Contemptible

One of the most revealing moments in Attorney General John Ashcroft's appearance before the Senate Judiciary Committee on Thursday came in an exchange with Sen. John Edwards. The North Carolina Democrat wanted to know if Ashcroft thought it might be useful to allow some kind of review of decisions by military courts that President Bush wants to use to try those accused of terrorist acts against this country.

Ashcroft passed the buck, saying that the president and secretary of defense, who is charged with drafting rules of procedure for the tribunals, could, if they wished, allow some kind of review. To which Edwards pointed out that the president and secretary of defense are also the only ones empowered by Bush's order to determine who gets tried in the first place. As he so often did during four testy hours, Ashcroft neither acknowledged the irony nor tried to explain it away.

The point is important. Much is troubling about courts that can meet in secret and where even defense attorneys are part of a military command structure answerable only to the president. But most troubling is the absence of any third-party review to ensure that defendants are treated fairly, as is the case in military courts-martial. Surely a federal appellate court, or even a panel of constitutional experts duly sworn to secrecy, could provide a last line of defense against miscarriages of justice to which this society, experience has shown, is not immune.

But Ashcroft showed no interest in such niceties. He doggedly defended the array of special provisions that undermine due process and dodged most questions with bafflegab.

And with public opinion behind him, he took the offensive by lashing out at "those who scare peace-loving people with phantoms of lost liberty". Their tactics, he said, "only aid terrorists... give ammunition to America's enemies, and pause to America's friends".

Hello? Draconian measures are exactly what America's enemies want. As for its friends, they have been given pause, all right - not by those whom Ashcroft seeks to smear but by official steps that suggest the administration is prepared to abandon legal principles that America has long defended and take the kind of shortcuts it has condemned elsewhere.

But Ashcroft's willingness to subvert civil liberties in pursuit of terrorists apparently has limits. Pressed to explain why he has refused to let the FBI tap the Justice Department's database of criminal background checks to see if any terror suspects have tried to buy guns in this country, this apostle of law and order wrapped himself in the Second Amendment - or at least, his interpretation of it. Under the law, he said, the database can be used only to verify prospective gun buyers' eligibility to own a firearm and not for any "unrelated" purpose. In this case, presumably, suspected foreign terrorists do have a constitutional right.