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
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Department and passed in the aftermath of 9/11 to strengthen America's defenses against terrorist attacks—should be repealed and that the Bush Administration's treatment of aliens after 9/11 "was little more than a cheap and cruel political stunt by John Ashcroft."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.)
Other parts of the act are more troubling. The most controversial provisions vastly expand the government's authority to search private records and other personal data without notifying a suspect. Before passage of the act the government could search certain personal records—including hotel, airline, and car-rental records—if it could provide evidence to suggest that the records were those of a spy or terrorist. The Patriot Act extended the government's reach to include all tangible information, such as bookstore receipts and library records; the government need not tell the targets their records are being searched, and the record keepers are not allowed to. Worse, under the act the government no longer need certify in advance that its target is a suspected spy or terrorist. Now government agents can simply assert that the records they seek are "relevant" to an ongoing terrorism investigation. In theory, an unscrupulous Attorney General who wanted to intimidate his opponents could certify that their medical, bank, and Internet records were relevant to a terrorist investigation—just as Richard Nixon retaliated against Vietnam War critics by scouring their tax returns. 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.
This is the essence of the case offered against the Patriot Act by its most thoughtful opponents. As the lone senator to vote against the act two years ago, Russell Feingold, a Wisconsin Democrat, warned that it could be used to prosecute low-level crimes that had nothing to do with terrorism. Today Feingold believes that his fears have been vindicated. "I'm confident that the Department of Justice and the Administration are going too far," he told me not long ago. "A compelling case in The New York Times laid out the fact that the USA Patriot Act is being used in a wide number of regular criminal cases ... and to me that's an abuse." To protect citizens from potential abuses, Feingold and other Democrats have joined an array of Republican colleagues to introduce the Security and Freedom Ensured Act of 2003. The SAFE Act would resurrect the requirement that evidence of espionage or terrorism be provided in advance of secret searches. Ashcroft's fall tour was undertaken in direct response to Republican critics, such as Butch Otter, a congressman from Idaho, who persuaded the House in July to vote to repeal the so-called sneak-and-peek provisions of the Patriot Act, which expanded the use of secret searches. Ashcroft worried that critics of the act were defining the debate about civil liberties in ways that could damage the Bush Administration. Feingold said to me, "I believe Ashcroft was told by the White House that the Patriot Act was causing significant political problems for the President on his conservative, right flank. I think they told Ashcroft, 'You have credibility in the country; you have to sell this thing.'"
I asked Ashcroft how he thought the act had been misunderstood.
"These authorities have been available for a long time," he replied. "The roving wiretaps—you're a law professor, you know that doesn't mean the government just roams around and taps wires, which may be the image that's created. It just says that if a guy moves from his cell phone to his office phone to his vacation home and goes across area-code lines, we can follow that. We've had that since 1986 in drug and organized-crime cases; now it's available for following terrorists. It's not a big step, but it's important; and people may have thought that the act went further than it did."
I replied that Ashcroft's critics in Congress objected not to roving wiretaps alone but to the fact that government agents could now secretly obtain records without providing any evidence that the targets were terrorists. Why, I asked, couldn't Ashcroft accept the principle of the SAFE Act—that individuals should be identified as particularly suspicious before their data could be secretly searched? "Well, I'd have to see the bill in its totality," he replied. (In late January, Ashcroft told reporters that President Bush would veto the SAFE Act if it were passed.) "There are people who think we had too much protection before September 11. The ACLU thought that delayed notification of a search was wrong before September 11. They think it's wrong now. I think we needed to strengthen our hand in the area of legal stuff, and before I think about any retreat, I'd have to be very, very convinced that there are some abuses to be safeguarded against."
He leaned back in his chair, took off his shoes, and balanced them against each other like a teepee on the floor—an odd habit that former Ashcroft aides I had interviewed had told me to expect. "There's a presumption out here—and pardon me, I hope it's not one you embrace, because I'm gonna call it a stupid presumption—that any time you pass a law regulating conduct, you diminish freedom. I would ask people to think about the state of nature with no laws at all ... and you decide to pass a law that says you cannot commit murder, you can't kill somebody. Are you freer after the law was passed or before the law was passed?" His voice deepened and took on the ominous, official tone that he uses on television. "Now, from my perspective—we're talking about liberty and freedom—you're freer after that law is passed." He relaxed and reverted to his normal voice. "I throw that out. I wish someone would write that. It seems so simple that it could be written in crayon—it's so simple that even the Attorney General can understand it."
