While condemning the use of torture to interrogate prisoners, Attorney General John Ashcroft on Tuesday maintained that presidents must be allowed sweeping powers during times of war.
In a combative morning of testimony before the Senate Judiciary Committee, Ashcroft argued that no one can, or even should, say exactly where the president’s war powers end because the goal is victory and national survival.
In the kind of reverse partisan twist that Ashcroft seems to love to give his Democratic adversaries, he cited as his authority one of his predecessors who served in a Democratic administration, Frank Murphy, President Franklin D. Roosevelt's attorney general, whom FDR appointed to the Supreme Court in 1940.
Ashcroft approvingly quoted from a memo Murphy wrote in 1939 saying the constitutional powers of the president in time of war “have never been specifically defined and, in fact, cannot be — since their extent and limitations are largely dependent on conditions and circumstances. The right to take specific action might not exist under one state of facts, while under another it might be the absolute duty of the executive to take such action.”
Two years ago, Ashcroft cited another Democratic attorney general, Robert Kennedy, who in the 1960s said he’d prosecute Mafiosi if they so much as spit on the sidewalk.
Citing Kennedy as his model, Ashcroft promised to do likewise to terrorists by using even minor infractions of federal law as a basis for prosecution.
'Not good governance'
Giving his gloss on Murphy’s memo, Ashcroft told senators, “There’s a long-established policy reason, grounded in national security, that indicates that the development and debate of hypotheses … of what can and can’t be done by a president in time of war is not good governance. This isn’t something that comes from this administration; it comes from another administration that faced a very serious threat.”
Ashcroft praised Murphy as “an attorney general whose respect for and familiarity with law was so profoundly understood that he became a member of the U.S. Supreme Court.” During his tenure on the court, Murphy was known as a passionate civil libertarian.
Ashcroft told the committee members he could not engage in a detailed discussion with them about limits to the president’s war powers.
“We are at war and for us to begin to discuss all the legal ramifications of the war is not in our best interest and it has never been in times of war,” he declared.
Debate indefinitely postponed
Thus Ashcroft posed a dilemma at Tuesday’s hearing: the extent of presidential war powers couldn't be fully discussed in war time — and yet the struggle with al-Qaida is likely to go on for decades, which would postpone the war powers debate indefinitely.
As Judiciary Committee chairman Sen. Orrin Hatch said in his opening statement, "it is possible the day will never come when many of those detained at Guantanamo will agree to lay down their arms against the American people. This poses perplexing problems for a democratic country whose history suggests that wars end with finality for all combatants.
In talking about war powers, neither Murphy in 1939 nor Ashcroft on Tuesday were specifically referring to torture, which was the topic that drew the most questioning and criticism from Democratic members of the committee.
“This administration rejects torture,” Ashcroft said in refusing demands by Sen. Edward Kennedy, D-Mass., that he hand over Justice Department memos dealing with the question of whether the president’s powers as commander-in-chief might include the power to order use of torture in interrogating al-Qaida suspects.
“To provide this kind of information would impair the ability of advice-giving in the executive branch,” Ashcroft said, an ability he said was even more crucial when the nation faced potential attack from al-Qaida.
Brandishing photos of Iraqi detainees being humiliated at the Abu Ghraib prison, Kennedy said, “This is what directly results when you have that kind of memoranda … and it says it’s all because of executive authority and executive power.”
Ashcroft rejected the idea that anything done by President Bush or the Justice Department “has directly resulted in the kind of atrocities which were cited. That is false.” The Abu Ghraib abuses were not done “pursuant to any order, directive or policy of this administration,” he said.
While most of the fire directed at Ashcroft came from the committee’s Democrats, conservative Republican Sen. Larry Craig of Idaho reminded Ashcroft that he has qualms about some provisions in the USA Patriot Act dealing with the use of surveillance and the issuance of search warrants.
Rather than calling for repeal of the most controversial provisions of the Patriot Act, Craig has sponsored a bill he has dubbed “the SAFE Act,” which he says would clarify the Patriot Act “in a minor way to restore the judicial oversight that is requisite to healthy law enforcement.”
Addressing Ashcroft by his first name, Craig told him, “I trust you — but I don't know about the next attorney general and the next and the next."
As for the Democrats, they are hoping the next attorney general will be appointed by John Kerry.
One Democratic strategy on display at Tuesday’s hearing to help Kerry oust Bush and Ashcroft was to paint the Bush administration as high-handed in its crusade against terrorists and complicit in the torture of Iraq detainees.
Kennedy implied at one point that Bush was personally responsible for the Abu Ghraib abuse.
He asked how anyone could conclude other than that “it is the president of the United States that has the ultimate authority and responsibility in the issuing of these orders or the failure to stop these kinds of actions.”