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."
Ashcroft's role as one of the most visible members of the Bush anti-terrorism team ended in June when he staged a news conference while in Moscow to announce the arrest of Jose Padilla, a Chicago street criminal accused of planning to explode a radioactive bomb in the United States. Ashcroft referred to Padilla by his adopted name of Abdullah al Muhajir, calling him "an al-Qaida operative," and said his arrest "disrupted an unfolding terrorist plot to attack the United States."
Few others in the administration saw Padilla as such a threat. Many thought Ashcroft was grandstanding. His appearances were severely curtailed.
Still, Ashcroft's Justice Department has fought to keep Padilla and another U.S. citizen - Yasser Esam Hamdi, who was captured in Afghanistan - in custody as "enemy combatants" without such rights accorded to citizens as consultation with an attorney or a hearing to seek bail. The government has moved the two to Southern states so their cases can be heard in the conservative 4th Circuit, which includes Maryland.
Greenberger, who headed anti-terrorism efforts in the Clinton administration Justice Department, wonders if this is a wise use of that department's resources. "What is the benefit of putting these two in isolation, not allowing them to consult lawyers?" he asked. "It is a high-profile issue that the department has spent a tremendous amount of time on and, really, is the country in a safer situation because of it?"
Greenberger points out that a similar effort went into clearing the way for establishing military tribunals to try terrorist suspects in the weeks after Sept. 11, yet, more than a year later not one such tribunal has been convened. Meanwhile, hundreds of foreign nationals captured in Afghanistan remain in detention at Guantanamo Bay, Cuba, as prisoners of a war that could go on for decades.
"I think what you have within the Justice Department is a small group of very bright, federalist society lawyers who are talking to each other and coming up with ideas that have a superficial attraction - military tribunals, detaining enemy combatants - while anybody practiced in the area will tell you this stuff accomplishes absolutely nothing," Greenberg said. "It's sort of like counterterrorism by headline rather than counterterrorism by a scientific analysis of what law enforcement is all about."
Others are concerned about the damage that Ashcroft-sponsored measures, passed under the guise of fighting terrorism, could do to civil liberties. The first Patriot Act, which saw little opposition in the weeks after Sept. 11, lessened restrictions on wiretaps and allowed long-term detention of material witnesses without charges. The draft of the second measure goes further in these areas.
"At times of crisis, power tends to be concentrated," said Richard Pacelle, a political scientist at the University of Missouri, St. Louis. "A great deal of deference is given to the executive branch. But when the president grabs power, it typically stays around until a period of calm when Congress and the courts pull the president back in line. Right now, I don't see any lower court standing up to the executive branch ... .
"I don't think people fully understand how wide-reaching some of these measures are, and how they can come back to affect them, maybe in five or 10 years," he said.
According to the ACLU's Nojeim, the act "would encourage police spying on political and religious activities, allow the government to wiretap without first going to court and allow it to more readily strip Americans of their citizenship, rendering them stateless in their own country."
Said Warnken: "If you take this to its ultimate conclusion - and I am only being slightly flippant here - as long as we are under threat of terrorism you can literally say that the Bill of Rights is de facto repealed until we catch the last terrorist. And that won't be until your great-grandchildren grow old."
Greenberger says this is counterproductive. "You are not going to win the battle for homeland security with wild-eyed theories designed to grab headlines that raise very serious civil liberties issues, dividing the public in ways it never needed to be divided in the first place."
Graber says his studies of U.S. administrations during wartime show that Ashcroft's stances cannot be totally attributed to the need for security in the post-Sept. 11 atmosphere.
"There is no necessary connection between civil liberties going down and a time of war," he said. "If you have an attorney general who is pro-civil liberties going in, he will be that way during the war."
This revelation of ideological bias, Graber argues, is what is going on with the post-Sept. 11 Ashcroft Justice Department. He notes, for example, that after a dragnet brought in thousands of terrorist suspects in the weeks after Sept. 11, the Justice Department showed its pro-gun-rights bias by deciding the suspects' rights would be violated if police investigated to see if any had purchased guns.
Scott Hibbard, a graduate student in political science at the Johns Hopkins University, says Ashcroft's drive may well come from his religious beliefs.
"From my perspective there is a zealousness around Ashcroft and his faith that really does see the whole war on terrorism as a crisis of civilization," said Hibbard, who worked in Washington for a decade. "That legitimizes a whole series of activities that are antithetical to what the country stands for and what at least part of the Republican Party stands for - getting the government off people's back."