Ashcroft. In some quarters the very name is synonymous with narrow-minded religious zealotry, insidious government overreach, and the obliteration of civil liberties. After all, John Ashcroft, a man raised by his Pentecostal minister father to abjure drinking, dancing, smoking, and sex outside of marriage, and who has been quoted as saying "you can legislate morality," now holds one of this country's highest, most powerful offices with profound influence over legal and social issues. And he has used that position to enthusiastically oversee the creation of the Patriot Act—a piece of Big Brotherish legislation that empowers the government secretly to snoop on its citizens and prosecute them for the crimes thereby uncovered.
In theory, an unscrupulous Attorney General who wanted to silence his critics could certify that their medical, bank, and Internet records were relevant to a terrorist investigation.... Banks and doctors and Internet-service providers would be compelled to turn over the critics' data—but prohibited from telling the critics that their records were being searched. And if the Attorney General found evidence of low-level crimes (say, minor financial misdoing), he could threaten prosecution.Striking those provisions from the Patriot Act, Rosen argues, would be easy to do and would not significantly impair the intelligence community's ability to ferret out terrorism. But Ashcroft has little interest in making the change. This by no means indicates, Rosen emphasizes, that Ashcroft has devious plans for using the act to silence his critics; Ashcroft is convinced that "under his watch the powers granted by the act could be used only for the noble purpose of fighting evil." Rather, his reasons for resisting changes to the act are—as usual—political. "'As I recall,' he told Rosen, 'About fifty-five percent said this is being handled just about right; another twenty percent said, "Man, we're not doing enough to make us safe." The same poll suggested that only 20 percent thought the act went too far.'" To a political animal like Ashcroft, such polling data is persuasive.
We may have on our hands, then, an Attorney General who is bent not on imposing his vision of righteousness on the rest of us, but on imposing on himself what he believes the rest of us are willing to vote for.
Jeffrey Rosen is a law professor at George Washington University and the legal-affairs editor of The New Republic. His new book, The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age, was published in January.
We spoke on March 3.
Ashcroft is such a polarizing figure that what gets written and said about him often tends to be rather impassioned. By contrast, your take on him seems very measured and neutral. Did you find yourself having to suppress stronger feelings about him in order to strike that tone?
I was struck by the gap between the polarizing popular perception of him and the benign perception of him on the part of those who actually know him. A number of people I spoke to, both inside and outside of the Justice Department, have told me that he's nothing like the ogre that he's made out to be. His religious views and background have led him to be caricatured, but basically he approaches his job much more like a savvy politician than as someone with a religious agenda.
Talking to him in person I found him to be charming in an awkward way. He was very accessible and a regular guy; a jock, really. Quite likeable. If anything surprised me, I suppose it was how charmed I was by him. He's quite good at connecting with people, and at expressing an interest in people. Anyone who has come to know him talks about his odd but endearing sense of humor. It's a little bumbling; he makes jokes that don't always quite hit the mark, but you appreciate the effort. He also has a tremendous interest in sports and a quirky thoughtfulness.
The further I got into the piece and the more people I talked to, the more I became persuaded that the view of him as politically, as opposed to ideologically, motivated was correct. On all the issues the right cares most about, Ashcroft has disappointed them. Before 9/11, for example, he enforced abortion clinic access laws, and in general he's devoted himself to universally popular priorities—like safe neighborhoods and the war on drugs—that aren't all that different from what Janet Reno's were. Over and over again, his colleagues have told me that he's not some sort of zealot determined to efface American liberties, but that he reads the polls pretty closely and tends to act based on those. The fact that he cited poll numbers to me during our interview convinced me that that was likely true. He surrounds himself with former Senate aides who have spent a long time tending to his popularity. And he argues, persuasively enough, that he and the Patriot Act are broadly popular in the country as a whole.
From the vantage point of the liberal Northeast it's easy to get the impression that he's universally reviled as a narrow-minded religious zealot. But you note that he's popular with about half of Americans, and that he sees his detractors as a "small and vocal minority." Is his perception accurate?
He's the most polarizing figure in the Bush Administration, but his popularity ratings are almost identical to those of President Bush and Vice President Cheney. Those opposed to him are mostly civil libertarian Democrats—minus the ones who favor a strong response in the war on terror—and libertarian conservatives.
