Fight the Right War

By: Tom Teepen

Whoa. Get a rein on the war horses. Some are starting to run in the wrong direction.

Attorney General John Ashcroft has gone from reasonably asking for a little more legal elbow room as the FBI and other Justice Department agencies charge after terrorism to casually chucking whole chunks of the Constitution.

The latest to go: the Sixth Amendment right to effective counsel.

Ashcroft has given himself authority to bug jailhouse conversations between suspected terrorists and their attorneys. As a practical matter, this intrusion, if allowed to stand, will deny defendants a capable legal defense.

As defense attorneys point out, suspects, aware they are being listened to by Justice Department snitches, will not be candid with their attorneys, and the attorneys as a result will be unable to develop a cogent defense.

Ashcroft has built in what he says are layers of protection. Attorneys will be notified if their conversations with clients are to be monitored. Listening "taint teams" - a spookily Orwellian term - will be able to pass information along to prosectors or investigators only if a judge signs off on the delivery.

There is little there to reassure attorneys and their clients that the confidentiality that is essential for a legal defense will not be routinely violated.

What is more, Ashcroft has given himself a very wide net to cast. The process kicks in with the attorney general's declaration that there is "reasonable suspicion" - not the higher "probable cause" standard - for the eavesdropping. And the order covers not just persons who have been charged but anyone "held as a witness, detainees or otherwise".

The attorney general says this forced march across the Bill of Rights is necessary because attorneys may be used as go-betweens connecting jailed terrorists and active conspirators. Perhaps, but U.S. law enforcement has for years dealt with, and found lawful ways to neutralize, attorneys for organized-crime figures who might function similarly.

Congress recently enacted legislation sensibly broadening the latitude for surveillance and investigation but, and this was essential, only under judicial supervision - for which Ashcroft showed no enthusiasm.

Meanwhile, many hundreds, maybe thousands, have been detained or arrested in the crackdown on terrorism.

We confront an enemy that has proved with some 6,000 innocent deaths that it will deny itself no horror it can find a way to commit. Intelligence and investigation will have to be clever, thorough and aggressive.

They must also, however, act under color of due process. This war is, at bottom, a war of ideas. The last thing we should be doing is degrading our own.