The Teflon General

CBSNews.com Legal Analyst Andrew Cohen finds a lot worth noting in both what was said, and what wasn't said, as U.S. Attorney General John Ashcroft was questioned by the Senate Judiciary Committee.

If Committee members were hopping mad at their former colleague for perceived excesses in the war on terror, it sure didn't show. And if Congress is gearing up to do something about, say, the Bush Administration's proposed use of military tribunals, it sure doesn't look like it. It looks more and more likely, instead, that Congress is going to defer to the executive branch, at least for the time being.

It looks, in other words, that Committee members were going through the motions, tying up a few loose ends, and hoping to move on to other things. And it sure looked like the Attorney General took and maintained the oratorical offense against those who were supposed to be grilling him. Instead of receiving criticism, he gave it. "Charges of kangaroo courts and the shredding of the Constitution give new meaning to the term 'fog of war,' " he said.

Should any of us be surprised by any of this? Probably not.

There is strong public support for the Administration's anti-terror measures; even stronger residual public shock and anger over the events of Sept. 11; very little public sympathy for those detained in the wake of the terror attacks; and reasonable, if not necessarily conclusive legal support for just about every one of the tactics the Administration has chosen to take in the past three months.

The resulting climate of public opinion is not apparently one that engenders a tremendous amount of feistiness or enthusiasm on Capitol Hill for a fight against a popular President during war conditions.

The Republicans were supportive and solicitous and even when they raised serious questions - like Sen. Arlen Specter (R-Pa) did on the topic of military tribunals - they did so in a way that clearly revealed their lack of interest in taking on Ashcroft directly. Sen. Orrin Hatch (R-Ut), for example, spent almost as much time railing at critics of the Attorney General and the Clinton Administration than he did asking questions about the Justice Department's role in the new anti-terror paradigm.

The Democrats on the Committee were only marginally more forceful, however. For example, Judiciary Chairman Patrick Leahy (D-Vt) and Sen. Dianne Feinstein (D-Ca) both mentioned new, proposed legislation which would ensure that people tried before the tribunals would be guaranteed certain rights which regular federal defendants are given in regular criminal casesSuch legislation, if enacted, would almost surely bolster the Administration's chances of having the Supreme Court approve the use of the tribunals absent a formal declaration of war.

But all Leahy and Feinstein got out of Ashcroft was a vague promise that he would consider their proposed law. And it certainly didn't sound as if even the two Democrats who mentioned it thought it would pass both houses of Congress.

Meanwhile, the several other inquiries about precisely what those tribunals will look like in practice - what evidentiary rules will apply, whether anyone apart from the President or Secretary of Defense will be given review powers - were met with either vague responses by the Attorney General or no response at all. On several occasions, for instance, Ashcroft deferred responses to the Defense Department, arguing that the President's order trigging the potential use of the tribunals was a "military" order, not an executive one.

Even Senator Edward M. Kennedy (D-Ma), the lion of the left, let the Attorney General off the hook on an issue that should have raised some serious hackles. Kennedy asked the Attorney General why the Justice Department had stopped the FBI from conducting gun-purchase background crosschecks on post-attack detainees. It's a fair question. After all, the Justice Department has pushed up against the boundaries of the law and the Constitution in so many other ways it is hard to understand why it would be so dainty about intruding upon the rights of detainees when it comes to their potential gun purchases.

But when Ashcroft answered lamely that the law that established the gun-purchase records only permits their review for "auditing" purposes, Kennedy didn't push him on it. Is the Administration now telling us that it is concerned about the privacy rights of the folks it has kept in prisons for the past two or three months?

Nor was Kennedy willing or able to get Ashcroft to commit to supporting a change in the law that would permit law enforcement officials to review those records to determine whether any suspected terrorists had purchased guns. For an Attorney General who has been so aggressive in asking for broad new enforcement powers - in demanding them, actually - it was an astonishingly unsatisfying exchange.

I guess that the series of exchanges themselves are productive in some way. And clearly some members of the Judiciary Committee were putting Ashcroft and the Administration on notice that the rules that are applied to these military tribunals will be scrutinized very carefully once they are put into place. But the anticipated "showdown" between two of the three branches of government never really materialized. Another example, I suppose, of the "new" normal.

By Andrew Cohen © MMI, CBS Worldwide Inc. All Rights Reserved