Symposium: Ashcroft Justice – FrontPage Magazine – Transcript

Symposium: Ashcroft Justice

By: Jamie Glazov

With the Iraq war now underway, which way should Ashcroft’s Justice Department proceed to fight terrorism at home? Jamie Glazov talks to Michael Ratner, Susan Estrich, Henry Mark Holzer and Cliff May.

With the war in Iraq now underway, the issue of homeland security becomes an even greater pressing issue. Attorney General John Ashcroft must now intensify — even further — the effort to protect the safety and security of the American people. Up until now, however, the Left has consistently accused Ashcroft of eroding civil liberties. Does this accusation have any basis in fact when we consider the 9/11 tragedy? Moreover, with the present Iraq war, and all the threats that it poses to American security, will the Left actually continue to see Ashcroft’s actions as encroachments on liberty?

At this crucial point in the War on Terror, it appears simply vital to ask: what is the real state of Ashcroft Justice? Are the concerns of the Left truly justified — or are they simply just a smokescreen for the destructive agenda of the Hate-America-Left?

In this two-part series (Part II to be run in the next issue), Frontpage Magazine has aligned a distinguished panel of experts to discuss these and other issues relating to Ashcroft Justice. Our guests today are: Michael Ratner, President of the Center for Constitutional Rights and lecturer at Columbia Law School; Henry Mark Holzer, a constitutional and appellate lawyer who is Professor Emeritus at Brooklyn Law School and the co-author (with Erika Holzer) most recently of Aid and Comfort: Jane Fonda in North VietnamSusan Estrich, one of the nation’s leading legal scholars who is a Harvard law professor, a syndicated columnist and the author of the Los Angeles Times bestseller Sex & Power; and Cliff May, President of the anti-terrorism think tank Foundation For the Defense of Democracies.

[1] Welcome ladies and gentleman. Due to the nature of this panel, I have a feeling that one question will suffice for hours of debate. So let us just begin with a simple question: what do you think of Ashcroft Justice thus far?

Estrich: The good news about Ashcroft is just how bad he is….and makes no apology for it. Here is a man who doesn’t think people impose the death penalty enough; now, I have no moral qualms about the death penalty, and I think Governor Ryan went too far, but Ashcroft is the best friend death penalty opponents ever had… you read that right.  A slightly more reasonable sounding guy following essentially the same policy would have the country eating out of his hand; at least this one has some of the people worried. Anyway, it will get worse before it gets better. . . .

Ashcroft is my dream come true.. A more reasonable sounding guy would lull us into complacency.  He might convince me that Michael Ratner is wrong. So Ashcroft is honest in a certain sense. He doesn’t trust Republican judges.  He reappoints rejected judges.  Pushes Miguel Estrada on the eve of a war.   Fair enough.  No Democrat would appoint his equivalent.  No chance.

Ratner: Ashcroft is leading us down the road to a police state—by that I mean a state where executive fiat rules, where the constitutional checks and balances on executive power are ignored and where dissent is suspect. We can begin with the round-up of non-citizens after 9/11 on the most meager of immigration violations, the justice departments refusal to divulge their names, the order that their immigration hearing be held in secret, and their continued detention for many months despite voluntary departure agreements or final notices of deportation.

Ashcroft has broadly authorized government spying on dissenters by weakening FBI guidelines, authorizing spying on political and religious groups– apparently including every mosque in the country—and through the TIPS program wanted to make spies out of everyone from Federal Express agents to meter readers. He has eviscerated the 4th Amendment protections on wiretapping and searches by widely employing wiretaps through the Foreign Intelligence Surveillance Act and asserts that he does not even need that procedure to wiretap attorney-client conversations. To the extent he is involved with the detentions of so-called “enemy combatants” such as Hamdi, Padilla or those at Guantanamo he is violating the 5th Amendment and the right under international law that every human being has a right to test his detention before some kind of tribunal.  Recent reports that detainees in Bagram etc. are subject to torture or cruel, inhuman and degrading treatment, to the extent that Ashcroft and the FBI are involved, are truly alarming. I would normally end with a sentence beginning “finally,” but Ashcroft’s and the current Bush administrations abuses are never ending.

HolzerI had thought that whatever his political beliefs, Mr. Ratner was a better lawyer than his answer reflects. With typical Radical Left rhetoric Mr. Ratner informs us that the AG “is leading us down the road to a police state”  — an empty accusation having no substantive content at all.  In an unsuccessful effort to explain — “by that I mean” — he tells us that the road leads to “a state where executive fiat rules, where the constitutional checks and balances on executive power are ignored and where dissent is suspect.”

Maybe this kind of rant, whatever it might mean, pleases the crowd at a fund raising meeting of the faithful or an anti-war rally, but it is neither evidence, let alone proof, of anything.  Mr. Ratner’s next attempt to put some meat on the bare bones of his meaningless words consists of a few allegations against the INS.  His not-so-subtle characterization of a “round up” does not tell us why it was illegal. Indeed by his “meager” characterization, he admits there was evidence to support the charged violations of law.  Last time I looked, evidence was either adequate or inadequate.

“Meager” evidence, though apparently not enough to satisfy Mr. Ratner’s sensitivity to the plight of non-citizen potentially illegal aliens, is nonetheless adequate evidence. Then there’s the government’s refusal to divulge their names, holding their immigration hearings in secret, and their continued detention. Mr. Ratner may not like any of this — he certainly doesn’t — but his dislike does not make these steps illegal. The people whose treatment he so deplores are, by his own admission, non-citizens with absolutely no right to be in the United States. Indeed, he admits that some of them, seeing the handwriting on the wall, agreed to leave the country and others were ordered deported.

Similarly — putting aside Mr. Ratner’s incendiary characterization of official and civilian investigation of, and attentiveness to, persons in our midst who might pose a terrorist threat — not one of those activities are unconstitutional or otherwise illegal.  And Mr. Ratner does not claim they are.

