PREVENTING A REIGN OF TERROR:
CIVIL LIBERTIES IMPLICATIONS OF TERRORISM LEGISLATION
David B. Kopel [FNa] Joseph Olson
Copyright (C) 1996 Oklahoma City University;
David B. Kopel, Joseph Olson.
Cite as: 21 Okla. City U. L. Rev. 247.
article was published in the Summer/Fall 1996 issue of Oklahoma City University
Law Review. The issue was titled "A Symposium on Domestic Terrorism" and was
dedicated to the victims of the Oklahoma City bombing.
The starred numbers (e.g., *248) indicate the
beginning of a new page in the printed edition.
Abstract: This Article examines a wide
spectrum of recent and anticipated federal anti-terrorism proposals. Discussed
in particular detail are two bills originally introduced in 1995: President
Clinton's proposed legislation and a bill proposed by then Senate Majority
Leader Robert Dole. The authors also discuss the mood of the American public on
the terrorism issue, proposals for greater involvement of the military in
domestic law enforcement, and constitutional concerns raised by the Bill of
Rights. The authors make the argument that a more efficient exercise of existing
federal powers not the creation of new powers is the proper way to battle
All the horrors of the reign of terror were
based only on solicitude for public tranquillity. [FN1]
Precisely because the need for action against
the . . . scourge is manifest, the need for vigilance against . . . excess is
great. History teaches that grave threats to liberty often come in times of
urgency, when . . . rights seem too extravagant to endure . . . (*248 W)hen we
allow fundamental freedoms to be sacrificed in the name of real or perceived
exigency, we invariably come to regret it . . . . (T)he first, and worst,
casualty . . . will be the precious liberties of our citizens. [FN2]
The heinous bombing of the Alfred P. Murrah
federal building in Oklahoma City has understandably raised public fears of
terrorism. As is common after sensational crimes, some persons have revived
their call for a bigger federal government and a narrower interpretation of the
Constitution. This Article examines various restrictions on civil liberty that
have been proposed in response to the Oklahoma City bombing. This Article also
addresses various proposals which surfaced before and after the Oklahoma City
A few days after the first anniversary of the
bombing, President Clinton signed antiterrorism legislation into law. The focus
of the Article is not simply to analyze the new law, but instead to look at a
wide spectrum of antiterrorism proposals, some of which, while not enacted in
1996, will likely be proposed in future years. Thus, the legislative language
that is discussed in most detail comes from two bills originally introduced in
the Senate in early 1995: the President's very broad bill (Clinton bill) and
majority leader Dole's slightly narrower bill (Dole bill). In May 1995, a deal
was arranged by which various provisions from the Clinton bill would be added to
the Dole bill, in exchange for White House support for the Dole bill's
provisions to sharply curtail habeas corpus. The modified version of the Dole
bill (Dole-Clinton bill) was then passed by the Senate on a 91-8 vote. [FN3]
Although the House of Representatives' Judiciary
Committee quickly approved Representative Hyde's antiterrorism bill, [FN4]
which was similar to the Senate- passed Dole-Clinton bill, the measure ran into
strong opposition on the floor of the House. A diverse coalition of Democratic
civil libertarians and *249 Republican skeptics of an expanded federal
government considered the Hyde bill to be seriously flawed. Toward the end of
1995, various compromise bills were introduced, although none of them came close
to satisfying most of the critics. In March 1996, one of the compromise bills
came to the floor of the House for a vote. [FN5]
The Barr Amendment, sponsored by freshman Bob Barr (R-Ga.), a former United
States Attorney, was adopted; this amendment removed most of the provisions
which critics had found objectionable, although a different amendment to remove
the habeas corpus restrictions failed. The Barr Amendment likely saved the
terrorism bill, since, even with the Barr Amendment, 177 legislators still voted
against the bill. In April 1996, a House-Senate conference committee, aiming to
craft a bill which could pass the House of Representatives and garner the
President's signature, put back in some but not all of the provisions which the
Barr Amendment had removed. [FN6]
We refer to this final legislation as the conference bill.
The battle over the terrorism bills showed the
increasing clout of a Bill of Rights alliance which had been coalescing over the
past several years, but which worked together as never before on the terrorism
bills. The alliance included groups traditionally seen as "left," such as the
American Civil Liberties Union, the National Association of Criminal Defense
Lawyers, the American Friends Service Committee and the Presbyterian Church, and
also groups traditionally seen as "right," including the National Rifle
Association, the Eagle Forum, [FN7]
Americans for Tax Reform, and Gun Owners of America, as well as many others on
various sides of the political spectrum. [FN8]
In this alliance, *250 two groups were especially important: the American Civil
Liberties Union, which took the lead in organizing opposition to the bill, and
the National Rifle Association (NRA), which was the single strongest member of
the alliance. The NRA was, however, considerably more willing to compromise than
most of the rest of the alliance; [FN9]
after the Barr Amendment was added, the NRA dropped its opposition to the bill
as a whole, a decision which may well have made it possible for a terrorism bill
to become law.
At this point, we should disclose our own role
in the above alliance. Kopel signed a variety of joint letters to Congress
raising objections to the various bills, [FN10]
and testified before Congress twice on terrorism issues. Olson is a member of
the NRA Board of Directors, but he was not involved in any lobbying on the
bills, nor, as will be clear, does he approve of the bill that was finally
enacted, even though it is very mild from a gun control viewpoint. Because
various potential terrorism laws affect many different parts of the
Constitution, this Article proceeds sequentially through the Constitution. Part
I offers a short discussion of the American mood on the terrorism issue and
of the consequences of repressive terrorism legislation in Great Britain. In Part
II, we discuss proposals for greater involvement of the military in domestic
law enforcement; this issue relates to Article I principles of avoiding martial
law by ensuring civil supremacy over the military. Part
III addresses First Amendment concerns of the limits of responsible
political dialogue and censorship of the Internet. Part
IV, dealing with the Second Amendment, examines militias and various
proposals to eliminate them, and also discusses the "assault weapon" issue. In
V, Fourth Amendment concerns are analyzed, including computer encryption and
the privacy of electronic communications, *251 and various proposals for
warrantless surveillance of persons not suspected of criminal activity. The
Tenth Amendment question (which also has Article I implications) of the proper
reach of federal law enforcement in prosecuting local criminal activity is the
subject of Part
VII looks at Fourteenth Amendment equal protection rights, Fourth Amendment
restraints on illegal searches, Fifth Amendment due process, and the Sixth
Amendment confrontation clause; all are examined in relation to new legislation
to allow secret or illegally gathered evidence in certain alien deportation
proceedings. Lastly, we offer details of a Constitution-friendly antiterrorism
policy in Part
The word "terrorism" originated in the French
Revolution, when the government instituted the "Reign of Terror" to execute
political opponents, seize their property, and terrorize the rest of the
population into submission. [FN11]
As President Clinton demanded that Congress pass a terrorism bill, the problem
of terrorism was analyzed from two very distinct viewpoints. One view feared a
vast militia conspiracy of angry white men with weapons, fueled by paranoia. The
other side of the debate also saw a terrorism threat, although this side worried
more about terrorism in the original sense of the word: state terror and the
risks of unleashing and further militarizing the federal government.
It is sometimes suggested that persons who worry
about the second type of terrorism are only a strange fringe of American
society. In fact, they are the majority. According to a November 1995, CNN-Time
poll, 55 percent of Americans believe "the federal government has become so
powerful that it poses a *252 threat to the rights of ordinary citizens." [FN12]
Repressive measures, rather than reassuring the American public, may intensify
the fears which are already widely shared.
A. Historical Antecedents of the
In the United States, there is a long, sad
history of interest groups or government officials taking a few isolated
incidents and inflating them into some kind of vast threat, requiring an
immediate, repressive response. In 1798, President John Adams and the
Federalists who controlled Congress were scandalized by the vicious campaigns
against them in the press. These scurrilous charges--such as accusations that
President Adams had sent Vice- President Pinckney to England to procure a pair
of young mistresses for each of them, or that Adams was plotting to establish an
American monarchy--illustrate that today's foolish conspiracy theories are
nothing new. [FN13]
At the same time, in the turbulent years
following the French Revolution, the French government worked furiously to
obtain American support in the French conflict with England. French officials
attempted to bribe American newspapers to take the French side in the conflict
and to criticize the pro-England policy of President Adams.
President Adams unfortunately reacted in a
manner that would set a pattern of federal error. Because a few of his political
opponents were motivated by foreign bribes, Adams assumed that his political
opponents as a whole were illegitimate. In 1798, Congress enacted and President
Adams signed the Alien and Sedition laws. These hated laws allowed the
extra-judicial deportation of legal resident aliens whom the administration
considered to be a security threat. [FN14]
Criticism of the *253 President was termed "sedition" and banned. [FN15]
Political opponents of President Adams were persecuted under the laws for
supposed disloyalty. [FN16]
Rather than calming the political waters, the
Alien and Sedition Acts provoked a furious backlash. The Kentucky and Virginia
Resolutions were enacted, in which state legislatures asserted the authority to
nullify within their territory laws which violated the Constitution. [FN17]
Had President Adams decided to force the issue, civil war might have resulted.
Happily, the Alien and Sedition Acts were never uniformly enforced. After Thomas
Jefferson was elected in 1800, the Acts were allowed to expire.
Decades later, a violent, deranged abolitionist
named John Brown led a raid on the federal armory at Harper's Ferry, hoping to
set off a massive slave rebellion. John Brown's delusional scheme was rapidly
suppressed, and Brown was tried and executed. But John Brown's isolated
act--combined with the extremist rhetoric of some abolitionists--led many
Southern state legislatures to conclude that all the critics of slavery were
part of some fearsome conspiracy to promote violent revolution and to destroy
the South. Brown's crime reinforced the determination of Southern states
relentlessly to suppress anti- slavery speech. Abolitionists and slaveowners
both saw each other only in distorted stereotypes. The polarization led to the
tremendous suffering of the Civil War and in the long run to a solution to
slavery which, unfortunately, left many ex-slaves in a condition of virtual
In the decades following the Civil War, the
political leadership again overreacted to organizations which challenged the
existing system. During much of the nineteenth century, and a good part of the
twentieth century, conspiracy laws were used against unions and union
organizers. Many state governments, and often the federal government, engaged in
a policy of confrontation and war against organized labor. Labor violence *254
convulsed the nation. Criminal syndicalism laws (an updated version of John
Adams' sedition laws) were employed against radical unions such as the
"Wobblies" (the International Workers of the World). [FN18]
Beginning in 1877, the United States was wracked by labor riots in one major
city after another. The old armories that one can find in the downtown of almost
every major American city that was a city during the late nineteenth century
were often built for suppressing labor riots. The Haymarket Massacre was one of
the bloodiest, but hardly the only, tragedy resulting from a confrontation
between militarized law enforcement and groups which the political system deemed
Some of the riot leaders were Communists or
other advocates of violent overthrow. Others harbored various conspiracy
theories, including anti-Semitic ones. But a generally hostile press and
political establishment overestimated the pervasiveness of such sentiments. Most
workers simply wanted better working conditions, and a better share of the
wealth that they helped produce. In the end, it was the protection of the rights
of working people, and negotiation over legitimate grievances, which led to an
abatement of labor strife. Even in the twentieth century, radical critiques of
the government have too often been met with fierce government repression. During
World War I, Eugene V. Debs' peaceful criticism of the draft landed him in
federal prison. [FN20]
As Communists took over Russia following the end
of the war, American fears of violent foreign radicals intensified. In August
1919, Attorney General A. Mitchell Palmer established the predecessor of the
FBI, the "General Intelligence Division," of the Department of Justice. The
Division was headed by J. Edgar Hoover, and charged with gathering information
on radicals. Over the next year, six thousand people were seized in the *255
"Palmer Raids," many of them innocent of any crime, and unconnected to radical
Many suspects were held in filthy jails and beaten into false confessions. Even
people who came to visit these victims in jail were arrested, on the theory of
guilt by association. While Attorney General Palmer was well on his way to using
the hysteria he helped create into as a stepping-stone to the Democratic
presidential nomination, he overplayed his hand. His prediction of a major
terrorist attack on May Day 1920 failed to materialize, and the national panic
subsided. In September, an anarchist's bomb killed thirty-three people on Wall
Street, and the nation correctly recognized the crime as the work of a lone
actor, rather than a manifestation of some immense conspiracy. [FN22]
During the Cold War, concerns about Soviet spies
and their American accomplices (such as the Rosenbergs and Alger Hiss) led to
repressive legislation, blacklists, loyalty oaths, and other infringements on
the freedoms which distinguished America from the Soviet Union. Especially in
the 1950s, criticism of the free enterprise system or of militarism was falsely
equated with disloyalty. Leftist critics of the government policies were smeared
with guilt by association as Communist sympathizers.
At about the same time, many Southern state
governments, as well as the FBI, were aware that "Communist agitators" were
among those leading the civil rights movement, as indeed they had been since at
least the 1930s. [FN23]
But the presence of a few Communists within the civil rights movement or its
leadership (like the earlier presence of Communists within the labor movement),
did not mean the civil rights movement was fundamentally Communist, or that it
should be suppressed. Nevertheless, that is precisely what many state
governments attempted to do for many years.
If it is easy for many Americans to see, in
hindsight, the legitimacy of the viewpoint of Jeffersonians, of southern
abolitionists, of labor organizers, and of the civil rights movement, it is not
so easy for some Americans to respect the current concerns *256 of their fellow
citizens. Today, there are many tens of millions of people who are terrified of
the government, and many thousands (or perhaps more) who participate in
militias. To follow the voices of those who urge us to repeat Attorney General
Palmer's policy--to crack down on radicals with unorthodox views--would be the
most dangerous course. Respectful dialogue and reform, not stereotyping and
repression, are the courses that history will judge wisest.
B. There is No Terrorism Crisis
"By enabling the terrorists to appear much
stronger than they really are, the media often find themselves working pour le
roi de Prusse," observed one historian. [FN24]
According to the State Department, international terrorist attacks are at their
lowest level in 23 years. [FN25]
In the United States in the last eleven years, according to the FBI, there have
been only two international terrorist incidents. One was the World Trade Center
bombing; the other was a trespassing incident at the Iranian mission to the
United Nations, in which five critics of the Iranian regime took over the
mission's offices, and refused to leave. [FN26]
As for incidents of domestic terrorism, there
were none in the United States in 1994, nor were there any preventions of
terrorist incidents. In 1993, there were eleven incidents classified by the FBI
as terrorist. Nine of those eleven incidents took place one night in Chicago
when animal rights activists set off small incendiary devices in four department
stores that sell fur. [FN27]
Combining domestic and international terrorism,
and also accounting for suspected terrorist acts, the total terrorist incident
count in the United State is as follows:
Terrorist Incidents in United
Of these incidents, only one
(the 1993 World Trade Center bombing) was classified as international in origin.
The Oklahoma City bombing was
one of the most terrible single crimes in American history, but it was just
that--an isolated, single crime. Isolated incidents of mental aberration and
evil such as, the arson mass murder of several dozen people in a New York City
nightclub in 1989, the Oklahoma City bombing, or the awful Dunblane murders in
Scotland as well as repeated crimes by small groups of criminals such as the
financial fraud and other intimidation perpetrated by the misnamed "Freeman" in
Montana are just that--crimes--not organized terrorism. [FN29]
To the extent that these acts involve more than a pair of perpetrators,
prosecution of the handful of criminal individuals involved will suffice to
destroy whatever pathetic organization they call themselves. According to the
prosecution's theory of the case in the Oklahoma City bombing, the crime was
perpetrated by the two defendants and perhaps one helper. Although the trial has
not yet taken place, there is not sufficient evidence at this time to base
public policy on the theory that there is some vast conspiracy which the federal
government has failed to discover, or is conspiratorially covering up.
C. The British Tragedy
More government secrecy, more police powers to
detain people at will, less governmental accountability, and less freedom are
not novel responses to terrorism. [FN30]
They are precisely the approach that has been taken in Great Britain since the
early 1970s. The British lesson should be a caution to American politicians who
feel confident that the main thing wrong with antiterrorism policy is that the
Bill of Rights has been taken too far.
In 1974, Irish Republican Army terrorists bombed
pubs in Birmingham, killing nineteen people. [FN31]
Home Secretary Roy Jenkins introduced the Prevention of Terrorism (Temporary
Provisions) Act. Approved without objection in Parliament, the Act was supposed
to expire in one year, but has been renewed every year. [FN32]
The Act included a smorgasbord of civil liberties restrictions, some of which
have been proposed, with changes in details, in the United States.
Under the Act, the police may stop and search
without warrant any person suspected of terrorism. [FN33]
They may arrest any person they "reasonably suspect" supports an illegal
organization, or any person who has participated in terrorist activity. [FN34]
An arrested person may be detained up to forty-eight hours and then for five
more days upon the authority of the Secretary of State.
Of the 6,246 people detained between 1974 and
1986 in connection with Northern Ireland, 87 percent were never charged with any
Many detainees reported that they *259 were intimidated during detention and
prevented from contacting their families. [FN36]
The Prevention of Terrorism Act also makes it illegal even to organize a private
or public meeting addressed by a member of a proscribed organization or to wear
clothes indicating support of such an organization. [FN37]
The Act allows the Secretary of State to issue an "exclusion order" barring a
person from ever entering a particular part of the United Kingdom, such as Wales
or Northern Ireland. [FN38]
Persons subject to this form of internal exile have no right to know the
evidence against them, to cross-examine or confront their accusers, or even to
have a formal public hearing. [FN39]
The European Court of Human Rights ruled the
Prevention of Terrorism Act to be in violation of Article Five, Section Three of
the European Convention on Human Rights, which requires suspects to be
"promptly" brought before a judge. [FN40]
Nevertheless, the British government refuses to abandon its preventive detention
policy and evades the European Court's ruling by invoking Article 15's provision
for countries to ignore the Convention on Human Rights "in time of war or other
emergency threatening the life of the nation." [FN41]
One of the most important lessons from Britain
is that even a huge dose of restrictions on civil liberties, such as the *260
Prevention of Terrorism Bill, does not long remain sufficient in the eyes of the
government. At least in regard to civil liberties, the domino theory has proven
correct, as one traditional Anglo-American freedom after another has fallen
under the government's assertion of the need for still more anti-terrorist
In Northern Ireland, the jury has been suspended
for political violence cases; judges in the Diplock courts hear the cases
instead. Confessions are admitted without corroboration. Confessions are
extracted through "the five techniques": wall-standing, hooding, continuous
noise, deprivation of food, and deprivation of sleep. [FN42]
In addition, convictions may be based solely on the testimony of "supergrasses"
(police informers). [FN43]
In 1988, the Thatcher government enacted
additional laws restricting civil liberties. Television stations were forbidden
to broadcast in-person statements by supporters of a legal political party, Sinn
The ban even applied to rebroadcasts of archive films taped many decades ago,
such as footage of Eamon de Valera, the first president of Ireland. A
confidential British Broadcasting Corporation memo announced the government's
intention to keep journalists from broadcasting any statement by U.S. Senator
Edward Kennedy supporting Sinn Fein. [FN45]
The *261 BBC also banned Paul McCartney's "Give Ireland Back to the Irish," and
a song by another group urging the release from prison of the Guildford Four.
A suspect's decision to remain silent under
interrogation may now be used against him in court. The abolition of the right
of silence at first only applied in Northern Ireland, but has now been extended
to Britain. [FN47]
Wiretaps do not even need judicial approval. [FN48]
No one who has seen Great Britain's slide down the slippery slope can feel
confident that repressive measures introduced solely for terrorism will not
eventually seep into the ordinary criminal justice system.
The Security Service Act of 1989 provides: "No
entry on or interference with property shall be unlawful if it is authorized by
a warrant issued by the Secretary of State." [FN49]
If committed pursuant to an order from the Secretary of State, acts such as
theft, damage to property, arson, procuring information for blackmail, and
leaving planted evidence are not crimes. [FN50]
As in America, gun prohibitionists in Great
Britain have hitched their wagon to "antiterrorism," with little regard for an
actual terrorist nexus. Although British laws regarding possession of actual
firearms were already quite severe, the Firearms Act of 1982 introduced
restrictive licensing for imitation firearms which could be converted to fire
live ammunition. [FN51]
The sponsor of the new law against imitation firearms promised that it would
help stem "the rising tide of crime and terrorism"--although there had never
been a crime or terrorist act committed with a converted imitation weapon. [FN52]
The first time the Prevention of Terrorism Act
was used was after another pub bombing, in the English town of Guildford. Four
people were arrested, held incommunicado in prison for a week, and coerced into
false confessions by administration of drugs and by threats against their
families. While the Guildford Four were being held, the police used the time to
fabricate evidence against them. Although members of the Irish Republican Army
already in prison confessed to the Guildford bombings, the Guildford Four were
tried, convicted, and sentenced to life in prison. Several leading English
statesmen, including Roy Jenkins, felt that the defendants had been framed. A
campaign to free them continued for fifteen years, until, upon discovery of
police notes of fabrication of evidence, the Guildford Four were released from
The Birmingham bombings that led to the
Prevention of Terrorism Act resulted in the conviction of a group of defendants
called the Birmingham Six. Amnesty International charged that their confessions
were extracted under torture. The forensic scientist whose testimony convicted
the Birmingham Six later admitted that he lied in court. The Birmingham Six
confessed while being held incommunicado by the police; the various confessions
were so factually inconsistent that they could not have been true. Civil
libertarians fear that the Birmingham case is only one of many instances of
police obtaining coerced confessions. [FN54]
The Birmingham Six were also eventually freed. Britain, fortunately, has no
death penalty. In America, where President Clinton announced, before anyone had
even been indicted, that the perpetrators of the Oklahoma City bombing should be
executed, the federal death penalty would mean that vindication of persons
wrongfully convicted of terrorism might be post-mortem.
To state the obvious, all the legislation has
hardly immunized Britain from terrorism. But Britain has, in two decades, *263
eviscerated the magnificent structure of liberty and limited government that
took over a millennium to construct. For centuries the rights of Englishmen were
proudly held up in contrast to the absolutism of the continent. Far from being
an exemplar to the world, the modern "anti-terrorist" United Kingdom has been
found culpable of human rights violations under the European Convention on Human
Rights more often than any other member of the Council of European States. [FN55]
To a student of Britain's magnificent history in the story of freedom, it is a
pitiful sight to see modern Britons forced to turn to Brussels and the European
Court of Human Rights as the last protector of what were formerly the
unquestioned rights of Englishmen.
Britain was once the freest nation in the world;
today, it is one of the unfreest in Western Europe. As Britain illustrates, no
matter how great a country's tradition of freedom, freedom can be lost in less
than a generation if public officials and the public allow terrorism to destroy
their traditional way of life.
A. Historical and Legal Background
The Posse Comitatus Act forbids the military to
participate in domestic law enforcement. [FN56]
The Act is based on the traditional American abhorrence of rule by the military
and on the recognition that military personnel (who are trained to destroy
rapidly) cannot be realistically expected to behave with the restraint and
constitutional sensitivity of civilian police (who are trained in force
minimization, careful evidence gathering, and constitutional law). [FN57]
The increasing militarization of domestic law
enforcement in the United States is an ominous trend. If we examine the law
enforcement policies of virtually every unfree nation in the world, we find two
common traits: first, law enforcement is heavily centralized, under national,
rather than local control; and second, law enforcement is heavily militarized.
The line of separation between the police and the army has been blurred or
Although centralized, militarized law
enforcement may seem to protect public safety, the American people have
historically recognized that law enforcement which is not under the direct
control of the local populace and law enforcement along military lines, creates
grave threats to the safety and liberty of the American people. Such deadly
consequences of the use of the military in domestic law enforcement are not
speculative. In 1913, in Ludlow, Colorado, the National Guard machine-gunned and
burned to the ground a camp of striking coal miners and their families, in the
"Ludlow Massacre." [FN58]
Decades later, National Guard units shot and killed protesting students at Kent
State and Jackson State Colleges. The National Guard killings at Kent State and
Jackson State led to massive national protests. [FN59]
The healthy distrust of militarized law enforcement is the basis of the Posse
Comitatus Act, by which Congress outlawed the use of military personnel in
domestic law enforcement.
The Posse Comitatus Act of 1878, as amended,
Whoever, except in cases and under
circumstances expressly authorized by the Constitution or Act or Congress,
willfully uses any part of the Army or the Air Force as a posse comitatus or
otherwise to execute the laws shall be fined not more than $10,000 or
imprisoned not more than two years, or both. [FN60]
While the concept of outlawing use of the
military in law enforcement is easy to understand, the phrase posse comitatus in
the statute is unfamiliar to most late twentieth century readers. Since the
earliest days of the common law, citizens have had the duty to help the sheriff
pursue fleeing felons. As the Supreme Court put it, "For these purposes (the
sheriff) may command the posse comitatus or power of the county; and this
summons, every one over the age of fifteen years is bound to obey." [FN61]
In a late nineteenth century case, the Court wrote, "It is the right, as well as
the duty of every citizen, when called upon by the proper officer, to act as
part of the posse comitatus in upholding the laws of his country." [FN62]
At the request of President Jefferson, James Madison, the "father of the
Constitution," wrote a routine order to a federal marshal which stated: "Should
any aid be necessary you will call for the assistance of the good citizens of
the district, as the posse comitatus or civil power of the territory." [FN63]
In American parlance, posse comitatus was often shortened to "posse," as in "the
sheriff called out the posse." Thus, the Posse Comitatus Act forbids use of the
military in law enforcement by forbidding it to perform the function of a posse
function properly belongs to the responsible citizens of a given county, not to
the standing army.
