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Opinion: Former Congressman on Wiretapping

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Bob Barr
Fmr. Ga. Congressman and Chairman, Patriots to Restore Checks and Balances (PRCB)
Wednesday, November 1, 2006; 1:00 PM

Former Congressman Bob Barr (R-Ga.), chairman of Patriots to Restore Checks and Balances (PRCB), was online Wednesday, Nov. 1, at 1 p.m. ET to discuss wiretapping and surveillance issues and the controversy over executive powers.

The transcript follows.

Bob Barr represented the 7th District of Georgia in the U. S. House of Representatives from 1995 to 2003, serving as a senior member of the Judiciary Committee, as Vice-Chairman of the Government Reform Committee, and as a member of the Committee on Financial Services.

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Columbia, Md.: When President admitted that the CIA had been running secret prisons overseas he, in effect, admitted that he had violated provisions of the Geneva convention which explicitly prohibit keeping prisoners hidden from international scrutiny. Since the provisions of the Geneva Convention are codified in U.S. law, was he not admitting to violating U.S. Federal Statutes. Add this to his violation of the FISA law, his use of warrant-less wiretaps of U.S. citizens, the suspension of Habeas Corpus (before the Republican Congress rubber-stamped his actions) the use of torture (as defined by the international community, not his White House lawyers) and the denial of civil and human rights to citizens and non-citizens.

What is your reaction to the total lack of oversight by both the House and the Senate controlled by your own party? What actions do you think they should have taken?

Bob Barr: I am deeply disturbed by the disdainful manner in which the Administration has sloughed off concerns regarding violations of law, constitutional limitations, and privacy rights of American citizens. Equally disturbing is the utter lack of meaningful oversight by the Congress.

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Orono, Maine: Hi. My friends say I'm paranoid because of my fear of Mr. Bush's ability to say "any person" can be detained as a terrorist without habeas corpus and because he has taken over control of the National Guards (getting rid of posse comitatus) and that there are martial law directives in place and on and on. I'd very much appreciate your take on all of this. It makes me very sad for our democracy (what is left of it). Thank you.

Bob Barr: I share your concern and have been spending a great deal of my time since leaving the Congress in 2003 working to rectify the imbalance in Executive branch power.

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Amado, Ariz.: I am a life-long Republican, but I am fearful that the current administration, in the name of preserving our freedom, is taking away the very things that have made this country a special place. Isn't there a way to be safe and Constitutionally secure at the same time?

Bob Barr: Absolutely. We should never be asked to sacrifice our fundamental civil liberties, including our right to privacy as founded in the Fourth Amendment for example, in the name of "making us safer." The government has had, even before 9-11, plenty of power to protect Americans consistent with and not in contravention of our constitutional rights.

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Lafayette, La.: Mr. Barr, although I am a Democrat, I have admired your fearlessness in speaking truth to power. I would like to know if Congress can override the stripping of the Constitution by this president (i.e., warrantless wiretapping and JAG/Geneva convention laws)? Explain whether separation of powers has also been stripped. Thank you.

Bob Barr: Separation of powers has been greatly eroded, most clearly in the Administration's ignoring the clear and specific requirements of FISA. Congress has shown itself somnambulant on these issues. Congress could, if it had the backbone and the understanding, rein in the Executive. Thus far, they have evidenced neither.

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Alpharetta, Ga.: What do you think about the Terry Schiavo ordeal and the Federal Marriage Amendment?

Bob Barr: I do not support the Federal Marriage Amendment. I believe the manner in which the federal government, particularly the involvement by the Congress, handled the Schiavo matter was clearly inappropriate and reflected another example of the GOP acting in a way inconsistent with true conservative norms and principles of governance.

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Germantown, Md.: Thanks for taking questions on this important issue. I've been perplexed by administration statements such as "if terrorists are calling cell phones, we want to know what they're saying." This seems to skirt the question of probable cause: How do we know that the calls are from or to terrorists? If we have sufficient information on the people involved in these calls to know that they're terrorists, wouldn't that be sufficient information to get a warrant and arrest them?

Bob Barr: You are clearly correct. Essentially the Administration wants to be able to listen to whatever calls are made into or out of the United States, by any person, including a US citizen in the United States, without any showing that the US person has possibly violated any law or might be an agent of a foreign power.

