After: How America Confronted The Sept. 12 Era

MONDAY, SEPTEMBER 17, 2001

James Sensenbrenner, the powerful Republican chairman of the House Judiciary Committee, recalls that when he had come out of the shower at his home in Wisconsin on Sunday morning, he heard the voice of John Ashcroft on one of the Sunday talk shows saying something about the legislation he was proposing to give his agents and prosecutors more tools to go after terrorists.

What legislation? Neither Ashcroft nor any of his people had told Sensenbrenner a thing about it, and, under usual House rules, it was Sensenbrenner's committee that had to pass on any such new laws related to the criminal code before the full House would consider them. Sensenbrenner suspected some kind of end run. Normally, that would seem unlikely, given that he and Ashcroft were of the same party and same conservative persuasion. Hoping to clear up the confusion, Sensenbrenner called House Speaker Dennis Hastert to ask what was happening. Hastert said he, too, knew nothing but would call around.

By that evening Sensenbrenner, still in Wisconsin, was sitting on his porch reading a faxed draft of an entire 100-plus-page piece of legislation. Sensenbrenner, marking up the document furiously, was astounded. Ashcroft and his people had written the magna carta of federal agents, freeing them to wiretap, search, arrest, and hold almost at will, with little judicial oversight.

Most shocking was that the bill suspended what was known in the law as habeas corpus--which gave anyone detained on American soil the right to demand a court hearing to challenge the authority of those holding them. Lincoln had suspended habeas corpus for a time during the Civil War. Now Ashcroft was proposing that it just plain be eliminated during this undefined emergency that had no designated end date. What was going on at Justice, the conservative Republican from Wisconsin wondered. (Ashcroft says he cannot "reconstruct with any accuracy" whether the suspension of habeas corpus was proposed. Sensenbrenner's recollection, as well as that of two White House officials who saw the draft, seems credible.)

It turned out that Ashcroft had excluded an even more influential Republican power center from his deliberative process: the White House. When one of deputy chief of staff Josh Bolten's aides heard Ashcroft on the talk shows, she was curious. She hadn't heard anything about his new proposals. On Monday, when she asked someone in the White House counsel's office for a copy, she was told that one was on the way--that they hadn't been directly involved either. That was unusual; the White House counsel and his staff are at the center of executive branch legal policy. When Bolten's aide, who is a former Supreme Court clerk, finally got to read the draft, she immediately warned Bolten that there was a lot of explosive stuff in the document.