While Article I of the Constitution does aim to
ensure civilian control over the military, [FN65]
there is no explicit prohibition on use of the military in domestic law
enforcement. Such a restraint, however, has been seen as implicit in the
American *266 structure of government. Thus, in Luther v. Borden, an 1849 case
arising out of the Dorr Rebellion against the undemocratic state government of
Rhode Island, the Court emphasized the need to suppress domestic violence,
including actual rebellion, by use of the militia and the posse comitatus, and
not by use of martial law. [FN66]
The Court was following the structural scheme explicated by James Madison in The
Federalist: the military was for "security against foreign danger," [FN67]
whereas for domestic strife, Article I allowed Congress "to provide for calling
forth the militia to execute the laws of the union, suppress insurrections and
repel invasions. . . . " [FN68]
Only in specific, narrow situations is domestic use of the military allowed:
when necessary to protect the states "against invasion" or--when the state so
requests--"against domestic violence." [FN69]
Thus, it should not be surprising that when the Congress passed the Posse
Comitatus Act, "several senators expressed the opinion that the Act was no more
than an expression of constitutional limitations on the use of the military to
enforce civil laws." [FN70]
The historic democratic purpose of relying on
the people is clear: to promote popular participation in law enforcement and to
prevent authoritarian rule by use of the military to enforce the law. As one
modern court stated, the Posse Comitatus Act,
is not an anachronistic relic of an historical
period the experience of which is irrelevant to the present. It is not
improper to regard it, as it is said to have been regarded in 1878 by the
Democrats who sponsored it, as expressing "the inherited antipathy of the
American to the use of troops for civil purposes." [FN71]
In litigation growing out of the Wounded Knee
uprising, the Eighth Circuit explained:
Civilian rule is basic to our system of
government. The use of military forces to seize civilians can expose civilian
government to the threat of military rule and the suspension of constitutional
liberties. On a lesser scale, military enforcement of the civil law leaves the
protection of vital Fourth and Fifth Amendment rights in the hands of persons
who are not trained to uphold these rights. It may also chill the exercise of
fundamental rights, such as the rights to speak freely and to vote, and create
the atmosphere of fear and hostility which exists in territories occupied by
enemy forces. [FN72]
B. Proposals to Weaken the Posse
Two proposals have been offered to increase
military participation in law enforcement: a biological and chemical exception
and a terrorist exception.
1. Biological and Chemical Exception
Currently, military expertise may be used in
cases of nuclear terrorism, since military specialists, appropriately, possess
knowledge of nuclear weapons which state and local law enforcement does not. The
Clinton administration has proposed adding "biological" and "chemical"
exceptions to match the nuclear exception. [FN73]
The Posse Comitatus Act does not prevent the
armed forces from training civilian law enforcement in chemical and biological
weapons; only direct military intervention is prohibited. There has been no
proof offered that civilian law enforcement officers, trained by the military
when necessary, cannot respond adequately to chemical or biological crimes. [FN74]
2. Terrorism Exception
Although the Dole bill did not contain the
chemical and biological exception to posse comitatus proposed by the White
House, both the Clinton bill [FN75]
and the Dole bill [FN76]
did contain a clause which essentially repealed the Posse Comitatus Act. As
detailed infra, [FN77]
the bills define almost every violent and property crime, no matter how trivial,
as "terrorism." (This expansion of federal jurisdiction was eventually enacted
in a significantly narrower form.) [FN78]
The bills would then authorize "the Army, Navy, and Air Force" to render
assistance against "terrorism" whenever requested by the Attorney General. [FN79]
Simply put, this a formula for martial law.
Use of the military for fighting terrorism is
sometimes justified on the grounds that not using the military would be a waste
of resources. The argument proves too much. Why not avoid wasting resources by
allowing army privates driving tanks and wielding flamethrowers and machineguns
to fight terrorism too? Why not really use resources efficiently, and allow the
military to fight all crimes?
The answer is that military resources serve
primarily as a deterrent to foreign aggression, and thus are useful even when
not actually in combat. Eroding the distinction between the military and the
civilian erodes the very basis of American civil society, a society which has
been built up by the sacrifice of many generations of Americans. Conserving the
foundation of a civil society--the distinction between civil and martial law--is
far more important than is the pennywise, pound foolish use of the military in
domestic law enforcement simply to avoid "wasting resources."
Further, few federal government actions (other
than gun confiscation) could be better calculated to frighten people and *269
drive more Americans into militias than increasing the presence of the military
in domestic law enforcement.
C. Current Militarization of Law
Many Patriot organizations are comprised of
members who have been terrified by the appearance of unmarked "black
helicopters" over nearby rural property. These helicopters (which are actually a
very dark green) have played a major role in intensifying fear of the federal
government. The helicopters are not from the United Nations, but are part of the
National Guard's marijuana eradication program. They are flying over rural
property as a result of 1981 and 1989 Congressional amendments which created a
partial "drug exception" to the Posse Comitatus Act. In conjunction with the
Supreme Court decision in Oliver v. United States, which allows law enforcement
officials to trespass-- even when the owner has taken all possible steps to
exclude trespassers--on "open fields" without probable cause or a search warrant
many rural areas are subjected to low-level overflights and landings of dark
helicopters carrying men in military uniforms with automatic weapons. Who would
not be frightened at a sudden invasion of an unmarked helicopter and men with
machine guns on private property?
The militarization of federal law enforcement
has a trickle-down effect on state and local law enforcement. During the 1970s,
the FBI set off a national trend in law enforcement by creating a "S.W.A.T."
(Special Weapons and Tactics) team. Abandoning former Director J. Edgar Hoover's
principle that FBI agents should be well-trained generalists, the new FBI
created S.W.A.T. units which specialized in confrontation, rather than
investigation, even though investigation was, after all, the very purpose of the
Federal Bureau of Investigation. Whereas Hoover's agents wore suits, and
typically had a background in law or accounting, S.W.A.T. teams wore camouflage
or black ninja clothing, and came from a military background. They were trained
killers, not trained investigators. In the early 1980s, an FBI super-S.W.A.T.
team was invented: the Hostage *270 Rescue Team. Like the S.W.A.T. team, it
received military training, carried military weapons, and was composed mostly of
former military personnel. But instead of becoming known for the rescuing of
hostages, the Hostage Rescue Team has become most notorious for two incidents in
which it ended up holding people hostage who only wanted to be left alone: Ruby
Ridge and Waco. [FN81]
Tanks, helicopters, and men pointing automatic
rifles at children have no place in a free society. Neither the push to make
America a drug-free society nor desire to do something about terrorism should be
accomplished at the expense of losing our freedom.
In the long term, the militarization of law
enforcement will be aggravated by the Department of Justice/Department of
Defense "Troops to Cops" conversion program, which provides local police
departments a large federal subsidy for employing ex-military personnel. [FN82]
Of course, any person who has served honorably in the military should be allowed
to apply for any civilian job, including law enforcement. But the federal
government should not use subsidies to bias police departments into hiring
persons with a military background, as opposed to a background in civil society.
The training which makes a good soldier is contradictory to the training
necessary to be a "peace officer."
A. The Limits of Political
Many people, particularly people who abhor
"right-wing" political viewpoints, have asserted that talk show hosts,
commentators, and others who speak strongly about the need to restrain the
federal government are indirectly responsible for the events in Oklahoma City.
Such claims are disgraceful.
When President Kennedy was assassinated in
Dallas in 1963, some people attempted to link the assassination to the climate
of "hate" that characterized the intense Southern opposition *271 to President
Kennedy's legislative program, including civil rights. But quite plainly,
Southern segregationists, wrong as they were on policy matters, had nothing to
do with the President's murder.
In 1970, anti-war radicals blew up a math
building at the University of Wisconsin. [FN83]
These radicals lived in an "Amerika" where important intellectual, political,
and media voices proclaimed that the Vietnam War was immoral, illegal, and
imperialist, and that the American government was guilty of crimes against
humanity. The young Bill Clinton enunciated some of these views. Yet it would be
improper to blame the opponents of the Vietnam War, including young Mr. Clinton,
for the criminal acts of the Wisconsin bombers.
After the Oklahoma City bombing, Danny Welch, an
official with the Southern Poverty Law Center (SPLC) blamed people who were
working within the system to restrain the federal government for the Oklahoma
City bombing: "I think the (extremist groups) are heartened by how much
mainstream citizens seem to be voicing the same thing. . . . They feel this is
their time." [FN84]
Columnist Suzanne Fields responds:
In other words, we must keep government as big
and oppressive as we can lest the loonies get the wrong idea. This is
depressingly similar to the argument of *272 Southern segregationists of a
generation ago who argued that since desegregation was espoused by Communists,
who stirred up violence, it was an unworthy goal for loyal Americans. [FN85]
The Unabomber has planted sixteen bombs in the
last seventeen years. [FN86]
The Unabomber characterizes himself as a "radical ecologist" and states that his
motive is "to promote social instability in industrial society, propagate anti-
industrial ideas and give encouragement to those who hate the industrial
It was generally reported that the bomber attended an Earth First! meeting at
which a "hit list" of "enemies" was distributed. [FN88]
Two persons on that list were later murdered by the Unabomber. [FN89]
Should anti-industrial talk show hosts, academics, and political activists who
strongly advocate "deep ecology" and other anti-industrial viewpoints be held
responsible for the Unabomber? Should there be a media crusade against the
Sierra Club, which has Earth First! founder Dave Forman on its Board of
Directors? Of course not.
For people sympathetic to the general thrust of
environmentalism, it is easy to see that peaceful advocates of radical
environmentalism should not be blamed for criminally murderous acts of radical
environmentalism. Even people who peacefully express deep hate of modern
industry and everyone who works in it are not responsible for a deranged
individual's crime spree. But such assurance of the guiltlessness of the
non-criminal radical might not have been so forthcoming if the Unabomber had
been against gun control or abortion, rather than being against "the industrial
As always, proponents of censorship misuse
Justice Holmes' dictum that the government can make it illegal to shout fire in
a crowded theater. To be precise, Justice Holmes wrote that "(t)he most
stringent protection of free speech would not protect a man in falsely shouting
fire in a theater and causing a panic." [FN91]
The point of Justice Holmes' example is not that any kind of speech that might
have harmful long-term consequences can be banned. Rather, the question is
whether the speech makes impossible any reflection on the part of the audience,
and thus impels instantaneous action. In a theater, when someone yells "fire,"
people will not have an opportunity to investigate and make their own
determination about whether there is a fire; rather, they will head for the
exits posthaste, perhaps trampling others in a panic.
As to "hate-speech" or criticism of the
government, Holmes wrote, "(W)e should be eternally vigilant against attempts to
check the expression of opinions that we loathe and believe to be fraught with
death, unless they so immediately threaten immediate interference with the
lawful and pressing purposes of the law that an immediate check is required to
save the country." [FN92]
As Justice Brandeis later elaborated:
But even advocacy of (law) violations however
reprehensible morally, is not a justification for denying free speech where
the advocacy falls short of incitement and there is nothing to indicate that
the advocacy would be immediately acted upon . . . .(N)o danger flowing from
speech can be deemed clear and present, unless the incidence of the evil
apprehended is so imminent that it may befall before there is an opportunity
for full discussion. [FN93]
Thus, when a speaker at an anti-Vietnam rally in
Washington stated: "If they ever make me carry a rifle the first man I want to
get in my sights is L.B.J. They are not going to make me kill my black
brothers," the Supreme Court found the man's political hyperbole to be protected
under the First Amendment. [FN94]
Likewise, in a case growing out of a Ku Klux Klan rally, the Court unanimously
formulated the modern version of the Holmes " shouting fire" test. The
government may not: "forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action." [FN95]
Justice Brandeis understood that suppression of
critical speech, no matter how repugnant, would in the long term breed more
violence: "(R)epression breeds hate; . . . hate menaces stable government; . . .
the path of safety lies in the opportunity to discuss freely supposed grievances
and proposed remedies." [FN96]
While the First Amendment protects a wide
spectrum of angry, militant speech, it is perfectly appropriate for public
figures to urge that dialogue on contentious issues be conducted in a respectful
manner. It is hypocritical, however, for a person to denounce his enemies in
hateful terms, while at the same times condemning political opponents for using
excessive rhetoric. Yet this is precisely what President Clinton has done,
despite his duty as President to set a constructive tone for national debate.
According to President Clinton, persons who disagreed with his terrorism bill
were terrorist co-conspirators, for they wanted to "turn America into a safe
house for terrorists." [FN97]
The public campaign waged in newspaper opinion pieces, joint letters to
Congress, and lobbying was falsely characterized as "back- alley whispers." [FN98]
Earlier, persons who had opposed *275 the 1994 Clinton crime bill's ban on
semiautomatic firearms were said by the President to have no basis in conscience
for doing so, [FN99]
as if a sincere belief in strict Constitutional construction were not only
incorrect, but immoral. Two weeks after the Oklahoma City bombing, President
Clinton characterized many millions of Americans as unpatriotic, for "there is
nothing patriotic about . . . pretending that you can love your country but
despise your government." [FN100]
We hope that President Clinton simply meant the
remarks as cheap shots at his political opponents, and never thought them
through carefully. For if he really believed what he said, then would he say
that a true German patriot in the 1930s could not love Germany and despise the
Nazi government? [FN101]
Could William Jefferson Clinton believe that namesake Thomas Jefferson could not
love America while despising King George's government? For that matter, was it
impossible for a young student named Bill Clinton and his fellow anti-Vietnam
draft evaders to find themselves, in his words, "still loving their country but
loathing the military . . . "? [FN102]
Speaking just a week after the Oklahoma City
murders, President Clinton called attention to recent remarks by talk show host
G. Gordon Liddy, saying "I cannot defend" such speech. [FN103]
Shortly after the Oklahoma City bombing, Liddy urged listeners to cooperate if
Bureau of Alcohol, Tobacco, and Firearms (BATF) agents arrived peacefully to
execute a search warrant. But, Liddy added,
(I)f they smash in unannounced, screaming at
you and assault you with lethal force, you have two choices. You can die under
their bullets, or you can shoot back and *276 try to defend your wife and
family. If they're wearing flak jackets, don't shoot them there, shoot them in
the head. [FN104]
In every state, it is legal to use deadly force
to defend against a lethal attack. If the attacking criminals happen to be
government agents, the law is not changed. Thus, Liddy's statement advocated
only lawful self-defense, not criminal attack.
Taken as a whole, Liddy's statement suggested
absolutely nothing illegal, but taken out of context, the "shoot them in the
head" statement was repeatedly misconstrued to suggest that Liddy had told
listeners to hunt down BATF agents and assassinate them. President Clinton's
speech, of course, relied on the out- of-context construction. We will assume
that President Clinton was not deliberately lying about what Liddy had said, but
instead was misinformed, although it is hard to see why a man with a large staff
of speech writers and speech-writing assistants cannot make sure that people
whom he attacks by name have actually said what he is attacking them for.
"Strong rights require strong responsibilities,"
is the slogan of the Communitarian Network, a Washington political movement of
which President Clinton is a strong supporter. [FN105]
America's strong freedom of speech requires those who exercise it not just to
avoid unlawful speech, but to avoid speech that is hateful, polarizing, and
defamatory. Too many leaders of the militia and patriot movements have failed to
live up to this responsibility. So, too, has Mr. Clinton. [FN106]
B. Censoring the Internet
Some Congresspersons have announced their dismay
that explosives recipes and other instructions for making products which are
illegal without a special license can be found on the Internet. First of all, it
is legal in the United States, and always has been, to publish information about
how to make firearms, or explosives, or any other type of weapon. The only
attempt to create an exception involved nuclear weapons, an exception based on
the unique, gargantuan destructive power of nuclear weapons (which can destroy
not just a building, but an entire city), and hence inapplicable to more
conventional products. [FN107]
Thus, the sixties' relic The Anarchist
Cookbook remains lawfully available today and can be bought by mail-order.
Likewise, it is legal to purchase and read any number of books that detail how
to break various laws, steal things, or resist the government, including Abbie
Hoffman's Steal This Book. [FN109]
The fact that some such books are being
distributed electronically--by phone lines, rather than by printing and
mail-order--hardly changes their secure status within the protection of the
First Amendment, any more than the fact that The Anarchist Cookbook was
printed with a high-speed modern printing press rather than a Franklin press
took the book out of the First Amendment. It is well established that government
may punish persons for breaking the law, or for imminent incitement *278 to
break the law. [FN110]
It may not punish people for possessing knowledge or for reading about breaking
The final terrorism legislation requires the
Attorney General to study the availability, in all media, of bomb-making
instructional manuals and the constitutionality of restrictions on such manuals.
C. Felonizing Support for Peaceful
Activities of Foreign Organizations
Before the terrorism bills were even introduced,
federal law appropriately forbade the provision of material support to foreign
This law also forbade investigations of people for violating this law unless
there is some reasonable suspicion that they have violated or may violate the
In the terrorism bill signed by the President,
the statutory protection of First Amendment rights was eliminated. Further, the
bill expanded the prohibition of support to include a prohibition on support for
lawful non-violent activities of any group which the Secretary of State
designated a "foreign terrorist" organizations. [FN113]
As the bill moved through Congress, the Clinton administration retreated from
its insistence that the Executive designation be unreviewable. At the least, the
potential for judicial review will reduce the risk of the terrorist designation
being used against domestic dissident groups, since they would be able to show
in court that they were not foreign. [FN114]
But it should be remembered that American courts have historically been
extremely deferential to Presidential foreign policy decisions. If there were
even a modicum of evidence in favor of the President's designation of a foreign
group as "terrorist," then it is very likely that courts would not overturn the
designation. In addition to criminal penalties of up to ten years in prison,
civil fines of $50,000 per offense may be imposed, and in *279 civil
prosecutions, the government may, upon approval of the court, introduce secret,
classified evidence that remains hidden from the defendant. [FN115]
In case of judicial review of the "terrorist" designation, the government would
be able to use secret evidence, shown ex parte and in camera. [FN116]
Moreover, a provision put into the final bill at
the last minute by the Conference Committee requires banks to freeze the
domestic assets for any account-holder who claimed to be an agent of a foreign
terrorist organization. [FN117]
Notably, the legal requirement to freeze assets is not contingent on any
designation by the Secretary of State, but instead is an independent legal duty
of the bank. [FN118]
The bill does not offer any provision for an individual or organization to
appeal the freezing of their assets. [FN119]
The reader might consider imagining this
legislation in the hands of her worst political nightmare. An organization which
provides support to the government of Israel or to the Israeli Defense Forces
(both of which are considered "terrorist" in some political circles) could be
outlawed, as could (by a different President) a group which provides support to
One important distinction between the Clinton
and Dole bills was that the Dole bill created an explicit exception to the
"material support" statute: "'Material support' . . . does not include
humanitarian assistance to persons not directly involved in such violations."
Thus, under the Dole approach, sending a Christmas food package to an I.R.A. or
A.N.C. prisoner would constitute material support, but giving money to a fund
that assisted *280 the orphaned children of I.R.A. or A.N.C. members would not.
The final legislation did not include the proposed Dole exception.
Thus, under the new terrorism bill, a donor to
the I.R.A. orphanage would be a federal felon, subject to ten years in prison,
as would be a person who spent five dollars to attend a 1980s speech of a
visiting lecturer from the African National Congress. If the "material support"
language had been law in the early 1980s, persons who gave money to church
relief groups in El Salvador and Nicaragua, which opposed American policy in
Central America, could have been labeled "terrorist." [FN121]
When pressed about this problem at Congressional hearings, a Clinton
administration spokesperson acknowledged that minor support for the A.N.C.'s
peaceful activities could have been felonized, but that the American people
should simply trust the President not to abuse the immense power which President
Clinton was requesting. But as President Lyndon Johnson put it: "You do not
examine legislation in light of the benefits it will convey if properly
administered but, in light of the wrongs it would do and the harms it would
cause if improperly administered." [FN122]
1. Licensed Donations
Both the Clinton and Dole bill included
provisions allowing certain humanitarian contributions to blacklisted groups.
However, these provisions were not included in the Conference bill. The
unenacted licensing procedure was very difficult to comply with. Not only did a
recipient group have to open its books to the Treasury Department, so did the
donor. In other words, if a person wanted to make a $50 contribution to buy
clothes for Palestinian orphans, the person must make his financial records *281
open for inspection, and be able to show "the source of all funds it receives,
expenses it incurs, and disbursements it makes." [FN123]
There was no limitation that the complete accounting of receipt, expenses, and
disbursements be limited to the charitable donation. Virtually no one in the
United States keeps such detailed records. Knowing that a charitable donation to
a politically blacklisted group would expose the donor to a nightmare audit, few
donors would be courageous or foolish enough to give anyway.
2. The Constitutional View
The Constitution mandates that if a person is to
be punished for association with a group which has unlawful objectives, the
government must prove that the individual specifically intended to further the
unlawful objectives. [FN124]
What the Clinton/Dole bills propose is a return to practices which the Supreme
Court outlawed over half a century ago.
In 1940, the Immigration and Naturalization
Service (INS) attempted to deport labor organizer Harry Bridges because of his
affiliation with the Communist party. Bridges had supported only lawful
Communist activities--not the party's unlawful ends. The INS (like Clinton and
Dole) argued that if an organization had unlawful purposes, the fact that a
supporter had supported only lawful purposes was irrelevant. The Supreme Court
disagreed and reversed. [FN125]
More recently, the Court declared
unconstitutional a law that was "a blanket prohibition of association with a
group having both legal and illegal aims." [FN126]
Unless there was proof that the defendant specifically intended to support the
group's *282 illegal aims, the prohibition was a violation of " the cherished
freedom of association protected by the First Amendment." [FN127]
A. Cracking Down on Militias
Adam Parfrey, who had written an October 1994
story about militias for the Village Voice, [FN128]
found himself an instant militia "expert" after the April 1995 crime in Oklahoma
City. Major news organizations would contact him, asking him to supply a quote
which linked the militias to the bombing. When he suggested that there was no
link, reporters quickly lost interest. The mainstream media's combination of
certitude and ignorance was illustrated by a statement from a Washington
Post researcher: "The militias--whoever the fuck they are--are a ticking
time-bomb composed of paranoid lunatics." [FN129]
Many Americans, including, we guess, most readers of this law review as well as
many journalists who have written about militias, have never met an actual
militia member. Most militia members, we are certain, have never met an actual
international banker. In a condition of ignorance, it is possible for militia
members to believe dark tales of an international banking conspiracy that would
be laughable to a person who knew international bankers by meeting them at
Manhattan cocktail parties. Conversely, well-educated Americans who know all
about international *283 banking, but nothing about living on a farm in Montana,
may fall for stupendous exaggerations about evil militia conspiracies.
Much of what many Americans "know" about
militias comes from uncritical media repetition of information from America's
anti-militia movement. Exclusive reliance on such sources can be as misleading
as would be reliance on Operation Rescue for most of one's information about
abortion clinics. Unfortunately, the anti-militia movement too often acts as a
mirror image of the worst side of the militia movement: the ideology is exactly
reversed, but the paranoia and misinformation remain the same.
These problems are illustrated in a pair of
books published by anti-militia leaders shortly before the first anniversary of
the Oklahoma City bombing: A Force upon the Plain: The American Militia
Movement and the Politics of Hate, by Kenneth Stern of the American Jewish
Committee (AJC), [FN130]
and Gathering Storm: America's Militia Threat, by Morris Dees of the
Southern Poverty Law Center (SPLC). [FN131]
Before analyzing the books, we wish to emphasize
our respect for the good work that the AJC and the SPLC have done in other
fields. One of us, Kopel, was a monthly donor to the SPLC from 1984 through
1995. Both organizations are composed of good Americans who mean well for their
country. But the anti-militia groups, like the militias they criticize, have
allowed their prejudices and fears to outrun the facts. A sensible policy
regarding militias must steer a middle course between the paranoia at both ends
of the debate.
"The very future of the United States is at
risk, because of treason in our midst." [FN132]
This quote summarizes the apocalyptic exaggeration of some militia leaders. It
is also the implicit message of the anti-militia movement. Dees' book opens with
a quote from the Gettysburg Address, observing that "we are engaged in a great
civil war," and wondering "whether (our) nation . . . *284 can long endure." [FN133]
"Unless checked," the militia movement "could lead to widespread devastation or
ruin," we are warned. [FN134]
The mastermind of the great militia conspiracy,
according to Dees, is Ku Klux Klan leader Louis Beam, who appears in the book as
a Moriarty, to Dees as a Sherlock Holmes. (Dees and his organization, the
nation's wealthiest civil rights charity, [FN135]
must fight almost alone against the vast militia conspiracy, as ignorant state
attorneys general refuse to heed Dees' call for a crack-down on militias.) The
American militia movement was originated primarily from the brilliant tactical
decision of Beam and a few other racists to use the Randy Weaver incident to go
mainstream. They built organizations composed of people concerned about the loss
of their rights, rather than racists who wanted to take away the rights of other
Although, as even Dees' statistics show, most militias are not run by racists,
non-racist militia members are essentially dupes of Beam, et al., and the
non-racist militias are allegedly vulnerable to takeover by the Beam conspiracy.
"Conspiracy reeks throughout this bloody murder" announced racist preacher Pete
Peters after the deaths of Sammy and Vicki Weaver at Ruby Ridge, Idaho. [FN137]
Dees and Stern believe the same about Oklahoma City.
