Self-Inflicted Wounds

The nation may never know if it over-or under-reacted to Sept. 11 and the fear that fanatics bent on mass murder could strike again, perhaps harder.

In those first gloomy weeks last fall, the president and the attorney general scrambled to protect Americans. So far, they’ve succeeded. But they have been less successful at mitigating the damage their battle against Islamist terrorists has done to the nation they’re sworn to protect.

Slowly, belatedly, Congress and the courts are asserting their authority to keep the White House in check. Instead of listening, however, President Bush and Atty. Gen. John Ashcroft continue to act as if they think that in dangerous times it’s OK to streamline unwieldy democratic processes into imperious efficiency.

Ashcroft, according to one of his deputies, “wanted people to think outside the box, but never outside the Constitution.” Yet for nearly a year, the attorney general has rebuffed dozens of letters and formal requests from members of Congress responsible for overseeing how the Justice Department detains and prosecutes federal suspects.

How many immigrants did you arrest, and on what charges? queried Sen. Carl Levin (D-Mich.) in March. Estimates have put the number as high as 1,200, with the overwhelming majority picked up for visa violations or minor criminal charges. But nobody knows for sure, and Ashcroft has yet to make a complete accounting.

What justifies holding secret deportation hearings? Sen. Patrick J. Leahy (D-Vt.) has asked repeatedly, in the more than two dozen letters he’s sent Ashcroft in recent months.

Which prisoners will you try in military tribunals? asked Pennsylvania Republican Sen. Arlen Specter last fall. And how can you defend the loose rules of law and evidence you have proposed to apply in these cases?

Why, asked Sen. John McCain (R-Ariz.), did you decide to bring charges against John Walker Lindh last year in federal court and allow a lawyer to represent him, while insisting that Yaser Esam Hamdi and Jose Padilla, also U.S. citizens, are not entitled to the same constitutional rights?

The president has already declared these two citizens enemy combatants on secret evidence. Hamdi, a Louisiana-born Taliban fighter, was captured in Afghanistan. Padilla, a former gangbanger arrested in Chicago, apparently stands accused of plotting to release a radioactive bomb. Neither suspect faces criminal charges, and the government insists that they are not entitled to an attorney or a court hearing anytime soon.

As Congress members ask questions, federal judges also have been speaking up. A Virginia federal judge blasted Bush’s decision to hold Hamdi and Padilla incommunicado and indefinitely. In Hamdi’s case, the judge noticed, federal officials offered only a vague, two-page memo from someone identified as a special advisor to the undersecretary of defense to justify their action. “So,” the exasperated judge snapped, “the Constitution doesn’t apply to Mr. Hamdi?”

Late last month, an appeals court upheld lower court rulings in Newark, N.J., and Detroit directing the attorney general to end the secret detention hearings that exclude not only the public and press but family members--evoking memories of Central American dictators who expediently “disappeared” anyone considered a threat. The three-judge panel called the policy “profoundly undemocratic” and warned that it could result “in a wholesale suspension of 1st Amendment rights.”

Yet rather than accept these judicial decisions as wise guidance, Ashcroft has chosen to appeal in every instance.

So now we encourage Congress to stop asking questions and start telling the attorney general what the courts have said: that even in wartime, America is not a dictatorship. Republicans and Democrats who value civil liberties need to set clear legislative limits on Ashcroft’s authority--and on the president’s. They need to tell the executive branch that no U.S. citizen shall be stripped of his due process rights and that the government will keep all court proceedings open to the public unless doing so would jeopardize national security. If the administration can’t make that case, Congress should withhold money accordingly.

Happily, as a result of this democracy’s belief in open debate and its built-in balance of power, words we used in our Sept. 12 editorial are still true a year later: “Buildings collapsed. Democracy stands.” For that to remain true in the coming years and decades, however, depends on Congress’ living up to its responsibilities to minimize the war on terror’s constitutional casualties now.