Swarajya - The Trouble with Infallibility

Bastion of Free Speech

Friday, December 7, 2001

Day of Infamy
Niranjan Ramakrishnan

Two thousand pounds of education
Drops to a ten-rupee jezail —

Thus wrote Rudyard Kipling, in his poem about the perils of campaigning in Afghanistan, Arithmetic on the Frontier. He could not have imagined just how profound his words would seem in a century.

On December 6, 2001, 60 years after the other Day of Infamy, Attorney General John Ashcroft came before the Senate Judiciary Committee to explain the administration's plan for military tribunals. From his statements, it appeared that Mullah Omar, Osama Bin Laden, and the Taliban had dismantled in a matter of months what Franklin, Madison, Jefferson and the rest of the Founders had painstakingly crafted two centuries ago, and what other great Americans have defended since. The terrorists had succeeded in convincing us to turn away from centuries of the Rule of Law (not to mention five millennia of the evolution of jurisprudence). Principles like the right to a free and open trial, the right of appeal, the right to see the evidence - all these we must now jettison, Mr. Ashcroft indicated, so we may better worship at the noble altar of the fight against terrorism. In the post-September 11 era, these antiquated notions no longer mattered.

Neither could one draw any comfort, from Mr. Ashcroft's attitude, that this frontal assault on the Bill of Rights was causing him or his administration the slightest qualms. His nonchalant replies to serious questions, often not bothering to answer them, much of the time vaguely referring them to the Defense Secretary, and frequently bordering on flippancy ("Yes, two out of three is two-thirds, Senator"), reflected a shocking disregard for the Constitution's provision of Congressional oversight from its one of its presumed guardians.

Nor did it appear that the administration had done its homework. When a senator asked him whether his tribunals would apply to all crimes, he hastily replied, no, only to War Crimes. When she pointed out that the order said no such thing; there was no restriction on the crimes it would cover, Ashcroft had no answer. When pressed by other senators for his definition of a war crime, he would only say that it would be determined very carefully by the President, Secretary of Defense, and others. If this a reflection of the level of consideration accorded by the administration to a measure which would change the basic assumptions of the justice system in the USA, it should send a chill down our collective spine.

And then there was the prop, the Al Qaeda training manual. The scene was gothic. Here sat the attorney general of the United States, waving a terrorist manual in order to justify turning the legal system of the United States into something more akin to the legal system of the terrorists! Remember the eight Christian missionaries being tried by the Taliban? They were not allowed their own lawyers - a matter which exercised the Bush administration a great deal, and rightly. Now here was Mr. Ashcroft, hawking similar ways of summary justice.

The New York Times wrote in an editorial that "Mr. Ashcroft doesn't get it". Perhaps it is we who don't 'get' Mr. Ashcroft's thinking. But Mullah Omar would have understood perfectly. After all, only earlier this year he blasted away the Buddhas of Bamiyan, a venerable treasure of all humankind. Mr. Ashcroft is trying his hand on another - the Constitution of the United States.