As to the Foreign Intelligence Surveillance Act, it is plainly constitutional, and Mr. Ratner admits, as he must, that the wiretaps the AG has authorized have been under the aegis of that act.

As to “enemy combatants,” the Fourth Circuit has held that Hamdi’s classification is constitutional and otherwise legal.  So far, there has been no appellate ruling as to Mr. Padilla, the so-called “dirty bomber.”  (My guess is that the appellate court will rule that he is entitled to a lawyer, and to seek a write of habeas corpus, since he is constitutionally entitled to both).

As to the detainees at Guantanamo, even the ministrations of Mr. Ratner’s colleague, Ramsey Clark, have been unable to convince a district court or an appellate court that these non-citizen enemy soldiers, held outside the United States by the United States military, have any rights under the federal Constitution or statutes — despite Mr. Ratner’s sophomoric assertion that the Fifth Amendment applies to this detritus from the Afghanistan war.

“Finally,” although Mr. Ratner apparently eschews the word, it needs to be said that while doubtless his comrades will love hearing yet another meaningless tirade against American institutions from one associated with a preeminent American-hating organization, the Center for [so-called] Constitutional Rights, those of us who know anything about law in general and Constitutional law in particular, quickly recognize that Mr. Ratner’s contribution to this symposium, so far at least, is less law than propaganda.

May: I can reply to arguments but what I hear from Mr. Ratner is more like a hysterical rant.  The idea that the Attorney General is leading us “down the road to a police state” does not merit serious rebuttal.

Nevertheless, let me point out a few facts and offer a few thoughts. The Attorney General and other law enforcement authorities are doing their best to fight a war, a war in which thousands of innocent Americans have already been killed.

The Attorney General is trying to root out the terrorist cells that now exist within America, and to prevent other terrorists from reaching out shores and carrying out their missions. Mr. Ratner would frustrate that attempt. Perhaps Mr. Ratner thinks it not worthwhile.

We Americans face a new and grave threat in the 21st century: Terrorists — backed by rogue dictators and possibly armed with weapons of mass destruction.  We are just beginning to grapple with how to defend ourselves from this foe. Perhaps Mr. Ratner would prefer that we not make any serious attempt. Perhaps he thinks we deserve whatever pain the terrorists inflict. Or perhaps he has his own plan for combating terrorism. If so, I’m waiting breathlessly to hear it.

In past wars, civil liberties have on occasion been limited. And we may have to make some hard decisions, for example we may have to decide whether to sacrifice privacy for security. Actually we’ve already made that decisions – next time Michael goes through an airport and is asked to empty his pockets and remove his shoes, he might reflect on that.

What’s more, it’s true that in past wars civil liberties have sometimes been violated. President Roosevelt incarcerated Japanese-Americans. President Lincoln suspended habeas corpus. It is possible that the Bush administration will go too far – but clearly that hasn’t happened yet, for all the whining from the Bush/Ashcroft haters on the Left. When it does, I’ll be the first to protest.

It’s odd – and rather instructive – that Mr. Ratner’s anger is directed only at Mr. Ashcroft. After all, the USA PATRIOT Act was debated in Congress and it passed with overwhelming bipartisan majorities.

The Justice Department has implemented the provisions of the PATRIOT Act, particularly those that involve enhanced surveillance. What has been the result? Well, among other things the arrest of the Buffalo al Qaeda cell – one member of which  has already pleaded guilty to providing material support and former University of Florida Professor Sami al Arian who was just charged with material support to the Palestinian Islamic Jihad (PIJ) one of the most violent terrorist groups in the world.

All one has to do is read the lengthy and detailed indictment of al Arian to see the positive effects of the PATRIOT Act.  Finally, thanks to that law and to the Justice Department’s aggressive implementation of the tools provided, law enforcement could get the intelligence information needed for serious criminal investigation and prosecution.

Mr. Ratner’s allegation that civil liberties were sacrificed to achieve this result doesn’t hold up to scrutiny. The FBI cannot get information without a warrant from a federal judge.  To get a warrant, the FBI has to convince the judge that the subject of its investigation is a foreign spy or a member of a terrorist organization.  The law does not apply to U.S. Persons (U.S. citizens or green card holders) unless the FBI can convince the judge that the U.S. person is a foreign spy or member of a terrorist organization.

It should be noted that several of Mr. Ashcroft’s interpretations of the PATRIOT Act have been tested — and upheld on federal appeal. Appeals courts also have upheld the President’s power to detain enemy combatants, the detention of enemy combatants at Guantanamo Bay; the sharing of FISA information, withholding the names of sensitive immigration detainees and freezing the assets of purported charities that fund terrorists.

The so called “round-up” that Mr. Ratner talks about – as do so many of his hyper-partisans colleagues – is a fiction. There are millions of foreigners in America.  A total of just over 750 aliens of special interest to the 9/11 investigation were detained – and every one of them was here illegally, everyone had violated our immigration laws.

No one was held in secret.  They were all free to make their detentions known, hire legal counsel, receive visits from family and friends and make phone calls.  In fact, any one of them could have called the news media and announced that he was being detained.  Yet almost all chose to remain anonymous – that was their decision.

The proceedings were held in secret to protect national security and the integrity of the 9/11 investigation.  Again, that effort was upheld on appeal. What the Justice Department did not do was provide a list of the detainees to the media. That would have been very convenient for busy journalists but it would have provided clever terrorists with a roadmap of the FBI’s investigations.

So, yes, in the wake of the most heinous attacks in American history – the cold-blooded murder of over 3,000 innocents – the Justice Department used the legal tools it had to find out what it could and to remove potential threats from the streets of America.

Again, all those detained and questioned were living here illegally.  Mr. Ratner may not like our immigration laws, but the Justice Department is obliged to enforce them until Mr. Ratner and his friends manage to successfully lobby lawmakers for the changes he favors.

