.

A reporter who wrote extensively about the “excesses” of the Bush administration told me not long ago that Republicans argued that the president’s critics were more concerned about scoring political points than in protecting civil liberties. “I dismissed it at the time, but they may have been right,” he said.

The screaming protesters might have been simply political, but there are serious men and women on the left and the right who care about national security and civil liberties and who must be part of a continuing dialogue if we are to protect the freest society on earth. The question for my liberal friends today is a simple one: How much do you value civil liberties now that one of your own is in charge?

David A. Keene, former chairman of the American Conservative Union, serves as first vice president of the National Rifle Association, and maintains an “of counsel” relationship with The Carmen Group, a Washington-based governmental affairs firm.