On July 11, exactly three months before the World Trade Center fell, David Keene, chairman of the American Conservative Union, wrote a column in The Hill newspaper entitled, "Privacy: An Emerging Front-Burner Issue." In it, he made an argument that today rings rather strange. He accused the Clinton administration of being so obsessed with the threat of terrorism and crime that it had trampled civil liberties. "Then Vice-President Gore even headed a commission," he explained indignantly, "that urged that when someone deemed suspicious tries to purchase an airline ticket, the government should have the immediate right to look into their banking and other records without a warrant."
In this liberal abuse, Keene saw conservative opportunity. House Majority Leader Dick Armey, he noted with approval, "is trying to get conservatives to put privacy at the top of their agenda." Keene foresaw an ideological battle that could shape American politics for years to come. "We are not so far down the road to trading freedom for security," he wrote in conclusion, "that the trend cannot be stopped or even reversed."
I'm not quoting Keene to make him look stupid. Quite the contrary. One of the fascinating things about September 11 is that it transformed the debate about security versus liberty at a moment when that debate was already in flux. As Keene's column suggests, some conservatives--outraged by the Clinton administration's abuses of civil liberties, and intrigued by the political opportunities they created--were preparing to try to claim the civil libertarian mantle for the GOP. And thank goodness. For it's largely because people like Keene were writing columns like that in the weeks and months before September 11 that there's any hope of stopping George W. Bush and John Ashcroft from committing far, far greater abuses today.
Keene's willingness to declare "freedom" more important than "security" can be seen as the culmination of a decade-long shift within the conservative movement. When Ronald Reagan was president, American conservatism consisted of basically four imperatives: oppose communism, enforce law and order, restore traditional morality, and limit government. Only the fourth lent itself to a concern for civil liberties. The first three, by contrast, offered varying rationales for trampling them. To fight communism, the United States needed a secretive, centralized national security state. To enforce law and order, the police needed to be freed from the ACLU-imposed shackles that in the 1960s and 1970s had allowed criminals to run wild. Finally, restoring morality also meant curbing the excessive liberties of the '60s--in particular, sexual liberties like abortion, premarital sex, and gay rights that shattered traditional norms of right and wrong.
But in the 1990s, as we all know, communism disappeared, and crime dropped sharply. And so two barriers to conservative civil libertarianism grew dramatically weaker. (The third, moral traditionalism, remained and garnered more attention. But that attention only highlighted its unpopularity outside the conservative base, and by the late '90s, Republican politicians like George W. Bush were de-emphasizing abortion and gay rights in favor of vague, noncoercive calls for "responsibility.")
Libertarianism's growing hold over the conservative movement was most evident in the economic sphere, as the Gingrichites who took Congress in 1994 challenged the federal income tax and welfare state far more dramatically than the Reaganites ever had. But conservatives began to question whether Washington's police and military powers--powers no longer justified by the cold war and rising crime--might violate personal freedom as well. Those fears were dramatically stoked by the FBI's bloody raids at Waco and Ruby Ridge--raids that punished lawlessness not among urban blacks, but among the devout rural whites with whom American conservatives feel greater kinship. The press caricatured the right's civil libertarianism as "black helicopter" extremism. But concerns about unrestrained law enforcement made their way to into the Republican mainstream. Last year candidate George W. Bush denounced the use of secret evidence in immigration proceedings. And when Bush nominated John Ashcroft to be attorney general, the one consolation some liberals found was Ashcroft's strong record on privacy. As senator from Missouri, for instance, Ashcroft had proposed legislation stopping the government from preventing people from encrypting their e-mail. Overall, the left was still more concerned about abuses by law enforcement than was the right (if only because so much of that abuse was visited on blacks). But the gulf was far narrower than it had been in Reagan's time.
And for that, we should all be very grateful. Because since September 11, George W. Bush and John Ashcroft (who quickly forgot his record in the Senate) have proposed stunning infringements of basic American liberties. An administration that vowed to oppose racial profiling is interrogating thousands of Arab-Americans solely because they are of a certain gender, age, country of origin, and came to this country at a certain time. Thousands of others have been detained indefinitely--their names kept secret--mostly for minor immigration offenses that have nothing to do with terrorism. The administration claims that its proposed military tribunals will be fair because military courts already fairly try American soldiers--willfully ignoring the fact that those courts contain safeguards that the proposed tribunals almost certainly will not.
Liberals have been screaming about this for weeks now, and they should keep on screaming. But they don't matter to this administration. The people who do are on the right. The Washington Times has come out against Bush's military tribunals, and the Cato Institute plans to file a brief arguing that they are unconstitutional. Keene's American Conservative Union lobbied to include sunset clauses in certain provisions of the now-passed USA Patriot Act so extraordinary governmental powers will not automatically continue if we return to ordinary times. Phyllis Schlafly's Eagle Forum, Paul Weyrich's Free Congress Foundation, and the National Rifle Association also insisted that the original legislation didn't adequately protect individual rights. The influential conservative strategist Grover Norquist told The Boston Globe, "We don't like bad guys, either, but let's not sacrifice our freedoms because the FBI and CIA want more power." William Safire has accused the president of "seizing dictatorial power" and establishing "kangaroo courts."
So far, most of the conservative grumbling has come from journalists and lobbyists--GOP politicians are still too awed by Bush's stratospheric approval ratings to object. But this battle will continue long after W.'s numbers come back down to earth. The respect for due process that has been born in conservative Washington since the cold war's end may yet overcome this administration's self-righteous disregard of it. And if it does, people like me--who loathe libertarianism's influence in so many areas of public policy--will have to admit that when it comes to reigning in a reckless Republican attorney general and an ignorant Republican president, a little libertarianism is just what this country needs.
This article originally ran in the December 17, 2001, issue of the magazine.