This seemed like the moment to press Feingold's objection. If the Patriot Act were used just to prosecute terrorists and murderers, I suggested, not even many libertarians would object. But when broad new surveillance powers were used increasingly to prosecute lower-level crimes that had nothing to do with terrorism—such as fraud, for example—weren't the critics right that it was vulnerable to abuse?
"That's certainly a part of the debate that's okay to have," he replied evenly. "But what is it about fraud and low-level crimes that's so attractive that they want to protect it? For someone who works his whole life to save enough money to be independent and to be free in their retirement or golden years—to think that fraud is somehow inconsequential to them? I think that life is a matter of striking balances. What happens to freedom if we can't interdict fraud?"
Ashcroft knocked over his shoe teepee and rubbed his left shoe with his right foot. "It's possible to infringe freedom: if you wanted to stop murder and didn't let anybody leave their house, that would be bad." He looked pensive. "Frankly, I've spent a lot of my life very skeptical about passing more laws."
Warming to his subject, Ashcroft looked at me earnestly. "I think of it this way. Basketball is a better analogy than baseball. You come home from a basketball game and all you're talking about is the referees, you probably didn't see a very good game. But if you come home from the game and you're talking about the players, and they reach their maximum potential because the governance of the game provided for people to be able to develop and exhibit and perform their skills in a fair environment, that's a good deal. That's what government's about."
Although aides had told me that Ashcroft would enjoy talking about the technical differences between foreign-intelligence wiretaps and grand-jury subpoenas, he seemed more interested in citing poll numbers from August that had been posted on the Justice Department's Web site. ("As I recall," he observed, "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 21 percent thought the act went too far. These are the liberal and conservative libertarians that Ashcroft dismisses as a small and vocal minority.) Ashcroft seemed genuinely convinced that the critics of the act were raising entirely hypothetical dangers, and that under his watch the powers granted by the act could be used only for the noble purpose of fighting evil. "Terror is still extremely active—it's just not active to the point of combustibility in the United States," he said. "Are we going to walk out of the game with a clean jersey? Maybe not, but we're going to win the game."
As he spoke, I wondered why he was responding to criticism by offering platitudes about sports. But later I realized that he was sharing one of what he calls, in his brief campaign autobiography, On My Honor, the "core beliefs that shape my life." Published in 1998, as Ashcroft contemplated a presidential run in 2000, the book offers a series of inspirational lessons that he says he learned from his father, J. Robert Ashcroft, an Assemblies of God minister. Using basketball as a metaphor, he emphasizes what people can achieve by approaching life in strategic terms. "In what I call the 'basketball approach to life' you learn to spread the defense, find the open spaces, and create a lane to the basket," Ashcroft writes. "When you see all your options, when you're ready to move instantly in response to the changing circumstances, then you're on your way to the winner's circle."
The most striking thing about Ashcroft's career is how often it has been guided by the basketball approach—that is, how often his politics have been strategic rather than inflexibly ideological. He adapts his political positions at any particular moment to the political realities that constrain him. He's no Elmer Gantry, however, piously brandishing religious beliefs—or political principles—that he hypocritically betrays in practice. Rather, Ashcroft attempts in subtle, complicated ways to balance his political self-interest with a deeply rooted moralism; he views himself as an instrument of some unchanging higher purpose.
This, too, seems to have come from his father, who instilled in him a deep belief that God had a plan for him as for every other individual—and that no matter how difficult the obstacles life presented, he would always be judged by his success in living up to eternal rather than temporal standards. "My father had programmed me to aspire to noble things, even if they were not fully realistic," he writes in On My Honor.
Ashcroft has carried this lesson into politics, viewing himself as a principled public servant who is willing to absorb punishing criticism once he has chosen a course he believes is right. As he puts it in On My Honor,
In matters of faith, my father ... taught the importance of delayed gratification. I heard him preach many profound truths of Scripture, but few affected me more than his razor-sharp focus on eternity. One verse always intrigued me: "Blessed are you when they revile and persecute you, and say all kinds of evil against you falsely for My sake. Rejoice and be exceedingly glad, for great is your reward in heaven."
