The Fundamental John Ashcroft

Until Sept. 11, John Ashcroft seemed content to lie low as the Bush administration’s ambassador to the right. But now the attorney general has been reborn-and rooting out terrorists is just the beginning.

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A Washington showdown loomed. For weeks, a small number of lawmakers and pundits had been sniping at Attorney General John Ashcroft and the Bush White House over the administration’s plan to try, and possibly execute, foreign terrorists in secret military tribunals. As the detractors gained momentum, Senator Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, firmly requested Ashcroft’s presence before his committee.

When Ashcroft took his place in the crowded hearing room in early December, many of those present anticipated an explosion. But the attorney general skillfully deflected most queries, claiming the administration would not use the tribunals and other new powers indiscriminately. Then he went on the offensive: Critics who “scare peace-loving people with phantoms of lost liberty only aid terrorists, for they erode our national unity and diminish our resolve,” he declared. The journalists in attendance winced. Here was the attorney general of the United States, in wartime, effectively calling his opponents traitors. But no one on the committee challenged Ashcroft on this point. After the hearing, he walked away smiling, while a frustrated Democratic senator muttered, “Finally, the real John Ashcroft.”

Sept. 11 reconfigured the political hierarchy in Washington. President Bush lost his smirk and became a somber wartime leader. Secretary of Defense Donald Rumsfeld morphed into a media darling, and Secretary of State Colin Powell returned to prominence. But more than any other cabinet official, John Ashcroft was transformed-and reborn. After seven months as a mostly low-profile attorney general, he reemerged as a pugnacious, crusading politician, fully in keeping with his past as one of the Senate’s most passionately conservative members. He threw himself into the war on terrorism with the same zeal that had fueled his fierce opposition to abortion and gun control. And now, with his power and prominence enhanced, he is poised to confront a string of other hot-button issues, from physician-assisted suicide to the future of the Internet.

Chosen by President Bush to win points with social conservatives, the attorney general seemed disengaged in his first months in office, disappointing his allies on the right. Many liberals were relieved to see him seemingly biding his time, and not acting like the zealot they had depicted during a bitter confirmation battle.

But after Sept. 11, Ashcroft became absorbed, if not obsessed, with his new mandate: Find the terrorists, stop them, and make sure this never happens again. He pushed forward with a series of bold measures that alarmed his critics and even unsettled some fellow conservatives. Within the administration, he emerged as the hardest of the hardliners, serving as the president’s spear catcher for controversial initiatives like the military tribunals and the suspension of due process for noncitizens caught in the terrorism investigation. Once a critic of expanding the federal government’s police powers, he now argued that the administration could be trusted to wield such powers wisely. A year earlier he had warned that using secret evidence in immigration proceedings violated the rights of the accused; now he ordered that certain immigration hearings be conducted in secret. And when critics, including some Justice Department and FBI officials, challenged his approach, his response echoed the president’s post-Sept. 11 declaration to the world: You’re either with us in the fight against terrorism, or against us.

As a senator, Ashcroft had often cast issues in stark terms, drawing political inspiration from his Pentecostal faith. Now his uncompromising style was once again on display as he dismissed calls for caution and negotiation-in the fight against terrorism and, increasingly, on other fronts.

Since Sept. 11 Ashcroft has made high-profile policy moves on several matters of intense concern to conservatives. He has taken on voter-approved laws in California and Oregon, cracking down on clinics that dispense medical marijuana and on physicians who help terminally ill patients commit suicide. He has reversed long-standing department positions on affirmative action; ordered federal agencies to hold back on public-information requests even in routine cases; and signaled a willingness to give industry a break on antitrust issues. In the coming months, he is expected to continue steering the Justice Department rightward while lending an increasingly powerful voice to the interests of social conservatives on a range of issues-from hate-crime legislation to the Bush administration’s judicial appointments.

“I am concerned that as events arise, we will see more of his mindset, which is far more authoritarian than libertarian,” says Roger Pilon, director of the libertarian Cato Institute’s Center for Constitutional Studies. “That he does not support government for purposes that liberals support does not mean that he is antigovernment. He just has his own agenda for expansive government.”