Your observation about the role his religious background plays in galvanizing opposition to him is I think quite accurate. I'm particularly sensitive to this myself because my wife was raised in fundamentalist schools and her mother was a member of The Assemblies of God, which is Ashcroft's church. My wife is no longer a believer herself, but she has often been struck by the degree to which secular America misunderstands and reviles fundamentalists and evangelicals, and is unable to get past the unfamiliar religious background to realize that, both politically and personally, religion is a far less meaningful guide to a person's public positions than his or her general political orientation.
My impression had always been that extremely religious people who move away from the community in which their religious views were shaped often lose some or all of their religion—especially if they go on to become highly educated. Do you (or your wife) consider it surprising that Ashcroft was able to make it all the way through Yale and the University of Chicago law school without relinquishing his strong beliefs?
It's an interesting question. It's true that there's often a negative correlation, as you say, between levels of higher education and levels of religious belief, especially as expressed in more fundamentalist denominations. But on the other hand, there are many highly educated fundamentalists, and in Ashcroft's case I imagine that the intensity of the religious education that came from his father and his grandfather, both of whom were Pentecostalist ministers, was decisive for him. This is especially apparent in his campaign autobiography, On My Honor, which was written in preparation for his 2000 run for the presidency. The book makes quite clear that his relationship with his father has been the central one in his life. He worships the man—he feels that everything good in his life has come from his father's example. It's not an unambivalent relationship, though. His father sometimes did odd things to teach him lessons and to test him. For example, when they were flying on a small plane together, his father deliberately took an unexpected nosedive just to remind him of the importance of always paying attention and never taking anything for granted. He also left the family to go on ministry for months at a time, an ordeal that Ashcroft says hardened his mettle. But overall I think the strength of his father's influence and the depth of his own belief allowed him to maintain his faith throughout his time at Yale and Chicago.
You write at one point in the piece that Ashcroft shows "a sophisticated sense of charity and understanding" when it comes to assessing other politicians. Do you consider his strong religious orientation to be an asset in certain ways in his role as Attorney General? Or is it mainly a liability?
His belief has never prevented him from operating in a straightforward and pragmatic way in any of the various political positions he's held. As State Attorney General, as governor, and as senator, he's always been sensitive to the demands of whatever constituency he's been facing, and he's proved able to moderate, or even dramatically transform, his priorities based on the situation. His record shows that he'll tack to the middle in some circumstances or to the right in other circumstances, depending on what seems to be called for. He very self-consciously went to the middle as governor because of the complexities of Missouri politics, thereby earning the enmity of social conservatives for not satisfying them. Then as senator he very self-consciously turned right in order to position himself for a presidential run that would appeal to his social conservative base. Much of the image of him as a conservative zealot comes from that period.
So he has a pragmatic effectiveness as a politician, but he also has a willingness to endure great criticism in the face of what he believes is right. Certainly the strain of self-righteousness for which he's best known may be excessive, but he feels enough confidence in the rightness of his cause that he can be unfazed by criticism, and seems even at times to welcome it as a sign of his rectitude.
In some ways I think his religion is a political asset because most Americans are religious, and because the Assemblies of God happens to be the largest growing denomination of Christians worldwide. It's provided him with a base and a moral chord. But it's a disadvantage to the degree that American religiosity tends to be less openly fundamentalist and increasingly individualistic. So a traditionalist of the Ashcroft variety is likely to polarize and unsettle as many people as he attracts.
You also suggest at one point in the article that Ashcroft is "temperamentally suited" to politics. In what sense did you mean that? Is it that he instinctively craves popularity and public approval, or that he sees politics as an opportunity to better the world through public service?
This is the question that I was never able to answer to my satisfaction. Again and again in his campaign autobiography one encounters the refrain that his father encouraged him to do great things—to leave a lasting mark and to justify himself in the most visible possible way. So, at the very least, it's clear that his father instilled in him a strong sense of ambition and purpose. And it seems that, for Ashcroft, politics was the way of fulfilling that. The ministry might have been a more natural choice, but for whatever reason, quite early on, he started running for office. There's a line somewhere in the book where he says something like, "I began to run, and I'm not even sure why." This led me to conclude that he runs because he is. It's simply what he's always done. It comes partly from his upbringing, and it's somewhat hardwired in him, but what exactly the sources are, even his friends have told me they can't say for sure.
