Soon after the Sept. 11 tragedies, President Bush delivered a stirring address to the American people. These vicious attacks against our nation, the president said, were designed to strike not only the Pentagon and the World Trade Center towers, but also the core values of our democracy. The terrorists may have taken thousands of innocent lives, but they could not take the fundamental freedoms that are enshrined in our Constitution. However, People For the American Way is deeply concerned that unilateral, arbitrary powers being exercised by Attorney General John Ashcroft and others in the administration—under the guise of fighting terrorism—subvert a critical principle on which the Constitution was framed: the principle of "checks and balances."
To Thomas Jefferson, a system of checks and balances was vital. Jefferson wrote that he and other founders labored to create a government that "should not only be founded on free principles," but also ensure that "the powers of government should be so divided and balanced … that no one (branch) could transcend their legal limits, without being effectively checked and restrained by the others." Sadly, the attorney general and his allies are acting in ways that threaten to circumvent these checks and balances, effectively amending our Constitution and our laws by executive fiat.
People For the American Way has applauded both the president and the attorney general for affirming American pluralism and condemning hate crimes against people who are—or are perceived to be—Muslims or Arab Americans. However, a spate of orders approved recently by Mr. Ashcroft and the Justice Department are extremely troubling. They have ignored, even discarded, fundamental constitutional principles. Even worse, they have revealed a strong disdain for two critical pillars of our democracy: Congress and the courts.
Indeed, not long after the ink was dry on the extremely expansive counter-terrorism law, the attorney general and others in the administration marched forward with a series of new orders and policies that undermine the long-held principle of attorney-client privilege; attempt to legitimize the withholding of information about people being detained; establish military tribunals with no rights of appeal; and pose other serious threats to the Constitution and our democratic principles. These orders endanger the right to legal counsel, the right to due process, and other constitutional freedoms.
The vision of Jefferson and other founders has been cast aside by Mr. Ashcroft and the Justice Department. The attorney general’s public statements pay lip service to oversight, but his actions suggest that he believes the Executive Branch is free to justify and execute virtually any action in the name of fighting terrorism and then police the action on its own terms—without proper oversight from the courts or Congress.
The recently signed executive order on military tribunals reflects the growing arrogance of senior officials in the Executive Branch. First, the administration embraced military tribunals without first consulting with Congress. It is also noteworthy that unlike the example that the administration has cited to justify this executive order—German saboteurs during World War II—the current push for military tribunals is occurring at a time when Congress has not approved a formal declaration of war. Second, we’re not talking about an order that simply covers people who enter our country illegally to commit sabotage or who are captured on the battlefield. The order is worded so broadly that it could apply to legal residents who have lived in the U.S. for many years. Third, absent from the order are several key rights that the Uniform Code of Military Justice provides—a public trial, proof beyond a reasonable doubt, the right of the accused to select counsel, and rights to an appeal. The administration hasn’t embraced military trials, but rather its version of a military trial—the complete details of which it has not disclosed.
In addition to the other branches of government, another important ‘check’ on the abuse of power is the people. Writing in the Federalist papers, Alexander Hamilton identified the "two greatest securities" that the American people had to hold their elected officials accountable. The first was "the restraints of public opinion," and the second was "the opportunity of discovering with facility and clearness" whether government officials have abused their authority. Sadly, the public is in a poor position to assess whether the arrest and detention of more than a thousand people by federal officials are in keeping with our democratic values. This is because the attorney general has provided very little information about the detainees that were apprehended in the wake of the Sept. 11 tragedies.