As for spying on religious groups, Mr. Ashcroft authorized no such thing.  In fact, I can only assume Mr. Ratner hasn’t read the guidelines because they clearly prohibit that activity.  What the guidelines do allow is for the FBI to go into public places or attend public functions on the same terms and conditions as members of the public.  Practically speaking, an FBI agent can now go where any local policeman or sheriff can go.  The effect of this is that terrorists can no longer use a mosque to evade detection or plan mass murders.  The FBI can now follow the terrorist suspect in instead of having to stop at the door – as they had to do in the past.

As for the detentions and 5th Amendment rights of enemy combatants, it is long settled in U.S. and international law that enemy combatants don’t have the right to contest their detention.  They didn’t have that right in World War II and they don’t have it now. And the courts have agreed with the Justice department in this latest round.  I suppose Mr. Ratner has been too upset to read the papers.

Finally, Mr. Ratner’s suggests that Mr. Ashcroft has been involved in torture and he bases his allegation what he calls “recent reports.”  That is both irresponsible and slanderous and I would hope Mr. Ratner would withdraw the remark prior to publication of this symposium.

Ratner: In response to Mr. Holzer, let me say this: the post 9/11 detentions of immigrants, the failure to give the names and the secret hearings have all been challenged in court. Some of those practices have been held unconstitutional. For example, Judge Keith in the 6th Circuit held the secret hearings unconstitutional stating that “Democracy dies behind closed doors.” The fact that courts may uphold some of Ashcroft’s practices just indicates the seriousness of the assault on our liberty. Remember, the courts upheld the detentions of 110 Japanese during WWII; that did not make it wither right or constitutional. Whatever our courts say, there is also international law. That law prohibits arbitrary detentions which is precisely the practice engaged in by the Bush administration

The fact that a secret court upheld its own enabling law is not very convincing. Last year this secret court authorized over 1000 wiretaps; regular federal courts authorized only 500. And it will be worse this year. The strictures of the 4th Amendment have been eviscerated. Ashcroft even wants to avoid the secret court and has authorized wiretaps of attorney-client conversations without any court authority.

Sadly, our courts so far have accepted the designation enemy combatant. Yet, this designation is not a status under international law; it is has no legal meaning. That is why the U.S. employs it; it can do whatever it wished to those detained—they have no rights according to the Bush administration. That should be unheard of in society claiming it is civilized.

Since when can people be held indefinitely in an off-shore penal colony and given no rights and no way to test their incarceration? I am one of the attorneys for the Guantanamo detainees and took their case to the Inter-American Commission of the Organization of American States where we won. The Commission ordered immediate hearings for all of the Guantanamo detainees, accepting that they were arbitrarily detained, said their rights were illegally subject to the unfettered discretion of the U.S. The U.S. has refused to comply with the ruling.

Wrapping yourself in the flag is not debate and certainly not democracy. Vigorous dissent, particularly at times when following the herd is the order of the day, is what constitutes democracy.

In terms of Mr. May, let me say this: I am glad to see that he appears to find torture unacceptable. I wish I could withdraw the remark. Many of the facts are out there on this, much of it admitted by U.S. officials and recently documented in the Washington Post and the New York Times. Witnesses have reported that captives are “softened up” by the U.S. military.  The detainees are blindfolded, thrown against walls, bound in painful positions, subjected to extreme temperatures and deprived of sleep sometime for weeks. It has been reported that they are chained naked to the ceiling and floor for over 16 hours a day, day after day,

Recently, two detainees at Bagram may have been tortured to death. Pain killers were denied to a man who had suffered a gunshot wound. I call this torture. But even if it constitutes cruel, inhuman and degrading treatment it is still outlawed by the torture convention and U.S. law. It is reported that since September 11, dozens of prisoners have been sent to third countries including Egypt, Morocco or Jordan, which maintain close ties to the CIA and which routinely engage in interrogation tactics such as torture and threats to families that are illegal in the United States.  As one American official said of this practice of sending captives to foreign countries for interrogation: “We don’t kick the [expletive] out of them.  We send them to other countries so they can kick the [expletive] out of them.” That is aiding and abetting in torture.

May:  We don’t really have space here for a debate about what constitutes torture, and what means are and should be permissible as part of efforts to prevent acts of terrorism such as we experienced on 9/11 or at our embassies in Africa.

But based on conversations I’ve had with experts in the area, there is actually little utility in the harsher interrogation techniques because the goal is generally to gain the subject’s cooperation. And you don’t get that by doing the kinds of things that, for example, Saddam Hussein does to his enemies, e.g. raping their wives and daughters in front them, putting their limbs in meat grinders and vats of acid, cutting out their tongues, feeding them into plastic shredders.  (I’d be grateful if Mr. Ratner would refresh my recollection of the articles he has written and the marches he has organized protesting Saddam’s uses of these practices against political opponents and dissidents.)

I probably should point out that there is a difference – in my view — between torture and “stress and duress.” The use of blindfolds and sleep deprivation, for example, does not in my opinion constitute torture. Mr. Ratner tosses those in above as examples of torture. I wouldn’t want to leave the impression that I agree.

Finally, the remark I suggested Mr. Ratner withdraw was his baseless insinuation that John Ashcroft is “involved” in torture. His references above concern  “reporting” about the military and the CIA – I see no connection whatsoever to the Attorney General. That’s why I said his remarks were irresponsible and slanderous, and ought to be withdrawn.

