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Ask a dozen loyal Republicans about Attorney General John Ashcroft and the phrase used most often is “lightning rod.” When critics use these words to describe Ashcroft they mean it pejoratively, referring to the AG’s tendency to incite such extreme reactions that at times even critics say they seem out of proportion. But when Ashcroft’s supporters call him a lightning rod, it’s pure praise. From their perspective, Ashcroft takes the heat for controversial administration positions so the president doesn’t have to. With his conservative credentials unquestioned, Ashcroft rallies the base of the Republican Party and at the same time deflects criticism from the president. As one former Justice Department lawyer in the Bush administration puts it: “Ashcroft can feed red meat to the troops and the White House can keep some distance.” If President George W. Bush is re-elected, Ashcroft’s future rests on whether his tendency to polarize Americans is viewed as a political asset or a liability. Ashcroft has not clearly indicated whether he wishes to remain for a second term if Bush wins, though he had this to say in a September 2003 interview with USA Today: “Any opportunity to serve the country should not be taken lightly. I would take very seriously any request for the opportunity to serve.” Ashcroft’s aides say he will follow convention and submit his resignation soon after the presidential election. It will then be up to Bush — if he succeeds in his bid for re-election — and a circle of close advisers to determine whether he stays or goes. Legal Times interviewed individuals with close ties to the Justice Department and White House about Ashcroft’s role in the administration and the likelihood that he would be asked to serve in a second Bush Cabinet. Most shared their views on the condition that their names not be used. To some degree, the decision of whether Ashcroft will stay or go during a second Bush term will depend on outside factors, including the desire of the Bush administration to assemble a Cabinet that includes minorities in high-level positions. But the most important consideration, say several sources close to the administration, is whether the president finds it politically useful to have a polarizing figure like Ashcroft in his Cabinet. Should Bush turn his attention to his political legacy, he may instead choose an attorney general who is seen as more mainstream and who can be a better salesman for the administration’s policies in the war on terror. “With four years under his belt, Bush will look for a Cabinet that is the most effective Cabinet it can be. He’s going to be focused mostly on who can get the job done,” says a former Bush administration official. “It’s hard to think of what the positives would be in reappointing him,” says a lawyer who used to work in the Bush administration. One of the Justice Department’s most important tasks over the next year in a Republican administration will be pushing for reauthorization of provisions of the USA Patriot Act, which sunset in December 2005. With Ashcroft as the public face of federal law enforcement, it may be more difficult to win the necessary votes in Congress, much less to seek the expanded investigative powers the administration would like. “One of the president’s greatest domestic policy achievements should have been the Patriot Act,” one of the former officials says. “I think Ashcroft probably hampered the administration’s ability to effectively sell the Patriot Act.” Georgetown University Law Center professor Viet Dinh, former legal policy chief at the Bush Justice Department and a primary author of the Patriot Act, has a different take. “There are groups out there that will oppose anything this administration does,” Dinh says. “There is no merit to the idea that the ACLU and other liberal interest groups would sit on the sidelines if there were a different attorney general.” Ashcroft declines to comment. ‘PHANTOMS OF LOST LIBERTY’ Ashcroft generates controversy as often as he absorbs it. Almost every policy associated with the attorney general, a career politician before his appointment to the Cabinet, becomes politically charged — from raised terror alerts to civil rights prosecutions to law enforcement policy. In the minds of civil libertarians, liberals and even some conservatives, Ashcroft personifies executive branch overreach, and so his actions evoke suspicion. In May 2004, Ashcroft’s warning that terrorists might seek to attack the United States in the lead-up to the presidential election was criticized as being politically motivated. “Ashcroft has not displayed the kind of calmness and unflappability necessary in presenting the administration’s case. You get the sense that he relishes the expansion of government power,” says Bruce Fein, a Republican lawyer who served at the Justice Department under three presidents. “It doesn’t matter if the image is correct or not. The problem