'Ashcroft's appalling failure to explain military tribunals' ---- John Dean
" He offered not a scintilla of documentation for his conclusion about the president's authority.
It was Ashcroft ex cathedra. He tossed it at he committee like a gauntlet. It was a surprising
performance for a former United States senator, a man who believes himself to be presidential timber,
to expose himself as pure balsa wood. Needless to say, his dismissal of the constitutional questions
raised by the establishment of military tribunals guaranteed he would be questioned by virtually every
member of the committee about military tribunals. And he was."
The Constitution & Civil Liberties
Posted on Sunday, December 09 @ 09:02:01 EST
By John W. Dean, MSNBC
To those expecting a vigorous and lucid defense of the use of military tribunals to prosecute suspected terrorists, Attorney General John
Ashcroft's Dec. 6 testimony before the Senate Judiciary Committee was a profound disappointment. It would have been better if he had
not showed up at all, for it turned out he had a lot of words, but nothing to say.
For weeks, members of Congress have made it clear they wanted to hear from Ashcroft about how these tribunals, established by
executive order of the president, would actually function. Remarkably, the attorney general took the position that he didn't have a clue
about these plans. Apparently, he's not even reading the newspaper stories about the administration's plans.
The attorney general arrived before the committee with a prepared statement, which he read. Typically, a prepared statement shows
preparation, evidencing that the witness has carefully considered the issues, particularly a statement from a cabinet department head
who speaks for his department. He would have gathered its collective wisdom. Ashcroft's opening statement, however, reads like a
filibuster -- mostly meaningless minutiae.
VACANT RHETORIC
As his hollow statement wore on, I could not help but wonder if Ashcroft was still smarting under the character attacks he experienced
during his confirmation hearing before this committee earlier this year. Perhaps he was getting back at his critics by giving them
absolutely nothing but an appearance.
After a few thousand words of vacant rhetoric -- and almost as an afterthought at the end of his statement -- Ashcroft addressed the key
subject. "In addition," he said, "the president's authority to establish war crimes commissions arises out of his power as
commander-in-chief. For centuries, Congress has recognized this authority, and the Supreme Court has never held that any Congress
many limit it."
That was it, thirty-seven words.
He offered not a scintilla of documentation for his conclusion about the president's authority. It was Ashcroft ex cathedra. He tossed it at
the committee like a gauntlet. It was a surprising performance for a former United States senator, a man who believes himself to be
presidential timber, to expose himself as pure balsa wood. Needless to say, his dismissal of the constitutional questions raised by the
establishment of military tribunals guaranteed he would be questioned by virtually every member of the committee about military
tribunals. And he was.
LEAHY SETS THE STAGE
Since he had been given so little to work with, it seemed that Chairman Leahy barely knew where to begin. So he pointed out the basic fact
that contrary to the attorney general's suggestion, "The Supreme Court has never upheld the president's authority ... to unilaterally set up
military tribunals absent congressional authority."
After lecturing Ashcroft on the relevant law, he pressed him on what exactly was the administration's position on military tribunals.
Leahy noted that White House Counsel Alberto Gonzales "now says military commissions would not be held in the United States, but
rather close to where our forces may be fighting. And then an anonymous administration official said there's no plan to use military
tribunals in this country but only for those caught in battlefield operations."
Leahy wanted to know about the other statements by Gonzales, who has argued that the proposed tribunals would be conducted like a
court martial, and that they would be open if possible. Leahy also asked about whether there was, in fact, no intention of suspending the
writ of habeas corpus by the president's executive order establishing military courts, notwithstanding language in it to the contrary.
These were the key questions everyone had expected the attorney general to address in his prepared remarks. His response was quite
remarkable.
ASHCROFT'S DODGE
Most concerns about the use of military tribunals stem from the failure of the Bush Administration to explain exactly what it has in mind.
To hear White House Counsel Gonzales explain their use and operation, as he did in a recent op-ed piece for the New York Times, there is
little reason for concern. But Ashcroft's handling of Leahy's questions and similar queries from other members of the committee, did
nothing but aggravate concerns Gonzales had sought to put to rest.
Ashcroft told the Senate, in essence, that he didn't have any information about how these tribunals would operate. Rather blithely, he
said those details were being handled by Defense Secretary Rumsfeld, and his 3,000 lawyers at the Defense Department. It is difficult to
believe the attorney general is as uninformed as Ashcroft indicated, but that's what he said.
One wonders if Ashcroft is really in the loop at all on this war on terrorism. I cannot imagine an attorney general not being all over this
issue, insisting that the Department of Defense have input from the Department of Justice. If it is the administration's position that
because this is a purely military matter, and a policy decision has been made to exclude the Justice Department, the Senate should have
been informed long before Ashcroft arrived on Capitol Hill.
HISTORICAL PRECEDENTS
But that seems unlikely. The Bush White House has emphasized that the president is relying on historical precedents. Presidents Lincoln,
Andrew Johnson, and Franklin Roosevelt each relied on his attorney general when establishing military commissions. In fact, for the
direct precedent being relied on by Bush, the military trial of Nazi saboteurs in 1942, it was Attorney General Francis Biddle who
prosecuted the case for the president before the tribunal.
It is striking how little this administration cares to explain itself to the public. For this reason it is not surprising that the chorus of critics
is growing. Most recently, former President Jimmy Carter, who was reluctant to criticize any president in time of war, has expressed his
concern about military tribunals giving other nations a bad impression. This appears to be criticism flowing directly insufficient
knowledge.
If the White House counsel is correct -- he said he anticipates rare use of military tribunals by the president -- Carter need not be
concerned. Why the attorney General was not told this by the White House is a mystery.
MORE HEARINGS NEEDED
There is much to be said for the use of military tribunals. Rather than create problems they should have been offered as a way to solve
problems. The public still overwhelmingly supports them. As do most in Congress. Yet if the Attorney General of the United States is not
privy to how terrorists are going to be brought to justice, the Congress has an obligation to find a witness in the Executive Branch who
can tell them, and the American people.
For the first time since President Bush signed his order on Nov. 13 calling for military tribunals, for me an alarm bell has gone off. Not
only has Ashcroft raised questions about who is doing what, and why, but the lack of coordination is striking. When the highest-ranking
legal officer in the Executive Branch says he doesn't know who is going to try which terrorists where, Congress has an obligation to find an
official who does have the answer.
If Ashcroft does not know, how is he planning or not planning to prepare the prosecutors of the Justice Department, the United States
Attorneys and their assistants, to deal with these potential prosecutions? What kind of additional staff and budget might he needed if
these cases are to be handled by his department? Indeed, if he does not know what is happening, we are witnessing the serious breakdown
of the administration's efforts to wage a synchronized war on terrorism.
Surely, it must have been a shock to members of the Senate Judiciary Committee to learn that the attorney general had no answers to
their questions. It is unfortunate, but it seems that John Ashcroft doesn't realize he has not only embarrassed himself, but also the Justice
Department he heads. Indeed, since he's arrived on the job some of the department's best and brightest career attorneys have decided it
leave. Now I understand why.
Reprinted from MSNBC:
msnbc.com
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