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 whenhe appeared in December to defend his administration's assertion of sweeping newpowers--the creation of military tribunals to try any noncitizen that theadministration says is a terrorist, its failure to disclose even the names ofsome 1,200 detained suspects, its declaration that it may monitor, withoutjudicial authority, conversations between suspects and their lawyers--all in thename of national security. No mention of those old words even when Ashcroft cameclose to accusing government critics of something approaching treason. "To thosewho scare peace-loving people with phantoms of lost liberty," he said in hisprepared statement, "my message is this: Your tactics only aid terrorists, forthey erode our national unity and diminish our resolve. They give ammunition toAmerica's enemies and pause to America's friends."
But that was just the beginning of the ironies. The same morning, The NewYork 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 databaseof gun buyers and would-be purchasers (which mandates that the records are keptfor only 90 days) didn't permit such uses; Congress had forbidden it. WhatAshcroft didn't say was that as a member of the Senate--one whose libertarianstreak never went much beyond the agenda of the gun lobby--he had worked as hardas anyone to write even more restrictions into that law.
Did Ashcroft think that the law should be changed? the senators asked. Wouldhe send up a bill calling for such changes? Why were there no background checksat gun shows? How many terrorists bought semiautomatics at gun shows in completeanonymity? Again and again, the attorney general ducked: If Congress sent himsomething he would review it, he told the lawmakers, but "I won't comment onlegislation in the hypothetical." As to questions from Senator Arlen Specter, thePennsylvania Republican, about how Ashcroft could justify detaining aliensdespite orders from immigration judges to release them, the witness simplydeclared 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, notin the self-righteousness, not in the slippery answers. In Missouri, Ashcroftserved as attorney general and then as governor. His remark about governmentcritics giving aid to the country's enemies, said Bill Freivogel, the deputyeditorial-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 Christianright and arguably the most conservative member of the Senate during his one-termtenure, was caught in flagrant misrepresentations during his confirmation hearingsin January 2001. Because he was so doctrinaire, some people asserted that atleast he must be honest; his refrain, when committee Democrats asked one of theirrare tough questions, was to thank the member for such candor. But hisexplanation 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. Hefudged his record of vehement opposition to school desegregation in St. Louis (acourt had gone so far as to tell him to drop his "feckless appeals"). And hisexplanation for what, in essence, had been his mugging of Ronnie White, the blackMissouri 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 andmanpower to pursue his old agenda, first through its crackdown on the providers ofmedical marijuana under California's initiative legalizing the medical use of potand then by trying to stop physicians from providing drugs under an Oregon law,approved twice by voters, allowing the assisted suicide of terminally illpatients. In the latter case, Ashcroft, reversing the hands-off policy set by hispredecessor, Janet Reno, directed the Drug Enforcement Administration to takeaction 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 deathand providing sufficient dosages of pain medication necessary to eliminate oralleviate pain." But as almost any physician--and millions of others--can tellyou, the distinction is often blurry. In the end, easing the pain of a terminalcancer patient with increasing doses of morphine (for example) and hastening theperson's death are indistinguishable. Ashcroft's order threatens millions ofterminal patients with an unnecessarily painful and humiliating death.
Ashcroft's order has been temporarily blocked by a federal district court andwill almost certainly be appealed once it's decided there. But if this werealmost any other issue--enforcement of gun regulations or environmental laws orequal-employment rules--Ashcroft would have been in court fighting this federalseizure of power as an assault not just against the states but against theexpress wishes of voters.
Judging Ashcroft's post-September 11 behavior leaves a lingering question: Howmuch of his response has been spurred by administrative high-handedness and howmuch by frustration about his department's domestic confusion and securitylapses--the FBI's weeks of fumbling the anthrax investigation, the porousscreening at airports, the vague public warnings, the delays and waffling ingearing 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 todisclose the names of most of the 600-plus people who as of mid-December werestill being detained. They were protecting suspects' privacy. They didn't wantal-Qaeda to know which of its operatives were in custody. (Of course, if al-Qaedais half as crafty as it's made out to be, it has long discovered who's beingdetained on its own.) The more likely reason, said Senator Russ Feingold--theWisconsin Democrat who was in the majority in the surprisingly close 58-to-42Senate vote to confirm Ashcroft but cast the lone Senate vote against theadministration's antiterrorism bill--is that the feds don't want anyone to knowabout the "shoddy way" they've handled those detainees. Even veteranlaw-enforcement officials saw problems. Those preemptive arrests and detentions,said William Webster, former director of both the FBI and the CIA, "carry a lotof risk. . . . You may interrupt something, but you may not be able to stop whatis 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'srationale 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 thesearch for information; but then why confine the inquiry to that group? Women, asa senior Judiciary Committee staffer pointed out, also have information, as doolder men. This campaign, the aide suggested, seems more motivated by the hopethat 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 realconnections 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 UnitedStates insists on trying them in military tribunals.
And yet after some preliminary pronouncements from the chairman of theJudiciary Committee, Vermont Democrat Patrick Leahy, that the December hearingswould be tough, Ashcroft got a fairly easy ride. Feingold says that Congress'seasy acceptance of the terrorism bill--he called it "an old FBI wish list to getthings back where we were" in the old J. Edgar Hoover days--was the green lightfor 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 thatalmost anything flying the flag of antiterrorism has strong public support. Todate, the administration has been careful to apply most of its expansive claim ofnew powers to noncitizens and especially to Middle Eastern men.
National emergencies always create an uneasy line between the country'scollective security and individuals' civil liberties. The threat of terrorismmakes the line even more uncertain. But at a time when the United States istrying to make a point about freedom and democracy, secret tribunals are hardlythe way to impress the world.
Feingold notes that Ashcroft wouldn't be doing what he is doing withoutpresidential approval. "It's such an error," he said, "to focus only onAshcroft." But Ashcroft has become a lot more than a reluctant flak-catcher. A fewyears ago, he considered running for the Republican presidential nomination butinstead decided to seek re-election to the Senate seat he ultimately lost. If theheart-troubled Dick Cheney were not to run for re-election as vice president in2004, Ashcroft could well be a candidate to replace him.
