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HILARITY ENSUES AS ASHCROFT DOES JUSTICE
Vanity Fair
February 2004
[The revolution inside John Ashcroft's Justice Department — an array of new crime-prevention powers embodied in the Patriot Act — has been fueled by the attorney general's ambition intelligence and unusually extreme beliefs about everything from the similarities between himself and Jesus to the post-9/11 role of law enforcement, to the purported demonic properties of calico cats. But as nervous sources share stories of his Missouri governorship, and former stagers and Senate allies speak out, JUDY BACHRACH discovers that Ashcroft has also sparked a growing backlash one with surprisingly bipartisan power.]
JOHN ASHCROFT'S PATRIOT GAMES
by Judy Bacharach
In the summer of 2001, John Ashcroft, George W. Bush's new attorney general, was holding one of his early-morning prayer meetings in his office. It was a gathering of 12 — many of them Justice Department employees who had asked to attend, many carefully vetted as to their upbringing and religious affiliation. On the appointed day, they were ushered into a room containing a collection of baseball bats, a photograph of the Pope, and, most intriguingly, new beige-and-red furniture. "So much better than Janet Reno's," declared a participant, eager to curry favor with the boss.
Ashcroft beamed. At 61, he is a devout member of the Assemblies of God, a Pentecostal denomination that disapproves of drinking, dancing, and pre-marital sex. As a boy, he never went to the movies, because, he has said, his parents told him, "If you pay 15 cents to get into a movie, 7 cents of that will go to support a Hollywood lifestyle we disagree with." But he is not indifferent to power and its trappings — indeed, he harbored strong presidential hopes as late as 1998 — and it is in his nature to combine piety with ambition. In 1995, for example, when he became the junior senator from Missouri, he was anointed by friends (in the style of "the ancient kings of Israel," he has noted) with Crisco oil from the kitchen.
Within the Justice Department, the devotional gatherings, in what had always been a determinedly secular branch, were the subject of mystery and anxious murmurs — so much so that their very existence, I am told, was at first denied by the press office. What would happen to the careers of employees who shunned such meetings? To those who protested the melding of church and state? "People were afraid of expressing their views about it," recalls a lawyer who left the department. "The major concern was: If the boss of the entire agency is doing it, to whom do you appeal?"
Besides, it was immediately apparent to praying participants that the Deity's relationship to Ashcroft was of a special and particularly intimate order. His wife, Janet, he explained to the small group, had recently been bumped by an airline but was rewarded with extra frequent-flier miles and a free ticket, leading a delighted Ashcroft to conclude, "God is working for her."
Then, according to Carrie Griffin, a young Justice Department intern who was at the prayer meeting, the attorney general turned to another matter. He wanted to make clear that forgiveness, while perfectly fine in religion, had no place in the Justice Department. "The law is not about forgiveness," he said. "It is oftentimes about vengeance, oftentimes about revenge."
That was before 9/11.
Two months later, in the wake of the attacks, a similar message was conveyed to 18 of Ashcroft's top people, gathered at 9:00 pm around a long wooden table at the Justice Department's command center. It is a secure facility, heavily insulated against electronic eavesdropping, and nearby is a vault-like room with classified material. "Things are different now," Ashcroft told the group. The role of the Justice Department had been altered, its goal now not simply to investigate crimes but to prevent them before they occur. "And if you are not ready or up for this, you should leave now," said Ashcroft. No one left, Adam Ciongoli, who was Ashcroft's counselor, tells me.
Indeed, over a period of 48 hours, Ciongoli adds, FBI agents, criminal-division chiefs, privacy-review people, even tax lawyers, eagerly trooped before the attorney general. "These are the areas where historically we've been held back" by statute, they told him. Thus was born a major congressional act — as well as other, more ambitious administrative actions desired by Ashcroft and his men. Now government was permitted to listen in on attorney-client conversations without a court order, sanction secret searches in the name of national security, impose a gag on those who were searched, jail Americans indefinitely without counsel, and detain immigrants on secret charges, while withholding their names and even their numbers from the public. Government agents have been dispatched to houses of worship. With minimal oversight, they are now allowed to monitor e-mail traffic, discover which Web sites are being visited, track some online purchases, and more easily access medical histories, credit files, and even library selections. Hundreds of surveillance and bugging operations have been launched since 9/11; 113 emergency authorizations for secret warrants were issued in the first year alone — more than twice the number granted in the previous 23 years, the most extensive investigation in the history of the United States, as the Justice Department has noted.