The defiant attorney general who testified before his former colleagues in December was far different from the embattled nominee who had appeared before the same committee for his confirmation hearings 11 months earlier. In the fall of 2000, Ashcroft’s bid for reelection to the Senate from Missouri had been defeated under weird, and demeaning, circumstances. His challenger, Mel Carnahan, had died in an airplane crash, and Carnahan’s widow had agreed to take the seat if her deceased husband outpolled Ashcroft. The dead man defeated the living incumbent. Six weeks later, President-elect Bush named Ashcroft his choice for attorney general.

The announcement set off the new administration’s only major confirmation fight. Ashcroft had been the religious right’s favorite senator; in 1998 his voting record had put him in second place on the John Birch Society’s legislative scorecard, in a tie with North Carolina’s Jesse Helms. As recently as 1999, he had flirted with running for president, with Pat Robertson as one of his top boosters. Liberal groups made defeating Ashcroft’s nomination a priority, and they pressed their allies in the Senate to bring him down. The two-day confirmation hearing was a tense affair. Democrats grilled Ashcroft on his past actions and positions-his efforts to criminalize abortion and even contraceptives such as the morning-after pill; his resistance to school desegregation orders in Missouri; his smear campaign against a Missouri Supreme Court justice nominated for a federal judgeship; his supportive words for a magazine published by racists.

During the hearing, Ashcroft was conciliatory, if unapologetic. He portrayed himself as an inclusive fellow who repudiated “racist ideas.” He maintained that despite his fervent opinions on guns and abortion, he would not seek to remake laws that displeased him. It was a Joe Friday performance: He would be A.G. just to enforce the law, ma’am. Ashcroft won confirmation by a vote of 58-42-the narrowest margin of any Bush appointee. Nearly half of his former colleagues had slapped him in the face.

The ordeal cast a shadow over Ashcroft’s first months in office. “He was genuinely shocked and hurt,” says one top Justice official. In the wake of the confrontation, the attorney general seemed to have decided it was best to avoid giving his critics fresh ammunition. Department insiders wondered what he wanted to accomplish at Justice, if anything. He surrounded himself with political staffers from Capitol Hill and rarely reached out to veteran officials. “He and his people didn’t trust anyone who was career,” recalls one longtime department lawyer. “They viewed all career people as the enemy. Usually that happens at the start of a new administration, but people get over it. They didn’t get over it.” Among many in the department a consensus formed: Ashcroft was running the place like a senator’s office, where a few people control all the action and the boss is cushioned from much of the outside world.

And there was another similarity: his schedule. He often headed home to Missouri on Thursday afternoons and would not be in the office on Mondays. “Things piled up,” says a senior department official. “When you have a job like this, it fucks up your life. Ashcroft was going home on weekends.” One Friday early in Ashcroft’s tenure, a top department official and an FBI agent flew to Missouri to have their boss sign a top-secret wiretap application connected with a terrorism investigation. Department gossip about the incident reached the Washington Post, which reported that “Ashcroft wasn’t pleased to see [the pair] standing in front of his house. And there they stood in the cold while Ashcroft sat in his pickup to read and sign the documents.”

Not that Ashcroft wasn’t up to the job. “People can underestimate him,” says a Justice Department lawyer who has briefed him. “He is smart. He’s a fast read. He can understand an issue and the political dynamics of it right away. He’s not like Reno, who wanted endless briefings.” But he was not keen on establishing a game plan of his own. “His attitude was, ‘What does the president want me to do, and I’ll do it,'” the lawyer recalls.

As one senior Republican Senate aide puts it, “Ashcroft had one job: He had been picked to shore up Bush’s right flank.” If that was so, perhaps he could get away with punching a clock at the Justice Department. According to Terry Eastland, publisher of the conservative Weekly Standard and a former public affairs director at the department, “He was seen as someone bored with certain aspects of the job and thinking about another run for office.”

Even an unmotivated attorney general has to render important decisions, though, and Ashcroft did not fail to stir some controversy. In a letter to the National Rifle Association last May, he asserted that the Second Amendment “clearly protects the right of individuals to keep and bear arms”-reversing the Justice Department’s long-standing view that the Constitution grants only a collective right to bear arms. (The NRA cheered and placed Ashcroft, a longtime member, on the cover of its magazine.) He presided over the first federal executions in four decades, maintaining that a department study had found no evidence of racial bias in the application of the death penalty (an interpretation that was challenged by death-penalty foes). He held daily Bible study and prayer meetings in the office and praised the “vision” of an evangelist who had called on the nation to “select Christians to rule us.”

