Justice in Wartime
Ashcroft’s actions are defensible, even prudent.

By NR Editors
From the December 17, 2001, issue, of National Review

t's been a season of frustration for liberals accustomed to flaying Republican administrations. To criticize President Bush or his conduct of the war might be seen as unpatriotic. Colin Powell is too ideologically congenial to be a target. Condoleezza Rice, while less congenial, is a black woman. Attorney General John Ashcroft, on the other hand, is a white man; better still, a conservative Christian; and he is not commanding American troops. So he can be, and has been, attacked gaily and without restraint.

Generally without much logic either. Thus Richard Cohen writes that Ashcroft has "played the heavy" in the administration's alleged assault on civil liberties. Among the examples of its assault is its announcement that it may use military tribunals to try suspected terrorists. Never mind that Ashcroft does not have jurisdiction over this matter.

In any case, there is ample legal basis and historical precedent for military tribunals. Stuart Taylor Jr., the respected legal journalist, ably summarizes the policy case for using them: "[T]he government needs a process for incapacitating and punishing presidentially accused war criminals without publicly disclosing intelligence sources and methods, without risking suppression of relevant evidence, and without inviting further terrorist attacks upon prosecutors, judges, juries, witnesses, courthouses, and U.S. citizens abroad." An example of what to avoid is the civilian trial following the 1993 bombing of the World Trade Center, in which classified information was released.

Taylor objects, on the other hand, to two measures that Ashcroft has taken: detaining foreigners without releasing their names, and authorizing the monitoring of detainees' conversations with their lawyers. But here, too, Ashcroft's actions are defensible, even prudent. Detainees who have committed no crime are released after seven days. If they have committed some crime — by entering the country illegally, for example — they may be held longer, which seems reasonable under the current circumstances. Attorney-client privilege, meanwhile, cannot take precedence over national security. Detained terrorists cannot be allowed to use their lawyers as conduits of information or instructions to their colleagues. Conversations between lawyers and their clients would not be admissible in court under Ashcroft's rules.

Finally, many liberals have objected to the Justice Department's plans to interview more than 5,000 young men who have come to the United States from certain countries. This, they say, is discriminatory. Would it be better for Justice to prolong its investigations by interviewing people whom we have no reason to suspect? Guests of our country should be treated with respect, but expected to cooperate with our law enforcement agencies. Liberals used to take pride in the motto "Ask not what your country can do for you; ask what you can do for your country." If they now consider interviews an intolerable imposition, perhaps they should adopt a shorter slogan: "Ask not."

Reasonable questions can be raised about the details of these policies. But it is logically and morally obtuse to warn, as some have done, that they in some way compromise the moral legitimacy of our cause. This war is not being fought to vindicate the American criminal-justice system in all its faded glory; nor to protect liberal shibboleths. Those who pretend otherwise — including Europeans who are saying they will not extradite suspected terrorists to us for fear they will face military tribunals — are being dangerously short-sighted. Their short-sightedness consists of forgetting that we are at war.