Critics aid terrorists, AG argues
by Susan Milligan, Boston Globe, 7 December 2001
WASHINGTON - A defiant Attorney General John D. Ashcroft chided his opponents yesterday, telling members of a Senate committee that critics of a Justice Department crackdown "aid terrorists" and undermine national unity.
Ashcroft asserted that in the case of the adminstration's detention of noncitizens and its plan to try suspected terrorists before military tribunals Congress has only limited oversight. He flatly said that he would not tell the senators everything they want to know about the detainees or about his policy recommendations to President Bush.
"We need honest, reasoned debate, not fear-mongering," said Ashcroft, the sole witness at the packed hearing before the Senate Judiciary Committee.
"To those who pit Americans against immigrants and citizens against noncitizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics aid terrorists, for they erode our national unity and diminish our resolve," he said. "They give ammunition to America's enemies, and pause to America's friends."
The former Republican senator from Missouri also gave no ground on complying with congressional requests for more consultation on counterterrorism policies.
"The advice I give to the president, whether in his role as commander-in-chief or in any other capacity, is privileged and confidential," Ashcroft told his former colleagues during nearly four hours of grueling questioning. "In some areas ... I cannot and will not consult with you."
But the senators were not cowed, and several Democrats and Republican Arlen Specter of Pennsylvania grilled Ashcroft about his department's decision to deny an FBI request for the gun records of terrorist suspects in custody.
Senator Richard J. Durbin, Democrat of Illinois, pointed out that the Justice Department has been willing to bend Fourth Amendment rights against unlawful searches and seizures to help the FBI track down terrorism suspects.
"Why is it, when we get to the Second Amendment, there's such a blind eye at the Justice Department?" Durbin asked, referring to the constitutional right to bear arms.
Ashcroft said that current law does not allow the Justice Department to turn over gun records to counterterrorism investigators at the FBI. He refused to endorse proposed legislation that would expand federal power to track guns.
The attorney general has been criticized by civil liberties groups and a few members of Congress for the Justice Department's handling of the detention of nearly 1,200 individuals since Sept. 11. The department has withheld many details about the individuals held and the charges against them.
While Ashcroft and other Justice Department officials have maintained that the detainees' rights are being protected, there is anecdotal evidence that some were kept incommunicado or allowed only limited access to diplomats from their home countries, family members, and lawyers.
The administration has also been criticized for President Bush's order allowing military tribunals to decide cases against noncitizens suspected of committing or aiding terrorist acts.
Defending the need for military tribunals, Ashcroft said, "When we come upon those responsible in Afghanistan, are we supposed to read them Miranda rights, hire a flamboyant defense lawyer, bring them back to the United States, create a new cable network of Osama TV or what have you, and provide a worldwide platform from which propaganda can be developed?"
Senators peppered Ashcroft with questions and demanded commitments that the detainees would be afforded constitutional rights and that the military tribunals would be conducted publicly, with defendants allowed to present an adequate defense. Ashcroft hedged on both requests, noting that the final guidelines for the military tribunals have not been written.
"History has shown that military courts have been effective, but they also show they've been abused," said Senator Edward M. Kennedy, Democrat of Massachusetts. "This time, we want to get it right."
Civil libertarians and some lawmakers are upset about elements of Bush's military order that provide for secret trials and lower standards of proof than those used in criminal courts and allow a tribunal to convict a defendant and sentence him to death by a two-thirds vote, without right of appeal. Civilian courts require a unanimous verdict in capital cases and allow appeals.
Graham Watson, a member of the European Parliament who attended the hearing, said the US use of military tribunals could interfere with efforts to extradite suspected terrorists from European countries.
Extradition "would be, I think, no problem if the trials were in normal civilian court," said Watson, chairman of the Justice Committee of the European Parliament. "It seems to me that rights would not be respected or could not be guaranteed to be respected under military tribunals. Clearly the two sides of the Atlantic are at risk of being on a collision course."
But while members of the Judiciary Committee questioned some of the details of Bush's proposal, most members generally supported the use of tribunals.
The Judiciary Committee's chairman - Senator Patrick Leahy, Democrat of Vermont - offered a proposal to allow military courts to try terrorism suspects, but with more safeguards, including a presumption of innocence, the right to an independent lawyer, and open proceedings except when national security might be compromised.
Leahy's proposal would limit the use of military courts to members of Al Qaeda or to other terrorists suspected of specific involvement in the Sept. 11 attacks, with the determination made by a US District Court judge, rather than the attorney general. Ashcroft said he would study the proposal.
In response to a question from Senator Russ Feingold, Democrat of Wisconsin, Ashcroft said he could not guarantee that every detainee would have legal representation because the government is not required to pay for lawyers in immigration cases.
Ashcroft declined to discuss possible legal action against John Phillip Walker Lindh, the US citizen who has admitted fighting for the Taliban. Nor would the attorney general agree to release the names of all detainees, although he acknowledged that no law prevents him from doing so.
© 2001 Boston Globe
Reprinted for Fair Use Only.