Ashcroft took to heart his father's constant lessons about the importance of delayed gratification—"putting something off so that you can experience something even better in the future." He remained a virgin until marriage so that he could "more fully enter into the deeper love of the marital union." In college and law school he didn't shrink from taunts about his faith. He didn't dance, drink, or smoke; the only weaknesses he confesses to indulging were for ice cream and chocolates. And his father—who loved positive thinkers such as Dale Carnegie and Norman Vincent Peale—urged him from an early age not to passively accept whatever God threw in his path but to do everything possible to fulfill God's plan by working constantly to ensure his success.
Given his upbringing, Ashcroft might have been expected to follow his father (and his grandfather) into the ministry. But after graduating from Yale and the University of Chicago Law School and spending five years as a teacher at Southwest Missouri State University, he found himself temperamentally drawn to politics, and he began what turned out to be a more or less permanent campaign. "Looking back, I'm not sure why I kept running," Ashcroft writes, "except that my father had instilled in me a particular set of values, which I believed needed to be reinforced by government leaders."
Ashcroft entered politics in 1972, when, at the age of thirty, he decided to run in the Republican primary for an open congressional seat. He lost narrowly, winning about 45 percent of the vote. As he tells the story in his book, he was ready to go back to teaching after his defeat, but "God had other plans": out of the blue Kit Bond, the newly elected Republican governor of Missouri, called to offer him the job of state auditor, which Bond himself had recently vacated. "Here I was being handed the fourth-ranking job in the state," Ashcroft writes, "without even asking for it! From one perspective, it just fell into my hands. But there's another side. When you pursue noble things, sometimes noble things pursue you."
In fact the appointment was less of a bolt from the blue than Ashcroft suggests. As the St. Louis Post-Dispatch related in 1999, Ashcroft let it be known after his defeat that he was thinking about leaving the party and running against his victorious primary opponent as an independent. That threat may have induced Bond to offer him the state auditor's job, a political plum. However the auditor's job came about, Ashcroft's first defeat led to his "theory about elections," which "is mirrored in what I believe about all of life: for every crucifixion, a resurrection is waiting to follow." He has detected this pattern throughout his career. He writes,
[E]very time I have ever run for something and lost, some type of "resurrection" has followed. When I lost my race for Congress, I was appointed state auditor. After I lost my race to stay in as state auditor, I ended up running for, and winning, the position of [state] attorney general. In the '90s, my failure to be elected chairman of the Republican National Committee led to my successful race for the United States Senate ... God can call us to bigger jobs.
Despite his vision of himself as an instrument of divine purpose, however, Ashcroft's career in state politics did not seem to be driven by the tenets of his Assemblies of God faith, which is often associated with deeply conservative views. This was especially true when he served as governor of Missouri, from 1985 to 1993; as the St. Louis Post-Dispatch has noted, conservative Republicans complained that he compromised too often in an effort to accommodate the Democrats who held the majority in the state legislature. He praised the National Endowment for the Arts (which later, as a senator, he attempted to dismantle), and he tried—four times—to raise the state tax on cigarettes (a type of tax that, once he was in Washington, he attacked as a burden on the working class). These positions were informed less by his religious beliefs than by the expert advice of political consultants, whom Ashcroft hired to help him market his message as effectively as possible. After his first gubernatorial election, Karl Rove, now known as an adviser to President Bush, advised his Missouri campaigns. And when he first ran for the Senate, he was joined by David Ayres, a consultant who became and remains his chief of staff, and who has dedicated himself to the political health of John Ashcroft.
When Ashcroft was elected to the Senate, in 1994, he engineered a political shift. After he decided to run for President in 2000, he decided that he would seek a niche as the candidate of the Christian right, and he did everything possible to cater to that constituency. He sponsored constitutional amendments to ban flag burning and abortion and to resurrect school prayer. "I don't apologize for being unyielding when I speak on behalf of a balanced budget or in opposition to big government or in favor of protecting the lives of unborn children," he wrote in his campaign autobiography, reaching out to libertarians as well as social conservatives.
In his brief presidential run Ashcroft attempted to cash in the capital he had built up with social conservatives over the previous several years. He tried to distinguish himself in a crowded field by being one of the first and most vociferous voices to call for President Bill Clinton's resignation. His stump speech featured a sonogram of his grandchild, which he held up while denouncing abortion. He excoriated gambling and homosexuality as sins, and accepted a $10,000 donation from Pat Robertson and his wife. Initially his efforts paid off: he came in first in a straw poll of sixty-five national and state Christian Coalition leaders, and beat George W. Bush in a poll of South Carolina Republicans.
