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Ashcroft, Unabashed | The Nation

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Ashcroft, Unabashed

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There you go again, Mr. Ashcroft. In an address to a national US Attorneys' conference on October 1, Attorney General John Ashcroft lashed out at critics of his antiterrorism measures, accusing them of engaging in "disdain and ridicule," of opposing every initiative he has undertaken and of "capitulation before freedom's enemies--the terrorists." At the same time, unabashed in the face of multiple court rulings declaring his tactics illegal, Ashcroft directed federal prosecutors to "use the full weight of the law" to "neutralize" terrorist threats through preventive detention.

About the Author

David Cole
David Cole
David Cole (@DavidColeGtown), The Nation's legal affairs correspondent, is the author, most recently, of The Torture...

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A closer look at Ashcroft's self-defense reveals exactly what is wrong with his leadership in the domestic "war on terrorism." Rather than acknowledge that there are difficult trade-offs to be made between liberty and security, he dismisses all criticism as unpatriotic and casts himself as the only true defender of liberty. And in both characterizing his critics' complaints and evaluating his own performance, he consistently prefers hyperbole to any true engagement with the facts.

Consider first Ashcroft's performance so far. Has he actually made us safer? In his speech Ashcroft defended his "preventive" policy of detaining "suspected terrorists" by boasting that he had deported 431 aliens and convicted ninety-four others of criminal offenses. What he left out was the fact that none of these people were charged with any terrorist-related crimes. Or that of the approximately 1,500-2,000 people he has detained since September 11, none have been charged with involvement in the crimes of that day, and fewer than twenty have been charged with any crimes even marginally related to terrorism. And Ashcroft has stretched the meaning of "terrorism" to encompass even those few prosecutions, applying it, for example, to a group of young men in Lackawanna, New York, who apparently did nothing more than attend an Al Qaeda camp, and to John Walker Lindh, who merely signed up to fight for the Taliban before the United States waged war against them, and never fired a shot. More significant, the vast majority of the detainees have been affirmatively cleared by the FBI of any involvement in terrorism. Thus, by the government's own account, virtually everyone locked up as a "suspected terrorist" is not a terrorist after all. How does that make us safer?

Imagine the public reaction if the New York City police chief responded to a terrible crime by rounding up more than a thousand "suspects," virtually all from one ethnic group, locking them up in secret, many without charges for extended periods of time, trying most of them in secret trials, and still came up empty-handed more than a year later. He'd be out of a job. Yet Ashcroft has fared little better, and has managed to survive only because those most directly affected by his overreaching are noncitizens, and a particularly unpopular group of noncitizens at that.

Consider next Ashcroft's response to his critics. Instead of taking their complaints seriously, he parodies their positions. He claims, for example, that if the civil liberties community had its way, there'd be "no Internet searches for public information by FBI agents" and "no FBI agents visiting public places open to other citizens or state and local law enforcement." In fact, no one has objected to FBI agents engaging in such activity but only to their doing so without credible evidence of potential criminal activity. Similarly, Ashcroft claims that "there would be no capacity to shield the names of detainees from terrorist networks." But his critics have conceded that secrecy is permissible where justified on a case-by-case showing of need, but not on an across-the-board basis. Six of the eight federal judges to review that argument have sided with the critics and against Ashcroft.

Ashcroft charges that in the civil libertarians' world, there would be "no war powers such as military detention of unlawful enemy combatants." Again, critics have not challenged the existence of such power, but rather the government's unprecedented claim that it can be applied--to US citizens and foreign nationals alike--without a hearing or judicial review of whether a given individual is in fact an "unlawful enemy combatant."

For a pundit to make such misstatements would be one thing. But when the Attorney General of the United States does so, in a talk directed to US Attorneys charged with enforcing federal law across the country, it is especially chilling. Unlike the pundits, the Attorney General and federal prosecutors can lock people up. That power entails the responsibility to exercise discretion, with respect for both the weight of one's authority and the duty to obey constitutional limits. Ashcroft's remarks suggest that in his world, there simply are no liberty interests in the balance between liberty and security. That's not a world I'd want to live in.

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