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Reston, Va.: Do you think the companies that are cooperating with NSA warrentless spying are violating Federal communications law? I have petitioned the FCC for an investigation of this matter.

Bob Barr: This appears to be the case in some instances, although it is difficult to say precisely insofar as we don't know all the details yet.

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Potomac, Md.: Good afternoon Mr. Barr, thank you for taking some questions. In all the "debate" about this subject, I have yet to hear a single reasonable argument for wiretapping American citizens without a warrant. Is there one?

Bob Barr: No. The federal law on this issue is "robust" (as they say in Washington) and provides much flexibility. The Administration just does not want to follow the law.

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Ashland, Wis.: Why did the recent legislature turn such a "blind eye" to all of the allegations that filtered into the media? Or is this a misperception of mine? Were responsible legislators actively performing oversight duties that were not announced to the public? From my perspective, apparent cover-up by Congress was as bold faced and dangerous as the acts by this administration.

Bob Barr: There is essentially no substantive oversight of the Administration by the Congress these days.

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St. Mary's City, Md.: My objection to warrantless wiretapping is based not only on civil liberties principles. I also believe that this power can too easily be abused for political purposes. During the Nixon years, many government powers were abused to harass journalists and others perceived as hostile to the Administration. Any President would be tempted to abuse the warrantless wiretapping power. Imagine if Bill Clinton had used it to try to silence critics such as Limbaugh or O'Reilly, or to muzzle journalists such as Michael Isikoff.

Bob Barr: Far too many supporters of the current Administration appear willing to let this President exercise these vast powers of surveillance which it has chosen to engage in, without realizing the same powers will inevitably be used, abused and expanded on by future administrations, including those that many of the current Administration's supporters would definitely not like.

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Raleigh, N.C.: Despite the President's lie, I WANT wiretapping. I just insist that he gets a warrant.

Is that so hard for him to understand?

Bob Barr: Apparently it is.

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San Francisco, Calif.: Bob,

I appreciate your efforts to apply the rule of law and the constitution to the exercise of presidential authority.

You seem to have changed sides on the issues of wiretapping from when you prosecuted the Clinton impeachment trial. Back in 1998, you supported the use of possibly illegal wiretaps by Tripp of her conversations with Monica Lewinsky about her relationship with the president. ( Impeach the President? , ( Post, April 10, 1998 )

What has made you change your opinion about the legality of wiretaps?

Bob Barr: Ms. Tripp was not engaged in electronic surveillance by the government in clear violation of a federal law -- in this case, FISA.

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Washington, D.C.: I've heard that the clickety-click and train whistle sounds that are tell-tale indicators of wiretapping are just done to intimidate people. When they wish to listen silently, then they are fully capable of that too. Is this true? Also, is it legal for an employer or other phone service line subscriber to consent to have lines tapped without probable cause and without terrorism warrants? Thanks.

Bob Barr: Modern technology makes it very easy to "listen in" to phone communications without any sounds and without the participants being able to detect the surveillance. The old "clicking" sounds now are largely in the movies.

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Hogansville, Ga.: Congressman Barr- I was not a fan of you when you were my Congressman, but since you've entered the private sector, my respect for you has grown by the day. You are nothing if not honest, and you are a TRUE conservative and will always stick to principle over politics. The Republican Party can learn a hard lesson from you.

With that being said, what do you see as the best way to "restore the checks and balances?" Do you think that a Democratic Congress is a step in the right direction of reforming government and curbing the power of the executive?

Bob Barr: All I can say now is, the current situation is -- from a civil liberties standpoint, and from the perspective of having checks and balances on the federal government's power over us, the citizenry -- disastrous.

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Orono, Maine: Hi again, thanks for your answer to my previous question. Regarding the wiretapping - do you think there is any danger of this administration wiretapping a congressional member's phone and "holding" embarrassing information over them, to insure their complacency?

Bob Barr: I'm absolutely certain such a thought would never, ever, in a million years, enter the mind of someone in government.

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Raleigh, N.C.: Mr Barr,

Where does your organization stand on the detainee issue?