But as the Clinton impeachment effort fizzled, so did Ashcroft's campaign. After Republicans were punished for their impeachment zeal in the 1998 midterm elections, and Ashcroft faced the prospect of losing his Senate seat as well as the presidential primaries, he set out to moderate his image by tacking to the center. He continued talking about abortion but also began to deliver anodyne speeches about cutting taxes, improving schools, and fighting crime. Ashcroft's political advisers were candid about their strategy.
In the end journalists found these bland attempts to reinvent himself no more convincing than the New Nixon had been in the late 1960s, and Ashcroft's run to the center failed. After dropping out of the presidential race, he lost his Senate seat to Mel Carnahan, who had been killed in a plane crash three weeks before the election. (If not for this tragedy, Ashcroft might well have won: he was in a statistical tie with Carnahan at the time of the crash.) But this crucifixion, as he might have called it, was soon followed by yet another resurrection, when President Bush nominated Ashcroft as Attorney General of the United States.
Ashcroft wasn't the President's first choice: Bush had preferred two candidates to whom he was much closer—Governor Frank Keating, of Oklahoma, and Governor Marc Racicot, of Montana. But Keating failed to make it through the vetting process after it emerged that he had accepted a total of $250,000 in gifts from the financier Jack Dreyfus, whom he then helped to promote a mood-altering drug for prisoners. Then, when religious conservatives learned that Bush was on the verge of nominating Racicot, they told Karl Rove that Racicot was too moderate. When Racicot declined the job, citing family financial pressures, the conservatives bragged that they had forced him out. They lobbied for Ashcroft, who his old adviser Rove assured the President would be a team player. Supported by moderate senators such as Jim Jeffords and Arlen Specter, and praised for his gracious concession to Mel Carnahan's widow, Ashcroft told Bush he would be easily confirmed.
He wasn't. Democrats—still bitter that the Supreme Court, in Bush v. Gore, had awarded the 2000 presidential election to the Republicans—were spoiling for a confirmation fight, and Ashcroft proved to be the most convenient symbol of the social-conservative world view that inspires such intense fear and antipathy in the Democratic base. An army of interest groups swung into action. "Ashcroft's confirmation hearings were Ralph Neas's dress rehearsal for [blocking] a Supreme Court nomination," says Adam Ciongoli, Ashcroft's former counselor at the Justice Department, referring to the president of People for the American Way, a liberal advocacy group. "Neas convinced America that the Attorney General has an important role in all these social issues, but once we got there, it became very clear to everyone that in fact ... the Attorney General is really about law enforcement."
On re-reading the transcripts of the confirmation hearings, it's striking how Neas and other Ashcroft opponents (like everyone else) failed to predict the issue that would end up being the most controversial of Ashcroft's tenure as Attorney General: his embrace of sweeping federal power and the national-security state. Treating Ashcroft as if he were a prospective Supreme Court nominee, Democratic senators grilled him repeatedly about whether he would enforce the laws on abortion and school prayer as laid down by the courts, or attempt to overturn them in light of his religious views. Ashcroft specifically assured Massachusetts Senator Ted Kennedy that he would enforce abortion laws, and California Senator Dianne Feinstein that he would enforce gun-control laws. Even so, he was confirmed by a vote of only 52-48. No Bush nominee had a smaller margin of victory.
In his first months as Attorney General, Ashcroft did more or less what he had promised to do during the confirmation hearings. In fact, his policies were hard to distinguish from those of his Democratic predecessor, Janet Reno. He established three priorities, all of them popular: enforcing civil-rights laws against racial discrimination and racial profiling; cracking down on gun violence by spending more than $200 million a year on a project called Safe Neighborhoods; and renewing the war on drugs. Ashcroft did inspire a brief controversy when he wrote a letter to the National Rifle Association declaring that "the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms." But he continued to enforce federal gun laws—and he retreated from the positions laid out in his letter when the White House got skittish. At another point Ashcroft provoked objections that he had betrayed his states'-rights principles when he embraced controversial interpretations of federal law that restricted the states' ability to experiment with assisted suicide and medical marijuana. But these tentative forays into the culture wars were notable exceptions to his general moderation. In the wake of his divisive confirmation hearings, the White House had made clear that it didn't want any culture-war explosions. So to prove he was a good soldier, Ashcroft played more to the middle than to the right.
