REVIEW & OUTLOOK
The Ashcroft 'Fatwa'
Why are modest law-enforcement measures drawing hysterical opposition?Thursday, November 29, 2001 12:01 a.m.
The war on terrorism has already given Afghans a taste of long-suppressed freedom. But to hear some Americans talk, you'd think the Taliban had merely transferred their Koranic rules and holy war guidebooks to the Bush Administration, and especially the Justice Department.A strange-bedfellows coalition of everyone from Vermont socialist Bernie Sanders to the ACLU to Georgia libertarian Bob Barr is sounding alarums that the real threat to liberty comes not from Osama bin Laden, but from Attorney General John Ashcroft. The air is thick with op-ed references to "star chambers," "witch hunts" and "Orwellian" government. Pat Leahy, who runs the Senate Judiciary Committee, has suggested that the Administration favors "secret trials" and "summary executions."
It all sounds scary, if only it were true. But when you cut through the hysteria, it turns out that what Mr. Ashcroft is proposing is far from threatening. Compared with previous American wars, his actions are quite modest. In the interests of getting our libertarian friends off their Valium prescriptions, we thought we'd go through them one by one.
The main objections boil down to three: a Bureau of Prisons regulation allowing for eavesdropping on detainees; Justice's refusal to release the names of detainees suspected of terrorism; and, of course, the decision to use military tribunals to prosecute any captured terrorists.
Once you look at the actual details, it turns out they all have behind them ample legal precedent, judicial oversight or both.
Take the new regulation that allows the government to monitor conversations between detainees and their attorneys. As Assistant Attorney General Mike Chertoff told the Senate yesterday, the measure aims to cut off communications passed through a lawyer that might lead to another terrorist act. The built-in protections should indicate that protecting American lives rather than prosecuting terrorists is the clear aim here: The special team that does the monitoring cannot give the information to anyone--especially a prosecutor--without a federal judge's permission. Just as important, both the attorney and his client must be notified that the government is listening in. Was Big Brother ever this courteous?
As for those who have been detained since September 11, much of the hysteria has to do with ignoring distinctions Mr. Ashcroft has been trying to make. To hold someone as a material witness requires a court order. Fewer than two dozen are now being held as material witnesses, but they include Zacarias Moussaoui, a Frenchman of Moroccan descent who was picked up in Minnesota on immigration charges after a flight school reported he wanted lessons only on how to steer a plane. Not exactly a poster boy for Amnesty International.
Of the 603 people in custody, 55 have been charged with crimes--and their names have been released. The rest are aliens picked up on immigration violations. These people have been charged with specific violations, they have the right to any attorney and those charges are public. All Mr. Ashcroft refuses to do is release a list that would let the world know which of these detainees the government also suspects of terrorist acts.
Finally, there's the matter of military tribunals. Strictly speaking, this isn't Mr. Ashcroft's bailiwick because the responsibility for tribunal rules and procedures rests with the Defense Secretary. But since so many of Mr. Ashcroft's critics like to throw it in, it's worth remembering that the order applies only to noncitizens. There is ample precedent, not the least being FDR's use of military tribunals for German saboteurs caught in World War II. And if we want to get technical, those picked up in America who are part of al Qaeda are really spies--who don't even qualify for the POW protections of the Geneva conventions.
Probably Mr. Ashcroft and his team could do a better job of explaining these distinctions. Probably too it would help to have a formal declaration of war, though Congress's resolution the Friday after the attacks seems as close to a declaration as you can have without an obvious nation-state enemy. In any case, we are clearly in a state of war, with or without a declaration.
The underwhelming magnitude of all this makes us wonder what all the fuss is really about. Much of it sounds like a replay of the Ashcroft confirmation battle, especially when some of the same characters, such as People for the American Way, are again in the front lines. Notwithstanding Mr. Ashcroft's alleged transformation of the U.S. into a police state, it doesn't seem to have prevented Congress from exercising oversight or frightened pundits into silence.