Aside from the fact that "unlawful enemy combatant" is now an incredibly broad term under the new law, it seems that we weaken our own protections when we weaken those of "enemy combatants" in our custody. If a foreign national (non-enemy combatant) kills someone in the U.S., that person still has access to the courts even though he/she is "not an American." That is because we are a nation of laws (or used to be). Subjecting enemy combatants to what amounts to kangaroo courts for expedients does not follow the rule of law as outlined in our Constitution. While I don't advocate allowing them to have their trials in civilian courts, eliminating their protections weakens our own. We will have knocked out parts of the wall built by our Constitution where those protections MUST be absolute.

Then there is the question of effectiveness. In fighting terrorism we must gain the respect of the masses in the Islamic world. Unless we plan to exterminate them, this respect must come from our ideals, including equal protection of our laws, not just from our prowess in the military arts. If we bend our ideals for expedience, that respect and any support that may grow from it, will not be forthcoming.

It isn't a matter of who they are (even the vicious killers). This is a question of who we are. So far the answer has been depressing.

Bob Barr: I agree. Allowing any president to decide completely on his/her own, in secret, who is an "enemy combatant," what the parameters of a "war" are, where a "war" is to be fought, etc., and then to decide unilaterally what rights it deigns to grant that person (who might be a citizen), is clearly destructive of our constitutionally-based system of government.

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Washington, D.C.: Is a FISA wiretap essentially a law enforcement tool? I mean, it is specifically for the collection of evidence that can be used in open court? If there were a law that allowed the Secretary of State to take all actions deemed necessary to protect the U.S. from foreign powers and if a foreign power used the U.S. phone system to further an act of aggression or war against the U.S., then would there be a need for a FISA warrant? What about all the embassies that are eavesdropped upon, are there FISA warrants for them?

Bob Barr: FISA was intended to establish clear lines of authority for, and limitations on, government collection of foreign intelligence; but there are ways in which evidence thus gathered can be and is used for law enforcement purposes. The PATRIOT Act greatly eased the rules for such "sharing."

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New York, N.Y.: You keep mentioning a lack of oversight by Congress? Do you blame the Republicans or Congress as a whole? I seem to recall numerous instances of Democrats like Henry Waxman trying to investigate abuses by the White House only to have it killed by the majority powers.

Bob Barr: The Republican Party, as the majority party, clearly controls the agenda.

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Princeton, N.J.: Mr. Barr, as one of the leaders in the impeachment of President Clinton, you should know he was impeached for a crime, lying in a civil case, that is routinely ignored every day in courts across the country. (One of my lawyer friends said that if we start arresting just those who lie in Family Court, NJ would not be big enough to hold them, we'd need to make Montana into a prison.) Yet George Bush clearly has violated FISA, a serious felony. Why have you not called for his impeachment?

Bob Barr: All of us may have the opportunity to address that question as more than a hypothetical in the next Congress.

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Holmes, Pa.: Well, if you have nothing to hide...what's the big deal about wire tapping...just so long as it applies to everyone, and that includes the ones that authorize the wiretapping and the ones doing the wiretapping!

Bob Barr: The burden is on the government to establish it has a good reason to invade a citizen's privacy and listen to their personal, private conversations. If you want to government to be able to listen in to conversations just because it wants to, and for the burden to be on the citizen to establish the government does not have a legitimate reason for doing so, then your remedy is to repeal or amend the Fourth Amendment. Frankly, I would not like to live in the society such as you posit.

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Vienna, Va.: Mr. Barr:

Can you please verify something for me? The President and his supporters continually say, "don't you want us to be able to listen in on the calls terrorists make to people in this country?" But couldn't they already do that through the FISA court, with up to 72 hours after the fact to apply for the necessary warrant? Why then, do they need the warrantless wiretaps they now have?

Bob Barr: Of course they could, if that truly was all they were really interested in.

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McLean, Va.: Mr. Barr:

It seems clear to me that the real reason this administration wants the warrantless wiretaps is that it really doesn't know who are the terrorists and where they are. So they've chosen to overreact and widen their search to check on people who wouldn't qualify as suspects if they chose to go to the FISA Court. It should scare people to think that this administration, as inept as it is, thinks it's smart enough to figure out who's worth tracking because of "terrorist" activity.

Bob Barr: Very good point.

