After Attorney General John Ashcroft appeared before the Senate Judiciary Committee to discuss the civil-liberties aspects of antiterrorism initiatives and breezed past most questions, there seemed little chance that Congressional Democrats would pursue extensive ground warfare on this terrain. The committee's Democrats only tossed concerns at Ashcroft and cast little outright criticism at him and the Administration. When a fired-up Ashcroft declared that civil-liberties critics "aid terrorists…erode our national unity and diminish our resolve," the Democrats barely pushed back. The hyperventilating editorialists of the Wall Street Journal were not wrong to term the session a "political rout" in Ashcroft's favor.
Senator Patrick Leahy, the chairman of the committee, and Senator Russell Feingold, a committee member, are, no doubt, committed to overseeing and critiquing Administration actions. But Bush enjoys sky-high poll numbers, and his security measures score well, too. Over two-thirds of the public supports allowing the government to engage in broad wiretapping functions without obtaining a court order, according to a recent survey. (In that poll, half said they have no problem with officials detaining terrorist suspects indefinitely without charging them.) Ashcroft's job approval rating is 76 percent, a Gallup poll found. "There is no public outrage with military tribunals, no outrage over the recent antiterrorism bill," says Ruy Teixeira, a public opinion analyst at the Century Foundation. "People are willing to put up with things they might have previously looked askance at. Due to the underlying public views, the politicians won't tackle this." As Kate Martin, the director of the Center for National Security notes, few legislators are well prepared for battle in this difficult arena, even if they were so inclined: "The Administration says to critics, 'You want us to give terrorists more justice than we give our own soldiers?' That's an effective soundbite. How many senators know the legal answer to that, let alone a good soundbite response?" (The answer, Martin says, is that POWs are treated under the military justice system and nobody suggests terrorist suspects ought to have more rights than what's granted by that system.) Following the Ashcroft hearing, Feingold mused, "To get up there and talk about the implications of going too far…is hard work to do." Ralph Neas, president of People for the American Way, says, "It is an open question whether Democrats and moderate Republicans have the will to stand up to Ashcroft and the right-wingers, who practice the politics of intimidation, and fight for the Constitution." Open question?
With little–or no–opportunities in Congress, where does that leave civil libertarians? Where they have had most of their successes–the courts. Civil-liberties organizations are plotting legal strategies and seeking appropriate cases to bring. The Center for Democracy and Technology is trying to determine whether any Internet service provider has received an overly broad government order instructing it to hand over electronic records of a customer. A lawsuit could proceed only if the ISP were willing to go public and confront the government. "We're still piecing together how the new surveillance authorities are being exercised," says James Dempsey, the center's deputy director. The ACLU is examining litigation options concerning increased secrecy within immigration proceedings. People for the American Way, the National Association of Criminal Defense Lawyers and the ACLU are exploring the possibility of challenging the Ashcroft order that permits the government to monitor conversations between detainees and attorneys. Other outfits are pondering court actions aimed at the military tribunals. (Since releasing the order authorizing these tribunals, the Administration, probably in response to criticism from lawmakers and commentators, has said the tribunals would be used more narrowly than the order permits. If the pending regulations for the tribunals reflect these promises, a legal challenge could be more difficult.) Attorneys representing detainees are weighing habeus corpus or wrongful-imprisonment suits. The Center for National Security Studies, the Electronic Privacy Information Center and seventeen other groups filed a Freedom of Information Act lawsuit against the Justice Department seeking information on the more than 1,000 individuals arrested or detained after September 11 (including their names). The Nation is a plaintiff in that case.
"This stuff can take time to develop," says Dempsey. "For four years, civil-liberties lawyers fought the use of secret evidence in immigration proceedings. It led to no direct policy change, but in instance after instance, they tore the government's case to shreds, and prior to September 11, the government was asserting secret claims less so." Yet quasi-victory was fleeting; after September 11, the Justice Department has pushed for greater use of secret evidence.
Ashcroft and the Bush Administration may well be emboldened by his visit to the Judiciary Committee. After all, not one senator asked Ashcroft about news reports he was planning to ease decades-old restrictions on FBI spying on domestic religious and political organizations. The senators and Ashcroft certainly realize that in wartime the court of public opinion is not kind to civil liberties. Civil libertarians know this, too. So other courts will have to do. "The Attorney General, in defending his policies, says there have been no lawsuits," notes Anthony Romero, the executive director of the ACLU. "He should hold on to his horses. They're coming."
