U.S. Actions ‘Balanced’ After 9/11, Official Says

The chief of the Justice Department’s criminal division told a lawyers’ group Saturday that Atty. Gen. John Ashcroft has gotten “an unfair rap” from civil libertarians and that the Bush administration has been “very balanced and very restrained” in its legal response to the Sept. 11 attacks.

“We are in a time of war,” Assistant Atty. Gen. Michael Chertoff told a meeting of the American Bar Assn. “If you step back and look at the total picture, the government has been very restrained in its actions.”

By contrast, during World War II “they weren’t asking for a judge’s permission before they shot enemy soldiers,” he said.

Chertoff has been one of the architects of the administration’s aggressive legal campaign against suspected terrorists.

Like Ashcroft, he has stressed that the government is fighting a war, not crime, and therefore is justified in taking steps that are outside normal crime-fighting rules. He defended the Bush team’s record before a sometimes hostile crowd at the ABA meeting.

Speaking before Chertoff was San Francisco attorney James J. Brosnahan, who represented John Walker Lindh, the Marin County, Calif., man who fought with the Taliban in Afghanistan. He drew scattered applause when he called Ashcroft “one of the most dangerous people ever to hold office in the history of this country.”

“I’m from out West,” Brosnahan said, “and out there, we still think we’re in a free country.”

The lawyers’ group is holding its annual meeting here this weekend, and many debates and discussions have focused on the Bush administration’s response to the Sept. 11 terrorist attacks on the World Trade Center and the Pentagon.

While some lawyers defended the administration’s approach as a reasonable response to a new and unprecedented threat, most speakers said the government has overreacted and ignored civil liberties.

Laura W. Murphy, director of the American Civil Liberties Union’s Washington office, said the administration has overused the war analogy to get its way.

When challenged, “they always harken back to the fact that we are at war. I’ve seen a level of bullying by this administration” that bypasses Congress and the courts, she said.

After Sept. 11, Ashcroft said he would use all available means and every law possible to pursue terrorists and to gather information that could head off terrorist attacks.

This alone marked a major shift by the government. Typically, the government investigates and prosecutes crimes that have taken place. However, Ashcroft and Chertoff said they wanted to detain suspects before they could carry out further acts of terrorism.

Since the attacks nearly a year ago, the administration has arrested and held more than 1,200 immigrants for questioning, relaxed rules that barred spying by the FBI, stepped up searches of foreign students’ records and announced that it would listen in on some conversations between lawyers and their imprisoned clients.

Ashcroft declined an invitation to speak at the ABA meeting, but Chertoff sought to assure the rather skeptical audience.

“You should not think you are dealing with a bunch of barbarians,” he said. “Much more than people realize, the attorney general is very, very conscious of civil liberties. In our discussions, he said he wanted people to think outside the box, but never outside the Constitution.”

Chertoff quickly added, however, that it was unrealistic to offer “the full panoply of constitutional rights” to people who are involved in terrorism.

In the last year, the administration has shifted course more than once about how to handle captured terrorist suspects.

In November, President Bush issued an order saying he would try suspected terrorists in military courts, which could operate in secret. The order sparked much criticism, and the administration has yet to hold a military trial.

Instead, the administration has turned to the regular criminal courts to try three men accused of terrorist offenses. Besides Lindh, they are Zacarias Moussaoui, the alleged “20th hijacker” who faces trial in Alexandria, Va., and Richard Reid, the accused “shoe bomber,” who faces trial in Boston.

In Lindh’s case, Brosnahan mounted a strong defense and the government agreed to a plea bargain that will result in a 20-year prison sentence for the American Talib. Moussaoui’s trial has turned chaotic since the French-born Muslim insisted on representing himself in court.

Partly as a result, the administration has turned away from trials and said it can lock up “enemy combatants” without accusing them of a crime or allowing them to speak to a lawyer. Chertoff said the government’s authority to hold “enemy combatants” includes U.S. citizens arrested in this country as well as foreign soldiers captured on the battlefield.

“When we are talking about preventing acts of war against us ... the judicial model does not work,” he said Saturday. “This is about prevention and incapacitation, not punishment.”

Chertoff said the government is determined to hold and interrogate Yasser Esam Hamdi and Jose Padilla, the two U.S.-born Muslims who have been identified as “enemy combatants” and are being held in Navy brigs.

On Friday, ABA leaders criticized the government’s handling of those cases and said both men should be allowed to consult with lawyers and to contest their detentions in court.