At an Estes Park, Colorado meeting following the
Weaver incident, according to Dees, "Plans were laid for a citizens' militia
movement like none this country has known. It's a movement that has already led
to the most destructive act of terrorism in our nation's history." [FN138]
"Patriot Underground Strikes in *285 '95" is the headline for a special year-end
report of the Southern Poverty Law Center; immediately below the headline are
pictures of the Arizona train derailment and of the Alfred P. Murrah Building in
Oklahoma City. [FN139]
There is, of course, no suspect in the Arizona train derailment, let alone a
"Patriot" movement suspect. Nor has anyone in the Patriot movement been
implicated in the Oklahoma City bombing. Nor is there any sinister Patriot
"underground." The Patriot movement has public meetings, advertises in
newspapers, and communicates through newspapers and talk radio--not exactly the
tools of an underground.
Yet Dees and Stern build their books around the
claim that the militia/patriot [FN140]
movements are unindicted coconspirators in the Oklahoma City murders. McVeigh's
entire connection to the militia movement has two pieces. First, Terry Nichols
and he attended two meetings of the Militia of Michigan. It is uncontroverted
that the pair were told to leave because they were talking about violence. [FN141]
Second, Mark Koernke, a short-wave radio personality who runs a mail-order
business selling militia *286 gear, was seen with someone who looks a great deal
like McVeigh. That's all the evidence showing any contact at all between McVeigh
and the militias, and obviously does not come remotely close to even suggesting
that anyone in a militia encouraged McVeigh to do anything illegal, let alone
perpetrate one of the most vicious mass murders in history.
Added to the above collection of nothing, there
is certain circumstantial evidence. McVeigh photocopied material at a copy
center in Arizona. "He would not have needed extra copies unless, maybe, he was
supplying them to his confederates," suggests Dees. [FN142]
Or unless he was selling or giving away the material from his booth at gun
shows, where he was known to sell literature; this rather obvious alternative
explanation is not even suggested to the reader.
One key piece of evidence, emphasized by Dees
and Stern is that after being arrested, McVeigh only supplied his name, and no
other information. This conduct, the authors note, is consistent with
instructions which members of the Militia of Michigan have been given if they
are captured. [FN143]
True enough, but the authors overlook the obvious fact that instructions to
supply only name, rank, and serial number are also given to members of the
United States armed forces in which McVeigh served.
So hard are the authors searching for tiny
specks of evidence of militia conspiracy in Oklahoma City that they neglect much
more obvious facts; we know who taught McVeigh how to manufacture and employ
explosives, as well as who put him through a specific course of psychological
conditioning--designed by behavioral experts--with the intention of destroying
the normal human reluctance to kill another human being. [FN144]
It was the United States Army. *287
Most soldiers understand the difference between
killing enemy soldiers and killing one's own civilian countrymen, just as most
militia members understand the difference between training for self-defense and
blowing up innocent people. Yet Stern and Dees, convinced that McVeigh's
horrible crime was driven by militia ideology, do not even pause to consider
whether United States government ideology and training may have played a role.
The authors ominously note that McVeigh read gun
magazines, especially Soldier of Fortune, [FN145]
but fail to note that Soldier of Fortune, while sharply critical of
government conduct at Ruby Ridge and Waco, has published articles debunking some
militia leaders' claims about foreign troops in the United States and other
false facts which would tend to create an atmosphere of crisis. [FN146]
Besides, using reading material as the foundation of guilt by association is
tenuous at best. When arrested, McVeigh had in his car a handwritten passage
from John Locke's Two Treatises of Government about the right to resist
tyranny by force. [FN147]
Shall we condemn Locke and Lockeans for creating the climate of hate against
government employees that may have pushed McVeigh into violence? The date of the
*288 Oklahoma City bombing, besides being the second anniversary of the FBI tank
and chemical warfare assault on the Branch Davidians, was also the 220th
anniversary of the battles of Lexington and Concord. When arrested, McVeigh was
also carrying material about those battles. [FN148]
Should every history teacher who has glorified America's noble resistance to
King George be condemned as contributing to the " climate of hate" and a crime
perpetrated by a man who could not make the moral distinction between shooting
at an advancing hostile army, and blowing up innocent government employees?
Borrowing an idea from Ken Toole, [FN149]
Stern examines societal extremes in the context of a funnel: at the widest
point, are people concerned with tax and environmental issues; deeper, in the
narrower part of the funnel, are the conspiracy theorists; at the far end, out
pops Timothy McVeigh. The metaphor is powerful, but it is nothing more than
guilt by association. It is no more valid than a funnel with clean water
advocates at the wide end, radical environmentalists in the middle, and the
Unabomber popping out the narrow end.
Moreover, the great ideological inspiration for
McVeigh was neither a gun magazine, John Locke, or any other form of militia
literature. McVeigh fell in love with The Turner Diaries, a fictional,
white-racist, anti-Semitic account of a race war in which the FBI building is
destroyed with a fertilizer bomb. [FN150]
Well before the militia movement even existed, McVeigh was captivated with the
book, urging his friends to read it, and selling it at a discount.
Unlike the Southern Poverty Law Center, we do
not have "dossiers" on thousands of suspected militia members and militia
sympathizers. Nor do we have a staff of ten people devoted entirely to
collecting information on militias. Nor do we have infiltrators placed in the
militia movement. Thus, there is a great deal of material in Dees' book, and
Sterns' as well, which we cannot authoritatively claim is false. There is no way
of telling. Neither book has footnotes, which makes verification of the various
claims all the more difficult. [FN151]
But as for the facts *289 in the books for which we have independent knowledge,
there are a good number of incorrect statements, or facts presented out of
Stern's book prominently features the following
quote from Samuel Sherwood of the U.S. Militia Association: "Go up and look
legislators in the face, because someday you may be forced to blow it off." [FN152]
The quote is ubiquitous among anti-militia activists, [FN153]
and their supporters in the media. [FN154]
The one problem with the quote is that it is a falsehood.
In a July 1995 article, Reason magazine
exposed the alleged Sherwood quote as a fabrication of a local journalist that
was repeated by the Wall Street Journal's intensely anti-gun Al Hunt.
It then became a certified part of official Washington's false consciousness.
Here's what the Reason article reports:
In the closing minutes of the meeting,
Sherwood made an impassioned plea for using political action rather than
violence in correcting the wrongs that the members of the United States
Militia Association see in government. He suggested that if his listeners
wanted to grab a gun to shoot their legislators, they should first go look
them in the face and recognize that legislators are also American citizens who
are fathers, mothers, husbands, and wives. The audience not only understood
*290 that he was arguing against violence, they applauded his remarks. Unlike
Journal columnist Hunt, I was actually at the meeting. [FN156]
Stern also throws in the G. Gordon Liddy quote
about shooting BATF agents, omitting Liddy's words about doing so only in case
of a murderous invasion of one's home. [FN157]
Dees and Stern both devote a good deal of ink to
promoting gun control, particularly the notion that the Second Amendment does
not guarantee an individual right to arms. [FN158]
Dees and Stern assure us that "most scholars" agree. [FN159]
While the Second Amendment is subject to legitimate debate, the position that
most scholars have taken (regardless of whether that position *291 is correct),
is not debatable. The overwhelming body of scholarship on the Second Amendment
concludes that the Second Amendment was intended to guarantee an individual
right; no-one who is familiar with scholarly debate on the Second Amendment in
the last decade could possibly assert that most scholars reject the individual
rights view. [FN160]
Scholars who do *292 argue against the individual rights view acknowledge that
they are arguing against a large mass of published scholarship. [FN161]
Dees tells the reader that George Washington
"denounced the actions of privately armed groups with a political agenda as a
threat to democratic society. He then went out and crushed *293 the Whiskey
Washington's exact words are not specified, and we would suggest that Washington
was not quite as hostile to militias as Dees claims. He did crush a privately
armed group--when they started a violent rebellion against the laws of the
United States. But to crush the Whiskey Rebellion, George Washington exercised
his legal authority to "call forth the militia" of Pennsylvania. [FN163]
Before the American Revolution, George Washington, along with George Mason,
founded a non-governmental militia outside the (British-appointed) Governor's
chain of command. The Fairfax County Militia Association, with as strong a
political agenda as any group could have, declared: "Threat'ned with the
Destruction of our Civil-rights, & Liberty," (we will) "each of us,
constantly keep by us" arms and ammunition. [FN164]
Stern also offers some dubious history:
(A militia book) claimed that "American
patriots took up arms against the British and began the revolution only
when--and precisely because--the British attempted to disarm them." Wrong,
says historian Rosemary Zagarri. "The British fought the Americans," she says.
"They didn't try to disarm them." [FN165]
The list of sources for the chapter does not
include any work by Rosemary Zagarri (who apparently is quoted in some other
source of Stern's), but the issue, in any case, hardly requires a professional
historian. The commonly-accepted opening of the American Revolution is the
battles of Lexington and Concord in which American militiamen "fired the shot
heard round the world." The British had marched on Lexington and Concord to
seize weapons and gunpowder in the militia armories of the two towns. The first
fighting in Virginia occurred when the *294 Redcoats attempted to seize
When the British marched toward Lexington and Concord, they marched out of the
occupied city of Boston, whose people the British government had assiduously
attempted to disarm. [FN167]
When British victory appeared in sight in 1777, Colonial Undersecretary William
Knox authored a plan: "What is Fit to Be Done in America?" Knox suggested
establishment of a state church, unlimited tax power, a governing aristocracy, a
standing army, repeal of the militia laws, a ban on arms manufacture, a ban on
arms imports without a license, and "the arms of all the People should be taken
While Dees and Stern may not know the detailed
history of the American Revolution and Early Republic (which should make them
cautious in making broad pronouncements about them), it is fair to expect the
head of an organization to describe correctly his own organization's legislative
agenda. Protesting a concern for civil liberties, Dees announces his affection
for the right to assembly, adding only the reasonable-sounded qualification that
"the government can insist that those who assemble do so without automatic
weapons in order to protect against a potential deadly breach of the peace." [FN169]
This is doubly misleading. First, the statement about automatic weapons adds to
the public confusion about the distinction between automatic weapons (machine
guns) and semi-automatic weapons (which fire only one shot per trigger pull, but
which sometimes look like automatic weapons) that has been fomented by the
anti-gun lobbies. Nor is the Southern Poverty Law Center's proposed ban on
assembly with firearms limited to automatics, or even semi-automatics. The SPLC
proposal applies to any gun, all the way down to a single-shot .22 rifle, and
could turn a hunting-lodge political discussion into a federal felony.
As the books build to their climax, they warn
that more militia violence is coming. Of course the evidence that there *295 has
already been a wave of militia violence is tenuous. The centerpiece of the
theory of militia violence is the unsupported link between militias and the
Oklahoma City bombing. Several other crimes by militia members are detailed,
supplemented by the elastic category of crimes by "militia sympathizers," an
open-ended grouping as subject to abuse as the John Birch Society's listing of
"Communist sympathizers." [FN170]
Even if we count all alleged "militia
sympathizers" as actual militia members, the SPLC Report shows that militia
members perpetrate violent crimes at a per capita rate far below the American
population as a whole. Certainly there are criminals who belong to militias, as
there are criminals who belong to police departments, or to Congress. (Indeed,
rogue police officers have committed far more than thirty-six violent crimes in
the period covered by the Southern Poverty Law Center report.)
The presence of a few criminals among a vastly
larger class of law-abiding citizens is no reason to "crack down" on
non-criminal militia members--or to crack down on non-criminal police officers.
The prediction of the coming wave of militia terrorism is actually nothing more
than Dees' psychological analysis of how he thinks militia members are likely to
behave: "After a while, angry loners are likely to grow bored roaming around the
woods and shooting at paper targets." [FN171]
In other words, if people train with guns, they will eventually start killing
with guns. The speculation parallels the theory of unilateral disarmament
advocates that nuclear weapons, if possessed, will eventually be used. Dees and
his coauthor have a gift for powerful language, which sometimes can make the
reader forget the absence of facts to support it: "Predicting when and where
militia terrorists will strike next is no easier than guessing when and where
the next whirlwind of dust will form. Unfortunately, all that seems certain is
that the devils will strike again." [FN172]
It is not unusual for direct-mail organizations
to grossly exaggerate alleged threats. Several former Southern Poverty Law
Center staff attorneys have accused the group of overstating the Ku Klux Klan
threat in the 1980s, fooling credulous donors about the pervasiveness of Klan
activity in the modern South. [FN173]
Stern, also a powerful writer, warns, "Whenever
an ideology justifies baby- killing--even at the fringes of the fringes--that is
an especially strong danger signal." [FN174]
True enough, but Stern never identifies any militia ideologue-- even on the
fringes of the fringes--who justifies baby killing.
Dees is much more careful than Stern to
emphasize that most militia members are not racists. [FN175]
Yet broad smears still appear in the book. The first page of the photo spread at
the center of the book is titled "Martyrs of the Modern Militia Movement," and
features a picture of the founder of a neo-Nazi group (the Order) and homicidal
leader of the racist Christian Identity religion. [FN176]
Dees does, however, opine that Americans were fully within their rights to
change the party in control of Congress in the 1994 elections, and he makes a
point of expressing his own frustrations with the federal government, as when
federal regulators forced his father to plow under two acres of cotton during
the Depression, because Dees' father had exceeded his acreage allotment. [FN177]
Stern, in contrast, occasionally acknowledges
that not all militia members are racists, but his stock phrases, such as "the
*297 hate of militias," leave an opposite impression. [FN178]
He finds that in the 1994 elections, "the vitriolic antifederal sentiments of
some of these newly elected officials" differed "in detail but not in flavor"
from the ideas of racist gangs in the 1980s and today's militias. [FN179]
Stern is much more explicit in doing what has
been implicit in much of the anti-militia movement: using charges of
anti-Semitism and racism to delegitimize political stands he does not like, and
to vilify political opponents, just as charges of being a "Communist
sympathizer" were used in earlier generations to attack non-Communist advocates
of civil rights or other progressive legislation.
Thus, "whenever Americans have talked of 'states
rights' or 'county supremacy,' that is a cover for bigotry." [FN180]
It is true that states' rights have sometimes been used as a cover for
bigotry--such as when the argument was used to defend white supremacist policies
in Southern states in the 1950s. But to argue that "whenever" states' rights are
discussed, the proponent is always promoting racism is absurd. The Tenth
Amendment--ratified by both houses of Congress and by three-quarters of American
state legislatures--guarantees states' rights. Were all of its supporters
motivated by bigotry? Were all the United States Supreme Court Justices who
vindicated the Tenth Amendment in New York v. United States,
National League of Cities v. Usery, [FN182]
and United States v. Butler [FN183]
likewise bigots? Is Dennis Henigan--the Handgun Control, Inc. attorney who
argues that the Second Amendment guarantees a state's right to have a militia
a bigot? *298
Moreover, legislators can never do anything
which militias might agree with, for such action would only legitimize them.
Thus, the majorities of both houses of the Montana legislature are guilty of
legitimizing militias because they passed legislation that required federal
agents to receive permission from local sheriffs before conducting arrests. [FN185]
Likewise, "if there are 'retreats' on environmental protection and gun control,"
militias may be strengthened. [FN186]
Stern quotes an Ohio militia member who suggests
that the current United States government perpetrates many of the same abuses
identified in the Declaration of Independence. The militia movement is then
chastised for "(t)he use of patriotic images to malign American government." [FN187]
Actually, comparing one's political opponent to King George III is one of the
oldest non- partisan rhetorical devices in American politics. Pat Schroeder, who
loves her country and its government, delivered a stirring speech to the 1974
Colorado Democratic Convention comparing then-President Richard Nixon to King
George, by reading through the litany of grievances in the Declaration of
After acknowledging that most people do not join
militias for racist or anti-Semitic purposes, Stern insists that "racism,
especially anti-Semitism, was essential to the movement . . ." [FN189]
For example, militias believe in "states rights" and "county rights" which are
"covers for bigotry." [FN190]
After all, "(y)ou don't want to make the county sheriff the highest legitimate
government official if you are concerned about building an egalitarian society."
If the only way in which "an egalitarian society" can be built is through the
federal government imposing racial quotas and other laws on private citizens,
*299 Stern's assumption may be true. But it is certainly possible for a person
to believe in good faith that we will get a more egalitarian society when we do
not have a federal or a state government capable of imposing racial or religious
discrimination, all people are equal before the law regardless of race or
religion, and no form of private bigotry can find a government to support it.
There is certainly room for people to disagree about whether federal power or
greater personal liberty are better approaches to an egalitarian society, and
the purpose of this Article is not to argue for one approach or the other. We do
argue that it is inappropriate for Stern to insist that people who favor the
less-government path to egalitarianism are, by definition, racists or
According to Stern, people who believe in
big-government conspiracy theories, just like the small-government proponents
are necessarily anti-Semitic. "(T)he conspiracy theories that underlie the
movement are rooted in the Protocols of the Elders of Zion." [FN193]
Talk about "international bankers," the "Federal Reserve," the "Trilateral
Commission," or "eastern elites" are all "code phrases" that imply
The anti-Semitic Protocols of the Elders of Zion is not, however, the
foundation for conspiracy theories about international bankers and the like. [FN195]
As Stern reports, the John Birch *300 Society (in some respects an intellectual
ancestor of today's conspiracies theorists), traced the then- current "Communist
conspiracy" (alleged to include President Eisenhower), back to the Bavarian
Illuminati of 1776. [FN196]
The great founding document of this conspiracy theory, Proofs of a
Conspiracy, was written in 1798, by Edinburgh University professor John
Robison; the book has been reprinted by Western Islands Press, the publisher of
John Birch Society books. [FN197]
Some strands of *301 conspiracy thinking extended back to Sparta. On the way to
the present, numerous other groups are implicated in conspiracy theories,
including the Knights Templar, the Masons, the Gnostics, the Manicheans, and
various other folks. What these groups all have in common (besides supposedly
being involved in the great conspiracy), is that none of them are Jewish. The
Knights Templar were the international bankers of the middle ages, brought down
when a free- lance paid informant accused them of heresy, homosexuality, and
other practices, and, when tortured, many members of the order confessed. [FN198]
As the great historian Richard Hofstadter explained in The Paranoid Style in
American Politics, contemporary American conspiracy thinking starts with
the use of Robison's book in campaigns against the Jeffersonians, and was
flourishing long before the 1903 publication of The Protocols. While
not all American anti-conspiracy movements have been religiously prejudiced,
Catholicism, not Judaism, has been the obsessive concern of
anti-conspiratorialists who are also bigots. [FN199]
As in too much of the militia movements, in the
anti-militia movement "rhetoric is routinely used to demonize an opponent,
legitimize insensitive stereotypes, and promote prejudice." [FN200]
The militia and anti-militia movements too often offer, "a model of
conspiratorial 'logic' designed to grab audiences who, if they accepted the
premises and did not question the sleight-of-hand, *302 easily could have been
The wild claims based on weak evidence [FN202]
serve to polarize rather than advance political dialogue and national unity.
Contrary to the prescriptions of the anti-militia movement, the best path for
dealing with issues raised by the militias is for all sides to have less hate,
less paranoia, and less stereotyping.
In an odd sense, the militia and anti-militia
movements benefit from mutual antagonism. The claims from militia and
anti-militia paranoia-mongers may not convince the majority of the American
public, or a majority of Congress of anything. But far-out stories energize
already credulous supporters, and bring in new support from persons who are
ill-informed about the supposed enemy "menace." [FN203]
"Mark from Michigan" has done a thriving business in selling mail-order survival
equipment, and the Southern Poverty Law Center, with reserves of fifty-two
million dollars, is one of the wealthiest non-profit groups in the United
The outer fringes of the militia and patriot
movements, with their nativist fears of a vast international conspiracy
involving the United Nations and highly-placed American traitors, reflects some
of the political orientation of the John Birch Society. Ironically, the SPLC,
the ACJ, and other anti-militia groups increasingly resemble a John Birch
Society of the Left. Barbara Dority (president of Humanists of Washington,
executive director of the Washington Coalition Against Censorship, and co-chair
of the Northwest Feminist Anti-censorship Taskforce), writes:
Much of the readily available "information"
about militias and the patriot movement is being disseminated by "anti-hate"
organizations with their own agendas. One such group is the Southern Poverty
Law Center, whose recent direct-mail materials indicate a surprising attitude.
Rightly acclaimed for its effective lawsuits against racist groups that commit
acts of violence, the SPLC says it has recently established a massive computer
database of "hate groups," including reports on 14,000 individuals who have
"committed hate acts" or who are "affiliated with hate groups," as well as
"extensive intelligence" on more than 3,200 "hate and militia organizations."
From a civil-liberties standpoint, these
tactics are a little too reminiscent of organizations like the John Birch
Society, which kept extensive records on "communists and communist
sympathizers." Moreover, the SPLC campaigns for laws that will effectively
deny free speech and freedom of association to certain groups of Americans on
the basis of their beliefs. Six times a year, the SPLC's letter boasts, the
center reports its findings to over 6,000 law-enforcement agencies; then, with
no discernible irony, it goes on to justify its Big Brother methods in the
name of "tolerance," arguing that "paranoid militant groups" are seeking
protection from "imagined threats" to their freedoms. [FN205]
The paranoid tracts of the anti-militia
movement, like Mark Koernke's ridiculous short-wave fearmongering, should not be
dismissed as unimportant, for like Mark Koernke, the anti-militia movement has a
large following. In the foreword to A Force upon the Plain, Stern
explains that the book was written to provide the public relations foundation
for legislation being pushed by Representative Charles Schumer (a leader of the
Congressional anti-militia movement). [FN206]
"(V)aluable Americans, valuable books," writes New York Times columnist
Abe Rosenthal of the Stern and Dees books. [FN207]
Newsday called Stern's book "prodigiously researched and compellingly
The New York Times liked the book so much that it gave the book
two glowing reviews. [FN209]
Senator Daniel Patrick Moynihan also lavished praise. [FN210]
The Dees book jacket features quotes from opinion leaders such as Jimmy Carter
and Arthur M. Schlesinger, Jr. [FN211]
Stern and Dees are almost as guilty as Mark Koernke of poisoning the American
political dialogue, and the audience which falls for the anti-militia conspiracy
theory is much more politically powerful than is the smaller group that falls
for Koernke's fictions.
To respond intelligently to the militia and
patriot movements, we must acknowledge that, although the movements are
permeated with implausible conspiracy theories, the movements are a reaction to
increasing militarization, lawlessness, and violence of federal law enforcement.
Such genuine problems should concern all Americans. Simply asserting that all
these people are conscious or unconscious anti-Semites, dupes of some vast Ku
Klux Klan conspiracy, is not an adequate response. Public policy makers should
give serious consideration to Professor Glenn Harlan Reynolds' insight: *305
When large numbers of citizens begin arming
against their own government and are ready to believe even the silliest rumors
about that government's willingness to evade the Constitution, there is a
problem that goes beyond gullibility. This country's political establishment
should think about what it has done to inspire such distrust--and what it can
do to regain the trust and loyalty of many Americans who no longer grant it
If Americans want to shrink the militia
movement, the surest way is to reduce criminal and abusive behavior by the
federal government. Conversely, the persons responsible for the deaths of
innocent Americans should not be promoted to even- higher positions in the FBI
or federal law enforcement. If the Clinton administration were trying to fan the
flames of paranoia, it could hardly have done better than to have appointed
Larry Potts second-in-command at the FBI.
We must also remember that it is lawful in the
United States to exercise freedom of speech and the right to bear arms. Spending
one's weekends in the woods practicing with firearms and listening to right-wing
political speeches is not our idea of a good time, but there is not, and should
not be, anything illegal about it.
Cracking down on militias will lead to disaster.
Nearly twenty years ago, an article in the Public Interest explained
the American gun control conflict:
(U)nderlying the gun control struggle is a
fundamental division in our nation. The intensity of passion on this issue
suggests to me that we are experiencing a sort of low-grade war going on
between two alternative views of what America is and ought to be. On the one
side are those who take bourgeois Europe as a model of a civilized society: a
society just, equitable, and democratic; but well ordered, with the lines of
responsibility and authority clearly drawn, and with decisions made *306
rationally and correctly by intelligent men for the entire nation. To such
people, hunting is atavistic, personal violence is shameful, and uncontrolled
gun ownership is a blot upon civilization.
On the other side is a group of people who do
not tend to be especially articulate or literate, and whose world view is
rarely expressed in print. Their model is that of the independent frontiersman
who takes care of himself and his family with no interference from the state.
They are "conservative" in the sense that they cling to America's unique
pre-modern tradition--a non- feudal society with a sort of medieval liberty
(at) large for everyman. To these people, "sociological" is an epithet. Life
is tough and competitive. Manhood means responsibility and caring for your
The author explained the catastrophe that
America will create for itself if fearful people in government attempt to "crack
down" on fearful gun-owners, thereby fulfilling the worst fears that each group
has of the other:
As they (the gun-owners) say, to a man, "I'll
bury my guns in the wall first." They ask, because they do not understand the
other side, "Why do these people want to disarm us?" They consider themselves
no threat to anyone; they are not criminals, not revolutionaries. But slowly,
as they become politicized, they find an analysis that fits the phenomenon
they experience: Someone fears their having guns, someone is afraid of their
defending their families, property, and liberty. Nasty things may happen if
these people begin to feel that they are cornered.
It would be useful, therefore, if some of the
mindless passion, on both sides, could be drained out of the gun-control
issue. Gun control is no solution to the crime problem, to the assassination
problem, to the terrorist problem . . . . (S)o long as the issue is kept at
*307 a white heat, with everyone having some ground to suspect everyone else's
ultimate intentions, the rule of reasonableness has little chance to assert
Kenneth Stern correctly chastises elements in
the militia movement which see the end of the Cold War as simply the beginning
of a new war with a domestic enemy. [FN215]
His insight applies equally to all sides of the political debate. Kenneth Stern,
the Militia of Michigan, and President Clinton all have something in common:
they are all Americans, and they deserve to be treated, in cases of political
disagreement, as political opponents, rather than as traitors or devils. Both
sides of the militia debate have much room for improvement in this regard.
