Cheer Ashcroft On, With a Little Friendly Oversight

In his recent testimony before the Senate Judiciary Committee on the Justice Department’s anti-terrorism campaign, Asst. Atty. Gen. Michael Chertoff uttered the words Americans want to hear right now: “Are we being aggressive and hard-nosed? You bet.”

As a matter of common sense, we all know that we can’t beat ruthless adversaries unless we suspend our most delicate sensibilities.

The country’s most fundamental civil liberty in the aftermath of Sept. 11 is protecting our lives from terrorists who want to kill us.

To that end, Congress quickly passed a new anti-terrorism bill and the USA Patriot Act, and gave the Justice Department and intelligence community broad new powers to conduct surveillance against terrorists and squeeze their funding.

But some members of Congress are getting squeamish about the Bush administration’s tactics, particularly the proposed use of military tribunals to try suspected terrorists, the detention of about 1,100 possible suspects or material witnesses and the monitoring of jailhouse communications between detainees and their attorneys.

The congressional criticism isn’t fair, but it is a leading indicator that President Bush will not get a free ride in waging the war against terrorism on the home front.

The first thing that Bush and Ashcroft must do is ensure that their extraordinary counter-terrorism tactics are necessary and likely to be effective.

Every public indication suggests that the administration’s actions to date easily pass this test.

But the test has a nuance: Aggressive measures must not be unreasonably counterproductive.

The military tribunal option, for example, has caused a problem in obtaining the full cooperation of countries such as Spain, where one investigating judge has threatened not to extradite suspects who would not receive civil trials.

Another potential problem concerns the voluntary interviews that the Justice Department wants to conduct with about 5,000 men in the U.S. holding passports from countries used as Al Qaeda’s favorite recruiting grounds.

This eminently reasonable measure could end up being shot in the foot as a result of the Immigration and Naturalization Service’s memo saying that individuals brought in for questioning could be detained for unrelated and potentially trivial immigration infractions.

Obviously, the INS position is lawful and legitimate; equally obvious, however, is the fact that threatening detention is not likely to enhance cooperation or allay mounting anxieties in the Arab American community.

Consequently, the administration’s anti-terrorism campaign ought to be more inclusive and consultative.

There is no reason not to seek the wisdom (if not the blessing) of relevant House and Senate members on matters such as the use of military tribunals.

The Patriot Act obligates the administration to report to Congress on the use of some of the new powers and requires the Justice Department’s internal watchdog, the inspector general, to “review information and receive complaints” regarding alleged abuses of civil rights and civil liberties.

The president should embrace this accountability.

Our government is not going to be able to fight international terrorism unless our operatives can get pretty close to the line of what is acceptable in our constitutional tradition.

Given the need for secrecy and speed, the president will have to consult creatively with Congress to avoid a backlash and, time permitting, seek out opportunities to justify the use of new powers to the public.

But the president also could consider establishing a blue-ribbon civil liberties council that would advise him privately on the wisdom and implications of new anti-terror measures.

The council could be drawn from current and former attorneys general, White House counsels, Judiciary Committee chairs, judges, law professors and historians.

They would help the president answer the hard questions about where the country is better off limiting certain liberties for a time in favor of safeguarding American lives and livelihoods.

Given the expectation that the president will be as tough as he needs to be to beat the bad guys, an independent, confidential sounding board could help him make the hard-nosed calls in both directions.

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Alan Charles Raul was associate counsel to President Reagan and general counsel of the Office of Management and Budget under Reagan and former President Bush. He is the author of “Privacy and the Digital State” (Kluwer, 2001).