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. Last Updated: 07/27/2016

The Law Need Not Fall Silent

WASHINGTON -- Preparing to tell the Senate Judiciary Committee where to get off, Attorney General John Ashcroft lashed out at all who dare to uphold our bedrock rule of law as "voices of negativism."

Polls show terrorized Americans willing to subvert our Constitution to hold Soviet-style secret military trials. No presumption of innocence; no independent juries; no right to choice of counsel; no appeal to civilian judges for aliens suspected of being in touch with terrorists.

President George W. Bush had no political motive in suspending, with a stroke of his pen, habeas corpus for 20 million people; his 90 percent popularity needs no boost. The feebleness of the Democrats' response, however, is highly political.

With most voters trusting the government with anything, and with an attorney general and his FBI boss having the publicity time of their lives, one might expect us negativists to be in disarray.

Here's why we are not: The sudden seizure of power by the executive branch is beginning to be recognized by cooler heads in the White House, Defense Department and CIA as more than a bit excessive. Not that they'll ever admit it publicly. But Bush's order asserting his power to set up drumhead courts strikes some of his advisers, on sober second thought, as counterproductive.

Set aside all the negativist libertarian whining about constitutional rights, goes his newest advice, and forget about America's moral leadership. Be pragmatic: our notion of a kangaroo court is backfiring -- defeating its anti-terrorist purpose.

At the CIA, data about China, Russia and other closed societies are gleaned from debriefing returning travelers. But U.S. kangaroo courts would legitimize harsh proceedings overseas against U.S. business executives, academics and tourists -- thereby shutting down major intelligence sources.

At Defense, the hastily drawn order must be translated into a system of trials that would not be invalidated by a Supreme Court. Secretary Donald Rumsfeld has refused to follow lockstep behind Ashcroft in deriding strict constructionists as negativist. On the contrary, Rumsfeld calls the informed outcry "useful" in refining the order. The hopeful news is that Rumsfeld has reached outside the Pentagon to get advice from legal minds.

The White House counsel, Alberto Gonzales, defended the order by denying or interpreting away its most offensive provisions. That's his signal to the Pentagon general counsel, William Haynes, to give the broadest interpretation to the order's five words promising noncitizens "a full and fair trial."

Otherwise, our Constitution would be set aside by Cicero's ancient inter arma silent leges -- in time of war, the law falls silent.

William Safire is a columnist for The New York Times, to which he contributed this comment.