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November 12, 2004



PAUL GIGOT: Welcome to THE JOURNAL EDITORIAL REPORT. Two events this week should focus the national debate on the balance between national security and individual liberty in the war on terrorism. One was a ruling by a federal judge that the military commissions set up to prosecute detainees at Guantanamo Bay lack the basic elements of a fair trial and violate the Geneva Conventions. The other event was the resignation of Attorney General John Ashcroft, who has been both praised and vilified for the Patriot Act and other legal changes since September 11th.

With me to discuss all this are Dan Henninger, Deputy Editor of The Wall Street Journal Editorial Page, Susan Lee, also of the Editorial Page, columnist Dorothy Rabinowitz, and Rob Pollock, a senior Editorial Page writer who has reported extensively on the issues we're discussing this week.

Dorothy, the attorney generals are often controversial, but this one has been in particular. What do you think is John Ashcroft's legacy? And how long is it going to last?

DOROTHY RABINOWITZ: I hope that the current legacy doesn't last long. But I think he will be seen finally in a legacy assessment as a man who broke up terror cells, as a man who went to court for all of his most controversial things, and won the right... excellent legacy, except that you would not hear about that today because he is, of course, the lightning rod of all the assaults upon him. And some of them have no basis in fact, because a lot of the people who are complaining about the Patriot Act haven't read it.

And another aspect of it is the underlying loathing for this man who represents a kind of fundamentalist Christianity and born-again-ness, that upset a lot of people.

PAUL GIGOT: But much of what he has -- his name is attached to, and he's become a symbol of, is going to live long past this administration, is it not, Susan? It's going to continue.

SUSAN LEE: Well, I hope not. I mean, I speak as a fundamentalist civil libertarian and a deeply religious person. In my mind, unlike Dorothy, what I associate his legacy with is first of all, very -- a lot of artful dodging around the Geneva Conventions. Secondly, he arrested over 5,000 people on this soil, and the result has been only a very small handful of convictions on terrorist activities. And third of all, his vigorous support for the Patriot Act, as Dorothy said, which many people find to be really over the top.

PAUL GIGOT: Dan, is that -- the Patriot Act isn't going to be repealed, I don't think. It may be modified somewhat this year. But it's not going to be repealed.

DAN HENNINGER: It's not going to be repealed. I do think it should be modified and renamed "Law for XYWZ." Because calling it a Patriot Act was a disaster. I think, contrary to Susan's belief here, what John Ashcroft did reflected a seriousness of intent appropriate to the events that occurred on September 11th.

PAUL GIGOT: That's right.

DAN HENNINGER: We did not have time to set up a commission and figure out over six months how we were going to respond to that event. They had to do it immediately. And yes, we'll now go before Congress and have an open debate about key provisions in that act and decide whether they should be modified. But it will live on.

PAUL GIGOT: Rob, take up this issue that Susan raised about the Guantanamo Bay and the Geneva Conventions. Isn't there a reason why the administration didn't impose Geneva Convention status, POW status on those detainees?

ROB POLLOCK: Well there's an absolutely good reason, which is that the detainees obviously do not meet the criteria which are spelled out clearly in the Geneva Conventions for being a prisoner of war. I mean, these are criteria including fighting in uniform, fighting for a military with a unified command structure that is itself committed to upholding the laws of war. Now if we just go ahead and grant POW status to anybody, no matter how they fight, even if they deliberately target civilians, for example, what's the incentive for people to behave with any sense of respect for the rules on the battlefield? There'll be no incentive left.

SUSAN LEE: Well Rob, they did meet some of the criteria for POW status. And --

ROB POLLOCK: No, they met none of them.

SUSAN LEE: -- both the Supreme Court and the federal court have been gnawing away --

ROB POLLOCK: Susan, which -- Susan, which criteria did they meet?

SUSAN LEE: Well, I'd have to go back and look. Some they met, some they didn't. There was an area of discretion where the Bush administration simply re-defined the term POW, and then re-defined the legal procedures.

PAUL GIGOT: I think you can fault this administration for one thing about Guantanamo, and that is not having these military commissions actually -- these military tribunals prosecute people so that the world and Americans could see that they were actually fair proceedings. And it's been a mystery to me, politically, why they haven't gone ahead with these, that you could show that. Instead, they've kind of dragged their feet. I think probably for political reasons, which is, they didn't want to do it in the middle of an election campaign.

Okay, Dorothy, let's move on to Alberto Gonzalez, the replacement for John Ashcroft. Does he signal continuity or change from the --

DOROTHY RABINOWITZ: I think almost helplessly he signals a change, because after the effusions emitted against John Ashcroft it would be very unusual for Gonzalez to say I'm going to follow in this man's footsteps. And he won't. And so I can say that the legacy that John Ashcroft left was that everybody's going to try bloody hard to avoid sounding anything like him.

DAN HENNINGER: Quick point. Alberto Gonzalez reflects the President's intentions. He's the President's man. That's encouraging. I would say that the other area where he has to do the same thing is in the state department and defense. He's got to resolve the tension between those two departments. And one way or another, he's got to have people who reflect his views in foreign policy.

PAUL GIGOT: Let's step back a bit and say three years after 9/11, this fundamental question of the balance between security and liberty -- how has the political system, the American system, responded? How have we done?

ROB POLLOCK: Look, I'm open to the idea that there are some possible revisions needed in the Patriot Act. But overall, we've done a great job. Look, there's been no terrorist attack, and the actual substantiated violations of civil liberties arising under the Patriot Act are just about zero. So I think the balance has been great.

PAUL GIGOT: There has been, Susan, a fair number of terrorist cases brought. Almost all of them have resulted in convictions. The one that's the big exception is the Musawi case, which -- the so-called 20th hijacker -- which is ongoing. I tend to agree with Rob. It sounds -- seems to me that this has been a pretty good balancing by our system.

SUSAN LEE: Well, I think the system was very predictable, which is it over-reacted right after September 11th, and then we got --

PAUL GIGOT: Such is Democracy.

SUSAN LEE: Exactly. And that was predictable. So we got out the Patriot Act and we got a whole lot of, I think, severe violations of civil liberties. But now it's three years later, and as we see, as the Patriot Act goes through Congress with these sunset provisions, I think the system is going to return more to equilibrium.

PAUL GIGOT: Dan, how do you see it?

DAN HENNINGER: There are two things in play here: the Constitution and the Bill of Rights. The Constitution proper defends the government. It secures the government. The Bill of Rights protects individuals. If we go too far in the direction of protecting the rights of this or that person, we leave the government, the system, unprotected. And I think by and large we've done a pretty good job of striking that tension, which has existed from the time of the founding.

PAUL GIGOT: Dorothy, there haven't been too many cases that have been lost by the government in this cycle, notwithstanding the skepticism of an awful lot of judges.

DOROTHY RABINOWITZ: Skepticism, yes. But there's also the predictable enough attack on John Ashcroft's effort. And let's not lose sight of the specifics of those attacks. I mean, there was an argument made virtually every day by the ACLU and various other ideologues and purists in the free speech ideal that you should not have to treasure the terrors and the apprehensions that issued from 9/11, and that you should go on as though we were living in a secure and free environment, which was not the case.

PAUL GIGOT: So on balance, do you think we responded pretty well and kept the balance --

DOROTHY RABINOWITZ: I think we did, heroically.

PAUL GIGOT: Okay, good. I'm going to make a prediction. John Ashcroft runs for president in 2008, or thinks very carefully, very closely about it. Thank you. Next subject.