James Cole, recess appointed this week by President Obama to serve as deputy attorney general, famously wrote an op-ed on September 9, 2002, criticizing then-Attorney General John Ashcroft. Cole argued:
But the attorney general is not a member of the military fighting a war--he is a prosecutor fighting crime.
For all the rhetoric about war, the Sept. 11 attacks were criminal acts of terrorism against a civilian population, much like the terrorist acts of Timothy McVeigh in blowing up the federal building in Oklahoma City, or of Omar Abdel-Rahman in the first effort to blow up the World Trade Center. The criminals responsible for these horrible acts were successfully tried and convicted under our criminal justice system, without the need for special procedures that altered traditional due process rights.
Our country has faced many forms of devastating crime, including the scourge of the drug trade, the reign of organized crime, and countless acts of rape, child abuse, and murder. The acts of Sept. 11 were horrible, but so are these other things.
Leave aside the intellectual strength or weakness of Cole’s argument. Here’s what’s really extraordinary about Cole’s fulmination: He seems not to think it relevant that Congress passed an Authorization for Use of Military Force Against Terrorists, on September 14, 2001, signed by President Bush on September 18, 2001. That resolution granted the president the authority to use all "necessary and appropriate force" against those whom he determined had "planned, authorized, committed or aided" the September 11th attacks, or who harbored said persons or groups.
In other words, we were (and are) at war with the perpetrators of 9/11. It’s not just “rhetoric about war,” as Cole suggests. It’s not a metaphorical war, like the “war on drugs” or the “war on child abuse.” There’s a real war going on, authorized by Congress. So there’s a real and legal distinction between the September 11 attackers and Cole’s other criminals. That’s why (leaving aside the intrinsic war powers of the president) President Bush and Attorney General Ashcroft could choose not to restrict themselves to the civilian justice system when dealing with the perpetrators of 9/11. Because Congress had acted to put those attackers, and their fellow terrorists, in a different category.
Now we have someone unambiguously dedicated to a criminal law understanding of the war on terror, the AUMF notwithstanding, as deputy attorney general of the United States—without having been confirmed by the Senate. Surely congressional committees have a duty to call him before them to clarify his views. Does Cole think as deputy attorney general he is simply “a prosecutor fighting crime,” or does he accept his responsibilities as part of the national security team carrying out policies authorized by the AUMF? If so, does he withdraw his criticism of Attorney General Ashcroft? And has he made his new understanding clear to the attorney general, and the president?