Estrich:  Now, now, boys, let’s use our indoor voices.  Why are you guys yelling? Is that the way we talk now?  My daughter is standing over my shoulder. She wants to know why you’re screaming at each other.  Was it something I said?  No, they enjoy this. One side screams because no one else will listen otherwise, because no one cares (so torture him, someone said to me today), and we need people to scream, and to sue, and then the other side belittles instead of just answering…. we don’t just say you’re wrong anymore.  Just say he’s wrong.  We spend more time characterizing each other than debating.  Anyway.
Is Ashcroft going further than previous Administrations… of course. Has it been effective?  By what measure? Yes, they’ re not citizens.  Might be illegal immigrants.  So was my grandfather.  You know this argument.  Do you want to give them no rights?  Have them tortured by someone else?  Just what are you proposing? Why not trust the judiciary to judge, in the same way we trust the military to wage war?  Let them adapt federal procedure as necessary to protect secrecy and security.  Were talking Republican appointees.

Who is the enemy here?

I’m not living in a police state, but I do worry about the ease with which the rights of a small Arab minority are going to be and are being walked on, and I worry about questions of ideology and competence in the Administration of justice in this Administration. Moreover, I think most honest observers of this Administration would worry too, whether or not they support Miguel Estrada, or like to yell at each other, which I get paid to do – but don’t like to do in my spare time for nothing.

May: Susan, I wasn’t raising my voice — honest. I was merely speaking in a firm and clear tone, to avoid being misunderstood. But I take your point.  And let me add that Susan’s presence uplifts any debate in which she is involved. She is a delightful person with whom to disagree. She always makes me smile.

I appreciate, too, Susan acknowledging that she does not live in a police state and that such hyperbole has no place in a serious discussion.

She is correct, too, in saying that the current administration has gone further than previous administrations. After 9/11, one would hope that to be the case – I think Susan recognizes that as well.

Previous administrations – Republican as well as Democratic — did not deal seriously with the increasing threat of terrorism, a threat that should have been obvious to us at least 20 years ago when Hezbollah slaughtered Americans in Beirut. In retrospect, President Reagan’s response – to pack up and leave Lebanon, encouraged the terrorists and paved the way for more terrorism.

In the 1990s, President Clinton treated terrorism as a criminal and judicial problem. That has to be seen – again in retrospect – as a mistake. It is astonishing that he did not even visit the World Trade Center in the wake of the 1993 bombing. He preferred not to draw attention to it or spark much debate about it and what it meant. He did nothing to fix the INS. He left our borders as he found them: a broken screen door swinging in the wind.

President Clinton also responded fecklessly to such attacks as that on our embassies in Africa, on the Khobar Towers in Saudi Arabia, and on the USS Cole.  A former intelligence agent of my acquaintance said that among Radical Islamists the joke became: “You have to be careful when dealing with these Americans. Kill too many of them and they may sue you.”

Susan raises the question of whether the measures this administration has taken have been effective. I think we have to conclude that so far, at least, they have been – we have not had a serious attack on US soil since 9/11. We have arrested quite a number of people who, law enforcement authorities believe, were involved in planning terrorist acts.

Susan is also right to worry about the rights of the Arab minority. But despite the whining and protesting you hear from the Wahhabi-controlled groups that dominate the media, most Arab-Americans do not feel that they are being put upon by the US government. Take a look at the web site and see what those leaders-in-exile have to say. Look also at the Free Voices of Iraq section on the web site of my organization, at

Ratner: In Cliff May’s earlier responses against me, he only engages in an ad hominum attack.  I will ignore it.  He asks whether I have a plan to combating terrorism and says he wants to hear it. Here it is:

Ratner’s Plan for Combating Terrorism:

First, I do not believe that even the creation of a police state can make us safe from terrorism.  Are Israelis really safer because their police use torture, because their army demolishes homes and because they have a “pass” system?  The British likewise tried similar tactics against the IRA and it did not work. It will not work here until we understand that a country cannot bomb the heck out of a place, use its muscle for economic and political domination and not expect to create terrorists.

Yes, there may always be some terrorism, but U.S. policies must change if we are to have a safer world.  For example, even the U.S. government acknowledges that the war against Iraq could bring more terrorism.  Airports and seaports are under guard, the alert has gone up a notch and 5,000 FBI agents are fanning out across the country in search of alleged terrorists. Some would say, we would be attacked anyway. However, this war is creating new terrorists that will visit terror upon our children. The NYT reported that administration officials acknowledge the war will make recruiting terrorist by al Qaeda and others much easier.

I think we must solve the Israeli-Palestinian conflict if we want a safer America. Because of the billions in aid we give to Israel every year, we are seen as supporting and condoning that country’s brutal and illegal policies in the occupied territory.  We will have terror as long as that policy continues.  Bush’s reluctant last minute agreement to the “road map, “ assented to because of pressure from Tony Blair, and even then with exceptions, is insufficient. A real and genuine effort must be made and now.  We must stop supporting dictatorships such as that in Saudi Arabia where democracy is brutally suppressed.  It is not a coincidence that the majority of hijackers were from Saudi Arabia. I could give many more examples—but the point is U.S. foreign policy must change if we are to be made safer. The American people should be asking how we can spend 400 billion dollars for national defense and billions more for domestic security and not feel safe. The United States is doing something very wrong.

Second, all of the law enforcement in the world can never really protect us and that is one reaon why we must examine the causes of terrorism.  The United States has a 7500 mile border with Canada and Mexico, thousands of miles of seacoast, more then 10,000 flights a day, more then 50,000,000 visitors a year and millions of trucks and rail cars crossing our border. If someone or some group wants to carry out terror, it can do so. Law enforcement is important, but it will not really be able to make us safe.

Third, the U.S. should have done a thorough investigation of why the intelligence agencies failed us on 9/11. The Congress has passed hundreds of pages of legislation limiting or eliminating many of our fundamental rights and has done this without knowing what went wrong on 9/11. We all are aware that the FBI and CIA had a lot of information. It had one of the alleged future hijackers in jail, other hijackers were roommates of a federal informant and the FBI had tracked another to an al Qaeda meeting in the Philippines and, yet, let him enter the United States. Only after the families of the victims tearfully met with the Bush administration, a year after 9/11 did an investigation team get set up—and we have not heard anything from it.