The war in which we are now engaged is a different kind of war, one in which American civilians at home are as vulnerable as American soldiers abroad. In prosecuting such a war, the effort to flush out al Qaeda at home is as crucial to preserving American freedoms as the military effort is to crushing al Qaeda in Afghanistan.
Mr. Ashcroft understands this. If his critics calmed down and considered the facts, they might too.
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The Hun is at the gate
Wednesday, November 28, 2001
By Ann Coulter© 2001 Universal Press Syndicate
This week's winner for best comedy line about the war is New York Democratic Sen. Charles Schumer. Referring to – well, it doesn't really matter what he was referring to, but it was military tribunals – Schumer said: "To come up with the best way to do this, Congress ought to be involved."
Congress came up with the Internal Revenue code, right? And the whole United States code? That's just what we need – Congress involved in emergency national security measures!
Under the self-aggrandizing delusion that their input is necessary during wartime, various congressmen are trying to haul Attorney General Ashcroft before them to answer questions about the detentions and military tribunals for suspected terrorists.
Democrats are channeling their frustration with America's imminent military victory in Afghanistan into hysterical opposition to reasonable national security measures at home. (Incidentally, this ought to prove once and for all what a bunch of paper tigers the Russians are. What were they doing over there for 10 years? It hasn't taken us 10 weeks.)
Fortunately, Congress has no role in prosecuting this war either abroad or domestically. They are relieved of duty, free to "get back to normal," as the president has recommended – which in their case means enacting massive spending bills to fund comically useless government programs. That should make them happy.
Sen. Patrick Leahy, another Democrat, has blustered that there "has been no formal declaration of war and, in the meantime, our civilian courts remain open and available to try suspected terrorists." Consequently, he said, questions are raised "about whether the president can lawfully authorize the use of military commissions to try persons arrested here."
Though I am sublimely confident that the public will recognize Leahy for the sputtering fool that he is, I note that: We are at war. We have been at war since 8:48 a.m. Tuesday, Sept. 11, 2001. A precise talismanic formulation by Congress is not necessary to inform us of this fact.
Wars can exist even if Congress does not declare them if, for example, thousands of civilians are slaughtered in a surprise attack on American soil. On the off chance anyone didn't know that we were at war as of 8:48 a.m. Tuesday, Sept. 11, 2001, Bush said so in his address to a joint session of Congress the week after the attack: "On September the 11th, enemies of freedom committed an act of war against our country."
A formal declaration of war has certain consequences only under international law, not relevant to any domestic security measures taken under the president's war powers, such as military tribunals.
Even if "international law" were relevant here – which it isn't – as the masterful United Nations has demonstrated once again during the current conflict, international law is like Santa Claus. The only difference is that Santa Claus exists only in the imaginations of small children, whereas international law also exists in law school classrooms. In the corporeal world, international law is whatever the United States and Great Britain say it is.
Because we are at war, and moreover, because the president is the commander in chief, Bush had authority on Sept. 11 to give orders to shoot down the fourth plane if it had circled back toward Washington. Because we are at war, Bush had authority to bomb Afghanistan. He didn't need congressional approval for those actions any more than he needs congressional approval right now to try any suspected belligerents on U.S. soil in military tribunals.
If Congress doesn't like it, the Constitution gives it two choices: It can cut off funding, or it can impeach the president. Congress controls the purse – it doesn't wage war. Knock yourselves out, boys. (Has anyone else noticed there have been no polls taken on the issue of military tribunals for terrorists?)
In 1942, six months after Pearl Harbor, the Supreme Court upheld the use of military tribunals for eight German spies captured on U.S. soil, two of whom were U.S. citizens. In that case, Ex Parte Quirin, the court found that military tribunals were appropriate for suspected enemies who have "entered or after entry remained in our territory without uniform" intending to engage in an act of belligerency against the United States. (And the Huns were accused only of planning attacks on war materials – not on U.S. citizens.)
