John Ashcroft’s Permanent Campaign

In the liberal imagination Attorney General John Ashcroft is an authoritarian and a religious zealot, bent on sacrificing liberty to achieve the illusion of safety from terror. But those who see Ashcroft as a zealot are missing Ashcroft the canny politician—a man beholden to both his polls and his God
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Interviews: "The Softer Side of Ashcroft"
(March 12, 2004)
Jeffrey Rosen argues that it is not social conservatism but a quest for popular approval that drives John Ashcroft's public life.

After three years in office John Ashcroft, the Attorney General of the United States, has provoked an impressively bipartisan chorus of invective. From the civil-libertarian left to the libertarian right, his critics agree that he has done more to destroy American liberties than any other Attorney General since A. Mitchell Palmer, who presided over the Red scares of 1919 and 1920. No Democratic presidential candidate has missed the chance to denounce him in the most censorious terms, from Howard Dean ("John Ashcroft is a descendant of Joseph McCarthy") to John Kerry (a crowd "of every creed, every color, every belief, every religion" is "John Ashcroft's worst nightmare"). In November, Al Gore, standing before a cheering crowd of 3,000 in Washington's Constitution Hall, declared that the USA Patriot Act—drafted under the auspices of the Justice Department and passed in the aftermath of 9/11 to strengthen America's defenses against terrorist attacks—should be repealed and that the Bush Administration's treatment of aliens after 9/11 "was little more than a cheap and cruel political stunt by John Ashcroft." Intellectuals have been no less scathing in their denunciations. Gore Vidal declared recently that "the Founding Fathers ... would have hanged anybody who tried to get [the Patriot Act] through the Constitutional Convention," adding that Ashcroft was part of an "alien army." "Many conservatives are sorry they ever supported former Missouri Gov. John Ashcroft's appointment as attorney general," David Keene, the head of the American Conservative Union, who has become one of Ashcroft's strong critics, wrote in The Hill in July of 2002. "They are upset at him for eviscerating the Constitution since Sept. 11 by sending the PATRIOT Act and other anti-terrorist legislation to the Hill." Grover Norquist, the president of the libertarian Americans for Tax Reform, told The New York Times that Ashcroft's efforts to expand government surveillance have upset even evangelical Christians, once viewed as his staunchest supporters.

Ashcroft remains popular with about half the country; his job-approval ratings have been similar to those for President George Bush and Vice President Dick Cheney. (Of all Administration officials, only Colin Powell, who reached 74 percent in one poll, scores significantly higher.) But in the eyes of his critics, whom Ashcroft dismisses as a small and vocal minority, he is an American Savonarola—a religious zealot determined to destroy the constitutional structure by imposing his authoritarian beliefs on an unwilling nation. He has become the iconic embodiment of American fears about the sacrifice of liberty for the illusion of security in an age of terror.

But the accepted criticisms of Ashcroft are largely wrong. Far from being a religiously motivated partisan in the culture wars, Ashcroft is in his bones a politician, a fiercely ambitious former senator who has always been willing to discipline his conservative instincts in pursuit of electoral success. And far from pandering to those in his social-conservative base, Ashcroft has largely disappointed them as Attorney General. He has avoided taking positions on culture-war issues that conservatives care about, such as abortion and school prayer, while supporting the expansion of federal power in ways that they fear may be abused by Democratic Presidents in the future.

Advised by an inner circle consisting of former Senate aides who view their job as bolstering their boss's popularity rather than making decisions based on the law alone, Ashcroft has devoted almost all of his energy since 9/11 to marketing himself as tough on terror, a position that inspires opposition only among libertarian minorities. Indeed, by conflating his legal role as a prosecutor with his political role as chief spokesman for the war on terror, he has responded to 9/11 in a way that is neither liberal nor conservative but, instead, is guided almost entirely by public opinion.

One day late last year I checked in at the security desk downstairs at the Justice Department, which displayed a warning that the national terrorist threat index for the day was set at Yellow, or Elevated. After passing through an x-ray inspection chamber installed after 9/11 (I entered through one door, and the other slid open only after my body had been scanned), I was led up to the Attorney General's ornate fifth-floor suite. In the reception room I found a copy of An American Insurrection, William Doyle's account of James Meredith's registration at the University of Mississippi, in 1962, which triggered the most dramatic conflict between federal and state authorities since the Civil War. (The author had inscribed the book to Ashcroft, who has long considered himself a fervent opponent of racial discrimination.)

Ushered into Ashcroft's private office, I found him in shirtsleeves with David Israelite, his deputy chief of staff, and Mark Corallo, the department's young new director of public affairs. They were bantering about sports. "I'm an old jock," Ashcroft, who was a football star in high school, told me later. "I'm old—you may not believe I'm a jock, but I'm an old jock." In a cabinet across from the couch were two autographed footballs: one signed by the University of Missouri Tigers, and the other from the 2000 Super Bowl, signed by the victorious St. Louis Rams. In an effort to put me at ease, Ashcroft asked a friendly question about the World Series. I am, unfortunately, one of the few men in America unable to engage in basic sports chat, but I managed to blurt out something about an article I had recently read in The New York Times about how Mayor Michael Bloomberg had offended his constituents by wearing a Yankees sweater and red socks. "Doesn't he know the first rule of being a politician?" Ashcroft said with a boisterous laugh. "You have to pander to the electorate!" I then pulled out my tape recorder and gestured toward him to ask if I could turn it on. "No, thanks, I don't smoke," Ashcroft said, laughing again. His attempts at humor were awkward and endearing.

When we met, Ashcroft had recently returned from an unusual thirty-two-city tour devoted to defending the USA Patriot Act. Any evaluation of his effectiveness as Attorney General must take place in the context of his association with this legislation, which, more than anything else Ashcroft has said or done, has aroused the ire of civil libertarians. The problem, of course, is that it's difficult for most Americans to have an informed opinion about whether the Patriot Act goes too far in its expansion of domestic surveillance powers. The act is so technical and legally complicated that only policy junkies and law professors have the time to master it.

I suppose I qualify as a junkie of sorts, having written about different aspects of the act for the past two years. But it wasn't until I taught it in a law-school seminar devoted to the balance between liberty and security that I felt knowledgeable enough about its technical details to form a relatively informed opinion. Based on that seminar, I've concluded that some criticism of the act is overblown. "Roving wiretaps," for example, which allow investigators to tap every electronic device a suspect uses, have long been available for drug and racketeering investigations; the Patriot Act corrects an inadvertent gap in the law that denied these wiretaps for investigations of suspected terrorists. (Orin Kerr, a scholar of cyberspace and a law professor at George Washington University, has argued that parts of the Patriot Act actually expand the protection of privacy—by applying to previously unregulated Internet surveillance the same standards that have been applied to searches involving the telephone and regular mail.)

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Jeffrey Rosen is a professor of law at George Washington University.

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