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WASHINGTON — John Ashcroft is leaving the post of attorney general after four sometimes tumultuous years. The former senator from Missouri had only recently set up shop on the fifth floor of the Department of Justice when terrorists struck the United States. Just months later, Enron Corp. collapsed amid revelations of gross accounting abuses, launching an aggressive DOJ initiative to combat corporate fraud. Ashcroft’s tenure saw passage of the controversial USA Patriot Act, which expanded government surveillance power in the name of national security, and the transformation of the Justice Department’s mission, from prosecuting crime to preventing future terrorist attacks. Under his watch, the Justice Department won convictions against top executives at some of America’s largest corporations. Vanessa Blum, senior reporter with Legal Times, a Recorder affiliate, sat down with Ashcroft last week to review his four years in office. The following is a transcript of the interview, edited for length and clarity. Legal Times: In your resignation letter to the president you wrote, “The objective of securing the safety of Americans from crime and terror has been achieved.” What did you mean by that? And how do you measure success in the war on terror? Ashcroft: In the war on terror, it’s pretty easy. If you’ve been hit, the objective wasn’t achieved. If you haven’t been hit, the objective was achieved. I think the mistake people make in thinking about the war on terror, that maybe I make sometimes, is occasionally thinking that you ever win it forever. You have to win the war against terror every day. That’s why I meet with the president every day. I met with him yesterday, the day before yesterday, today — tomorrow, I assume. He’s focused on it every day. It’s almost a mission impossible to think that we could stop terrorists who want to hit us. We know terrorists are intent on continuing the terror. The point is that we have been successful, and I’m grateful for it. It’s taken the outstanding work of lots of people in the law enforcement community. There is absolutely no way to say that objective hasn’t been achieved. Early on, when the president turned to me and said, “Don’t ever let this happen again,” it struck an awesome chord. That is a tall order, but we’re grateful that it hasn’t happened. LT: Looking back over the past four years, is there anything that you would do differently? Ashcroft: I would have liked to do a better job of explaining the Patriot Act so that it would not have been the subject of so much misinformation and mistake and controversy. The Patriot Act has certainly worked well. It’s helped us win the war, on a daily basis, against terror. I wish I had been able to do a better job of explaining it. LT: In the aftermath of the Sept. 11 attacks, federal law enforcement arrested roughly 750 individuals — overwhelmingly Middle Eastern men — for routine immigration violations. A 2003 report from the DOJ inspector general identified a host of problems with the treatment of the detainees and confirmed reports that some prisoners were subjected to physical and verbal abuse from guards. The vast majority of those arrested were never charged with terrorism-related offenses. Considering the inspector general’s findings, do you believe that the wave of immigration arrests advanced the Sept. 11 investigation or made the nation safer? Ashcroft: First of all, I want to indicate that no one was arrested without being in violation of law. The law regarding immigration is the law. These people were all people who were charged with infractions. I want to make it very clear that we don’t believe that anybody detained for violating an immigration law should be the subject of abuse or disrespectful behavior. The department has taken steps to not only make sure that we reduce the risk of that ever happening again, but that we address the individuals involved in ways that signal the inappropriateness of that activity. We don’t condone anybody being abused, and we punish those who conduct that kind of abuse. I believe the effort after 9/11 to arrest and detain violators who were associated with the terrorist community was a productive effort and valuable to the country, and it resulted in a significant increase in safety for Americans. If we were in a similar situation, I would make every effort to make sure that we treated people properly, but I would have no hesitancy to arrest individuals who are breakers of the law. LT: As a U.S. senator, you were a staunch supporter of individual liberties and wary when the federal government sought powers that might infringe on Americans’ privacy. As attorney general, you have overseen a dramatic expansion of government surveillance power in the name of national security. How do you square those two seemingly inconsistent positions, and how have your views on government surveillance and the proper balance between liberty and security evolved? Ashcroft: The kinds of things that we’ve done to improve the intelligence capacity of the federal government, to deter terror, are the kinds of things that had been in place for years as it relates to a number of other kinds of criminal behavior and activity. Let me give you the example of the so-called roving wiretap. In the late ’80s, specific authority was granted in surveilling individuals who were involved in serious drug offenses and organized crime so that every time they changed telephones you didn’t have to get a new court order in order to continue to surveil them. That power had never been extended to authorities relating to the surveillance of terrorists. Virtually all of the extensions to be found in the Patriot Act were extensions of authorities that were used on a regular basis against other kinds of criminals, but the authority had never been made available for the surveillance of and detection of and monitoring of people involved in the terror community. LT: Are the new FBI investigative guidelines and the proposal for the TIPS program [which asked service workers, mail carriers and others to report suspicious behavior] things you would have been able to support as a senator? Ashcroft: I’ve never felt that the FBI should have to operate with its eyes closed. To give the FBI the authority to check out a bomb-making site or a bomb