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Ashcroft Deconstructed

By Jacob Weisberg
Posted Friday, Dec. 7, 2001, at 11:54 AM ET

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.

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Jacob Weisberg is editor-in-chief of the Slate Group and author of The Bush Tragedy.

Photograph of Ashcroft testifying on Slate's Table of Contents by Win McNamee © Reuters 2001.

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What else did Weisberg expect from an attorney general (1) who was in a defensive mode (Ashcroft hadn't been invited to give a commencement address, but had been summoned on the carpet by the legislature)(2) whose job is to advance the political agenda of the Administration in the legal arena (the Justice Department is not the Supreme Court), and (3) who was armed with polls showing that most of the American people are just fine with whatever repressive measures fine native sons like Bush and Ashcroft think may be necessary against foreigners?

Indeed, how could Ashcroft have defended measures like these in any other way? Hysterical measures require hysterical justifications.

--Yukon

(To find or answer this post, click here.)

If you can't win a criminal trial in federal court against Mr. bin Laden, maybe you don't have enough evidence to start a war… If the federal government can't convince 12 people that Mr. bin Laden is guilty of conspiracy to destroy the WTC and the murder of several thousand people two possible things are true: 1) the federal prosecutor and his boss, Mr. Ashcroft, are incompetent to an unbelievable degree: or 2) that there wasn't enough evidence to go to war. If you really don't believe those things are true, then only a coward doesn't have a trial. Are you a coward? Is Mr. Ashcroft? If the answer is that it is not convenient to have a trial then you are not really an American, but some sort of anti-Constitutional terrorist.

--Neill Hamilton

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I think there are a fair number of people who are looking for something to criticize in the Administration's handling of internal security issues, a somewhat smaller number who are looking for a reason to panic, and some few who are looking for an opportunity to take down John Ashcroft because he is a) a conservative and b) an evangelical Christian.

Having said that, I still think the tone Ashcroft took before the Senate Judiciary Committee was profoundly unfortunate. There is ample evidence that officials within the Justice Department and White House are aware that some of the provisions of the Executive order authorizing military tribunals may go farther than we need to, and that not all the foreign nationals detained since September 11 are connected with terrorism. I expect Administration policy at some point to be adjusted accordingly. In the meantime, defensiveness and ferocity toward Administration critics serves no useful purpose now, and later will make the Administration look foolish when, inevitably, its policy will change in ways that recall some of the criticism it is getting today.

Does this mean Ashcroft should just absorb criticism and not hit back at his critics? Well, yes. That's precisely what it means. This is not an election campaign; getting off cheer lines for the benefit of the general public will not help Ashcroft later when some of the people he not very subtly accused of giving comfort to terrorists will sit in judgment of Administration legislation and judicial nominations.

Some will respond to this that many Judiciary Committee Democratic Senators are themselves only interested in scoring points before television cameras; with public opinion so strongly behind the Administration, most of them backed off or made their complaints off-camera. This, I'm afraid, is fair comment. It is also beside the point. Ashcroft, not the Senators, is the responsible official. How he deals with questions and criticism now when he is popular will help determine how successfully he will be able to weather some future crisis when he will not be.

--Joseph Britt

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