is, it’s there.” A defining moment of Ashcroft’s tenure as attorney general came during testimony before the Senate Judiciary Committee in the weeks following the Sept. 11 attacks. In response to concerns about the impact of new counterterror initiatives on Americans’ civil liberties, Ashcroft famously responded: “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.” Ashcroft’s staunchly conservative views and his tendency to dismiss the concerns of critics rather than answering them, makes him a powerful rallying point for opposition groups. According to leaders of American Civil Liberties Union chapters across the country, Ashcroft has become one of the organization’s most effective recruiting tools. More than 240,000 Americans have joined the ACLU since January 2002, according to the organization. While appointing a new AG might not completely disarm critics, a fresh face at the helm of the Justice Department would take some wind out of their sails just as debate begins over extending provisions of the Patriot Act set to expire at the end of 2005. Efforts to pass a sequel to the Patriot Act stalled last year, when a draft copy of the proposed legislation stoked considerable opposition. But if Bush is re-elected, the administration is likely to view his win as a mandate to continue pushing for expanded investigative powers. “If you had a Rudy Giuliani as attorney general, my guess is that he would be able to make Patriot Act arguments to a much broader audience,” says a former Bush administration official. THE NEW ROBERT KENNEDY? By all accounts, Bush and Ashcroft share a warm relationship cemented by similar approaches to the war on terror. Following the Sept. 11 attacks, Bush personally tasked Ashcroft with preventing future terrorist attacks inside the United States. Ashcroft embraced the mission and has led a reorganization of the Justice Department and the Federal Bureau of Investigation to focus on preventing terrorism at home. In the immediate aftermath of Sept. 11, the Justice Department rounded up approximately 1,200 individuals, mostly Middle Eastern men, suspected of having ties to terrorism. According to a June 2003 report from the DOJ inspector general, more than 700 non-citizens were arrested on routine immigration violations and held in connection with the 9/11 investigation. The average period of detention was 80 days. The report criticized the Justice Department’s arrests for being “indiscriminate and haphazard.” “Even in the hectic aftermath of the September 11 attacks, we believe the FBI should have taken more care to distinguish between aliens who it actually suspected of having a connection to terrorism as opposed to aliens who, while possibly guilty of violating federal immigration law, had no connection to terrorism,” the report concluded. But Ashcroft has repeatedly defended his tactics and compared them to Robert Kennedy’s approach to fighting organized crime. “Robert Kennedy’s Justice Department, it is said, would arrest mobsters for ‘spitting on the sidewalk’ if it would help in the battle against organized crime,” Ashcroft said in a speech before the U.S. Conference of Mayors in October 2001. “It has been and will be the policy of this Department of Justice to use the same aggressive arrest and detention tactics in the war on terror.” Ashcroft added: “Let the terrorists among us be warned: If you overstay your visa — even by one day — we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage. We will use all our weapons within the law and under the Constitution to protect life and enhance security for America.” “Ashcroft has certainly shown he is tough-minded, that he will take risks to be able to tackle terrorism with the same zeal as the president,” says one former Bush administration official. Earlier this month, a USA Today poll of registered voters showed terrorism tied with the economy as the No. 1 issue on the minds of voters, with 28 percent citing terrorism as the most important factor in determining their vote. The same poll found that 56 percent of registered voters think Bush would do a better job of handling terrorism than Democratic presidential candidate Sen. John Kerry; 39 percent preferred Kerry. To be sure, there are many factors that may have contributed to the nation’s relative security since 9/11, including the military offensive in Afghanistan and the capture of several al-Qaida leaders overseas. Or it could be that al-Qaida is merely regrouping. Critics of the Bush administration point out that eight years passed between the first World Trade Center bombing and Sept. 11, 2001, suggesting that the absence of attacks may be little more than a fluke. Still, in the view of many, Ashcroft deserves credit for the fact that there have been no further attacks on U.S. soil and for the president’s strong ratings on the issue. Ashcroft has made information sharing and coordination within the department a top priority and appears to have a good working relationship with FBI