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A year ago, then-Sen. John Ashcroft’s political career seemed at an end. He had just lost his bid for a second term to Missouri Gov. Mel Carnahan — despite the Democrat’s death in a plane crash three weeks before the election. Enter President-elect George W. Bush. In what was widely viewed as a concession to the right wing of the Republican Party, Bush lent a hand to the fallen firebrand, offering him the post of U.S. Attorney General. It is a job Ashcroft had been passed over 20 years earlier by his ideological godfather, Ronald Reagan. Ashcroft spent his first eight months in office quietly, frustrating Democrats who predicted that he would use the job to launch a reactionary legal crusade. It took the events of Sept. 11 for him to stir. Since then, he has amassed political and legal power, becoming one of the most influential — his critics say dangerous — members of the administration. Those critics are asking: To whom does he pose the greater threat? Is it to terrorists, the targets of the biggest investigation in the country’s history? Or is it to law-abiding immigrants and U.S. citizens who, critics say, are losing liberties as a result? “We have begun to tamper with some of the basic laws — laws that strike at the heart of what this democracy is about,” says Anthony D. Romero, executive director of the American Civil Liberties Union (ACLU). He says that Ashcroft may be using the crisis to push an agenda that could permanently harm the republic’s balance of liberty and security. Ashcroft supporters say he is doing what must be done. “The role of an attorney general during a time of national emergency is quite different than during normal times,” says Richard L. Thornburgh, attorney general during the Reagan and first Bush administrations. “It should come as no surprise that during these difficult times that law enforcement is going to push the envelope as far as it goes, and that naturally brings him into sharp conflict with civil liberties groups.” The one thing these camps agree on is that Ashcroft is having a major impact on the American justice system. A native of Chicago, Ashcroft is a conspicuously devout Christian who once declared in a speech that America has “no king but Jesus.” An opponent of abortion, he unsuccessfully fought as Missouri attorney general to preserve a law criminalizing some abortions and filed an antitrust suit against the National Organization for Women for boycotting his state after it refused to ratify the Equal Rights Amendment. NOW in turn sued him for harassing the group. He is a longtime proponent of the rights of gun owners and fought school busing in Missouri. In 1984, Ashcroft was elected Missouri governor and in 1994 a U.S. senator. In January, he was succeeded by Carnahan’s wife, Jean, named to the post by state Democrats. Since Sept. 11, he has been transformed from bit player to leading man. He has signed off on 1,200 detentions, changed Department of Justice rules to expand surveillance and detention powers and championed the huge expansion of federal criminal power under the recently enacted USA Patriot Act. Until a Dec. 6 appearance before the Senate Judiciary Committee, he had virtually ignored Congress. He surprised some committee members when he said that uninformed criticism of his actions gives “ammunition to the enemy.” In an interview with The National Law Journal, Ashcroft expressed anger over critics who are using the Dec. 6 statement to cast doubt on his motives, saying he considers such attacks hyperbole. The ACLU’s Romero scoffs at Ashcroft’s indignation: “The attorney general needs a basic civics lesson — political dissent and debate is an essential part of our government and democracy.” But Reagan administration attorney general Edwin Meese 3rd sympathizes. “The critics have gone way overboard in their personal attacks on the attorney general. Those who try and impede necessary steps are trying to impede the ability of the Justice Department,” Meese says. “I understand what prompted him to say it,” says Thornburgh. “There has been a great deal of overreaction, but I suspect that, rather than kick up the furor that he has, if he had a second chance he might have done it differently.” Ashcroft was also agitated by an issue of extreme importance to lawyers: his decision to allow monitoring of attorney-client conversations. When it was noted that the rule also allows surveillance without notice, he pleaded ignorance but added he had “no awareness” of any secret monitoring. He added that the rule helps defense lawyers since it puts “the lawyer in a position to give himself wholly to the defense of his client rather than to be in a setting suspecting his client.” “After he’s done with his civics lesson, he should go to a CLE class,” Romero says. “Any attorney knows that the confidentiality between an attorney and client is central. It’s offensive to the bar to think that lawyers would be unwitting dupes.” Even Thornburgh says he would have handled the issue “a little differently.” “We have not asked the threshold question that we should have asked Sept. 11, which is how did it happen and how did our intelligence forces fail us?” says Romero, explaining that much of the USA Patriot Act is not new, but “proposals that have been sitting on the shelves for years” that were not tailored to combat the new terrorist threat. Ashcroft counters that he wants to prevent terrorism, not just punish it, and that expanded government power will enable him to do just that. “It’s unacceptable to be remedial and to try and establish justice by putting things back together again,” he says. “You have to prevent the injustice in the first place.” Ramsey Clark, Lyndon Johnson’s attorney general, says such statements by the attorney general reflect an “apparent lack of concern for the bill of rights and fundamental freedom. He has an inherent disrespect for democratic processes.” Romero opines that the long-term effect of Ashcroft’s policies will be similar to the fallout of the anti-communist raids in 1919, where Attorney General Mitchell Palmer was first supported, and then criticized, for mass detentions of immigrants after a series of bombings. Thornburgh predicts that measures being taken by Ashcroft will fade as terrorism recedes. But Clark is not so sure. “If there is an early return to more normal times, his conduct will be seen as egregiously wrong and will have little impact,” he says. “But if things get worse and fear grows, and his views are followed, he will have a devastating effect.”

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