Indeed, his letter to the NRA aside, Ashcroft avoided all the hot-button cultural issues that had preoccupied senators and interest groups during his confirmation hearings. The Justice Department later angered social conservatives and anti-abortion activists by defending the constitutionality of the Freedom of Access to Clinics Entrances Act of 1994, which a lower-court judge had struck down as exceeding Congress's power. Ashcroft stayed out of the debates provoked when the Bush White House opened its office of faith-based initiatives—even though faith-based initiatives had been a signature issue for him in the Senate. He played only a small role in selections for the federal judiciary (another of his principal interests in the Senate), which under Bush have been controlled mainly by the White House counsel's office, anyway. Social conservatives were increasingly disappointed; they believed Ashcroft's aides were muzzling his true self, his inner conservative.
The most striking thing about Ashcroft's first year as Attorney General wasn't his substantive positions but the way he organized his office. He approached the job like the former senator he was, with a tightly knit inner circle of deputies who had tended to his political interests in the Senate and were always positioning him for maximum political advantage. Ashcroft's chief of staff, David Ayres, and his deputy chief of staff, David Israelite ("the Davids," as they are known within the Justice Department), soon gained a reputation for looking at legal and policy decisions as an opportunity to shore up Ashcroft's popularity with different constituencies and to accrue political capital.
As Ayres began issuing important orders for the Justice Department, career prosecutors and department lawyers felt cut off from Ashcroft and his inner circle. Ashcroft met with assistant attorneys general far less frequently than had previous Republican attorneys general, such as Ed Meese, under Ronald Reagan, and William Barr, under the first President Bush. E-mails circulated in which Ashcroft made clear that he didn't want to see assistants he didn't know at meetings. "The career people feel resentful, and pushed out of things they've been doing in lots of administrations," says a former senior Justice Department official.
Before the terror attacks of 2001 there was an air of aimlessness about the Ashcroft Justice Department: he seemed to be positioning himself for something, but even those relatively close to him weren't sure what. After 9/11, however, Ashcroft experienced another resurrection.
"I think for him things changed overnight," says Israelite. "I was with him on the plane when we got the news, and he said, 'This has changed the world forever.'" In Ashcroft's response to 9/11 his political and religious urges fused: being as tough as possible on terrorism was consistent with his Manichaean view of the world. "I think he sees this as a civilizational clash," a former aide says. "He sees these people as enemies of everything he believes in, as a sort of religiously based threat. It really touched him in a more profound way than a more secular person might have experienced."
According to Israelite, Ashcroft immediately focused "like a laser" on preventing, rather than prosecuting, terrorism. Success in this goal is by definition hard to measure, since attacks that are prevented may never be revealed. But even if his role in preventing attacks is impossible to prove, the public seems to give Ashcroft some credit for the fact that no attack has occurred on American soil since 9/11.
And he has not been shy about publicizing his successes as much as possible. On several occasions this tendency has gotten Ashcroft into trouble. In June of 2002, for example, when he was in Moscow to meet with Russian officials, he made the mistake of rushing in front of television cameras on a live satellite feed and intoning in his scariest voice, "We have disrupted an unfolding plot to attack the United States by exploding a radioactive dirty bomb." He identified the culprit as Jose Padilla, who was declared an enemy combatant and was sent to a military prison. In fact there was no evidence that Padilla had gone beyond thinking about a bomb; no bomb was ever found, and no clear evidence emerged to connect him with an active al-Qaeda plot. Ashcroft also exaggerated the threat that a "dirty bomb" would pose, and failed to explain that it wasn't a nuclear weapon. The President's aides were furious—Padilla's arrest was supposed to have been made public in Washington, by senior Justice and Defense Department officials—and also distressed that Ashcroft's hyperbolic language had prevented an expected rally in the tumbling stock market. "After 16 months in office," complained the conservative columnist Robert Novak, who is close to the White House, "Ashcroft seeks the spotlight as if he were still a senator contemplating a presidential run." The White House made clear to Ashcroft and his advisers that the Attorney General had to curtail his pursuit of the spotlight and have his important appearances okayed in advance.
