Taking Liberties

Attorney General John Ashcroft has never been one to hide his anger under a bushel. On November 12, just three days after he announced his resignation, Ashcroft lashed out at what he called "excessive judicial encroachment on functions assigned to the President" in the "war on terrorism." His immediate target was plainly Judge James Robertson, who four days earlier had halted the military tribunals in Guantánamo Bay, ruling that they violated both international and federal law. But Ashcroft's real beef is with the Supreme Court, which in June had set the stage for Judge Robertson's opinion by declaring that the President's powers to detain "the enemy" must be limited by the rule of law, articulated and enforced by courts.

The most important legacy of the Supreme Court's enemy combatant decisions may be the renewed willingness of judges to stand up to the likes of Ashcroft and his successors. The High Court rulings have already been succeeded by a trio of courageous lower court decisions rejecting the executive's claims that it is above the law when fighting terrorism.

In September Victor Marrero, a federal district court judge in New York, held unconstitutional a Patriot Act provision that authorizes the FBI to obtain information on subscribers to Internet services from the service provider by issuing a national security letter, or NSL. Under the law, the FBI need not get judicial approval to issue an NSL and need not have probable cause to believe that it will uncover evidence of a crime. Most troubling, the law imposed a gag rule barring recipients of NSLs from telling anyone--including a lawyer or a court--that they had received such a request, thereby precluding any chance for judicial review.

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