You note that the 9/11 attacks seemed to infuse Ashcroft with a renewed sense of purpose. Is it your impression that he considers the Patriot Act to be the fruit of that sense of mission, and his crowning achievement as Attorney General?
I don't know. He certainly considers his overall response to 9/11 to be his crowning achievement, and that includes not only the Patriot Act but all of his efforts on behalf of terrorism prevention. He's worked to tear down the walls that separate intelligence gathering from ordinary law enforcement. And under him the Justice Department has brought a number of successful terrorist prosecutions. He talks about going to bed every night thinking about the safety of America and taking the job very seriously. And I think he does.
But, for better or worse, it's the Patriot Act that has become the most visible symbol of his response to 9/11. When he went on tour defending the act last summer (in response to concerns about the passage of an amendment in Congress that would repeal the act's so-called "sneak-and-peek" provisions), Ashcroft and the Patriot Act became closely associated in people's minds. He was asked to do the tour by the White House, and he became enthusiastically committed to it. The problem is, that enthusiasm has made it hard for him to engage in the kind of reasoned compromises that I think would be better for everyone. When you go stumping on behalf of something, you can hardly blame your critics for charging you with politicizing it.
Both he and President Bush have refused to accept even such modest refinements to the act as Senator Feingold's proposed Safe Act, which would resurrect the pre-Patriot Act requirement that you have to show probable cause that someone is a suspected spy or terrorist before you can conduct secret intelligence searches on him. An amendment to the act along those lines would hardly represent a dramatic weakening of our arsenal in the war on terror; the most controversial provisions of the Patriot Act—as Ashcroft himself points out—have never even been invoked. But a change like that would represent the kind of willingness to compromise that Ashcroft has proved incapable of since he began defending the act so enthusiastically. I really do think this is a case of him being inadvertently victimized by his own enthusiasm. The tour wasn't undertaken in bad faith, but the result of it is greater polarization and less of a chance for reasoned compromise.
You suggest that although the Patriot Act has some (potentially fixable) flaws, it is in most respects a sensible piece of legislation. You also point out that it was passed without controversy and with only one dissenting vote. Why—and at what point—did it metamorphose into such a lightning rod issue?
It's remarkable isn't it? Because although there was some libertarian criticism at the time it was passed, you certainly didn't have mainstream Democratic politicians like Al Gore protesting it. That's because, in the immediate wake of 9/11, politicians were responding to the public's demands for security above all. It wasn't until people calmed down a bit that sober second thoughts were possible. I wouldn't say that the whole act is sensible, but I would say that it's not especially radical. To a large degree, it consists of technical fixes of the kind that the Clinton-Gore Administration had asked for—allowing the same kind of surveillance authority for cell phones, for example, as had long been available for regular phones.
The most troubling parts of the Patriot Act are the provisions that allow for secret searches, without notice to the suspects, of any documents that the government deems relevant to the war on terror. This represents a dramatic expansion of secret search authority, which previously had only been allowable against individuals who had been identified in advance as suspected spies or terrorists. This is why Senator Feingold was upset to read reports that Patriot Act authorities have been invoked not just to combat terrorism, but to investigate lower-level crimes—immigration offences and so forth. And I was disappointed when I had the opportunity to talk to the Attorney General that he seemed unconcerned by this phenomenon. I asked him, "Why not strike a balance? Most people would be happy to support the Patriot Act if it were limited to terrorism. But if it's used to go after low-level crimes like fraud, people are afraid of mission creep, and slippery slopes, and politically vindictive prosecutions by the government." But he dismissed the criticism. He said, "What's wrong with prosecuting fraud? Lots of people spend their whole lives saving up money. I think we should have broad authority to go after fraud and money-laundering as well." That's a politician's response. It's intended to resonate with the many people who believe that if something is illegal there's no reason not to stop it by any means necessary. But the dangers of a zero-tolerance society, where there's broad authority to engage in suspicionless fishing expeditions, is one that America has experienced before—most notably in the Nixon Era, when Nixon scoured the tax returns of Vietnam protestors. The fact that we haven't seen anything like the Nixon effect since 9/11 doesn't mean we shouldn't be careful to avoid its recurrence.
