"Why did this hearing, er, er, er…"
I was approaching an aide to a Democratic member of the Senate Judiciary Committee, which had minutes earlier completed a three-hour session with Attorney General John Ashcroft, and I was trying to ask a question politely.
"Suck?" the aide said. I nodded. There was no denying it. This much-ballyhooed face-off between Ashcroft and Senate Democrats was more fizzle than sizzle.
The Democrats had called Ashcroft before the committee to discuss the civil liberties implications of various Bush antiterrorism initiatives, most notably military tribunals for suspected terrorists who are not US citizens, the detention of noncitizens and the monitoring of conversations between such suspects and their attorneys. In the past few weeks, Ashcroft and the Administration have received criticism on these fronts, with committee chair Pat Leahy and other members of Congress (though not many) grousing that the White House had decided on these policies without consulting Congress. Thus, this hearing had the makings of a Washington showdown. Dozens of reporters were present. Ted Koppel stood at the back of the SRO committee room in the Dirksen Senate Office Building. Bob Schieffer roamed. Al Sharpton sat silently in the audience. NPR was broadcasting live; the cable networks were present to air live cut-ins. The crowd was anticipating combustion.
Yet the Democrats hardly discomforted the Attorney General. As he defended the Administration's policies, Ashcroft ably diverted or absorbed most of their thrusts. He was rarely placed on the spot. The Democrats' criticism was generally tempered and dispassionate. The most pointed remarks were delivered by Ashcroft and Senator Orrin Hatch, the senior Republican on the committee.
In stern fashion, Hatch warned Democrats not to engage in "aggressive oversight" that "becomes counterproductive" and forces the Justice Department to spend "all its time responding to inquiries from our committee…and none of its time actually tracking down terrorists." With a smile, he quoted from a statement released the day before by Senator Zell Miller, a nominal Democrat from Georgia: "Let Attorney General Ashcroft do his job…. These nitpickers need to find another nit to pick. They need to stop protecting the rights of terrorists."
In his opening statement, Ashcroft unleashed the harshest attack of the day. He blasted his critics, claiming that "their bold declarations of so-called fact have quickly dissolved, upon inspection, into vague conjecture. Charges of 'kangaroo courts' and 'shredding the Constitution' give new meaning to the term 'the fog of war.'" Then he went on to assert that the critics were threats to the nation's security: "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists–for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends. They encourage people of good will to remain silent in the face of evil."
During the hearing, no Democrat challenged Ashcroft's assault upon his critics. Leading off the questioning, Leahy explored, in a legalistic manner, the fine points of Bush's proposed use of military tribunals. Ashcroft explained, as he would repeatedly throughout the day, that the operational details of the tribunals will be drafted by the Defense Department, because Bush established these commissions under his power as Commander in Chief. Which meant, Ashcroft continued, that he and the Justice Department were not in charge of the tribunals. In other words, you got the wrong guy.
Ashcroft refused to be drawn into back-and-forth on the specifics of the tribunal. When Senator John Edwards, one of the few Democrats to pose sharp questions in a skillful way, asked if a person tried by a military tribunal could be sentenced to death on a 2-to-1 vote, Ashcroft attempted to wiggle out of a direct reply, saying that the President's order establishes a "minimum standard." But Edwards pressed the point, noting that the order does allow conviction and execution if two-thirds of the military jury concur. And Ashcroft responded, "Two out of three is two-thirds, I agree with that." He added that UN-sponsored war crimes tribunals allow convictions on a majority vote. They don't permit the death penalty, do they? Edwards shot back. "I don't know," Ashcroft said. Edwards informed the Attorney General the UN tribunals do not.
Little new ground was turned over. Several Democrats did poke at Ashcroft in reference to a New York Times story reporting that the Justice Department had turned down an FBI request to look at computerized gun-purchase records. (The FBI wanted to determine if detained people had bought firearms.) Ashcroft asserted that under law the Justice Department could not provide access to the data. But, as one gun-control lobbyist present later complained, the senators did not understand the issue enough to challenge Ashcroft on this subject. None them were able to force Ashcroft to say whether he thought it would be productive to allow FBI agents to use this data in terrorism investigations. Ashcroft merely said he would be delighted to "review" legislation drafted on this topic. (The NRA would certainly object to that; in fact, Ashcroft's allies in the gun lobby have pushed to destroy these records, and Ashcroft has moved to do so.) Senator Mitch McConnell, a Republican, snickered that Democrats were asking questions about gun control because "the military tribunal argument has already been lost." A Leahy aide said, "It's hard to argue with McConnell on that."