Fourth, Ashcroft and law enforcement ought to stop making pariahs out of immigrants, particularly Muslims, Arabs and those from certain countries.  US policies of jailing, deportations, registrations etc. make enemies out of the very communities whose support the U.S. needs for effective law enforcement.

It simply must be said that we will not be able to reclaim our lost liberty as long as people in the U.S. are afraid of the next act of terror. The Bush administration will continue to pass and the courts will continue to uphold draconian laws.  People will not feel safer until they are safer and that will only happen if we examine and do something about the “why” of terror.

Holzer: The modestly entitled “Ratner’s Plan for Combating Terrorism” is as much of a plan as is a Chinese fire drill. Unfortunately, space does not allow a detailed dissection of his lengthy, but contentless, wide-of-the-mark pedantry.

So suffice to say in summary fashion what is wrong, very wrong, with his four points.  First, except in the halls of the Center for [so-called] Constitutional Rights, in the ranks of the Palestine Authority, and among the worldwide legions of anti-Semites, no one in their right mind believes that Israel is a “police state.”  Israel has not managed to deal better with terrorism not because it is a Ratner-designated “police state,” but because of restraints imposed on it by others, including the United States.  Second, the “root cause” plea has been so fully demolished, there is no need to address it here — except to note that its study is for psychiatrists, social workers, and the like — not our defense establishment.  Third, Although Mr. Ratner is correct in seeking a fuller explanation of why our intelligence agencies failed us pre-9/11, he will not like part of the explanation: constraints put on those agencies by the conduct of organizations such as his.  Fourth — and ironically, in light of his third point — Mr. Ratner complains about the treatment of immigrants.  If we had been  harsher and more vigilant concerning foreigners, perhaps the killers of 9/11 would have had a harder time.

Finally, though he again alludes to “draconian laws,” he fails to tell us what they are, or why they are draconian.  In a piteously redundant conclusion, he offers the profound observation that “people will not feel safer until they are safer. . . .”  Wrong.  Americans will feel safer when our government keeps doing what it is doing, and then some.

May: As I expected, “Ratner’s plan for Combating Terrorism” is nothing of the sort. Instead, Ratner makes yet another feeble argument for the appeasement of those who seek to destroy us.

He says: “U.S. policies must change.” Change to what? Whatever Osama bin Laden and Saddam Hussein demand? That’s a heck of a prescription.

He says, “I think we must solve the Israeli-Palestinian conflict.”  Wow, no one ever had that idea before. On second thought, among those who have dabbled in this issue are President Clinton and Israeli Prime Minister Ehud Barrack. At Camp David, they offered Yasser Arafat an independent state with its capital in Jerusalem. Arafat said no. Why? I think it’s clear: because Arafat really wants what such terrorists groups as Hamas and Hezbollah are demanding: the elimination of the state of Israel. If we helped them achieve that end by ceasing our support for Israel, would that stop the terrorist war against us? Michael evidently has convinced himself that it would, just as so many Europeans once believed that Mr. Hitler would be satisfied once he had been handed Czechoslovakia on a silver platter.

Please recall that bin Laden has told us why he struck our civilians on 9/11. He said it was because infidel American troops were on holy Saudi soil. Why have they been stationed in Saudi Arabia? To protect that country from Saddam Hussein. But, hey, if we’d give Arabia to Saddam (and Kuwait, of course), surely bin Laden and Saddam would be satisfied with that. It’s as plain as the nose on Mr. Ratner’s face.

Bin Laden also said he incinerated innocent Americans to protest UN-imposed sanctions that were impoverishing Iraqis – never mind that Saddam has had billions to spend on his palaces and WMD. If America would just change its policies and leave Saddam alone to build his WMD and train his terrorists, surely then the terrorism would end. Who could see any problem with that logic?

And, yes, bin Laden added that he was murdering Americans for the sake of his Palestinian brethren. But surely not even Mr. Ratner seriously believes that Osama envisions any solution to the Arab-Israeli conflict that would not include Israel’s annihilation and the extermination of most of its population. But hey, what’s the big deal about throwing Osama and Saddam one more little country, including the surviving remnant of an ancient people? If we would just do that – change our terrible policies, give the terrorists what they ask – it’s so little really — surely that would be the end of the terrorists’ attacks and surely Mr. Ratner could then be spared the oppression he feels living under the jackboot of Attorney General John Ashcroft.

But a little truth in packaging. What Mr. Ratner has provided above is not “Ratner’s plan for combating terrorism.” It’s merely “Ratner’s plan for surrendering to terrorism.” He should be thanked for making it so clear.

Interlocutor: Ladies and gentlemen, forgive me, we are out of time for this first part of our dialogue on Ashcroft Justice. We will resume this discussion on Monday. Take care for now.

Symposium: Ashcroft Justice Part II

By: Jamie Glazov

Welcome back to the Ashcroft Symposium. In this second and final part (click here to see Part IFrontpage Magazine continues to host a discussion between: Michael Ratner,President of the Center for Constitutional Rights and lecturer at Columbia Law School; Henry Mark Holzer, a constitutional and appellate lawyer who is Professor Emeritus at Brooklyn Law School and the co-author (with Erika Holzer) most recently of Aid and Comfort: Jane Fonda in North VietnamSusan Estrich, one of the nation’s leading legal scholars who is a Harvard law professor, a syndicated columnist and the author of the Los Angeles Times bestseller Sex & Power; and Cliff May, President of the anti-terrorism think tank Foundation For the Defense of Democracies.

Interlocutor: So let’s continue the discussion. Let me ask this: what is it exactly that the Attorney General, as compared to the President and Congress, has done? Has it been consistent or non-consistent with the Constitution and federal statutes? Is it good policy?