Ashcroft's public statements have also rankled at least one of the federal judges responsible for deciding his terrorism cases: Gerald E. Rosen, of the U.S. District Court in Michigan, who presided over the trial of four men in Detroit accused by the government of conspiring to commit terrorism in Jordan and Turkey. Charged with planning "specific violent attacks," two of the men were convicted in June 2003 of conspiracy to commit document fraud and conspiracy to provide material support to terrorists, and a third was convicted on the fraud charge alone. At the request of the Justice Department and the defendants, Judge Rosen imposed a gag order in October of 2001. A week later Ashcroft announced at a news conference that "three Michigan men suspected of having knowledge of the September 11, 2001, attacks ... were arrested on charges of possessing false documents." (The fourth suspect was arrested a year later, in North Carolina.) At the time, the government had offered no evidence that the defendants had any advance knowledge of 9/11. When Rosen expressed concern that Ashcroft might have violated the gag order, Ashcroft formally withdrew the remarks, and one of his aides apologized to the judge. In August of 2002, however, Fox News reported that the government was planning to charge the four Detroit men with terrorism, and quoted from the indictment the day before the grand jury publicly issued it. Rosen, furious that the indictment had been leaked, summoned Larry Thompson, then Ashcroft's deputy attorney general, and warned him against further violations of the gag order. But in April of 2003 Ashcroft did it again: during a Washington news conference he praised the government's chief witness in the Detroit case, whose testimony, he said, was of "substantial value" and a "critical tool for our war on terrorism." In response Judge Rosen angrily criticized Ashcroft. "I was concerned and distressed to wake up this morning to hear the Attorney General discuss the credibility of a witness in this trial," he said in court. "I believe the Attorney General is subject to the orders of this court." The defendants' lawyers moved for a mistrial and asked Rosen to hold Ashcroft in contempt of court, which would have made him only the second Attorney General in history to be cited for criminal contempt. Rosen declined to file contempt charges, but in December he publicly admonished Ashcroft for confusing his roles as prosecutor and public spokesman for the war on terror.
But if it's fair to criticize Ashcroft for grandstanding in his desire to be tough on terror, he has also preserved some of the libertarian suspicion of federal power that he displayed as a senator. "His aggressiveness in pursuing the 9/11 investigation is very significantly tempered by a fairly clear libertarian impulse," says Viet Dinh, a former assistant attorney general who was in charge of coordinating the drafting of the Patriot Act. "When we started working on the [act], there were proposals coming in by the truckload, and he said clearly and personally, 'This is not Christmas in September.'" According to former aides, the White House counsel's office originally proposed a broad delegation of power to the Defense Department, with few checks. Ashcroft insisted that civilian powers be transferred to the Pentagon only with the concurrence of the Attorney General.
It's hardly obvious, furthermore, that the Patriot Act that emerged from Ashcroft's Justice Department is significantly different from what would have emerged under a less polarizing Republican Attorney General—such as the respected Larry Thompson, for example. "The liberals are attacking the policy views of Larry Thompson, Michael Chertoff, and Bob Mueller, not Ashcroft," says a former Justice Department official, referring to Ashcroft's former chief deputies and the head of the FBI. "These are not religious culture warriors. They are lifelong prosecutors, people who use criminal law to attack real problems. If Larry Thompson were Attorney General, he wouldn't have such a public face, he would receive more respect and confidence from the legal community. But in terms of the war on terror, I don't think the substance would be that different." It can be argued, in fact, that even if Al Gore were President, the post-9/11 terrorism bill championed by his Attorney General would have looked very much like the Patriot Act—which includes several anti-terrorism provisions sought by the Clinton Administration after the Oklahoma City bombing of 1995, and resisted by libertarians in Congress.
If Ashcroft's substantive positions aren't radically out of the law-enforcement mainstream, why has he become such a polarizing figure? I asked him this question directly, noting that John Kerry, on the campaign trail, had effectively called him a racist. How did he feel? Ashcroft winced. "I feel badly," he said. "But you know, I would rather be called a racist than for me to call someone else a racist. I would rather have my wallet stolen than to steal someone else's wallet ... That to me is a very serious charge, because it repudiates everything I believe in. I don't believe we're here by accident. I'm a religious person. I believe we are created by God, and I don't believe that God created any inferior people." Leaning forward in his chair, he said of his harshest critics, "Frankly, it's a sad, sad thing, and I feel worse for them than I do for myself."
I asked Ashcroft if he thought that prejudice against fundamentalist Christians might explain some of the more outrageous caricatures of him. My wife, I mentioned, was raised as a fundamentalist Christian; her biological mother was a member of Ashcroft's church, the Assemblies of God, and she attended fundamentalist schools. Although no longer a believer, my wife has often been struck by the many ways in which secular culture misunderstands fundamentalists. Pentecostal congregations now represent a quarter of all Christians worldwide, and the Assemblies of God is one of the largest Pentecostal denominations in the United States. Nevertheless, its adherents are widely ridiculed in America as alien and odd. Fundamentalist Christians, my wife believes, are one of the few religious groups that many Americans feel free to hold in open contempt. Did he agree?
