Three years ago, John Ashcroft--then a senator from
Missouri, now the U.S. attorney general--opened a Senate Judiciary subcommittee
hearing on gun control by declaring that "a citizenry armed with both the right
to possess firearms and to speak freely is less likely to fall victim to a
tyrannical government than a citizenry that is disarmed from criticizing
government or defending themselves."
No member of his old committee thought to quote those words back to him when
he appeared in December to defend his administration's assertion of sweeping new
powers--the creation of military tribunals to try any noncitizen that the
administration says is a terrorist, its failure to disclose even the names of
some 1,200 detained suspects, its declaration that it may monitor, without
judicial authority, conversations between suspects and their lawyers--all in the
name of national security. No mention of those old words even when Ashcroft came
close to accusing government critics of something approaching treason. "To those
who scare peace-loving people with phantoms of lost liberty," he said in his
prepared statement, "my message is this: Your tactics only aid terrorists, for
they erode our national unity and diminish our resolve. They give ammunition to
America's enemies and pause to America's friends."
But that was just the beginning of the ironies. The same morning, The New
York Times reported that Ashcroft's Justice Department had blocked efforts by
the FBI and other law-enforcement agencies to check Justice's database to
determine if any of the 1,200 individuals detained after the September 11 attacks
had bought guns or had sought to do so. Why, asked Massachusetts Senator Edward
Kennedy, was Ashcroft handcuffing the FBI--his phrase--in its efforts to
investigate gun purchases by suspected terrorists?
The answer, said Ashcroft, was simple. The law creating the federal database
of gun buyers and would-be purchasers (which mandates that the records are kept
for only 90 days) didn't permit such uses; Congress had forbidden it. What
Ashcroft didn't say was that as a member of the Senate--one whose libertarian
streak never went much beyond the agenda of the gun lobby--he had worked as hard
as anyone to write even more restrictions into that law.
Did Ashcroft think that the law should be changed? the senators asked. Would
he send up a bill calling for such changes? Why were there no background checks
at gun shows? How many terrorists bought semiautomatics at gun shows in complete
anonymity? Again and again, the attorney general ducked: If Congress sent him
something he would review it, he told the lawmakers, but "I won't comment on
legislation in the hypothetical." As to questions from Senator Arlen Specter, the
Pennsylvania Republican, about how Ashcroft could justify detaining aliens
despite orders from immigration judges to release them, the witness simply
declared that in his capacity as attorney general, he's the boss.
In fact, there was nothing surprising in any of this--not in the politics, not
in the self-righteousness, not in the slippery answers. In Missouri, Ashcroft
served as attorney general and then as governor. His remark about government
critics giving aid to the country's enemies, said Bill Freivogel, the deputy
editorial-page editor of the St. Louis Post-Dispatch, "was reminiscent of
the John Ashcroft Missourians know." In private, he's said to have a sense of
humor; in public, said William Woo, the former editor of the
Post-Dispatch, "he's a Reverend Dimmesdale type."
Ashcroft, the Bush administration's special gift to the Christian
right and arguably the most conservative member of the Senate during his one-term
tenure, was caught in flagrant misrepresentations during his confirmation hearings
in January 2001. Because he was so doctrinaire, some people asserted that at
least he must be honest; his refrain, when committee Democrats asked one of their
rare tough questions, was to thank the member for such candor. But his
explanation for his attempt to block the appointment of James Hormel, who is gay,
as U.S. ambassador to Luxembourg came close to in-your-face stonewalling. He
fudged his record of vehement opposition to school desegregation in St. Louis (a
court had gone so far as to tell him to drop his "feckless appeals"). And his
explanation for what, in essence, had been his mugging of Ronnie White, the black
Missouri Supreme Court justice nominated by Bill Clinton to the federal bench,
was so dishonest that even the mild-mannered columnist David Broder called it
"the worst kind of demagoguery."
Even after September 11, Ashcroft's Justice Department found time and
manpower to pursue his old agenda, first through its crackdown on the providers of
medical marijuana under California's initiative legalizing the medical use of pot
and then by trying to stop physicians from providing drugs under an Oregon law,
approved twice by voters, allowing the assisted suicide of terminally ill
patients. In the latter case, Ashcroft, reversing the hands-off policy set by his
predecessor, Janet Reno, directed the Drug Enforcement Administration to take
action against any doctor who writes prescriptions for such medications.
