December 3, 2001

American citizens aren't exempt

"Between government in the republican meaning, that is, Constitutional, representative, limited government, on the one hand, and Empire on the other hand, there is mortal enmity. Either one must forbid the other or one will destroy the other. That we know. Yet never has the choice been put to a vote of the people."

– Garet Garrett, Rise of Empire, 1952

When those words were written, there was some reason to believe that the American people, if asked, would vote to retain their old republic. Not anymore. Half a century later, and we are edging toward the end of constitutional government in America: this is what war has wrought, and in record time.


Anyone who doubts that has only to look at the actions of the Bush administration on the "home front" post-9/11: the establishment of military tribunals to usurp the function of our civilian courts; the passage of the Orwellian "USA PATRIOT Act," which legalizes widespread surveillance of legal political and religious organizations (as well as individuals) and lays the groundwork for a national identity card; the detention of hundreds, who are jailed in secrecy, on secret charges, at the whim of the Attorney General. This man is the harbinger of the American Counterrevolution: the liberties the patriots of 1776 fought and died to establish are being systematically disestablished by John Ashcroft, a Torquemada for our times.


And there is nary a peep of protest: oh, a few old-style liberals, like Nat Hentoff, are raising their voices, but this is lost in the chorus of amens from the "jail 'em first, ask questions later" crowd, which includes plenty of leftists, as well as those on the right. The polls, we are constantly reminded, show Americans overwhelming support the draconian measures being taken by this administration, and, as much as I distrust polls – they exist to be manipulated – this time I believe them. Although support for police state methods is decreasing, most Americans think that they're only going to be rounding up those foreigners – you know, the suspicious-looking ones, with Arabic features and veiled wives. American citizens, they believe, will be exempt. The first hint that this is hardly true came on Saturday [November 30], with the news trumpeted on the front page of the New York Times: "Ashcroft Seeking to Free FBI to Spy on Groups." Ashcroft, we are told by "senior government officials," is "considering" a scheme to "relax" (read: ignore) "restrictions on the FBI's spying on religious and political organizations in the United States."


These restrictions, enacted by Congress in the 1970s, were imposed in response to the evolution of J. Edgar Hoover's FBI into America's political police. Before World War II, Franklin Delano Roosevelt used them to spy on his enemies, notably the conservative antiwar group known as the America First Committee, and this tradition of wartime repression was revived during the Vietnam war era. The left-led antiwar movement was targeted by the feds, who unleashed the FBI to conduct the infamous "Cointelpro" operation – designed to infiltrate, disrupt, and discredit domestic dissident organizations. Of course, this had been standard operating procedure since the beginning of the Cold War era: it was a standing joke, during the fifties, that half the membership of the American Communist Party was on the FBI payroll – and a good deal of the other half was only waiting to be asked.


It was during the course of a very unpopular war, however, that the routine outrages perpetrated by America's political police became widely known and disdained. At one point, they infiltrated the Socialist Workers Party, a Trotskyist organization, in such numbers that they practically took it over, actively encouraging a "Fourth Internationalist" faction which emulated Che Guevara and advocated armed guerrilla warfare in Central and South America (if not quite yet in the North). They then turned around and justified their surveillance and infiltration tactics on the grounds that the Socialists Workers were, after all, a potentially violent organization.


In "Cointelpro" the conservative-libertarian critique of government as the source of the problem, rather than the solution, was vividly illustrated – although hardly appreciated at the time – when it came out that federal agents and local "red squad" officers acted mainly to provoke extremist violence rather than prevent it. I would hold that this was not an "abuse" of the system, but it's logical outcome: if no problem exists, it is necessary to create one. How else can petty bureaucrats and timeservers demonstrate their indispensability?


The Times article reporting Ashcroft's power grab reminds us that "there are two sets of guidelines, for domestic and foreign groups," and goes on to reassure us that "most of the discussion has centered on the largely classified rules for investigations of foreign groups." But the statements of Ashcroft's cronies cited in the same article are anything but reassuring. "As part of the attorney general's reorganization," said Susan Dryden, a Justice Department spokeswoman, "we are conducting a comprehensive review of all guidelines, policies and procedures. All of these are still under review." FBI spokesman John Collingwood agreed:

"Director Mueller's view is that everything should be on the table for review. He is more than willing to embrace change when doing so makes us a more effective component. A healthy review process doesn't come at the expense of the historic protections inherent in our system."


