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:
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.
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