The Supreme Court decided Quirin in less than 24 hours. Three days later, the military tribunal found the saboteurs guilty. Five days after that, six of the eight were executed, including Herbert Hans Haupt, a U.S. citizen. Only the two who had ratted out the plot were given prison sentences instead of death.
Though Bush has ordered military tribunals only for non-citizens, the Quirin court did not exempt citizens from trial in military tribunals. "Citizenship in the United States" provides no shelter, the court held, if "unlawful belligerency is the gravamen of the offense." Citizens who associate with the enemy – "with its aid, guidance and direction" – are "enemy belligerents."
The fact that the "courts are open" – the phrase absurdly invoked by Sen. Leahy – refers to the Supreme Court's decision in Ex Parte Milligan holding that military tribunals "can never be applied to citizens ... where the courts are open and their process unobstructed."
Note first the use of the word "citizen" in that sentence. Note further the Supreme Court's subsequent holding in Quirin that citizens can be tried in military tribunals. Indeed, the Quirin court expressly distinguished Milligan's case from the Nazi saboteurs' case on the grounds that Milligan "was not an enemy belligerent."
When Ashcroft is forced to waste his time in Senate hearings this week instead of protecting the nation from more terrorist attacks, he should remind them that there's no exemption for senators either.
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Ann Coulter, well-known for her television appearances as a political analyst, is an attorney and self-described "bomb thrower" who has been dubbed "the Abbie Hoffman of the Right." Dubbed "one of the 20 most fascinating women in politics" by George magazine, Coulter has appeared on ABC's "This Week," "Good Morning America," NBC's "Today," "Politically Incorrect with Bill Maher," CNN's "Larry King Live" and CNBC's "Rivera Live."
MEMO TO LEFTY WHINERS: SHUT UP, ALREADY
November 29, 2001
By ANDREA PEYSERTHE squabble over military tribunals is giving me a headache.
Thousands of our countrymen were slaughtered in their workplace. Our nation is at war. Yet from the yelps emitted from pundits and politicians who claim disproportionate access to our airwaves and brain waves, the biggest menace America faces today has nothing to do with hijackers.
Our greatest threat, they say, isn't anthrax or smallpox or a well-placed nuclear bomb.
The yelpers would suggest that the major scourge facing our shores has nothing to do with foreigners who abuse our nation's famously suicidal hospitality as a means to destroy us.
No. The flavor-of-the-month bogeyman dominating leftist conversation is the military tribunal.
President Bush wants tribunals. John Ashcroft praises them. Europeans hate them, which is all right with me.
The average American isn't nearly as exercised. He knows that a judicial system capable of elevating Johnnie Cochran to celebrity status as a reward for turning O.J. Simpson's murder trial into a civil-rights circus perhaps isn't the best protection against a larger threat.
It should surprise no one that The New York Times editorial board opposes tribunals.
But it is disturbing when the usually sensible columnist William Safire shades facts to support his rabid opposition to them.
On Sunday, Safire praised Spain's reluctance to hand over eight accomplices to the Sept. 11 atrocities because the United States plans to "ignore rights normally accorded alien defendants." He selectively ignores Spain's primary beef with America - Spain doesn't want to give us the terrorists unless we guarantee none will be put to death.
Did Americans die in World War II to let Europe dictate our laws?
Left-wing lightweight Bill Press bleated on CNN's "Crossfire" that our government's detention of several hundred terror suspects amounted to "racial profiling" - because none had "blond hair and blue eyes." How does he know?
If you want the truth about profiling, look at Monday's Wall Street Journal. It reported that the FBI for a decade looked the other way as a U.S. Army sergeant of Arab descent trained soldiers for Osama bin Laden - on U.S. soil.
Ever sensitive to the rights of our guests, U.S. officials "had to steer clear of the mosques" in their fight against terrorism, an FBI agent is quoted.
This is death by political correctness.
There is precedent for our government taking bold steps to protect its citizens during times of war.
And make no mistake, your life depends on it.
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