- The Washington Times - Friday, December 7, 2001

Attorney General John Ashcroft answers the congressional critics of the Bush administration's prescription of drumhead justice for terrorists with a simple argument: "We're government lawyers, trust us."

This is not very persuasive, and until he became part of the government Mr. Ashcroft himself never appeared to find such an argument persuasive. The growing chorus of critics of the drumhead justice system, most but by no means all Democrats, have heard assurances like this before, from liberal, conservative, Republican and Democratic governments. So the critics invoke the spirit of Ronald Reagan: "Verify."

The back and forth yesterday at the Senate Judiciary Committee hearings on the Justice Department's reach for new and remarkably sweeping powers of arrest, detention and conviction, was sometimes sharp and contentious, as such hearings should be, and settled nothing.

The administration is digging in, verifying nothing, stubbornly defending the indefensible and counting on public fear, bordering on terror, to trump the argument of the critics, who despise the terrorists as much as anyone but who insist it isn't necessary to trash constitutional guarantees to give evil-doers what they have coming to them.

Mr. Ashcroft, counting on the revulsion everyone feels toward Islamist killers, testified that the killers are very bad, as if we didn't know that. He held up the al Qaeda manual on terrorism as the proof that nobody needs to understand that "we are at war with an enemy that abuses individual rights as it abuses jetliners. Defending our nation and its citizens against terrorist attacks is now our first law enforcement priority." (Let's hope so.)

He insisted that the president's proposed military tribunals are not really as bad as they actually are: "Charges of kangaroo courts and shredding the Constitution give new meaning to the term 'the fog of war.' "

But he offered nothing to actually rebut the argument that the tribunals which would eliminate the presumption of innocent until proved guilty, independent juries, the right to choose a lawyer and the right of appeal to a higher court have made kangaroos blush from coast to coast. Instead, Mr. Ashcroft merely repeated a mantra, which nobody disputes, that the evil-doers are, well, evil.

"My day begins with a review of the threats to Americans and American interests," he said. "If ever there were proof of evil in the world it is in these reports. They are a chilling daily chronicle of the hatred of Americans by fanatics, who seek to extinguish freedom, enslave women, corrupt education, and to kill Americans wherever and whenever they can."

Naturally, some of the senators, being senators, were more offended by slights to their ample persons than by offenses to the Constitution, particularly by the fact that President Bush didn't ask them first before he issued the executive order establishing the military tribunals.

The senators, and their counterparts in the House (if there is such an animal as a counterpart to a senator), could amend or even countermand the effects of the president's order. But such is the climate just now that a senator might imagine that he would be committing suicide (with no reward of 72 virgins). Nearly everyone, certain government officials in particular, is scared, and in fact one of the arguments the Bush administration offers is that no civilian jury could summon the courage to convict, lest the jurors become prey to al Qaeda hit men. This argument insults the courage of jurors, who demonstrate in courts across the land that they can and will stand up to thuggish evil. The average American is always more courageous than the average lawyer, politician or government official.

But the provisions that sound the loudest alarms are those that violate the most sacred principles of American justice, that the accused is not guilty until proved guilty, and, above all, has the right to appeal the verdict.

The chorus of critics, tentative at first but growing stronger, is not, as advocates of drumhead justice want everyone to believe, a chorus of liberal and hysterical Democratic voices. Republicans and conservatives are alarmed, too, and so are certain members of Mr. Bush's own administration as they consider the consequences.

It's particularly sad because George W. has done nearly everything right, and done it with dash and grit, vindicating those of us who argued all through a nasty election campaign and the Florida aftermath that he was the right man at the right time. He listened to the lawyers, which is always risky, and they gave him bad advice. Sticking with the tried and true won't deprive us of hangings. It's just not necessary to turn the job over to kangaroos.

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