ASHINGTON, Dec. 1 — The issue of civil liberties has
created a classic balance-of-power struggle between Senator Patrick
J. Leahy, the Democratic chairman of the Senate Judiciary Committee,
and Attorney General John Ashcroft, a onetime colleague now leading
the administration's domestic war on terrorism.
In a series of testy letters, blunt interviews, chilly phone
calls and formal committee hearings, Mr. Leahy has demanded that Mr.
Ashcroft explain and defend the sweeping police, detention and
prosecutorial powers assumed by the administration in recent
weeks.
In an interview, Mr. Leahy, a former prosecutor from Vermont and
a 25-year veteran of the Senate, said: "I want to see us protected
from terrorism. But I want it done in a way that does not diminish
the basic protections of the Constitution."
The administration and its allies argue that it has maintained
that balance, and note that the public is overwhelmingly supportive
of its approach, judging from the public opinion polls. And they
dispute the idea that Mr. Ashcroft has failed to adequately consult
with Congress.
Mindy Tucker, a spokeswoman for Mr. Ashcroft, said, "The
administration has consulted quite a bit with Congress." She added,
though, "There are times when the attorney general exercises power
that has already been legislated to him, by Congress, and during
those times he may or may not consult with them ahead of time."
But this dispute, which will be fully joined when Mr. Ashcroft
himself appears before the committee next week, is not just an
abstract clash of executive power and legislative prerogative. It
also has a personal and political subtext.
During the second term of the Clinton administration, Mr.
Ashcroft was a deeply conservative member of the Senate Judiciary
Committee, regularly squaring off with ideological opposites like
Mr. Leahy on issues like judicial nominations.
Mr. Leahy says he and Mr. Ashcroft had a collegial relationship
during their time on the committee and worked together on issues
like privacy. But when Mr. Ashcroft was nominated to be attorney
general early this year, Mr. Leahy opposed him, arguing that Mr.
Ashcroft was simply too divisive for the job.
Mr. Leahy says that after Mr. Ashcroft took office, the two men
had a reconciliation.
"I told both him and the president that as far as I was
concerned, he was now our attorney general," Mr. Leahy said. "I
would do the best I could to help him be the best attorney general
possible."
But the era of good feelings was brief; tensions have grown since
the terrorist attacks.
In the negotiations between Mr. Leahy and the administration over
an antiterrorism bill, Mr. Ashcroft appeared at a Republican news
conference to denounce the Democrats as moving too slowly on
legislation to give the administration new powers for the
investigation, surveillance and detention of suspected
terrorists.
Mr. Leahy ultimately agreed to a bill that granted the
administration much of what it wanted, to the dismay of civil
libertarians.
Then, in a matter of days, the administration and Mr. Ashcroft
began a series of unilateral actions to expand their powers even
more, which provoked Mr. Leahy to protest, strenuously.
In a letter to Mr. Ashcroft on Nov. 9, Mr. Leahy declared, "I
have felt a growing concern that the trust and cooperation Congress
provided is proving to be a one-way street." In a signal-sending
appearance on the NBC News program "Meet the Press," Mr. Leahy was
asked if he was upset with Mr. Ashcroft and bluntly replied, "Yes,
very much so."
What was particularly grating, several senators on the Judiciary
Committee said, was learning of the administration's actions only
through the news media. Senator Arlen Specter, Republican of
Pennsylvania and member of the Judiciary Committee, said in an
interview, "The point is, the Judiciary Committee — Leahy — did give
the administration what it wanted." He added, "So it's not exactly
an uncooperative or halting Congress."
Others dispute the notion that this is a clash of institutions.
"I don't see this as a battle between Congress and the president,"
said Richard A. Samp, chief counsel for the conservative Washington
Legal Foundation.
At the committee's first hearing this week, Mr. Samp said, "With
the possible exception of Senator Specter, it sounded like all the
Republicans were on the side of the administration, and the
Democrats were the ones raising questions."
Mr. Samp argued that the dispute was fundamentally a partisan
clash. Mr. Leahy sees it differently. In an interview, after the
administration's executive order allowing the creation of military
tribunals to try foreigners accused of terrorism, he complained:
"There's been no consultation. These things just get announced:
`George Washington got a British spy once by doing this, so thank
goodness we've got recent precedents.' "
With the specter of critical Senate hearings led by Mr. Leahy
looming, Mr. Ashcroft seemed to be moving in a conciliatory
direction this week. "I think it's entirely proper that the United
States Senate and House exercise oversight over the Justice
Department," he told reporters.
But the political and partisan currents are strong. In the
hearings this week, Senator Orrin Hatch, Republican of Utah, rallied
firmly to the administration's defense, declaring, "I, for one,
believe that the steps taken by our law enforcement and intelligence
communities have saved us from even more harm."
The public opinion polls show voters are generally supportive of
the administration's actions on military tribunals and the detention
and questioning of Middle Eastern immigrants. The risks in bucking
that tide, some say, are substantial.
The challenge facing Mr. Leahy is how to scrutinize the
administration's record on civil liberties while assuring the public
that national security remains paramount. "Nobody up here is for
crime," Mr. Leahy said carefully in an interview. "Nobody is for
terrorists. But let's work together to find the right
tools."