instruction site on the Internet — which is an open or public place — seems to me not to be an invasion of anybody’s privacy. People put things on Web sites because they want individuals to visit those Web sites. To give the FBI the authority to do that, to surf the Web — not to invade people’s computers, but to go where they are invited in public spaces on the Web — is not, in my judgment, infringing on liberty. Nor is it if FBI individuals are invited to public places for them to be able to take notes of terrorist activities in those public places, which I specifically authorized them to do when I was adjusting the guidelines. LT: So is it your position that there is no real conflict between conservatism and the government’s response to terrorism? Ashcroft: Some people think that every time there is a law, that freedom somehow shrinks. Well, let me just submit to you that if you have a place with no laws and the first law you passed is a law against one person murdering another, are you freer after that law is passed than you were before the law was passed? Or are you really freer if the biggest guy on the block has the right to kill anybody he chooses? I submit to you that the law is what enshrines freedom. It doesn’t undercut freedom when it’s properly done. LT: As attorney general, was it your practice to review legal advice going from the Office of Legal Counsel to the White House? Ashcroft: There is a lot of communication that goes back and forth between this department and various agencies of the federal government, both on a formal level and an informal level. And it is virtually impossible for the attorney general to be in the stream of communication in all of those circumstances. We have of course 110,000 people in the [Justice Department] alone, but we serve a federal work force and an array of federal agencies that is very significant, so there is a great deal of communication. LT: Did you review the Aug. 1, 2002, memo regarding permissible interrogation tactics? Ashcroft: I’m aware of the memo. It became clear to us that the memo had certain aspects to it that we felt would be more appropriately the subject of withdrawal and re-issuance. As a result of that awareness and that decision, it’s been withdrawn. LT: Do you agree with the position articulated by [Attorney General nominee] Alberto Gonzales in his written responses to the Senate Judiciary Committee that there is no legal prohibition under the Convention Against Torture on cruel, inhuman or degrading treatment with respect to foreign nationals overseas? Ashcroft: I would need to address that kind of question in writing, too, to be sure about the complete context of the question and the nature of the answer. Whether or not the convention on torture applies to specific individuals in specific settings relates to the way in which the convention was ratified by the United States Congress and any reservations to the treaty at the time. That’s a matter that I wouldn’t be able to comment on without looking at the document and making sure I understood the context of the question. LT: In December 2001, three months after Sept. 11, you told the Senate Judiciary Committee, “To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve.” That statement has since received a lot of mileage in the press. Do you regret that statement, and what did you mean at the time? Ashcroft: No. I meant that for people who falsely raise concerns of lost liberty — phantoms, not real, false accusations of lost liberty. They divert us from what we really ought to be looking at. We ought to be dealing in the truth here. LT: It has been reported that you had a difference of opinion with the Pentagon over plans to try suspected terrorists before military commissions. Did you have reservations about the use of military commissions and do you now believe that military commissions are the best way to try members of al-Qaida? Ashcroft: First of all, as the lawyer in government, I’m not in a position to start to talk about when I agree with or might have had disagreements with individuals that I serve as a lawyer. But I want to make something as apparent as I can. The United States, when it is attacked, needs a variety of ways to respond to the attack. It should be able to tailor its response to best fit the security needs of the United States. So there would be some individuals who would be pursued under Article 3, the judicial branch processes. Some perhaps taken as enemy combatants and held during the pendency of the conflict, as is the case in almost all wars. When people involved in a war attack someone and are captured, they are not released to re-enter the conflict until such time as it has been determined that they are no longer a danger. And the third way has been historically the capacity for military tribunals to adjudicate claims of wrongdoing. I think the United States is well served to understand that these three modalities can be appropriate ways of addressing our security needs. LT: You have devoted the past three decades to government service. What do you plan to do next? Ashcroft: This has been a very, very good job. It has been very challenging. It’s very pleasing to be in a setting where you have important things to do. First of all, I don’t expect to be involved in government. I’m going to the private sector. One of the important aspects of what we’ve done in the Justice Department is to try to restore the confidence of the world in America as a marketplace of allocating capital. I call America “the capital capital of the world.” Our effort in restoring integrity in the marketplace in what was referred to as the president’s Corporate Fraud Task Force has been, I think, substantially successful. I’m thinking about ways of being involved in advising individuals in the business community, perhaps talking with them about corporate integrity issues, compliance issues. I’ll probably make a few speeches. It’s likely that I’ll be involved in education in some way. I was a schoolteacher before I got involved in politics; I taught five-plus years at the college level. And so these things will occupy my time — I hope sooner, rather than later. Vanessa Blum is a reporter with Legal Times, a Recorder affiliate based in Washington, D.C. She can be reached at [email protected].

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