Ashcroft and After

Where will we be without John Ashcroft, his German shepherd's mug and fanatic's heart? In this season of cold comfort, it is impossible not to cheer the exit of the most destructive attorney general of the past 100 years, who responded to a great national crisis by steering the Justice Department on a narrow, stony path between the unconstitutional and the incompetent.

It is easy to forget now that by the time Al Qaeda's planes hit, it was already clear that Ashcroft was a piece of work. While his morning Bible meetings with top staff raised eyebrows, his appointments and policies bore all the hallmarks of a deadly serious and resolute ideologue. He filled the top positions at Justice with Federalist Society members, forced reluctant US Attorneys to aggressively promote the death penalty and undermined career lawyers who wanted to pursue voting irregularities in Florida.

Then, in the wake of September 11, Ashcroft embarked on his own private war against due process, dissent and freedom of information. In fact, he was a colossal failure even on his chosen terrain: preventive detention netted no would-be bombers, despite thousands of immigrants jailed and lives wrecked, while alienating Muslim communities at home and abroad. The first convictions obtained against Al Qaeda suspects in Detroit were eventually dropped because of Justice Department irregularities. Yet when the department's own Inspector General reported that hundreds of foreign nationals with no connection to terrorism were rounded up, imprisoned and denied their rights, Ashcroft's response was curt: We make no apologies.

Ashcroft, in the end, can't properly be called a conservative at all; rather, he used his job to expand executive branch authority, the power of police agencies to monitor citizens without judicial oversight and the intrusion of government into private lives. Ashcroft treated criticism and dissent as treason, ethnicity as grounds for suspicion and Congressional and judicial oversight as inconvenient obstacles. No wonder that finally even a conservative attack dog like Congressman Bob Barr soured on Ashcroft justice; no wonder that even the Rehnquist Supreme Court slapped down the Administration's Guantánamo detention policies, declaring that even a state of war is not "a blank check."

President Bush's selection of White House counsel Alberto Gonzales to succeed Ashcroft shows that Bush has no intention of changing the tenor or the policies of the Justice Department. It was Gonzales who laid the legal groundwork for torture at Abu Ghraib with a memo claiming that detainees in the "war on terror" were not covered by the Geneva Conventions--which he described as "quaint." And it was Gonzales who urged the President to deny prisoner-of-war status to the detainees at Guantánamo, leaving them unprotected from coercive interrogation and endless imprisonment. With those two policies alone, it can fairly be said that he played a central role in blackening America's image throughout the world. Gonzales also played a major role in selecting extremist judicial nominees, consistently pushed the limits of executive privilege and publicly defended the Administration's policy of detaining terrorism suspects without access to lawyers or the courts.

The confirmation of Gonzales will be a test not only of Bush's intentions but of the fault lines within the GOP Senate majority; and a test, too, of the durability of the right-left civil liberties coalition that emerged in opposition to Ashcroft's abuse of the law. The temptation may be to heave a sigh of relief that Ashcroft is gone, and to view Gonzales as an improvement. That would be a crucial error. Gonzeles's nomination should provoke the first in a series of battles over civil rights, the Supreme Court and the Constitution itself.