Where's John Ashcroft?

This post, written by Jayne Lyn Stahl, originally appeared on Lady Jayne’s Blog

As he lay in his now famous hospital bed after gallbladder surgery, then attorney general, John Ashcroft, received a call from then White House chief of staff Andrew Card asking if he and the president's counsel Alberto Gonzales could pay him a visit. Mrs. Ashcroft reportedly declined. Minutes later, according to Newsweek, the phone rang again, only this time the identity of the caller remains unknown. The response to that request was in the affirmative. So it was then that, shortly before he resigned in 2004, John Ashcroft received a bedside visit which has come under icreasing scrutiny, and has led to an atmosphere of what the president calls "grand political theatre."

Next month, the Senate will hold a vote of no confidence hearing for Alberto Gonzales, and it's time to call upon the one person in the room at the time who can answer essential questions as to what was said, what the NSA program looked like in its original state, why he refused to sign off on the legislation, and what role the president had in this whole affair. It's time for the Senate to subpoena John Ashcroft and, if necessary, provide him with the same limited immunity that was given Monica Goodling in exchange for talking.

That Ashcroft thought the program was illegal, and that more than two dozen members of the Justice Department, including then director of the FBI, Robert Mueller, threatened to resign over the executive branch attempt to monitor even greater number of Americans communications without a court order, we know, but his refusal to approve the program was not merely heroic, but shocking in light of some of the shady, and legally dubious post-9/11 prosecutorial gestures. Even a cursory look at some high profile litigation in which Mr. Ashcroft was involved peripherally will reveal just how egregious the initial NSA surveillance legislation must have been.

Back in April, 2003, Ashcroft was admonished by a federal judge for violating a gag order in the trial of four Detroit men who were indicted for operating a terror cell. He is also said to have ignored gag orders in the case of John Walker Lindh leading one observer to remark that "It is especially disturbing that it is the Attorney-General himself who has violated court orders and ethics rules." (FindLaw)

As recently as last September, a judge in Idaho denied a request to grant absolute immunity to the former attorney general from testifying in an indictment of the government for the wrongful arrest of Abdullah al Kidd as a material witness in a computer terrorism case. Should the case go to trial, and Mr. Ashcroft be compelled to testify, he will now have to answer allegations, under oath, that he was himself responsible for compromising Kidd's rights by "creating a national policy to improperly seek material witness warrants in an effort to arrest individuals without probable cause." (Jurist) Importantly, the judge's ruling prohibits the government from pre-emptive strikes against its own citizens, and a policy of "preventively" detaining suspects by labelling them material witnesses.