A Battle in the Brig
Ashcroft and Rumsfeld are fighting their own war over legal rights for detainees
For his part, "Ashcroft thought Rumsfeld blew it, by allowing Guantanamo to become a black hole in the minds of people both at home and abroad," says a senior official. Even some military lawyers at the Pentagon were concerned. "My feeling was that we needed to get as much intelligence out of them as we could, and it might take a while," says a former Navy judge advocate general and retired admiral, Don Guter, who grew frustrated by the process. Now the commission procedure, Guter says, "looks completely arbitrary."
For his part, Ashcroft successfully beat back some efforts by the military to supplant the courts, especially in trying U.S. citizens accused of terrorism, except in rare cases. "The attorney general has been on the side of being cautious and sparing in using these kinds of extraordinary powers domestically," says one former Justice official. But some administration sources say Ashcroft's motivation may have been turf as much as principle. "He's got prosecutors hot to try terrorists," says former Bush associate counsel Berenson. "He has to stick up for their institutional interests."
Once Rumsfeld was handed the tribunal as a fait accompli, he understandably wanted legal control over the commission's decisions. But Ashcroft obtained a provision within the commission order requiring consultation with Justice on all legal procedures. Ashcroft was "concerned that you have to be able to sell the fairness of the commission to the public," says a former Justice official.
The biggest disagreements began when two U.S. citizens, Jose Padilla and Yasser Hamdi, were classified as "unlawful enemy combatants," held in military brigs, and, until recently, denied access to counsel. Rumsfeld was acting in accordance with the military's policy on battlefield detainees, but Ashcroft said the pair should have a chance to challenge their detentions in civilian courts. That is now happening. But with those Supreme Court cases looming, it's unlikely the controversies over military commissions will be absent from the headlines for long.
To contact the author: Ragavanc@usnews.com
With Mark Mazzetti
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