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© St. Petersburg Times, published September 1, 2002
Five. That's the number Attorney General John Ashcroft must turn over in his mind. "Do I have five? Will Kennedy's mild libertarianism or O'Connor's fact-based decisionmaking scuttle it all?"
Welcome to Ashcroft's nightmare. He knows he needs the Supreme Court to continue arrogating power. With Congress continuing to bow and scrape, the court is the one body that can still stop him from conducting this "war" on terrorism as if it were his own private sandbox.
Sure, lower courts are taking swipes at his tactics, but they're not the big boys. A few setbacks and some angry words by appellate and district judges about how his insistence on secrecy is damaging our democratic traditions are about as troubling to Ashcroft as off-balance-sheet losses are to an Arthur Andersen accountant. His appeal machine keeps on chugging, making clear there is only one opinion Ashcroft credits -- that of the U.S. Supreme Court.
So what kind of Supreme Court will we have during this particular national crisis? Will we have the World War II-era Korematsu court? The one willing to give the president the power to imprison 120,000 Japanese immigrants and Americans of Japanese descent in the name of national security? And the one which, in another case, allowed Americans to be tried as enemy combatants outside the civil court system?
Or will we have the Vietnam-era Pentagon Papers court? The one casting a skeptical eye on the government's claims that publication by the New York Times of a classified analysis of America's creeping involvement in Vietnam would do "irreparable damage" to national security?
In 1971, despite the ongoing war, Justice Hugo Black wrote: "The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged." (After publication of the Pentagon Papers, the only damage was to the government's credibility.)
This kind of ringing endorsement of liberty -- and inherent cynicism of government's attempt to limit it -- is in short supply on today's court. Ashcroft knows this. He is counting on the Rehnquist court's conservative majority to embrace his view, as put forth in the Justice Department's legal arguments, that the executive branch has the unique and unreviewable authority to protect the nation any which way it wants. If he can muster five votes endorsing this philosophy, he will be able to blithely continue his policies of secret deportation hearings, secret detentions, lowering proof thresholds for wiretap orders and having Americans imprisoned without access to counsel or communication with the outside world.
But does he have the votes?
The court has acted in only one post-Sept. 11 case to date. In a case out of New Jersey, a federal court judge ruled the government had to open up secret deportation hearings to the press and public. The Supreme Court, while not ruling on the issue, put a hold on that order at the Justice Department's request. It will remain in effect while the department appeals. Ashcroft must have been positively gleeful.
More good news for the A.G. can be found in Chief Justice William Rehnquist's book, All the Laws But One, a treatise on the way civil liberty bends during wartime and the court's historic role in seeing that it does. The book makes pretty clear Rehnquist will be highly deferential to Bush and Ashcroft.
But Rehnquist's views have never been in play when cobbling together a majority to undermine civil liberties in the name of some asserted security interest. He, along with Antonin Scalia and Clarence Thomas, have almost always been solidly "pro." Only two justices are unpredictable when it comes to unleashing government: Sandra Day O'Connor and Anthony Kennedy. And they haven't given many clues as to which side they're on.
Soon after Sept. 11 O'Connor appeared at a forum of law students in Manhattan and said: "We're likely to experience more restrictions on our personal freedom than has ever been the case in our country." She repeatedly expressed the need for caution.
Kennedy told reporters in January he was deeply concerned with some of the comments coming from students at a Washington-area Muslim high school following the attacks. He sensed the students lacked "moral outrage" over what happened. In response, Kennedy launched an educational program to teach students about America's "fundamental values."
You have to wonder whether those values include freedom from racial profiling, unjustified searches, preventive detention and secret hearings.
You have to wonder whether Ashcroft has his five.