Copyright (C) 1996 Oklahoma City University; David B. Kopel, Joseph Olson.

Cite as: 21 Okla. City U. L. Rev. 247.
This 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.

PREVENTING A REIGN OF TERROR:

CIVIL LIBERTIES IMPLICATIONS OF TERRORISM LEGISLATION

David B. Kopel [FNa] Joseph Olson [FNaa]

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 terrorism.

All the horrors of the reign of terror were based only on solicitude for public tranquility. [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 bombing.

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 Part 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 VI. 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 VIII.

I. Background

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 Present Situation

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 slavery.

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 unacceptable. [FN19]

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 politics. [FN21] 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:

*257

Terrorist Incidents in United States

    Of these incidents, only one (the 1993 World Trade Center bombing) was classified as international in origin. [FN28]

    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.

*258

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 offense. [FN35] 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 powers.

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 Fein. [FN44] 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. [FN46]

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] *262

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 prison. [FN53]

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.

II. Article One: Limits on Use of the
Military Against Citizens

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] *264

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 erased.

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, provides:

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] *265

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 comitatus [FN64]--that 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] *267

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 Comitatus Act

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] *268

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 Enforcement

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 [FN80] 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."

III. First Amendment

A. The Limits of Political Dialogue

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 system." [FN87] 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 system." [FN90] *273

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] *274

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] *277

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. [FN108] 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 law.

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 terrorists. [FN111] 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 law. [FN112]

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 Palestinian refugees.

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." [FN120] 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]

IV. Second Amendment

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 people. [FN136] 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 context.

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. [FN155] 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 Rebellion." [FN162] 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 gunpowder. [FN166] 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 away." [FN168]

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] *296

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, [FN181] 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 [FN184]--likewise 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 Independence. [FN188]

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." [FN191] 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 anti-Semites. [FN192]

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 anti-Semitism. [FN194] 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 convinced." [FN201] 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 States. [FN204] *303

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] *304

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 written." [FN208] 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 either. [FN212]

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 own. [FN213]

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 itself. [FN214]

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 advocates. *308

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 anything. [FN216] 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 the rest.

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] *311

V. Fourth Amendment: Wiretapping
and Other Expanded Surveillance

A. Wiretapping

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" investigations. [FN226]

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 people.

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] *312

Past use of wiretap powers does not lay a strong factual foundatio