An answer to Ashcroft

AS A PARTING shot of his tenure as attorney general, John Ashcroft last week made the disgraceful claim that judges who hold the Bush administration to constitutional limits as it fights the war on terrorism "can put at risk the very security of our nation in a time of war." Ashcroft did not specify which judges, but he was likely referring to US District Judge James Robertson's ruling Nov. 8 that the special military trials for detainees were unlawful and that US procedures for denying prisoner-of-war status to detainees violated both US law and the Geneva Conventions.

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The attorney general, who announced his resignation earlier last week, might also have had in mind the Supreme Court. In June it rejected the administration's position that it could hold alleged members of Al Qaeda and the Taliban who were captured in Afghanistan without filing charges or providing them with lawyers. Both rulings were exactly what the Founding Fathers had in mind when they created a system of checks and balances and vested in the courts authority to stand up for constitutional rights against the legislature or an executive branch, like the one now in power, that finds them inconvenient.

One judge who has not been cowed by the attorney general's remarks is US District Judge Mark Wolf in Boston. In a long-scheduled speech at Harvard's Carr Center for Human Rights Policy on Tuesday, Wolf praised the US tradition of criticism of government during wartime.

While agreeing with President Bush that the war against terrorism can be won only by promoting democracy, Wolf said that means keeping our own democracy a government of laws in which courts limit the powers of the executive and legislative branches to those granted to them by the people in the Constitution. Wolf -- who was appointed by Ronald Reagan -- said that since Sept. 11 the Bush administration has made an "extraordinary effort" to keep Congress and the courts from fulfilling their constitutional duties.

Wolf noted that in late 2001, Ashcroft, in remarks to the Senate, had accused critics of administration policies of aiding terrorists. He said the attorney general's remarks brought to mind William Butler Yeats's lines in "Leaders of the Crowd": "They must to keep their certainty accuse/All that are different of base intent."

Wolf cautioned that the courts cannot always be counted on to thwart the administration's efforts to escape adversarial scrutiny of its actions. He cited several lower-court decisions upholding civil liberties after Sept. 11 that were reversed on appeal.

The effort to keep the administration from overstepping its powers would be strengthened if Congress passed new laws and corrected existing ones, like the Patriot Act, so the United States can continue to be a moral leader, fighting terrorism under the rule of law.