Hearings Reflect Some Unease With Ashcroft's Legal Approach

The Washington Post
John Lancaster
December 02, 2001

President Bush's order last month authorizing the use of military tribunals to try terrorists came as a surprise on Capitol Hill, where some lawmakers accused the president of slighting the Constitution, and them. But for all the sound and fury, Congress does not seem inclined to directly confront the administration on its legal strategy for fighting terrorism, at least for now.

Many lawmakers say they are comfortable with Bush's executive order -- and other unilateral administration moves against terrorism -- given the extraordinary circumstances behind them. Others see little political advantage in picking a fight with a popular president, especially when polls show that most Americans are not losing sleep over the legal rights of accused terrorists.

A few critics, led by Sen. Patrick J. Leahy (D-Vt.), have been vocal about what they regard as overreaching by the executive branch, Attorney General John D. Ashcroft in particular. But even they doubt the wisdom of seeking legislative remedies in the current climate, pinning their hopes instead on hearings aimed at spotlighting the administration's anti-terrorism activities as a way of keeping them in check. "You're not going to be passing legislation in a situation like this," said Leahy, the chairman of the Senate Judiciary Committee, which began a series of oversight hearings Wednesday. "I'm not unaware of the polls."

However, he added in an interview, "what can be done is to have real oversight, and that's something . . . I would think Republicans and Democrats would feel is important to make sure we get honest answers about what is being done. . . . It would mean we would have a more contemporaneous accounting of what's going on and not have historians dig up what happened 30 or 40 years later."

Leahy's campaign has garnered some support from other liberal Democrats as well as conservative civil liberties advocates such as Rep. Robert L. Barr Jr. (R-Ga.), who has criticized some aspects of the administration's legal approach to fighting terrorism as a threat to individual rights.

Bush signed an executive order on Nov. 13 approving the military tribunals, which would permit trials of foreigners accused of involvement in terrorism. The order was one of several administration responses to the Sept. 11 attacks that have evoked protests from civil liberties groups. These include the detention of hundreds of foreigners and a policy change that permits eavesdropping in some cases on conversations between attorneys and suspected terrorists.

The moves followed congressional approval in October of a landmark anti-terrorism bill that gave law enforcement agencies new authority to conduct surveillance and share information with intelligence services, among other things.

By some reckonings, congressional scrutiny is already starting to have an effect. Democratic aides noted that the administration has recently started offering reassurances that the military panels would be used only in the narrowest circumstances. And Ashcroft last week disclosed that about 600 people are being held in connection with the government's investigation into the attacks -- information that Leahy and others have been demanding in written inquiries since October.

But lawmakers generally have shied away from confrontation. Senate Majority Leader Thomas A. Daschle (D-S.D.) said on "Fox News Sunday" last week that "there is overwhelming support" to give Ashcroft "all the power he needs," while in the House, Democratic leaders prevailed upon Rep. Dennis J. Kucinich (D-Ohio) to withdraw a measure that would have cut off funding for military tribunals. Rather than focus now on the administration's anti-terrorism steps, the House Judiciary Committee will hold a hearing this week on baseball antitrust issues.

Rep. F. James Sensenbrenner Jr. (R-Wis.), who chairs the House panel, said he doesn't have "any concern" about Bush's executive order authorizing military tribunals, citing their use in conflicts since the Revolutionary War. Sensenbrenner said that he will hold hearings on the application of the new anti-terrorism law when Congress returns from its Christmas break.

"This bill has been law for less than a month," he said. "I would like to see these regulations be actually implemented for a bit rather than philosophically taking the worst-case scenario, which Senator Leahy seems to have the knack of doing."

Some Republicans charge that Democrats are using the Senate hearings to exact revenge on Ashcroft -- a Missouri Republican who served in the Senate from 1995 until his defeat last year -- whose conservative views caused a bitter confirmation fight. "They're looking for a political target other than a popular president," said a senior GOP aide.

Whatever the motive, Democrats -- and at least a few Republicans -- have been irritated by what they regard as Ashcroft's high-handed treatment of Congress, beginning with the anti-terrorism bill earlier this fall. During deliberations on the measure, which was sought by the administration, Ashcroft found time for just one appearance before Leahy's panel, pleading other commitments. He left before some members could ask questions.

Since then, Leahy has peppered the Justice Department with written queries about its anti-terrorism methods, and his relations with Ashcroft have grown only more strained. In a letter Nov. 9, Leahy chided Ashcroft on his unilateral assertion of authority to monitor attorney-client conversations.

"I have felt a growing concern that the trust and cooperation Congress provided is proving to be a one-way street," Leahy wrote.

That was also the theme of his opening statement Wednesday. The administration's failure to consult with Congress on the military tribunals, Leahy said, "fundamentally jeopardizes the separation of powers that undergirds our constitutional system, and it may undercut the legality of any military tribunal proceeding."

Assistant Attorney General Michael Chertoff, representing the Justice Department, denied any intention to slight Congress. He said the proposal on military tribunals arose in the Defense Department, which is also developing rules for their implementation, and therefore would not have come up in discussions between Justice and Congress on the anti-terrorism bill.

Republicans -- with the exception of Sen. Arlen Specter (R-Pa.), who offered a milder version of Leahy's critique -- rallied to the administration's defense. Sen. Orrin G. Hatch (R-Utah), the Judiciary panel's ranking Republican, described criticism of the anti-terrorism measures as "hysterical." He emphasized that he joined Leahy in asking Ashcroft to appear before the committee only out of respect for Congress's oversight role.

"It's legitimate to ask tough questions," Hatch said. "But let nobody be deceived: The administration can take these positions."

Ashcroft declined the request to appear on Wednesday, saying he had to meet with visiting U.S. attorneys, but has agreed to testify Dec. 6.

"I know the attorney general has been extraordinarily busy and I'm perfectly willing to cut him a lot more slack than many were willing to cut the last administration in times of stress, but I am anxious to hear when he testifies next week what steps he'll take to keep the lines of communication open," Leahy said in the interview.

At least in theory, Congress could take tangible steps to modify the administration's plans for fighting terrorism, starting with its control over federal spending. But wartime politics hardly favor such action, as Kucinich discovered Wednesday when Democratic leaders asked him to pull his tribunal amendment from a defense spending bill.

"It was never my intention to ask for a vote on it," Kucinich said Friday. "I just wanted to raise the profile of the issue."

As an alternative, Kucinich said he has been speaking with fellow Democrats -- including Reps. Jerrold Nadler (N.Y.) and Nancy Pelosi (Calif.), the new Democratic whip -- about proposing legislation to sharply restrict the circumstances in which military tribunals could be convened. Kucinich said House Minority Leader Richard A. Gephardt (D-Mo.) also has signaled support for the effort.

Gephardt's spokesman, Erik Smith, cast the Democratic leader's position in a slightly different light. "What Mr. Gephardt has done is tell Mr. Kucinich that . . . he would help him procedurally, but there have never been any discussions on the substance" of the proposal, Smith said.

Copyright 2001 The Washington Post

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