John Ashcroft served as attorney general during the first term of the administration of George W. Bush, and in his last year in office analysts were terming him the worst attorney general in the nation’s history. Certainly in terms of civil liberties, Ashcroft showed no sympathy for or even understanding of due process and other constitutional protections. Under the banner of the war on terrorism, Ashcroft defended every infraction as necessary for the nation’s security.
Ashcroft probably would not have become attorney general except for a freak political event. A conservative and very popular with the religious Right, Ashcroft had been governor of Missouri and then in 1994 won a seat to the U.S. Senate. He ran for reelection in 2000 against the popular Democratic governor, Mel Carnahan, who was killed in a plane crash just a few weeks before the election. Too late to replace his name on the ballot, Democrats urged voters to cast their votes for Carnahan, and the lieutenant governor said he would appoint Carnahan’s widow to the seat until a special election could be scheduled. Carnahan won, the first time in history that a dead man won a federal election, and Bush then named Ashcroft to head the Justice Department.
Clearly the attacks of September 11, 2001, and the resulting ‘‘war on terror’’ shaped Ashcroft’s and the administration’s policies. Historically, civil liberties have always been at risk in wartime, but this ‘‘war’’ took place in an era with technological possibilities of invading the privacy and rights of individuals far greater than in any previous conflict. Ashcroft determined to make full use of what he considered the unlimited power of the executive branch in wartime along with all the tools of surveillance to ferret out would-be terrorists. If he had found and prosecuted any terrorists caught in these webs, he might have offered some justification for his actions; but in fact there were none. Much of the activity in federal courts consisted of men caught in a web of often lawless tactics trying to secure minimal due process of law. As for these efforts, Ashcroft cavalierly dismissed them, saying due process in wartime could be found outside the federal court system and attacking federal judges who questioned the administration’s tactics as unpatriotic and allies of the terrorists.
In the wake of 9/11, the administration rounded up hundreds of men of Arab descent and held them virtually incommunicado for weeks and months. It fought every effort by civil liberties groups to get lawyers to these men and declared that, under the war powers, so-called ‘‘enemy combatants’’ were not entitled to the basic constitutional protections. In the end a number of these men were deported, not for terrorist activity, but for violations of immigration law; the rest were eventually released without any charges made against them and no apology from the government. Ashcroft considered the round-up justified by the circumstances; moreover, he argued that the president’s war powers allowed him to arrest and hold indefinitely not only aliens but also American citizens, and he condemned as ‘‘proterrorist wimps’’ those who objected to such a claim.
The bad behavior of American troops in treating prisoners in Afghanistan and Iraq eventually led journalists to discover that the Justice Department had advised the administration that in wartime it was not bound by international bans against torture. When called to testify before the Senate Judiciary Committee in June 2004, Ashcroft argued that these memoranda were nothing more than talking points and that the United States did not justify torture and the president had not ordered it. But he refused to state that torture was wrong and would never be used or justified by the administration.
Following the hurried passing of the USA PATRIOT Act in late 2001, civil libertarians warned that the broad powers given to the government in terms of surveillance posed a great threat to civil liberties. Ashcroft at the time denied that such violations would occur, but in fact they did. During his tenure, the FBI engaged in massive surveillance of suspected domestic terrorists, which included groups that had no ties to Al-Queda or other Muslim fundamentalist terror operations. Although the law established a special court to deal with requests for warrants for secret wiretaps, the Bush administration chose to bypass this tribunal and engage in illegal wiretaps on its own authority.
Even if there had been no 9/11, which some theorists believed could in fact justify the type of extralegal activities engaged in by the Bush administration, Ashcroft’s record in other, nonterrorist-related areas also showed a blatant disregard for civil liberties. When he was governor of and then senator from Missouri, Ashcroft had been a strong conservative, who counted as among his strongest supporters members of the so-called Christian right. An adherent of the ultraconservative Assembly of God church, he fully shared the Christian right’s opposition to abortion and their demand for greater morality in public life.
He certainly tried to impose his brand of morality while attorney general. In one of the more ludicrous policies, he insisted that a blue cloth be draped over the torso of the ‘‘Spirit of Justice’’ statue in the Justice Department’s great hall, the place where the attorney general normally holds his or her press conferences. It appears that the bare breast of the larger-than-life statue offended his sense of morality as well as those of his religious supporters.
With his defense of antipornography legislation and other attempts by Congress to regulate the Internet, Ashcroft also kept the solicitor general busy. All were struck down by the courts as violating the First Amendment.
A long time opponent of abortion, Ashcroft paid attention to some religious anti-abortion groups who equated physician-assisted suicide with termination of pregnancy. The Supreme Court in 1990 had ruled that although there was no constitutional right to physician- assisted suicide, states were free in their power to regulate medical practice to allow such an end-of-life choice. The Court even pointed to the example of Oregon, which through a referendum had adopted a model assisted-suicide law, as one option open to the states.
But Ashcroft would have none of it, and he attempted to use provisions of the federal narcotics law to nullify the Oregon plan, even going so far as to threaten criminal prosecution of doctors who prescribed lethal drugs to qualified patients. Oregon fought back, and in the federal district court as well as in the Court of Appeals for the Ninth Circuit, the judges slapped Ashcroft down, in effect saying he was an intermeddling busybody who had no power or authority under federal law to interfere. (That case went on appeal to the U.S. Supreme Court, but Ashcroft had left office when the justices granted certiorari.)
The Ashcroft Justice Department showed little interest in civil rights, and a number of lawyers left the civil rights section in protest. Ashcroft also aroused the ire of federal attorneys when he moved to restrict their discretion in prosecuting certain types of cases. Under federal law, some offenses, such as killing a federal officer, are considered capital crimes; this means that a death penalty may be sought. Federal prosecutors often determined to allow the defendant to plea bargain down to a lesser punishment in return for cooperation, such as providing the names of drug dealers higher up in the organization. Usually, the prosecutor informs the Justice Department of his or her decision to do this, and the officials in Washington usually defer to the judgment of the attorney handling the case.
But John Ashcroft wanted federal prosecutors to go for the death penalty in every possible instance, and it would seem that he did not care at all about other matters such as ensnaring gang leaders or large drug dealers. Ashcroft’s intervention in these cases, often after a judge had approved the plea bargain, brought him enormous criticism from federal attorneys and from judges as well. Upon his leaving office there was widespread anticipation that his successor, Alberto Gonzalez, would be flooded with requests to review and overturn many of Ashcroft’s decisions in this area.
At the time of the terrorist attack in September 2001, many people warned that if the United States ignored its long tradition of rule by law and protection of civil liberties, it would be no better than the enemy and that, in fact, this would mean that the terrorists had won. Interestingly, when the administration began planning what powers it could utilize, Secretary of Defense Donald Rumsfield, aware of the violations of civil liberties in previous wars, convened a panel of respected, nongovernment lawyers to advise him and the administration on what they could and could not do. They warned him against the types of orders Bush was planning to use against noncitizens before special military panels, and to assure that traditional American rights, such as trial by jury and right to counsel, were not ignored. John Ashcroft, however, intervened to make sure that these recommendations were never implemented.
MELVIN I. UROFSKY