# John Ashcroft rescues the Constitution from attack by "civil libertarians" **URL:** \ **Category:** The BBQ Pit\ **Created:** [January 8, 2003, 9:32pm UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374 "2003-01-08T21:32:54Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![presidebt](https://avatars.discourse-cdn.com/v4/letter/p/c37758/32.png) [@presidebt](https://boards.straightdope.com/u/presidebt)\ **Post date:** [January 8, 2003, 11:37pm UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/21 "2003-01-08T23:37:47Z")
> [@](#): > > \*Originally posted by Giraffe \* > \*\*Damn those arrogant civil libertarians, arrogantly demanding that Americans be allowed lawyers and trials when they’re held for a crime. Arrogant know-it-alls! Next thing you know they’ll arrogantly expect to be allowed to publicly criticize the president! Terrorists! \*\* _I’m_ glad I’m not the only one thinking _this._ I do love it when conservatives get all tripped up when defending _constitutional rights_ by quoting the _Declaration of Independence._ That’s always lovely fun. ---
**Author:** ![SPOOFE](https://avatars.discourse-cdn.com/v4/letter/s/c5a1d2/32.png) [@SPOOFE](https://boards.straightdope.com/u/SPOOFE)\ **Post date:** [January 9, 2003, 12:03am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/22 "2003-01-09T00:03:26Z")
> [@](#): > > Maybe the court is also wrong. What? Never! A court can NEVER be wrong! Just as Minty Green! 😃 ---
**Author:** ![robertliguori](https://avatars.discourse-cdn.com/v4/letter/r/46a35a/32.png) [@robertliguori](https://boards.straightdope.com/u/robertliguori)\ **Post date:** [January 9, 2003, 12:04am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/23 "2003-01-09T00:04:23Z")
Eh, it’s one of those old documents that no one reads anyways. Who will notice? 🙂 ---
**Author:** ![Gopher](https://avatars.discourse-cdn.com/v4/letter/g/a183cd/32.png) [@Gopher](https://boards.straightdope.com/u/Gopher)\ **Post date:** [January 9, 2003, 12:32am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/24 "2003-01-09T00:32:11Z")
g ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [January 9, 2003, 12:45am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/25 "2003-01-09T00:45:43Z")
> [@](#): > > \*Originally posted by Giraffe \* > \*\*Damn those arrogant civil libertarians, arrogantly demanding that Americans be allowed lawyers and trials when they’re held for a crime. \*\* The petitioner is not being “held for a crime”. He is being held as an enemy combatant, akin to a prisoner of war. The opinion, if you read it, makes this distinction and explains its significance. I don’t see any indication that the petitioner is even claiming to be “held for a crime”. I’ll admit that the summaries of this decision troubled me, and I’m not sure I agree with all that the 4th Circuit said in its opinion. But I agree that under the facts presented (petitioner was captured in a battle zone, carrying an AK-47), the court made the correct decision. ---
**Author:** ![light\_strand](https://avatars.discourse-cdn.com/v4/letter/l/a6a055/32.png) [@light\_strand](https://boards.straightdope.com/u/light_strand)\ **Post date:** [January 9, 2003, 1:06am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/26 "2003-01-09T01:06:44Z")
Here is my problem with the decision: How is this any different from John Walker Lindh? Both men are American citizens, both men were caught in battle, and both men were declared “enemy combatants”. The main difference being that the case against Lindh was much stronger than that of Hamdi, as apparently they are going by a single witness saying that he was in battle. So that said. Why the difference in punishment? ---
**Author:** ![Giraffe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giraffe/32/129_2.png) [@Giraffe](https://boards.straightdope.com/u/Giraffe)\ **Post date:** [January 9, 2003, 1:11am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/27 "2003-01-09T01:11:46Z")
> [@](#): > > \*Originally posted by Random \* > **The petitioner is not being “held for a crime”. He is being held as an enemy combatant, akin to a prisoner of war. The opinion, if you read it, makes this distinction and explains its significance. I don’t see any indication that the petitioner is even claiming to be “held for a crime”.** I have no problem with treating this guy like an enemy combatant, since he was picked up with a weapon in a combat zone. It’s really Ashcroft’s desire to label people like Jose Padilla (American, arrested on U.S. soil based on evidence that he was part of a plot to build and set off a dirty bomb) and various Muslim-Americans picked up by the FBI after 9/11 as enemy combatants without any sort of trial that troubles the civil libertarians **december** seems to feel so threatened by. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [January 9, 2003, 1:20am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/28 "2003-01-09T01:20:16Z")