Still, Ashcroft’s performance was not that of a full-fledged religious-right crusader. He allowed department employees to have a gay pride celebration. He angered antiabortion activists by ordering the US Marshals Service to protect a Wichita abortion provider who was the target of protests. He disappointed affirmative action opponents when, in a key Supreme Court case, his attorneys supported a federal Department of Transportation program favoring minority-owned businesses. And when FBI director Louis Freeh resigned last June, Ashcroft opposed the choice of some conservatives, Bush campaign lawyer George Terwilliger, and successfully pushed for the appointment of Robert Mueller III, a nonpolitical former US attorney.

“Those who tried to portray him as a wide-eyed radical weren’t borne out,” says Clifford May, a Republican strategist. On Capitol Hill, according to a senior Senate Republican aide, “Ashcroft and the Justice Department was not at the top of anyone’s agenda. He was doing a fine job in not creating problems. He didn’t stand out, and that was not a bad thing.”

But Ashcroft’s supporters on the right were worried. “There was increasing concern that he wasn’t playing as high profile a role as conservatives thought he would,” recalls Tom Jipping, an official at the Free Congress Foundation. “We were wondering why not. We were hoping he’d get around to it.”

On the morning of Sept. 11, John Ashcroft and four aides were in the air, flying to Milwaukee in a government jet. A call came in on the attorney general’s secure phone. He hung up and said, “Our world has changed forever.”

His perhaps more than most. Ashcroft, the less-than-fully engaged attorney general, was now in charge of the largest criminal investigation in the nation’s history. His department-which oversees the FBI, the Immigration and Naturalization Service, US Attorneys’ offices, the Bureau of Prisons, and the Drug Enforcement Administration-was command central for efforts to detect and disrupt future plots. In the weeks after the attacks, and during the subsequent anthrax crisis, Ashcroft appeared before the TV cameras at all hours, often with the FBI’s Mueller at his side, offering updates and reassurance about the administration’s initiatives. The fleshy bags beneath his eyes became more pronounced. There would be no more four-day workweeks.

“It seems harsh to say, but prior to Sept. 11, I wouldn’t have expected such a powerful reaction from Ashcroft,” remarks one department official. “It quickly was evident that he took his new responsibilities very seriously.”

If Ashcroft had entered the Justice Department without an agenda, he possessed one now. “We got speeches from him about not missing anything,” recalls another Justice attorney. “He was a man with a cause. You could feel it in the building. To him, the job became terrorism, terrorism, terrorism. He was devastated by the attacks. It happened on his watch.”

In sync with the White House, Ashcroft set the tone for a new style of federal law enforcement: This was war, and war required extreme measures. A week after the attacks, he issued a directive allowing the federal government, in certain instances, to detain noncitizens indefinitely without charges. Critics warned that the audacious step-along with Ashcroft’s announcement that the government would monitor conversations between inmates and their lawyers in certain instances-eroded due process and divided the population between citizens and noncitizens, a distinction not noted in the Constitution. But Ashcroft was unmoved. “It is difficult for a person in jail,” he noted, “to murder innocent people or to aid or abet in terrorism.” This, in other words, was not a time to get hung up on legal niceties.

Nor was it a time for lengthy public or congressional debate. The White House legal counsel’s office and the Justice Department’s Office of Legal Policy, which Ashcroft had staffed with archconservative policy wonks, hastily drew up the USA Patriot Act-a bill that called for far-reaching changes in federal law enforcement. It gave the FBI new authority to search homes and offices without probable cause and to monitor phone conversations and email. It permitted grand juries to pass confidential information to the CIA, a step that could erode the prohibition against domestic spying by the agency. It afforded federal investigators greater access to business, bank, credit, and medical records, and it affirmed the government’s right to detain noncitizens without charges.

The bill set off protests from civil libertarians, including some of Ashcroft’s supporters on the right. At one of the weekly Washington meetings hosted by conservative strategist Grover Norquist, an attendee asked the group of 100 or so for a show of hands from those happy with the bill. Only two hands went up. “No one knows which of the things in the legislation will end up being dangerous,” says Norquist. “You have 6 million noncitizens in this country. That’s an awful lot of people who can be woken up with a knock on the door at night.”

