REVIEW & OUTLOOK
The Ashcroft 'Fatwa'
Why are modest law-enforcement measures drawing hysterical opposition?
The war on terrorism has already given Afghans a taste of long-suppressed freedom. But to hear some Americans talk, you'd think the Taliban had merely transferred their Koranic rules and holy war guidebooks to the Bush Administration, and especially the Justice Department.
A strange-bedfellows coalition of everyone from Vermont socialist Bernie Sanders to the ACLU to Georgia libertarian Bob Barr is sounding alarums that the real threat to liberty comes not from Osama bin Laden, but from Attorney General John Ashcroft. The air is thick with op-ed references to "star chambers," "witch hunts" and "Orwellian" government. Pat Leahy, who runs the Senate Judiciary Committee, has suggested that the Administration favors "secret trials" and "summary executions."
It all sounds scary, if only it were true. But when you cut through the hysteria, it turns out that what Mr. Ashcroft is proposing is far from threatening. Compared with previous American wars, his actions are quite modest. In the interests of getting our libertarian friends off their Valium prescriptions, we thought we'd go through them one by one.
The main objections boil down to three: a Bureau of Prisons regulation allowing for eavesdropping on detainees; Justice's refusal to release the names of detainees suspected of terrorism; and, of course, the decision to use military tribunals to prosecute any captured terrorists. Once you look at the actual details, it turns out they all have behind them ample legal precedent, judicial oversight or both.
Take the new regulation that allows the government to monitor conversations between detainees and their attorneys. As Assistant Attorney General Mike Chertoff told the Senate yesterday, the measure aims to cut off communications passed through a lawyer that might lead to another terrorist act. The built-in protections should indicate that protecting American lives rather than prosecuting terrorists is the clear aim here: The special team that does the monitoring cannot give the information to anyone--especially a prosecutor--without a federal judge's permission. Just as important, both the attorney and his client must be notified that the government is listening in. Was Big Brother ever this courteous?
As for those who have been detained since September 11, much of the hysteria has to do with ignoring distinctions Mr. Ashcroft has been trying to make. To hold someone as a material witness requires a court order. Fewer than two dozen are now being held as material witnesses, but they include Zacarias Moussaoui, a Frenchman of Moroccan descent who was picked up in Minnesota on immigration charges after a flight school reported he wanted lessons only on how to steer a plane. Not exactly a poster boy for Amnesty International.
Of the 603 people in custody, 55 have been charged with crimes--and their names have been released. The rest are aliens picked up on immigration violations. These people have been charged with specific violations, they have the right to any attorney and those charges are public. All Mr. Ashcroft refuses to do is release a list that would let the world know which of these detainees the government also suspects of terrorist acts.
Finally, there's the matter of military tribunals. Strictly speaking, this isn't Mr. Ashcroft's bailiwick because the responsibility for tribunal rules and procedures rests with the Defense Secretary. But since so many of Mr. Ashcroft's critics like to throw it in, it's worth remembering that the order applies only to noncitizens. There is ample precedent, not the least being FDR's use of military tribunals for German saboteurs caught in World War II. And if we want to get technical, those picked up in America who are part of al Qaeda are really spies--who don't even qualify for the POW protections of the Geneva conventions.
Probably Mr. Ashcroft and his team could do a better job of explaining these distinctions. Probably too it would help to have a formal declaration of war, though Congress's resolution the Friday after the attacks seems as close to a declaration as you can have without an obvious nation-state enemy. In any case, we are clearly in a state of war, with or without a declaration.
The underwhelming magnitude of all this makes us wonder what all the fuss is really about. Much of it sounds like a replay of the Ashcroft confirmation battle, especially when some of the same characters, such as People for the American Way, are again in the front lines. Notwithstanding Mr. Ashcroft's alleged transformation of the U.S. into a police state, it doesn't seem to have prevented Congress from exercising oversight or frightened pundits into silence.
The war in which we are now engaged is a different kind of war, one in which American civilians at home are as vulnerable as American soldiers abroad. In prosecuting such a war, the effort to flush out al Qaeda at home is as crucial to preserving American freedoms as the military effort is to crushing al Qaeda in Afghanistan.
Mr. Ashcroft understands this. If his critics calmed down and considered the facts, they might too.