B. "Assault Weapons"
Among the more cynical efforts to exploit the
Oklahoma City tragedy is the effort of gun prohibition advocates to use the
murders as a pretext for preserving the federal ban on so-called assault
weapons. To state the obvious, the Oklahoma City bombing was perpetrated with a
bomb, not a gun. The bombers may have attended meetings of groups that support
the right to keep and bear arms, but that does not prove that gun rights groups
were co-conspirators, despite the vicious insinuations of some gun prohibition
The reasons for repealing the gun ban remain as
strong as ever. First, Congress has no Constitutional power, under the
Constitution's text and original intent, to use the interstate commerce power to
ban the simple possession (as opposed to sale in interstate commerce) of
Second, if one looks at actual police data (rather than unsupported claims from
anti-gun police administrators), "assault weapons" constitute only about one
percent of crime guns. [FN217]
Third, despite the menacing looks of so-called "assault weapons," they are not
more powerful or more deadly than firearms with a more conventional appearance.
Instead, the "assault weapon" ban is based on cosmetics, such as whether a gun
has a bayonet lug--as if criminals were perpetrating drive-by bayonetings. [FN218]
Finally, the ban has already been nullified for all practical purposes. Since
the law defines an "assault weapon" based on trivial characteristics like
bayonet lugs, gun manufacturers have already released new versions of the banned
guns, minus the cosmetically offensive bayonet lugs and similar components.
Repeal of the "assault weapon" ban makes sense
as a move towards a more rational federal criminal justice policy. It makes even
more sense when its social impact is considered. Many gun control advocates
acknowledged that "assault weapons" were a tiny component of the gun crime
problem, but they still liked the ban because of its symbolic value. [FN219]
However, many other people were very upset by the symbolic message of the gun
ban. Some of them have joined militias, patriot groups, or similar
organizations. Indeed, it would be no exaggeration to say that President
Clinton, Representative Schumer, and Senator Feinstein have, through pushing the
gun ban through Congress, done more to promote the surge in militia membership
than anyone else in the nation. *309
If we want to reduce the number of people who
are frightened by the federal government, the federal government should stop
frightening so many people. Given the irrelevance of the "assault weapon" ban to
actual crime control, repeal of the ban would be an important step that the
federal government could take to convincing millions of Americans that it is not
a menace to their liberty. Conversely, retention of a ban on cosmetically-
incorrect firearms by law-abiding citizens would be a strong statement to the
American people that their federal government does not trust them; and if so,
why should the American people trust their own government?
C. Ban on Training
The Southern Poverty Law Center and other
anti-militia groups have begun promoting a federal ban on group firearms
training which is not authorized by state law. First of all, state governments
are perfectly capable of banning or authorizing whatever they want. [FN220]
The proposal for a federal ban amounts to asking Washington for legislation
similar to that which various allies of Mr. Dees promoted at the state level in
the 1980s, with little success. Most states have rejected a broad training ban,
and the federal government should not impose the will of the some states on all
A former direct-mail fundraiser for the anti-gun
lobby, Mr. Dees may be forgiven for a low level of concern for the exercise of
the right to keep and bear arms. But the right to keep and bear arms necessarily
includes the right to practice with them, just as the Constitutional right to
read a newspaper editorial about political events necessarily includes the right
to learn how to read. Just as the government may not forbid people from learning
how to read in groups, it may not forbid people *310 from learning how to use
firearms in groups. Further, the right may not be denied because it is exercised
simultaneously with First Amendment rights.
"Organizing, arming, and training in conjunction
with a political agenda would be seen as dangerous in any other society but our
own," a private security consultant told Congress, demanding that "these groups
be flatly dealt with as 'enemies of our society."' [FN221]
Of course the United States was founded by
"religious nuts with guns," and achieved independence as a result of a war
instigated by people who organized, armed, and trained with a political agenda.
The sparks of the Revolutionary War, the battles of Lexington and Concord, was
prompted by the ruling government's attempts to confiscate the "assault weapons"
of the day held by local militias. [FN222]
It was at the Concord Bridge where militiamen were ordered to "wait until you
see the whites of their eyes" and then shot government employees who were coming
to take away their "assault weapons" (firearms and a cannon). [FN223]
Likewise, the Texan revolution against Mexico began over civilian possession of
"military" arms. When the Mexican government demanded that settlers hand over a
cannon, the Texans replied, "Come and take it!" [FN224]
The militiamen of Concord Bridge and Texas may
have broken the law, but they were great men, worthy of admiration by every
schoolchild, and every other American. "You need only reflect that one of the
best ways to get yourself a reputation as a dangerous citizen these days is to
go around repeating the very phrases which our founding fathers used in their
struggle for independence," observed American historian Charles A. Beard. [FN225]
Fourth Amendment: Wiretapping
and Other Expanded Surveillance
Various proposals have been offered to expand
dramatically the scope of wiretapping. For example, the Clinton and Dole bills
defined almost all violent and property crime (down to petty offenses below
misdemeanors) as "terrorism" and then allowed wiretaps for "terrorism"
Other proposals would allow wiretaps for all
federal felonies, rather than for the special subset of felonies for which
wiretaps have been determined to be especially necessary. Notably, wiretaps are
already available for the fundamental terrorist offenses: arson and homicide.
Authorizing wiretaps for evasion of federal vitamin regulations, gun
registration requirements, or wetlands regulations is hardly a serious
contribution to antiterrorism, but amounts to a bait-and-switch on the American
Currently, FBI "national security" wiretapping,
bugging, and secret break-ins of the property of Americans are allowed after
approval from a judge on a seven-member federal court that meets in secret. [FN227]
Applications for national security surveillance orders are made in secret before
specially-selected judges of the Foreign Intelligence Surveillance Court. Of the
7,539 applications, only one has been rejected. [FN228]
The standard for a FISA search order is lower than that for a normal Fourth
Amendment search warrant. The potential for abuse is substantial, since all
applications remain sealed and unavailable to the public, and since targets are
never notified that they have been under surveillance. Proposals for a special
attorney to point out defects in order applications for cases involving American
targets have not been implemented. [FN229]
Past use of wiretap powers does not lay a strong
factual foundation for a vast expansion of wiretapping based on anti-terrorist
needs. Terrorists are, of course, already subject to being wiretapped. Yet as
federal wiretaps set new record highs every year, wiretaps are used almost
exclusively for gambling, racketeering, and drugs. The last known wiretap for a
bombing investigation was in 1988. Of the 976 federal electronic eavesdropping
applications in 1993 and the 1,154 applications in 1994, not a single one was
for arson, explosives, or firearms, let alone terrorism. [FN230]
From 1983 to 1993, of the 8,800 applications for eavesdropping, only 16 were for
arson, explosives, or firearms. [FN231]
Even more disturbing than proposals to expand
the jurisdictional base for wiretaps are efforts to remove legal controls on
wiretaps. For example, wiretaps are authorized for the interception of
particular speakers on particular phone lines. If the interception target keeps
switching telephones (as by using a variety of pay phones), the government may
ask the court for a "roving wiretap," authorizing interception of any phone line
the target is using. Yet while roving wiretaps are currently available when the
government shows the court a need, the Clinton and Dole bills allow roving
wiretaps for "terrorism" without court order. [FN232]
Again, remember that both bills define "terrorism" as almost all violent or
The final terrorism bill, while deleting
provisions for warrantless roving wiretaps, significantly expanded wire-tapping
authority. The Electronic Communications Privacy Act makes wiretapping by the
government or by private parties illegal, with certain exceptions, such as when
a warrant is obtained. The terrorism bill narrowed the type of communication
interceptions that are considered to be wiretapping, and thereby greatly
expanded the scope of communications which can legally *313 be intercepted by
private actors, as well as by government officials who lack both probable cause
and a search warrant. Wireless transmission of computer data is now subject to
at-will searches. [FN233]
B. Warrantless Data Gathering
Proposals have also been offered to require
credit card companies, financial reporting services, hotels, airlines, and bus
companies to turn over customer information whenever demanded by the federal
Document subpoenas are currently available whenever the government wishes to
coerce a company into disclosing private customer information. Thus, the
proposals do not increase the type of private information that the government
can obtain; the proposals simply allow the government to obtain the information
even when the government cannot show a court that there is probable cause to
believe that the documents contain evidence of illegal activity.
Similar analysis may be applied to proposals to
increase the use of pen registers, which record phone numbers called, but do not
record conversations, and thus do not require a warrant. If a phone company has
a high enough regard for its customers' privacy so as to not allow pen registers
to be used without any controls, the government may obtain a court order to
place a pen register. Business respect for customer privacy ought to be
encouraged, not outlawed. *314
Expanding the warrantless gathering of consumer
data proved to be too controversial to include in the final terrorism bill. A
partial expansion was, however, inserted in a State Department funding bill,
which was enacted at about the same time. [FN235]
For some government agencies, the Oklahoma City
tragedy has become a vehicle for the enactment of "wish list" legislation that
has nothing to do with Oklahoma City. It is apparently hoped the "do something"
imperative will not examine the legislation carefully.
One prominent example is language in the final
terrorism bill to drastically curtail the right of habeas corpus--the first
statutory constriction of habeas corpus since the creation of Great Writ many
hundreds of years ago in England. [FN236]
Although Supreme Court decisions in recent years have already significantly
limited habeas corpus, [FN237]
prosecutors' lobbies have pushed much further. Two obvious points should be
made. First, habeas corpus has nothing to do with apprehending criminals; by
definition, anyone who files a habeas corpus petition is already in prison.
Second, habeas corpus has nothing to do with Oklahoma City in particular, or
terrorism in general. [FN238]
A second example of piggybacking irrelevant
legislation designed to reduce civil liberties are FBI efforts to outlaw
computer privacy. If a person writes a letter to another person, he *315 can
write the letter in a secret code. If the government intercepts the letter, and
cannot figure out the secret code, the government is out of luck. This basic
First Amendment principle has never been questioned.
But, if instead of writing the letter with pen
and paper, the letter is written electronically, and mailed over a computer
network rather than postal mail, do privacy interests suddenly vanish? According
to FBI Director Louis Freeh, the answer is apparently "yes."
Testifying before the Senate Judiciary Committee
about the Oklahoma City Bombing, Director Freeh complained that people can
communicate over the Internet "in encrypted conversations for which we have no
available means to read and understand unless that encryption problem is dealt
with immediately." [FN239]
That "encryption problem" (i.e., people being able to communicate privately)
could only be solved by outlawing high quality encryption software such as
Pretty Good Privacy.
First of all, shareware versions of Pretty Good
Privacy are ubiquitous throughout American computer networks. The cat cannot be
put back in the bag. More fundamentally, the potential that a criminal,
including a terrorist, might misuse private communications is no reason to
abolish private communications per se. After all, people whose homes are
lawfully bugged can communicate privately by writing with an Etch-a-Sketch. [FN240]
That is no reason to outlaw Etch-a- Sketch, or its substitutes, such as
chalkboards or old-fashioned slates.
Although Director Freeh apparently wants to
outlaw encryption entirely, the Clinton administration has been proposing the
Clipper Chip. The federal government requires all vendors supplying phones to
the federal government to include the Clipper chip. Using the federal
government's enormous purchasing clout, the Clinton administration is attempting
to make the Clipper Chip into a de facto national standard. [FN241]
The Clipper Chip provides a low level of privacy
protection against casual snoopers. But some computer scientists have already
announced that the chip can be defeated. Moreover, the "key"--which allows the
private phone conversation, computer file, or electronic mail to be opened up by
unauthorized third parties--will be held by the federal government.
The federal government promises that it will
keep the key carefully guarded, and will only use the key to snoop when
absolutely necessary. This is the same federal government that promised that the
Internal Revenue Service would never be used for political purposes.
Proposals for the federal government's
acquisition of a key to everyone's electronic data, which the government
promises never to misuse, might be compared to the federal government's
proposing to acquire a key to everyone's home. Currently, people can buy door
locks and other security devices that are of such high quality that covert entry
by the government is impossible. The government might be able to break the door
down, but the government would not be able to enter discretely, place an
electronic surveillance device, and then leave. Thus, high-quality locks can
defeat a lawful government attempt to bug someone's home, just as high-quality
encryption can defeat a lawful government attempt to read a person's electronic
correspondence or data.
Similarly, it is legal for the government to
search through somebody's garbage without a warrant, but there is nothing wrong
with privacy-conscious people and businesses using paper shredders to defeat any
potential garbage snooping. Even if high-quality shredders make it impossible
for documents to be pieced back together, such shredders should not be illegal.
Likewise, while wiretaps or government surveillance of computer communications
may be legal, there should be no obligation of individuals or businesses to make
Simply put, Americans should not be required to
live their lives in a manner so that the government can spy on them when
Thus, although proposals to outlaw or emasculate
computer privacy are sometimes defended as maintaining the status quo (easy
government wiretaps), the true status quo in America is that manufacturers have
never been required to make products which are custom-designed to facilitate
government snooping. The point is no less valid for electronic keys than it is
for front-door keys.
The only reason that electronic privacy
invasions are even discussed (whereas their counterparts for "old-fashioned"
privacy invasions are too absurd to even be contemplated), is the tendency of
new technologies to be more highly restricted than old technologies. For
example, the Supreme Court in the 1920s began allowing searches of drivers and
automobiles that would never have been allowed for persons riding horses. [FN242]
But the better Supreme Court decisions recognize
that the Constitution defines a relationship between individuals and the
government that is applied to every new technology. For example, in
Katz v. United States, the Court applied the privacy principle
underlying the Fourth Amendment to prohibit warrantless eavesdropping on
telephone calls made from a public phone booth-- even though telephones had not
been invented at the time of the Fourth Amendment. [FN243]
Likewise, the principle underlying freedom of the press-- that an unfettered
press is an important check on secretive and abusive governments--remains the
same whether a publisher uses a Franklin press to produce one hundred copies of
a pamphlet, or high speed printers to produce one hundred thousand. Privacy
rights for mail remain the same whether the letter is written with a quill pen
and a paper encryption "wheel," or with a computer and Pretty Good Privacy.
Efforts to limit electronic privacy will harm
not just the First Amendment, but also American commerce. Genuinely secure
public-key encryption (such as Pretty Good Privacy) gives users the safety and
convenience of electronic files plus the security features of paper envelopes
and signatures. A good encryption program can authenticate the creator of a
particular *318 electronic document--just as a written signature authenticates
(more or less) the creator of a particular paper document.
Public-key encryption can greatly reduce the
need for paper. With secure public-key encryption, businesses could distribute
catalogs, take orders, pay with digital cash, and enforce contracts with
verifiable signatures--all without paper.
Conversely, the Clinton administration's weak
privacy protection (which gives the federal government the ability to spy
everywhere), means that confidential business secrets will be easily stolen by
business competitors who can bribe local or federal law enforcement officials to
divulge the "secret" codes for breaking into private conversations and files, or
who can hack the Clipper Chip.
D. Weakening Restraints on FBI
Within days after the Oklahoma City bombing,
conservative talk show host Rush Limbaugh began casting blame on civil
libertarians who promoted strict guidelines on FBI surveillance of dissident
groups in the United States. [FN244]
Other persons have also called for abolition of the remaining limitations on FBI
First of all, there is at present no evidence
that the FBI wanted to spy on anyone suspected in the Oklahoma City bombing, but
was prevented from doing so by the current guidelines. Thus, persons demanding
the abolition of FBI guidelines are demanding a "solution" for which there is no
Second, the FBI guidelines exist for a very good
reason. Before the guidelines were implemented, the FBI spied on literally
hundreds of thousands of Americans who were doing nothing more than exercising
their Constitutional right to question government policies. Victims of these
abuses included Dr. Martin Luther King, Jr., the Ku Klux Klan, the Congress on
Racial Equality, Barry Goldwater, [FN245]
Cesar Chavez, [FN246]
and the civil *319 rights movement. The Counter- intelligence Programs
(COINTELPRO) invaded the Constitutional rights of American people who simply
were expressing in public what Secretary of Defense Robert McNamara had
concluded in private. Far from being confined to a single type of dissident, or
to a few years of excess, FBI abuses dated back to the 1940s and were pervasive
until brought to light by fifteen months of hearings before Senator Frank
Church's special committee in 1975-76. Altogether, there were 675 FBI operations
against civil rights, white supremacist, or anti-war groups, which led to only
four convictions. [FN247]
Even after all the public hearings, and the implementation of guidelines, the
FBI continued to abuse the rights of dissident Americans, through a massive
surveillance of people in CISPES (Committee in Solidarity with the People of El
Salvador) who were opposed to President Reagan's policy in El Salvador in the
mid-1980s. The CISPES investigation, justifiably regarded today as shameful,
would have been lawful if the Dole or Clinton terrorism bills had been law.
Right up to the present, FBI infiltrators have
frequently served as agent provocateurs, inciting and directing murders and
other violent crimes. [FN248]
In one of the most notorious recent cases, an FBI informant solicited the murder
of Louis Farrakhan by a dissident family of Black Muslims; the case was one of
classic entrapment involving an FBI informant with a pending felony charge,
plainly motivated by money. [FN249]
The first set of FBI guidelines were implemented
by President Ford's Attorney General Edward Levi in 1976. In 1983, the "Levi
guidelines" were replaced by President Reagan's Attorney *320 General William
French Smith. The "Smith guidelines" were far less restrictive. Attorney General
Smith stated that the guidelines allowed investigation "when persons advocate
crime, particularly violent crime--such as blowing up a building or killing a
public official. . . ." [FN250]
Thus, the highly-publicized claim of a former FBI official that "you have to
wait until you have blood on the street before the bureau can act" is patent
In fact, the Smith guidelines, which were
revised in 1989 and are still in force, nowhere require the completion of a
violent crime. Rather they state that a:
domestic security/terrorism investigation may
be initiated when the facts for circumstances reasonably indicate that two or
more persons are engaged in an enterprise for the purpose of furthering
political or social goals wholly or in part through activities that involve
force or violence and a violation of the criminal laws of the United States.
Specifically, the guidelines already allow
investigations based upon mere words:
When, however, statements advocate criminal
activity or indicate an apparent intent to engage in crime, particularly
crimes of violence, an investigation under these Guidelines may be warranted
unless it is apparent, from the circumstances or the context in which the
statements are made, that there is no prospect of harm. [FN253]
While the Smith guidelines would prevent
infiltration of militia groups simply because they are sharply critical of
government policy, the guidelines do not prevent infiltration of groups that
actually threaten violence. For example, in Virginia, *321 a group of fifteen
men who allegedly wanted to resist the federal government managed only three
meetings before being arrested for weapons violations as a result of a
government infiltrator's secret tape recordings, although it turned out that the
only person advocating violence had been the government informant, and no one
had listened to him. [FN254]
Moreover, militia and patriot groups generally hold public meetings, sometimes
advertising in local newspapers. There is hardly a need for greater
"surveillance" of such public political discussions.
Rather than being obliterated, guidelines on FBI
domestic surveillance should be brought up to full strength. A statutory version
of a combination of Levi and Smith guidelines should be enacted.
Persons who are eager to "unleash" the FBI
against dissident groups who are not threatening illegal activity might first
want to go through the mental exercise of imagining their worst nightmare as
President. Liberals might imagine Patrick Buchanan or Pat Robertson.
Conservatives could imagine Dianne Feinstein or Jesse Jackson. In such a
scenario, would we want the FBI free to spy on whomever the President does not
like? Under Presidents Nixon, Johnson, and Kennedy (who were all moderates
within their own party), the FBI did so with baleful results. An official at the
Treasury Department, who works closely with the BATF, warned that there is "a
tremendous potential for abuse" in administration proposals to loosen controls
on the FBI. [FN255]
It must be remembered that many of America's
greatest organizations were, in their day, radical extremists. The abolitionists
were extremists, as were the suffragettes, the civil rights movements, and many
of the opponents of the Vietnam War. If these groups seem vindicated by history,
they were bitterly attacked in their day as radical anti-Americans, who should
be investigated and suppressed by the government. *322
Tenth Amendment and Article One: Limits on Enumerated Congressional Powers
One of the reasons that so many people have
become fearful of the federal government, and some have become angry, is the
virtually uninterrupted expansion of federal laws at the expense of civil
liberty. The cycle of misleading media sensationalism, a couple of Congressional
hearings, and then another broad and intrusive federal remedy has become all too
familiar. It is possible to assemble before any given Congressional panel a
half-dozen very sincere witnesses who will claim that any given topic is: 1. An
immense problem; 2. Rapidly spiraling out of control all over the nation; and 3.
Desperately in need of an immediate, sweeping federal remedy. Sometimes these
witnesses are correct, but other times they are not.
We know in retrospect that the Marihuana Tax Act
of the 1930s was the result of a racist campaign of disinformation about the use
of marijuana by Hispanic criminals. [FN256]
We know that the Food Stamp Act in the early 1970s was passed, in part, as a
result of tremendous misinformation about the extent of malnutrition in rural
We know that, despite the wild claims of various law enforcement administrators,
"assault weapons" constitute only about one percent of crime guns seized by
police, even in major cities. A climate of panic and misinformation about the
Love Canal incident in New York led Congress to enact the Superfund law--a
draconian law which imposes huge retroactive liability on companies and
individuals for unlawful environmental practices, and which eliminates most
ordinary due process protections for individuals targeted by the government. [FN258]
A. Federalizing Violent Crime by
Defining it as "Terrorism"
Previous federal laws already provided a
comprehensive, realistic definition of "terrorist activity." Federal statutes
already made it a federal felony to make a real terrorist threat, such as
threatening to set off a bomb or to assassinate the President. [FN259]
The new terrorism bill, though, defines most violent crime as "terrorism,"
whether or not related to actual terrorism. [FN260]
"Terrorist" offenses now include almost all violent crime except for sex
offenses: any assault with a dangerous weapon, assault causing serious bodily
injury, or any killing, kidnapping, or maiming, or creating a risk of serious
bodily injury through destruction of property. [FN261]
This provision is actually narrower than the original Dole and Clinton bills,
which also labeled any property damage, no matter how trivial, as "terrorism,"
even if there was no risk to any individual's life or limb. [FN262]
In order for the offense to be considered
"terrorism," it is necessary to meet one of six jurisdictional predicates. [FN263]
Two predicates cover crimes against federal employees or federal property; and
two others cover crimes on the territorial sea or within the special maritime
jurisdiction of the United States. [FN264]
Federal criminal jurisdiction over such crimes is certainly proper--and already
The only effect of these four criminal predicates is to upgrade the severity of
various offenses; mugging a Department of Agriculture employee or breaking
someone's arm while in a private boat that is in American territorial waters is
now "terrorism." *324
The other two jurisdictional predicates are much
broader. One predicate is that any offender "uses the mail or any facility of
interstate or foreign commerce in furtherance of the offense." [FN266]
The second predicate is that "the offense obstructs, delays, or affects
interstate or foreign commerce," or would have done so, had the offense been
It is just about impossible to perpetrate anything without talking on the phone,
driving a car on a public road, using electricity, or affecting someone else's
use of the phone, automobile, or electricity. [FN268]
To limit the federalization of virtually violent
crime, there is a requirement that the offense involve "conduct transcending
national boundaries," [FN269]
which is defined as "conduct occurring outside the United States in addition to
conduct occurring inside the United States." [FN270]
This last provision is considerably narrower than earlier proposals. [FN271]
If courts enforce this language seriously, then the terrorism bill will not turn
into a de facto federalization of all violent crimes other than sexual assaults.
*325 On the other hand, given the great lengths to which interstate commerce has
been stretched, it is entirely possible that the requirement for "conduct
occurring outside the United States" could be met simply through the use of a
weapon manufactured outside the United States, or the perpetration of the crime
by a visiting tourist.
Once the government alleges that any of the
above ordinary violent crimes, with some conduct occurring outside the United
States, has taken place (or been attempted, threatened, or conspired towards), a
heavy set of hammers begins to fall on the accused. Although the law allows
state law definitions of a crime to be used to create federal jurisdiction, the
law forbids defendants from invoking state constitutional law protections of the
state where the alleged offense took place. [FN272]
Sentences for "terrorism" are severe, and must run consecutively to any other
sentence imposed. [FN273]
Presumptive detention (denial of bail) is applied to anyone accused of
and "terrorism" *326 is now a predicate offense for the federal money laundering
Not adopted were Clinton and Dole proposals to
make the already overbroad federal RICO, [FN276]
and wiretapping laws [FN277]
applicable to "terrorist" offenses and to authorize use of the military in
domestic law enforcement for "terrorist" crimes. [FN278]
Since the original Dole and Clinton bills defined property crimes, all the way
down to petty vandalism, as "terrorism," and since the bills made only a feeble
effort to require that the crime be genuinely international, the final bill's
new "terrorism" crime section is significantly narrower in scope and civil
liberties danger than the original proposals.
The proponents of these bills may expect that
the essentially limitless discretion granted to the federal government will not
be abused. But a fundamental principle of American law has always been that the
law should control the government; citizens should not be at the mercy of the
good judgment of government officials. As the Supreme Court put it, "It would
certainly be dangerous if the legislature could set a net large enough to catch
all possible offenders, and leave it to the courts to step inside and say who
could be rightfully detained, and who should be set at large." [FN279]
Putting aside questions of constitutionality, it is inappropriate that the
draconian federalization of state crimes be pushed through Congress under the
mask of antiterrorism. Prudence suggests that federal law enforcement intervene
only when state law enforcement is inadequate. Yet advocates of greater
federalization have offered have *327 no evidence that existing state and
federal laws are inadequate to punish the small number of criminals involved in
actual terrorist crimes.
