Balkin on Ashcroft's Parting Shot

John Ashcroft, after resigning as Attorney General, gave a speech to the Federalist Society in which he took a final shot at the judiciary for "second guessing" the President and daring to limit his powers in the war on terrorism:

"The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war," Ashcroft said in his first speech since his resignation became public Tuesday.

"These encroachments include some of the most fundamental aspects of the president's conduct of the war on terrorism," he told the Federalist Society, a conservative lawyers group with close ties to the Bush administration.

Jack Balkin responds:

One would have more sympathy for what Ashcroft is saying if it hadn't turned out that his repeated violations of civil rights had done almost nothing to make the United States safer. A report by his own Justice Department's Inspector General's Office found that under Ashcroft federal officials repeatedly violated the rights of aliens held in the United States, and that these violations had no discernible benefits for national security. Under Ashcroft the Justice Department has repeatedly trumpeted the arrest of important terrorist groups only later to have to confess that the charges were unfounded or that the evidence was too weak to proceed with a prosecution. And the Administration's A-1 example of a danger to the nation was Yasser Hamdi, whom it insisted had to be kept in a military prison indefinitely without any rights whatsoever. Once the Administration was required by courts to actually offer some proof for its charges, we suddenly discovered that Hamdi was relatively harmless, so harmless, in fact, that the government allowed him to return to his native Saudi Arabia.

I would add that it would be more compelling if one of those judges who "encroached" wasn't Antonin Scalia, who is otherwise very deferential to Presidential authority. But even he recognizes that the Constitution does not give the President the authority to arbitrarily decide which detainees get due process and which don't, and that as long as there are functioning courts you have to allow those you've arrested to have their day in them. The problem here is not so much the courts interfering with the President as it is the President trying to do an end run around the courts and cut them out of the process of determining guilt or innocence, in effect making him judge, jury and executioner. The courts have rightly trimmed his sails on that issue. And as Balkin points out, in one of the cases in which the administration claimed a prisoner was so dangerous that they could not even be expected to let him speak to his attorney, they ended up just letting him go home where, if he really was a terrorist, he would be free to rejoin his comrades and attack again. That does tend to undermine their case, don't you think?