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.
Or so his critics would have it. The reality, however, may be somewhat less sinister. In his article in the April Atlantic, the law professor Jeffrey Rosen seeks to sort fact from fiction with respect to our controversial Attorney General. Rosen spoke with Ashcroft's former and current colleagues, studied his political record, and met with him at his office in the Justice Department. He was surprised to discover that neither personally nor professionally does Ashcroft live up to his reputation as a vengeful ideologue.
Indeed, in his direct dealings with him, Rosen found Ashcroft to be affable—"endearing" even, displaying appealing humility, an oddball sense of humor, and such eccentric quirks as a habit of taking his shoes off and arranging them into unusual positions on the floor. It also became clear to Rosen that the common perception of Ashcroft as militantly committed to furthering a conservative social agenda is for the most part held over from his years in the Senate when he sought to court the Christian right in a possible bid for the presidency.
What has in fact guided Ashcroft throughout his career, Rosen argues, is not ideology but political expedience. Prior to his term in the Senate, Rosen points out, Ashcroft was the governor of Missouri, a position in which he regularly disappointed conservatives in order to curry favor with the state's Democratic majority, for example by expressing support for the National Endowment for the Arts, and compromising on a number of hot-button social issues. Moreover, upon assuming the position of Attorney General, Ashcroft did not seize the opportunity to impose his own set of moral values on the rest of the country, but instead pursued such unassailably popular objectives as safer neighborhoods and drug-enforcement legislation.
As for the much-maligned Patriot Act, which Ashcroft helped usher into existence and has since embraced as his capstone achievement, Rosen argues that it is not nearly so extreme or outrageous as many believe. It was passed, Rosen points out, in the immediate aftermath of the September 11 attacks, when national security was an especially urgent concern. And for the most part, the act consists of minor technical refinements to domestic surveillance laws already in place. (Under the Patriot Act, for example, if a suspected terrorist converses on a land line and then switches to his cell phone, it is now permissible—as has long been the case in drug investigations—for law enforcement agents to follow the conversation from one device to the other.) In fact, most of the changes encompassed in the Patriot Act, Rosen notes, were recommended years earlier by the Clinton Administration.
But Rosen also emphasizes that in at least one respect the act is seriously flawed and should be amended. Certain provisions within the act empower the government to search an individual's private records simply by claiming that such a search is in some way beneficial to the war on terror, and without having to notify the targeted individual. Government abuse in such cases, Rosen warns, while not inevitable, is a worrisome possibility.
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.