"I don't know," he said cautiously. He seemed uncomfortable at the idea of casting himself as the victim of anti-fundamentalist prejudice, though the suggestion clearly registered. (At the end of my interview with him, he looked at me earnestly and clapped me on the shoulder. "Tell your wife thank you for helping someone like you understand a guy like me.") He returned the discussion to Kerry's remark. "Let's not forget the time and place. I'm out of politics now, but I'm in a political environment ... For certain presidential candidates to emerge, they have to get themselves above the radar, so they have to say things that get your attention ... So I tend not to be very judgmental about statements made by people who are thinking about whether they want to serve the country as President." Although failure to be judgmental is not something of which Ashcroft is commonly accused, he is able, when evaluating his fellow politicians, to muster a sophisticated sense of charity and understanding.
I recalled that Ashcroft writes in his book, "The verdict of history is inconsequential; the verdict of eternity is what counts." He adds, with appealing humility, that he "probably won't be" remembered. I asked him what he thought his legacy would be. "The question is not how you're going to be remembered; the fact is you're not going to be remembered!" he said enthusiastically. "In real life the people who survive the longest are painters: you have paintings on the walls of caves, found in France and other places. I've seen 'em. Painters, sculptors, and artists. The next longest lasting people in the culture are poets. But you know, there's a high exposure at the time for politicians. Frankly, I talked about the truth being the friend of the Patriot Act, and the truth is the friend of everything. That's what's real and what lasts."
He looked pensive. "I don't want to say that I don't care what people are saying or thinking, because it might reveal for me that I'm way off." He cupped his ear. "I'm standing with my finger in my ear like this, and off first base, the pitcher is starting to make a move, and I'm going to get picked off, and someone yells from the stands, 'Belly up, Ashcroft, you're about to be picked off!'' and I dive back in, get my hand on the base before the fielder's mitt slaps me on the shoulder, and I get up—you know how you get up and put your foot on the base, dust yourself off, and you look at the guy and say, 'Thanks, buddy.' You have to be extremely careful, especially when the risk of error is great, and the risks in terms of national security are substantial. We have to make good decisions about listening carefully when it comes to freedom and liberty ... so we welcome voices, but we make decisions that we believe will be validated in the long haul as being real and true."
If Bush is re-elected, will Ashcroft serve a second term? People close to the Administration say that Bush might choose to replace Ashcroft with the White House counsel, Alberto Gonzales, who would be the first Hispanic Attorney General, or with Larry Thompson, who would be the first African-American Attorney General. When I asked David Israelite if Ashcroft would serve a second term, he demurred. "Every Cabinet secretary should resign after the election, and then it's up to the President. If he's asked to serve again, he'll have to make a decision. The average tenure for an Attorney General is a couple of years, and I would argue that legacy is more important than length of tenure. I don't know if he'd come back for a second term."
If Bush doesn't ask him to serve a second term, what will Ashcroft do next? For much of the past three years his rivals in the White House counsel's office have been grumbling that he must be running for President in 2008. But Ashcroft's close aides and friends dismiss this possibility. "I believe he is done running for political office," Israelite says. "He said he doesn't ever expect to run for another office again. If he's not Attorney General, he'll find a way to enjoy life—writing, speaking, traveling, we'll see. But he's not being coy. He's not running."
Why, then, has he given the impression as Attorney General that he is engaged in a permanent campaign? Perhaps because running for office is what he has always done, just as positioning him for political advantage is what his aides have always done. A close associate whom Ashcroft has assured he won't run for office again says, "I think Ayres and Israelite do what they do because they believe it's in Ashcroft's interest to be popular: they think that if he's popular, when necessary he can spend political capital more easily. They do what they do because that's what they do: it's their natural skill set." According to this straightforward and plausible explanation, Ashcroft is not especially craven or unprincipled. It also suggests, however, that he might have done better to take the distinction between prosecution and politics more seriously. Instead of devoting his years in office to building up political capital that he will never spend, he could have taken a few risks, such as striking balanced compromises with his libertarian critics rather than rejecting them out of hand. But the continuing support for the Patriot Act by about 70 percent of the American people suggests that this would have required him to challenge public opinion rather than catering to it at every turn.
