an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In this week’s edition of Newsweek, Steven Brill reports that in the original version of the Patriot Act, Attorney General John Ashcroft proposed suspending the writ of habeas corpus indefinitely.
In legal terms, this would mean that the government would be permitted to arrest and detain people-- citizens and non citizens alike-- at will, and without the right to a judicial hearing to determine the legality of their detention.
In Article I, section 9, clause 2, the U.S. Constitution permits Congress to suspend the writ, but only “when in Cases of Rebellion or Invasion the public Safety may require it.” It seems quite clear that although 9-11 was a traumatic event in our nation’s history, it did not require full-scale suspension of the writ so that the police could arrest anyone and hold them as long as they liked. Perhaps even more disturbing, Ashcroft’s proposal for suspension of the writ had no time limit. It would last as long as the government wanted it to last.
The portrait that Brill paints is of a politician particularly eager to amass more power for himself and to promote himself as crucial to preserving the nation’s security. Equally worrisome, Ashcroft is portrayed as particularly uninterested in legal niceties, particularly the legal distinctions that lawyers use to secure basic civil rights.
Beyond [Ashcroft's] predilection to want to control as much as he could, some on his own staff thought that another reason Ashcroft hadn’t “scrubbed” the bill [i.e. vetted it with relevant departments] beforehand was that he didn’t appreciate the significance of the prosecutor-written laundry list he was proposing. Although Ashcroft is a graduate of the highly regarded University of Chicago Law School and a former Missouri state attorney general, even some of his own deputies at Justice were surprised by how uninterested he was in the niceties of the law. One veteran staffer recalls that through six different meetings on this bill and another key legal initiative, he had never once heard Ashcroft cite a legal case and had watched him blanch when someone in the room cited a case, as if that person was discourteously speaking another language. Whether it was lack of interest or lack of intellectual firepower, the Attorney General seemed not to appreciate the complexities of the constitutional issues he was dealing with.
I grew up in Missouri, and I well remember Ashcroft in earlier phases of his legal career, as state Attorney General, governor, and later as Senator. My impression of him then is the same as now: A man who cares nothing for civil liberties. Or, put to put it more accurately, he cares only for civil liberties of those people he likes, in particular gun owners.
When Ashcroft was first proposed as U.S. Attorney General, he was repeatedly asked whether he would enforce civil rights laws and protections rather than attempt to undermine them. Ashcroft insisted indignantly that of course he would. One might conclude from Brill’s article that Ashcroft was not altogether accurate in his representations of his bona fides. But anyone who knew of Ashcroft’s previous record in public service would know that Ashcroft is the last person who could be trusted to keep our civil liberties safe from government overreaching. After all, overreaching is what Ashcroft knows how to do best. It is what he has done throughout his career. Bullying is his stock in trade, unfairness is his modus operandi.
The President should fire this man immediately and replace him with someone who genuinely cares about our Constitution and our civil rights. The only problem is, President Bush probably agrees with him, for he has, if anything, even less interest in these issues.