Holzer: In comparison to the President and Congress, Ashcroft has done very little. Principally the indictments. Let’s hear from the others what they think he’s done.

In terms of consistency with the Constitution and federal statutes, certainly all the INS-related and other administrative action is consistent. So is the 4th Circuit held for the government in the Yaser Hamdi detention case.  Jose Padilla, the so-called “dirty bomber,” is still an open question — but a federal judge in the United States District Court for the Southern District of New York has ruled that Padilla is entitled to a lawyer. We’ll see what happens in the Supreme Court, if the case gets there.  Taliban John Walker Lindh (see was appropriately charged, and he decided to cut and run.  There is no legitimate way to question that indictment, or the indictments of the Buffalo Six, or any of the others who have been indicted.  They will plead, or be convicted.

No amount of Left wing hysteria is going to save them.  Moussaoui will end up in a military tribunal, and go up for life — consistent with a precedent set in the Twentieth Century by Franklin Delano Roosevelt.

Estrich: Ashcroft is trying to make us safe and of course we’re not, we just stand in longer lines.  On the other hand, since no buildings have blown up since 9/11, how can I say he hasn’t succeeded…. how can I say what threats have been avoided?  That’s the game here.  I can tell you how many tens of thousands of men were held in Guantanamo for no reasons, and I’m sure Michael and others can give you chapter and verse of immigrant horror stories in this country, we all hear them now…. but who is to say what horrors have been avoided?

My line is that history teaches that we end up neither safe nor free, and that’s true, but it takes till Monday morning to know that, and we aren’t even up to the weekend yet…. So I can’t possibly win this fight, I don’t know what rights we’ve lost, not for sure, and I don’t know how much security we’ve gained, so what I have to fight for at this point is legal process…

As for the Constitution, it means what judges say it means, which varies with how frightened we are, after all.  It used to mean that decent Japanese people had to be taken from their homes and locked away, something we now find inconceivable but only fifty years ago was upheld by the Supreme Court.  It also used to allow people who wrote pamphlets advocating workers rights to be locked up.  And whether it applies at all depends on who you are, and what you did, and how you get classified these days…none of which may get reviewed by a judge.  So there.

And when the latest bad guy got arrested, how many people do any of us know who were worried about whether his rights would be respected?

I used to hang around with these young Serbian guys who did politics for Djinjic… the guy who got assassinated in Serbia.  He was their big hope.

You need a base of stability for constitutional order….but we’re not talking about Iraq here, right….

Holzer: If “tens of thousands of men were held in Guantanamo,” the place must be much larger than anyone ever dreamed.  Until this “conversation” I never knew anyone who was an agnostic about the AG.

Estrich: Hank, I’ve never been to Guantanamo.  The government has released very little information.  It was hyperbole.  Does it matter if its thousands? The point is the same.

Holzer:  The point might be the same, if we knew what the point was.

May: Susan is struggling with some hard questions. How do we defend ourselves against those who have sworn to murder us and our children? How do we fight an enemy who doesn’t want to negotiate or compromise, who seeks only one thing: our annihilation?

She may be right, that we aren’t really safer, that we just stand in longer lines – but I’ll bet she won’t propose that we give up all those airport metal detectors and pat-downs and go back to the way it was when I was a boy (Susan is way too young to remember those halcyon times).

As for the “tens of thousands of men held in Guantanamo for no reasons,” first, she grossly exaggerates the number, as I’m sure she knows. Second, they are not in Gitmo “for no reasons” but because they were captured on the battlefield and (1) are enemy combatants who, if released, would pick up arms against us again, or (2) are enemy combatants who may have information on terrorists and what they’re plotting. Surely, that justifies holding them – however many we may be holding.

Can you imagine, during World War II, someone complaining that we had captured too many Germany soldiers? That we had arrested too many Nazis? That we’d held them for months and months and it was oh sooo unfair and clearly time to send them home to Mother?

Now is it possible that some of those in Guantanamo are innocent civilians caught by mistake? Of course, that’s possible — but we haven’t a shred of evidence to suggest that. Some have already been released back to Afghanistan. Some of them have spoken to the press after their release and they had complaints about their treatment alright – Hajji Faiz Mohammed was typical. Upon his arrival in Kabul, he complained to journalists that while the food in Gitmo was generally good, “there was no okra or eggplant.” The shame of it! Faiz Mohammed also offered this candid comment: “We were not tortured … We were not unhappy. The Americans treated me well, but they were not Muslims so I didn’t like them.”

Finally, let’s all acknowledge that just as Susan is struggling with these issues, so is the President and the Attorney General and Congress – we all are. This is a difficult time. We’re groping in the dark. We’re trying to find our way. We should welcome all the constructive and creative ideas we can get. But that’s not what I’m hearing above.

What I’m hearing above are reflexive kicks and slaps at the Attorney General and the Bush administration. It takes very little effort to simply assert that RIGHTS ARE BEING VIOLATED! THE CONSTITUTION IS BEING SHREDDED! INNOCENT PEOPLE ARE BEING TORTURED! I GAINED FIVE POUNDS ON THE ATKINS DIET AND IT’S ALL JOHN ASHCROFT’S FAULT! But there is no reason to take any of that seriously.

And I apologize, Susan, if I raised my voice just then.

Estrich: This is exactly my point. Cliff is the reasonable sounding alternative, the non-John Ashcroft who makes the Left scream.   I wish my daughter were here.  Do you trust him, shed say.  You see, there is nothing more that a frightened community wants to do than to trust, and well happily give you our freedoms.  I’m a mom.  Talk to me in that capacity and Ill let you hold anyone for as long as you want.  In that way, I freely acknowledge that I’m part of the majority.