Sept. 11 had not only energized Ashcroft; it had caused a shift in his political priorities. In the past he was associated with the civil libertarian wing of the conservative movement, the folks who were upset about Ruby Ridge and Waco, who were leery of awarding law enforcement extra powers. In a 1997 op-ed, he scoffed at government attempts to monitor the Internet to combat crime: “We do not provide the government with phone jacks outside our homes for unlimited wiretaps. Why, then, should we grant government the Orwellian capability to listen at will and in real time to our communications across the Web?”

But since the attacks, he has demonstrated little sympathy for such concerns. “I understand what happened after 9/11,” Norquist says. “Ashcroft shouts down the hall-‘Get me all the antiterrorism stuff we need’-and they throw out all the stuff they’ve been trying to do for years. I wish that Ashcroft would have been more strict when the staffers came in and said, ‘Here are the 100 things we need.’ But that didn’t happen.”

Even in the law enforcement community, some argued that Ashcroft was going too far. When he considered a plan to relax restrictions on FBI spying on U.S. religious and political organizations, top Justice and FBI officials criticized the move. The rules, they pointed out, had been imposed after the J. Edgar Hoover era to prevent the kind of domestic surveillance that had given the bureau a bad name. “This came out of the White House and Ashcroft’s office,” a senior FBI official told the New York Times. “There are tons of things coming out of there these days where there is absolutely no consultation” with the FBI.

Several prominent FBI alumni also blasted Ashcroft’s cast-a-wide-net approach to the terrorism investigation, which led to the detention of some 1,200 people, only a dozen of them suspected of having any links with Al Qaeda. The mass arrests were part of a fundamental shift in the bureau’s strategy. In the past, the FBI would identify suspected terrorists, move to forestall any immediate threat of violence, then watch the suspects in hopes of cracking an entire cell. Ashcroft’s approach, the critics noted, might jeopardize the kinds of investigations that had prevented previous attacks. “We used good investigative techniques and lawful techniques,” warned Reagan-era FBI director William Webster, “and we did it without all the suggestion that we are going to jump all over people’s private lives.”

Ashcroft drew the most fire, however, over the administration’s plan to set up secret military courts. Using the tribunals had not been his idea: The executive order creating them had been drawn up in the White House, and the Pentagon, not Justice, was charged with working out the details. But it was Ashcroft who enthusiastically defended the measure and tangled with right-wingers aghast at the broad sweep of the president’s order. Ashcroft’s foes included US Rep. Bob Barr (R-Ga.), who warned that the plan “takes your breath away,” and conservative columnist William Safire, who accused Bush of assuming “dictatorial power” because he was misadvised by a “frustrated and panic-stricken attorney general.”

“Ashcroft seemed to relish going up against his critics,” one Justice Department official notes. “He could be sincerely self-righteous in his role as America’s protector.” As he was preparing for his appearance before the Judiciary Committee-the one in which he would accuse unnamed critics of aiding terrorists-Ashcroft led 90 federal prosecutors on a nighttime tour of Washington’s monuments. The point, he said, was to “dedicate ourselves to the wisdom and knowledge of the founders, who were dedicated to justice.”

Ashcroft’s new confidence hasn’t been limited to the war on terrorism. In recent months he has ordered brassy initiatives in a number of controversial areas. In November, he instructed the Drug Enforcement Administration to revoke the drug-prescription licenses of physicians who provide medication to help terminally ill patients die-a measure directed at Oregon’s law legalizing physician-assisted suicide, but with nationwide implications. “Ashcroft was trying to wipe out physician-assisted death with one single edict and no hearings, and no consultations with physicians or patients organizations,” complains Ryan Ross of the Hemlock Society, a right-to-die advocacy group. The state of Oregon and several patients took Ashcroft to court, and a federal judge issued a temporary stay on the DEA order. The matter will likely work its way toward the Supreme Court.

