- The Washington Times - Friday, November 12, 2004

Outgoing Attorney General John Ashcroft yesterday, in a stinging rebuke, accused federal judges of jeopardizing national security with rulings that contradict President Bush’s constitutional authority to make wartime decisions.

Mr. Ashcroft warned against “excessive judicial encroachment on functions assigned to the president” in his first major address since his resignation was announced Tuesday.

Mr. Ashcroft told the conservative Federalist Society during a Washington meeting that a “profoundly disturbing trend” among some federal court judges interfered with the president’s obligations under international treaties and agreements.

“The unity of the executive power in the person of one individual, the president, is the great keystone of political accountability in our government. After all, the president and his chosen vice president are the only officers of the United States who are elected by all the people of the United States,” Mr. Ashcroft said.

“The essential constitutional understanding is that courts are not equipped to execute the law,” he said. “They are not accountable to the people. … And they lack the knowledge, they lack the expertise essential for the effective administration of various parts of government.”

But Mr. Ashcroft said the country is confronted by a “growing tendency” of the courts to inject themselves into the president’s constitutional authority, including his conduct of the war on terrorism.

“Ideologically driven courts have disregarded and dismissed the president’s evaluations of foreign-policy concerns in favor of theories generated by academic elites, foreign bodies and judicial imagination,” he said.

“They throw out the collective wisdom and humility of judges of past generations, and they threaten the president’s constitutional responsibility to defend American lives and liberties.”

Mr. Ashcroft has been a lightning rod of criticism from Democrats, civil rights groups and community organizations who attacked his policies and enforcement efforts, including his staunch defense of the USA Patriot Act, which has come under the scrutiny by both Democrats and Republicans.

Anthony Romero, executive director of the American Civil Liberties Union, yesterday described the attorney general’s comments as “true to form, showing John Ashcroft’s continuing disdain for judicial review of government policy in the war on terror.”

“Every step of the way, he has insisted that judicial review was not appropriate or necessary despite rebuts by the Supreme Court and other lower courts,” Mr. Romero said. “His legacy will be that he was outright hostile to the protections of civil liberties. His divisive tone has made a large portion of the public view him as the enemy.”

Mr. Ashcroft, who will remain in office until his designated successor, White House Counsel Alberto Gonzales, is confirmed, said that “intrusive judicial oversight and second-guessing of presidential determinations” put the nation’s national security at risk at a time of war, adding that “risks of invasive oversight and micromanagement” had become “all too familiar.”

“Our nation and our liberty will be all the more in jeopardy as the tendency for judicial encroachment and ideological micromanagement are applied to the sensitive domain of national defense,” he said. “Dangerous and constitutionally questionable judicial action raises the stakes for our nation.”

His comments came as the Justice Department prepares to challenge a ruling by U.S. District Judge James Robertson in Washington in the case of al Qaeda terrorist and Guantanamo Bay detainee Salim Ahmed Hamdan, whose trial by a military commission was halted when the judge ruled against a Bush administration decision saying the Geneva Conventions governing prisoners of war did not apply to al Qaeda members.

Mr. Ashcroft did not mention the case, but said court rulings that find “expansive private rights in treaties where they never existed” were counter to the president’s constitutional authority.

Hamdan, 34, has been identified by federal law enforcement authorities as the former personal chauffeur for al Qaeda founder Osama bin Laden.

Earlier this year, the Supreme Court ruled 6-3 that foreign nationals held at U.S. Naval Base Guantanamo Bay, Cuba, could file suit in U.S. courts to challenge their captivity. The Bush administration had insisted otherwise.

“Federal court jurisdiction is permitted in these cases,” said a majority opinion by Justice John Paul Stevens and joined by Justices Sandra Day O’Connor, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Justice Anthony M. Kennedy concurred.

The dissenters were Chief Justice William H. Rehnquist and Justices Clarence Thomas and Antonin Scalia, who essentially agreed with the Bush administration’s claims that Guantanamo was beyond the jurisdiction of U.S. courts.

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