More than 1,180 men, most of them Middle Eastern, have been locked up in connection with the September 11 mass murders with virtually no public disclosure of who they are, where they are, or what crimes or immigration violations they have been suspected of committing. A regulation is quietly slipped into the Federal Register authorizing government officials to listen in on consultations between some of these detainees and their lawyers. A presidential order allows for future military detention and trials of foreigners accused of terrorist war crimes.
These and other aspects of Attorney General John D. Ashcroft's push to put domestic law enforcement on a war footing are in some ways more dramatic and controversial than the complex, multifaceted anti-terrorism bill that he pushed through Congress last month. Ashcroft has done some important things right, and public support of the war effort has, so far, insulated him from criticism for his more-dubious actions. But he will eventually have to sell his policies on their merits. And at this point, he seems either deficient at salesmanship-assuming for the moment that he has better reasons than he has publicly revealed for his detention policies-or he's a bull in the constitutional china shop.
This, at least, is the view expressed not only by libertarian critics and editorial writers, but also by some who believe (as I do) in giving the government powers as broad as necessary to deal with the unprecedented dangers we face. Even some Republican lawyers loyal to the Administration privately express dismay at aspects of Ashcroft's performance. Ever since he pressed Congress in September to adopt an overly sweeping first draft of his anti-terrorism bill in three days-far too little time for members to read it-"trust us" has been the essence of his approach to public relations. But trusting law enforcement to exercise coercive power without meaningful judicial oversight or public disclosure is not the American way. And Ashcroft has not always inspired trust either in his candor or in his sensitivity to civil liberties. Unless this changes, public confidence in his stewardship will sag and the war on terrorism will suffer.
In fairness, at a time when boldness is essential, Ashcroft has been bold. The attacks of September 11 presented him with the most challenging emergency any Attorney General has ever faced: the presence of unknown numbers of hard-to-identify foreign terrorists who have infiltrated our country with the intent of murdering as many men, women, and children as they can, and using the deadliest weapons of mass destruction they can obtain. This in an era when much of legal academia, the legal profession, and the media have looked upon national defense and crime fighting as tacky jobs for uncultured oafs while glorifying the rococo, truth-be-damned approach to criminal justice that produced the O.J. Simpson trial.
Ashcroft was right to reorient the Justice Department and FBI from prosecuting ordinary crimes to preventing terrorist mass murders. Our top law enforcement agencies should focus on the biggest dangers, which do not include bank robberies, drug deals, or car thefts. And it's quite possible that Ashcroft has averted further massacres by using a broad net to round up and detain hundreds of people who just might be terrorists, without waiting to accumulate evidence that would stand up in court.
The Attorney General was also appropriately bold in helping craft the military-detention and military-trial options announced on November 13 by President Bush. With terrorist attacks potentially threatening even "the continuity of the operations of the United States government," in the President's words, the government needs a process for incapacitating and punishing presidentially accused war criminals without publicly disclosing intelligence sources and methods, without risking suppression of relevant evidence, and without inviting further terrorist attacks upon prosecutors, judges, juries, witnesses, courthouses, and U.S. citizens abroad. Historical precedents-including a unanimous 1942 Supreme Court decision (Ex parte Quirin) upholding the military trials of eight German infiltrators bent on sabotage and terrorism-fit Al Qaeda terrorists like a glove. And desperate times call for desperate measures.
But desperate times also call for energetic efforts to avoid gratuitous harm to our freedoms and to the traditions of judicial supervision and public accountability for law enforcement activities as momentous as the detentions of hundreds of probably innocent foreigners and the undermining of detainees' rights to confidential counsel. In this regard, Ashcroft does not look so good.
Most troubling is his persistent refusal to disclose the names of, or charges against, the more than 1,180 men who have been detained, or even to reveal how many are still behind bars. Not since the World War II internment of Japanese-Americans have so many people been locked up for so long with so little explanation. The same logic that made it prudent to err on the side of overinclusiveness in rounding up all possible suspects after the crimes of September 11 makes it imperative to ensure that these presumptively innocent people are treated with consideration and respect, that they have every opportunity to establish their innocence and win release, and that they do not disappear for weeks or months into our vast prison-jail complex without explanation.
Yet an unknown number of these people have apparently been held for many weeks, even though Homeland Security Director Tom Ridge has said that investigators have no evidence that any of them are terrorists. The harrowing tales told by some of those who have been released do not inspire confidence in the fairness and professionalism of the process they endured. And the assertion by Ashcroft spokeswoman Mindy Tucker that "privacy rules, grand jury regulations and judges' specific orders" require the extraordinary secrecy surrounding these detainees looks like a pretext, to former Justice Department officials familiar with the relevant rules and regulations.
Also troubling is Ashcroft's October 31 rule authorizing the Justice Department to listen in on consultations (both face-to-face and by telephone) between detained people-including those charged with no crime-and their attorneys. There is, to be sure, a real danger that some detained terrorists might use their lawyers, legal assistants, or translators as witting or unwitting conduits for messages designed to facilitate terrorist acts by others on the outside. But "I know from experience," says a former Justice Department official, "that the FBI is suspicious of a lot more attorneys than is justified." In the past, Justice has sought judicial permission to listen in when warranted by the circumstances. Neither Ashcroft nor Tucker-a 31-year-old former campaign press secretary with no legal or journalistic background-has offered a serious justification for bypassing the judiciary now.
This regulation is likely to destroy the candor of detainees' consultations with their lawyers-both are ordinarily to be notified that the government will be listening-notwithstanding a provision walling off the officials who will do the listening from the prosecution team. For example, a detainee who had some innocent but suspicion-provoking contact with one of the September 11 hijackers might lie to his lawyer about this if he knows (or suspects) that the government is listening. This could in turn destroy the lawyer's ability to convince authorities of the detainee's innocence. While Tucker claims that only a handful of detainees' conversations will be monitored in this way, the number could grow over time. The Attorney General should not arrogate unilateral power to intrude so deeply into attorney-client relationships unless he has some as-yet-unexplained reason for bypassing the judiciary.
Nor does Ashcroft bolster his own credibility when he preaches opposition to all forms of ethnic profiling, while at the same time presiding over the detentions of hundreds of Middle Eastern men-based on minor immigration or criminal charges that would not be used to detain (for example) a group of similarly situated Swedes-and while announcing plans to question another 5,000 who have legally entered the United States since January 2000. Such national-origin profiling seems justified by the unique threat emanating from the Middle East. But Ashcroft should drop the pretense that he shuns profiling.
The Administration begins this war with a large reservoir of public confidence that it can pursue our enemies at home and abroad without trampling our most precious liberties, traditions, and values. But in the long run, that confidence will drain away unless Ashcroft and his colleagues earn it.
Correction: My October 27 column oversimplified in saying that "current case law would ... expose officials who use coercive interrogation of any kind to damage lawsuits, dismissal, conceivably even prosecution." In fact, most courts have held that mere violation of the Supreme Court's Miranda rules, which are designed to prevent coercive interrogation by barring the use of any resulting evidence at the suspect's trial, do not expose the violator to civil or criminal liability.
Stuart Taylor Jr. National Journal