People For the American Way is one of numerous civil liberties organizations that recently filed a Freedom of Information Act request to determine the full scope of these detentions. But our FOIA request has been denied. We know that at one point as many as 1,147 people were being held by federal officials under their arrest-and-detention campaign. Yesterday, the attorney general released incomplete numbers, revealing that more than 600 people remain in federal custody in connection with the Sept. 11th investigations. The attorney general provided figures on the number of detainees being held on immigration violations or federal criminal charges. But the Justice Department has yet to update the total number in custody. And, during yesterday’s press conference, Mr. Ashcroft declined to release even the number of detainees being held as "material witnesses." The attorney general refused to release names of most of the detainees. Even assuming that Mr. Ashcroft’s reasons are valid, there is no justification for why the Justice Department continues to withhold other important information about detainees—for example, how long each person has been in federal custody; what immigration law, if any, they are accused of violating; and the names of their defense attorneys.
Furthermore, it is not clear when or if Mr. Ashcroft will provide updated information on the number of detainees in the future—or if the figures he released yesterday were simply intended to defuse the controversy for now. The extremely limited information that has been made public hinders the ability of the civil rights and legal communities to adequately monitor the reasons, the length and the conditions of these detentions. In addition, federal officials have failed to share important information with Congress and to consult with the House and Senate in other meaningful ways that provide oversight.
We firmly believe that Congress must move quickly to ensure that anti-terrorism efforts are carried out in a way that balances our national security with the constitutional freedoms that we cherish. We believe that the following goals should guide Congress in its actions:
Congress should insist that the administration restore to the judicial and legislative branches their rightful and constitutional roles. Our Constitution establishes a system of checks and balances. Through the years, these checks and balances have helped to curtail excesses on the part of the Executive Branch. Meaningful judicial review and oversight should not be short-circuited by the attorney general or other federal officials. Likewise, it has been disturbing to see this administration circumvent Congress’ critical role, for example, in consenting to the establishment of military tribunals and the standards that would apply to these trials. Congress should put procedures in place that enable ongoing consultation with the attorney general and other law enforcement officials.
Congress should urge federal law enforcement officials to follow and respect existing legal avenues. There are already sufficient legal avenues through which the attorney general and federal officials can seek authority for taking extraordinary actions—such as detaining suspects for extended periods of time—in the interest of protecting the health and safety of Americans. For example, if they feel extraordinary circumstances justify the request, federal officials already have the ability to ask a judge to permit them to violate attorney-client privilege. Allowing the attorney general and the Department of Justice to delegate to themselves new and sweeping powers—on top of the immense new powers granted by recent legislation—jeopardizes our constitutional liberties.
House and Senate leaders should develop a plan to provide sufficient oversight for the nation’s anti-terrorism efforts. In recent weeks, the chairs of various committees in both the House and Senate have claimed authority or expressed a desire to monitor the federal government’s efforts to prevent and combat terrorism. To avoid duplicative efforts and ensure proper oversight, we urge the leadership in both chambers to determine, in a bipartisan spirit, the appropriate committees to fulfill this critical role.
A Congressional board of inquiry should be established to examine the events and environment within which the Sept. 11 tragedies occurred. This inquiry should review the work of our nation’s intelligence forces and law enforcement agencies, including what they knew and how they were operating and cooperating in the weeks and months before these terrorist attacks. This effort would closely resemble the government inquiry that was conducted to examine how and why the attack on Pearl Harbor occurred. These efforts should be conducted in the interest of learning lessons and preventing future catastrophes, rather than casting blame. Such efforts also could be valuable in determining whether there is truly a need for changes in federal investigative or police powers, rather than basing changes on the assumptions of the attorney general—without Congressional or judicial approval.
Finally, it is also worth noting that in today’s Washington Post, eight former high-ranking FBI officials—including a former director—raise serious concerns about the arrest-and-detention campaign that has been waged by John Ashcroft and the Justice Department. Their criticism covered three areas: The Ashcroft approach hasn’t worked in the past, it might undercut efforts to infiltrate terrorist cells, and it could lead to abuses of civil liberties. Former FBI Director William Webster said that during his tenure the agency used "good" and "lawful" investigative techniques, and he warned that the Ashcroft approach "carries a lot of risk with it."