"We must make it crystal clear that those who train for, and fight with, a designated terrorist organization can be charged under the material-support statutes," Ashcroft said at the hearing. However logical that may seem, it is at the very least disputed in the courts, and it is not so crystal clear that Congress' intent with the 1996 law was intended to be a blanket criminalization of any contact with a terrorist group. The April 1996 House-Senate conference committee report on the bill, according to Hatch's office, stated that "material support" did not include providing terrorist groups with medicine or religious materials.

The second provision would allow the death penalty in cases when terrorists sabotage a national defense installation, a nuclear facility, or an energy facility, resulting in deaths. The third provision would make defendants in terrorism cases -- alongside organized crime, drug offenses and gun crimes -- eligible for pretrial detentions, Ashcroft said.

Justice Department spokeswoman Comstock reports that "during the hearing when he brought up those three provisions, there was no push-back." The committee didn't say much -- or ask much -- about them, she says, which makes sense to her since they seem so logical. "A lot of these provisions, when people talk about them individually, they're just common sense. You know how people say they don't like Congress but they like their congressman? People say they don't like the PATRIOT Act, but when you ask them what don't they like about it and you go through the specifics of the bill, their reaction is different."

But when Ashcroft described his proposed new laws, they did not exist in paper form for the Judiciary Committee. That made any real debate about them essentially impossible. Sensenbrenner spokesman Lungren says that his boss will defer commenting on the proposals until he actually sees them. "We don't get wrapped up in any concern about proposals until they are sent up," he says. In that vein, the PATRIOT II draft didn't concern Sensenbrenner, Lungren says. "There are people hired at the Department of Justice and their job is to throw ideas at the wall as to the best way to fight the war on terror. Some stick and some don't."

But Tim Edgar, legislative counsel of the American Civil Liberties Union, was quicker to be critical of the proposals. Even before diving into the specifics, Edgar says "those three things that he mentioned were all PATRIOT II provisions" --- even though the Justice Department insists that the leaked January document was a very rough work in progress, still being evaluated and critiqued.

More specifically, Edgar supports the 9th Circuit court's interpretation of the 1996 anti-terrorism law's definition of "material support" and opposes broadening the definition. "The government has been forced to make a somewhat strained argument" in the Lackawanna case, Edgar says, where the six Yemeni-Americans, who have all pleaded guilty, were "going to attend what they thought was paramilitary camp, which turned out to be a terrorist training camp." (As part of their plea agreements, many of the defendants dispute Edgar and admit having more knowledge of where they were going.)

The original law focused on supporting a terrorist group, not merely associating with them, he says. "It's already a crime to engage in any kind of conspiracy to harm Americans," Edgar says. "This proposal would eliminate the need for them to show someone actually intended to do something wrong."

Regarding the other two acts, the ACLU already opposes the death penalty and pretrial detentions when it comes to those accused of being part of organized crime, or committing drug or gun crimes. The Justice Department's argument that if these tools can be used against mobsters they should certainly be available to wield against terrorists makes little sense to him -- he characterizes it as saying "If the law's really terrible in one area, we should extend it to every area." A Democratic Senate staffer says that the new death penalty proposals at first blush seem odd -- in that al-Qaida bombers tend to be suicidal to begin with -- as well as possibly redundant. "It seems somewhat symbolic," the staffer says. "It's very unlikely that if there were an act of terrorism that killed people, the government could not find a federal death penalty punishment for it."

Those criticisms weren't voiced at the hearing, of course, because the committee wasn't prepared. Throughout the post-9/11 era, the attorney general has fought his critics like the all-elbows scrappy pickup basketball player he proves himself to be in occasional games at the DOJ gym. "The A.G. gets what this is all about -- preventing another terrorist attack," says his deputy chief of staff, David Israelite. "And if the price for doing that is attacks from a bunch of editorial boards and a bunch of liberal members of Congress, so be it."

On October 3, 2001, when Ashcroft thought Senate Democrats were unnecessarily dilly-dallying over passage of the PATRIOT Act, he slammed the "rather slow pace" at which the Democrats were proceeding. "Talk won't prevent terrorism; tools can help prevent terrorism," he said to his former Democratic colleagues, adding that his comments were "to describe to them the kind of urgency that I feel that is necessary." At a Senate hearing two months later, Ashcroft decried "those who scare peace-loving people with phantoms of lost liberty," to whom he said, "Your tactics only aid terrorists."

Ashcroft later said that he wasn't referring to any members of Congress with that charge; regardless, he didn't say anything quite as harsh to his opponents in Thursday's hearing. But he wasn't exactly subtle, either. His opening statement relayed how, during Operation Enduring Freedom, "on the wind-swept plateaus of Afghanistan, some American military commanders read a list every morning to their troops -- names of the men and women who died on September 11. It was a stark reminder of why they were there." He then proceeded to list some of the 9/11 victims, taking great care to pronounce their names correctly. His prepared remarks spelled them out phonetically: "Joseph Maffeo [maf-FAY-o]," the document read. "Manny Del Valle [del-VOL-lay]. Charles E. Sabin [SAY-bin]."

Going on to name soldiers who had died in Operation Enduring Freedom and Operation Iraqi Freedom, as well as conjuring forth the memory of the "343 firefighters and 71 police officers [who] died in the line of duty," Ashcroft reminded those assembled that the bill so many of them were eager to pick apart had passed the House of Representatives 357-66 and the Senate 98-1. He pointedly noted that "despite the terrorist threat to America, there are some -- both in Congress and across the country -- who suggest that we should not have a USA PATRIOT Act." Unquestionably referring to Sensenbrenner, among others, Ashcroft noted that "others who supported the act 20 months ago now express doubts about the necessity of some of the act's components." Making no bones about it, Ashcroft said, "Our ability to prevent another catastrophic attack on American soil would be more difficult, if not impossible, without the PATRIOT Act."

His responses to questions from the committee continued the trend. About the inspector general's criticisms that there were serious problems with the way illegal immigrants were detained in the months immediately following 9/11, Ashcroft said, "You have to remember what the situation was in New York. When this was happening, ground zero was still smoldering; the FBI was operating out of a parking garage following a lot of leads and uncertainty about what might happen next -- not only what happened last."

After nearly five hours of testimony, Sensenbrenner told Ashcroft he could go "put his feet up."

"I know that you feel like coming before us is like appearing before the Inquisition," Sensenbrenner said, sounding slightly defensive. "I think this shows that the system is working."

It seems to be working well for Ashcroft. His theoretical new powers not yet committed to paper, no one in Congress seems willing to organize opposition against them. And he continues to stand, relatively unopposed.

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