Of course I don’t want to go back to the days when people walked on to airplanes, but does anyone have any doubt about what would happen to the next person who tried to fly a commercial jet liner into a building?   It wont happen.  No one is going to take over a plane with box cutters, much less an eyebrow tweezer or a nail scissors.  There must be a more efficient way to use resources.  But I don’t really care about standing in line . They’re already trying to shorten the lines for you and me they’d hate to lose us as travellers.  They’ll profile more, which makes sense, but makes it all the more critical how we treat those whose status makes them most vulnerable.  Its not just what they’re entitled to (maybe I’m wrong on this, but didn’t the Germans we captured get treated as prisoners of war?)

We have to now assume that every mosque in America is now being bugged. That’s a direct quote, part of the Saturday New York Times full page spread on how Ashcroft’s justice department is targeting Arab Americans and depriving them of their rights.  That’s what they report, along with the details of how the Department has sought and got increased power and influence, ideologically (increased monitoring, gun policy, death penalty), and in terms of turf and influence.

It won’t hurt Ashcroft a bit. Quite the contrary. It’s a nice picture. Moms vote, not card carrying members of the ACLU; I myself quit in the fall of 87.  But constitutional rights are intended to protect the minority against the understandable majority, particularly a terrorized majority.

Michael Ratner can’t prove certain aspects of his case, and neither can I, because the Government is in control of the proof.  Presumptions in that situations generally run against you not in your favor.  How many wrongly held?  For how long?  For what reason?  How have they been treated?  How do I know?

Trust us is not a good enough answer to a suspicious world. Does it matter  whether we treat Arab Americans worse than anyone else, even if we have statistical justification to do so?  Does it matter if we respect human rights, whether we might in or lose in the Fourth Circuit on that?  I looked in the paper at the picture of Ashcroft’s inner circle and I saw a row of men.  What does an Arab-American reader see?  Why not care more about that?

All institutions are essentially alike.

Do I trust Cliff May to want to protect his family and mine in good faith, and not trample anybody’s rights in the process?  Absolutely.  I think John Ashcroft has good motives.  I know the Department felt the death of Barbara Olsen, that they know the threat of terrorism is real, and they see themselves as fighting to protect America.  I think most everybody in the process can have good, or at least decent motives, and you can still have results like Waco.

The first response of institutions who are vulnerable to failure at any moment and not in fact prepared to deal with it think, for instance, the FBI – is to blame the limits imposed on them by others, not their own. What would you rather do?  Say that your problems were 90% internal, managerial, organizational, leadership, training, competence, mission, etc…. and 10% federal law, if that, or the other way around.
I think about the stories of how Janet Reno Justice, it is said, came to trust too much in what senior law enforcement people told them.

What troubles me about the Ashcroft Justice Departments efforts to amass power and change policy as a response to the changing climate since 9 /11 is that seems quite explicitly designed to make us neither safe nor free…but to expand the power of the law enforcement community that is not a position to use the power it already has well. The last memo from the woman who warned of earlier incompetence flatly charges that the bureau is not prepared for domestic terrorism.

Chilling quote for this week: For 90 percent of LAPD, the only protective gear they have against chemical or biological weapons is the piece of metal on their chest.  WE have no protective gear in the city.  If police are called to respond, they have nothing to wear.  Now maybe that’s Homeland Security these days.  Hard for an old time small government democrat like me to keep track
Trust, but verify.

You’re about to lead us, not to a police state, but to war, and that will increase the risk of terrorism, which will increase our willingness to sacrifice our freedom and increase the risk to those who are targeted who will in fact lose theirs.

Holzer:  I’m still waiting to hear what the AG has done, and what Constitutional provision(s) it has violated, if any. And if others in this symposium insist on free-associating and talking motives, I’d like to see some proof  that the Attorney General is driven by an improper motive(s), like self-aggrandizement. Not Left cant, but proof — or at the very least, evidence.  Rant and cant is neither.

Estrich:  I’m not attacking the AG’s “motives” in that sense.  I’m sure he wants to make us safe. I’m not one who believes that those who disagree with me are inherently evil, ill-willed, or badly motivated. I’m questioning the means, and the results.  I’m not saying he’s a bad man; my fear is that we will end up neither safe nor free…

Holzer:  Better be safe than sorry.  We can sort out the rest later.  I have great confidence in our institutions (and our dissenters), let alone those who honestly believe in those institutions to fix anything that may get a bit out of hand, as soon as we’re able.  See suspension of habeas corpus, and the Japanese internment (both of which were wrong and unconstitutional.  Also — and I don’t accuse Professor Estrich of this — it comes with ill grace for those who believe in strong government power over the individual in such matters as commercial speech, free exercise of religion, gun control, business regulation, and more, to be complaining about the same government’s efforts to prevent another 9/11 attack, and perhaps even worse.

May: Excuse me for a moment. Susan, I understand that the Left does not trust John Ashcroft, never has and never will. Why? I can only speculate on the prejudice expressed by this congenital distrust of a many who was elected both governor and senator of his home state. But whatever the reason, that shouldn’t be a license to slander him, to accuse him of trying to transform America into a police state, to attempt to hobble his attempts to catch terrorists before they kill us.

Yes, Susan, uniformed German soldiers captured during World War II were given the designation of Prisoner of War.  But those who break the laws of war – e.g. those who hide among civilians or target civilians – forfeit their right to that designation and to the privileges that come with it.  That’s intended to be a disincentive to those considering acts of terrorism – they shouldn’t have a guarantee that no matter what they do, they will be always and nevertheless be treated with respect.

Now, that doesn’t mean we stick hot pokers in their eyes, or attach electrodes to their genitals. It does mean they lose the right to possess musical instruments and their own cooking utensils (both guaranteed to bona fide prisoners of war under the Geneva Convention).

Susan, you write: “I looked in the paper at the picture of Ashcroft’s inner circle and I saw a row of men.  What does an Arab-American reader see?  Why not care more about that?”

Susan, if an Arab-American looks at the leadership of any of the 22 Arab countries what does he see? The answer: Rows of men. So what’s the complaint here? How did feminist grievance enter this debate?