Director Robert Mueller III, in stark contrast to the pronounced friction that existed between Clinton Attorney General Janet Reno and FBI Director Louis Freeh during the previous administration. But Ashcroft’s relationships with other administration officials involved in the war on terror, including White House Counsel Alberto Gonzales and Homeland Security Secretary Tom Ridge, have been rocky. Ashcroft has repeatedly tussled with Gonzales for control over the Justice Department’s influential Office of Legal Counsel, the tiny office responsible for providing executive branch agencies with binding legal opinions on questions of administrative, constitutional and international law. And Ashcroft has ruffled bureaucratic feathers at the Department of Homeland Security at times by elbowing Ridge aside to take center stage on terrorism issues. Ashcroft has also been responsible for some embarrassing public relations gaffes and attained a reputation at the White House for being a loose cannon. Most notably, Ashcroft earned rebukes from senior White House staffers after he announced the apprehension of alleged al-Qaida operative Jose Padilla in a live television broadcast from Moscow without approval from the White House communications staff. Instead of projecting calm reassurance, Ashcroft’s tone was ominous and alarming as he described Padilla’s plans to bring about “mass death and injury.” “We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive ‘dirty bomb,’ ” Ashcroft stated. Padilla has yet to be charged in connection to the threat and is instead being held as an enemy combatant. More recently, Bush publicly scolded the attorney general for making incendiary statements during his testimony before the 9/11 Commission. COMMISSION THEATRICS Ashcroft’s theatrical testimony pointed a finger at Clinton-era Justice Department officials, including 9/11 Commissioner Jamie Gorelick, for constructing a legal “wall” that hampered information sharing between U.S. law enforcement and intelligence agents. In what appeared to be a blatantly political move, Ashcroft refused to provide copies of his testimony to the commission in advance, thereby increasing the shock value of his statements. Instead, Ashcroft’s staff arrived with a glossy folder of public relations materials touting the attorney general’s successes in combating terrorism. But was the president’s reprimand genuine? Says yet another former Bush official: “Ashcroft never did anything the president didn’t want him to do, but he would take the heat. That’s politically useful.” The issues handled by the Justice Department carry great symbolic significance and presidents of both parties tend to select attorneys general who appeal to the party base. After the 2000 election, Ashcroft’s nomination was intended to solidify the president’s support on the far right. But should Bush serve a second term and no longer face re-election, appeasing particular voting blocs may become less of a priority. “[Ashcroft's] original appointment was intended to placate the social conservative wing of the party that might have felt Bush was too moderate,” says one former Bush administration official. “I don’t think they have that worry anymore.” In recent history, it has been rare for an attorney general to serve more than one term. In the last administration, Reno defied the norm by sticking around through President Bill Clinton’s eight years in office and became the longest-serving attorney general of the 20th century. (Clinton was known to have wanted Reno out, but ultimately decided he couldn’t oust her because it might be seen as retaliation for her decisions authorizing investigations of the president.) The terrorist attacks of Sept. 11 and the reorganization of the Justice Department to focus on preventing future terrorist attacks may make continuity in senior Cabinet positions more important than in the past. Bush is also a president who is known for his personal loyalty and there have been remarkably few Cabinet departures during his first term. For example, no Bush-chosen Cabinet member has lost a job as a result of the events at Abu Ghraib or for faulty intelligence related to weapons of mass destruction in Iraq. Several sources who know or have worked with Ashcroft say they believe that he would like to serve a second term as attorney general. They point out that 62-year-old Ashcroft, a former governor and senator from Missouri, has spent his entire career in politics and public service. It is not clear what he would do if he left office. Ashcroft considered a run for the White House in 2000, and some have speculated that he might try again in 2008. In the September 2003 interview with USA Today, when Ashcroft stated that he would seriously consider staying on at the Justice Department, he tried to put those rumors to rest. “I really can’t imagine running another political campaign,” Ashcroft said. “I don’t have that in mind.”

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