Here’s an interesting analysis of the decision by UCLA LAW Prof Eugene Volokh. His highlighted points are[ol][li]When a person is captured “in a zone of active combat in a foreign theater of conflict,” the executive branch may detain him as an enemy combatant, without any further judicial review. The court:[_]did not decide what would happen if the detainee was an American citizen captured on American soil.[_]rejected the argument that 18 U.S.C. § 4001(a), “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,” bars the detention.[_]rejected Hamdi’s argument that “Article 5 of the Geneva Convention applies to Hamdi’s case and requires an initial formal determination of his status as an enemy belligerent ‘by a competent tribunal.’”[_]acknowledged that its conclusion might leave some people detained who shouldn’t be detained.[_]held that these rules apply to detainees who, like Hamdi, are U.S. citizens, as well as to foreign citizens. [_]rejected Hamdi’s claim that the detention is no longer lawful because the hostilities have ended. Finally, the court concluded with this:[/li]_It is important to emphasize that we are not placing our imprimatur upon a new day of executive detentions. We earlier rejected the summary embrace of “a sweeping proposition – namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government’s say-so.” Hamdi II, 296 F.3d at 283. But, Hamdi is not “any American citizen alleged to be an enemy combatant” by the government; he is an American citizen captured and detained by American allied forces in a foreign theater of war during active hostilities and determined by the United States military to have been indeed allied with enemy forces._[/ol] ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [January 9, 2003, 1:46am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/29 "2003-01-09T01:46:53Z")
> [@](#): > > The petitioner is not being “held for a crime”. He is being held as an enemy combatant, akin to a prisoner of war. Except that enemy combatants don’t have the rights that POW’s have. I think that it is Ashcroft that is the real threat to national security. Meanwhile, I will go on my arrogant way…😉 ---
**Author:** ![SPOOFE](https://avatars.discourse-cdn.com/v4/letter/s/c5a1d2/32.png) [@SPOOFE](https://boards.straightdope.com/u/SPOOFE)\ **Post date:** [January 9, 2003, 2:45am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/30 "2003-01-09T02:45:03Z")
> [@](#): > > It’s really Ashcroft’s desire to label people like Jose Padilla… and various Muslim-Americans picked up by the FBI after 9/11 as enemy combatants without any sort of trial that troubles the civil libertarians december seems to feel so threatened by. Well, at least this indicates that Ashcroft doesn’t consider “terrorism” to be a “crime” _per se_… [/sarcasm] ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [January 9, 2003, 3:09am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/31 "2003-01-09T03:09:13Z")
> [@](#): > > \*Originally posted by Zoe \* > \*\*I think that it is Ashcroft that is the real threat to national security. > > Meanwhile, I will go on my arrogant way…😉 \*\* To be clear, I don’t mean to call anyone arrogant for preferring a very broad civil liberties approach. That’s a valid public policy POV. The arrogance lies in assuming that one’s preferred civil liberties approach must also be what the Constitution calls for. It’s possible that one’s preference may be good public policy, but may not be a Constitutional standard. No single group owns the Constitution. Put another way, it’s arrogant be contemptuous of Ashcroft’s Constitutional knowledge, especially because he was voted an outstanding state AG, he taught in Law School, and he co-authored two legal text books. It pleases me to see arrogant people get their comeuppance – except when it happens to me! :mad: ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [January 9, 2003, 3:45am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/32 "2003-01-09T03:45:49Z")
> [@](#): > > \*Originally posted by Giraffe \* > \*\*I have no problem with treating this guy like an enemy combatant, since he was picked up with a weapon in a combat zone. \*\* Sounds like you and I are in basic agreement on the case at issue. Regarding other cases (captures made on American soil, or in a non-combat zone) my support for the administration weakens. BTW, even though I picked your reply to challenge, I thought it was one of the more thoughtful of the first 20 or so. It’s just that most of the others ("Ashcroft? He’s the evil Antichrist! The Fourth Circuit must have been wrong!) said nothing worth opposing. ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [January 9, 2003, 3:51am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/33 "2003-01-09T03:51:26Z")
