Washington Notebook

From Charles Bierbauer

Washington (May 6) -- Two weeks after the Oklahoma City bombing President Clinton is still mad. He's mad at those civilian militia marching around with guns and muttering about the government and mad at those radio talk show hosts who encourage them.

"If you say violence is an acceptable way to make change, you are wrong," the President said in a Michigan State University commencment address Friday. "If you say the government is in a conspiracy to take your freedom away, you are just plain wrong."

The Michigan Militia is one such paramilitary group under scrutiny in the days since the Oklahoma City bombing because prime suspect Timothy McVeigh, though not a member, was linked to it.

President Clinton took an unusually tough line to warn those in such militia not to take the law into their own hands. Most, he said, had never broken the law. But there are those who have or who contemplate it out of anger with the U.S. government. He suggested the irony of their protest. "This is a very free country. Those of you in the militia movements have broader rights here than you would in any other country," Clinton said.

There may be more motivation here than just the President's own anger or frustration. He is seeking tougher legislation against terror--his Omnibus Counter-Terrorism Act of 1995--proposed even before 165 lives were claimed in Oklahoma. That would include greater latitude for law enforcement officers to surveil, investigate and infiltrate organizations that advocate violence. They would not have to have committed a crime for the FBI or other investigators to initiate a preliminary investigation.

"Every time something like this happens, we become a less permissive society and we don't forget the lessons quickly," says Georgetown Law School constitutional scholar Paul Rothstein.

Rothstein believes there will be some curtailment of constitutionally provided liberties as a result.

The guns and camouflage movement marches under the banner of the Second Amendment:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

It may be the most controversial amendment in the Bill of Rights which the founding fathers tacked onto the Constitution.

"What was contemplated was muskets and whatever they used at that time, not machine guns and explosives and cannons and sawed-off shotguns," Professor Rothstein says.

There are two common and competing interpretations of the amendment. Some say its writers meant organized militia such as the National Guard. Others say they meant each and every American has a right to carry a gun.

Past Supreme Court decisions have not cleared this up, though the court has allowed gun regulation. In light of the Oklahoma attack, Rothstein believes the current Supreme Court, though conservative, might be inclined to narrow the Second Amendment right further.

But probably not the First Amendment:

"Congress shall make no law...abridging the freedom of speech."

"Stand up for freedom of speech," President Clinton told students at Iowa State University a week ago.

What he had in mind was fighting free speech with even more, hopeful of drowning out what the President considers incitement of anti-government fervor from conservative radio talk show hosts.

"They spread hate. They leave the impression that, by their very words, that violence is acceptable," Clinton said in Iowa.

Later he singled out G. Gordon Liddy, the Watergate conspirator of Nixon days who now hosts a show from Fairfax, Virginia, just outside Washington.

Liddy invited the press into his studio to defend his comments about law enforcement agencies.

"As the Bureau of Alcohol, Tobacco and Firearms has sometimes done, they simply smash into the house shooting. Then your only option is to return fire. Other than that, you die. And it seems to me I've just been remarking the obvious," Liddy explained.

"Legally speaking, he and others have not committed a crime," says law professor Rothstein. "The standard rubric is that speech can only be punished if there is an imminent danger, a clear and present danger of someone actually, right now, taking arms and breaking the law."

But such speech can provide grounds for investigation even now if the law were not to change.

"We are not here seeking new powers," FBI Director Louis Freeh told a House Judiciary Committee hearing this week. "We are seeking the resources and the tools with which to use the authority which we already have."

The president's bill would, though, add one thousand investigators solely to deal in counter-terrorism. Most would be in the FBI which would also gain supervision of a new Counter-Terrorism Center to coordinate all agencies involved. The package would cost $1.2 billion over the next five years. Members of Congress are expected to find the money even in tight budget times.

"We must not dawdle or delay," the President insists. "Congress must act and act promptly."

The Republicans who now control Congress said they'd do it by Memorial Day.

House Speaker Newt Gingrich, after a White House meeting, called it a "serious commitment by people who are pretty serious constitutional scholars to write a bill that protects our civil liberties while also protecting us."

But some see a bill that opens the way for more federal wire-tapping and opens up financial records as raising old fears.

The Fourth Amendment guarantees:

"The right of the people to be secure...against unreasonable searches and seizures, shall not be violated."

"I can remember when the NAACP was a suspect organization with a high priority code inside the FBI, because somebody thought that they might be up to something in the struggle for human rights and civil rights for all Americans," Rep. John Conyers, a Michigan Democrat on the Judiciary Committee, told FBI director Freeh at the hearing.

It was FBI abuses of the 60's and 70's against civil rights and anti-war protestors that led to strict guidelines laid down in the 70's and 80's. Those Justice Department guidelines were under review before the bombing as a matter of clarifying what law enforcement officers could and could not do.

"I assure you, we have no desire to cross the line, and to investigate constitutionally protected activity," Deputy Attorney General Jamie Gorelick testified. "But constitutionally protected activity cannot shield from view activity which would become a terrorist act."

In the anger and anxiousness rattled to life by the Oklahoma City bombing, Congress is not likely to reject a counter-terrorism measure. And while it may do no harm, Professor Rothstein offers a final caution.

"One really should not be revising basic laws in a moment of crisis or panic because one is likely to get the emphasis a little bit out of kilter," Rothstein says.

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