B. Federal Response to Threats
Against Government Employees
It is clear that a small number of persons have
engaged in criminal harassment or even violence against state and local
government officials. Representative Charles Schumer, lead sponsor of the
original Clinton Antiterrorism bill, later introduced the "Republican Form of
Government Guarantee Act," which he unsuccessfully attempted to tack on to the
antiterrorism bill which passed the House of Representatives. [FN280]
The bill would be based on the federal government's Article IV power to
guarantee to every state a republican form of government. Such legislation does
not, of course, per se exceed the scope of the enumerated powers granted to the
federal government. Nevertheless, at least the spirit of the Tenth Amendment
should cause us to ask if a federal solution is appropriate.
One of the most common forms of harassment
(perpetrated by the criminal Freemen of Montana, among others)--has been the
filing of purported liens or other alleged "common law" instruments in some
state courts. Surely the remedy for abuse of state court procedures is through
enforcement of existing procedural rules that punish frivolous or false legal
filings, or through reforms of state court systems to provide whatever
additional remedies may be needed. State courts are the business of the states,
not of Congress.
Before Congress acts, it should consider what
the state legislatures, and the people of the state decide to do. For example,
in 1996 the people of Montana approved a ballot initiative to strengthen states
laws against threatening government officials. It ought to be the people of
Montana, not 535 people in the District of Columbia--of whom only three are from
Montana--who decide what to do. *328
When the federal racketeering statute (RICO) was
enacted in the 1970s, proponents promised that it would provide an important new
weapon to target organized crime organizations, as opposed to prosecuting only
individual criminals. But the RICO statute has also been used in ways which its
sponsors never foresaw.
For example, in the 1980s, an ambitious United
States Attorney in New York City used RICO's preemptive strike provisions to
destroy the securities firm of Princeton/Newport, which was, years later, found
to be not guilty of wrongdoing. [FN281]
But in the meantime, the company had been ruined, the employees had lost their
jobs, and the owners had lost their business and the assets that they had built
over the years through honest hard work. [FN282]
In other cases, RICO laws have been used against
abortion clinic protesters. [FN283]
Instead of using Mafia laws against church groups, it would be better to
fashion--as many legislatures have--more specific statutes which deal with the
particular problem of access to abortion clinics.
In regards to anti-government violence,
proposals for broad new conspiracy statutes, or for broad new judicial authority
to destroy or disband organizations have not been shown to be
necessary--particularly at a federal level. We know from history that injunction
and conspiracy laws have often been used unfairly against political dissidents,
such as labor organizers. [FN284]
Moreover, criminally violent anti-government organizations are tiny. Prosecution
of the handful of criminal individuals involved will suffice to destroy the
pathetic "organization" itself.
Schumer's bill included several new mandatory
minimums aimed at violent anti-government extremists, but written to apply to
far more. For example, the bill would impose a two-year mandatory minimum on
someone who shoved a policeman during an argument over a traffic ticket, a
two-year mandatory *329 minimum on a jilted teenage girl who sent her rival an
anonymous letter "I'm going to tear your eyes out," and an eight-year mandatory
minimum on a homeowner who waved a baseball bat at a zoning inspector. [FN285]
None of these activities are justified, of course, and none of them are the
intended target of the proposed mandatory minimums. But mandatory minimums are
perversely designed to apply remedies which seem appropriate in the abstract to
situations where they may be wildly inappropriate.
One particularly inappropriate provision of the
Republican Form of Government Guarantee Act actually subverts local government.
When county governments enforce state and local laws against what they believe
to be illegal conduct by federal employees, the federal government would become
the judge of its own case. Rather than having the dispute settled by a neutral
arbiter, such as the courts, the dispute will be investigated by the federal
employees' own chief lawyer (the Attorney General), who would then unilaterally
withhold Payments in Lieu of Taxes from the county. [FN286]
It is an elementary principle of justice that no
person, nor the person's attorney, can be the judge of his own case. It is a
misuse of language to claim that the federal executive's judging of its own case
in disputes with counties will somehow further the federal government's
obligation to guarantee to each state a republican form of government. County
commissioners are, after all, democratically elected. They--not the federal
executive branch--are part of a state's republican form of government. The final
terrorism bill simply ordered the Attorney General to compile statistical
information about crimes and threats against federal, state, and local law
enforcement employees. [FN287]
C. Removing Other Jurisdictional
Limits on Law Enforcement
Various terrorism proposals have included other
provisions to remove jurisdictional limits on law enforcement. For example, *330
it has been proposed that the FBI's foreign jurisdiction be expanded. First, the
expansion is unnecessary, since the CIA can operate overseas against terrorists.
Second, allowing domestic American law enforcement agents to operate on foreign
soil against foreign citizens creates a dangerous precedent, and will inevitably
lead to demands for reciprocity. Do we really want the Russian secret police, or
even the Mexican federales, operating on American soil? The same Article I
concerns about a use of the American military in law enforcement [FN288]
militate all the more strongly against allowing foreign officers, with no
background at all with respect to American constitutional norms, to operate in
the United States. [FN289]
Internationalizing criminal law is even more dangerous to civil liberty than is
The original Dole and Clinton bills would have
abolished all jurisdictional restraints on federal law enforcement agencies
regarding any "terrorist" offense (i.e., all property and violent crime, as
those bills defined "terrorist"). [FN290]
In other words, the *331 Bureau of Alcohol, Tobacco and Firearms would not be
limited to cases involving alcohol, tobacco, or firearms; the IRS would not be
limited to tax cases; and the Drug Enforcement Agency would not be limited to
drug cases. Removing the jurisdictional limitations may tend to disconnect these
law enforcement agencies from the constitutional authority by which they were
created (such as the tax power for the Internal Revenue Service), and thus let
the agencies drift beyond the proper Article I limits of their authority.
Another unadopted provision of the Dole and
Clinton bills would allow state and local law enforcement officers, under the
direction of the attorney general, to operate anywhere in the United States,
rather than in their state or local jurisdiction. The provision would interfere
with the Tenth Amendment prerogative of states and localities to enforce
territorial limits on the operations of state and local police, as well as state
and local authority to determine who is authorized to act as a peace officer
within the state or locality.
Although the United States has suffered exactly
one alien terrorist attack in the last eleven years, special harsh rules for
aliens were at the top of the "antiterrorism" agenda. The new Antiterrorism Act
allows secret evidence for deportation cases in which the government asserts
that secrecy is necessary to the national security. [FN291]
Georgetown University Law Professor David Cole calls the secret court the new
"Star Chamber," since its powers resemble those of the inquisitorial court that
the British monarchy, in violation of the common law, used to terrorize
dissident subjects. [FN292]
Star Chamber was one of the most *332 hated features of the British government
in the years leading up to the English Civil War, and was abolished by the
revolutionary Long Parliament in 1641. [FN293]
Modern Star Chamber proceedings are to be before
a special court (one of five select federal district judges), [FN294]
after an ex parte, in camera showing that normal procedures would "pose a risk
to the national security of the United States." [FN295]
Based upon further ex parte, in camera motions, evidence which the government
does not wish to disclose may be withheld from the defendant, who will instead
be provided a general summary of what the evidence purports to prove. In other
words, secret evidence may be used. [FN296]
Of course any of the "showings" that the government makes in camera and ex parte
may be based on allegations regarding the unreviewable claims of a secret
informant. No evidence may be excluded because it was illegally obtained, no
matter how flagrantly the law was broken. [FN297]
Legal aliens do not, of course, have the full
scope of Constitutional rights guaranteed to American citizens; for example,
they cannot exercise rights associated with citizenship, such as voting, or
serving on a jury. But significantly, a recent Ninth Circuit case affirmed that
First Amendment rights of association are fully applicable in alien deportation
Likewise, legal aliens have always been accorded the same due process
protections in criminal cases. The Ninth Circuit explained, "aliens who reside
in this country are entitled to full due process protections." [FN299]
After all, the Fifth Amendment's guarantee of Due Process protects "all
persons," not just "all citizens." [FN300]
Procedures like those adopted in the new
terrorism bill have already been found unconstitutional. As the District of
Columbia Court of Appeals stated:
Rafeedie--like Joseph K. in The
Trial--can prevail before the (INS) Regional Commissioner only if he can
rebut the undisclosed evidence against him, i.e., prove that he is not a
terrorist regardless of what might be implied by the government's confidential
information. It is difficult to imagine how even someone innocent of all
wrongdoing could meet such a burden. [FN301]
The argument for allowing secret evidence in
deportation proceedings is that otherwise the identity or operational mode of a
confidential informant might be jeopardized. First of all, the very purpose of
the Sixth Amendment's Confrontation Clause is to prevent people's lives from
being destroyed by the type of secret accusations which had characterized the
European (in)justice systems. [FN302]
Moreover, the argument against endangering the
secrecy of confidential accusers in deportation cases proves too much. The very
same argument applies in every other case, including cases of tax evasion, drug
sales or possession, or gun laws. Obeying the Confrontation Clause in those
cases may likewise impede the short-term interests of law enforcement. The
Constitution has conclusively determined that a criminal justice system without
a right of confrontation poses a far greater long-term risk to public safety
than does requiring the government to disclose the reason why it wants to
imprison, execute, or deport someone.
Simply put, confidential informants often lie.
Informants are rarely good citizens who come forward to help prevent a crime.
Rather, informants are criminals who have been caught and have turned informant
in order to protect themselves from prosecution; informants have every reason to
lie and falsely accuse people. [FN303]
Confidential informants who are not professional
criminals may have other reasons for lying. The type of miscarriage of justice
that can occur based on confidential informants was illustrated in a 1950 case,
in which the Supreme Court held that secret evidence could be used to prevent an
alien, married to an American, from entering the United States. [FN304]
Because the case generated so much publicity, the alien was granted a hearing
anyway, and it was discovered that the confidential informant was her husband's
angry ex- girlfriend. [FN305]
Individuals who would oppose Star Chamber
proceedings for criminal trials might approve of such procedures in deportation
hearings since deportation is, under most circumstances, a less severe sanction
than prison. The prisoner will not even be *335 allowed to ask for a writ of
habeas corpus based on governmental violation of statutes. [FN306]
Finally, some persons may accept Star Chamber
proceedings for legal resident aliens under the presumption that such procedures
would never be used against American citizens. Yet if there is anything the
experience of Great Britain proves, it is that special emergency measures
implemented in a limited jurisdiction (such as Northern Ireland) soon spread
throughout the nation. Cancers always start small. If one international
terrorist incident in eleven years is a sufficient interest to justify a Star
Chamber for certain terrorism suspects, then it is hard to resist the logic that
crimes that actually are widespread (such as homicide, rape, or drug
trafficking) should be entitled to their own Star Chamber.
Although not enacted in the final legislation,
the original Clinton and Dole bills would have granted similar authority to use
secret evidence in proceedings under the International Emergency Economic Powers
Act. The Act gives the President unilateral authority to regulate or prohibit
all foreign exchange transactions, all imports and exports of securities and
currency and foreign currency transactions, and all banking transactions
involving foreigners. [FN307]
In the early 1980s, legislation was proposed
which would have required judicial authorization for the use of undercover
informants, just as judicial authorization is required for a wiretap. [FN308]
The "bad old days" of federal informants creating violent crime did not end in
the 1960s; the problem continues today. It is long since past time for federal
informants to be brought under the rule of law and for undercover operations to
be subject to judicial oversight. *336
There is no evidence that any of the repressive
proposals discussed above would have prevented the Oklahoma City bombing. To use
the bombing as a pretext for new laws which endanger traditional American
freedoms is highly inappropriate.
A. Fighting Foreign Terrorism
Rather than infringing on Constitutional rights,
there are several simple steps which could help fight terrorism. First, the
President should announce that whenever it is determined that a foreign
government has perpetrated a terrorist attack against Americans, either in
America or abroad, the United States will retaliate personally against the head
of the foreign government. After the Reagan administration attempted to kill
Libya's Mohammer Khaddafi with a bombing raid, Libyan terrorism is said to have
diminished. The state sponsors of terrorism, including Syria and Iran, are
well-known. They should no more enjoy immunity for their murderous conspiracies
than any other murderer should. Such a policy would be much more effective than
the new terrorism bill's provision to allow American victims of terrorism to sue
foreign governments that support terrorism. [FN309]
Most civil libertarians, concerned about the
constitutional issues discussed supra, raised little objection to the terrorism
bills' proposed increases in federal spending. Not surprisingly, the final bill
became a Christmas tree of new federal money, with the FBI taking an additional
468 million dollars, the Drug Enforcement Agency (which has no anti-terrorist
responsibilities) getting 172 million extra, and various other federal and state
agencies receiving many millions more. [FN310]
But instead of adding still more federal debt, Congress could have found
whatever additional antiterrorism resources are needed by reassigning FBI (and
other federal) agents who are currently assigned *337 to matters that have no
real connection to legitimate federal concerns, such as child support
enforcement, obscenity cases, and non-interstate drug cases.
As we consider antiterrorism policy, we should
remember not only the Constitution, but also the Declaration of Independence.
Solicitude for foreign governments should not blind us to the fact that most
governments in the world are dictatorships, and many of them promote state
terrorism. Under the principles on which America is based, governments without
the consent of the governed have no legitimacy, and it is the right of the
people of that nation to overthrow the dictatorship. [FN311]
Yet the new terrorism law applies prison terms
of up to twenty-five years to any person who plans the destruction of government
property in a foreign nation with which the United States is "at peace." [FN312]
Thus, if Chinese refugees living in the United States planned a jailbreak to
liberate political prisoners in China, they would be guilty of "terrorism." If
Americans in 1940 had plotted the destruction of railways leading to Nazi
concentration camps, they too would have been guilty of "terrorism." Similarly,
countless American Jews who smuggled firearms to the Jewish resistance movement
in Palestine in the 1940s, making possible the eventual establishment of the
state of Israel would have been guilty of terrorism. [FN313]
Had such a "terrorism" law been universal in 1776, the Dutch, French, and other
private citizens who provided material assistance to the American Revolution
(while their governments were at peace with the British Empire) would have been
"terrorists." It ill becomes a nation that was born in violent revolution with
foreign assistance to felonize the very types of charity that allowed our own
nation to become free. Resistance to dictatorships and empires is not terrorism.
B. Reducing Domestic Violence and
Contrary to the assertions of some in the
militia and patriot movement, the United States government is not a terrorist
conspiracy. But the federal government too often behaves in a terrifying manner,
one which has led a majority of the American people to fear their own
Following a hearing on the Ruby Ridge killings,
the Senate Judiciary Committee's Subcommittee on Terrorism, Technology and
Government aptly stated: "The events . . . have helped to weaken the bond of
trust that must exist between ordinary Americans and our law enforcement
agencies. Those bonds must be reestablished. . . . " [FN314]
The law enforcement excesses documented in recent years by Congressional
committees and even by popular television programs, [FN315]
demonstrate a culture of lawlessness, militarization, and violence that has
permeated far too much of American law enforcement. [FN316]
The civil liberties coalition, which fought
against the terrorism bills, first came together in early 1994, to send a joint
letter to Attorney General Reno calling for federal law enforcement reforms.
These reform proposals were refined in a joint letter sent to Congressional
leadership in late 1995. [FN317]
These reform proposals offer their own anti-terrorist agenda, for they recognize
that many tens of millions of people are understandably terrified by the
lawless, violent behavior of too much of the federal government. If these
corrective measures are adopted, a *339 big step toward the recovery of public
confidence and the reduction of public fear of government will have occurred.
The remainder of Part VIII incorporates the coalition letter, and then concludes
with some additional reforms that were too controversial for some members of the
(1) The Attorney General, pursuant to her
authority under Executive Order 11396, February 7, 1968, should establish
clear and uniform guidelines for all federal law enforcement functions,
regardless of department, in the execution of search warrants and the use of
"dynamic entry," restricting the use of such entry to only the most exigent of
(2) Proposals for use of "dynamic entry"
should be subject to high-level review and approval on a case-by-case basis to
assure that the "dynamic entry," whether or not pursuant to a warrant is
necessary and lawful and that the risk of loss of life is minimized.
(3) U.S. Attorneys should be required to
review and approve applications for warrants.
(4) There should be appropriate penalties for
federal law enforcement agents who file untruthful, misleading, or unlawful
applications for warrants.
(5) The use of hearsay in an affidavit seeking
a warrant should be permitted only if the actual witnesses are unavailable
because of death or incapacity.
(6) Warrant affiants should be required to
note exculpatory evidence in their warrant applications.
(7) There should be a limit on the period of
time for which warrants, affidavits, and related items can be sealed prior to
and after service, with limited periodic review if extensions are shown
(8) Congress should establish standards for a
very high degree of supervision of "informant" activity and guidelines for
verifying informant claims when agents rely upon such claims for the issuance
of warrants or as the basis for other enforcement operations. *340
(9) The inherently corrosive government
practice of paying informants on a "contingency" basis, with payments for
their "information" contingent upon arrest or conviction, should be ended.
(10) Congress should take no action to codify
or expand the "good faith" exception to the exclusionary rule, and H.R. 666
should be rejected by the Senate.
(11) Pending "counter-terrorism" bills,
expanding the government's ability to electronically surveil individuals and
groups and use evidence obtained through illegal wiretaps, must be rejected by
(12) Section 507 of S. 3, seeking to do away
with the exclusionary rule altogether, must be rejected.
(13) The Supreme Court's 1984 Leon decision
should be legislatively overturned by a Congress now sensitized to the
potential for police abuse.
(14) Congress should establish an open
discovery process for federal criminal litigation unless a neutral and
detached judicial officer finds that a compelling reason has been established
that such government disclosure to the defendant is impossible or too
dangerous in a particular case. (This disclosure obligation on the government
should not be imposed on the defense, as the two sides are not similarly
situated in a criminal case; such would subvert the presumption of innocence
and Fifth Amendment protections of the citizen accused; and it is the
government that has the overwhelming and frequently the sole investigatory
resources in a criminal proceeding.)
(15) The Department of Justice must ensure
that federal prosecutors adhere to constitutional and ethical obligations. The
Department must also strengthen its disciplinary programs to punish
prosecutors who conceal any relevant evidence (including any evidence or
perjury) in violation of the law, court orders, and the rules of professional
(16) Pending S. 3, Section 502, seeks to amend
the United *341 States Code by expanding the already unfair, probably
unconstitutional DOJ " regulation" . . . by empowering the Attorney General to
"opt out" her lawyers from all rules of legal ethics at her sole, unreviewable
discretion. Congress should reject S. 3, Section 502, and overrule the Justice
(17) When confronted with crisis situations
involving groups with religious or ideological convictions, the Attorney
General should be certain that law enforcement has sought the expertise of a
cross-section of qualified scholars. In cases dealing with religious groups,
such as at Waco, law enforcement should seek the expertise of qualified
scholars on religion. [FN320]
(18) Guidelines should be promulgated to
eliminate religious or other viewpoint bias in federal law enforcement
investigations and practices, including public affairs announcements and other
comments before and during trial.
(19) The federal deadly force policy should
clearly state (a) that a threat of physical harm must be immediate in order to
justify the use of deadly force; and (b) that when the immediacy of the threat
passes, the justification ceases. [FN321]
(20) Federal law enforcement agents should be
carefully trained in the law on the use of deadly force. Emphasis should be
placed on learning to distinguish between appropriate and excessive
applications of force.
(21) Congress should establish a uniform means
of permanent, independent oversight of federal law enforcement policies and
practices with full redress for allegations of abuse.
(22) Congress should ensure that there are
adequate penalties for those federal law enforcement agents who *342 engage in
misconduct and should conduct oversight to ensure that they are properly
(23) Congress should establish a requirement
that any federal law enforcement official who seeks to invoke the drug or any
other legislative nexus exception to the Posse Comitatus Act should give an
oath or affirmation to a neutral and detached judicial officer as to the facts
which he is asserting. [FN322]
In short, the same rules as are proposed for search warrants and for penalties
for false or misleading information should apply here. In addition, Congress
should reexamine whether the existing exceptions to the Posse
Comitatus Act should be retained.
In addition to the above coalition reform
related to the Posse Comitatus Act, we would go further. Additional
reforms should include:
* Repeal the drug exceptions to the Posse
* Make knowing violation of Posse
Comitatus Act a predicate felony for felony murder;
* Create a civil cause of action for persons
injured by Posse Comitatus Act violations;
* Abolish most federal-state multi-agency law
enforcement task forces, particularly those involving the National Guard;
* Eliminate the loophole in the Posse
Comitatus Act that allows military equipment to be used against civilians
in the United States as long as military personnel are not involved.
The Bill of Rights coalition concluded with a
The serious questions raised by congressional
hearings and news reports concerning the coordination, oversight, and
accountability of so many different federal law enforcement agencies are
complex and need the comprehensive, in depth, long-term consideration that
only a commission can provide. The commission should include a diverse group
of local, state, and federal law enforcement officers, prosecutors, defense
counsel, bar *343 association representatives, and sufficient representative
of civil liberties and civil rights organizations to insure an independent
process. The coalition recommends:
(24) The creation of a national commission
make specific statutory and regulatory recommendations to the public, the
Congress, and to the President regarding needed changes in federal law
enforcement policies and practices.
Although not participants in the Bill of Rights
coalition, former Attorneys General Richard Thornburgh and Griffin Bell are the
among the law enforcement experts who have called for such a commission. [FN323]
By taking steps to reduce violent crimes and other abuses perpetrated by federal
law enforcement, a commission would reduce state terrorism. By increasing
long-term public confidence in the lawfulness of the federal government, the
commission would also reduce fear of government and thereby help cool the
political climate. Such a commission was included in the final Antiterrorism
bill, as the result of an amendment by Rep. Roscoe Bartlett (R-Md.), although
subpoena power was stripped out by the conference committee and the commission
was never funded. [FN324]
C. The Most Important Solution:
Enforcing Article I
Ultimately, the most important antidote for
almost every civil liberties problem discussed infra, is the same. The
federal government should get out of criminal issues that it has no authority
over in the first place. The Constitution specifically authorizes federal
enforcement of only two types of laws, both of which involve uniquely federal
concerns. The first authorized federal enforcement of criminal law is based on
the Congressional power "To provide for the punishment of counterfeiting the
securities and current coin of the United States." [FN325]
The counterfeiting *344 enforcement power immediately follows the delegation of
Congressional power "To coin money, regulate the value thereof, and of foreign
coin . . . ." [FN326]
The second Congressional criminal power involves
the power "To define and punish piracies and felonies committed on the high
seas, and offenses against the law of nations." [FN327]
Although currency and the high seas clearly involve areas of federal, and not
state concern, it is notable that the authors of the Constitution felt a need
specifically to authorize Congressional law enforcement regarding these matters.
In addition, the "necessary and proper" clause authorizes punishment of certain
offenses. For example, since Congress is given authority over patents and
bankruptcy, Congress may enact criminal laws regarding patent or bankruptcy
It is questionable whether Congress should arrogate to itself vast criminal
powers supposedly deriving from the interstate commerce power, or the taxing
power. Much of the expansion of federal criminal power has taken place as a
result of an excessive judicial deference to Congress' proclivity for reading
the interstate commerce power as a general grant of legislative authority on any
Most of the federal government's criminal law
jurisdiction is built on an intellectual foundation of sand which will, perhaps,
one day be swept away by jurists committed to the text of the Constitution
rather than to the political trends of the day. [FN330]
After testifying at a Congressional hearing, one
of us listened to a leader of the anti-militia movement tell Representative Bill
McCollum that repressive measures were necessary because the authors of our
Constitution had never faced a threat like John Trochmann (the leader of the
Militia of Montana). Nobody familiar with American history could say such a
thing. Rebellion was no abstraction to the authors of the United States
Constitution and Bill of Rights; they had fought their own revolution a few
years before. The Constitutional Convention took place only a few months after
the suppression of an armed revolution led by Daniel Shays, in Western
The first four Presidencies each faced a violent rebellion or a conspiracy to
destroy the United States. President Washington witnessed the Whiskey Rebellion
in western Pennsylvania and Virginia; President Adams faced the anti-tax Fries'
Rebellion in northern and southeastern Pennsylvania, [FN332]
and President Jefferson's term saw former Vice-President Aaron Burr lead a
treasonous conspiracy to sever the western United States from the rest of the
nation. During the Madison administration, while American armies were fighting
the War of 1812 against Great Britain, New England secessionists met at the
Hartford Convention to draw up plans for withdrawing New England from the Union.
The conflict, however, was avoided by conclusion of a peace treaty with the
British. Any *346 one of the three serious armed revolts, as well as Burr's
immense conspiracy and the Hartford plan of secession, was a vastly greater
threat to national stability than the current threat allegedly posed by the
Militia of Montana, or all the militias of the United States put together.
The people of the early American republic
understood that the surest guaranty of a stable society was not repression from
a central government, but the full protection of all civil liberties, and the
careful control of centralized power. [FN334]
When the government did overreact--as in the case of the Alien & Sedition
laws--the people resisted.
In this Article, we have discussed a plethora of
measures that would chop away at the Constitution; for not one of those measures
have its proponents offered evidence that it would have prevented the terrible
crime in Oklahoma City. Everything that terrorists do is already illegal.
Current laws already provide ample authority for investigations of potential
terrorists, including persons who have done nothing more than talk big. Various
proposals that are offered as supposed solutions to terrorism--including more
spying on peaceful dissidents, more electronic surveillance, trials with secret
evidence, felonizing charitable donations to foreign humanitarian causes, and
federalizing and militarizing criminal law--will make America more dangerous,
not safer. Releasing the federal government from the strict Constitutional rule
of law would, in the long run, facilitate state terrorism.
