Welcome back to the Ashcroft Symposium. In this second and final part (click here to see Part I) Frontpage Magazine continues to host a discussion between: Michael Ratner, President of the Center for Constitutional Rights and lecturer at Columbia Law School; Henry Mark Holzer, a constitutional and appellate lawyer who is Professor Emeritus at Brooklyn Law School and the co-author (with Erika Holzer) most recently of Aid and Comfort: Jane Fonda in North Vietnam; Susan Estrich, one of the nation’s leading legal scholars who is a Harvard law professor, a syndicated columnist and the author of the Los Angeles Times bestseller Sex & Power; and Cliff May, President of the anti-terrorism think tank Foundation For the Defense of Democracies.
Interlocutor: So let's continue the discussion. Let me ask this: what is it exactly that the Attorney General, as compared to the President and Congress, has done? Has it been consistent or non-consistent with the Constitution and federal statutes? Is it good policy?
Holzer: In comparison to the President and Congress, Ashcroft has done very little. Principally the indictments. Let's hear from the others what they think he's done.
In terms of consistency with the Constitution and federal statutes, certainly all the INS-related and other administrative action is consistent. So is the 4th Circuit held for the government in the Yaser Hamdi detention case. Jose Padilla, the so-called "dirty bomber," is still an open question -- but a federal judge in the United States District Court for the Southern District of New York has ruled that Padilla is entitled to a lawyer. We'll see what happens in the Supreme Court, if the case gets there. Taliban John Walker Lindh (see www.talibanjohn.info) was appropriately charged, and he decided to cut and run. There is no legitimate way to question that indictment, or the indictments of the Buffalo Six, or any of the others who have been indicted. They will plead, or be convicted.
No amount of Left wing hysteria is going to save them. Moussaoui will end up in a military tribunal, and go up for life -- consistent with a precedent set in the Twentieth Century by Franklin Delano Roosevelt.
Estrich: Ashcroft is trying to make us safe and of course we're not, we just stand in longer lines. On the other hand, since no buildings have blown up since 9/11, how can I say he hasn't succeeded.... how can I say what threats have been avoided? That's the game here. I can tell you how many tens of thousands of men were held in Guantanamo for no reasons, and I’m sure Michael and others can give you chapter and verse of immigrant horror stories in this country, we all hear them now.... but who is to say what horrors have been avoided??
My line is that history teaches that we end up neither safe nor free, and that's true, but it takes till Monday morning to know that, and we aren't even up to the weekend yet.... So I can't possibly win this fight, I don't know what rights we've lost, not for sure, and I don't know how much security we've gained, so what I have to fight for at this point is legal process...
As for the Constitution, it means what judges say it means, which varies with how frightened we are, after all. It used to mean that decent Japanese people had to be taken from their homes and locked away, something we now find inconceivable but only fifty years ago was upheld by the Supreme Court. It also used to allow people who wrote pamphlets advocating workers rights to be locked up. And whether it applies at all depends on who you are, and what you did, and how you get classified these days...none of which may get reviewed by a judge. So there.
And when the latest bad guy got arrested, how many people do any of us know who were worried about whether his rights would be respected?
I used to hang around with these young Serbian guys who did politics for Djinjic... the guy who got assassinated in Serbia. He was their big hope.
You need a base of stability for constitutional order....but we're not talking about Iraq here, right....
Holzer: If "tens of thousands of men were held in Guantanamo," the place must be much larger than anyone ever dreamed. Until this "conversation" I never knew anyone who was an agnostic about the AG.
Estrich: Hank, I've never been to Guantanamo. The government has released very little information. It was hyperbole. Does it matter if its thousands? The point is the same.
Holzer: The point might be the same, if we knew what the point was.
May: Susan is struggling with some hard questions. How do we defend ourselves against those who have sworn to murder us and our children? How do we fight an enemy who doesn’t want to negotiate or compromise, who seeks only one thing: our annihilation?
She may be right, that we aren’t really safer, that we just stand in longer lines – but I’ll bet she won’t propose that we give up all those airport metal detectors and pat-downs and go back to the way it was when I was a boy (Susan is way too young to remember those halcyon times).
As for the “tens of thousands of men held in Guantanamo for no reasons,” first, she grossly exaggerates the number, as I’m sure she knows. Second, they are not in Gitmo “for no reasons” but because they were captured on the battlefield and (1) are enemy combatants who, if released, would pick up arms against us again, or (2) are enemy combatants who may have information on terrorists and what they’re plotting. Surely, that justifies holding them – however many we may be holding.
