Ashcroft's Legacy

"The greatest dangers to liberty lurk in insidious encroachment by men of zeal – well-meaning but without understanding." (Justice Louis D. Brandeis)

When President Bush chose former Sen. John Ashcroft to be attorney general in 2001, a common refrain among Missourians was that had they known, they would not have elected a dead man (Gov. Mel Carnahan) as their senator over the incumbent, John Ashcroft.

Several of Mr. Ashcroft's former colleagues in the Senate shared Missourians' doubts about him when they confirmed him on Feb. 1, 2001, as attorney general with only 58 votes, the fewest in the history of the office. (Attorney General Alberto Gonzales received the second-fewest votes – 60.) At Ashcroft's Judiciary Committee hearing prior to the vote, Massachusetts Sen. Edward M. Kennedy, said: "We know that while serving in high office, he has time and again aggressively used litigation and legislation in creative and inappropriate ways to advance his political and ideological goals. How can we have any confidence at all that he won't do the same thing with the vast new powers he will have at his disposal as attorney general of the United States?"

Before Sept. 11, 2001, Attorney General Ashcroft failed to make counterterrorism a priority or to grant the FBI the counterterrorism funding it claimed to need. (See his May 10, 2001, memo.) After Sept. 11th, under the guise of fighting terrorism, attorney general Ashcroft and his Justice Department drafted laws and enacted policies that granted sweeping new powers to the executive branch while reducing the powers of the judiciary and Congress and curtailing the rights of the people. To avoid meaningful debate, he capitalized on fears of terrorism and characterized himself and supporters of the new laws and executive branch policies as the true patriots who were doing everything possible to protect their country. In contrast, he accused those who cast doubt on the constitutionality of the new laws and policies of aiding the terrorists.

The naming of the USA Patriot Act was Mr. Ashcroft's "doublespeak" at its best. It was a resounding success in Congress, where it helped speed the Act's passage without committee mark-up or debate. But after its passage, as people gradually began to see the act's name as a disguise concealing its un-American contents, "USA Patriot Act" became synonymous with all the unjust laws, orders, practices, and policies the administration used after 9/11 to deny people their constitutional rights. Ashcroft and the DOJ staff have used the misleading phrase "terrorism related investigations" to give the American people the false impression that the thousands of men whom it detained had some connection to terrorism. In an article in The Nation, Georgetown University Law Center Professor David Cole notes that Mr. Ashcroft's record in so-called "terrorism" cases is "0 for 5,000" (http://www.thenation.com/doc.mhtml?i=20041004&s=cole).

Recognizing that knowledge is power, Mr. Ashcroft alternately concealed and revealed information to bolster his image. In November, he claimed his department was holding al-Qaeda members and would soon release their names. When none of the detainees apparently turned out to be members of al Qaeda, he simply classified the list of names, claiming that he didn't want to reveal to al Qaeda which of their members were in U.S. custody (http://www.cnss.org/agrelease.htm). On the other hand, he declassified a DOJ memo from the Clinton era written by 9/11 Commission member Jaime Gorelick to support his claim that the Clinton Administration had erected "the wall" between intelligence and law enforcement, and therefore, deserved blame for failing to prevent the Sept. 11 attacks.

At his frequent news conferences, Mr. Ashcroft was a master of hyperbole, trumpeting his department's successes in unraveling imaginary terrorist threats and sleeper cells, such as Jose Padilla's foiled "dirty bomb" plot that was never actually planned, and probably didn't involve a dirty bomb. But when things did not go his way, such as when the Detroit convictions he had touted were overturned because of prosecutorial misconduct, he was silent. When silence wasn't an option, he simply lied. He assured the American people that the post-9/11 detainees were allowed access to attorneys, a claim later refuted by a DOJ Inspector General's report. And just days before a copy of the DOJ-drafted Domestic Security Enhancement Act (AKA "Patriot II") landed in the hands of the Center for Public Integrity, Mr. Ashcroft denied to a member of Senator Leahy's staff that his department was drafting such a bill.

Mr. Ashcroft believes his greatest failure was not fully explaining to the American people how the USA Patriot Act has helped in the "war on terrorism." Many more would say he failed his country by placing his loyalty to the president and personal ambition above his duty to uphold the U.S. Constitution and the U.S. system of justice. His loyalty even caused him to argue forcefully for policies he personally opposed, such as the indefinite detentions at Guantanamo without legal recourse and military tribunals. Toward the end of his term, he prevented the Senate from seeing documents that might have shed light on Alberto Gonzales' and Michael Chertoff's actions, positions, and statements on the use of torture in interrogations.

But through his many failures, Mr. Ashcroft has reminded millions of us that, as Thomas Jefferson warned, "The price of freedom is eternal vigilance." Across the country, nearly 400 communities and four state legislatures have passed resolutions or ordinances affirming the constitutional rights of their 56 million residents. Hundreds more resolutions are in progress. Grassroots groups across the country will participate in a national debate this year over reauthorization of the USA Patriot Act's portions that sunset and other civil liberties abuses.

They are the legacy of John Ashcroft.

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