Ashcroft's Agenda

Critics of the attorney general wonder if the taking away of civil liberties goes beyond countering terrorism.

February 16, 2003|By Michael Hill | Michael Hill,SUN STAFF

John Ashcroft was once a very visible frontline soldier in the war against terrorism. Then he virtually disappeared. But the Ashcroft Justice Department continues to make news, disturbing people who already feared the appointment of perhaps the most ideologically conservative member of the Bush Cabinet as attorney general.

Recently, Ashcroft insisted that local federal prosecutors seek the death penalty in several cases even after the prosecutors had decided to go for lesser sentences. In one of those, in New York, prosecutors had agreed not to ask for the execution of a man accused of murder in return for testimony against a drug ring.

Justice Department officials defend Ashcroft's order, saying its only intent is to ensure that the death penalty is applied evenly throughout the country.

"All U.S. attorneys are appointed by the administration in power," said Byron L. Warnken, a law professor at the University of Baltimore, clearly surprised that Ashcroft would not support the sentencing choices the prosecutors made. "You aren't going to get a group much more conservative than the 94 U.S. attorneys this president appoints."

A week ago, there were leaks of a draft of the so-called Patriot Act II, a successor to the bill drawn up by the Justice Department and passed after the Sept. 11, 2001, attacks, broadening the government's powers of surveillance and detention. This proposal would go further; for example, it would let authorities wiretap someone for 15 days without court approval during a "time of emergency."

"Most Americans believe that they can be both safe and free, and they demand that of the government," said Gregory Nojeim, associate director of the American Civil Liberties Union's national office in Washington. "The attorney general is not providing safety, and he is not preserving freedom, and the latest evidence of that is the proposed domestic security enhancement act."

These stories have renewed criticism that Ashcroft's Justice Department is more interested in a political - not a legal - agenda.

"In the Justice Department, one of the great tensions is always between the political appointees at the top and the career lawyers in the middle," said Mark Graber, a political scientist at the University of Maryland, College Park. "This seems to be an administration where the political appointees are far more determined to set policies on more matters than usual."

Michael Greenberger, a professor at the University of Maryland law school, agrees: "From what I can gather, there is a tight circle around the attorney general. There is not a lot of vetting of ideas beyond that. A lot of career attorneys who have served the attorney general through a lot of different administrations have been shunted aside."

Greenberger describes the group around Ashcroft as a "federalist society" whose ideology can emerge in odd ways - the federal court challenge to Oregon's assisted suicide law or the federal prosecution of a San Francisco man for growing marijuana for medicinal uses allowed under California state law, or pushing the death penalty on reluctant federal prosecutors.

Ashcroft was something of a surprise choice for the job of the country's top law enforcement officer. A former governor of Missouri, he had just lost a close race to retain the Senate seat he held for one term. Though a lawyer by training who served as that state's attorney general, Ashcroft's credentials were more political than legal.

A fundamentalist Christian, Ashcroft has long been a favorite of the religious right. In his confirmation hearings, he was damaged by an interview he had given to a pro-Confederacy magazine praising its view of the Southern cause. Though former colleagues are often given a break in the Senate confirmation process, Ashcroft squeaked through with a 52-48 vote.

As with many issues in the Bush administration, much of the criticism of Ashcroft was muted after the Sept. 11 attacks.

"After Sept. 11, the feeling was to stand behind the attorney general," said Greenberger, who heads the Center for Health and Homeland Security at the University of Maryland, Baltimore. "People were very, very hesitant to criticize anything at that point - military tribunals, immigrant dragnets, anything.

"Then at one point he answered critics by saying how can anyone complain, no one has filed a lawsuit against us," he said. "That was like waving a red flag in front of the civil liberties community that had been literally pulling its punches, exercising some degree of discretion. The next week there were lawsuits filed all over the place."

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