John Ashcroft on Trial

Turning Justice on Its Head

Having criticized Jesse Jackson often in this column for his solipsistic views on civil rights and other issues, I have to give him credit for speaking out about the Bush-Ashcroft blight on the Constitution, whose dangers transcend race, gender, and class divisions.

In Atlanta, as quoted by National Public Radio, Jackson said: "We're in a very dangerous state where in the name of [fighting] terrorism, our civil rights and civil liberties have now been seized. When Ashcroft and the CIA and the FBI and Homeland Securities and the right-wing media and the IRS can work together as they are [under the USA Patriot Act], look out, COINTELPRO. Look out, Red Squad."

As noted here, Ashcroft has revived the FBI's totally discredited COINTELPRO program, which flourished from 1956 to 1971, during the anti-war and civil rights movements. In those years, the bureau monitored, infiltrated, and disrupted an array of religious and political organizations that were critical of various government policies. One of its targets, wiretapped and bugged, was Martin Luther King.

Rabbi David Saperstein: "Justice, justice, shall you pursue!"
photo: Bill Burke/Page One
Rabbi David Saperstein: "Justice, justice, shall you pursue!"

Among Jewish organizations, however—with only a few exceptions, also detailed in last week's column—there has been a retreat from civil liberties concerns. Moreover, according to an American Jewish Committee poll, a majority of American Jews favor the administration's increasing powers of investigation.

Ami Eden broke this story in the December 21 Forward. The New York Times followed on January 3, with Laurie Goodstein reporting: "Jewish groups long known for their outspoken defense of civil liberties have been silent on or even supportive of the Bush administration's counterterrorism legislation, breaking with their allies in the civil liberties movement. . . . "

Abraham Foxman, national director of the Anti-Defamation League, which has offered approving testimony to Congress, told the Times: "We have been out there very clearly and very directly supportive of this new legislation and giving law enforcement more power to be able to act to prevent criminal acts." Like the acts of COINTELPRO?

The American Jewish Committee is not as enthusiastic an admirer of Ashcroft as the ADL. It feels some safeguards should be added to Bush's military tribunal order, but the AJC's legislative director, Richard Foltin, told the Forward: "We have not wanted to jump to say that the [administration's policies] are unacceptable and out of hand." But already, severe objections by legal scholars and editorial writers have forced the Defense Department to redraft Bush's original order, which flagrantly contravened not only core American due process rights but also the Geneva Conventions concerning prisoners of war.

To publicly and vigorously object to Bush's imperial decree—issued without any consultation with Congress—did not require a jump. Just a little courage.

By contrast, upholding the Jewish traditions of justice—which are based on civil liberties—Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, and Rabbi Eric Yoffie, president of the Union of American Hebrew Congregations, sent a strong letter of concern to Attorney General Ashcroft. It was written on December 18, when the American Jewish Committee was forthrightly deciding not to jump.

Speaking for "1.5 million Reform Jews in 900 congregations across North America," Saperstein and Yoffie, who saw no need for timidity, told Ashcroft that "we must be vigilant in ensuring that the investigation into the terrorist attacks does not undermine the very liberties that make this country worth celebrating and protecting. . . .

"We are particularly troubled by your recent directive allowing federal officials to listen in on conversations between certain detained individuals and their lawyers. This sweeping measure, which was instituted without congressional approval or public deliberation, is a particularly troubling case in point. It weakens not only the protection of attorney-client privilege, but the basic right to competent legal counsel altogether. Lawyers cannot advocate for their clients effectively if they must constantly fear undermining their cases by merely speaking with the individuals they are sworn to represent."

There was a crucially important section: "We are also concerned that prosecutors are calling on judges to deny bond to detained individuals [those held by Ashcroft] based on little significant evidence. The Washington Post recently revealed the existence of a secret affidavit asserting that detainees should continue to be held on often minor violations, even without a viable argument connecting them to September 11.

"This legal document turns the traditional presumptions of our criminal justice system on their head, essentially arguing that judges should deny bail to individuals based not on the evidence placed before them, but rather on the lack of evidence, on the promise of a prosecutor that the individual in question fits into a 'mosaic.' That legal argument makes it nearly impossible for a defense attorney to prevent her client from being detained." (Emphasis added.)

That single paragraph—more than all the other criticisms of Ashcroft by other organizations—most clearly illuminates the vacuousness of John Ashcroft's legal reasoning. An alumnus of the University of Chicago Law School, Ashcroft should file suit to get his tuition back.

What are the other Jewish organizations afraid of as they hold back from confronting Ashcroft and Bush for their attack on what ACLU president Nadine Strossen accurately calls these "core American values"?

They are also core Jewish values. In their letter to Ashcroft, rabbis Saperstein and Yoffie said to that biblical scholar: "As you know, Deuteronomy 16:20 enjoins us, 'Tzedek, tzedek tirdof—Justice, justice shall you pursue.' Biblical commentators have suggested that the word justice is repeated in this powerful passage to teach us that we must act justly in the pursuit of justice; that we must insist on both ends and means."

As for military tribunals, these rabbis tell Ashcroft to "not abandon the principles that make both justice and freedom essential values of America's legal fabric." Amen.

 
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