Is there anything that the Left objects to for which Ashcroft should not be blamed? How about the death of disco? How about the demise of the family farmer and the humpback whale? Ashcroft might have had a hand in all that – who knows, the government has the proof and Michael can’t really find out for sure.

Of course, the LAPD should have protective gear – but I hope you’re not suggesting that our response to terrorism ought to be to wait for the attacks and hope we have gas masks and antidotes handy. Surely, we are justified in fighting those who want to see us dead.

Yes, Susan, we are going to war and that may indeed mean that terrorists hiding among us (or at least those that Ashcroft has not managed to detain or detect) will decide this is the time for them to strike, the time for them to make statements written in the blood of innocents.

But if they don’t strike now, it’s not as though they will decide instead to go back to school and train to be physical therapists and settle down to lead quiet lives in Pasadena. Every terrorist is a time bomb waiting to go off. Ashcroft’s Justice Department is attempting to defuse as many as possible. Too many on the Left are trying to prevent him from accomplishing that mission. You should not be among them. You’re too bright and too sensible.

Ratner: Excuse me, I would just like to make a concluding remark: on March 19 I was at an anti-war demonstration. Numerous cops were there with cameras photographing demonstrators and speakers. Files will be opened on each of us. NYC had 150,000 such pictures and files during the Vietnam war period..  The next day, March 20, my son took the subway and there were armed national guard patrolling it. On February 15 NYC and the federal courts denied our anti-war organization a permit to march anywhere in New York City. Yet, on March 17th,during an orange alert, the St. Patrick’s Day parade, got its permit without objection. This is not the America I want for my children. Our obligation is to defend the constitution against its enemies—its enemies are the Bush administration; it is they who are destroying democracy.

May:  Ahh, well, there you have it. Mr. Ratner acknowledges my worst fears about him: That he actually believes that the real enemies of America, its constitution and democracy are not Saddam Hussein, Osama bin Laden and other Jihadists terrorists but “the Bush administration.”

And he comes to this conclusion because he saw policemen carrying cameras at a demonstration — a demonstration that I’m guessing was organized by International ANSWER, a pro-North Korean and quite lunatic fringe group (

And the very next day he saw armed National Guardsmen on the subway, attempting to protect subway riders from terrorists. How awful. How shameful that Mr. Ratner and his son had to see such a spectacle. Why weren’t these National Guardsmen doing something useful at a time like this – like shooting out the tires of polluting SUVs or arresting cigarette smokers?

Candidly, I don’t know why Mr. Ratner’s “anti-war organization” was not granted its latest request for a permit, even while the St. Patrick’s Day parade was allowed. Maybe the police couldn’t protect both parades at the same time. Maybe they’re a tad busy.

I’d advise him to try again. I’ll betcha John Ashcroft has not abolished the right to assembly yet – in fact, an hour ago I was near the White House and I saw a whole gaggle of people marching and carrying signs saying: “No War on Iraq.”

As it happens, I was with an Iraqi woman. She said to me: “How is it these people still don’t understand? The war is already taking place not on Iraq but in Iraq. Saddam Hussein is waging it against Iraqis. We want America to help stop that war – and the only way to stop it is to liberate Iraq.”

There was a time when people on the Left knew the meaning of words like liberation. In his fury against President Bush, Attorney General Ashcroft and others, Mr. Ratner appears to have forgotten.

Holzer: My response to Mr. Ratner’s conclusion, briefly, is this: first, why am I not surprised that he has to fall back on international law, whatever that is, and a bunch of Southern Hemisphere nobodies whose pronunciamentos have absolutely no force in the United States?  Why am I not surprised that he, along with America-hater Ramsey Clark and The Usual Suspects “represents” some Guantanamo detainees — captured mostly on the Afghanistan battlefield and in assorted rat holes around the world?  Why am I not surprised that he cannot point to — indeed he doesn’t even try! — a single decision of the Supreme Court of the United States holding unconstitutional anything done since 9/11 to protect our Nation?  Why am I not surprised that virtually nothing Mr. Ratner has said in this symposium has been based in law, rather than tired Leftist propaganda?  If Mr. Ratner and his cohort of frenzied anti-American lawyers, who live off the system they decry, have really been the victims of a destroyed democracy, as they claim, he would not be free to spout the inanities that we have been subjected to in this symposium.

Ratner: It is no small matter that the Bush administration is willing to disregard international law.  It is that law that gives fundamental rights to all people.  Somewhat akin to a modern day Ten Commandants, it forbids torture, summary execution (murder by the state), slavery, arbitrary detention and aggressive war. It also embodies the protections of the Geneva Conventions and the treatment of captured combatants.  A nation violates these fundamental norms at its peril.  Today, March 23, 2003 it is alleged that Iraq is failing to adhere to the Geneva Conventions in its treatment of U.S. POW’s. That is a clear violation of law. However, the U.S. is not in a very good moral position to complain about it because of its failure to treat Taliban combatants as POWS.  The Bush administration cannot have it both ways; ignore international law, but then complain when others violate it. It is utter hypocrisy.

The Bush administration is making us all less safe, both at home and abroad. The world is roiling from its policies whether in North Korea, Israel and Palestine, or Iraq. We all care about making a safer world and keeping ourselves safe and free at home. I do not feel safer now that we have begun a war with Iraq. The effect of that war will be to make us less safe and with fear comes a loss of freedom—draconian domestic measures are taken to “protect” us.  We are seeing the implementation of those measures on daily basis.  Yet, I remain optimistic.  There is and remains a worldwide peace movement, stronger then anything I could have imagined six months ago. In the end, my hope is that the peace movement will prevail and that the United States will rejoin the world community.

Interlocutor: Thank you Cliff, Hank, Susan and Michael. Our time is up. It was a pleasure.