A Battle in the Brig
Ashcroft and Rumsfeld are fighting their own war over legal rights for detainees
The remark was intended to provoke. And it did. In December 2001, Attorney General John Ashcroft was the man on the hot seat as the Senate Judiciary Committee examined the government's creation of so-called military commissions to try alleged terrorists. The decision to create the controversial commissions came from the White House, but as the Bush administration's lawyer, Ashcroft had the job of defending it. "To those who scare peace-loving people with phantoms of lost liberty," Ashcroft declared, "my message is this: Your tactics only aid terrorists."
Ashcroft's performance solidified his image--as a loyal, no-nonsense cop in the eyes of conservatives, as a bully playing fast and loose with civil liberties in the eyes of liberals. But U.S. News has learned that behind the scenes, Ashcroft--while supporting the commission concept--has been arguing against the exclusive use of commissions at the expense of the courts. He has also expressed exasperation at how long it has taken the Pentagon to set up the commissions and bring cases before them. In April, the Supreme Court is poised to hear oral arguments on the constitutionality of the government's indefinite detention--without counsel--of both foreigners and American citizens as "unlawful enemy combatants." On the eve of those arguments, officials gave U.S. News a rare glimpse into the infighting over the administration's policies. Their comments paint a picture of two departments--Justice and Defense--with differing priorities, and an attorney general, Ashcroft, growing ever more impatient with Defense Secretary Donald Rumsfeld.
The issue first arose after the 9/11 attacks. An order signed by President Bush on Nov. 13, 2001, gave the secretary of defense the right to hold terrorists as "unlawful enemy combatants" and the right to create military commissions, or tribunals, to deal with them. Procedures and charges were not defined, and it has taken two years for a legal framework to be established. Some 650 "unlawful enemy combatants" have been sent to the U.S. Navy base at Guantanamo Bay, Cuba, and there has been an international outcry over their lack of access to any sort of legal process. In February, the Pentagon charged two men--both alleged aides to Osama bin Laden--with conspiracy to commit war crimes. They could be tried later this year before the first U.S. military commission convened since World War II.
"Law of war." Reactions to the commissions reveal the differing perspectives of the Justice Department and the Pentagon. Rumsfeld has said the policy is necessitated by "the law of war, which has as its purpose, first, to keep the enemy off the battlefield so they can't kill more innocent people." Pentagon officials also want to interrogate prisoners to gather intelligence, which takes time, says spokesman Bryan Whitman. "To people who say it's been two years before there's been a military commission," says Whitman, "I would argue it's been only two years before a military commission," adding that 131 detainees have been released. Sources say Rumsfeld never considered tribunals a top priority. "Rumsfeld sees his job as dealing out death, not legal sentences," says former White House associate counsel Bradford Berenson, who helped draft the commission order. "My impression is all these questions strike him as sissy stuff."
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