The Justice Department, Attorney General John Ashcroft declared in his confirmation hearings, is "the role model for justice the world over." But under Ashcroft that role model is rapidly losing the confidence of allies abroad and at home in the campaign against Al Qaeda. Spain–a country that after decades of Basque separatist movement bombings knows about fighting terrorists–openly declared that it will not extradite eight imprisoned Al Qaeda suspects if they could face military tribunals or the death penalty. Around the United States police chiefs–who know they need the ground-level trust of immigrant communities–are resisting Ashcroft's plan for an open-ended trawl among young men from Middle Eastern nations. Serious voices from Milwaukee to Madrid say that secret immigration trials, unreviewable military tribunals and warrantless monitoring of attorney-client conversations have little to do with real security.
While the cops speak up, most of Washington keeps its head down. Just before Thanksgiving, Senate majority leader Tom Daschle ducked questions about the military tribunals. Daschle now says he is "concerned" but adds, "until we see exactly how they will promulgate this new concept it's pretty hard for us to come to any conclusions." Translation: I'd rather not deal with this.
A few Congressional voices are at last beginning to ask bolder questions. It's mildly encouraging, for instance, that Democratic Senator Patrick Leahy succeeded in getting GOP colleague Orrin Hatch to sign a letter "inviting" Ashcroft to explain himself before the Judiciary Committee. In the House, Bob Barr and John Conyers have joined forces to breathe down the neck of their slow-moving Judiciary chairman, James Sensenbrenner. What has legislators rumbling–if still too quietly–is the sudden realization that through a barrage of executive orders and legal maneuvers, Ashcroft and Bush are systematically seizing on the Congressional prerogative to make the laws governing crime and punishment.
Pollsters declare that civil liberties have little resonance with the broad public now. But the public's sophistication and even outrage about legal issues sometimes runs ahead of the Beltway. What it will take to ignite that latent sensibility, though, is leadership, starting with vigorous questioning of Ashcroft when he appears before Leahy's committee.
The need for those questions grows daily. On November 27 Ashcroft announced that at least 550 people rounded up after September 11 remain in federal custody on immigration violations and another fifty-five on federal criminal charges. But once again he refused to provide details–claiming, absurdly, that he was protecting the privacy of detainees. Still left unanswered are basic questions including how many have been detained on the basis of secret evidence, a discredited practice that Ashcroft is now trying to revive, as Bruce Shapiro notes on page 6.
The relentless Spanish investigative magistrate Baltasar Garzón, prosecutor of Gen. Augusto Pinochet as well as those eight Al Qaeda suspects, warns against the direction Ashcroft seems to be headed in: "It is not sufficient to say: 'I have the evidence but I cannot make it public for fear of endangering my sources.' That is not a serious approach–it is simply illegal."