John Ashcroft comes before Congress on Dec. 6 to explain the legal strategies of the administration in the terror war. He will not have an easy time. He has been attacked by a range of critics from Senator Patrick Leahy to Representative Bob Barr for secretly detaining terror-related suspects since Sept. 11, and for asking local police forces to help question 5,000 Arabs and Muslims who have entered the U.S. in the last two years. He is also the lightning rod for President Bush’s executive order allowing certain suspected terrorists to be tried by military tribunals, not ordinary courts.
Probably not many people see the resemblance between John Ashcroft and Abraham Lincoln, but they were both challenged for extraordinary judicial measures. During the Civil War, when a Democratic politician, Clement Vallandigham, was arrested and tried by a military court for treasonous statements, a group of Albany Democrats criticized Lincoln for acting unconstitutionally.
Lincoln answered that he was following the Constitution, specifically Article I, Section 9. “The privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” The Civil War was clearly a rebellion. Did the terror war begin with an invasion? Look at the death tolls. As of this writing, our casualties on overseas battlefields are one. Our casualties at home-at the Trade Towers, the Pentagon and Flight 93-are over 3,000. It has been safer to be a Ranger than a dishwasher at Windows on the World; safer to be a Marine than an employee of Cantor Fitzgerald; safer to be a spy than a firefighter. If the Iraqis fight as stoutly as the Taliban, those ratios may not change drastically. Americans in uniform are brave and competent, and this war must be won abroad by them, but its main front is here, and the enemy will do his best to kill more of us. If this is not an invasion, it will do until one comes along.
Do the actions of the Lincoln administration and the Bush administration undermine civil liberties over the long haul? Lincoln addressed that fear with one of his grim little jokes. “[I can’t] be persuaded that a particular drug is not good medicine for a sick man because it can be shown to not be good food for a well one. [Nor can I] believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life.” War is the health of the state, but this condition of perverse health will end when peace returns.
John Ashcroft’s greatest failing so far is not that he wants to question too many Muslims, but that he hasn’t questioned enough F.B.I. men. (The same goes for the C.I.A., but they aren’t in his bailiwick.) Sept. 11 was an extraordinary intelligence failure, and heads should roll. “Now?” a friend asked me. “In the midst of a war?” No, not now; the heads should have started rolling on Sept. 12. Who is going to be sifting the evidence on possible Al Qaeda sleepers in our midst-the same people who missed Mohammed Atta? This was not some routine screw-up, a budget overrun or an expense-account scandal: Thousands of people who pay the F.B.I.’s salaries died, in part because of F.B.I. bungling. The administration must worry less about internal morale than external results.
The other administration figure on the firing line is Colin Powell. The Secretary of State has a better spin machine than the Attorney General, but he also has industrious critics in the administration and outside it.
The critics often overstate their case. Mr. Powell is a powerful leader and a keen executive; he is also cautious and unimaginative. Every smart civilian knows that military men are the latter; they are also often the former: What good is having all that equipment, if you have to use it? There are as many Powells in uniforms as Pattons-and this isn’t a bad thing. A President needs to have both in his tool box.
Mr. Powell’s caution and conventionality will be tested by the full-scale terror war that has begun in Israel. The Israeli-Palestinian peace process is one of the touchstones of the State Department. When all else fails-when the Kyoto accords unravel, or the A.B.M. treaty molders from irrelevance-there will still be occasion to coax words out of Yasir Arafat, and restraint out of (fill in the blank, from Shimon Peres to Ariel Sharon). Nothing ever changes between Israelis and Palestinians, which means that efforts to make peace must always be redoubled, since the status quo is awful, and we couldn’t just leave it alone, could we?
The new status quo, defined by the bombings in Jerusalem and Haifa, should put the peace process off indefinitely. How can Israel chat about West Bank maps with the perpetrators of mini–Trade Tower attacks? (Of course the casualties were smaller, but then Israel is a smaller country.) The Palestinians should have a state, but Israel can’t possibly accept one run by the current gang. Either Mr. Arafat is a total incompetent who cannot control the people who bomb busses and malls, or he signed off on the bombings himself. Either way, would you give half of Gracie Mansion, or Albany, or Washington, D.C., to such a man?
The stakes for us in abandoning the peace process are much higher than usual. In normal times, a broken peace process signifies wasted efforts, diplomatic headaches, grim sessions at the General Assembly. Now we risk yet more captious Saudis, yet more sullen Egyptians, still more wrath from mobs temporarily stilled by the success of our arms. But who cares? We have so many even more pressing things to worry about-Osama bin Laden’s whereabouts; Pakistan’s atomic bombs; Iraq’s chemicals and germs; the next visa applicant. Everyone in the world who says he is riled by the Israeli-Palestinian conflict is riled anyway. Israel has to protect itself as best it can. So do we.