The Once and Former Rule of Law


Despite the Justice Department inspector general’s precisely detailed account of deliberate, pervasive violations of the rights and liberties of hundreds imprisoned by John Ashcroft in the wake of 9-11, neither the inspector general nor anyone else has decided to bring any civil rights or civil liberties charges against the attorney general and those of his senior officials responsible for these constitutional offenses.

If any member of Congress should ever begin to consider seriously examining the attorney general’s qualifications for his office—which begin with his knowledge of the Constitution—I submit a revelation from Steven Brill’s After: How America Confronted the September 12 Era (Simon and Schuster).

The passage is in a section reporting on Ashcroft’s haste, as soon as possible after 9-11, to push the USA Patriot Act through Congress. The White House, Brill reports, was concerned because Ashcroft had been in such a hurry that he hadn’t first consulted even Republicans in Congress about the bill before it was sent to that body. Nor had the bill yet been circulated and “scrubbed” by the White House staff.

Brill explains: “Beyond his predilection to control as much as he could, some on his own staff thought that another reason Ashcroft hadn’t ‘scrubbed’ the bill beforehand was that he didn’t appreciate the significance of the prosecutor-written laundry list he was proposing.

“Although Ashcroft is a graduate of the highly regarded University of Chicago Law School and a former Missouri state attorney general, even some of his own deputies [in the Justice Department] were surprised by how uninterested he was in the niceties of the law,” Brill continues.

Brill’s sources for the startling information that follows are “two senators, one a Republican, the other a Democrat, [and] one veteran Justice Department senior lawyer.”

He adds that “one veteran staffer recalls that throughout six different meetings on this bill and on another key legal initiative, he had never once heard Ashcroft cite a legal case. . . . Two senators—one a conservative Republican, the other a moderate Democrat—who spoke with Ashcroft at about this time were surprised at his lack of command of the basic issues. Whether it was lack of interest or lack of intellectual firepower, the Attorney General seemed not to appreciate the complexities of the constitutional issues he was dealing with.”

I have watched, on C-SPAN, the attorney general’s appearances before congressional committees, and while he often insists that everything the Justice Department has done in the name of security is “within the bounds of the Constitution,” he seldom cites Supreme Court precedents. When he does, he neglects the full context of the decisions, which sometimes conflict with his quick conclusions.

The chief law enforcement officer of the United States need not be a constitutional scholar, but this attorney general’s deficiencies in the essential tools of his trade were especially evident, as After shows, when they were sorely needed—in those weeks after 9-11 when he was rushing through Congress the Patriot Act, the final version of which many members of Congress later said they hadn’t had time to read. They had to trust the attorney general.

It could be illuminating if, at a Senate hearing, Democratic senator Patrick Leahy of Vermont, the ranking minority member of the Judiciary Committee, were to—without advance notice—give the attorney general a spot examination on the Bill of Rights. How does he interpret the Fourth Amendment (“the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”)? And the Fifth Amendment’s guarantee of “due process of law”?

I would also greatly welcome the attorney general’s reactions to a fundamental definition of Americanism by the late, extraordinary paladin of the Bill of Rights, attorney Edward Bennett Williams. In his One Man’s Freedom (Atheneum), which demands to be reprinted, especially now, Williams described our most essential bulwark, as individual Americans, against overreaching government power:

“By civil liberties, I mean an individual’s immunity from governmental oppression. A society which respects civil liberty realizes that the freedom of its people is built, in large part, upon their privacy. The Bill of Rights, in the eyes of its framers, was a catalogue of immunities, not a schedule of claims.

“It was, in other words, a Bill of Liberties. The immunities defined in this Bill of Liberties were set forth in order that the promise of individual freedom might be made explicit. The framers dreamed that if their hope were codified, man’s energies of mind and spirit might be released from fear.”

John Ashcroft’s reign as attorney general has instilled fear not only among immigrants here, many of them with long, deep roots and families in this country, but also among citizens across the political spectrum, who have organized more than 100 Bill of Rights Defense Committees to safeguard themselves and their communities against Ashcroft!

Meanwhile, is anyone in the national government going to do anything about this fact—not just a charge—cited on Jim Lehrer’s NewsHour (June 3) by Anthony Romero, executive director of the American Civil Liberties Union?: “Videotapes that were taken of the immigrants in detention . . . to safeguard against their abuse . . . were destroyed contrary to a policy that . . . was meant to keep these videotapes indefinitely, all of this coming from the Justice Department itself.” (Emphasis added.)

Romero continued: “And over the last 18 months we have heard from Justice Department officials insisting that they have done nothing wrong, and they continue to assert that even though their own Justice Department [inspector general’s report] asserts otherwise . . . [in a 198- report that documents fully the level of abuses and changes in policies that trampled on rights of immigrants.”

That, Romero fairly shouted, “is not an ACLU report. It’s a Justice Department report!”

When will Congress rid us of this despoiler of the Constitution?