06 December 2001
Senators Say Bush Antiterror Approach Legal, But Needs Safeguards
(Ashcroft justifies tribunals before Judiciary Committee) (1060)
By Ralph Dannheisser
Washington File Congressional Correspondent
Washington -- Antiterrorism measures put in effect by the Bush
administration may well be legal and constitutional, but could use
some legislative fine tuning to make sure they don't open the door to
abuse of civil liberties, key members of the Senate Judiciary
Committee say.
Members outlined their views on administration plans for trying
suspected terrorists by military tribunals and monitoring the
conversations of some accused individuals with their lawyers -- as
well as the detention of hundreds of individuals for alleged
immigration violations -- as they questioned Attorney General John
Ashcroft at a December 6 hearing.
Some civil rights groups have argued that the new administration
measures violate rights guaranteed in the U.S. Constitution.
But Ashcroft told the committee that the controversial measures are
needed to thwart terrorists who are "waiting to kill again."
"One option is to call September 11 a fluke and to live in a dream
world that requires us to do nothing different," he said. "The other
option is to fight back." He promised "full and fair proceedings" in
the projected military tribunals.
Judiciary Committee Chairman Patrick Leahy (Democrat, Vermont) set the
tone for the committee hearing when he told Ashcroft he planned to
introduce a bill authorizing the president to establish military
tribunals to try terrorists, but only those captured abroad and
accused of having connections with the September 11 attacks on the
World Trade Center in New York and the Pentagon near Washington, D.C.
"Ultimately, the question is not only whether our government has the
right or the power to take certain actions and in certain ways, but
whether the means we choose truly protect our security," Leahy said.
He invited Ashcroft -- a former senator -- to join with committee
members in "exploring a consensus charter for tribunals."
Citing the need for congressional oversight, Leahy argued that the
point is not "as some mistakenly describe it, to protect terrorists"
but rather "to protect ourselves and our freedoms." The Constitution,
he declared, "does not need protection when its guarantees are
popular, but it very much needs our protection when events tempt us
to, 'just this once,' abridge its guarantees of our freedom."
The argument for cautious application of the new approaches introduced
by the administration -- even if they are constitutional -- was
expanded upon by Senator Herb Kohl (Democrat, Wisconsin).
Kohl said that congressional insistence that basic civil liberties be
protected, even as the war on terrorism is pursued, "does not indicate
a lack of trust or patriotism." Rather, he said, "it demonstrates the
strength and durability of our democracy."
The senator said that certain "basic principles" must be respected if
military tribunals are used.
A clear understanding is needed of who will be subject to the
tribunal, Kohl maintained. Additionally, defendants must be granted
the assistance of counsel, the standard of proof must be at least as
high as "guilt by clear and convincing evidence," a unanimous vote of
the jurors must be required to impose the death penalty, and the
system must guarantee the defendant the right to a meaningful appeal,
he said.
Citing the impact U.S. actions could have abroad, Kohl observed that
Americans are outraged "when we hear about Americans abroad who are
subject to foreign or military courts," or "when we hear that the
Americans on trial may not get an attorney, an impartial jury, or a
fair chance to defend themselves.
"We should never open our country to that kind of criticism from
abroad," Kohl said.
Ashcroft, for his part, sought to quiet concerns that the
administration's new approaches could be employed broadly enough to
put civil liberties at risk. "Each action taken by the Department of
Justice, as well as the war crimes commissions considered by the
president and the Department of Defense, is carefully drawn to target
a narrow class of individuals -- terrorists," the attorney general
said.
Noting that the U.S. government defines terrorists as those who commit
premeditated, politically motivated violence against noncombatant
targets, Ashcroft declared, "My message to America this morning, then,
is this: If you fit this definition of a terrorist, fear the United
States, for you will lose your liberty."
Ashcroft's comments were warmly endorsed by Senator Orrin Hatch of
Utah, the senior Republican on the committee, who said two weeks of
hearings have shown that "the vast weight of legal authority confirms
the constitutionality of military tribunals."
Like Ashcroft, he argues that any discussion of the fairness of the
procedures to be used would be both premature -- since the
administration has yet to spell out those procedures -- and
misdirected, if addressed to Ashcroft, "because it is Secretary of
Defense Rumsfeld, not (Attorney) General Ashcroft, who is charged with
drafting (them)."
Press reports earlier December 6 that the Justice Department had
barred the FBI from checking its record of criminal background checks
to see whether any of some 1,200 people detained after the September
11 attacks had bought guns set the stage for a lively exchange between
Ashcroft and Senator Charles Schumer (Democrat, New York).
Ashcroft, a staunch defender of the right of Americans to own guns,
insisted in response to questioning by Schumer that current law does
not permit use of the background check information in investigating
individuals.
An incredulous Schumer declared that the administration, eager to push
all other law enforcement approaches, appeared to become "weak as a
wet noodle" when it came to an issue of gun ownership. He cited
reports that 34 detainees had, indeed, purchased guns illegally.
The senator, long a supporter of gun controls, said he believes that
the administration already has full authority to use the database --
called the National Instant Check System. But just to make sure, he
said, he would swiftly introduce legislation to clarify the point.
Ashcroft avoided answering repeated inquiries by Schumer as to whether
he would support such a bill when offered. "If you send me the
legislation, I'll review it. If you pass the legislation, I'll enforce
it," he said in response to two different formulations of the
question.
(The Washington File is a product of the Office of International
Information Programs, U.S. Department of State. Web site:
http://usinfo.state.gov)
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