But these "historic protections" – otherwise known as the Bill of Rights – are not "inherent in our system" anymore, and haven't been for over a hundred years. The Constitution, as originally conceived, was sidestepped long ago, and put under glass – to be taken off the shelf, dusted off, and ritually venerated every once in a while, then put back on the mantelpiece with all the other quaint family heirlooms and largely forgotten.

The only remnant of the original constitutional order remaining is its general structure, which mandates the division of power between the three branches of government so that the folly practiced by one or even two of the others will not overwhelm and abolish the achievement of the Founders. In wartime, however, the executive power, under the Constitution, is increased, as the President assumes his role as Commander-in-Chief. Even then, he is hardly a dictator: the rule of law, and the supremacy of the Bill of Rights, is formally still in effect. Historically, however, this has not been the case, and this time is going to be no exception.


Among conservatives in Congress, only two brave figures, Rep. Bob Barr (R-Ga.) and Rep. Ron Paul (R-Texas), seem to have actually read the Constitution lately, and it has been left largely to them to point out that the Bill of Rights applies not just to citizens but to all persons. It made my morning to hear Rep. Barr make this salient point on the Sam and Cokie show, and I hope conservatives were not only listening but taking to heart his argument that "we are headed down a slippery slope." Once the Bill of Rights is ignored, a dangerous precedent is set: they are talking "mostly" about increased surveillance of foreigners, but what I want to know is what are they talking about the rest of the time?


I have a personal interest in this, as you might imagine, sharpened not only by my libertarian views and my job description, but also on account of the particular personnel involved. To begin with, as the editorial director of, as well as a columnist, the prospect of increased government surveillance of domestic antiwar organizations bodes particularly ill for me, personally. I don't want to exaggerate our own importance, but is the locus of antiwar activity on the Internet at a very dangerous time. The US Congress has just been stampeded into passing a ludicrously misnamed "Patriot" Act that allows the feds to read email, track Internet surfing, and eavesdrop with impunity. But it gets worse.


My longtime readers may remember my public contretemps with National Review Online editor Jonah Goldberg, whose proposal that we should invade Africa and bring civilization to the benighted savages of the dark continent was ridiculed, at length, not only by me but also by the writers for, a popular libertarian website. Of course, Goldberg's nutty screed only seemed nutty because we were living, pre-9/11, in a relatively sane era: today it seems less odd, and even a little prescient – although he seems to have gotten the continent wrong. It's the Middle East, not Africa, that everyone is talking about colonizing, but never mind the details.

Anyway, Goldberg got the general idea: war, war, perpetual war. That's the ticket. Today, at any rate, he has his war, and while, to my knowledge, young Goldberg has yet to join his local Army reserve unit (nor have any of the other young neocons so gung-ho for the US to engage in a war of conquest), Jonah has taken up arms in a purely editorial sense, acting as the chief conservative apologist for the depredations of Ashcroft's Justice Department. It is, for him, a matter of family honor, as well as ideology: he was recently married to Jessica Gavora, Ashcroft's chief policy advisor and speechwriter, and this accounts for his redoubled zeal in defending this Republican "born again" version of the power-mad Janet Reno.


Take a look at the tone of Goldberg's columns directed at me, personally, and In the context of Ashcroft's reign of terror, we would do well to remember the experience of conservatives at the hands of the Clinton administration, who found themselves the targets of unscrupulous government officials using the power and prestige of their office to wage war against their political enemies. It would be naοve in the extreme to believe that this administration is any different.

Under cover of wartime, personal agendas and vendettas are empowered and unleashed, especially by those who have the ear of the Attorney General. It is interesting to note that Goldberg's mom, the colorful Lucianne Goldberg, runs a news site that explicitly forbids the posting of articles published by in a written rule instituted over a year before 9/11. One can only wonder what the Goldbergs have in store for us now that they sit at the right hand of a man seemingly intent on abolishing the Constitution.