"Government is the potent, the omnipresent
teacher," Justice Brandeis told us. [FN335]
The most important thing that the federal *347 government can do to prevent
terrorism is to not practice it. Without the unjustifiable, illegal,
militaristic, deadly federal violence at Rudy Ridge and at Waco, there would be
no militia movement. The federal government should set a better example. [FN336]
If Rudy Ridge had led to a real investigation and genuine corrective measures--
instead of years of coverup by both the Bush and Clinton administrations,
followed by grudging, ersatz reforms--America would be both safer and freer.
Ruby Ridge and the Waco tragedies were not the
fault of a few bad officials, but the inevitable result of a culture of
lawlessness, militarization, and violence that has permeated far too much of the
federal law enforcement establishment. When the federal government--especially
the executive branch-- stops demanding new powers, and starts exercising its
existing powers in a responsible and lawful manner, then we will see a massive
reduction in the tension between the majority of the American people and the
government that should be their trusted servant, and not a terrifying master.
FNa. Associate Policy Analyst, Cato Institute, Washington, D.C.; Research
Director, Independence Institute, Golden, CO; B.A.
1982, Brown Univ.; J.D. 1985, Univ. of Michigan.
Professor of Law, Hamline Univ.; B.A. 1967, Univ. of Notre Dame; J.D., 1970,
Duke Univ.; LL.M., 1981, Univ. of Florida. Research assistance for this article
was provided by Chris Little and Scott Hattrup.
Tolstoy, War and Peace, 857 (Louise & Aylmer Maude trans., Inner Sanctum ed.
FN2. Skinner v. Railway Labor Executives'
Ass'n., 489 U.S. 602, 635-36 (1989) (Marshall, J., dissenting).
FN3. 141 Cong. Rec. S7880 (daily ed. June 7, 1995) (vote no. 242).
FN4. H.R. 1710, 104th Cong., 1st Sess. (1995).
FN5. H.R. 2703, 104th Cong., 1st Sess., 142 Cong. Rec. H2304 (1996)
FN6. Antiterrorism and Effective Death Penalty Act
of 1996, Pub. L. No. 104- 132, 1996 U.S.C.C.A.N. (110 Stat.) 1248.
FN7. Run by Phyllis Schaffley, one of the founders of the modern social
conservative movement. FN8. E.g., Americans for Tax Reform,
American Friends Service Committee, American Immigration Lawyers Association,
Center for Democracy and Technology, Citizens Committee for the Right to Keep
and Bear Arms, Gun Owners of America, Law Enforcement Alliance of America,
Presbyterian Church (SA) Washington Office, Second Amendment Foundation. Letter
from American Civil Liberties Union, et. al. to President Clinton and
Congressional Leadership (Apr. 26, 1995) (on file with author).
FN9. For example, at a December 1995 press conference opposing a new
version of Rep. Henry Hyde's terrorism bill, NRA-ILA Executive Director Tanya K.
Metaska stated that the NRA was only putting up a "yellow light" on the
terrorism bill-- asking for substantial improvements, rather than wanting to
stop the bill entirely.
FN10. The signatures were on his own
behalf, and not on behalf of any organization with which he is affiliated. Kopel
is also a non-policy-making member of several organizations in the alliance,
including ACLU, NACDL, NRA, and GOA.
FN11. Terrorist was
first defined as: "In the French Revolution, an adherent or supporter of the
Jacobins, who advocated and practised methods of partisan repression and
bloodshed in the propagation of the principles of democracy and equality." The
New Shorter Oxford English Dictionary 3258 (1993). In modern times, a great deal
of terrorism is sponsored by government. See Ray S. Cline & Yonah Alexander,
Terrorism as State-Sponsored Covert Warfare (1986). FN12. Angie
Cannon, Focus on Politics, Orange Cty. Reg., Feb. 6, 1996 at A14.
FN13. Regarding the alleged mistresses, Adams remarked, "'I
do declare upon my honor, if this be true General Pinckney has kept them all for
himself and cheated me out of my two."' Paul F. Boller, Jr., Presidential
Campaigns 12-13 (1985) citing 2 Page Smith, John Adams 1034 (1962).
Jeffersonians also claimed that President Adams had planned to marry one of his
sons to the daughter of England's King George III and start an American
monarchy; Adams had supposedly abandoned the plan only after George Washington
threatened to run him through with a sword. Id. at 12-13.
FN14. 1 Stat. 570, 577 (1798).
FN15. 1 Stat. 596
FN16. E.g., Lyon's Case, 15 F. Cas 1183 (C.C.D. Vt.
1798) (No. 8646).
FN17. James Madison & Thomas Jefferson,
Resolution of the Kentucky Legislature, in The Tree of Liberty 89-90 (Nicholas
D. Kittrie & Eldon D. Wedlock, Jr., eds., 1986).
Philip Taft & Philip Ross, American Labor Violence: Its Causes,
Character, and Outcome, in Violence in America: Historical and Comparative
Perspectives 281 (Hugh Davis Graham & Ted Robert Gurr, eds., 1969); Michael
Wallace, The Uses of Violence in American History, in Riot, Rout, and
Tumult: Readings in American Social and Political Violence (Roger Lane &
John J. Turner, Jr., eds., 1978).
FN19. Jeremy Brecher,
Strike! 47-50 (1972).
FN20. Debs v. United States, 249 U.S.
FN21. Paul Aurich, Anarchist Voices 318
FN22. John A. Garraty, The American Nation, 285-86
FN23. Ralph J. Bunch, The Political Status of the
Negro in the Age of FDR 86 (Dewey W. Granthan ed., 1973).
FN24. Martin Van Creveld, Technology and War: From 2000 BC to the
Present 306-07 (1989). FN25. George Gedda, International
Terrorism Down, Associated Press, Apr. 28, 1995 available in 1995 WL
FN26. Center for National Security Studies, Recent
Trends in Domestic and International Terrorism 1 (May 1, 1995).
FN27. Id. at 1-2.
FN29. See infra
FN30. In fact, the repressive, counterproductive
actions of the British Crown that set off the Revolutionary War in the American
Colonies in 1775 are not entirely dissimilar to the British government's policy
over the last two centuries regarding Ireland. It was, of course, just this type
of oppressive governmental action in the suppression of dissent that the
successful American revolutionaries sought to prevent, after they had won their
liberty, by adoption of the Constitution's Bill of Rights.
FN31. Thomas Butson & Bryant Rollins, The I.R.A. is Outlawed
in Britain, N.Y. Times, Dec. 1, 1974, at 2.
Prevention of Terrorism (Temporary Provisions) Act 1974 (Eng.).
FN34. Prevention of Terrorism
(Temporary Provisions) Act 1989, Sec. 2 (Eng.).
Hillyard & Janie Percy-Smith, The Coercive State: The Decline of Democracy
in Britain 272 (1988).
FN37. Prevention of Terrorism (Temporary Provisions) Act 1989, Sec.
3(I) (Eng.). See also K.D. Ewing & G.A. Gearty, Freedom Under Thatcher:
Civil Liberties in Modern Britain 216 (Oxford: Clarendon Pr., 1990). The Irish
Bishops' Commission for Prisoners distributes a leaflet to Irish emigrants to
Britain, warning young people that if arrested, they should expect "rough,
accusational anti-Irish treatment" and should be prepared for "disorientation
resulting from solitary confinement . . . and lack of contact with anyone except
the police." The leaflet advises Irish to "sign nothing" without first
consulting a lawyer. Mary Holland, Ireland Laments Her Innocents Imprisoned
Abroad, Observer, Oct. 22, 1989, at 2.
of Terrorism (Temporary Provisions) Act 1989, Pt. II, SS 4-8 (Eng.).
FN39. Hillyard & Percy-Smith, supra
note 35, at 273; Regina v. Secretary of States for the Home Department, ex
parte Stitt, reported in The Times (London), Feb. 3, 1987 (Divisional Court
ruling that requiring reasons for exclusion "would be fraught with difficulty
and danger"), quoted in Ewing & Gearty, supra note 37, at 217.
FN40. Brogan v. United Kingdom, 11 Euro. Hum. Rts. Rep. 117 (1989)
FN41. John Carvel, PM Clings to Detention
Powers, The Guardian (London), Oct. 21, 1989, at 1. Kevin Dawson,
Pressure Mounts to Reopen Birmingham Case, The Sunday Trib., Oct. 22,
1989, at A15.
FN42. These interrogation techniques will cause
the suspect to "admit" almost anything the interrogator suggests in an effort to
relieve the strain. No such coerced confession can be trusted and, in the United
States today, such confessions are still inadmissible because of the Fifth and
Fourteenth Amendments. E.g., Payne v. Arkansas, 356 U.S. 560, 569
FN43. Barry James, Justice in England Undergoes
Stress, L.A. Times, Apr. 7, 1985, at 2. The "five techniques" were condemned by
the European Court of Human Rights as inhuman and degrading. Ireland v. United
Kingdom, 2 Euro. Hum. Rts. Rep. 25 (1978).
Campbell, The Thatcher Government vs. the British Press, Col. Jnl.
Rev., May/June 1989, at 35. The ban on the use of voices of Irish nationalists
was dropped after Prime Minister Thatcher left office. Serge Schemann,
Overseas, Oklahoma City Bombing Is Seen Through Prism of Experience,
N.Y. Times, Apr. 30, 1995, at 28.
FN45. Labour Member of
Parliament Ken Livingstone denounced the plan to "prevent access to radio and TV
by those who are critical of government policy in Ireland." On the other hand,
South African President P.W. Botha applauded the move, and suggested that South
Africa emulate the British plan. Campbell, supra
note 43, at 35.
FN46. Ewing & Gearty, supra
note 37, at 248 (citing Independent, Nov. 11, 1988; Feb. 13, 1989).
FN47. Criminal Evidence (Northern Ireland) Order 1988, S 3 (Eng.),
Criminal Justice and Public Order Act 1994, SS 34-35 (Eng.).
FN48. Terence DuQuesne & Edward Goodman, Britain An Unfree Country
26 (1986) (citing Interception of Communications Act, July 25, 1985). American
wiretaps authorize only the recording of conversations regarding the subject of
the tap. British wiretappers are required to ecord all conversations on the
tapped line. Ewing & Gearty, supra
note 27, at 70.
FN49. S 3(l); see also Campbell, supra
note 44, at 37.
FN51. Firearms Act 1982 (Eng.); Stephen Gold, Carry on
Squirting, 133 New L.J. 989 (1983). FN52. Firearms Act 1982,
ch. 31 (Eng.); Michael Yardley & Jan A. Stevenson, Report on the Firearms
(Amendment) Bill 65 (2d ed. 1988).
FN53. See generally R.C.
Longworth, Perjury, Abuse of Prisoners Lead to Criticism of British
Police, C.J. Int'l, Sept. 1990, at 19 (reprint from Chicago Tribune).
FN54. Ewing & Gearty, supra
note 37, at 18-19. Among the other well-known cases involving Irish
defendants allegedly tortured into confession by the police are the Maguire
Seven and U.D.R. Four. Craig R. Whitney, Faith in British Justice System is
Shaken By Forced Confessions and False Jailings, N.Y. Times, June 2, 1991,
FN55. Hillyard & Percy-Smith, supra
note 35, at 274.
FN56. 18 U.S.C. Sec. 1385 (1994).
FN57. As the great historian Edward Gibbon observed, "The
temper of soldiers, habituated at once to violence and slavery, renders them
very unfit guardians of a legal or even civil constitution." Quoted in Douglas
Casey, The New Praetorians, Liberty, Mar. 1996, at 50. Like the FBI,
the Army infiltrated antiwar groups in the 1970s and kept dossiers on opponents
of the war. Congress Not Ready to Alter Law Banning Police Role for
Military, Crime Control Dig., May 5, 1995, at 3 (quoting Lawrence Korb, a
Pentagon personnel chief during the Reagan administration).
FN58. See generally, H.M. Gitelman, Legacy of the Ludlow Massacre
FN59. For the creation of the modern National Guard,
see H. R. Rep. No. 141, 73d Cong., 1st sess., (1933).
18 U.S.C. S 1385 (1994). Not all of America's "armed forces" are included. The
Act does not apply to the Navy or the Marine Corps, for they were seen as
seagoing services not likely to be a domestic threat. The Coast Guard (in time
of peace, a part of the Treasury Department but, in time of war, a part of the
Navy) is also not included, as it was a tiny service of tax collectors and also
not perceived as a domestic threat in the nineteenth century.
FN61. South v.
Maryland, 59 U.S. 396, 402 (1855). See also 4 William Blackstone,
Commentaries *146 ("And by the statute of 13 Hen. IV. c.7. any two justices,
together with the sheriff or under sheriff of the county, may come with the
posse comitatus, if need be, and suppress any such riot, assembly, or rout,
arrest the rioters. . .).
FN62. In re Quarles, 158 U.S. 532,
535 (1895). The passage was quoted with approval in United States v. New York Tel.
Co., 434 U.S. 159, 178 (1977).
FN63. Livingston v. Dorgenois, 11 U.S.
577, 579 (1813).
FN64. See 18 U.S.C. S 1835 (1994).
FN65. U.S. Const., art. I, S 8. The power to declare war and
appropriate funds for the military is vested in Congress, the most democratic
branch, and army appropriations are limited to a period of two years, so that
the army is dependent on a new appropriation after every House election. Id.
FN66. 48 U.S.
1, 76 (1849).
FN67. The Federalist No. 41 (James
FN68. U.S. Const., art. I, S 8 (emphasis added).
FN69. U.S. Const., art. IV, S 4. To state the obvious, there
is no threat of invasion of any state, nor has any state asked the federal
government to protect it against domestic violence. Thus, there is no
Constitutional foundation for current use of the military in domestic law
enforcement. Such actions are ultra vires.
FN70. U.S. v.
Walden, 490 F.2d 372, 375 (4th Cir. 1974).
FN71. Wrynn v.
United States, 200 F. Supp. 457, 465 (E.D.N.Y. 1961) (holding Air Force
participation in execution of law wrongful, but not cause of injury under
Federal Tort Claims Act). FN72. Bissonette v. Haig, 776 F.2d
1384, 1387 (8th Cir. 1985) (footnote omitted), aff'd, 485 U.S. 264
(1988). See generally Stephen P. Halbrook, Military Enforcement of
the Drug Laws, in Kevin & E. Zeese, Drug Law (1993).
FN73. Mike Spofford, Feingold Not Sold on New Power for
Military, Capital Times, May 11, 1995, at 1E.
if arguably legitimate, any additional exception to the Posse Comitatus Act
should be strictly limited to cases where special expertise is necessary.
Spraying someone with mace may be a crime involving chemical attack, but is not
one requiring that we call out the army.
FN75. H.R. 896,
104th Cong., 2d Sess. (1996).
FN76. S. 735, 104th Cong., 2d
FN77. See infra text accompanying notes 257-91.
FN79. H.R. 896, S
101(f); S. 735, S 102(f).
FN80. 466 U.S. 170 (1984).
FN81. Mark Levin, What Became of the FBI?, Nat'l Rev., Oct.
9, 1995, at 20.
FN82. Justice, Defense Announce "Troops
to Cops" Conversion Program, Crime Control Dig., May 5, 1995, at 1.
FN83. One of the authors, Olson, wrote the following in a
letter concerning the right-wing bashing done after the Oklahoma City bombing:
It was the capitol city of a midwestern state.
A nice town known, perhaps, for yelling, shouting, and political marches but
not for violence. It was a government building--home to administrators and
staff and, even, to educators. It was a truck loaded with common fertilizer,
ammonium nitrate, mixed with common fuel, diesel oil, and set off with
hardware store parts. The bomber was a wacko who hated the federal government
and especially the agency whose work was done in the building. A wacko who
felt shut out of our democracy and who despaired of a political solution to
his real and imagined grievances. A wacko who shamed those who also had
grievances with the government but who had chosen to use the processes of
democracy to seek redress. It was Madison, Wisconsin in 1970. The wacko came
from the far-left. Otherwise the analogy to 1995 is near perfect.
Joseph Olson, Letter to the Editor, L.A. Times,
Apr. 27, 1995, at 2.
FN84. Suzanne Fields, Bombing Brings
Reckless Charges of Blame, Gazette- Telegraph (Colorado Springs), Apr. 27,
1995, at B7.
this article is written, a man believed by authorities very probably to be the
Unabomber has been arrested and is being held by federal officials. Since the
suspect lived in a remote cabin with no utilities, and had apparently not even
been an object of suspicion to the FBI before his brother turned him in, it
seems unlikely that any of the proposed anti-terrorist legislation discussed in
this article would have speeded his apprehension.
Text of Letter From "Terrorist Group," Which Says It Committed
Bombings, N.Y. Times, Apr. 26, 1995.
FN88. Cal Thomas,
Unabomber: A Liberal McVeigh, Cincinnati Enquirer, April 12, 1996, at
A14. FN89. Id.
FN90. See generally Linda
Chavez, Media Ignore Unabomber Ecotage Link, Den. Post, Apr. 11, 1996,
at 7B; Thomas, supra
note 88. Al Gore's book, Earth in the Balance, was found in
Theodore Kaczynski's cabin. Kaczinski had apparently underlined many passages
and made copious marginal notes. Inside Politics, Wash. Times, June 16,
1996, at 16.
FN91. Schenck v. United States, 249 U.S.
47, 52 (1919).
FN92. Abrams v. United States, 250 U.S.
616, 630 (1919) (Holmes, J., dissenting).
FN93. Whitney v. California, 274 U.S.
357, 376-77 (1927) (Brandeis, J., dissenting).
FN94. Watts v. United States, 394 U.S.
705 (1969) (per curiam).
FN95. Brandenberg v. Ohio, 395 U.S.
444, 447 (1969) (per curiam).
FN96. Whitney v. California, 274 U.S.
357, 375 (1927) (Brandeis, J., concurring) (Justice Holmes joined in the
FN97. Clinton Slams Gun Lobby, House
on Terrorism Bill, Reuters, Mar. 16, 1996, available in LEXIS, Nexis
Library, Reuters file.
FN99. President Clinton, Philadelphia Mayor Edward Rendell, and New
York Mayor Rudolph Guliani, Remarks to the 16th Annual Convention of the
National Association of Police Organizations (Aug. 12, 1994).
FN100. White House, Office of the Press Secretary, Remarks by
President Clinton at Michigan State University (May 5, 1995).
FN101. E.g., Peter Hoffman, German Resistance to Hitler
FN102. Echoes of Oxford, Wall St. J., May
FN103. Clinton Singles Out Liddy in Rebuking
Talk Show Hosts, Associated Press, May 4, 1995, available in LEXIS, Nexis
Library, AP file.
FN104. Roy Bragg, Conservative
Talk-Show Hosts Counterattack, San Antonio Exp.- News, Apr. 30, 1995.
FN105. Amitai Etzoni, Just a Social Crowd of Folk,
The Guardian, Feb. 18, 1995, at 29.
FN106. So too, have
right-wing voices, such as House Speaker Newt Gingrich. After Susan Smith
drowned her two young boys in a car in South Carolina, Gingrich said,
How a mother can kill her two children,
fourteen months and three years, in hopes that her boyfriend would like her,
is just a sign of how sick the system is and I think people want to change.
The only way you get change is to vote Republican. That's the message for the
last three days.
David Pace, Gingrich Defends Using Boys'
Slayings In Campaign, Orange Cty. Reg., Nov. 8, 1994. If there is a real
sign of how sick the system is, it is in the willingness of major political
leaders to link their opponents to the murder of children, and the eagerness of
many Americans to believe lies about minority groups perpetrating heinous
crimes. Smith's claim that a black man had taken her car and children was
initially given great credibility by many Americans, if not by the law
enforcement officials involved. The same may be said of the assertions that
militia members were involved in the Oklahoma City bombing.
FN107. United States v. Progressive, Inc., 467 F. Supp. 990 (D.
Wis.), appeal dismissed, 610 F.2d 819 (7th Cir. 1979). The ruling was
based on two facts only applicable to a hydrogen bomb, which are emphatically
not applicable to ordinary explosives. First, "(a) mistake in ruling against the
United States could pave the way for thermonuclear annihilation for us all." Id.
at, 996. Second, "'the design and operational concepts described in the
manuscript are not expressed or revealed in the public literature nor do I
believe they are known to scientists not associated with the government weapons
programs."' Id. at 993 (quoting Dr. Hans A. Bethe).
William Powell, The Anarchist Cookbook (1971).
Hoffman, Steal This Book (1971).
FN110. Brandenburg v. Ohio, 395 U.S.
FN111. 18 U.S.C. S 2339A (1994).
FN113. Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, S 302, 1996
U.S.C.C.A.N. (110 Stat.) 1248.
FN114. Only the organization
itself can challenge the designation. An individual who is being criminally
prosecuted for giving support to the organization may not challenge the
designation. Id. FN115. S 303, 1996 U.S.C.C.A.N. (110 Stat.)
FN116. Id. What makes an organization
"foreign" is undefined by the legislation. Thus, an American organization with
some non-American members could arguably be considered foreign, as could an
American organization with substantial overseas activity, such as Oxfam.
FN117. S 303, 1996 U.S.C.C.A.N. (110 Stat.) 1250.
FN119. S. 735, 104th Cong.,
2d Sess., S 402 (1996).
FN120. Anthony Lewis, How
Terrorism Wins, N.Y. Times, Mar. 11, 1996 at A17. All these examples are
contingent upon the organization in question being designated a "foreign
terrorist organization" by the Secretary of State.
The original Clinton bill's overbreadth was even more astonishing. In that bill,
the Palestine Liberation Organization was permanently defined as a terrorist
organization, no matter what its future conduct. H.R. 896, 104th Cong., 2d Sess.
S 202(a) (1996). Thus, if the P.L.O. should live up to the peace treaty that it
signed with Israel, President Clinton would be guilty of providing "material
support" to a terrorist organization should he invite Yassir Arafat to the White
House and give him a free meal and a night's lodging.
Collections from Kharris (visited December 30, 1996).
H.R. 896, S 301(a); S. 750, S 401(a).
FN124. Healy v. James, 408 U.S. 169
(G)uilt by association alone, without (proof)
that an individual's association poses the threat feared by the Government, is
an impermissible basis on which to deny First Amendment rights. The government
has a burden of establishing a knowing affiliation with an organization
pursuing unlawful aims and goals, and a specific intent to further those
Id. at 186 (citations omitted).
FN125. Bridges v. Wixon, 326 U.S.
FN126. Elfbrandt v. Russell, 384 U.S.
11, 15 (1966).
FN127. Id. See also Noto v. United States, 364 U.S.
290 (1961). "There is danger that one in sympathy with the legitimate aims
of . . . an organization, but not specifically intending to accomplish them by
resort to violence, might be punished for his adherence to lawful and
constitutionally protected purposes, because of other and unprotected purposes
he does not necessarily share." Id. at 299-300. Thus, the Supreme Court has
declared unconstitutional many laws imposing disabilities on persons solely
because of their membership in the Communist Party, a group which has legal and
illegal aims, and which has supported and received support from foreign
terrorist organizations (such as the K.G.B.). Communist Party of Indiana v.
Whitcomb, 414 U.S. 441, 448-49 (1974); Baird v. State Bar of Arizona, 401
U.S. 1 (1971); Keyishian
v. Board of Regents, 385 U.S. 589, 606-07 (1967); Apthekar v. Secretary of State,
378 U.S. 500 (1964); Schware v. Board of Bar
Examiners, 353 U.S. 232 (1957).
FN128. Adam Parfrey
& Jim Redden, Patriot Games, Village Voice, Oct. 11, 1994, at
26-31. FN129. Adam Parfrey, Oklahoma City: Cui Bono?
Prevailing Winds Magazine, no. 2, Alternative Press, at 42, 51 (1996). The same
article was also published as Finding Our Way Out of Oklahoma,
Alternative Press, Winter 1996, at 60.
FN130. Kenneth S.
Stern, A Force upon the Plain: The American Militia Movement and the Politics of
FN131. Morris Dees & James Corcoran,
Gathering Storm: America's Militia Threat (1996). FN132.
Id. at 2. Rep. Charles Schumer agrees; at the opening of House
subcommittee hearings on militias, Schumer warned, "America is at greater risk
today than ever before...they could destroy America." The Nature and Threat of
Violent Anti-Government Groups: Hearing Before the Subcomm. on Crime of the
House of Representatives Comm. on the Judiciary, 104th Cong., 1st Sess. (1995)
(Statement of Rep. Schumer).
FN135. Sandee Richardson,
Law Center Hierarchy Remains All White, The Montgomery Advertiser, August
25, 1996, at 1A.
FN136. Stern's book does not make Beam and
Dees the central characters, but Stern does write that "The most significant
precursor of the militias was the Ku Klux Klan." Stern, supra
note 130, at 43.
FN137. Dees supra
note 131, at 29.
FN138. Id. at 66.
FN139. Southern Poverty Law Center, Klanwatch Intelligence Report,
Feb. 1996, at 1.
FN140. The "Patriot movement" is the name
used by a large group of people, on the political right, who raise mainstream
concerns about expanded federal power, but who place those concerns in the
context of alleged conspiracies to destroy American freedom and place the
American people under the control of a one-world international government.
