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In the Northwest: Reagan-appointed judge has words for Ashcroft

Monday, July 15, 2002

By JOEL CONNELLY

SEATTLE POST-INTELLIGENCER COLUMNIST

BELLINGHAM -- If he can spare a few hours from announcing new restrictions on civil liberties, Attorney General John Ashcroft might stop by to hear one of Ronald Reagan's best judicial appointees.

Ashcroft doesn't do much listening, but U.S. District Judge John Coughenour, in his annual address to Western Washington University's Munro Teachers Seminar, might have set him straight on a fundamental truth that has escaped our nation's chief law enforcement officer.

"The Constitution of the United States says what it means and means what it says" is a basic mantra to Coughenour, the chief federal judge for Western Washington.

Coughenour has had occasion to repeat those words, not only at Western but when FBI chief Robert Mueller suggested to him in a conversation that security has supplanted civil liberties concerns in post-9/11 America.

Protestations of a liberal judge?

Nonsense!

Jack Coughenour is one of Republican former Sen. Slade Gorton's closest friends. He was Reagan's first nominee to the federal bench in these parts. His screener at the Justice Department was Ted Olson, who is now U.S. solicitor general.

He is, as well, renowned as a no-nonsense courtroom disciplinarian.

Woe be unto any attorney who arrives late in Coughenour's courtroom. Or any male barrister who does not don a coat and tie, even for the briefest status conference. Or who dares plunk a briefcase on top of the judge's desk.

But it's not hard to see how President Bush's we-are-at-war policies could alarm a stickler for procedure and believer in the rule of law. Or one who concurs, as the late Texas Rep. Barbara Jordan put it, "The Constitution is absolute."

Overriding constitutional guarantees, and daring federal courts to do anything about it, is Bush's battle strategy.

In particular, Coughenour cites the case of Jose Padilla, the one-time Chicago street criminal arrested entering the United States in May and alleged to be in the initial stages of what Ashcroft called a plot to set off "dirty" radioactive bombs.

Padilla has not been charged with a crime. He is being held as an "enemy combatant." Ashcroft claims the government can keep people sitting indefinitely in military brigs, without charge and no access to counsel.

"Mr. Padilla is an American citizen," Coughenour said. "He is before a military tribunal. This is unprecedented."

In 1942, the FBI apprehended German saboteurs landed by submarine on Long Island with the assignment of disrupting American war industries. One turned out to be an American patriot, who turned in his cohorts. The German saboteurs were eventually executed.

They were enemy combatants in every sense of the word. They had a specific mission. Seven were German citizens. The U.S. Congress had officially declared war on the Third Reich.

Does prosecution of this war on terror require running roughshod over our Founders' rules of civil society? Does it make sense to do so?

Judiciously, Coughenour raised these questions Friday before the Munro Seminar (which was taped by TVW and will be broadcast statewide).

In 21 years on the bench, the judge said, what he's come to appreciate most about the American government is the First Amendment -- guaranteeing freedom of speech and assembly -- as well as the right of a defendant to face a jury of his or her peers.

"The commitment to a jury trial -- the idea of putting ordinary citizens between the accused and their government -- is a rather extraordinary thing: It is not universal," Coughenour said.

"What it means is: The government cannot send someone to jail unless 12 ordinary people say, 'The government got it right.'"

Under Bush's rules of detention, the government doesn't have to get it right. Or disclose its evidence. Or even charge someone with a crime.

With Ashcroft questioning the patriotism of anyone who questions him, the administration appears to be getting its way.

Friday, a 4th U.S. Circuit Court of Appeals panel reversed a district court judge's ruling that the "Sec- ond American Taliban," a young man born in Louisiana to Saudi parents, had a right to an attorney.

The appellate judges did stop short of approving the Justice Department's sweeping claim that the president has an absolute right to decide who is an unlawful combatant, and that the courts should butt out. They sent the case back to district court for consideration.

The 4th Circuit panel noted, however, that the Supreme Court has shown great deference to the federal government in deciding matters of national security.

Egregious, needless violations of individual rights have stemmed from that premise. Just remember those 1942 pictures of Japanese Americans on the dock at Bainbridge Island, their internment in remote camps upheld by the Supremes.

The basics of American democracy -- the right to trial, the right to counsel, the rule of law -- need defenders these days.

A man put on the bench by Republicans, Coughenour wonders when Congress' loyal opposition will find a voice.

"In my view, the Democratic Party has a responsibility to speak up on these issues," he said. "It isn't happening. Why aren't they speaking out? I don't understand it."

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-- Cherri (whatever@who.cares), July 15, 2002