Did it seem to you that there's no hope of his being persuaded to reconsider his stance and to take a look at the act again?
You know, I did hope that he might. When I said, "Why not accept the principle of the Safe Act? It's not such a tremendous compromise." He said, "I'd have to look at it very closely before making a decision. And I'd have to be convinced that it's absolutely consistent with national security."
I was disappointed to learn, just as the piece was closing, that Ashcroft had announced that President Bush would oppose the Safe Act. He had seemed like the sort of person who might be open to persuasion. He's not insensitive to those concerns. People have said that during the debates over the Patriot Act he tried to resist some of the most extreme proposals from the White House for broad unilateral authority. But I think that when push comes to shove, he does what's politically expedient.
How much of the controversy currently surrounding the act has to do with its association with Ashcroft himself? Would the Patriot Act, or something very much like it, have been introduced under a Gore Administration? And if so, would it have provoked as much controversy?
The Patriot Act would have been passed by a Gore Administration. And I imagine that it wouldn't have looked all that different. As I mentioned, many of the provisions were proposed by Clinton-Gore, and most were supported by the same law-enforcement and national-security lobby that would have been equally in power in the immediate wake of 9/11. I don't see any reason why the most controversial provisions wouldn't also have passed, because a number of Senate Democrats were rolling over, and people like Senator Daschle were criticizing objectors like Feingold for slowing down the process.
Would it have been as controversial if passed under President Gore? It would have been wildly more controversial—even more so than the current Patriot Act—among libertarians and evangelical conservatives. My heroes, Bob Barr and Dick Armey, who did so much to try to resist some of the sections of the Patriot Act, would have been even more critical of any such act if it had happened under a Gore Administration. And they might have been joined by their friends at the ACLU, which suggests that the coalition of critics wouldn't have looked all that different.
The main difference is that those Democrats who are not instinctively civil libertarians wouldn't have been able to use the Attorney General as a foil for their partisan anxieties. In that sense, it might have been a little less fractious. I don't like the politicizing of the Patriot Act by Democrats any more than I like it by Ashcroft and the Republicans. I think it's important to emphasize that both groups are responding to the same public pressures, and it's unfortunate on both sides.
You talked about how Russell Feingold thinks the flaws in the act are already being exploited by the Bush Administration and the Justice Department to investigate ordinary criminals under the widened scope of the provisions. But you suggest that Ashcroft seems genuinely convinced that the act would never be abused in that way under his watch. What's your own take on how the act has been used so far? Is Feingold being paranoid, or is Ashcroft being naive?
It's a good question and a hard question. The answer depends a lot on what you consider an abuse. If you're concerned, as Feingold is—and as I am as well—that it's dangerous for broad surveillance authority to be used for low-level crimes that have nothing to do with terrorism, then you'd say the act is being abused. But if you feel, as Ashcroft does, that any crime should be combated using whatever means necessary, then you wouldn't consider it an abuse.
As for the other kinds of abuses people are concerned about, I have to say that most of them are speculative. The nightmare scenario of vindictive prosecutions where, for example, the Attorney General might decide to retaliate against law professors who have criticized him by secretly searching their Internet records and leaking them to the press, or by threatening them with vindictive prosecution, hasn't really come to pass. There's no evidence that they intend to retaliate against critics of the government the way that President Nixon retaliated against his critics. In that sense, I'd have to say that fears about some kind of "Nixon Effect" are a bit exaggerated, and that for the most part the Patriot Act really is being used to go after geniune criminals, even if they aren't always terrorists.
But the difficulty of measuring the success or failure of the act is complicated by the difficulty of measuring prevention. How can you quantify crimes that haven't been committed, or terrorist attacks that haven't taken place? The Attorney General has testified that a number of acts have been prevented by the Patriot Act. And there have been some successful prosecutions, as in the cases against terrorist cells in Lakawanna, New York, and Portland, Oregon. But it's not clear that those prosecutions wouldn't have taken place anyway.