International bankers, the Trilateral Commission, the Council on Foreign
Relations, the United Nations, and other elite international organizations are
often said to be deeply involved in the conspiracy, as are Presidents Bush and
Clinton, and other parts of the United States government, especially the Federal
Reserve and the Federal Emergency Management Agency. The militia movement, in
contrast, consists of people who form local organizations to train for lawful
civil defense--usually, but not always, with firearms training included. Almost
all militia members are suspicious of the federal government; many, but not all,
militia leaders and members believe in the Patriot ideology. The militia
movement is much smaller than the Patriot movement.
The step-father of Susan Smith (the South Carolina mother convicted of killing
her two young sons) sexually molested her one night after he returned from
putting up posters for the Pat Robertson presidential campaign. The Company
You Keep, The New Republic, May 15, 1995, at 11. What if someone suggested
that the radical patriarchal theories espoused by Robertson and the Christian
Coalition created the atmosphere that led to the incestuous rape, and that
therefore all Christian Coalition members were responsible for the crime, and
the FBI should crack down on them? The claim would be dismissed in a second;
equally outrageous claims about militia members should likewise be dismissed.
FN142. Dees, supra
note 131, at 163.
FN143. Dees, supra
note 131, at 162; Stern, supra
note 130, at 187.
Since the dawn of warfare, military commanders
have tried, with little success, to overcome the natural reluctance of humans
to kill other humans. Every source of statistical information that we can
discern shows huge numbers of soldiers never firing their guns, or, when
forced to fire by the presence of officers, elevating firearm slightly so as
to fire over the head of the enemy. Not until the Vietnam conflict was there a
war in which the majority of American soldiers actually fired their guns; by
Vietnam, the military had begun putting recruits through special psychological
conditioning designed to overcome the resistance to kill.
Dave Grossman, On Killing: The Psychological
Cost of Learning to Kill in War and Society (1995). FN145. Dees,
note 131, at 152; Stern, supra
note 130, at 188.
FN146. E.g., Craig B. Hulet,
Patriots or Paranoids?, Soldier of Fortune, Aug. 1995, 43.
FN147. Nolan Clay, McVeigh Carried Political Writings When
Arrested, Daily Oklahoman, Nov. 4, 1995. The passage was:
I have no reason to suppose that he who would
take away my liberty would not when he had me in his power take away
everything else. And therefore it is lawful for me to treat him as one who has
put himself into a state of war against me and kill him if I
Id. McVeigh's handwritten note, while
generally accurate, was not entirely precise. The exact quote was:
. . . I have no reason to suppose, that he,
who would take away my Liberty, would note when he had me in his
Power, take away every thing else. And therefore, it is Lawful for me to treat
him, as one who has put himself into a State of War with,
i.e. kill him if I can. . .
John Locke, Two Treatises of Government, 320-21
(Peter Laslett ed., New American library 1965) (1689) (emphasis in original).
FN148. Id. at A2.
leader of the anti-militia movement in the northwest.
William Pierce, The Turner Diaries (1988).
FN151. Dees' book
has a bibliography; Stern lists sources at the end of every chapter, but does
not link particular sources with particular facts.
note 130, at 170.
FN153. The Nature and Threat of
Violent Anti-Government Groups: Hearing Before the Subcomm. on Crime of the
House of Representatives Comm. on the Judiciary, 104th Cong., 1st Sess. (1995)
(testimony of Michael Lieberman, Anti-Defamation League); Id.
(testimony of Brian Levin, Southern Poverty Law Center).
FN154. Stern, supra
note 130, at 165-70. For example, Stern's quote of Sherwood was the lead
paragraph in the National Journal's review of Stern's book. Politics, Nat'l J.,
Mar. 9, 1996, at 561. The Sherwood quote is featured in large type on the inside
back cover of a glossy SPLC special report summarizing the Dees book. Southern
Poverty Law Center, False Patriots: The Threat of Antigovernment Extremists
FN155. Mark Tanner, Extreme Prejudice: How the
Media Misrepresent the Militia Movement, Reason, July 1995, at 45.
FN157. Other militia facts
circulated by anti-militia fundraisers (but not in the Stern and Dees books) are
also taken wildly out of context. For example, a reader may be told that a
militia leader called for an armed march on Washington which would order
Congress, at gunpoint, to repeal the Brady Act, abolish the Internal Revenue
Service, pass various constitutional amendments, as so forth. The reader may be
told that the militia leader was Linda Thompson, with the H.M.S. Pinafore-like
title "Adjutant General of the Unorganized Militia." What the reader will rarely
learn, however, is that Ms. Thompson gave herself that title although she does
not command a single militia squad, let alone hundreds of them (as a real
general would). Nor did the actual militia movement pay much attention to Ms.
Thompson's call for a September 7, 1994 armed march, except to denounce it as
outrageous and ridiculous. The reader will certainly not learn that Ms.
Thompson's preposterous suggestion was eventually withdrawn, as she claimed that
her call for the march had been a hoax. Adam Parfrey, Oklahoma City: Cui
Bono? Prevailing Winds Magazine (1996), at 42, 45.
Pro-militia radio commentator Bo Gritz (in a
quote correctly described by Stern), theorized that the Oklahoma City bombing
could not have been perpetrated by a pair of men with a fertilizer bomb, because
the destruction of the building was so sophisticated and effective; the bombing
was a "Rembrandt-- a masterpiece of science and art put together." Stern, supra
note 130, at 204. The Gritz quote is often repeated out of context, as if
Gritz were praising the bombing as a positive act. FN158. Stern summarizes a law
review article by Handgun Control, Inc. chief counsel Dennis Henigan (identified
by Stern only as "attorney Dennis Henigan"), that the Second Amendment cannot
possibly guarantee a right to own guns to resist tyranny, because no structure
of government can contemplate its own overthrow. Stern, supra
note 130, at 110-13. Yet in Stern's 1994 book about his role as an attorney
for armed, violent American Indian movement, he wrote that armed, collective
self-defense against federal tyranny is "the last, core, rock bottom concept of
sovereignty." Kenneth S. Stern, Loud Hawk 322 (1994). But only, apparently, when
being exercised from the left rather than the right.
note 130, at 218; Stern, supra
note 131, at 112.
FN160. See, e.g., 4 Encyclopedia of
the American Constitution 1639-40 (Karst & Levi eds., 1986); E. Foner and J.
Garrity, Reader's Companion to American History 477-78 (1991) (entry on "Guns
and Gun Control"); Stephen Halbrook, A Right To Bear Arms: State And Federal
Bills Of Rights And Constitutional Guarantees (1989); Leonard Levy, Original
Intent and the Framers' Constitution 341 (1988); Joyce L. Malcolm, The Right to
Keep and Bear Arms: the Origins of an Anglo-American Right (1994); Oxford
Companion to the United States Supreme Court (1992) (entry on the Second
Amendment); Akhil Amar, The Bill of Rights and Fourteenth Amendment,
101 Yale L.J. 1193 (1992); Akhil Amar, The Bill of Rights as a
Constitution, 100 Yale L.J. 1131, 1164 (1991); David Caplan, The Right
of the Individual to Bear Arms, 1982 Det. Coll. L. Rev. 789 (1982); Robert
J. Cottrol & Raymond T. Diamond, Public Safety and the Right to Bear
Arms, in D. Bodenhamer and J. Ely, After 200 Years: the Bill of Rights in
Modern America (1993): Robert J. Cottrol & Raymond T. Diamond, The
Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J.
309 (1991); Robert Dowlut, The Current Relevancy of Keeping and Bearing
Arms, 15 U. Balt. L. Rev. 32 (1984); Robert Dowlut, The Right to
Arms, 36 Okla. L. Rev. 65 (1983); Richard E. Gardiner, To Preserve
Liberty: A Look at the Right to Keep and Bear Arms, 10 N. Ky. L. Rev. 63
(1982); Stephen P. Halbrook, The Right of the People or the Power of the
State: Bearing Arms, Arming Militias, and the Second Amendment, 26 Val. U.
L. Rev. 131 (1991); Stephen P. Halbrook, Encroachments of the Crown on the
Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment,
15 Dayton L. Rev. 91 (1989); David Hardy, The Second Amendment and the
Historiography of the Bill of Rights, 4 J.L. & Politics 1 (1987); David
T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the
Second Amendment, 9 Harv. J.L. & Pub. Pol'y 559 (1986); Don B. Kates,
Jr., The Second Amendment and the Ideology of Self-Protection, 9 Const.
Comm. 87 (1992); Don B. Kates, Jr., Handgun Prohibition and the Original
Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 244- 52 (1983);
Nelson Lund, The Second Amendment, Political Liberty and the Right to
Self-Preservation, 39 Ala. L. Rev. 103 (1987); Stephanie A. Levin,
Grass-Roots Voices: Local Action and National Military Policy, 40 Buff.
L. Rev. 321, 346-7 (1992); Sanford Levinson, The Embarrassing Second
Amendment, 99 Yale L. J. 637 (1989); Joyce Malcolm, The Right of the
People to Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const.
L.Q. 285 (1983); William Marina, Weapons, Technology and Legitimacy: The
Second Amendment in Global Perspective in Firearms and Violence: Issues of
Public Policy 417 (Don Kates, ed., 1984); James G. Pope, Republican Moments:
The Role of Direct Popular Power in the American Constitutional Order, 139
U. Pa. L. Rev. 287, 328 (1990); Glenn Harlan Reynolds, The Right to Keep and
Bear Arms Under the Tennessee Constitution, 61 Tenn. L. Rev. 647 (1994)
(extensively discussing the Second Amendment in relation to the Tennessee
Constitution); Elaine Scarry, War and the Social Contract: Nuclear Policy,
Distribution, and The Right to Bear Arms, 139 U. Pa. L. Rev. 1257 (1991);
Robert E. Shalhope, The Armed Citizen in the Early Republic, 49 Law
& Contemp. Probs. 125 (1986); Robert E. Shalhope, The Ideological
Origins of the Second Amendment, 69 J. Am. Hist. 599 (1982); William Van
Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke
L.J. 1236 (1994); David Vandercoy, The History of the Second Amendment,
28 Val. U. L. Rev. 1007 (1994); Robert J. Cottrol & Raymond T. Diamond,
The Fifth Auxiliary Right, 104 Yale L.J. 995 (1995). Cf.
Nicholas J. Johnson, Beyond the Second Amendment: An Individual Right to
Arms Viewed through the Ninth Amendment, 24 Rutgers L.J. 1 (1992); John
Choon Yoo, Our Declaratory Ninth Amendment, 42 Emory L.J. 967 (1993);
David C. Williams, Civic Republicanism and the Citizen Militia: The
Terrifying Second Amendment, 101 Yale L.J. 551 (1991) (individual right was
intended, but since state governments have neglected their duties to promote
responsible gun use through drill in a "well- regulated militia," the right to
arms is no longer valid); Donald L. Beschle, Reconsidering the Second
Amendment: Constitutional Protection for a Right of Security, 9 Hamline L.
Rev. 69 (1986) (amendment was intended to guarantee an individual right of
personal security, but the right can be protected by confiscating all guns).
But see Lawrence Cress, An Armed
Community: The Origins and Meaning of the Right to Bear Arms, 71 J. Am.
His. 22 (1983); Keith A. Ehrman & Dennis A. Henigan, The Second
Amendment in the Twentieth Century: Have You Seen Your Militia Lately? 15
Dayton L. Rev. 5 (1989); Samuel Fields, Guns, Crime and the Negligent Gun
Owner, 10 N. Ky. L. Rev. 141 (1982); Dennis A. Henigan, Arms, Anarchy
and the Second Amendment, 26 Val. U. L. Rev. 107 (1991); Warren Spannaus,
State Firearms Regulation and the Second Amendment, 6 Hamline L. Rev.
383 (1983). FN161. Andrew D. Herz, Gun Crazy: Constitutional False
Consciousness and the Dereliction of Dialogic Responsibility, 75 B.U.L.Rev.
57 (1995) (arguing for individual right, but only to participate in the
militia); Garry Wills, To Keep and Bear Arms, N.Y. Rev. Books Sept. 21,
1995, at 62 (arguing that the scholarly "standard model" of Second Amendment is
wrong). The Wills article, incidentally, offers a unique interpretation of the
Second Amendment: rather than providing an ordinary individual right (standard
model) or a narrow individual right to serve in the militia (Herz) or a right of
state governments to have a militia (Henigan, and others), the Second Amendment
has no legal meaning at all. James Madison cleverly wrote a Constitutional
amendment that does absolutely nothing, in order to placate anti-Federalists.
This heretofore-undiscovered secret meaning of the Second Amendment--which
Madison never revealed to anyone or even noted in a secret diary entry--must
prevail over the intentions of the state legislatures that ratified the Second
Amendment. These legislatures were duped by Madison into thinking that they were
guaranteeing an individual right to arms. Wills. Id. It is not
necessary to live on a farm in Montana and own a lot of guns in order to
construct preposterous theories of history.
FN162. Dees, supra
note 129 at 219.
FN163. Proclamations of President
George Washington, Aug. 7, 1794; Sept. 25, 1794, reprinted in Tree of Liberty
80-81 (Nicholas N. Kitric & Eldon D. Wedlock, Jr. eds., 1986).
FN164. I George Mason, Papers 210-11 (1970), quoted in Stephen P.
Halbrook, That Every Man Be Armed: The Evolution of the Constitutional Right 60
FN165. Stern, supra
note 128, at 116.
FN166. Thomas Jefferson Writings 1419
(M. Peterson ed. 1984).
FN167. E.g., Stephen P. Halbrook, A
Right to Bear Arms: State and Federal Bills of Rights and Constitutional
Guarantees 1-17 (1989).
FN168. I Sources of American
Independence 176 (1978); Halbrook, Dayton L. Rev., supra
note 158, at n. 144.
FN169. Dees, supra
note 131, at 219.
FN170. The crimes of militia
sympathizers and others are also published in a special report which the SPLC
released shortly before the first anniversary of Oklahoma City, titled False
Patriots. The report garnered considerable national publicity with its
prediction of a vast militia crime wave which must be crushed at once.
FN171. Dees, supra
note 131, at 200.
FN172. Id. at 210.
FN173. Dan Morse, Marketing the Klan, Montgomery Advert., in
Rising Fortunes 11 (1994) (reprint of eight-day newspaper series on the Southern
Poverty Law Center).
FN174. Stern, supra
note 130, at 249.
FN175. E.g., Dees, supra
note 131, at 231-32. In other contexts, Dees is much less temperate. For
example, in an April 1996 fundraising letter, he states that the "underground
'Patriot' movement" has "united previously warring factions of America's most
rabid extremists." Dees states that "many" Patriot movement members "appear to
be 'ordinary' Americans. . . . " But a number come from the ranks for white
supremacists, militia fanatics, tax protesters, gun enthusiasts and more."
Letter from Morris Dees to David Kopel (Apr. 10, 1996). It says quite a lot
about Dees' world-view that being a "gun enthusiast" qualifies a person to be
included in the same list of dangerous "fanatics" with white supremacists.
FN176. Dees, supra
FN177. Id. at 121.
FN178. E.g., Stern, supra
note 130, at 248.
FN179. Id. at 217-18.
FN180. Id. at 219.
FN181. 505 U.S. 144 (1992) (holding
that states cannot be forced to enter into nuclear waste storage compacts).
U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth.,
469 U.S. 528 (1985) (federal government may not impose wage and hour regulations
on state and local government employees).
FN183. 297 U.S. 1 (1935) (holding that
under the 10th Amendment, agricultural regulation is reserved to the states).
FN184. Dennis A. Henigan, Arms, Anarchy and the Second
Amendment, 26 Val. U.L. Rev. 107 (1991).
note 130, at 93. The measure was vetoed by Governor Mark Racicot. FN186. Id. at 249-50.
Id. at 152. The man quoted, the leader of one of the largest militia groups
in the United States, is an African-American, although Stern never so informs
FN188. Patricia Schroeder, Address at the
Colorado Democratic Convention (Oct. 4, 1974). FN189. Stern, supra
note 130, at 246.
FN191. Id. at 246-47.
FN192. Dees ends
the book by urging political leaders to condemn hate from all sides of the
political spectrum. He criticizes leaders who lent respectability to conspiracy
theorist/numerologist/hate-monger Louis Farrakhan by appearing at his Million
Man March in Washington. Dees, supra
note 131, at 232-33. Stern, however, has a harder time seeing enemies on the
left. In 1994--only two years before publication of A Force on the Plain--he
wrote a book, Loud Hawk: The United States versus the American Indian Movement,
celebrating his role as an attorney for the American Indian Movement. Many
leaders of AIM were racists; they were caught with "350 pounds of explosives";
they hated the FBI; and they believed in a government conspiracy to destroy
them. Loud Hawk, supra
FN193. Stern, supra
note 130, at 45.
FN195. The standard history of the Protocols is Norman Cohn,
Warrant for Genocide:
The Protocols consists of lectures, or notes
for lectures, in which a member of the secret Jewish government--the Elders of
Zion--expounds a plot to achieve world-domination. In the standard version the
'protocols,' or lectures, or chapters, are twenty-four in number; together
they fill a booklet--about a hundred small pages . . They are not easy to
summarize, for the style is turgid and diffuse, the argument tortuous and
illogical. With perseverance one can however distinguish three main themes: a
critique of liberalism; an analysis of the methods by which world-domination
is to be achieved by the Jews; and a description of the world-state which is
to be established . . . .
The Elders base their calculations on a
particular view of politics. As they see it, political liberty is only an
idea--admittedly an idea which has great attraction for the masses, but one
which can never be translated into reality. Liberalism, which attempts this
impossible task, results merely in chaos; for the people are incapable of
governing themselves, they do not know their own mind, they are easily
deceived by appearances, they cannot choose rationally between conflicting
counsels. When the aristocracy ruled it was right that aristocrats should have
liberty, for they used it for the general good; it was in their own interest,
for instance, to care for the workers from whose labour they lived. But
aristocracy is a thing of the past, and the liberal order which has succeeded
it cannot last but must inevitably lead to despotism. Only a despot can ensure
order in society. Moreover, since there are more evil men than good in the
world, force is the only appropriate means of government. Might is right; and
in the modern world the basis of might is the possession and control of
capital. Today it is gold that rules the world.
Over a period of many centuries a plot has
been in operation to place all political power firmly in the hands of those
who alone are qualified to use it properly--that is to say, in the hands of
the Elders of Zion . . . Before the elders can establish their rule over the
whole world the existing Gentile states . . . must be finally abolished . . .
Norman Cohn, Warrant For Genocide: The Myth of
the Jewish World--Conspiracy and the Protocols of the Elder Zion 61-62 (1981).
According to the Protocols, the Zionist plot even includes the construction of
subways, for "these have been devised for the sole purpose of ensuring that the
Elders will be able to meet any serious opposition by blowing whole capital
cities sky high." Id. at 63. The Protocols may have been written in the 1890s by
the Okhrana, the Czarist secret police. Much of the book is a low-quality
plagiarization of Maurice Joly, Dialogues aux Enfers entre Montesquieu et
Machiavel (Dialogue in Hell between Montesquieu and Machiavelli) (1864). FN196. Stern, supra
note 130, at 140.
FN197. John Robison, Proofs of a
Conspiracy (1798). See also Robert Anton Wilson, The Illuminati Papers
FN198. Malcolm Barber, The Trial of the Templars
FN199. See generally, Richard Hofstadter,
The Paranoid Style in American Politics and other Essays 3-40 (1966).
Paranoia and conspiracy theories pre-date
American independence. The Salem witch craze was one manifestation. Another was
the incorrect fear of the 1770s Patriot movement that the British monarchy was
not only mistaken in its particular policies, but was acting out "a design to
reduce (Americans) under absolute Despotism." The Declaration of Independence,
para. 2 (U.S. 1776).
FN200. Dees, supra
note 131, at 5. Stern observes that if militias were mainly black, rather
than mainly white, a legislative crack-down would already have occurred. Stern,
note 130, at 211. Actually, the 1960's Black Panthers were heavily armed,
and much more explicitly pro-violence than today's militias. Not until 1968--by
which point race riots had occurred in nearly every major American city--did
Congress enact major criminal laws aimed at civil unrest. In any case, the
reflexive bigotry which white America has too often felt against black America
is hardly a respectable model for social policy, and it is astonishing to see
the American Jewish Committee promoting it as a model.
FN201. Stern, supra
note 130, at 62. Stern's description of Linda Thompson's misleading but
widely circulated videotape "documentaries" about Waco. Id. 61- 62.
FN202. The other side of the paranoia business tells
whoppers too. For example, militia mail- order entrepreneur, "Mark from
Michigan" (Mark Koernke), told his shortwave listeners that the main federal gun
law, the Gun Control Act of 1968, was copied word-for- word from Nazi Germany's
gun laws. This is plainly false. Koernke was apparently repeating--in a very
derivative and mistaken form--the thesis of the book Gun Control: Gateway to
Tyranny, published by Jews for the Preservation of Firearms Ownership.
Although the book notes parallels between German gun laws and the 1968 American
law, the book never asserts that the latter is a word- for-word copy of the
former; indeed, the book reprints the German and American statutes in full,
making it very clear that the statutes are different. The book does find many
similar concepts, such extra regulation for guns which were not "sporting" arms,
and offers evidence that Senator Thomas Dodd, the main sponsor of the 1968 Act,
knew about the German gun laws, and requested a copy of them from the Library of
Congress. Before becoming Senator from Connecticut, Dodd had once served as a
member of the U.S. prosecuting team at the Nuremburg trials. See generally, Jay
Simkin & Aaron Zelman, Gun Control: Gateway to Tyranny (1992).
FN203. As a Southern Poverty Law Center newsletter explains to
potential donors: "The melding of militias and radical racists has made the job
of law enforcement and monitoring organizations (i.e. the SPLC) both more
difficult and more essential." Joe Roy, Tracking the Terror, Klanwatch
Intelligence Report, Feb. 1996, at 3.
FN204. Greg Jaffe and
Dan Morse, Poverty Law Center Anything but Poor, Montgom. Advert., in
Rising Fortunes, supra
note 171, at 19.
FN205. Barbara Dority, Is the
Extremist Right Entirely Wrong? The Humanist, Nov.-Dec. 1995, at 12-13.
FN206. Stern, supra
note 130, at 486.
FN207. A.M. Rosenthal, The Montana
Mistake, N.Y. Times, Apr. 9, 1996, at 21.
Stephanie Saul, An Explosion of Hate, Newsday, March 3, 1996, at 33
(book review). FN209. Christopher Lehman-Haupt, The Seeds of
Hate Some Americans are Sowing, N.Y. Times, Feb. 12, 1996, at 1C (book
review); Patsy Sims, Armed and Dangerous, N.Y. Times, Jan. 28, 1996, at
1 (book review).
FN210. John McCaslin, Inside the
Beltway, Washington Times, Jan. 16, 1996, at A6.
note 131, at jacket.
FN212. Glenn Harlan Reynolds,
Up in Arms About a Revolting Movement, Chi. Trib., Jan. 30, 1995, S 1,
FN213. B. Bruce-Briggs, The Great American Gun
War, The Public Interest 45 (Fall 1976), at 61.
Id. at 62.
FN215. Stern, supra
note 130, at 486.
Unfortunately, the tendency to see the end of
the Cold War as the beginning of a domestic war is hardly confined to fringe
elements in the militia or anti-militia movements. For example, Irving Kristol,
a very mainstream conservative thinker, writes:
So far from having ended, my cold war has
increased in intensity, as sector after sector of American life has been
ruthlessly corrupted by the liberal ethos. It is an ethos that aims
simultaneously at political and social collectivism on the one hand, and moral
anarchy on the other. It cannot win, but it can make us all losers. We have, I
do believe, reached a critical turning point in the history of American
democracy. Now that the other "Cold War" is over, the real cold war has begun.
Irving Kristol, Neoconservatism: The
Autobiography of an Idea 486 (1995). To create some kind of moral equivalence
between Bill Clinton and Josef Stalin is outrageous, no less outrageous than the
assertions by President Clinton and Rep. Schumer that opponents of their
terrorism bill were themselves active supporters of Hamas and other terrorist
FN216. For an overview of the interstate
commerce clause issue, see Glenn H. Reynolds, Kids, Guns, and the Commerce
Clause: Is the Court Ready for Constitutional Government? Cato Institute Policy
Analysis no. 216 (Wash. 1994).
FN217. For a comprehensive
listing of police seizure data, see David B. Kopel, Rational Basis Analysis
of "Assault Weapon" Prohibition, 20 J. Contemp. L. 381 (1994).
FN218. 18 U.S.C. S 921(a)(30) (1994).
E.g., Charles Krauthammer, Disarm the Citizenry, But Not Yet, Wash.
Post, Apr. 5, 1996. (stating that the only value of the ban is in desensitizing
the American population for eventual gun prohibition).
FN220. In the hysteria following the Oklahoma City bombing, an old
anti-training proposal (rejected when heads were clearer) was resurrected and
adopted by the Minnesota legislature after members were threatened that a
negative vote was a declaration of anti-Semitism. The local chapter of the ACLU
was not able to stop its passage because there were no hearings on the
restriction. See, Minn. Stat., S 609.669 (1995).
Francis X. Clines, FBI Chief Seeks Orders for Inquiries, N.Y. Times,
Apr. 28, 1995, at A25.
FN222. Essex Gaz., Apr. 25, 1775, at
3, col. 3.
FN223. Robert A. Gross, The Minutemen and Their
World 60, 117-29 (1976); Robert W. Coakley and Stetson Conn, The War of the
American Revolution 25-26 (1975).
generally Walter Lord, A Time to Stand (1961).
See Collections supra note 122. For example, what would be thought of a
person who repeated John Adams' observation, "Fear is the foundation of most
governments?" John Adams, Thoughts on Government (1776) in Joseph R. Conlin, The
Morrow Book of Quotations in American History 21 (1984).
