Ashcroft spokeswoman Barbara Comstock made much of the fact that these documented abuses happened on Bill Clinton's watch, but that is precisely the judges' point: The abuse of power transcends particular administrations. So ready is the FBI to lie in order to stretch the limits of legal surveillance that the court now refuses to accept testimony from the FBI agent in charge of monitoring Hamas.

Blunt as that rebuke by the surveillance court was, it was a love letter compared to the reception the administration's secret deportation hearings received just a few days later, when another unanimous panel of federal judges -- this an appeals court in Cincinnati -- slammed the Justice Department's secret deportation hearings. "Democracies die behind closed doors," wrote Judge Damon Keith for the U.S. Court of Appeals for the 6th Circuit.

Last year, the INS began deportation hearings against Rabih Haddad, head of a Muslim charity whose assets were frozen after Sept. 11. Ashcroft had asserted the unilateral right to close Haddad's deportation hearings to press and public -- an assertion challenged by Detroit newspapers and U.S. Rep. John Conyers, D-Mich.

The ruling by the 6th Circuit panel could not have been more unambiguous, with the judges' own sense of urgency and outrage clear from the speed with which the ruling was issued -- just three weeks after argument. "The executive branch seeks to uproot people's lives, outside the public eye and behind a closed door," wrote Judge Keith, who was appointed to the appellate court by Democratic President Jimmy Carter. But "when government begins closing doors, it selectively controls information that rightly belongs to the people. Selective information is misinformation."

An even broader case on secret immigration proceedings is on the docket later this month in Philadelphia, where a district judge ordered all immigration proceedings nationwide opened to the public in the absence of a good reason for secrecy.

What's going on is that Ashcroft's entire post-attack legal strategy, a strategy built on broad domestic surveillance and broader secrecy, is collapsing of its own extremity. It is no exaggeration to say that the nation's federal judges -- many of them appointed by presidents Reagan and Bush I -- are now in open rebellion at the measures embraced by the current Bush administration, measures which these judges perceive as a naked power-grab by the executive branch.

Both the surveillance and immigration rulings make it clear that the Bush administration's post-Sept. 11 policies are not just assaults on starry-eyed civil libertarianism -- they are undermining public safety. It is harder to fight terrorism when judges cannot believe the Justice Department and FBI, when police agencies can not develop trusting relations in immigrant communities because of fear of deportation or secret charges.

It's hard to avoid the conclusion that, far from being a "wartime consigliere," Ashcroft has turned out a colossal failure even on the administration's own terms, leading the White House down a succession of blind alleys. Secret military tribunals, secret deportations and secret wiretap expansion have all turned into highly publicized failures. Congress, which last fall rolled over for the USA PATRIOT Act, is finally beginning to ask questions. The proposed Homeland Security department is frozen in the U.S. Senate, and in the House, Wisconsin Congressman James Sensenbrenner, the conservative, law-and-order chair of the House Judiciary Committee, says he is ready to "start blowing a fuse" over the administration's addiction to secrecy and obsession with restoring the imperial executive.

There is ample evidence that Ashcroft has lost his White House support; recent news reports promoting the anti-terrorism labors of Solicitor General Ted Olsen suggest the stage is already being set for a successor. Religious conservatives, once Ashcroft's effective claque, now bridle at his plans to let the FBI spy on religious communities and follow their financial trails. Politically, Ashcroft is a man without a country -- a liability to the Bush administration, an irritation to Congress and an embarrassment to the conservative constituencies which sponsored him.

It's clear that in the weeks and months after Sept. 11, Ashcroft and the Bush administration repeatedly misread the tolerance of today's courts and public. In the same New York talk in which she prophesied new restrictions, Justice O'Connor -- the conservative Reagan appointee -- issued a pointed warning, unheeded at the time, of the need to "maintain a fair and just society with a strong rule of law at a time when many are more concerned with safety and a measure of vengeance." A year after al-Qaida's attacks, the honeymoon with Ashcroft's vision of security is over.

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