> [@](#): > > \*Originally posted by Zoe \* > \*\*Except that enemy combatants don’t have the rights that POW’s have. \*\* So? Why is this relevant to the issue presented to the court? The petitioner is not arguing that he is entitled to POW status. > [@](#): > > _Originally posted by Zoe_ > \*\*I think that it is Ashcroft that is the real threat to national security. > > \*\* See my earlier point re: content-free responses. ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [January 9, 2003, 4:07am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/34 "2003-01-09T04:07:16Z")
> [@](#): > > \*Originally posted by light strand \* > \*\*Here is my problem with the decision: How is this any different from John Walker Lindh? Both men are American citizens, both men were caught in battle, and both men were declared “enemy combatants”. The main difference being that the case against Lindh was much stronger than that of Hamdi, as apparently they are going by a single witness saying that he was in battle. > > So that said. Why the difference in punishment? \*\* You’ve identified the difference. Enemy combatants, whether or not they qualify as POW’s, are not detained for punishment purposes. They’re not necessarily (and are usually not) considered to be criminals. Rather, the detention is designed to prevent the enemy combatant from engaging in further hostilities against the U.S. The opinion, if you read it, is careful to make this distinction. Further, the standard or threshold for criminal charges is higher. Like you said, it appears that the evidence against Lindh was stronger, and the administration therefore decided that it had a shot are convicting him (criminally) beyond a reasonable doubt. In the present case, the evidence appears weaker, perhaps because the Northern Alliance apparently made the original capture, and its personnel were unavailable to testify. Analogize to WWII: If the U.S captured a German soldier, it made him a P.O.W., even if it couldn’t (or chose not to) bring criminal charges against him. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [January 9, 2003, 4:53am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/35 "2003-01-09T04:53:31Z")
paraphrasing **december:** “The US Attorney General has not been ruled to have actually violated the Constitution! Wow, he’s a hero!” :rolleyes: **december** may feel that it was “arrogant” for a “mob” of “‘civil libertarians’” or “know-it-all critics” “united in a vast conspiracy to undermine our Constitutional rights” to dare to challenge the legal authority of an AG who has “taught in Law School” (gosh, so much more impressive than mere lowercased “law school”, isn’t it?) and co-authored two books, but apparently the Fourth Circuit Court doesn’t agree. From the linked decision: > [@](#): > > As the foregoing discussion reveals, the tensions within this case are significant. Such circumstances should counsel caution on the part of any court. Given the concerns discussed in the preceding sections, any broad or categorical holdings on enemy combatant designations would be especially inappropriate. We have no occasion, for example, to address the designation as an enemy combatant of an American citizen captured on American soil or the role that counsel might play in such a proceeding. See, e.g., Padilla v. Bush, […] S.D.N.Y. Dec. 4 2002. IANAL, but that sounds to me as though there **were** significant constitutional issues involved, and that it was a good thing to get some judicial clarification on them; also, that the Court is explicitly distancing the implications of its decision from some of the Administration’s other enemy-combatant policies. Isn’t that exactly how civil-liberties lawsuits are **supposed** to work? If merely supporting a lawsuit about an issue that is crucially important and not yet well elucidated makes one an “arrogant know-it-all”, I’d say we need as many of those “arrogant know-it-alls” as we can get. They’ll certainly be more use in protecting our civil liberties than boot-licking sycophants like **december** , with his cries of “How **dare** anybody challenge the wisdom and rightness of Our Glorious Attorney General!” :rolleyes: ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [January 9, 2003, 5:19am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/36 "2003-01-09T05:19:16Z")
> [@](#): > > \*Originally posted by Kimstu \* > \*\*Isn’t that exactly how civil-liberties lawsuits are **supposed** to work? If merely supporting a lawsuit about an issue that is crucially important and not yet well elucidated makes one an “arrogant know-it-all”, I’d say we need as many of those “arrogant know-it-alls” as we can get. \*\* They’re not arrogant because of the lawsuit. I didn’t mean to object to the lawsuit. The people I meant to call “arrogant” were the ones who engaged in name-calling and slurs. Ashcroft has been vilified by many on the left. He’s been called “far to the right, so far out of the mainstream.” He’s been called a racist. He was attacked with the claim that he wanted to use unconstitutional kangaroo courts. Some said he would “shred the Constitution”. We’re seen attacks on this Message Board. Comments or cites on this Board have called him a “far-right fascist lunatic” and compared him to Joseph McCarthy and to the Ku Klux Klan. This decision shows that the people who made these mean-spirited comments were arrogant and wrong. ---