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Arlington, Va.: I used to think of the Republican party as the one that wanted to protect citizens from intrusive government snooping. Now I think the opposite. There seem to be no limits to the powers they are asking for. In addition, anytime anyone wants to discuss this, we get the same old, tired argument that it's classified and can't be discussed. Joseph Heller would love this. How do we get politicians to listen to us and restore some balance between civil liberties and government surveillance powers?

Bob Barr: People have a chance to do a little something next Tuesday.

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Holly Springs, N.C.: Former Congressman Bob Barr:

No one suggesting that a real terrorist (al-Qaeda or otherwise) must not be under watch. At the same time if anyone talks to his/her friends in any Middle-East countries could be under wiretapping and surveillance - and that's what bothers me most. Please explain and assure us who are keeping checks and balance about our privacy?

Regards.

Bob Barr: Right now, the government is saying simply, "trust us." That's not good enough for me.

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Austin, Tex.: Umm...who are you? Although I'm a Democrat and a liberal one to boot, I'm agreeing with pretty much everything you're saying. Where are your voices in the current GOP?

Bob Barr: There sure aren't many. Texas Rep. Ron Paul is one of the few.

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Alexandria, Va.: What kind of response have your efforts brought from your former colleagues in Congress? I would imagine you are getting both positive and negative reactions.

Bob Barr: It varies, but unfortunately, Senators and U.S. Reps. are not hearing from enough of their constituents on these issues to give them backbone to withstand Administration pressure and intimidation.

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Whatever happened to...: "The only thing we have to fear is fear itself"?

Bob Barr: Whatever happened to Reagan's warning that " . . . government IS the problem?"

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Washington, D.C.: "You and I are told increasingly that we have to choose between a left or right, but I would like to suggest that there is no such thing as a left or right. There is only an up or down--up to a man's age-old dream, the ultimate in individual freedom consistent with law and order--or down to the ant heap totalitarianism, and regardless of their sincerity, their humanitarian motives, those who would trade our freedom for security have embarked on this downward course."

-- Ronald Reagan.

His words ring more true than ever, don't they?

Bob Barr: Yes they do.

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Fairfax County, Va.: Perhaps you saw Toles' cartoon in today's Post?

Would it then be your interpretation that a U.S. citizen in this country can be declared an enemy combatant by the Executive and subjected to military tribunals, or simply "disappeared"?

Bob Barr: Under current policy as enunciated by the Administration and the neo-cons, yes.

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Washington, D.C.: Why are your Republican colleagues in Congress so reluctant to take on the President on the issues of spying/wiretapping? Are they supporting the President despite their "libertarian" values or do they really believe the President has the authority he asserts he does? Thanks for your time today.

Bob Barr: Many don't really understand the issues; others are afraid of being labeled "soft on terrorism"; others would rather deal with easier issues of getting federal funds for a lake project, a road, or a senior center in their district.

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Arlington, Va.: A broader question, regarding the Republican party. It seems its focus has shifted from the Reagan era of less government, etc. How do you think the Republican party would look today were it not for the "war on terror"? How has that impacted its philosophical shift?

Bob Barr: It has greatly increased the currency of "Big Government Conservatives," who are not conservative at all -- they simply want to use the mechanisms and tax monies of the government for purposes they deem worthy the same as their Democrat colleagues want to use those for projects they deem worthy.

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Richmond, Va.: In my mind the President has clearly overstepped the checks-and-balances calculus established by the Founders. What methods does Congress possess to hold him accountable? Impeachment?

Bob Barr: If they had the backbone, Congress could refuse to cave in to pressure from the Administration to grant it the powers it seeks; or the Congress could cut off funds for the improper acts of the Administration; or they could amend the laws to rein in the Administration; or, as a last resort, certainly impeachment is a tool.

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Sewickley, Pa.: Thank you for taking questions today. Why, in your view, do some legal "experts" differ on whether the administration can label me (born in the U.S.) an enemy combatant and toss out my right of habeas corpus while others say that only non-citizens have been stripped of this right? I read and pay close attention and do not feel I have found a definitive answer to this yet.

