December 6, 2001

'Voices of Negativism'



Preparing to tell the Senate Judiciary Committee where to get off today, Attorney General John Ashcroft lashed out at all who dare to uphold our bedrock rule of law as "voices of negativism." (A nattering nabob, moi?)

Polls show terrorized Americans willing to subvert our Constitution to hold Soviet-style secret military trials. No presumption of innocence; no independent juries; no right to choice of counsel; no appeal to civilian judges for aliens suspected of being in touch with terrorists.

President Bush had no political motive in suspending, with a stroke of his pen, habeas corpus for 20 million people; his 90 percent popularity needs no boost. The feebleness of the Democrats' response, however with the honorable exception of Vermont's Senator Pat Leahy is highly political. Tom Daschle is waffling wildly because he is terrified of being slammed as "soft on terrorism," which might overwhelm his strategy of running against "the Bush recession" in the 2002 elections.

With most voters trusting the government with anything, and with an attorney general and his hand-picked F.B.I. boss having the publicity time of their lives, one might expect us negativists to be in disarray.

Here's why we are not: The sudden seizure of power by the executive branch, bypassing all constitutional checks and balances, is beginning to be recognized by cooler heads in the White House, Defense Department and C.I.A. as more than a bit excessive.

Not that they'll ever admit it publicly; Bush will stick to his shaky line that civil courts cannot be trusted to protect military secrets and, as fearful Orrin Hatch assures him, jurors will be too scared to serve. But his order asserting his power to set up drumhead courts strikes some of his advisers, on sober second thought, as counterproductive.

Set aside all the negativist libertarian whining about constitutional rights, goes his newest advice, and forget about America's moral leadership. Be pragmatic: our notion of a kangaroo court is backfiring defeating its antiterrorist purpose.

At the State Department, word is coming in from Spain, Germany and Britain where scores of Al Qaeda suspects have been arrested that the U.N. human rights treaty pioneered by Eleanor Roosevelt prohibits the turning over of their prisoners to military tribunals that ignore such rights. That denies us valuable information about "sleepers" in Osama bin Laden's cells who are in the U.S. planning future attacks. (Those zealots who cited F.D.R.'s saboteur precedent forgot about Eleanor.)

At the C.I.A., data about China, Russia and other closed societies is gleaned from debriefing returning travelers. But U.S. kangaroo courts would legitimize harsh proceedings overseas against U.S. business executives, academics and tourists thereby shutting down major intelligence sources. (Interviewing 5,000 Muslim students and visitors, however, is seen by our spooks as an excellent opportunity to recruit Arabic- speaking agents.)

At Justice, those not in the Ashcroft-Mueller axis view the tribunals as giving priority to punishment for past attacks rather than helping to prevent future attacks. Thus Ashcroft undermines Justice's justification for its nationwide dragnet.

At Defense, the hastily drawn order must be translated into a system of trials that would not be invalidated by a Supreme Court. Secretary Donald Rumsfeld has refused to follow lockstep behind Ashcroft in deriding strict constructionists as negativist. On the contrary, Rumsfeld calls the informed outcry "useful" in refining the order. The hopeful news is that Rumsfeld has reached outside the Pentagon to get advice from legal minds not conflicted by administration ties. Lawyers inside the armed services are also determined to resist the subversion of the Uniform Code of Military Justice by Bush's diktat.

Many attorneys friendly to this White House know that order was egregiously ill drafted. The White House counsel, Alberto Gonzales, defended the order on this Op-Ed page by denying or interpreting away its most offensive provisions. That's his signal to the Pentagon general counsel, William Haynes, to give the broadest interpretation to the order's five words promising non-citizens "a full and fair trial."

Otherwise, our Constitution would be set aside by Cicero's ancient inter arma silent leges in time of war, the law falls silent.

Copyright 2001 The New York Times Company