**Author:** ![SweetLucy](https://avatars.discourse-cdn.com/v4/letter/s/bcef8e/32.png) [@SweetLucy](https://boards.straightdope.com/u/SweetLucy)\ **Post date:** [January 9, 2003, 5:37am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/37 "2003-01-09T05:37:33Z")
What’s the point of being an American citizen if you get treated like a foreign captive? We might as well throw our rights and freedoms as citizens out the window (maybe that’s what this administration is planning to do anyway) :mad: ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [January 9, 2003, 5:46am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/38 "2003-01-09T05:46:59Z")
I could see him possibly being a enemy combatant except for one thing. Since this suppossed “war” on terrorism cannot possibly come to an end, this man will be imprisoned for the rest of his life without possibility of parole and without even a chance to give testimony. Legal? Barely. Unethical and underhanded? Without a doubt. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [January 9, 2003, 5:49am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/39 "2003-01-09T05:49:10Z")
> [@](#): > > \*Originally posted by december \* > \*\*This decision shows that the people who made these mean-spirited comments were arrogant and wrong. \*\* No, all it shows is that a court decided that a Bush administration policy wasn’t unconstitutional. In the first place, one can disagree with the court’s constitutional interpretation. Even if one chooses not to disagree, one can still argue that Ashcroft, in general, is a threat to American’s civil rights. As a side note, the 4th circuit can go fuck itself. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [January 9, 2003, 5:53am UTC](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374/40 "2003-01-09T05:53:47Z")
**december:** _The people I meant to call “arrogant” were the ones who engaged in name-calling and slurs._ Well, the people you were insulting in the OP were the ones who merely opposed Ashcroft in the lawsuit. You can see how we might have gotten confused. Now that I understand what you were trying to say, I withdraw and apologize for the term “boot-licking sycophant”, if retractions and apologies are permitted in the Pit. \*Ashcroft has been vilified by many on the left. He’s been called “far to the right, so far out of the mainstream.” He’s been called a racist. He was attacked with the claim that he wanted to use unconstitutional kangaroo courts. Some said he would “shred the Constitution”. We’re seen attacks on this Message Board. Comments or cites on this Board have called him a “far-right fascist lunatic” and compared him to Joseph McCarthy and to the Ku Klux Klan. \* I don’t quite see how an opinion about his being “far to the right, so far out of the mainstream” counts as “vilification”. Nor IMHO does a term like “kangaroo courts” count as an attack on Ashcroft himself. But I join you in disliking the tone of the rest of the remarks you mention. I have to point out, though, that the mere fact that a court has not found one particular decision of his to be unconstitutional doesn’t mean that his opponents are automatically entirely wrong about him. _The bit about Ashcroft being a Lone Ranger-type hero and defeating a Vast Conspiracy was meant to be humor. Since it needed to be explained, it must not have been funny._ Well, nice try, but unfortunately your attempts at satire do sometimes come across as a bit, er, elephantine. 😉 **SweetLucy** : \*What’s the point of being an American citizen if you get treated like a foreign captive? We might as well throw our rights and freedoms as citizens out the window \* Well, my hope as an ardent civil libertarian is that we won’t end up doing that. I don’t immediately see, though, why a citizen who takes up arms against his own country and is captured in battle **shouldn’t** be treated like a foreign captive (though admittedly my standards for how we should treat foreign captives are fairly high). The worrisome issue, as I see it, is the one that **Czarcasm** brings up: how can we abide by the rules of war for enemy combatants, citizens **or** non-citizens, in a vaguely defined state of “war” that has no foreseeable end? [Previous page](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374.md?page=1) [Next page](https://boards.straightdope.com/t/john-ashcroft-rescues-the-constitution-from-attack-by-civil-libertarians/147374.md?page=3)