I had been told that Ashcroft's hero is Abraham Lincoln, so I took to our meeting a copy of Lincoln's Constitution, a new book by the constitutional scholar Daniel Farber about Lincoln's civil-liberties record during the Civil War. I told Ashcroft about Farber's thesis: that Lincoln's record regarding the Constitution, although not perfect, was very creditable, given that Lincoln presided during the greatest crisis in American history. Most of what he did was arguably constitutional—and in cases where Lincoln acted in a legal vacuum, Congress tended to ratify his actions after the fact. Ashcroft perked up. "You don't mind if I make a note?" he asked, rising from his chair and going over to his computer, on a modest desk that faced the wall. As he took down Farber's name, I asked Ashcroft what he had learned from Lincoln's efforts to balance liberty and security in wartime. "This probably isn't very legalistic," he said. "I think real leadership doesn't take people where they're already going ... a real leader identifies noble objectives and then motivates people with such intense and personal devotion to those objectives themselves that people are inspired to pursue them. Now, the genius of Lincoln was not winning the war. The genius of Lincoln was preserving the unity of America." Ashcroft mentioned that many people after the war wanted to make the South a subservient nation, but Lincoln refused. "A wise friend of mine once said, 'The dogs may bark but the caravan moves on.' [Lincoln] put up with a lot of barking dogs, but he had a vision for what America could be, should be, and didn't want a lot of buts and could-haves and should-haves."
Ashcroft asked me a question. "Did you read that Gore Vidal book about Lincoln?" I confessed that I had loved it. "That's a great book!" he agreed. "You know, people wouldn't think of me and Gore Vidal in the same breath, but you gotta respect the guy; he has a tremendous intellect." (Several weeks later Vidal would deem him part of an "alien army.") He said that Vidal's book reminded him that Lincoln had been shot at even before his trip to Ford's Theater. "He'd come in with a hole in his hat ... he had powder on his jacket. So he could have easily been dissuaded. You know, you can get all the Gallup information you want, but two bullets would usually be more persuasive. He was willing to have a very serious sense of personal sacrifice to achieve his end. That willingness to sacrifice personally communicated irrevocably to the people of the country, with a cacophony of debate swirling around him ... there was an indelible sort of mark made on the American psyche and consciousness that will never be erased." Evidently surprised by his own enthusiasm, he leaned back in his chair. "You got me started on Lincoln. I'm sorry."
Ashcroft says he learned from Lincoln's civil-liberties record in wartime the same lesson he learned from his father: the importance in politics of identifying a noble objective and inspiring people to pursue it in the face of withering criticism. But Farber's book draws a different conclusion. Lincoln's genius, Farber argues, stemmed from his ability to combine political pragmatism with constitutional precision of the highest order. Rather than claiming that ordinary legal procedures should be entirely suspended during wartime, he asserted the much narrower power to suspend ordinary procedures in actual areas of war or insurrection. He didn't claim that the President had the power to unilaterally suspend the writ of habeas corpus in all circumstances; instead he claimed the emergency power to suspend the writ in areas of war or insurrection when Congress wasn't able to act. And rather than insisting that Congress and the courts had no role to play in reviewing his actions, he persuaded Congress to grant him that emergency power after the fact. Farber argues that what both constrained and liberated Lincoln was his personal engagement with the technical legal arguments that shaped his actions. He didn't depend on deputies to provide legal justification for actions he had already taken.
When I apologized for the fact that Farber's book was a little technical, Ashcroft made a self-deprecating joke: "You can tell I'm not a very good technical lawyer. I went to the University of Chicago Law School when they were offering scholarships to kids." But it was Lincoln's skill as a technical lawyer that allowed him to save the Constitution and the Union at the same time. Instead of dismissing the value of legal argument, Lincoln challenged his critics and also his supporters to embrace something larger than their political disagreement: the ideal of constitutional liberty itself. Although Ashcroft is too modest to compare himself directly with the Great Emancipator, Lincoln's ability to view the crisis facing the nation in legal rather than political terms is what has made him such a unifying symbol in all the ways that Ashcroft is a polarizing one. Had Ashcroft followed Lincoln's example and engaged his opponents' legal arguments, rather than playing to the public's fears, he might have presided over the refinement of the Patriot Act so that its authority was directed at terrorists and not ordinary criminals. In citing Lincoln as an inspiration, Ashcroft seems to have focused on Lincoln's pragmatism while ignoring his legalism; and in the process Lincoln's faith in the unifying power of law itself has somehow eluded him.