ASHCROFT'S DISTORTED CONSTITUTION

By JOANNE MARINER

Wednesday, Dec. 12, 2001

Recent events have revealed a disconcerting similarity between Attorney General John Ashcroft's vision of the Constitution and cartoonist Saul Steinberg's famous view of the world from Ninth Avenue.

On the cover of a March 1976 issue of The New Yorker, Steinberg's Manhattan was rendered in precise and loving detail, with the rest of the world serving only as a sketchy backdrop. Ashcroft's view of the Constitution is equally skewed. While he defends an absolutist interpretation of the Second Amendment right to bear arms - one with little jurisprudential support - the attorney general has been quick to encroach upon other fundamental constitutional protections.

No Rights

Foreign terrorists, Ashcroft has said bluntly, "are not entitled to and do not deserve the protections of the American Constitution." From this starting point, it has been a simple matter for him to institute radical restrictions on the rights of aliens, thousands of whom are now treated as suspected terrorists.

So far, in the name of fighting terror, Ashcroft has gained unprecedented powers to lock up aliens for indefinite periods, deport them on the basis of secret evidence, eavesdrop on confidential attorney-client communications, intercept email messages, and launch a massive exercise in ethnic profiling.

No Constraints

Even prior to September 11, Ashcroft's right-wing bias was much in evidence - his retrograde views on everything from race relations to the separation of church and state having been aired during his confirmation hearings - but now, with the fight against terrorism in full swing, his extremism faces few real constraints.

Congress, cognizant of broad public support for the administration's anti-terrorism efforts, has played the obedient junior partner in responding to the terrorist threat. It has shown little inclination to question the wisdom or constitutionality of the new measures, or even to exercise its oversight authority in any rigorous way.

Although after the administration's latest and perhaps most radical proposal - that of military commissions to try suspected terrorists - Ashcroft was asked to appear before a Senate committee, he faced mostly tepid questioning. If the purpose of the exercise was to mount a congressional challenge to the most offensive elements of the evolving anti-terrorism package, or even to warn the administration that its actions would bear close scrutiny, then the hearings fell flat.

Indeed, in his opening statement, Ashcroft attacked his critics as vigorously as he defended his policies. Impugning the patriotism of civil libertarians, he accused them of hyperbole, "fear-mongering," and of aiding the terrorist enemy.

He also put Congress on notice that its oversight role was limited. In statements that went unchallenged, he referred to his "core executive powers" - covering law enforcement and the arrest and detention of aliens - suggesting that congressional authority in these areas was weak to nonexistent.

With congressional deference assured, at least for the foreseeable future, what constitutional safeguards remain? The obvious answer is the courts, the traditional protectors of constitutional rights.

Yet when the country's national security has been under threat, the courts' track record has been far from stellar. Already, supporters of the administration's efforts have drudged up such jurisprudential embarrassments as Korematsu, Yamashita, and Ex Parte Quirin as proof that even the most drastic restrictions can be justified in times of crisis. One wonders what the future holds: whether the Supreme Court will add another disgraceful ruling to this ignominious list.

No Shame

The basis for Ashcroft's position, as Professor Michael Dorf's recent column explained, lies neither in the letter of the law nor in any reasonable reading of the Constitution. Instead, it reflects a political calculus, and an extremely cynical one.

Ashcroft's pro-gun agenda is no secret. In July, his unmitigated fealty to the National Rifle Association (a major campaign donor) and longstanding opposition to the tracking of firearm ownership showed itself in a proposal to drastically reduce the amount of time that the government's gun purchase records could be retained. In May, he wrote the NRA a letter committing the Justice Department to a more absolutist interpretation of the Second Amendment.

Although September 11 was supposed to have changed everything, some things have obviously not changed at all.

In the fight against terrorism, all rights now seem expendable, save one. Ashcroft's shameless decision to exempt gun purchase information from FBI scrutiny casts doubt upon the reasonableness of his other constitutional choices as well.


Joanne Mariner works as a human rights lawyer in New York. Her previous columns on responding to the September 11 attacks, on Osama bin Laden, and on human rights topics can be found in the FindLaw archive. The opinions expressed in this article are her own.

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