Jack Balkin, Yale Law School:
Departing Attorney General John Ashcroft on Friday lashed out at federal judges who have dealt setbacks to President George W. Bush's anti-terrorism and wartime policies, accusing them of "invasive oversight and micromanagement."
"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.
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.
Over and over again John Ashcroft has asserted that he needs virtually absolute, unreviewable powers to make this nation safe. And each time he has exercised these powers, he has abused them. In the past four years he has proven himself repeatedly to be little more than a shameless, incompetent demagogue.
The rule of law exists for a reason. It exists to protect us from people like John Ashcroft, the nation's chief law enforcement officer." [November 13, 2004; Balkinization has the original post]
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