WASHINGTON -- What has gotten into my old pen-pal, Sen. Patrick Leahy? As our wartime president George W. Bush asks for more stringent investigative and prosecutorial powers to deal with today's unprecedented threat to American security, Senator Pat has become a strict civil libertarian.
Specifically, the president wants to haul those non-citizens suspected of terrorism before military tribunals. Senator Pat is shaken. He, according to other Democrats on his Senate Judiciary Committee, is now apprehensive that the administration's pursuit of terrorists is becoming a threat to "civil liberties."
Is this the same Senator Pat who was writing me last spring? In those days, he was demanding that I send him all manner of private papers from The American Spectator's board meetings. Senator Pat wanted to scotch the nomination of The Spectator's lawyer and former board member, Theodore B. Olson, as solicitor general.
William Safire, The New York Times' stalwart libertarian columnist, charged the senator with "trampling on the First Amendment." He urged the senator to lay off a little magazine of opinion and not persist in "waving a vacuum cleaner at an editorial office."
"Come back to the Constitution, Pat," Safire wrote his friend. The "vacuum cleaner" reference adverted to the letter Senator Pat wrote me demanding that I "provide copies of the internal audit, board books and minutes ... and all notes and records of board discussions." In the prosecutorial business, defense lawyers call that a "fishing expedition," and because of such rapacious demands, those targeted by the likes of Senator Pat are left with large legal bills if we choose to defend ourselves and the First Amendment. Senator Pat does have a puckish wit. Across the bottom of his letter he scrawled to me, "All the best."
Safire called Senator Pat's demands an "outrageous intrusion" on First Amendment rights. Laura Murphy of the American Civil Liberties Union's Washington office, upon seeing Senator Pat's letter to me, said, "The ACLU does not think that a newspaper or a magazine should be compelled by Congress to turn over anything about their editorial process."
Yet today's vigilant watchdog of the rights of suspected terrorists persisted. Senator Pat warned me that "should that request be declined, the (Judiciary) committee as a whole should take appropriate action to obtain the information." To these demands I practiced a resistance beyond passive resistance. I practiced amused resistance and laughed.
Today's terrorists are not so civil. So why is Senator Pat extending solicitude to them that he did not extend to peaceful American writers? It all smells like political partisanship to me. Would Senator Pate be opposing military tribunals if a Democrat were in the White House? Would he have opposed President Franklin Delano Roosevelt when he resorted to military tribunals during World War II?
Frankly, Senator Pat strikes me as simply a short-term exploiter of the Constitution. Though America is at war with an aggressor who has no regard for the rules of war and even now could be casing facilities within our borders for deadly strikes against innocent Americans, Senator Pat is playing politics as usual and rendering suspect the cause of civil liberties.
Thankfully, there are some long-term friends of civil liberties watching out for American constitutional process -- for instance, Rep. Bob Barr. He is skeptical of the use of military tribunals against terrorists caught in the United States because he believes that until a declaration of war is brought against them they are protected by the Bill of Rights. He would have the president declare war so that the government could bring suspected terrorists before military tribunals with no damage to the Bill of Rights.
That is how the Roosevelt administration did it. One never knows when an irresponsible politician might come along and misuse government power against a private citizen for political advantage, right Senator Pat?
Barr fears what Senator Pat gives not a hoot about -- dangerous precedent. He fears that if government is allowed to act without constitutional basis, the rule of law that safeguards all citizens is weakened. It is not a question of limiting government but of preserving the rule of law. It is respect for the rule of law that has made the American democracy the fairest government in he world.
Leahy has frivoled with it. Barr has taken the rule of law seriously. The administration should see to it that military tribunals are established with the utmost respect for the Constitution's requirements. The Roosevelt administration did just that.