After Alan Dershowitz persuades Ashcroft that torture is okay "in some circumstances," one imagines Jonah chiming in with the suggestion that it's high time we put Justin Raimondo and the staff of on the rack. And what about those obnoxious libertarians over at, who have had such fun all these months mocking the intellectual pretensions of Goldberg's anti-libertarian polemics? We have to remember that the Goldbergs were made as ostensibly conservative "celebrities" during the Clinton years, when gossip, innuendo, and a thinly-disguised form of blackmail were all standard operating procedure: "dirt" was the coin of the realm. Given Goldberg's extreme antipathy, expressed in the most personal terms, it is no exaggeration to say that these methods, transferred to the present era, and empowered by Ashcroft's rising police state, pose a deadly danger, not only to liberty in the abstract, but to this website in particular.


Boy, what an opening for a fundraiser – give to the Legal Defense Fund! But, seriously, anyone who believes that a Republican administration is above such petty Clintonian vendettas is living in a fool's paradise. And anyone who believes the protestations of this administration that our civil liberties are not at risk doesn't understand the concept of the "slippery slope." Today, they are targeting young men of Middle Eastern extraction, but whom will they crack down on tomorrow? Having already ignored the letter and the spirit of the Bill of Rights, do you think they will stop there?


What we are dealing with was visible, this [Sunday] morning, in the look on John Ashcroft's face during his mercifully brief interview with Cokie Roberts. It was an expression of sheer unadulterated panic. As he spoke, it was clear that here is a man who had yet to recover from the shock of 9/11. After all, the biggest terrorist act in American history had taken place on his watch. He and his flacks can claim they inherited a mess all they want, but in the end the responsibility must be theirs. In a panic, they instituted a mass roundup, launched an assault on the right to privacy, and revised our uniquely American system of justice on the grounds that we face a new danger never foreseen by the Founders. But the horse is already out of the barn, and the great failure of this administration – and particularly of our law enforcement and intelligence agencies – is duly recorded. The rest is just an attempted cover-up.


They have to appear to be doing something – anything – in order to divert public attention away from the massive failure of government to do its only legitimate job: and that is to protect us from foreign invasion. They were so busy expanding NATO, building empires in the air over the Balkans, and aiding our noble Muslim allies, that they forgot to notice that these same Muslim "freedom-fighters" were planning our destruction right here at home. In spite of numerous warnings, including the recommendations of a presidential commission and dozens of "task forces," they took us seemingly by surprise: indeed, they even got the Pentagon. The Pentagon! That is the reason for the panic we all saw in Ashcroft's marshmallow face during that painful ten-minute interview: the man's a pathetic failure, and he's deathly afraid that once we get over the shock of what's happened we're going to discover just how much of a failure.


At that point, heads will roll – but Ashcroft and his minions are determined to stave this off indefinitely, and one way to do it is by a strategy of diversion. So far, they have been remarkably successful because, in wartime, no one is supposed to ask too many questions: it's not "patriotic." But that will soon wear off, along with the shock of 9/11, and the anger this administration hopes to direct outwards, at Al Qaeda and the Taliban, will have nowhere to go once Bin Laden and his gang are out of the picture. Ashcroft had better hope that Bin Laden's mountain fortress is as nearly impregnable as they say it is, and that we're in for a long siege, because after we get Osama that anger is going to boomerang – and come right back at him and the others who were asleep at the wheel.

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Justin Raimondo is the editorial director of He is also the author of Reclaiming the American Right: The Lost Legacy of the Conservative Movement (with an Introduction by Patrick J. Buchanan), (1993), and Into the Bosnian Quagmire: The Case Against US Intervention in the Balkans (1996). He is an Adjunct Scholar with the Ludwig von Mises Institute, in Auburn, Alabama, a Senior Fellow at the Center for Libertarian Studies, and writes frequently for Chronicles: A Magazine of American Culture. He is the author of An Enemy of the State: The Life of Murray N. Rothbard.


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