If there is any doubt that the Bush administration poses a greater threat to liberty as we know it than al-Qaida, Attorney General John Ashcroft dispels that doubt regularly. He defends warrantless searches, imprisonment without due process, secret tribunals and eavesdropping on defense lawyers. He end-runs state laws by federal edict. He scorns federal law by ordering his staff to comply as minimally as possible or not at all with such open-government tools as the Freedom of Information Act. He subordinates the Constitution to religious beliefs. And when challenged, he attacks his critics for brandishing "phantoms of lost liberties."
To critics of the USA Patriot Act, the administration's crowning smear of civil liberties and due process, Ashcroft said in 2001: "Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends."
Yet if the aim of terrorists is to diminish liberty and deprave constitutional principles in the United States, no tactic has aided their goal so much as the regressive post-Sept. 11 laws dictated by the administration. No attack has given the terrorists so much ammunition, nor pause to America's friends, as the administration's policies within, and especially covert policies outside of, those laws. Terrorists have blown up buildings. The Bush administration is demolishing the rule of law.
The U.S. Supreme Court is about to hear arguments in several cases that sum up the administration's tactics in its so-called war on terror. One of those cases involves Jose Padilla, an alleged al-Qaida operative from Chicago who also spent several years in Florida. Padilla was arrested in Chicago in May 2002, declared an "enemy combatant" and has been imprisoned ever since, without charge, and until recently without access to a lawyer. Ashcroft claims that the government has the right to detain him indefinitely because he is an "enemy combatant." The tag is a pseudo-legal creation by the Bush administration that applies to suspected terrorists, and that keeps individuals outside the reach of either the Geneva Conventions, which regulate the treatment of prisoners of war, or the Constitution. The court will decide whether the "enemy combatant" tag is legally valid.
To buttress the administration's case, Ashcroft this week made public a stash of documents about the danger Padilla posed to the United States. For an attorney general so stingy with openness, the timing of the release is suspect. Ashcroft is obviously trying to manipulate public opinion, if not the court, with his alarmist evidence. But that's his prerogative. He's not doing anything editorial writers don't do every day. The difference is this: Ashcroft is only selectively releasing parts of the record. Secrecy doesn't breed credibility. Nor does selective openness. And what records he has released damage the administration's case that Padilla doesn't deserve due process.