Bob Barr, Civil Libertarian

The right wing of the ACLU

After entering the House of Representatives in 1995, Georgia Republican Bob Barr acquired a reputation as one of the most conservative members of Congress. It was Barr who in 1996 wrote the Defense of Marriage Act, which said states didn't have to recognize gay marriages performed in other states; it was Barr who protested when he learned the military allowed soldiers to practice Wicca. A former federal prosecutor, a firm social conservative, and a strong supporter of the War on Drugs, Barr doesn't fit most people's image of a civil libertarian.

But in his eight years in Congress (he failed to win re-election in 2002), Barr was one of Washington's loudest critics of the federal government's abuses of power, taking the lead in investigating the raid on Waco and in opposing Bill Clinton's efforts to undermine due process in terrorism cases. Since leaving Congress, Barr has taken an advisory post with the American Civil Liberties Union (ACLU) and started writing a column for Atlanta's alternative weekly Creative Loafing—neither ordinarily a haven for Republicans. While many on the right have fallen behind the Bush administration even as it betrays their purported principles, Barr represents another set of conservatives' growing discomfort with the administration's erosion of individual liberty.

Associate Editor Jesse Walker talked with Barr in September.

Reason: In Creative Loafing, you complained that "the attorney general spends his time and prestige traveling the heartland to sow fear and to endeavor to limit public discourse over the most basic of our freedoms." When the Senate confirmed Ashcroft, did you ever expect to be describing him like that?

Bob Barr: No. This has been something that I never would have anticipated two and a half years ago.

Reason: Do you regret voting for the USA PATRIOT Act?

Barr: I do. I was hoping at the time that it would not be used as a floor but as a ceiling. But it's been a taking-off point for expanded authority in a number of areas. Perhaps most important is the fact that the administration seems to be pushing its application as broadly as it can in nonterrorism cases. And despite the assurances by the administration that Section 215, which relates to obtaining records from libraries and other repositories, is not being used, the fact is it is being used.

It has become much more problematic because it's part of a growing list of privacy-invasive government programs, such as TIA [Terrorism Information Awareness]. They changed the name [from Total Information Awareness] and John Poindexter has left the Defense Department, but I've seen nothing that indicates to me proof that TIA is absolutely dead with a stake driven through its heart and burned and its head cut off, which is how Steve Forbes used to describe what we needed to do with the IRS. So my presumption is that it in some form or fashion is continuing.

We have now the emergence of the CAPPS II system—the airline passenger profiling system. We have, apparently, a number of state efforts that are being funded by the federal government, such as the one that just came to light called the Matrix system, down in Florida, where the feds are providing grant monies to state agencies to set up programs similar to TIA.

Reason: Isn't there a continuity between what Janet Reno was doing and what John Ashcroft's doing now? A lot of these measures are warmed over from the Clinton years.

Barr: I think that's a very accurate observation. It's one that I and a number of others had when we first saw the initial version of the law. It wasn't called the PATRIOT Act originally—that was some acronym that someone came up with a few weeks later—but the first version of what later became the PATRIOT Act was very familiar to a number of us on the Hill. We had seen many of these provisions submitted previously by the Clinton administration.

Reason: A lot of people were surprised when you took a post with the ACLU, but you actually cooperated with them going back at least to the early Clinton years.

Barr: It started with the initial anti-terrorism bill in '96. That probably was the first time that we recognized specifically that we had some very fundamental common interests. We worked together after that on several other pieces of legislation, such as the asset forfeiture reform, the national driver's license, and the Know Your Customer program.

I had always known them to be a very, very consistent advocate for civil liberties, but we disagreed on so many issues that I never really sought them out in terms of an ally. But shortly after I came up to the Congress, I realized—and I think they realized the same thing—that the size of government and the expansiveness of government power were creating a smaller sphere of personal liberty and personal privacy, and that we needed to find allies in this fight, and work together on those issues in which we agree and agree to disagree on the other issues.

Reason: Have you caught much flak from other conservative Republicans for cooperating with them?

Barr: To some extent, but the reaction generally has been positive. Most people, when they stop to think about it, realize that there is a great commonality of interest between liberals and conservatives on these issues.

Reason: You started out sympathetic to civil libertarian concerns about trying terrorists before military tribunals, but ended up endorsing the idea. What changed your mind?

Barr: The administration, in that instance, seemed to listen to a number of the criticisms that we made. It made some fairly substantial changes to the way they were going to carry out the tribunals.

There are two concerns that I continue to have. One is that the administration can change its mind at any time. You can't say, "Hey, this is a great idea," and just walk away from it. You've got to monitor it and make sure nobody backslides. The second is that I don't think we've seen a consistent standard exercised by the administration in deciding when to use military tribunals. That's bothersome.

If you use it in an appropriate setting—a military setting, in the context of an active conflict—and you have an enemy combatant, a military tribunal with its accelerated procedures lends itself to a wartime scenario. But the government really needs to have an articulated, consistent standard. You have John Walker Lindh, who I consider to be a poster boy for a military tribunal proceeding, tried in our civilian courts. And then you have this other fella, Jose Padilla, being tried in a military tribunal. I think his situation is much more appropriately handled in the civilian courts.

And then you have the Zacarias Moussaui case, where because the government doesn't seem to be getting its way with regard to access to witnesses by the defendant, they indicate, "Well, if we don't get our way, we'll just go ahead and try him in a military tribunal." I don't think that's appropriate.

Reason: In another one of your Creative Loafing columns, you wrote that neoconservatives want to "rely on the raw and aggressive use of military power to a unique degree." Where have they called for using military power where you'd prefer not to use force?

Barr: One place where this already seems to be coming back to haunt us is the Israeli call—temporarily suspended, but it could be resurrected—to go after Arafat and take him out, to kill him. It's somewhat inconsistent for us to counsel the Israelis not to do that when that's precisely the tack we seem to take in Iraq. This seems to open, to some extent, perhaps, a can of worms—where other nations will take the same standard and we might not like it.