Ashcroft’s move against right-to-die legislation was cheered by social conservatives still smarting over Bush’s decision last August to allow limited federally funded research on human stem cells, and was seen by some lawyers in the department as a political payback to the religious right. But it also displeased conservative states’ rights advocates. On another front, the DEA in October raided two clubs in California that dispense medicinal marijuana to people with aids, cancer, and glaucoma. “It was fairly shocking timing to now put resources into a blast at medical marijuana,” says a former top-ranking Justice Department official, “and to make the face of drug crime in America an HIV patient in a wheelchair and not a Colombian drug lord.” An Ashcroft spokeswoman defended the raids as proof that the department had “not lost our priorities in other areas since Sept. 11.”

In a number of less-publicized actions, Ashcroft has been guiding his department away from key positions taken by the Clinton administration. Since 1997 the federal government had been a co-plaintiff in a suit arguing that an unusual physical test used for hiring Philadelphia transit cops discriminated against women, 93 percent of whom failed the test. In October, Ashcroft directed his attorneys to withdraw from the suit. The department also dropped its support of affirmative action programs at the University of Michigan-just a few months after arguing for the Department of Transportation program favoring minorities.

In November, signaling another shift in priorities, the department reached a settlement with Microsoft in the largest antitrust case in two decades. Ashcroft hailed the agreement as “historic,” but 9 of the 18 states that were party to the suit refused to go along with the deal, and consumer advocates attacked it as proof that the administration was going soft on antitrust enforcement. (Ashcroft will not be involved in what could be the biggest corporate investigation of his tenure: He has recused himself from the Enron case because he received campaign contributions from the company.)

As Ashcroft heads into his second year in office, he remains a team player following the lead of the White House. But as a revitalized and empowered attorney general with an approval rating near 70 percent, he also has more latitude to head where his natural inclinations direct him. If he didn’t know it before Sept. 11, he clearly realizes at this point that the office of attorney general is not a Joe Friday position. The A.G. does not merely enforce the law: He decides how to apply and shape it-and that is a values-driven exercise.

In the months ahead, Ashcroft will have ample opportunity to pursue his values as he encounters an assortment of contentious issues. The FBI is expected to seek additional surveillance powers and perhaps even attempt to influence the shape of the Internet-demanding, for example, that all electronic traffic be forced through easy-to-monitor nodes. The attorney general will also have to decide whether to order more DEA raids on medical marijuana clubs, and how to prosecute the people who run them.

On Capitol Hill, Ashcroft is expected to weigh in as Congress takes up legislation that he vehemently opposed as a senator. Lawmakers who seek to close the loophole that allows gun-show visitors to buy firearms without background checks, or to extend the ban on assault weapons (which expires in 2004), could find a forceful adversary in the attorney general, whose department oversees the Bureau of Alcohol, Tobacco, and Firearms. And as the nation’s chief enforcer of civil rights laws, Ashcroft may face a congressional initiative to extend the federal hate-crime law to cover sexual orientation. “Speculation within the department is that the political people will oppose it, but do not want to admit it yet,” says one career department lawyer.

Then there’s the ultimate prize for social conservatives: a Supreme Court justice who can flip the court’s balance to the anti-abortion side. “This is the North Star for conservative activists: who gets into the Supreme Court,” notes Terry Jeffrey, editor of the right-wing journal Human Events. Antiabortion advocates, he notes, “look to Ashcroft, whom they consider to be part of their movement, to prevent Bush from making a mistake.”

Ashcroft is now in a better position than ever to help his allies on the religious right. Despite some conservative griping about his approach to civil liberties, he remains in good standing in those circles. In December, the Christian magazine World, edited by onetime Bush adviser Marvin Olasky, chose him as its “Daniel of the Year,” as in the biblical hero, for withstanding “scorn and harassment.”

“He was never an insider within the Bush team,” notes Marshall Wittmann, director of the Washington office of the conservative Hudson Institute. “But now he’s clearly the domestic conservative heartthrob of this administration. He is an evangelical himself, he has been a very strong loyalist to the president, and now he has a general popularity beyond the conservative base of the party. I would suspect that he will have a long tenure within this administration.”

Or beyond. “He might mount a comeback run for the Senate, since he lost in a freak occurrence,” says May, the gop strategist. “And since he flirted with a presidential campaign, you can’t discount that.” In the meantime, as a full-throttle attorney general, John Ashcroft may yet live up to the hopes of his admirers and the fears of his foes.

Additional research for this article by Bill Hogan


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