THINKING THINGS OVER

Now, About the Rule of Law
Clinton's defenders don't have the credibility to criticize Ashcroft.

BY ROBERT L. BARTLEY
Monday, December 10, 2001 12:01 a.m. EST

As the Afghan war progresses, U.S. forces may shortly have to deal with important captives, Osama bin Laden, Mullah Omar or their top lieutenants. Indeed, the Marine Corps already holds John Walker, the American Taliban recruit reared in, who could have guessed, the mellow splendors of Marin County.

Meanwhile, Bob Woodward of the Washington Post reports that intelligence agencies are worried about a dirty bomb, a conventional explosive mixed with radioactive materials. Drawings of such a device were found at al Qaeda safehouses in Afghanistan. Bin Laden's claim of nuclear weapons may be sheer bravado, but al Qaeda is thought to have planted "sleeper cells" in Western nations.

 

 

What is a president or attorney general supposed to do? Should the president defer the question of what to do with prisoners to Congress, which has been unable to decide on an economic stimulus package and does not deign to hold votes on the judges Mr. Bush has nominated? Should the Justice Department take the attitude that better 100 guilty parties go free than one innocent Arab be questioned?

In their wisdom, the Founding Fathers gave us a commander-in-chief, and President Bush took the initiative to answer to these questions. We're learning that such emergency steps have plenty of precedent in American history and constitutional law. The classic statement comes from Justice Jackson's dissent in the 1949 Terminiello case, "if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

From screeching in the media, though, you'd think we suddenly became a police state. "It fundamentally jeopardizes the separation of powers that undergirds our constitutional system"--Senate Judiciary Chairman Pat Leahy. "Literally dismantling justice and the justice system as we know it"--Rep. Maxine Waters. "[B]elong in a Soviet state or a dictatorship, not in a free society"--Rep. Jerrold Nadler. "[A]n unprecedented power grab completely at odds with the Constitution"--the American Civil Liberties Union. "A coup by the President of the United States"--columnist Anthony Lewis.

Most important of all, the "police state" question became the current stereotype of the Washington press hive--the issue around which every question and every story was organized. The coverage focused, also, on making a heavy out of Attorney General John Ashcroft, though in fact the most controversial step, the appointment of military tribunals, was not his responsibility but that of the commander-in-chief and defense secretary.

The stereotype was probably displaced by the attorney general's testimony last Thursday, saying among other things that while he welcomed constructive debate, the hyperbole provides "ammunition to America's enemies." Well, almost. The Washington Post editorialized about "The Ashcroft Smear"--vicious animal, when attacked fights back. And Ralph Neas of People for the American Way charged that the attorney general was trying to intimidate critics. Ralph Neas, who invented Borking, intimidated; how rich.

 

 

Personally, I'm not about to sit still for lectures on the rule of law by the same tong that spent eight years defending Bill Clinton's depredations. Indeed, from all the fuss, you might think that Mr. Ashcroft ordered an armed raid on an American home to take bin Laden's side in a child custody dispute. Or had the FBI lay siege to a cabin and shoot the wife of someone it had entrapped on gun control charges. There is a reason the tribunals are opposed by libertarian conservatives.

I can't muster any sympathy whatever, though, for the pretensions on the left. They ask us to believe that it's an affront to the Constitutional order for a commander-in-chief to assert war-time powers to protect America from terrorists or establish a process for dealing with prisoners of war. But that it's OK, or at most a tut-tut, for a president to perjure himself before a U.S. judge to avoid purely personal embarrassment.

Mr. Clinton's view of the presidency as a personal fief caused repeated problems for the rule of law. I thought even the left was starting to understand this at the end of the Clinton administration--lovingly described in "The Final Days" (Regnery), the book Barbara Olson finished before going down in one of the hijacked planes. I happen to sympathize with some of the arguments on behalf of Marc Rich, but a president with some respect for the law simply does not pardon someone who's a fugitive from justice.

The same tendency, not so incidentally, crippled Mr. Clinton's response to terrorism. How seriously can we take an anti-terrorist campaign by a president who frees 11 FALN adherents convicted of terrorism on behalf of Puerto Rican independence--over the opposition of law enforcement officials but when his wife was running for the Senate in New York? In the current New York Review of Books, two members of the Clinton National Security Council staff argue that the cruise missile strike on a Sudanese drug plant was a legitimate response to terrorism, and grumble that because it coincided with Monica Lewinsky revelations no one saw anything except "wag the dog." Yes, it's called credibility, and why a president should keep his interns' skirts clean.

Perhaps Mr. Clinton's gravest offense against the rule of law was using the powers of his office in a systematic campaign to denigrate and undercut a duly appointed officer of the courts. Independent Counsel Kenneth Starr did bring home 14 convictions, including the associate attorney general, Clinton business partners and the governor of Arkansas. All of the legal charges against him for leaks and whatnot were ultimately dismissed. But the political campaign against him was largely successful in turning the issue from the president's conduct to the prosecutor's.

In this campaign many of those "defending" the Constitution against President Bush gleefully participated. Sen. Leahy's comments on the Starr investigation ranged from "It is outrageous, and it is sickening" to "Starr has gotten completely out of control." Mr. Lewis repeatedly branded critics of Mr. Clinton's conduct as "haters," and said Mr. Starr brought the nation "close to a coup d'etat."

 

 

Yes, wars create hard decisions about presidential power and civil liberties, and a balance will have to be struck as final regulations are written. In this I'd listen to those who've established some bona fides about the rule of law. To wit, not the critics but the attorney general.

Mr. Bartley is editor of The Wall Street Journal. His column appears Mondays in the Journal and on OpinionJournal.com.