TOO MUCH POWER VESTED IN TWO MEN

Civil Liberties

Democracy is a cumbersome process conducted in embarrassingly public
forums. War requires swift and decisive action initiated with the utmost
secrecy. When a democratic society goes to war, something's got to give.

Typically, executive prerogative expands at the expense of the public's
right to know. This phenomenon is understandable, but perilous. Democratic
institutions evolved as safeguards against human folly and, as the Clinton
years remind us, even exalted offices are held by flawed mortals.

When Congress passed the USA Patriot Act, affording the Department of
Justice sweeping new powers to combat terrorism, John Ashcroft promptly
demonstrated the dangers inherent in such legislation. The ink was barely
dry on the bill when the attorney general found time to interject himself
into the plight of the dying in Oregon. Admittedly, Ashcroft's actions in
this regard had nothing to do with the authority granted by the Patriot
Act, but they illustrate the hazard of vesting unilateral discretion in any
one individual.

Twice since 1994, Oregon voters have approved the "Death with Dignity Act."
This measure allows doctors to prescribe lethal doses of painkillers to
terminally ill adult patients, provided certain rather stringent criteria
are satisfied. Regardless of your views on assisted suicide, this bill
clearly expresses the will of the state's electorate.

On Nov. 6, the attorney general absented himself from pending
investigations of global terrorism and a domestic anthrax outbreak to
announce that Oregon doctors who acted within the confines of the statute
could lose their licenses to prescribe federally regulated narcotics.
Normally a strong advocate of states' rights, Ashcroft in effect sought to
nullify the outcome of two local plebiscites by using the Controlled
Substance Act to enforce his personal convictions regarding the sanctity of
life. A U.S. district judge has since issued a temporary restraining order
against Ashcroft's directive, so this matter is headed to court. But if a
federal drug law can be contorted to overturn the results of a state
referendum on voluntary euthanasia, what potential for abuse is there in a
statute that provides for the secret detention of suspects and
eavesdropping on attorney-client consultations?

More troubling is President George W. Bush's executive order granting
himself the authority to order military tribunals to try terrorism
suspects. This dictate, which applies only to non-citizens, allows the
secretary of defense -- appointed by the president and serving at his
pleasure -- to convene the tribunal and determine its rules of evidence.
Proceedings would be held in secret and verdicts need not be unanimous,
even for capital sentences. Once convicted, the suspect's only possible
course of appeal would be a commutation issued by the president -- the guy
who ordered him charged in the first place. Catch-22.

Much has been made of the World War II precedent for these proceedings set
when FDR ordered eight Nazi saboteurs tried by secret tribunal. Yet, as
William Safire points out, that prosecution was motivated at least in part
by the desire to avoid political embarrassment. It seems that one of the
Nazis got cold feet and tried to phone the FBI to warn of the plot. He was
initially dismissed as a crackpot. Only days later did he manage to
convince the bureau of the genuine threat. A secret tribunal thus prevented
a public airing of serious governmental bungling.

Could similar motives prompt another secret trial? There's always a
skeleton somewhere in the closet. Consider that President Bush recently
signed another executive order allowing former presidents to veto the
release of their presidential papers as mandated by the Presidential
Records Act. His directive specifies that it "applies also to the vice
presidential records of former Vice President George H.W. Bush." The
director of the Freedom of Information Center, Charles N. Davis, terms the
order "a shocking display of executive branch arrogance." I don't presume
to know what prompted the president's order but the cynic in me can't help
wonder if it doesn't have something to do with his father's public claim
that he knew nothing of the Iran-Contra affair while serving as Ronald
Reagan's vice president.

History teaches that once lost, democratic rights are hard to find. The
extraordinary threat of terrorism, however, justifies extraordinary
counter-measures to defeat it. I believe the president and the attorney
general to be honorable men. "Honorable" is reassuring -- it's the "men"
that's got me worried.