Most of the Republicans were there to help Ashcroft, who, it turns out, needed little assistance. Two, though, did raise civil liberties concerns. Senator Arlen Specter noted that the Administration had established no standards for its detention of immigrants deemed possible terrorist threats. Ashcroft responded that the standard was "if the Attorney General develops the understanding [that releasing such a person]…would jeopardize national security." Specter countered, "What you have said is very generalized." He asked Ashcroft to provide a better answer in writing. Regarding military tribunals, Senator Mike DeWine said, "We have to be concerned about the perception [overseas] of what we are doing." He urged the establishment of clear guidelines for the rules of evidence, clear standards for burden of proof and provisions for reviewing a tribunal's finding.
No problem, said Ashcroft. Overall, the Attorney General–no surprise–made the case that the Bush moves were neither drastic nor draconian. Military tribunals would only handle war crimes cases involving noncitizens, would be conducted openly "when possible" and would be, as the President's order says, "full and fair." Only sixteen detainees have had conversations with their attorneys monitored, and the information obtained would only be used to thwart further acts of terrorism, not in any prosecutions against these people. The detentions were not secret, since those detained were free to tell people (their relatives, the media) of their detention. When questioned by Senator Russ Feingold, Ashcroft agreed to make sure "again" that persons detained would be informed of their right to an attorney and the possibility of pro bono representation. Ashcroft once again argued that privacy restrictions prevented him from releasing the names of detainees, though he could not cite a law establishing these restrictions.
The sharpest barb from a Democrat came when Senator Maria Cantwell was questioning Ashcroft. Hailing from Washington State, she naturally was interested in the Justice Department's attempts to expand its ability to intercept e-mails and Internet communications. "Who should be watching the watchers?" she asked. (Hardly a tough query.) Ashcroft responded by recalling that he had recently seen a cartoon in which a little boy was sitting on the lap of Santa Claus, and Kris Kringle was saying, "I know when you're sleeping; I know when you're awake." The child then says, "Who do you think you are, John Ashcroft?" The Senators and most of the audience and journalists laughed. Yet a frowning Cantwell snapped, "I'm not sure everybody in America is laughing at that." Ashcroft agreed to meet with Congress regularly to review the government's use of its new Internet-snooping powers.
When the gavel fell, Ashcroft's aides were grinning. Not only had he survived a much-touted confrontation with the committee, he had fared well. The headlines could be expected to read, "Ashcroft Defends Bush Policies Before Senate Committee"–which is not a bad day's work for him. (Better than "Democrats Pummel Ashcroft and Force Concessions.") Democratic aides were shrugging shoulders and apologetically explaining to journalists why the hearing had fallen flat.
There appeared to have been little strategic planning on the part of the Democrats. What had they wanted to achieve with this hearing? It was never evident, and their questions didn't follow any game plan. The Democrats did not present much of an argument that Ashcroft and Bush were trampling civil liberties unnecessarily. "The point was to beat up on him," said one Democratic aide. Pause. "But there was not much beating." Other aides noted that the customary five-minute rule–no member could question Ashcroft for more than five minutes–prevented them from digging deep. But, as is also the custom, most senators read questions prepared by staff and were not sufficiently informed to shake the first line of defense from the witness. As yet another Democratic aide says, "these guys are easily intimidated."
Standing in the hallway after the hearing, Leahy refused to take issue with Ashcroft's remarks about critics who aid terrorists by decrying Bush policies. "I didn't understand that from him," Leahy told reporters. Leahy was not hankering for a fight. Around the corner, Feingold was angry about those comments. "The entire Administration," he said, "appears to be trotting out phrases to stop people from talking about these issues…. We have to stand up to that." A reporter observed that during the session there was "not much hit-back" from the Democrats. "Were you satisfied with the hearing?" she inquired. Feingold shifted on his feet and then said, "This is hard work to do–to get up there and talk about the implications of going too far…is hard work to do."
That certainly showed.