Been listening to "the Senate [putting] Ashcroft on the grill" on NPR. I'm thinking that if this is a grilling, the man would be severely undercooked. As if he had not touched the grill at all, in fact. (OK, that's just a gross and disgusting metaphor and that's quite enough of THAT.)
The art of the hearing has declined sharply since the Watergate days. To be sure, Ashcroft is quite well prepared -- you couldn't wish for a better witness, depending on what result you want. He's got all the information at his fingertips ... I think.
The problem is, the Senate, so far, isn't actually asking for all that much in the way of information as regards the military tribunals. (Haven't heard anything about the civil liberties issue; I may have missed that part.) As I understand general Senate hearing rules, each person on the Senate Judiciary Committee gets a certain amount of time to ask all their questions. So far, each and every question has been prefaced by some grandiose speech lasting anywhere from one to five minutes -- not that I like the man, but I could understand if by the end of some of those things, Ashcroft had completely lost track of what the question was supposed to be. (So far, he hasn't, which is actually pretty impressive.) And none of them seem to be covering matters of much substance. Congress is highly unlikely to come out of this and set up its own procedures; the conflict between all three branches of government would be just gruesome. They're certainly not going to overrule the executive order and be accused of being soft on terrorism. Our gormless leaders will, in all likelihood, sit there and do nothing whatsoever beyond public posturing.
As it stands, if a tribunal decision comes down, and someone appeals to a US court, history and precedent suggest that the courts will serenely ignore the fact that they have been excluded from the appeals process by presidential fiat. (Mind, the court decisions, such as they are, tend to say something like, "Well, we don't actually have the authority or jurisdiction to DO anything, but we certainly have the authority to hear the appeal, as the president does not have the statutory authority to exclude the judicial branch from judicial procedures.")
Ashcroft's position is that the tribunals "protect" the people of the United States. Which would be nice, if they did -- I can't see how they do, myself -- but to regard that as a reasonable answer requires a perversion of the purpose of the legal system. The system exists to protect society, yes, but it also is designed to protect the people against the abuses of government. Military tribunals, by stripping away exactly those parts of the system designed to counter that abuse, strip away any reasonable claim to "protection" of anyone.
Interestingly, the precedent being invoked (by Hatch, of all people) to state that the tribunals have authority, other than US historical precedent, are international war crimes tribunals. (We shall ignore the fact that the US has refused to acknowledge the jurisdiction of the permanent war crimes court, since Hatch also ignored it in making his points.) He points out that the US recognized the results of the Hague tribunals regarding Bosnia and Rwanda and other foreign war crimes. This, of course, leads rather logically to the question, "Well, why doesn't the US hand over the foreign nationals subject to the military tribunals and let them be tried by an international war crimes tribunal?"
The answer to that question is, in short, "We don't wanna, and we don't hafta." We're big enough, strong enough, and mad enough (possibly in both senses of the word) and nobody can force us to submit to the international courts. Notice that at the moment, the entire world is treating us with kid gloves. It's really quite remarkable to watch how people who would normally be savagely critical of us are either being quite mild, or even saying nothing at all.
The legalistic answer to that question is that the crimes were committed against Americans on American soil. Therefore, American law takes precedence over international law. It's an entirely insufficient answer, of course; Bosnia and Rwanda no doubt had simple laws against mass murder and rape, but those were thought not to apply due to the scale of the offenses.
The fun part of the whole tribunal system is that, as publically construed by our Minister of Injustice in these hearings, the tribunals only apply to those who commit what are defined as war crimes by international law. In short, the tribunals apply only to those whom, had the attack not occurred against the US, we would gladly see tried by an international war crimes tribunal.
It's entirely possible, should we capture just the right person, that we will have a military tribunal, conducted entirely in secret, resulting in a peremptory death sentence. Any death sentence so carried out would, under international law, be regarded as a war crime in and of itself.
UPDATE: 11:37am - We've hit the part of the hearing dealing with the Disappeared ... pardon, the Detained. And they've already caught Ashcroft in a lie -- last week, Ashcroft stated that the law prevented him from releasing names of the Detained; in an earlier hearing, his staff admitted that there was no such law (he's finessing it by stating that what they said was that they didn't know what the law was). The Justice Department has stated that they have had no restriction on access to lawyers; earlier in the hearing, several people reportedly talked about the fact that they weren't allowed to get in touch with their lawyers for a very long time, and have been limited to one phone call per week. (For some reason, according to Ashcroft, the government provides pro-bono lawyers to those who don't have a government-appointed lawyer. Um ... what? They're providing lawyers to people with their own lawyers? What sense does that make? ... Oh, they're for people who refuse to have lawyers at all, their own or the government. How many of those can there be?) He also states that the Justice Department doesn't have a list of the Detained, and he doesn't plan to develop any such list. Frankly, that's either a lie or some appallingly stupid policing, and Ashcroft is an ideologue, but he's certainly not a stupid one.
He's citing the Freedom of Information Act as his authority for not releasing names. The HELL ...? He's citing a Privacy Act; apparently the intent is that, although there's a positive requirement to disclose the name of permanent residents and citizens, there's a suggested prohibition against disclosing the names of noncitizens. And the Senate is apparently not letting him get away that easily, which I find quite remarkable. He originally stated that the law prohibited the release of names, and the Senate forced him to admit that there is no such blanket prohibition in the law he cited.
Copyright © 2001, Iain Jackson, after-words.org
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12/19/2001: vive la france
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12/18/2001: you're NOT in the army now
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12/18/2001: shame on winn dixie, indeed
12/18/2001: saudi princess
12/17/2001: new resolve
12/17/2001: a victim of the attack ... yeah, right
12/17/2001: polluters ho!