Strange Bedfellow

Clinton Turns Yellow

The latest evidence that the president is lousy on civil liberties.

By Jacob Weisberg

(I,531 words; posted Friday, Oct. 25; to be composted Friday, Nov. 1)

In a small office in the West Wing of the White House, next to Press Secretary Mike McCurry, sits an intense, wiry political operative named Rahm Emanuel. Though he is not among President Clinton’s best-known advisers, Emanuel may be the administration’s most diabolically effective tactician. On the issue of crime, in which he mostly specializes, Emanuel has gotten celebrated victims like James Brady and Marc Klaas to appear in Democratic TV spots. He is also largely responsible for moving the Clinton campaign beyond mere “rapid response” to pre-emptive strikes–engineering, for instance, Clinton’s endorsement by the Fraternal Order of Police on the day Bob Dole was set to launch a major attack on the president’s crime record.

So it wasn’t hard to guess the origin of the president’s latest “little things” proposal: to require drug testing of teen-agers who want a driver’s license. Dole’s attack on Clinton for presiding over an increase in drug use by young people had the potential to bite; by tossing out the drug-testing idea, Clinton could claim to be doing something about the problem. “Our message should be simple,” Clinton said in his Saturday radio address. “No drugs or no driver’s license.”

Clinton’s “simple” proposal might be better described as simple-minded, not to mention impractical, useless, and offensive to notions of privacy and constitutional rights. But the truth is that though Emanuel pushed the proposal–along with domestic policy adviser Bruce Reed–it can’t be blamed on advisers, or even laid at the doorstep of “election-year politics.” No one had to work very hard to talk Clinton into accepting yet another abridgment of individual freedom for the sake of political expediency. What the drug-testing proposal should remind us is not just that Clinton is an opportunist, who, with a 20-point lead, is now pandering beyond the call of victory. It should also put us on our guard about a man who, if he is a liberal at all, is a liberal of an odd sort: One with no instinctive regard for civil liberties or the Bill of Rights.

Clinton’s abysmal record on liberty goes back to his days as governor of Arkansas. The low moment was in 1989, when, under no pressure from anyone, he proposed a law to ban “desecration” of both the American and Arkansas flags. “It was totally gratuitous,” says Joseph Jacobson, who was director of the state chapter of the American Civil Liberties Union at the time. Under a then-recent Supreme Court decision, “It wasn’t even in doubt that it was unconstitutional.” Clinton seemed more First Amendment-friendly after he was elected president, when he reversed himself and opposed amending the Constitution to ban flag burning. But that stance turned out to be a false positive for the president on civil liberties. Since then he has consistently insulted both the First and the Fourth amendments. (Some would say he has disregarded the Second Amendment, too. But that’s a different discussion.)

Clinton’s First Amendment slovenliness first became apparent in 1993, when he boxed his own solicitor general on the ears for having been on the wrong side in the Knox case, in which a graduate student at the University of Pennsylvania was convicted for possessing videotapes of teen-age girls wearing bikinis and underwear. When the Supreme Court overturned the graduate student’s conviction, Clinton joined in the chorus condemning the court’s decision.

You might grant Clinton that one as a necessary surrender–no politician in his right mind wants to be allied with child pornographers. But what Clinton did on the Communications Decency Act is truly unforgivable. When Sen. James Exon of Nebraska introduced a foolish bill which would have criminalized the transmission of “indecent” or “patently offensive” material via the Internet, the administration backed it.

It was Republicans, more than Democrats, who tried unsuccessfully to derail the CDA in Congress. One oddity of this political moment is that while our Democratic president has no special love of civil liberties, civil libertarian sentiment is growing in the unlikely soil of the GOP–where vilification of the American Civil Liberties Union has been campaign boilerplate, at least until recently. This surprising development is partly a matter of pandering to anti-government paranoids in the gun lobby and militia movement; partly anti-Clinton opportunism; partly explained, at least in the CDA case, by the interests of business; but partly, perhaps, principled.

In the CDA debate, Republican Rep. Christopher Cox of California led the push for an alternative; both Newt Gingrich and Majority Leader Dick Armey supported Cox’s position. But it was left to a three-judge U.S. Court of Appeals panel in Philadelphia to throw out the law, calling it “profoundly repugnant.” Did Clinton learn his lesson? Hardly. The administration is appealing the decision to the Supreme Court. And Clinton recently signed an immigration bill giving the government the power to exclude anyone who advocates “terrorist activity.” This threatens to become a modern version of the McCarran-Walter Act, which was used during the Cold War to exclude lefty writers and intellectuals.

On Fourth Amendment rights, Clinton has been no better. In his crime bill, passed in 1994, he went further than any Republican president would have dared to restrict habeas corpus, the writ by which state prisoners, including those on death row, can get their cases reviewed by federal courts. Under the immigration bill, Clinton directed the Immigration and Naturalization Service to deport asylum seekers without giving them any opportunity to appear before a tribunal. And in his most recent anti-terrorism proposal, which he tried to wing through Congress in the wake of the TWA 800 disaster, Clinton requested vast new wiretapping powers for the FBI. Once again, it was primarily a few liberty-loving Republicans who restrained him.

The drug-testing proposal may be Clinton’s most obnoxious gesture of all. In the other instances, there is at least a trade-off posited between individual rights and competing public purposes, like the protection of children. In the case of drug testing, however, the proposed warrantless blanket invasions of privacy serve only a symbolic value. A scheduled drug test is easily beaten; you just need to stay clean for a short time before the test. Then you can celebrate your license by getting high. In answer to the objection that urine tests reveal only very recent use of hard drugs, Bruce Reed says that before long, drug-testing technology will have advanced from urine to hair tests, which may reveal chemical traces for up to a year. But here the insult to civil liberties becomes staggering. The explicit purpose becomes finding out who among the young has ever indulged in the kind of experiment that both members of the Democratic ticket have acknowledged participating in themselves. Clinton made this purpose clear in his speech Thursday at Birmingham Southern College, where he said the reason for the tests was to “to find those kids and help them before they’re in trouble and it’s too late.”

That Clinton simply has no conception of why such an intrusion might be worrisome was evident from that speech, as it was from his radio address, in which he compared his proposal to the requirement that parolees take drug tests. Parolees are convicted criminals. People applying for driver’s licenses aren’t even suspects of anything. It has been suggested that Clinton limited his idea to under-18s in order to affront only people who cannot vote. The more likely reason, however, is that if the idea is ultimately judged constitutional–a big if–this will only be because it applies to those who do not have the full legal rights of adults.

On top of this sorry civil-liberties record are the misuse of the FBI in the White House’s own original travel-office investigation, and what has come to be known as Filegate. No one has yet traced these abuses to the president himself. But there is something to the argument that his cavalier attitude about individual rights helped to create an atmosphere in which thuggish members of his administration could regard invasions of privacy very lightly. Dole is hardly better than Clinton when it comes to the Bill of Rights, and there are lots of Republicans, like Bob Barr of Georgia, who decry only those incursions that perturb the National Rifle Association. But if Clinton sets the new Democratic standard, the day may not be far off when some Democratic candidate accuses a Republican opponent of being a card-carrying member of the ACLU–and the Republican proudly admits it.