Can you imagine, during World War II, someone complaining that we had captured too many Germany soldiers? That we had arrested too many Nazis? That we’d held them for months and months and it was oh sooo unfair and clearly time to send them home to Mother?
Now is it possible that some of those in Guantanamo are innocent civilians caught by mistake? Of course, that’s possible -- but we haven’t a shred of evidence to suggest that. Some have already been released back to Afghanistan. Some of them have spoken to the press after their release and they had complaints about their treatment alright – Hajji Faiz Mohammed was typical. Upon his arrival in Kabul, he complained to journalists that while the food in Gitmo was generally good, "there was no okra or eggplant." The shame of it! Faiz Mohammed also offered this candid comment: "We were not tortured ... We were not unhappy. The Americans treated me well, but they were not Muslims so I didn't like them." http://www.defenddemocracy.org/templ/display.cfm?id=208&dis=37
Finally, let’s all acknowledge that just as Susan is struggling with these issues, so is the President and the Attorney General and Congress – we all are. This is a difficult time. We’re groping in the dark. We’re trying to find our way. We should welcome all the constructive and creative ideas we can get. But that’s not what I’m hearing above.
What I’m hearing above are reflexive kicks and slaps at the Attorney General and the Bush administration. It takes very little effort to simply assert that RIGHTS ARE BEING VIOLATED! THE CONSTITUTION IS BEING SHREDDED! INNOCENT PEOPLE ARE BEING TORTURED! I GAINED FIVE POUNDS ON THE ATKINS DIET AND IT’S ALL JOHN ASHCROFT’S FAULT! But there is no reason to take any of that seriously.
And I apologize, Susan, if I raised my voice just then.
Estrich: This is exactly my point. Cliff is the reasonable sounding alternative, the non-John Ashcroft who makes the Left scream. I wish my daughter were here. Do you trust him, shed say. You see, there is nothing more that a frightened community wants to do than to trust, and well happily give you our freedoms. I’m a mom. Talk to me in that capacity and Ill let you hold anyone for as long as you want. In that way, I freely acknowledge that I’m part of the majority
Of course I don’t want to go back to the days when people walked on to airplanes, but does anyone have any doubt about what would happen to the next person who tried to fly a commercial jet liner into a building? It wont happen. No one is going to take over a plane with box cutters, much less an eyebrow tweezer or a nail scissors. There must be a more efficient way to use resources. But I don’t really care about standing in line . They’re already trying to shorten the lines for you and me they’d hate to lose us as travellers. They’ll profile more, which makes sense, but makes it all the more critical how we treat those whose status makes them most vulnerable. Its not just what they’re entitled to (maybe I’m wrong on this, but didn’t the Germans we captured get treated as prisoners of war?)
We have to now assume that every mosque in America is now being bugged. That’s a direct quote, part of the Saturday New York Times full page spread on how Ashcroft’s justice department is targeting Arab Americans and depriving them of their rights. That’s what they report, along with the details of how the Department has sought and got increased power and influence, ideologically (increased monitoring, gun policy, death penalty), and in terms of turf and influence.
It won’t hurt Ashcroft a bit. Quite the contrary. It’s a nice picture. Moms vote, not card carrying members of the ACLU; I myself quit in the fall of 87. But constitutional rights are intended to protect the minority against the understandable majority, particularly a terrorized majority.
Michael Ratner can’t prove certain aspects of his case, and neither can I, because the Government is in control of the proof. Presumptions in that situations generally run against you not in your favor. How many wrongly held? For how long? For what reason? How have they been treated? How do I know?
Trust us is not a good enough answer to a suspicious world. Does it matter whether we treat Arab Americans worse than anyone else, even if we have statistical justification to do so? Does it matter if we respect human rights, whether we might in or lose in the Fourth Circuit on that? I looked in the paper at the picture of Ashcroft’s inner circle and I saw a row of men. What does an Arab-American reader see? Why not care more about that?
All institutions are essentially alike.
Do I trust Cliff May to want to protect his family and mine in good faith, and not trample anybody’s rights in the process? Absolutely. I think John Ashcroft has good motives. I know the Department felt the death of Barbara Olsen, that they know the threat of terrorism is real, and they see themselves as fighting to protect America. I think most everybody in the process can have good, or at least decent motives, and you can still have results like Waco.
The first response of institutions who are vulnerable to failure at any moment and not in fact prepared to deal with it think, for instance, the FBI - is to blame the limits imposed on them by others, not their own. What would you rather do? Say that your problems were 90% internal, managerial, organizational, leadership, training, competence, mission, etc.... and 10% federal law, if that, or the other way around.