The DEA, Ashcroft blithely declared, could discern "the important medical,
ethical, and legal distinctions between intentionally causing a patient's death
and providing sufficient dosages of pain medication necessary to eliminate or
alleviate pain." But as almost any physician--and millions of others--can tell
you, the distinction is often blurry. In the end, easing the pain of a terminal
cancer patient with increasing doses of morphine (for example) and hastening the
person's death are indistinguishable. Ashcroft's order threatens millions of
terminal patients with an unnecessarily painful and humiliating death.
Ashcroft's order has been temporarily blocked by a federal district court and
will almost certainly be appealed once it's decided there. But if this were
almost any other issue--enforcement of gun regulations or environmental laws or
equal-employment rules--Ashcroft would have been in court fighting this federal
seizure of power as an assault not just against the states but against the
express wishes of voters.
Judging Ashcroft's post-September 11 behavior leaves a lingering question: How
much of his response has been spurred by administrative high-handedness and how
much by frustration about his department's domestic confusion and security
lapses--the FBI's weeks of fumbling the anthrax investigation, the porous
screening at airports, the vague public warnings, the delays and waffling in
gearing up public-health and other local security measures? How much, in short,
is panic and posture, and how much rank authoritarianism?
Justice Department officials have offered varied reasons for their failure to
disclose the names of most of the 600-plus people who as of mid-December were
still being detained. They were protecting suspects' privacy. They didn't want
al-Qaeda to know which of its operatives were in custody. (Of course, if al-Qaeda
is half as crafty as it's made out to be, it has long discovered who's being
detained on its own.) The more likely reason, said Senator Russ Feingold--the
Wisconsin Democrat who was in the majority in the surprisingly close 58-to-42
Senate vote to confirm Ashcroft but cast the lone Senate vote against the
administration's antiterrorism bill--is that the feds don't want anyone to know
about the "shoddy way" they've handled those detainees. Even veteran
law-enforcement officials saw problems. Those preemptive arrests and detentions,
said William Webster, former director of both the FBI and the CIA, "carry a lot
of risk. . . . You may interrupt something, but you may not be able to stop what
is going on." Thinking of the stiff-backed John Ashcroft as Casablanca's
Captain Renault is a stretch, but "round up the usual suspects" seems close
enough as an explanation.
There were similar questions about the Justice Department's
rationale for its effort to have local authorities question some 5,000 young men,
most of them from the Middle East and South Asia. The stated reason was the
search for information; but then why confine the inquiry to that group? Women, as
a senior Judiciary Committee staffer pointed out, also have information, as do
older men. This campaign, the aide suggested, seems more motivated by the hope
that the dragnet will snag some suspects. So far, it's been Germany, France,
Britain, and Spain that have identified most of the people who seem to have real
connections to the September 11 attacks; but there's now a good chance that,
following Spain's lead, these countries won't turn suspects over if the United
States insists on trying them in military tribunals.
And yet after some preliminary pronouncements from the chairman of the
Judiciary Committee, Vermont Democrat Patrick Leahy, that the December hearings
would be tough, Ashcroft got a fairly easy ride. Feingold says that Congress's
easy acceptance of the terrorism bill--he called it "an old FBI wish list to get
things back where we were" in the old J. Edgar Hoover days--was the green light
for everything the administration has done since. "Now we're playing catch-up."
But it's also true that senators can read the polls, and the polls show that
almost anything flying the flag of antiterrorism has strong public support. To
date, the administration has been careful to apply most of its expansive claim of
new powers to noncitizens and especially to Middle Eastern men.
National emergencies always create an uneasy line between the country's
collective security and individuals' civil liberties. The threat of terrorism
makes the line even more uncertain. But at a time when the United States is
trying to make a point about freedom and democracy, secret tribunals are hardly
the way to impress the world.
Feingold notes that Ashcroft wouldn't be doing what he is doing without
presidential approval. "It's such an error," he said, "to focus only on
Ashcroft." But Ashcroft has become a lot more than a reluctant flak-catcher. A few
years ago, he considered running for the Republican presidential nomination but
instead decided to seek re-election to the Senate seat he ultimately lost. If the
heart-troubled Dick Cheney were not to run for re-election as vice president in
2004, Ashcroft could well be a candidate to replace him.