Some of these powers are vested in what Congress ultimately called the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, better known as the USA Patriot Act. "I remember thinking that it was rather Orwellian as a name," Vet Dinh, until recently Ashcroft's assistant attorney general for legal policy and chief author of the act, muses these days. His tone is wry, but disapproving. Dinh, a Vietnamese-born refugee of 35, thinks "the subject matter was dramatic enough" without that little touch.
Many of these new enhancements in terrorism control were more than dramatic — they were revolutionary in the rigor and sweep of their scope. Just like Ashcroft himself. Six years ago he declared, "There are only two things you find in the middle of the road, a moderate and a dead skunk." He believes that "you can legislate morality," and that any senator who suggests otherwise will simply be legislating "immorality, and we've done too much of that already." The attorney general invested his fight for the Patriot Act with a Crusader's fervor, "questioning his opponents' patriotism," as Bill Clinton's former deputy attorney general Eric Holder puts it. Holder happens to believe in much of the act (unlike subsequent Ashcroft measures), but such ill-considered attacks on critics, he adds, "have had a negative impact on necessary public support for anti-terrorism efforts."
Wisconsin Democrat Russell D. Feingold, the Senate's lone opponent of the act, was appalled when Ashcroft described critics as giving "ammunition to America's enemies and pause to America's friends." Within a mere 45 days after the World Trade Center attacks it was pushed through. (By contrast, Bill Clinton's 1996 anti-terrorism measure took almost a full year to gain passage.) Hesitant congressmen heard Ashcroft's thunder: "Your tactics aid terrorists."
"Which is sort of a low blow," Bob Barr tells me firmly. A Republican right winger from Georgia who once vigorously fought for the impeachment of Bill Clinton from the House Judiciary Committee and is now a consultant to the ACLU, Barr these days is extremely troubled. "Congress should never be intimidated into passing something that affects our constitutional rights, but in the climate of the day, those responses were, I'm afraid, likely." He was, as it happens, one of those who voted for the act — just 66 representatives declined to do so. "The most troubling vote I ever cast in eight years," he says now.
But the waning of 2001 was, as Barr suggests, not a propitious time for reflection. The country was just recovering from brutal assaults on its security and self-esteem. Some things were known even then about Ashcroft. He possesses a formidable intelligence which, when trained on those he encounters, can be perceived, depending on circumstances, as pleasant or very cold. "He stares at people like they're at the other end of a microscope," says Eleanor Dean Acheson, a top official at the Justice Department under Reno, and the granddaughter of Dean Acheson, Harry Truman's secretary of state.
Ashcroft has the broad shoulders of a football player, a sport in which he excelled in high school. Not long ago he was the enthusiastic baritone of the Singing Senators, a group that included former majority leader Trent Lott and Vermont's Jim Jeffords, who sang Ashcroft's own musical composition "Let the Eagle Soar" (" ... with healing in her wings"). The attorney general's humor is spiked with a gift for mimicking nearly anybody, most notably characters from "The Simpsons."
In the Senate, interestingly, Ashcroft won praise from civil libertarians in 1997 for supporting a bill that would have made it more difficult for the FBI and other agencies to spy on citizens as well as the respect of Senator Patrick Leahy, a Democrat from Vermont. "I worked with John on encryption and privacy issues," Leahy tells me. His tone is puzzled. "The positions he takes as Attorney General Ashcroft are different from the ones he took as Senator Ashcroft."
But Ashcroft was also known as an archconservative, a foe of abortion even in instances of rape and incest. He has supported an additional 10 amendments to the Constitution (including one to make it easier to amend). A lifetime member of the National Rifle Association, he opposed any ban on the sale of assault weapons.
The senators were aware as well of withering attacks on Ashcroft by, among others, the philanthropist James Hormel, who is homosexual, a circumstance that for along time delayed his appointment as Clinton's ambassador to Luxembourg. Hormel feels that the opposition to his nomination was led by Ashcroft (who steadfastly refused to meet with him) solely because of his sexual orientation. "That's the only conclusion I could come to," he tells me. "It was very disappointing and hard not to take personally. But, of course, it was not personal. It has to do with ideology and posturing."
It was also known at the time of Ashcroft's nomination that he had just been beaten, most humiliatingly, in his bid for re-election as senator, by a dead man — Mel Carnahan, the popular Missouri governor, whose plane had crashed weeks before Election Day.
