- The Washington Times - Tuesday, December 4, 2001

Here in Washington, conservatives are calling it the "new war on Ashcroft." Sen. Patrick Leahy, the profoundly partisan Democratic chairman of the Senate Judiciary Committee who roughed up Mr. Ashcroft once already during the attorney general's nomination battle, has launched a round of hearings on various measures taken and not taken by the Justice Department.

The first session, impressively titled "Department of Justice Oversight: Preserving Our Freedoms While Defending Against Terrorism," featured Michael Chertoff, the chief of the Justice Department's criminal division, as the primary witness. But what's funny is that the Justice Department had to ask Mr. Leahy to invite someone from the Justice Department in the first place (as first reported by my colleague, Byron York of National Review). Apparently Mr. Leahy's agenda didn't include actually seeing anyone from the agency he's overseeing.

According to Mr. Leahy and a menagerie of self-described civil libertarian activist groups including some on the right Mr. Ashcroft supports such things as summary executions, secret trials and various "Orwellian intrusions" into the private lives of millions of Americans. (Full disclosure: My wife works for Mr. Ashcroft, but she doesn't tell me any of the cool stuff.)

Ralph Neas of People for the American Way, who was one of the leaders of the anti-Ashcroft effort at the time of his nomination, recently denounced Mr. Ashcroft as "the most dangerous threat to civil liberties in the federal government" and accused him of conducting a "relentless assault on constitutional rights and civil liberties."


Let's put aside the more cynical assessments flying around Washington that the war on Mr. Ashcroft is really an effort to punish the Bush administration for not consulting with Congress enough and, also, a partisan move by Leahy & Co. to avoid considering any Bush judicial nominees until after the 2002 congressional elections.

Can we all concede that the attorney general has to do something to prevent further terrorist attacks and punish those responsible? I mean, John Ashcroft isn't the secretary of agriculture; his job as the nation's chief law-enforcement officer, after the president, should at least keep him in the loop on some of the more important decisions.

Since all reasonable people can agree I hope that something needs to be done and that Mr. Ashcroft needs to be one of the people doing it, it would also be nice to recognize that pretty much anything the attorney general does will be criticized by someone, somewhere. You simply cannot conduct the most exhaustive criminal investigation in this country's history, and perhaps world history, while simultaneously trying to prevent another terrorist attack, without making someone upset.

It's easy, for example, to forgive some Arab-Americans for being perturbed. We all know that not everyone of Middle Eastern descent is a terrorist, but law-enforcement and intelligence agencies must also recognize that all of the terrorists associated with the September 11 attack were from the Middle East. This inconvenient fact makes it unavoidable that some people of Middle Eastern and Muslim extraction are going to be hassled more than people with, say, Belgian and Quaker backgrounds.

Which raises the relevant question: Is the Justice Department acting reasonably? Of course, it's going to make mistakes. That's what government agencies do. But the rhetoric "Orwellian," "tyrannical," etc. so far outstrips any reasonable criticism as to make one wonder if the more cynical interpretations are the only plausible explanations.

Is there any way the attorney general can do his job without inconveniencing some perfectly innocent people? Of course not. Investigators have to ask questions and investigate some innocent people in order to catch guilty people. We certainly don't want to live in a country in which being questioned by the police is the automatic equivalent of a conviction. And then there are the guilty people. They, too, will be inconvenienced.

Perhaps Mr. Ashcroft's most controversial decision involves the Bureau of Prisons policy to eavesdrop on detainees suspected of involvement with terrorism. The justification for this policy is that authorities don't want prisoners sending signals to terrorist cells without us knowing about it.

Now, I suppose it's reasonable to criticize this approach as unnecessary, though I don't think it is. But it's hard to understand how it could be described as Orwellian. First, the lawyers and the prisoners will be informed that others are listening so technically, it's not even eavesdropping. Second, none of the information gained from this monitoring can be used in court or even be shared with prosecutors without permission from a federal judge. "Was Big Brother ever this courteous?" asked the editors of the Wall Street Journal. According to the latest Washington Post/ABC News poll, 73 percent of Americans support this supposedly un-American policy.

As for the use of military tribunals, that decision is made by the president, and it's a power that has been upheld by the Supreme Court.

As a columnist, I'm the first to concede that the luxury of not having to make the tough decisions buys a lot of maneuvering room to criticize those who do. But it shouldn't be blank check to shout just any old thing that sounds good.

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