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Ashcroft Faces Scrutiny for Steps Taken Since Sept. 11

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Dec. 5, 2001 -- How far can the Bush administration stretch the Constitution in the name of national security?

Attorney General John Ashcroft and President Bush appear before a group of new U.S. attorneys. Nov. 29, 2001. Photo: Paul Morse, White House

That's what the Senate Judiciary Committee will be exploring as it questions Attorney General John Ashcroft Thursday morning. NPR's Nina Totenberg reports for All Things Considered that Ashcroft will be defending the steps the administration has taken since Sept. 11 to deal with terrorists. Critics say that Ashcroft and the president, in their zeal to pursue terrorists, have curbed civil liberties.

Lawmakers and previous witnesses before the committee have criticized Ashcroft for acting by executive decree, and circumventing Congress. The administration's measures have included detaining hundreds of individuals without releasing their names, an executive order authorizing military tribunals for terrorism suspects who are not U.S. citizens and questioning 5,000 men, mostly Middle Eastern.

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) opened a Nov. 28 hearing by criticizing the administration. "Rather than respect the checks and balances that make up our constitutional framework, the executive branch has chosen to cut out judicial review in monitoring attorney-client communications and to cut out Congress in determining the appropriate tribunal and procedures to try terrorists."

In public appearances and at previous congressional hearings, Ashcroft has said that the war against terrorism is the Justice Department's top priority but that civil liberties will be preserved. "As we do in each and every law enforcement mission we undertake, we are conducting this effort with a total commitment to protect the rights and privacy of all Americans and the constitutional protections we hold dear," he told the House Judiciary Committee two weeks after the attacks on the World Trade Center and Pentagon.

In testimony to the Senate Judiciary Committee last week, Assistant Attorney General Michael Chertoff explained: "While the legal system is terrific and can handle these cases, it may not be the appropriate tool in every case, and the Constitution gives the president the ability to use other tools... What he's done here is simply taken all of those tools out of the constitutional cupboard, so to speak, and now laid them on the table so he has them all available."

But New York University law professor Burt Neuborne disagrees. "The purpose of the Constitution is to shield individuals from inappropriate governmental power," he says. "The Constitution is not a sword, not in our society. The Constitution is not a device to empower the government to engage in wholesale arrests, secret military trials, eavesdropping on attorney-client (conversations). It's not a sword that allows the government to simply alter the rules of justice."

Ashcroft has denied that any detainees are being held in secret and said they are allowed to contact their lawyers and families. But witnesses before the Senate judiciary panel said detainees held for weeks or even months have been allowed only one phone call a week. Lawyers have said they have faced long delays in getting access to their detained clients.

President Bush's decision to authorize military tribunals has drawn perhaps the most criticism.

Eugene Fidell, president of the National Institute of Military Justice, is among those who say the decree is overly broad. "There's no express provision for a judge. The members of the military commission serve both as judge and jury. There's no requirement for proof beyond a reasonable doubt. Indeed, there's not even a requirement that the government bear the burden of proof."

But while lawmakers have urged the administration not to sidestep Congress, some have defended the tactics employed so far in the war against terror.

"Yes, the administration has been aggressive in using all the constitutional powers at its disposal to protect Americans," Sen. Orrin Hatch (R-UT), the Judiciary Committee's ranking Republican said in his opening statement Nov. 28. "But given what happened on Sept. 11, wouldn't they be unforgivably derelict if they did not?"


NPR News Coverage

NPR/Kaiser/Kennedy School poll on related issues.

More NPR News radio coverage on John Ashcroft.

More NPR News radio coverage on the civil liberties debate.

Listen to Barbara Bradley's report on the Nov. 28 Senate Judiciary Committee hearing.

Join a Your Turn discussion on "Liberty vs. Security".

Other Resources

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