By: Nat Hentoff
With polls showing strong public support for the Bush administration’s war on terrorism — at home as well as abroad — U.S. Attorney General John Ashcroft opened his Dec. 6 testimony before the Senate Judiciary Committee with the grave charge that those who criticize him and President Bush on civil-liberties grounds “erode our national unity and … give ammunition to America’s enemies.”
Unintimidated, the print press — considerably more often and at greater lengths than TV — has reported mounting criticism of the presidential order authorizing military tribunals for noncitizens accused of involvement with terrorist acts. Other administration measures also have been under fire.
A particularly effective analyst of the constitutionality of the military-tribunals edict has been The New York Times columnist William Safire, writing of “Bush’s cockamamy order to deny the rule of law and public trial to those accused of terrorism.” Accurately self-described as “a libertarian conservative Republican contrarian iconoclast,” Safire, with jeremiads from his pulpit at the Times — along with caustic editorials in the Times, The Washington Post, and The Washington Times, among other papers — alerted Defense Secretary Donald H. Rumsfeld. He is in charge of drafting the regulations for the tribunals. Rumsfeld sought the advice of William H. Webster, former director of the FBI and CIA, and Lloyd Cutler, adviser to several presidents.
The result, as leaked to the press by the Defense Department, is that the final rules — unlike the sweeping original order — may require a unanimous verdict (not two-thirds) for imposing the death penalty and proof of guilt beyond a reasonable doubt, as in civilian courts, rather than merely evidence with “probative value to a reasonable person.” The original order allowed appeals only to the president and secretary of defense, but the new proposal calls for a three-judge military appellate panel.
Opponents will still have grounds for complaint. Among them, as constitutional law professor Herman Schwartz pointed out in The Nation, “the tribunal still may admit single, double, and triple hearsay” evidence — rumors, gossip — that a witness cannot verify.
Meanwhile, despite the attorney general’s implication that dissenters are unpatriotic, the press continues to reveal such decidedly controversial Ashcroft decisions, made without his consulting Congress, as the reintroduction of the FBI’s COINTELPRO operations. This counterintelligence program, active from 1956 to 1971, allowed the FBI to not only monitor political and religious groups opposing government policies but also infiltrate and disrupt these organizations. The aim was to reveal any communist ties of these groups, but, as a reporter covering COINTELPRO, I can attest that most of the dissenters were involved in civil-rights and anti-war activities that acutely displeased J. Edgar Hoover. There were no links to the Kremlin.
At last, in 1975, the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, after investigating COINTELPRO, reported that it was “a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association.” Committee Chairman Frank Church of Idaho pledged: “The American people need to be reassured that never again will an agency of the government be permitted to conduct a secret war against those citizens it considers threats to the established order.” But Frank Church could not envision John Ashcroft.
On Dec. 3, The Wall Street Journal (“Justice Department Considers Stepping Up Monitoring of Religious, Political Groups”) revealed that under the new COINTELPRO, the FBI will no longer have to abide by post-Church “Justice Department regulations requiring agents to show probable cause that a crime was afoot before spying on political or religious organizations.”
However, as a result of the press’ refusal to be silenced by the attorney general, The New York Times, in a Dec. 12 Page One story on a Times-CBS News poll, reported that “Americans are willing to grant the government wide latitude in pursuing suspected terrorists, but are wary of some of the Bush administration’s recent counterterrorism proposals and worried about the potential impact on civil liberties.”
In 1866, the U.S. Supreme Court (in “Ex parte Milligan”) decided that Abraham Lincoln’s suspension of habeas corpus during the Civil War and his using military tribunals to try opponents of his policies were unconstitutional. Said the court: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. … In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.”
In agreement, the American press is giving University of Chicago Law School graduate John Ashcroft a postgraduate course on the Bill of Rights.