Bob Barr: Some -- largely those known as "Neo-Cons' -- believe the President's role as "Commander-in-Chief" trumps everything else, including limitations placed on his exercise of those "powers" (even court decisions or laws to the contrary), so long as the president believes his actions are "necessary" to protect the national security. I do not believe such an expansive view ("breath taking" in the words of the U.S. Supreme Court) of presidential power was ever intended by the Founding Fathers. I think it is 180 degrees from where we want to be as a nation of laws not of men.

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Raleigh, N.C.: "It varies, but unfortunately, Senators and U.S. Reps. are not hearing from enough of their constituents on these issues to give them backbone to withstand Administration pressure and intimidation."

From Senator Burr, I got a well-thought-out response that nevertheless disagreed with me (and you). From Senator Dole, I got White House talking points sheet #3B, plus a lecture that would have been insulting even if I weren't a former Army Intelligence officer who has forgotten more about the stuff than she'll ever know.

Bob Barr: I'm glad Richard Burr, who was in my Class of '94, had a well-thought-out reply.

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Pittsburgh, Pa.: If Hillary Clinton were to be elected president in 2008 and the Congress were still in Republican hands, do you think there would be a move to strip the executive of the powers that Mr. Bush has claimed go with his office?

Bob Barr: It might at least wake some of them up. I don't like ANY president to be able to exercise such powers, whether Republican or Democrat, but far too many in the Congress now seem to look at these powers, if they look at them at all, as "okay" because Bush is exercising them.

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Atlanta, Ga.: I have always been of the opinion that the interests of fiscal conservatives and libertarians have best been protected in eras of divided government. Even well-meaning Republicans now are in the thrall of the worst and most radical elements of the party.

Considering all we know now, was electing a Republican executive a mistake or was it just a question of this particular executive?

Bob Barr: Hard to say, but your observation is well-taken. There is precious little independent thought or activity on the part of the Congress, largely, I believe, the result of the majority in Congress viewing their job as supporting an Administration of their party, and the Administration looking at Congress as its vehicle for getting its agenda enacted, not as a constitutionally independent and co-equal branch of government.

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Active duty Military Family: When did we become such cowards that we are willing to trade away our rights for the mirage of absolute security?

Bob Barr: It moved into high gear as a result of 9-11. Fear of terrorism now provides the underpinning for virtually all public policy debate in this country.

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Atlanta, Ga.: Congressman Barr, I've been an admirer of you for many years, including your years in Congress and as US Attorney under President Reagan. Your views seem to be consistent no matter what your talking/writing about or who your going after (Pat Swindel, Bill Clinton). Do you think the Republican Party has changed? If so, what can they do to rebound? Will you ever get back into politics. We really need more Bob Barr's in Washington.

Bob Barr: The Party has changed, and not for the better. We need to get away from blind loyalty to party, and turn up the constitutional heat on incumbents and challengers.

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Washington, D.C.: Mr Barr,

By being one of the principal prosecutors of Bill Clinton during the impeachment hearings, you fed the social conservative agenda and made it possible to, via a faulty electoral process, elect George W. Bush. You therefore bear a heavy responsibility for the things you decry now.

Bob Barr: Does that make my current actions and principles wrong?

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Seattle, Wash.: If the President or other members of the government have thought to have violated FISA, could a US Attorney somewhere in the nation show some dedication to their understanding of the laws and bring a criminal case against a member of the Administration?

Bob Barr: Probably only at the risk of being fired.

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Washington, D.C.: As many recent authors have noted, the Republican Party seems to be slipping into a rule-of-law-be-darned mentality while spending money (mostly pork and earmarks) at a considerably faster rate than the Democrats did during the Clinton years.

You seem to be moving closer and closer to the Libertarian Party. Could this be considered an indicator that they are closer to the principled direction disenfranchised Republicans should be considering right now?

Bob Barr: Yes.

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Munich, Germany: A few terrorists plots have been thwarted in recent times, one in the UK, one in Canada and one in the States, with the help of wiretaps and monitoring of Internet traffic.

While wiretapping is effective in finding and convicting terrorist plots, has there ever been conclusive evidence that illegal wiretapping has helped to capture criminals and terrorists, that wouldn't have been brought to justice otherwise?

Bob Barr: Not that I am aware of. As you know, in the U.S., we have constitutional provisions and laws that are not necessarily found in these other countries in which plots have been thwarted; and what might have appeal in this country simply because it was used successfully in another country should not be allowed to stands as a reason to violate our laws or Constitution.