At one point you discuss the irony of the fact that Ashcroft idolizes Lincoln, but doesn't seem to grasp that a significant part of what made Lincoln great was his legal acuity and the way he was able to bring that to bear on government. Why do you think he fails to see that—and to see the importance of focusing on the finer points of the law in general?
When I apologized for the fact that a wonderful book I had brought him by Daniel Farber, about Lincoln and the Constitution, was a bit technical, he joked to me, "I'm not a very good technical lawyer." I think he was being modest there. People who have worked with him have said he's certainly no fool, and that he's quite willing to discuss and debate technical points of the law in a range of areas. But I do think what distinguishes him from Lincoln is that Lincoln, in his heart, was a constitutionalist. He began with the technical arguments, and then made decisions about how to act. The justification shaped the actions, rather than the other way around. When you read the precision of Lincoln's justifications for his decisions, whether it was to suspend habeas corpus, or to extend that suspension to an area of insurrection, or even to expand it beyond an area of insurrection, the inexorable logic of his syllogisms is thrilling to read; you have a sense of the restraining and uniting power of law. Lincoln is our greatest President and our greatest constitutionalist not because he was merely legalistic, but because in his mind the legalisms both liberated and constrained the way he could respond to the greatest crisis in American history. Ashcroft simply isn't engaged at that level, as his rather politically minded defense of the Patriot Act shows. Before I talked to him, his aides had told me that he'd enjoy discussing the technical details of the differences between grand jury subpoenas and foreign intelligence warrants. But he really didn't. He simply resorted to a politician's answer about fraud being a serious crime. That struck me as significant. It convinced me of the importance of an Attorney General who's devoted primarily to the restraining force of law itself—who believes in respecting the law above all.
I was wondering what Ashcroft's relationship with Bush is like. Both of them seem to be very religious men who view the world in cut-and-dried terms of good versus evil. Does that similarity in outlook affect their relationship at all?
My sense is that Ashcroft admires Bush tremendously, and defers to him. Even when they were both political rivals for the presidency, Ashcroft was quite deferential to him. He seems, from all accounts, to revere the President's political skills, and also to be determined to be a good soldier in every way possible. So there's no evidence of anything but admiration on that score. Bush is said to treat Ashcroft respectfully in meetings, and certainly appreciates his loyalty. I don't have a strong sense of whether they're terribly personally close. I don't think they are. They don't socialize as far as I can gather. Now, this is complicated by the fact that Ashcroft's Justice Department and the White House Counsel's Office have been at each other's throats for quite some time. There's a strong rivalry between Ashcroft and Alberto Gonzales. Gonzales's aides have publicly criticized Ashcroft as a grandstander. They weren't at all impressed by his attempt to steal the spotlight after the arrest of Jose Padilla, the suspected dirty-bomber. They felt that Ashcroft was out for himself, and was too addicted to the spotlight. Based on their criticisms, Ashcroft did rein himself in and begin to clear his public appearances with the White House, and to generally try to be disciplined and a good soldier. I don't think this has directly affected his relationship with Bush, which seems to remain good. But it's been a source of structural tension. Now, all this isn't to say that any degree of appreciation the President has will translate into a second term for Ashcroft.
If Bush were elected for a second term and you were in a position to advise him, would you recommend that he keep Ashcroft, or replace him?
You know, if I were Karl Rove—daunting thought—I think I might argue for keeping Ashcroft. He's a loyal soldier. He's generally popular. He's a useful lightning rod who detracts the criticism of the small libertarian minority that Bush is happy to inflame, and he keeps the social conservatives happy. As Ashcroft aides note, if there's one effective domestic-policy achievement in Bush's first term, it's the fact that we haven't had a second terrorist attack. And people are broadly happy with the direction of the war on terror. From a political point of view he's also been very effective in shoring up his popularity.
But speaking for myself, I would argue that there's something unnecessary and unfortunate about the polarization of the war on terror. I think it's not a great idea to have a career politician as Attorney General. A less politically inclined approach to the Justice Department might have led to sensible, moderate compromises—compromises that would not, in any way, threaten national security, but would protect some of the constitutional values that both Republicans and Democrats revere. But of course if I were the one making those arguments, I wouldn't expect the President to listen.