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A Times Editorial
© St. Petersburg Times, published December 10, 2001
Attorney General John Ashcroft's performance before the Senate Judiciary Committee last week was stunning for its arrogance and its contempt for the democratic process. The hearing was convened by Sen. Patrick Leahy, D-Vt., the committee chairman, to question the Justice Department's tactics in investigating terrorism. The session was a legitimate and responsible exercise of congressional oversight authority. But Ashcroft, in dismissive fashion, suggested that any inquiry into his controversial antiterrorism policies was an act of disloyalty.
To understand why so many people have concerns about Ashcroft's leadership, consider his remarks to the committee: "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve."
Ashcroft was at the hearing for hours, but little of that time was spent clarifying the national security need for his department's new policies. He refused to give direct answers to a variety of questions posed by Senate Democrats concerning the breadth of President Bush's order establishing secret military tribunals and Ashcroft's decision to allow the government to listen in on attorney-client conversations. Instead, Ashcroft suggested that those who question the administration's actions or motives are unpatriotic. His smugness was no doubt influenced by public opinion polls suggesting that most Americans accept virtually any government action in the name of fighting terrorism. A responsible attorney general would feel an obligation to try to address the committee's questions about some of the legal and constitutional issues surrounding the extraordinary new powers the executive branch has amassed.
In the face of Ashcroft's indignant and often unresponsive answers, committee Democrats, as well as Arlen Specter, a Pennsylvania Republican, pressed ahead with their questions about the due process rights of detainees and the protections that should be built into Bush's plan to try foreign terrorists before military tribunals. Leahy and his fellow Democrats are not opposed to the limited use of military tribunals. Their concern is the broad sweep of the Bush plan. Leahy said some of his concerns about the presidential order creating military tribunals had been allayed by the recent comments of administration officials who suggested it would be applied more narrowly than the language in the order suggests. Even so, he is asking the administration to consider writing some clarifications into law.
Ashcroft told him to take it up with Secretary of Defense Donald Rumsfeld, who is in charge of the tribunals.
As the stories of the men and women who have been detained as part of the Justice Department's terrorism investigation start to dribble out, there are some disturbing allegations of mistreatment that the attorney general needs to address. Former detainees are saying they were denied access to their lawyers, held in maximum security facilities with hardened criminals and treated harshly while incarcerated.
Stories like that of Ali Al-Maqtari, a French teacher from Yemen who is married to an American Muslim. Al-Maqtari spent 47 days in jail after he and his wife were picked up and questioned at a U.S. Army base where his wife was reporting for duty. They were targeted for questioning after his wife wore a head scarf when picking up her Army orders. During his incarceration at the West Tennessee Detention Center, Al-Maqtari told the Senate Judiciary Committee, he was barely given access to his attorney and was put in a segregation unit on 23-hour lockdown near some of the center's worst criminals.
It's hard to know what to make of these allegations of mistreatment -- are they true, false or exaggerated? -- because Ashcroft refuses to respond. He keeps assuring the public that the Justice Department is respecting the Constitution as it investigates the Sept. 11 attacks. However, he has refused to release even the most basic information on who is being detained -- or why -- to the public or to members of Congress. It wasn't until the Senate Judiciary Committee announced it would hold hearings on the detainees that the Justice Department agreed to disclose the number of people still in federal custody. Most of the detainees are being held on minor criminal charges or visa violations -- the kind of law-breaking that rarely warranted notice before Sept. 11.
At the very least, Ashcroft should address these allegations. One detainee who was released after more than 40 days in prison described being kept in "the hole," a punishment wing, where the bed is a metal slab kept uncomfortably cold. A Jordanian student, held for making false statements, claimed he was abused by guards who, among other torments, grabbed his hair to make him face an American flag.
The Immigration and Naturalization Service admits that a number of detainees have staged hunger strikes in protest of their conditions of confinement and the indeterminate status of their cases. And attorneys for some of the detainees say the government purposely made it difficult for them to gain access to their clients by refusing to disclose their location.
For more than two months Ashcroft has been allowed to conduct an investigation without interference from Congress. Last week, Leahy's committee finally got around to asking the attorney general to explain himself. Ashcroft told the committee to butt out and mind its own business. Talk about contempt for Congress.
The criteria announced by the Justice Department is simple: question 5,000 young men from countries primarily in the Middle East, who arrived in the United States on temporary visas within the last two years. The Bush administration says it wants to pick the brain of anyone who might have knowledge of terrorist activities and calls the interviews voluntary. But Arab-American groups and immigration lawyers call it a dragnet.
Clearly, our nation is involved in an investigation unlike any that has ever been launched. It is incumbent on our law enforcement agencies -- federal, state and local -- to follow every responsible lead and to root out al-Qaida members who may still be in our midst. But that doesn't justify sweeping up certain immigrants for heightened police scrutiny based solely on their country of origin. (Some local law enforcement agencies are refusing to cooperate in what they consider ethnic profiling).
Of course, police do not violate constitutional rights when they are merely asking questions. But for that exchange to be truly voluntary, there can be no expressed or implied negative consequence for refusing to participate. Ashcroft says the interactions will be "as kind and fair and gentle as we can (make them)." Yet, police interrogations are intrinsically intimidating experiences, and for men who come from countries where police questioning is never benign, the experience could be jarring. Many of these young men have a precarious immigration status, and they may come to believe that they will be deported unless they cooperate fully. A recent memorandum sent by the Immigration and Naturalization Service to its regional offices directs INS agents to hold men with immigration violations without bond if requested by federal investigators.
It is hard to reconcile the dual messages coming from the administration. One day President Bush is hosting Muslims at the White House, visiting a mosque and admonishing Americans not to lump all Middle Easterners and Muslims together as suspected terrorists. The next day the administration announces that it is targeting men from Muslim countries for extensive questioning about their travels inside and outside the United States, the people they phone, and where and with whom they have resided in the United States. If Bush wants Americans not to generalize about a community, he should reconsider this dragnet and return to more surgical investigative techniques -- the kind that focuses on individuals, not groups. Even some respected former federal law enforcement officials, including former FBI director William Webster, have criticized the use of mass questioning as a proven failure and a waste of time and effort.
Some of our potential allies in this war on terrorism could be the patriotic Arab and Muslim communities in the United States and the Muslim men and women who have enjoyed visiting our country as tourists and students. However, if we stay on the course Ashcroft and Bush have set, we risk losing their cooperation and support.
These issues need serious debate, and it is not disloyal for Congress to ask questions.