I think about the stories of how Janet Reno Justice, it is said, came to trust too much in what senior law enforcement people told them.
What troubles me about the Ashcroft Justice Departments efforts to amass power and change policy as a response to the changing climate since 9 /11 is that seems quite explicitly designed to make us neither safe nor free...but to expand the power of the law enforcement community that is not a position to use the power it already has well. The last memo from the woman who warned of earlier incompetence flatly charges that the bureau is not prepared for domestic terrorism.
Chilling quote for this week: For 90 percent of LAPD, the only protective gear they have against chemical or biological weapons is the piece of metal on their chest. WE have no protective gear in the city. If police are called to respond, they have nothing to wear. Now maybe that’s Homeland Security these days. Hard for an old time small government democrat like me to keep track
Trust, but verify.
You're about to lead us, not to a police state, but to war, and that will increase the risk of terrorism, which will increase our willingness to sacrifice our freedom and increase the risk to those who are targeted who will in fact lose theirs.
Holzer: I'm still waiting to hear what the AG has done, and what Constitutional provision(s) it has violated, if any. And if others in this symposium insist on free-associating and talking motives, I'd like to see some proof that the Attorney General is driven by an improper motive(s), like self-aggrandizement. Not Left cant, but proof -- or at the very least, evidence. Rant and cant is neither.
Estrich: I'm not attacking the AG's "motives" in that sense. I'm sure he wants to make us safe. I'm not one who believes that those who disagree with me are inherently evil, ill-willed, or badly motivated. I'm questioning the means, and the results. I'm not saying he's a bad man; my fear is that we will end up neither safe nor free...
Holzer: Better be safe than sorry. We can sort out the rest later. I have great confidence in our institutions (and our dissenters), let alone those who honestly believe in those institutions to fix anything that may get a bit out of hand, as soon as we're able. See suspension of habeas corpus, and the Japanese internment (both of which were wrong and unconstitutional. Also -- and I don't accuse Professor Estrich of this -- it comes with ill grace for those who believe in strong government power over the individual in such matters as commercial speech, free exercise of religion, gun control, business regulation, and more, to be complaining about the same government's efforts to prevent another 9/11 attack, and perhaps even worse.
May: Excuse me for a moment. Susan, I understand that the Left does not trust John Ashcroft, never has and never will. Why? I can only speculate on the prejudice expressed by this congenital distrust of a many who was elected both governor and senator of his home state. But whatever the reason, that shouldn’t be a license to slander him, to accuse him of trying to transform America into a police state, to attempt to hobble his attempts to catch terrorists before they kill us.
Yes, Susan, uniformed German soldiers captured during World War II were given the designation of Prisoner of War. But those who break the laws of war – e.g. those who hide among civilians or target civilians – forfeit their right to that designation and to the privileges that come with it. That’s intended to be a disincentive to those considering acts of terrorism – they shouldn’t have a guarantee that no matter what they do, they will be always and nevertheless be treated with respect.
Now, that doesn’t mean we stick hot pokers in their eyes, or attach electrodes to their genitals. It does mean they lose the right to possess musical instruments and their own cooking utensils (both guaranteed to bona fide prisoners of war under the Geneva Convention).
Susan, you write: “I looked in the paper at the picture of Ashcroft’s inner circle and I saw a row of men. What does an Arab-American reader see? Why not care more about that?”
Susan, if an Arab-American looks at the leadership of any of the 22 Arab countries what does he see? The answer: Rows of men. So what’s the complaint here? How did feminist grievance enter this debate?
Is there anything that the Left objects to for which Ashcroft should not be blamed? How about the death of disco? How about the demise of the family farmer and the humpback whale? Ashcroft might have had a hand in all that – who knows, the government has the proof and Michael can’t really find out for sure.
Of course, the LAPD should have protective gear – but I hope you’re not suggesting that our response to terrorism ought to be to wait for the attacks and hope we have gas masks and antidotes handy. Surely, we are justified in fighting those who want to see us dead.
Yes, Susan, we are going to war and that may indeed mean that terrorists hiding among us (or at least those that Ashcroft has not managed to detain or detect) will decide this is the time for them to strike, the time for them to make statements written in the blood of innocents.
But if they don’t strike now, it’s not as though they will decide instead to go back to school and train to be physical therapists and settle down to lead quiet lives in Pasadena. Every terrorist is a time bomb waiting to go off. Ashcroft’s Justice Department is attempting to defuse as many as possible. Too many on the Left are trying to prevent him from accomplishing that mission. You should not be among them. You’re too bright and too sensible.
