Ashcroft's Crucial Role: Administration Lightning Rod

The Attorney General of the United States is having one heck of a year, it having begun with the loss of his job to a dead person, a development that would be comically tragic if it weren't so unconstitutional. ("No person shall be a Senator who shall ... not, when elected, be an Inhabitant of that State for which he shall be chosen." Perhaps they interred Mel Carnahan in Missouri just in time not to run afoul of Article I, Section 3, or something.) Follow that with hysterical, gratuitous sanctimony meant to vaguely resemble a Senate confirmation hearing, one of the main inculpations of which is that you worship God devoutly, and you already deserve a break.

Alas, many things changed on September 11, many more important than John Ashcroft's peace of mind and job description, which is now Designated Voodoo Doll for the administration. Still, estopped by public polling from cranking up the vitriol in the direction of the President, committeepersons in Congress, self-anointed guardians of civil liberties and media shills of various stripes have taken solid aim at Ashcroft, who is, we believe we read recently, responsible for the recession and for Mariano Rivera blowing the save in game seven.

It shouldn't be misunderstood that Mr. Ashcroft has been tabbed as the administration crash-test dummy solely by the Congress or the pundits. He serves as such at the pleasure of the President. It seems compellingly intuitive that if someone has, e.g., a complaint about the use of military tribunals, then they, if they were members of the Senate Judiciary Committee, say, would want to talk to Secretary Rumsfeld about it, being that Ashcroft and the Department of Justice have nothing whatever to do with it.

There seems to be a gentleman's agreement in place between an administration with actual important stuff to do and a Congress that wants to be in the news that the Attorney General will be made available for sound thrashings daily from noon to four, later by appointment. You note how criticism of Ashcroft vis a vis military tribunals, for example, is carefully premised on his "support" or "defense" of them. Jacob Weisberg published a screed in Slate Friday expressing his initial open-mindedness to "Ashcroft's defense of military tribunals and other security measures," before inevitably (about three seconds after the Attorney General opened his mouth) having his objectivity viciously extirpated. It is worth asking what other "security measures" Mr. Weisberg wanted a good defense of by the Attorney General.

Congress passed the PATRIOT Act within 45 days after September 11, granting the Justice Department wider latitude to wiretap phones instead of people, authorizing delays under some circumstances in obtaining a warrant for the search and seizure of certain evidence, and permitting the detention of aliens for up to seven days before the commencement of proceedings, for example. Ought we to grill the Attorney General on his "support" of measures that passed both houses of Congress and were signed into law by the President? Would critics prefer the Attorney General chastise Congress for passing a law so hateful to individual liberty, or at least not act so happy to have been given these expanded tools? (The latter is probably close to the mark.)

Perhaps Mr. Ashcroft should answer for an executive order authorizing eavesdropping on attorney-terrorist conversations in jail. This is an incendiary infringement on the privacy rights of incarcerated persons with ties to terrorism. Perhaps, but that might not play so well on the networks.

No, beyond military tribunals, the "security measures" most criticized at the hearing were Justice's failure to investigate the records of gun buyers' background checks to determine if any current alien detainees had bought guns. (Guns, of course, having been the weapon of choice of al Qaeda operatives in the first World Trade Center bombing, the embassy bombings, the U.S.S. Cole bombing and September 11.) The National Instant Criminal Background Check System creates a national database of gun purchase applications, and becomes highly relevant in the grill-Ashcroft hearings because it involves the Second Amendment.

Setting to one side, as the committee did, that the NICS law prohibits its use for anything other than an audit of the system itself, you have the administration, as Sen. Dick Durbin put it, "putting the interests of the gun lobby above the nation's public safety in the battle against terrorism." Blink a couple times, take a breath or two; I know. Sen. Durbin was in fact one of the more vocal proponents of making airport baggage screeners unionized federal civil servants, a position which arguably put the interests of several lobbies ahead of public safety, but we aspire to rise above.

Excoriating the Attorney General for his "support" of military tribunals is something like ripping Dee Dee Myers for Monica Lewinsky. If the administration wanted for even a second to deflect some heat from its Attorney General, the President would have Secretary Rumsfeld invite himself before the Judiciary Committee to discuss whatever issues they might have with military justice. The only more effective way to cow the committee would be to have not the second-most popular man in the country, but the first, the President himself, come testify. The thought of Rumsfeld barely containing his irritation while he answers vapid questions from Congressional committees makes Senators and other opponents of the tenor of the campaign against terror swoon with anxiety, so Mr. Ashcroft, you plump, juicy, easy target, you, you're up.

Mr. Ashcroft serves the President and a grateful nation by being the brunt of a panoply of undeserved criticism. How else to explain his widely-reproduced (usually not verbatim, granted) statement that the tactics of "those who scare peace-loving people with phantoms of lost liberty...only aid terrorists, for they erode our national unity and diminish our resolve." Now objectively, that statement is entirely defensible; probably, in fact, very true. No one though with political and media sophistication surpassing a Sunday morning college radio Breakfast With the Beatles D.J. could have expected this not to draw intense, indignant criticism.

"Not everyone who disagrees with the administration's new anti-terrorism powers, or its quest for more of them, should be accused of aiding terrorists by the chief lawyer of the United States," hemmed the Buffalo News. "His blunt assertion that those who question [the administration's] tactics are aiding the terrorists was painfully out of place in a nation that prides itself on the rule of law and the preservation of liberties," hawed the Honolulu Advertiser. ``The attorney general's implication is clear. If you do not march in lock step with the government, you are supporting the terrorists,'' screeched the Center for National Security Studies.

Never mind that Mr. Ashcroft neither said nor even implied that all disagreement was fearmongering. In fact, in response to a follow-up question by the committee to his "phantoms of lost liberty" statement, he said, "We need reasoned discourse as opposed to fearmongering. This is the place where reasoning and discourse take place." (I was able to find that quote after looking at about eight news accounts of the Attorney General's testimony. I was able to find his "phantoms" statement in the first seven.) Thus is Mr. Ashcroft proven gentlemanly enough to flatter with little white lies, as well as someone who does not believe reasoned disagreement is treason. But space in the wire stories and editorials is limited.

It is a testament to his current role in the war on terror, and the kind of year he's having, that Mr. Ashcroft's testimony was reported as equating dissent with treason. I say, keep it up, and leave Secretary Rumsfeld and the President and his war advisers free to do the legitimate business of the American people.