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State of Independence: I have voted for Republican about as often as I've voted for Democrats. Ronald Reagan got my vote twice and Bush senior once. Since then I've quit pulling the Republican lever. I'd really be interested in your assessment of the upcoming election. Will Mr. Rove pull a bunny out of his hat?

Bob Barr: I think it's too late; at least regarding the majority in the House.

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Baltimore, Md.: Mr. Barr: Thanks for all your work to restore Constitutional rights and checks and balances. I think it will be very interesting to see how this election plays out in the Mountain West, long so friendly to Mr. Bush and Mr. Cheney. There is a strong libertarian streak out there of the "stay out of my wallet and out of my bedroom" type. If the big government "so called" Conservatives take a whipping out there, we will know America is starting to come to its senses.

Again, thanks for your work.

Bob Barr: Back at ya.

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Glenmont, Md.: What do you see as the worst case scenario if checks and balances are not restored?

Bob Barr: The "T" word - continued move towards a government with an Executive Branch with "Total Power" and no privacy for the citizenry.

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Jax, Fla.: Would you be in favor, if still in office, of clarifying the declaration of war to more accurately identify the enemy? Most people I know all assume the declaration of "War on Terror" will be endless by nature, and opens the door to subjective interpretation of "the enemy" - which now has no legal recourse. I won't go so far to use the "f" word, but this seems eerily familiar to a style of government that we oppose.

Bob Barr: I authored a Resolution of Declaration of War shortly after the 9-11 attacks. This Administration made it clear, and continues to do so, it wants no limitations on its exercise of undefined "wartime" powers.

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Pittsburgh, Pa.: If you were handing out profiles in courage to Congressmen who would be on your list?

Bob Barr: Russ Feingold, Ron Paul, Lindsey Graham, maybe a few others.

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Columbia, Md.: Mr. Barr, many people are afraid to discuss this subject but it is one that needs to be addressed. In your opinion, has Mr. Bush committed any impeachable offense?

Bob Barr: I believe laws have been violated, and the Congress has not -- but truly needs to -- delve into exactly what has been done and then determine what remedial action to take.

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Rochester, N.Y.: God bless you, Mr. Barr, for standing up for what you think is right.

Here's my question: the public is not as against these programs as I would have thought. Do you think the public would turn against warrantless domestic surveillance if they were given an honest account of what is going on (as opposed to "we're spying on terrorists")?

Bob Barr: It would help greatly in terms of public debate and awareness. Some recent polling suggests this clearly.

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Athens, Ga.: Thank you Mr. Barr for being a brave dissenter, even if we do feel like lone voices in the wilderness.

What is a Real Conservative to do?

Bob Barr: Pull their hair out? There are a few good candidates, and there is the Libertarian party.

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Katy, Tex.: I noted that you were down in Texas supporting Libertarian Bob Smither in Tom DeLay's old district.

The Republican write-in candidate has been stooping to fraudulent polling practices, has been accused of illegal campaigning within early voting locations and is probably involved in the campaign to destroy the "Republicans for Smither" signs appearing throughout the district.

Do you see the write-in candidate as an extension of the "win at all costs" DeLay mentality? If so, what can decent-minded people do to put an end to this sort of dirty politics?

Bob Barr: Do what I've done -- help Bob Smither any way you can. There's still time.

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Albuquerque, N.M.: Mr. Barr: My understanding is that the USG can collect information via wiretap for up to 72 hours while going to FISA court to get a secret search warrant. If the warrant is denied (very few have), USG is simply required to erase the already collected information. I can't come up with a satisfactory explanation for why the Bush administration decided to bypass the FISA courts. Can you explain their motivation?

Bob Barr: They want no limitation -- even implied limitation such as would be reflected in a change to FISA -- on what they see as an absolute and inherent power the Administration has to do whatever it deems necessary whenever it wants and wherever it want, to protect what it views as "national security."

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Bob Barr: I have to stop now (have to go make a living). It's been great chatting on-line with y'all, and I hope the WP allows us an opportunity to do so again in the near future. VOTE NEXT TUESDAY, and for the right reasons!

-- Bob Barr

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