In what apparently passes for bipartisanship these days, Atty. Gen. John Ashcroft has sought to cloak his anti-terrorist campaign in legitimacy by invoking an esteemed predecessor, Robert F. Kennedy. As the Justice Department building was renamed this week for Kennedy, it is worth asking whether the comparison is warranted.
I didn’t know Kennedy, but it’s clear to me that John Ashcroft is no Bobby Kennedy.
Robert Kennedy’s Justice Department, Ashcroft has said, “would arrest mobsters for spitting on the sidewalk if it would help in the battle against organized crime.” And Kennedy did just that, pursuing the Mafia on any criminal charge he could find, including violations of the Migratory Bird Act.
Ashcroft too has relied heavily on such pretexts in law enforcement. He has locked up about 1,200 people in connection with the Sept. 11 attacks, while charging not a single one with the devastating crimes committed that day.
The scope of Ashcroft’s efforts suggests that a better precedent would be Atty. Gen. A. Mitchell Palmer’s raids of 1919, when federal agents arrested 6,000 immigrant suspects across the country after a terrorist bombing of the attorney general’s home. None was convicted of the crime, and more than 500 were deported for their political associations.
Like Palmer, and unlike Kennedy, Ashcroft has focused on loose political associations rather than criminal conduct. The vast majority of those detained appear to have little or no connection to the crime.
Justice Department officials have said that only 10 or so are even suspected to be linked to the Al Qaeda terrorist network. And last week, Ashcroft spread the net more widely, authorizing the questioning of 5,000 young men, almost all Middle Eastern immigrants, based not on any connection to crime but on their age, gender and country of origin.
Kennedy’s legacy includes redirecting the FBI from targeting Communists to focusing on organized crime and racial justice. Ashcroft, by contrast, may well be remembered for resurrecting the targeting by affiliation that Kennedy helped lay to rest.
Ashcroft has also sought to avoid oversight that Kennedy thought critical to a fair process. He has revealed virtually no information about the 1,200 detainees. He has asserted the power to listen in on attorney-client communications without probable cause or a warrant, and he is conducting immigration trials in secret. Last week’s executive order, subjecting suspected terrorists to secret trials before military courts with no judicial review, carried Ashcroft’s distinctive stamp.
By contrast, in a time when the Miranda warning did not exist and warrantless wiretappings were accepted, Kennedy argued that ongoing judicial oversight was critical to check prosecutorial power. He never sought to insulate his prosecutions from judicial or public scrutiny.
Kennedy undoubtedly used his powers aggressively in his effort to thwart organized crime. Yet Kennedy also showed that the law can be enforced effectively without violating our most basic constitutional principles.
That’s a lesson that Ashcroft has yet to learn.
David Cole is a professor at Georgetown University Law Center and an attorney with the Center for Constitutional Rights.