As someone who was actually prepared to listen to Attorney General John Ashcroft's defense of military tribunals and other security measures, I have to say that I was completely disgusted by his appearance before the Senate Judiciary Committee yesterday. It was an arrogant, bullying performance that went a long way to substantiating the views of his harshest critics. Ashcroft declined to be drawn into any kind of substantive discussion of military tribunals or anything else. To fair question after fair question, his answer was essentially, "Don't you realize there are people trying to kill us?" He haughtily dismissed those of his former colleagues who dared to suggest they had some kind of standing to participate in a discussion with him. With his slurs against "Miranda rights," "flamboyant" defense attorneys, and "Osama TV," the country's top lawyer suggested that our entire system of criminal justice is an unworkable sham. Sen. Chuck Schumer was right to point out that the only part of the Constitution that seems to excite his sympathy is the Second Amendment.
But the very worst of it was the way that the attorney general cast defenders of civil liberties as witting or unwitting traitors. Ashcroft did this at the very outset, when he declared any skepticism about what he has done to be, in the infamous formulation, objectively pro-terrorist. "To those who scare peace-loving people with phantoms of lost liberty, my message is this," he said. "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."
To understand how ugly, disingenuous, and detached from reality these comments are, it is necessary to go through the AG's distortions phrase by phrase. First of all, the current loss of liberty, however tolerable or intolerable, amounts to something more than a "phantom." In the United States, wars have always meant a curtailment of civil liberties, usually in excess of any defensible necessity. The proper extent of this loss of liberty is an essential subject for democratic debate because we are not just a "peace-loving" people but liberty-loving ones as well.
To describe genuine concern about the loss of liberties as a scare "tactic" imputes ill motivation without any evidence to Ashcroft's legitimate critics on both the left and the right. And to claim that concern for constitutional rights is eroding national unity and resolve is especially twisted. National unity and resolve remain strong. But if there is any real threat to them at the moment, it comes from Ashcroft's excesses, not from the critics of those excesses. Indeed, to contend that it is somehow the defenders of civil liberties who threaten our national unity takes some chutzpah. It's the mugger blaming his victim for contributing to crime.
The same goes for Ashcroft's complaint about giving "ammunition to America's enemies" and "pause to America's friends." The best ammunition America's enemies have had since the war started is evidence that we don't take our own liberties completely seriously. With Ashcroft's help, these enemies can make the case that Arabs have no civil rights in the United States. And to be sure, our friends in several European countries have been given pause lately. But the source of their disquiet isn't bellyaching by the American Civil Liberties Union. It's Bush's executive order setting up military tribunals, an order that may conflict with international law.
As for "encouraging people of good will to remain silent in the face of evil," there's only one prominent person trying to intimidate legitimate critics into shutting up about actions they feel to be both wrong and deeply un-American at present. He is, unfortunately, the attorney general of the United States.