Ashcroft and Leahy Battle Over Expanding Police Powers
The New York Times
By ROBIN TONER
December 2, 2001
CIVIL LIBERTIES
By ROBIN TONER
WASHINGTON, Dec. 1 — The issue of civil
liberties has created a classic balance-
of-power struggle between Senator Patrick J. Leahy,
the Democratic chairman of the Senate Judiciary
Committee, and Attorney General John Ashcroft, a
onetime colleague now leading the administration's
domestic war on terrorism.
In a series of testy letters, blunt interviews, chilly
phone calls and formal committee hearings, Mr.
Leahy has demanded that Mr. Ashcroft explain and
defend the sweeping police, detention and
prosecutorial powers assumed by the administration
in recent weeks.
In an interview, Mr. Leahy, a former prosecutor
from Vermont and a 25-year- veteran of the Senate,
said: "I don't want a struggle. First and foremost, as
an American and as a Vermonter, I want to see us
protected from terrorism. But I want it done in a way
that does not diminish the basic protections of the
Constitution."
The administration and its allies argue that it has
maintained that balance, and note that the public is
overwhelmingly supportive of its approach, judging
from the public opinion polls. And they dispute the
idea that Mr. Ashcroft has failed to adequately
consult with Congress.
Mindy Tucker, a spokeswoman for Mr. Ashcroft, said, "The administration has
consulted quite a bit with Congress." She added, though, "There are times when the
attorney general exercises power that has already been legislated to him, by Congress,
and during those times he may or may not consult with them ahead of time."
But this dispute, which will be fully joined when Mr. Ashcroft himself appears before
the committee next week, is not just an abstract clash of executive power and
legislative prerogative. It also has a personal and political subtext.
During the second term of the Clinton administration, Mr. Ashcroft was a deeply
conservative member of the Senate Judiciary Committee, regularly squaring off with
ideological opposites like Mr. Leahy on issues like judicial nominations.
Mr. Leahy says he and Mr. Ashcroft had a collegial relationship during their time on
the committee and worked together on issues like privacy. But when Mr. Ashcroft
was nominated to be attorney general early this year, Mr. Leahy opposed him in the
bruising confirmation battle that followed, arguing that Mr. Ashcroft was simply too
divisive for the job.
Mr. Leahy says that after Mr. Ashcroft took office, the two men had a reconciliation.
"I told him after he was confirmed, even though I voted against him, I told both him
and the president that as far as I was concerned, he was now our attorney general,"
Mr. Leahy said. "I was starting with a blank slate, and that as ranking member, then
as chairman of the committee, I would do the best I could to help him be the best
attorney general possible."
But the era of good feelings was brief; tensions have grown since the terrorist attacks.
In the negotiations between Mr. Leahy and the administration over an antiterrorism
bill, Mr. Ashcroft appeared at a Republican news conference to denounce the
Democrats for moving too slowly on legislation to give the administration new powers
for the investigation, surveillance and detention of suspected terrorists.
Mr. Leahy ultimately agreed to a bill that granted the administration much of what it
wanted, much to the dismay of civil libertarians. In the view of some liberals, Mr.
Leahy had compromised far too much, encouraged by Democratic leaders like
Senator Tom Daschle of South Dakota, the majority leader, who had little interest in
confronting the administration on civil liberties.
Then, in a matter of days, the administration and Mr. Ashcroft began a series of
unilateral actions to expand their powers even more, which provoked Mr. Leahy to
protest, strenuously.
In a letter to Mr. Ashcroft on Nov. 9, Mr. Leahy declared, "I have felt a growing
concern that the trust and cooperation Congress provided is proving to be a one-way
street." In a signal-sending appearance on the NBC News program "Meet the Press,"
Mr. Leahy was asked if he was upset with Mr. Ashcroft and bluntly replied, "Yes,
very much so."
What was particularly grating, several senators on the Judiciary Committee said, was
learning of the administration's actions only through the news media. Senator Arlen
Specter, Republican of Pennsylvania and a member of the Judiciary Committee, said
in an interview, "The point is, the Judiciary Committee — Leahy — did give the
administration what it wanted." He added, "So it's not exactly an uncooperative or
halting Congress."
Others dispute the notion that this is a clash of institutions. "I don't see this as a battle
between Congress and the president," said Richard A. Samp, chief counsel for the
conservative Washington Legal Foundation.
At the committee's first hearing this week, Mr. Samp said, "With the possible
exception of Senator Specter, it sounded like all the Republicans were on the side of
the administration, and the Democrats were the ones raising questions."
Mr. Samp argued that the dispute was fundamentally a partisan clash between
Democrats, "who are more naturally inclined to be concerned with civil liberties in a
criminal context," and Republicans, who are much less so.
Mr. Leahy sees it differently. In an interview, after the administration's executive
order allowing the creation of military tribunals to try foreigners accused of terrorism,
he complained: "There's been no consultation. These things just get announced:
`George Washington got a British spy once by doing this, so thank goodness we've got
recent precedents.' "
Mr. Leahy added, "Maybe part of this is the hubris of, you're riding high in the polls
and you feel you can operate by fiat."'
With the specter of critical Senate hearings led by Mr. Leahy looming, Mr. Ashcroft
seemed to be moving in a conciliatory direction this week. "I think it's entirely proper
that the United States Senate and House exercise oversight over the Justice
Department," he told reporters. "I have the highest level of respect and regard for
these elected representatives of the people."
But the political and partisan currents are strong. In the hearings this week, Senator
Orrin Hatch, Republican of Utah, rallied firmly to the administration's defense,
declaring, "I, for one, believe that the steps taken by our law enforcement and
intelligence communities have saved us from even more harm."
The public opinion polls show voters are generally supportive of the administration's
actions on military tribunals and the detention and questioning of Middle Eastern
immigrants. The risks in bucking that tide, some say, are substantial.
Referring to Mr. Leahy, one Republican leadership aide in the Senate said, "During
wartime, when so many have been killed, there seems to be a disconnect between
what's going on in this country, and what he's doing in his committee."
The Judiciary Committee itself is a politically dangerous place, riven for years by
ideological and partisan lines. During the Clinton administration, when Republicans
controlled the Senate, Democrats complained bitterly that the Republicans —
particularly conservatives like Mr. Ashcroft — were blocking his judicial nominations.
Now, Mr. Leahy is drawing increasing fire from conservatives who accuse him of
"judicial obstruction" of Mr. Bush's nominees.
Still, on the civil liberties issue, Mr. Leahy does have some bipartisan political cover
from lawmakers like Mr. Specter. And he will be joined in the spotlight next week by
other Democrats, including Charles E. Schumer of New York, who will act as
chairman for a hearing on Tuesday on military tribunals.
The challenge facing Mr. Leahy is how to scrutinize the administration's record on
civil liberties while assuring the public that national security remains paramount.
"Nobody up here is for crime," Mr. Leahy said carefully in an interview. "Nobody is
for terrorists. But let's work together to find the right tools."
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