A Softer Approach?

By Viveca Novak Sunday, Dec. 07, 2003
    • Is Attorney General John Ashcroft — so often at odds with civil libertarians — going soft? It might seem that way to those watching recent actions in the war on terrorism. Yaser Esam Hamdi, a U.S. citizen captured in Afghanistan and held without charges for two years, last week was finally allowed to meet with a lawyer for the first time. Australian David Hicks became the first of the detainees at Guantanamo Bay to gain access to lawyers, one military and one from Australia. Meanwhile, the chief author of Ashcroft's controversial Patriot Act, Viet Dinh, a former Justice official who is now a professor at Georgetown University, has called for providing more legal rights to those in custody in the U.S. who are deemed "enemy combatants."

    But the story is more complicated. In the cases of Hamdi and Hicks, it appears that Ashcroft's Justice Department has gained ground in a long-simmering behind-the-scenes struggle with the Pentagon, which has jurisdiction in the cases and has taken an even harder line in its treatment of those captured in the war on terrorism. Justice has long argued that Hamdi — along with Jose Padilla, who has been imprisoned but not charged in a suspected "dirty bomb" plot — should be given an attorney and other legal rights. The Pentagon relented just before a filing deadline in a Supreme Court challenge to Hamdi's detention. Justice has also pushed to have the detainees in Guantanamo charged and given lawyers more quickly. Another source of friction, a former Justice official tells TIME, is the Pentagon's refusal to let FBI agents question two of the three "enemy combatants" being held in the continental U.S.

    Justice officials argue that charging suspects and giving them access to attorneys actually offers the defendants more incentive to cooperate in hopes of bargaining for a lesser sentence. Justice lawyers are also acutely aware that these policies must withstand constitutional scrutiny. "Justice takes a longer view," says a former department official, "and wants cases set up to survive in the Supreme Court."