FN226. See infra
notes 218-22 and accompanying text. The Attorney General's certification
that the crime has an international element is required for a prosecution, but
not for an investigation, including a wiretap. H.R. 896, 104th Cong., 2d Sess. S
FN227. Foreign Intelligence Surveillance Act
of 1978, 50 U.S.C. S 1801 (1994).
FN228. Philip Colangelo,
The Secret FISA Court: Rubber Stamping of Rights, Covert Action
Quarterly, Sum. 1995 at 43.
FN229. 50 U.S.C. S 1801;
Benjamin Wittes, Inside America's Most Secretive Court, Legal Times,
Feb. 19, 1996; Colangelo, supra
FN230. Administrative Office of the United
States Courts, Wiretap Report: For the Period January 1, 1994 to December 31,
1994, at 12 (indicating that in 1994, 876 of 1,154 taps were for controlled
FN231. Stephen Labaton, Data Show Federal
Agents Seldom Employ Surveillance Authority Against Terrorists, N.Y. Times,
May 1, 1995, at A10; James Bovard, The New J. Edgar Hoover, Am.
Spectator, Aug. 1995, at 34.
FN232. H.R. 896, 104th Cong.,
2d Sess. S 101(e)(1996).
FN233. Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, S 731, 1996 U.S.C.C.A.N. (110
Stat.) 1303 (to be codified at 18 U.S.C. S 2510(16)). (Such transmissions would
include the transmission of data from a portable computer over cellular phone
lines, and transmission over a Local Area Network that communicates by radio
rather than by wire.) One can make a reasonable argument that no form of radio
communication should be protected by anti-wiretapping laws, since radio
communication, by definition, does not involve wire communication. But the point
of anti-wiretapping laws such as the Electronic Communications Privacy Act is
not, after all, the sanctity of the wire, but the sanctity of privacy.
FN234. E.g., S. 735, 104th Cong., 2d Sess. S 502 (1996) (authorizing
FBI to obtain unilaterally certain information, and authorizing court orders for
the FBI to obtain a full credit report), S 503 (giving FBI unilateral authority
to issue administrative summons to "a common carrier or innkeeper"). FN235. The bill allows the FBI to obtain name, address, and
employment information from credit reporting bureaus, simply by asserting that
the consumer has been "in contact" with a foreign government. "In contact" can
include almost anything, such as requesting a visa, or writing a letter of
protest to the government's embassy, complaining about human rights violations.
S. 922, 104th Cong., 1st Sess. S 601 (1996).
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, SS
101-108, 1996 U.S.C.C.A.N. (110 Stat.) 1217-26.
Coleman v. Thompson, 501 U.S.
FN238. Although this article does not
discuss the habeas issue in detail, it is difficult to see how legislators who
insist that they support "law and order" can also support the habeas legislation
approved by Congress; this legislation forbids federal courts to issue a habeas
writ in many cases where a prisoner is being illegally held in state prison in
violation of the federal Constitution.
FN239. Threat of
Terrorism: Hearings Before the Senate Comm. on the Judiciary, 104th Cong., 1st
Sess. (1996) (statement of Louis J. Freeh, Director, FBI).
FN240. The United States Embassy in Moscow used Etch-a-Sketches after
discovering that the building was permeated with bugs. Stephen Engelberg,
Whither Moscow Embassy Scandal?, N.Y. Times, December 9, 1987, at B6.
FN241. Similarly, in 1992, the federal government convinced
AT&T to downgrade the privacy protection in a new portable telephone
encrypter. In return, the government gave AT&T a large order for the device.
Steven Levy, Battle of the Clipper Chip, N.Y. Times June 12, 1994, at
46. FN242. Carroll v. United States, 267 U.S. 132 (1925).
U.S. 347 (1967).
FN244. Howard Kurtz & Dan Balz,
Clinton Assails Spread of Hate Through Media, Wash. Post, Apr. 25,
1995, at A1.
FN245. Lee Edwards, Goldwater: The Man who
Made a Revolution (1995) (bugging of Goldwater campaign during 1964 Presidential
FN246. FBI Discloses It Monitored Cesar
Chavez, N.Y. Times, May 31, 1995, at A19 (Associated Press report of story
originally published in Los Angeles Times). The FBI spied on farmworker
organizer Chavez for seven years, compiling a 1,434 page dossier, none of which
supported the FBI's hypothesis that Chavez was a Communist or a subversive.
FN247. Michael Shanahan & Miles Benson,
Civil Liberties Threatened by Bombing, Rocky Mtn. News, Apr. 28, 1995,
FN248. E.g., Selwyn Raab, 7 Suspects Say FBI
Agent Helped Incite Mob Murders, N.Y. Times, May 10, 1995, at B2 (organized
crime investigation in early 1990s).
FN249. Monroe Freedman,
Keystone Kops in Jackboots, Legal Times, June 12, 1995, at 27. The
current director of the FBI, Louis Freeh, is said to have approved of the
knowing use of perjured testimony in the Wedtech prosecution, when he was
serving as United States Attorney. Bovard, supra
FN250. Much Debated: The Domestic
Intelligence Guidelines, Nat'l L.J., May 8, 1995, at A28. FN251. Robert Pear, Terror in Oklahoma: Law Enforcement Agencies
Differ on Need for More Power to Spy on Terror Suspects, N.Y. Times, Apr. 26,
1995, at A23.
FN252. Office of the Attorney General, The
Attorney General's Guidelines on General Crimes, Racketeering Enterprise and
Domestic Security/Terrorism Investigation, 13 (1989).
Id. at 3.
FN254. Peter Baker, Virginia Hunt Club
Was Aiming to Battle Government, U.S. Says, Wash. Post, Apr. 27, 1995, at C1,
Peter Carlson, A Call to Arms, Wash. Post, Oct. 13, 1996, (magazine) at 10.
FN255. Pear, supra
note 251, at 23.
FN256. E.g., Gregg A. Bilz,
The Medical Use of Marijuana: The Politics of Medicine, 13 Hamline J.
Pub. L. & Pol'y 117, 119 (1992).
FN257. James Bovard,
Feeding Everybody: How Food Programs Grew and Grew, 26 Pol'y Rev. 29 at
FN258. 42 U.S.C. SS 9601-75 (1994).
FN259. E.g., 18 U.S.C. S 115 (1994) (threats to families of
United States officials).
FN260. Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, S 702, 1996 U.S.C.C.A.N. (110
FN261. Id. (to be codified at 18
U.S.C. S 2332b).
FN262. Snapping someone's pencil, breaking
someone's arm in a bar fight, threatening someone with a knife, or burning down
an outhouse would have been considered "terrorist" offenses.
FN263. S 702, 1996 U.S.C.C.A.N. (110 Stat.) 1291 (to be codified at
18 U.S.C. S 2332b(b)(1)). If the jurisdictional predicate exists for any
offender, then jurisdiction extends to all principals, conspirators, or
accessories after the fact. Id. (to be codified at 18 U.S.C. S
FN264. Id. (to be codified at 18
U.S.C. S 2332b(b)(1)(C)-(F)).
FN265. E.g., 18
U.S.C. S 1114 (1994).
FN266. S 702, 1996 U.S.C.C.A.N. (110
Stat.) 1291 (18 U.S.C. S 2332b(b)(1)(A)). The statute cross-references a
different statute, which states: "'facility of interstate commerce' includes
means of transportation and communication." Id. (referring to 18 U.S.C.
FN267. Id. (to be codified at 18
U.S.C. S 2332b(b)(2)). This is slightly narrower than the original Clinton
proposal, which covered any offense that "affects commerce in any way" (not
necessarily interstate commerce), or if the criminal used "any facility used in
any manner in commerce," or if the victim was "traveling in commerce" (again,
not necessarily interstate). H.R. 896, 104th Cong., 1st Sess., S 101(c) (1995).
FN268. Under current interpretations of "commerce" and
"interstate commerce," very few crimes would not be federal. A current federal
arson statute makes it a crime to burn "any building used in an activity that
affects interstate or foreign commerce." 18 U.S.C. S 844(i) (1994). The statute
has been successfully applied to the burning of a trailer that had been attached
to an electrical hookup that drew power from an interstate power grid, and to
the burning of a building that was connected to interstate gas and telephone
lines. United States v. Ramey, 24 F.3d 602 (4th Cir. 1994).
FN269. S 702, 1996 U.S.C.C.A.N. (110 Stat.) 1291.
FN270. Id. (to be codified at 18 U.S.C. S 2332b(a)(1) &
FN271. The Clinton and Dole bills merely required
the Attorney General to certify in writing that the offense "transcended
national boundaries" and was intended to intimidate a foreign government or "a
civilian population, including any segment thereof." H.R. 896, 104th Cong., 1st
Sess. S 101(e) (1995); S. 735 104th Cong., 1st Sess. S 102(e) (1995). There was
no provision for review of whether the Attorney General's certification was even
remotely accurate. Id. The Attorney General certification was only
required for prosecution, not investigation, use of the military to
FN272. S 702, 1996 U.S.C.C.A.N.
(110 Stat.) 1291 (to be codified at 18 U.S.C. S 2332b(d)(2)).
FN273. Id. (to be codified at 18 U.S.C. S 2332b(c)). For
good measure, the bill forbids the judge from sentencing a defendant to
probation, even though probation was abolished for all federal offenses in 1984.
The sentencing provision is less drastic than
the original proposals, which imposed severe statutory mandatory minimum
sentences, no matter what the circumstances of the offense. As enacted, the law
states maximum penalties, but leaves the actual sentence imposed up to the
normal procedures for sentencing, as detailed in the United States Sentencing
The new law imposes a mandatory five year prison
sentence for any person who transfers "explosive materials," if the transferor
knows or has "reasonable cause to believe that the materials will be used in a
violent or drug trafficking crime." S 706, 1996 U.S.C.C.A.N. (110 Stat.) 1295
(to be codified at 18 U.S.C. S 844(o)). As with all mandatory minimums, there is
no consideration of any of the particular facts of a given case. The Supreme
Court has already held that "use" in a drug trafficking offense can include
trading a firearm for drugs. Smith v. United States, 508 U.S. 223 (1993). Thus,
a person who traded a five-dollar canister of blackpowder for use in an old-
fashioned muzzleloader, to his cousin for a five dollar bag of marijuana, would
be sentenced to five years in federal prison.
The original Dole proposal was for a ten year
mandatory minimum. The Dole bill would also have punished "conspiracies" the
same as actually committing the crime, so the most trivial facilitation of the
crime would also qualify for the mandatory minimum, as in the case of a teenage
girl who lied to her parents about what her friends were talking about, thereby
"conspiring" to facilitate the offense. FN274. S 702, 1996
U.S.C.C.A.N. (110 Stat.) 1291 (to be codified at 18 U.S.C. S 2332b(d)). The
proposal is a vivid illustration of the "slippery slope." The right to bail was
first undermined by Congress in a 1984 law which required the defendant in
certain drug cases to prove that he was eligible for bail. Id. (to be
codified at 18 U.S.C. S 3142(e)). Having enacted legislation on the basis that
bail is a statutory gift of Congress rather than an unalterable Constitutional
right, Congress faces ever-greater temptations to destroy the right entirely.
FN275. S 726, 1996 U.S.C.C.A.N. (110 Stat.) 1301 (amending
18 U.S.C. S 1956(c)(7) (1994)). FN276. H.R. 896, 104th Cong.,
1st Sess., S 603 (1995); S. 735, 104th Cong., 1st Sess., S 726 (1995).
FN277. H.R. 896, 104th Cong., 1st Sess., SS 101(e), 605 (1995); S.
735, 104th Cong., 1st Sess., SS 102(f), 512 (1995). The Dole bill also
authorizes wiretapping for felony offenses involving false identification
documents, passport and visa offenses, and alien smuggling. S. 735, S 512. FN278. H.R. 896, 104th Cong., 1st Sess., S 101(f) (1995); S. 735,
104th Cong., 1st Sess., S 102(f) (1995).
FN279. United States v. Reese, 92 U.S.
214, 221 (1875).
FN280. H.R. 2580, 104th Cong., 2d Sess.
FN281. United States v. Regan, 937 F.2d 823 (2d Cir.
FN282. L. Gordon Crovitz, Rule of the RICO
Monster Turns Against Its Master, Wall. St. J., Jan. 15, 1992, at A13.
FN283. National Org. for Women v. Scheidler, 510 U.S. 249
(1994); Angela Marie Hubbell, 'FACE'ing the First Amendment: Application of
RICO and the Clinic Entrances to Abortion Protestors, 21 Ohio N.U. L. Rev.
FN284. William O. Douglas, An Almanac of
Liberty 10, 113, 276 (1954).
FN285. H.R. 2580, 104th Cong.,
2d Sess., S 4 (1996).
FN286. Id. S 7.
FN287. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104- 132, S 808, 1996 U.S.C.C.A.N. (110 Stat.) 1310.
FN288. See infra
notes 321-24 and accompanying text.
FN289. The Clinton
bill proposed removing most of the limitations regarding use (including
overseas) of American trainers for foreign law enforcement, and removing the
restriction against American tax dollars being used to pay the salaries of
foreign police. H.R. 896, 104th Cong., 1st Sess. S 702 (1995). Currently,
federal employees are allowed to provide antiterrorism training to foreign
governments, but such training must relate to: "(i) aviation security; (ii)
crisis management; (iii) document screening techniques; (iv) facility security;
(v) maritime security; (vi) VIP protection; or (vii) the handling of detector
dogs, except that only short term refresher training may be provided under this
clause." 22 U.S.C. S 2349aa (1994). The Clinton bill attempted to eliminate all
these restrictions, thereby allowing training for anything to do with
"terrorism." H.R. 896, 107th Cong., 2d Sess. S 702 (1995). As noted previously,
the bill defines almost all property and violent crime as "terrorism."
Under former law, American training of foreign
police must take place "to the maximum extent possible, within the United
States." 22 U.S.C. S 2349aa-2(d)(2)(1994). This restriction too would have been
removed, and overseas training allowed for up to 180 days (up from the current
limit of 30, a limit which was added in 1990, the law beforehand having totally
barred overseas training). As enacted, the Antiterrorism Act removed many of the
Foreign Assistance Act's restrictions on training outside of the United States
and restated the doctrine that the Attorney General and the Secretary of State
are authorized to support law enforcement training in foreign countries. S 328,
1996 U.S.C.C.A.N. (110 Stat.) 1257 (amending 22 U.S.C. 2349aa- 2(d)(1994)).
FN290. "Violations of this section shall be investigated by
the Attorney General. Assistance may be requested from any Federal, State or
local agency, including the Army, Navy, and Air Force, any statute, rule, or
regulation to the contrary notwithstanding." S. 735, 104th Cong., 1st Sess., S
102 (1996); H.R. 896, 104th Cong., 1st Sess., S 101 (1996).
FN291. S 401, 1996 U.S.C.C.A.N. (110 Stat.) 1257. "National security"
as statutorily defined does not mean what most people would consider to be
genuine national security, such as protecting the lives of undercover CIA
agents, or preventing an attack on American military facilities. Rather,
"National security . . . means the national defense and foreign relations of the
United States." 18 U.S.C. S 1(b) (1994). This expansive definition is explicitly
invoked in the Dole bill. S. 735, 104th Cong., 2d Sess., S 301(a)(3) (1996).
FN292. David Cole, The Omnibus Counter-Civil Liberties
Act, Legal Times, March 13, 1995, at 31.
FN294. H.R. 896, 104th Cong., 2d Sess., S
503(a) (1996); S. 735, 104th Cong., 2d Sess., S 301(b) (1996).
FN295. H.R. 896, 104th Cong., 2d Sess., S 201, 502(c) (1996); S. 735,
104th Cong., 2d Sess., S 301(e) (1996). The Dole bill contained the additional
requirement that the national security danger must arise out of the prospect
that normal hearings "would disclose classified information." Id. FN296. H.R. 896, 104th Cong., 2d. Sess., S 201, 502(e), (j) (1996);
S. 735, 104th Cong., 2d Sess., S 301(f) (1996).
401, 1996 U.S.C.C.A.N. (110 Stat.) 1258.
Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1066-70 (9th Cir. 1995).
FN299. Id. at 1067.
FN300. Matthews v. Diaz, 426 U.S. 67
(1976). There are literally millions of aliens within the jurisdiction of the
United States. The Fifth Amendment, as well as the Fourteenth Amendment,
protects every one of these persons from deprivation of liberty without due
process of law. Even one whose presence in this country is unlawful,
involuntary, or transitory is entitled to that constitutional protection.
Id. at 77. Significantly, the Supreme Court has explained that "the
people" (used in the First Amendment right of assembly, the Second Amendment
right to arms, the Fourth Amendment right to freedom from unreasonable search
and seizure, and the Ninth Amendment reservation of rights) is "a term of art"
which refers to members of the American community (and thus, not to foreign
citizens living in their foreign homeland). United States v.
Verdugo-Urquidez, 494 U.S. 259, 265 (1990). The obvious implication of
Verdugo is that if "the people" is a term of art referring to a limited class of
people, then the Constitution's use of broader language--such as "person" in the
Fifth Amendment--applies to a broader class of people. Under Verdugo, it is
difficult to argue that most Constitutional protections which refer to "persons"
do not, at the very least, apply to legal resident aliens.
FN301. Rafeedie v. INS, 880 F.2d 506, 516 (D.C. Cir. 1989). See
also Kwong Hai Chew v.
Colding, 344 U.S. 590 (1953) (holding INS may not rely on "secret evidence"
in summary exclusion procedure against returning permanent resident alien).
FN302. See, e.g., Gannett Co., Inc. v. DePasquale,
443 U.S. 368, 387 n.18 (1979); In re Oliver, 333 U.S. 257, 271 n.22 (1948);
note 284, at 144 (describing the 1603 execution of Sir Walter Raleigh for
treason, based on accusation of a witness who was never called to testify). FN303. Stephen Trott, U.S. Dept. of Justice, Prosecution of Public
Corruption Cases (Feb. 1988), at 117-18 (criminals are "likely to say and do
almost anything to get . . . out of trouble. . . ." Informants are not averse to
"lying, committing perjury, manufacturing evidence, soliciting others to
corroborate their lies with more lies . . . many are outright conscienceless
sociopaths to whom 'truth' is a wholly meaningless concept.") See also United
States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993) (using informants is a
FN304. United States ex. rel. Knauff v.
Shaughnessy, 338 U.S. 537 (1950).
generally Ellen Knauff, The Ellen Knauff Story (1952).
FN306. The Attorney General in consultation with the Secretary of
State would simply need to convince potential deportation destinations to state
that they do not wish to receive the alien. S 401, 1996 U.S.C.C.A.N. (110 Stat.)
FN307. H.R. 896, 104th Cong., 2d Sess. S 301(a)
(1996); S. 735, 104th Cong., 2d Sess., S 401(c) (1996).
FN308. Monroe Freedman, The FBI Goes Undercover, Legal
Times, June 12, 1995, at 41. FN309. S 221, 1996 U.S.C.C.A. (110
FN310. Id. SS 811-819.
FN311. The Declaration of Independence, para. 1 (U.S. 1776).
FN312. S 704, 1996 U.S.C.C.A. (110 Stat.) 1294.
FN313. Yitzhak Rabin, Menachem Begin, and Chaim Herzog were among the
revolutionaries who fought in the violent guerrilla war which eventually forced
the British to withdraw from Palestine, thereby allowing the creation of the
state of Israel. Mr. Begin belonged to the Irgun, a group which bombed the King
David Hotel, killing scores of British diplomats and soldiers. See
generally J. Bell, Terror Out of Zion: The Irgun, Lehi, Stern, and the
Palestine Underground, 1929-1949 (1976).
FN314. Ruby Ridge
Report of the Subcommittee on Terrorism, Technology and Government Information
of the Senate Judiciary Committee, at 5 (1995).
police actions shown on Fox Network's show COPS is widely used by law school
instructors as an exemplar of what the Bill of Rights prohibits. Yet, what is
shown is tame compared to what is left out. It amazes the authors that the
police officers shown appear to have no idea that their conduct is illegal.
FN316. This is, of course, not to say that all or even a
majority of individual police officers are acting improperly, but it is clear
that some, perhaps, many are and that many agencies by not firmly disciplining
those who cross the line are deliberately creating an atmosphere that fosters
such conduct. The Senate Committee severely castigated the FBI, America's
premier law enforcement agency, as well as the Bureau of Alcohol, Tobacco and
Firearms and the United States Marshals Service in this regard. See Hearings supra
FN317. Reforms at the federal level, of
course, should parallel similar reforms at the state and local levels, where
most police activity takes place.
FN318. Kopel participated
in the drafting of the letter, which includes a variety of proposals he had
offered in other writings.
FN319. Such punishment would not
be applicable to prosecutors who bring a test case, seeking to overturn existing
FN320. Although the joint letter does not
precisely state, law enforcement should then use the expert in deciding how to
FN321. If Tennessee v. Garner, 471 U.S.1
(1985) (barring use of deadly force for fleeing suspects of non-violent crime)
were over-ruled, the policy would have to be re-examined.
FN322. Cf. Franks v. Delaware, 438 U.S.
FN323. Hearing on the Nature, Extent, and
Proliferation of Federal Law Enforcement Before the U.S. House Subcomm. on
Crime, Nov. 15, 1995 (statement of Dick Thornburgh); id. (statement of
FN324. S 806, 1996 U.S.C.C.A.N. (110 Stat.)
FN325. U.S. Const. art. 1, S 8 cl. 6.
FN326. Id. cl. 5.
FN328. Id. at art. I. S 8, cl. 18.
FN329. Barrett v.
United States, 423 U.S. 212 (1976); Perez v. United States, 402 U.S.
FN330. Contrast, for example, the Court's
1915 opinion upholding the Harrison Narcotics Act (controlling opiates), in
which the court, expressing "grave doubt as to its constitutionality," construed
the Act "as a revenue measure" in order to uphold it, with the Court's opinion
six years later in a drug prohibition case, in which the court asserted without
support that congressional power to prohibit dangerous drugs "is too firmly
established to be called into question." United States v. Moy, 241 U.S.
394, 394 (1915); Whipple v.
Martinson, 256 U.S. 41, 45 (1921). Most of the court's criminal
jurisprudence since 1921 has, unfortunately, followed Whipple's vacuous
approaching of implicitly assuming a general congressional power to create
criminal law, as some sort of penumbra from other congressional powers. The
effect, of course, is to undermine the Constitutional system of granting
congress only limited, enumerated powers, rather than authority to legislate at
FN331. Shays' list of grievances for which the
people, "now at arms," demanded reforms dealt mostly with taxes and other
financial issues. There were also complaints about the suspension of habeas
corpus and the "unlimited power" granted to law enforcement officers by a Riot
Act. The last of eight reforms the Shaysites demanded was "Deputy sheriffs be
totally set aside as a useless set of officers in the community . . ." Letter
from Thomas Grover to the Hampshire Herald (Dec. 7, 1786), in Tree of Liberty,
at 71-72 (1986). Styling themselves as "regulators," the Shaysites were
insisting that law enforcement be returned to local, community control. Alden T.
Vaughan, The "Horrid and Unnatural" Rebellion of Daniel Shays, American
Heritage, June 1966: 50-53, 77-81.
FN332. Case of Fries, 9
F. Cas. 924 (C.C.D. Pa. 1800) (No. 5, 127). Fries was eventually pardoned. Tree
of Liberty, supra
note 325, at 95.
FN333. Among the concerns of the
Hartford Convention was the President's determination to subject New England
militias to federal control.
FN334. Wrote one author:
(W)hen they'd gathered to frame the
Constitution, they did so in a country full of Tory infidels, just after a
revolution, on a continent where several powers vied for rich territory, in a
word full of terrorists and saboteurs, in a nation very, very wobbly on its
legs. Yet they counted the security of this infant nation less important than
the freedom of its citizens--and so they honored the rights of those citizens
to speak and think and worship and freely trade, and the right to keep weapons
as sophisticated as anything the military could acquire for itself, even to
the point of buying a cannon and positioning it on one's front lawn.
Denis Johnson, The Militia in Me,
Esquire, July 1995, at 44.
Decency, security and liberty alike demand
that government officials shall be subjected to the same rules of conduct that
are commands to the citizen. In a government of laws, existence of the
government will be imperilled if it fails to observe the law scrupulously. Our
Government is the potent, the omnipresent teacher. For good or for ill, it
teaches the whole people by its example. Crime is contagious. If the
Government becomes a lawbreaker, it breeds contempt for law; it invites every
man to become a law unto himself; it invites anarchy. To declare that in the
administration of the criminal law the end justifies the means . . . would
bring terrible retribution.
Olmstead v. United States, 277 U.S. 438, 485
(1928) (Brandeis, J., dissenting).
FN336. Writes Joseph
McNamara, a research fellow at the Hoover Institute, and retired chief of police
of San Jose:
It would be wise to temper our revulsion at
the killers responsible for the Oklahoma City murders and our sorrow for the
victims with the realization that during this century the greatest terrorists
have been governments like Nazi Germany, Stalin's Soviet Union, Mao's China,
and Pol Pot's Cambodia. They murdered millions and millions of their citizens
in the name of providing security. . . .
(T)he most reliable way to prevent terrorism
is by conducting government in a manner that wins the public's trust and
destroys the appeal of the lunatic fringe. It would be ironic if
anti-terrorist legislation helped destroy the protections of our Constitution
and turned the delusions of paranoids into reality.
Joseph D. McNamara, Bombs and the Bill of
Rights, Wall St. J., May 5, 1995, at A12.
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