When the country is at war, lost causes lose their appeal. Objecting to some of the measures Ashcroft has put into place takes a strong constitution, personally and institutionally. Ashcroft knows that, which is why he was coy about when exactly he might deign to appear for questioning before the Senate Judiciary Committee. Chairman Patrick Leahy and ranking member Orrin Hatch originally suggested November 28 would be a good day, but Ashcroft claimed he had a conflict. December 6 is now the date that has been agreed upon, although the attorney general wants to limit his testimony, saying he can’t afford more than a few hours. Issues on the docket include the Justice Department’s secretive detention of more than 1,200 people; new rules that undermine the sacrosanct right of attorney-client privilege; and the use of military tribunals to try foreign nationals connected to the terror network.
Ashcroft can’t duck his former colleagues forever, much as he might like to. Leahy would be derelict in his duty if he ignored these major leaps in legal power that have made Ashcroft the most powerful attorney general in memory. To be sure, a return visit to Capitol Hill is not on Ashcroft’s top 100 list of ways he’d like to spend his time. Hard feelings remain on both sides from his confirmation hearings. Ashcroft’s allies accused Leahy and other Democrats of “religious profiling,” charging they gave Ashcroft a harder time because of his fundamentalist Christian beliefs. The usually genial Leahy became incensed at the idea that he would practice that sort of discrimination. He pointed out that he is a Catholic; Senator Hatch, who chaired the committee at the time, is a Mormon. Bob Jones University, a favorite forum for conservative politicians, refers to both of their respective religions as cults. “Neither of us would ever ascribe that to John Ashcroft’s religion,” Leahy said heatedly.
The conflict took on a personal edge, something unusual in the Senate, where collegiality is the highest virtue. But Leahy insists he has put the controversy behind him. At President Bush’s inauguration, when a photographer snapped a picture of Leahy and Ashcroft smiling and shaking hands, Leahy told a dubious Republican colleague, “He’s the attorney general. I’m not going to hold a grudge.”
If the upcoming hearings are cast as a contest between the attorney general and Leahy, one of the most liberal members of the Senate, the odds-makers would give Ashcroft the edge. Since assuming office, he has consolidated considerable power around him and polished his public performance. Frightened citizens are loath to question anybody in authority when the country is fighting a war, and the Bush administration has fed the fear of terrorism despite pleas to Americans to resume their normal lives. The latest is the canceling of White House tours during the Christmas season, which keeps ordinary citizens from viewing the holiday decorations. Yet questioning any decision made for security reasons seems churlish and unpatriotic. What if something happened?
Ashcroft was a driving force behind the issuing of two vaguely-worded FBI public alerts that terrorist acts may be imminent and Americans should be on guard. These alerts were controversial within the intelligence community, and some career officials argued against them. There was little Americans could do since they had no specific knowledge of what threats existed, and neither did the FBI. Why did Ashcroft insist on issuing the alerts? “It was strictly CYA [cover your a–],” a top official said. “He is petrified something will be pinned on him.”
The attorney general seems more concerned about the image aspects of his job than the nuts-and-bolts of policies and their legal implications. In an effort to control negative information, the Justice Department has stopped providing a running tally to the press of how many immigrants are being detained. Most of these people are without lawyers, and are allowed only one legal phone call a week, not enough opportunity to find a lawyer even if they have the means to pay for one.
Rules written by Ashcroft allow the government to eavesdrop on the conversations detainees have with their lawyers, a breach that in normal times would send the ACLU scurrying to court with a challenge. Now the civil-liberties group has to pick its battles, and that may not be the best one given the mood in the country, and in the courts.
The military tribunals embraced as a tool of the administration have their roots in 1942, when President Roosevelt used them to convict and execute eight German spies who came ashore in New York. Ashcroft and company evidently fear that the evidence they gather won’t meet the standard of “beyond reasonable doubt” to get the death penalty for captured terrorists. So Bush signed an executive order that allows the administration to treat terrorists not as combatants in war but as spies, which gives the president broad latitude to do what he wants. Bush could decide to have trials at sea and throw the bodies overboard if he chose.
What this administration has done under the cloak of war has rehabilitated Ashcroft from a failed politician (he lost to a dead man, remember) into one of the more popular figures in Washington. He’s even been lampooned on “Saturday Night Live.” It’s fun to laugh at his pomposity, but it’s not his personality that’s a problem–it’s his policies.
