The War on Due Process

WASHINGTON — Representative William Delahunt leaned into his microphone and looked a stone-faced Attorney General John Ashcroft in the eye. Delahunt, a Massachusetts Democrat, spoke slowly, lest anyone think he was indulging in impulsive overstatement. “No prosecutor in modern history has been granted as much power as you now hold,” he told Ashcroft, who, on this particular June afternoon, had come to the House Judiciary Committee seeking to broaden the USA PATRIOT Act.

Twenty-one months after al Qaeda’s attacks, the courts, Congress, even the Justice Department itself, are at last attempting an accurate assessment of the civil-liberties fallout from September 11. As if by plan — but in reality just reflecting the pace of bureaucracy, judiciary and politics — recent weeks have brought a minor cascade of reports and rulings on the Bush administration’s antiterrorism strategy, on the mass arrests of immigrants, the expansion of secrecy and asphyxiation of freedom of information, even as the administration has been testing the power and limits of USA PATRIOT and other measures.

At that June 5 House Judiciary Committee hearing — his first Judiciary appearance since September of 2001 — Ashcroft touted a long list of PATRIOT Act achievements: 18,000 subpoenas and search warrants; 15 plea agreements from “terrorist suspects”; more than 1,000 secret wiretaps of noncitizens under the Foreign Intelligence Surveillance Act, “more than three times the total number of emergency Foreign Intelligence Surveillance Act warrants obtained than in the prior 23-year history of the FISA law.”

In fact, Ashcroft’s Judiciary Committee appearance came at the end of a spring of at-best equivocal results and often-embarrassing setbacks, including the leak of internal Justice Department memos on his proposed PATRIOT Act II, which would permit warrantless searches, secret arrests and the stripping of immigrants’ citizenship without any proof of their support for terrorism. PATRIOT II provoked sharp dissent even from Ashcroft’s fellow conservatives, including former Congressman Bob Barr and David Keene, the president of the American Conservative Union.

This abrupt climate change was acutely evident during Ashcroft’s testimony. Despite an emotional opening statement laced with the names of individuals killed on September 11 and on the USS Cole, he spent much of the hearing fielding pointed questions — sometimes awkwardly, sometimes angrily — about the abuses during the past 18 months and about his own seizure of new powers. And it wasn’t just Democrats raising the questions.

Even the committee’s chair, Republican James Sensenbrenner of Wisconsin, an original PATRIOT Act sponsor, led off questioning by declaring that his support for the measure “is neither perpetual nor unconditional.” Sensenbrenner chided Ashcroft for loosening the FBI’s long-standing guidelines for political surveillance — the so-called “Levy Guidelines,” named for the Ford administration attorney general who curbed Hoover-era excess — without consulting Congress. Startled by Sensenbrenner’s slap, Ashcroft at first fudged, conflating the FBI guidelines with the PATRIOT Act. Then he changed course and admitted he thought that letting the FBI spy on political meetings and religious groups was “in the same spirit” as the legislation passed by Congress. He wound up with a head-spinning apologia: “Any assumption that I might have made that presumed that the kind of ideas of extending the guidelines, to extend them in the same way that we had worked collaboratively to extend the law in PATRIOT, may have been one that presumed in a way that overestimated our previous consultation.”

Ashcroft’s entire committee appearance was marked by a defensiveness and obfuscation more noteworthy than the relatively minor adjustments to PATRIOT Act I he ended up proposing. It was marked, as well, by a new assertiveness from congressional Democrats, who, after offering little resistance to the original PATRIOT Act, now seem to have decided that civil liberties once again can make good politics.

Representative Maxine Waters, of Los Angeles, asked how many of the hundreds of immigrants incarcerated after September 11 were actually implicated in the attacks. “They were all in the U.S. illegally,” Ashcroft replied, skipping over her question entirely. Wisconsin Representative Mark Green asked Ashcroft how he could justify the FBI’s PATRIOT Act authority to monitor library borrowing records. “We remember the Unabomber,” Ashcroft replied. “Some may remember that the capture of the Unabomber was made possible” because “investigators subpoenaed records from libraries and they developed an awareness of who had looked at these esoteric treatises.” New York City Representative Jerrold Nadler had to remind a visibly irritated Ashcroft that the Unabomber was turned in by his own brother, not identified by the FBI.

Judiciary Democrats gained momentum for their tough questioning from the release, just a few days earlier, of an internal Justice Department review of Ashcroft’s September 11 detentions. The 198-page report — by the Justice Department’s independent Office of Inspector General — amounts to a definitive and damning investigation of how Ashcroft, his aides and the FBI handled the nationwide roundup.

Departing from the usual cool, bureaucratic tone of government reports, the inspector general charges that the evidence raises “serious questions about the treatment of September 11 detainees,” and about accountability in the FBI and Department of Justice. At the Judiciary Committee hearing, Ashcroft repeatedly dodged queries about the inspector general’s report, insisting yet again that all the detainees were in the country illegally.