Ratner: Excuse me, I would just like to make a concluding remark: on March 19 I was at an anti-war demonstration. Numerous cops were there with cameras photographing demonstrators and speakers. Files will be opened on each of us. NYC had 150,000 such pictures and files during the Vietnam war period.. The next day, March 20, my son took the subway and there were armed national guard patrolling it. On February 15 NYC and the federal courts denied our anti-war organization a permit to march anywhere in New York City. Yet, on March 17th, during an orange alert, the St. Patrick’s Day parade, got its permit without objection. This is not the America I want for my children. Our obligation is to defend the constitution against its enemies—its enemies are the Bush administration; it is they who are destroying democracy.
May: Ahh, well, there you have it. Mr. Ratner acknowledges my worst fears about him: That he actually believes that the real enemies of America, its constitution and democracy are not Saddam Hussein, Osama bin Laden and other Jihadists terrorists but “the Bush administration.”
And he comes to this conclusion because he saw policemen carrying cameras at a demonstration -- a demonstration that I’m guessing was organized by International ANSWER, a pro-North Korean and quite lunatic fringe group (www.nationalreview.com/comment/comment-flynn031703.asp).
And the very next day he saw armed National Guardsmen on the subway, attempting to protect subway riders from terrorists. How awful. How shameful that Mr. Ratner and his son had to see such a spectacle. Why weren’t these National Guardsmen doing something useful at a time like this – like shooting out the tires of polluting SUVs or arresting cigarette smokers?
Candidly, I don’t know why Mr. Ratner’s “anti-war organization” was not granted its latest request for a permit, even while the St. Patrick’s Day parade was allowed. Maybe the police couldn’t protect both parades at the same time. Maybe they’re a tad busy.
I’d advise him to try again. I’ll betcha John Ashcroft has not abolished the right to assembly yet – in fact, an hour ago I was near the White House and I saw a whole gaggle of people marching and carrying signs saying: “No War on Iraq.”
As it happens, I was with an Iraqi woman. She said to me: “How is it these people still don’t understand? The war is already taking place not on Iraq but in Iraq. Saddam Hussein is waging it against Iraqis. We want America to help stop that war – and the only way to stop it is to liberate Iraq.”
There was a time when people on the Left knew the meaning of words like liberation. In his fury against President Bush, Attorney General Ashcroft and others, Mr. Ratner appears to have forgotten.
Holzer: My response to Mr. Ratner's conclusion, briefly, is this: first, why am I not surprised that he has to fall back on international law, whatever that is, and a bunch of Southern Hemisphere nobodies whose pronunciamentos have absolutely no force in the United States? Why am I not surprised that he, along with America-hater Ramsey Clark and The Usual Suspects "represents" some Guantanamo detainees -- captured mostly on the Afghanistan battlefield and in assorted rat holes around the world? Why am I not surprised that he cannot point to -- indeed he doesn't even try! -- a single decision of the Supreme Court of the United States holding unconstitutional anything done since 9/11 to protect our Nation? Why am I not surprised that virtually nothing Mr. Ratner has said in this symposium has been based in law, rather than tired Leftist propaganda? If Mr. Ratner and his cohort of frenzied anti-American lawyers, who live off the system they decry, have really been the victims of a destroyed democracy, as they claim, he would not be free to spout the inanities that we have been subjected to in this symposium.
Ratner: It is no small matter that the Bush administration is willing to disregard international law. It is that law that gives fundamental rights to all people. Somewhat akin to a modern day Ten Commandants, it forbids torture, summary execution (murder by the state), slavery, arbitrary detention and aggressive war. It also embodies the protections of the Geneva Conventions and the treatment of captured combatants. A nation violates these fundamental norms at its peril. Today, March 23, 2003 it is alleged that Iraq is failing to adhere to the Geneva Conventions in its treatment of U.S. POW’s. That is a clear violation of law. However, the U.S. is not in a very good moral position to complain about it because of its failure to treat Taliban combatants as POWS. The Bush administration cannot have it both ways; ignore international law, but then complain when others violate it. It is utter hypocrisy.
The Bush administration is making us all less safe, both at home and abroad. The world is roiling from its policies whether in North Korea, Israel and Palestine, or Iraq. We all care about making a safer world and keeping ourselves safe and free at home. I do not feel safer now that we have begun a war with Iraq. The effect of that war will be to make us less safe and with fear comes a loss of freedom—draconian domestic measures are taken to “protect” us. We are seeing the implementation of those measures on daily basis. Yet, I remain optimistic. There is and remains a worldwide peace movement, stronger then anything I could have imagined six months ago. In the end, my hope is that the peace movement will prevail and that the United States will rejoin the world community.