But perhaps none of this was enough. True, in his fierce four-day confirmation battle in the Senate, he received 42 negative votes, the most ever cast against a nominee for attorney general. However, it would have helped, for example, if more people had realized that Ashcroft routinely compares himself to Christ in his 1998 memoir, Lessons from a Father to His Son, in which he refers to his campaign victories as "resurrections." Conversely, his political defeats are compared to "crucifixions." Ashcroft's determination to liken his political career to the life and death of Christ is a sign of "narcissism — without question," says Washington, D.C., therapist William Demeo. Despite reams of information dispensed by his opponents at the time of his Senate confirmation, no one seemed to know the complete Ashcroft. No one outside his home state of Missouri, anyway.
Ashcroft was the second of three sons of J. Robert Ashcroft, a Pentecostal preacher and president of Evangel College (now Evangel University) in Springfield, 220 miles south of St. Louis. J. Robert led the institution to accreditation. "A great speaker who used a lot of good, flowery words to paint pictures" is how Bud Greve, who teaches education at Evangel, remembers him. But John Ashcroft, although equally admiring, gives a different side of J. Robert, an amateur pilot, in his memoir. It opens with the words "John, I'd like you to fly this plane for a while," a command issued when John, all of eight, found himself placed at the controls of a flimsy 1940s Piper Cub in midair.
The impact of this experience was indelible. The plane went into a swoon over a Springfield farm while the boy gaped, helpless, frozen with terror: "My stomach came up to my throat and I lost all sense of time or place as fear gripped my insides." His father, John recalls, "had a good chuckle."
"And I had a good lesson: actions have consequences," he continues. Even the two-month absences of J. Robert during summers, when he went preaching around the state, yielded salutary consequences, his son believes. Young John became "stronger" and self-reliant. Besides, "Jesus Himself faced family dislocation. Remember when He cried out to His heavenly Father, 'My God, My God, why have You forsaken Me?'"
Ashcroft was an exceptional student and "very ambitious," even in junior high school, recalls his childhood friend Robert Adams, who visited the family in their modest ranch-style home, on the rural outskirts of Springfield. The town, then surrounded by cattle farms, has expanded more than twofold since the 60s, when it had only 60,000 residents. The Assemblies of God has its headquarters there, and as Jerry Boyer, another childhood friend of Ashcroft's, points out, "They were strong politically, with a lot of people on school boards within Springfield.
"You heard the term the 'Shiny Buckle of the Bible Belt'? Well, that's us," Boyer continues. "Just about every third corner has a church on it. And the Assemblies of God weren't by themselves. It's a Baptist stronghold. I guess we're just behind the times in a way. We still have pickup trucks and gun racks, and deer season is coming up, and the plumbers just quit for a week."
In many ways Ashcroft stood out from his more conventional peers: from 1963 to 1969 he received seven military deferments (including one for the apparently essential job of teaching business law at Southwest Missouri State University). He went to Yale University, then took his law degree at the University of Chicago, where, coincidentally, his future antagonist the gay millionaire James Hormel was dean of students. At Ashcroft's 2001 confirmation hearing, the nominee would suggest that Hormel had handpicked him to go to his law school. "He had the audacity to say that!" fumes Hormel. In fact, although Hormel believes he may have gone to Yale to interview prospective students when Ashcroft was enrolled there, "I do not recall an instance when I met with him." This, he adds, "means to me he was not distinguished in either a positive or negative way."
It was at law school that Ashcroft met Janet Roede, his future wife (and the mother of his three children, Martha Patterson, 34, John, 30, and Andy, 26). She caught his eye because of her "wholesome, attractive, midwestern look" and the "inherent modesty" of her dress. At the time of his marriage, as Ashcroft mentions in his memoir, he was a virgin. ("A prostitute has a sex life," he writes. "But a married person has a love life.")
For her part, Janet had a disastrous time during their courtship. While in law school she was attacked by a rapist, an experience she would discuss publicly only years later. Her revelation came on ABC's Good Morning America at the precise time of her husband's confirmation hearings — an effort, evidently, to prove his compassion for women. At the time of her rape, she declared, "John's response was absolutely perfect, which amazed me."
"Why was Janet amazed?" wonders Roy Temple, a Missouri Democratic operative who ran Carnahan's race in 1996. "Who wouldn't be sympathetic toward a girlfriend at a time like that? The Ashcrofts thought they were speaking to mainstream America, but they were really speaking to fundamentalist America!"
The religious intensity of their beliefs as well as the intolerant properties of such certitude are subjects that come up over and over again in Missouri, a state in which Ashcroft experienced a number of crucifixions and resurrections. He lost a 1972 congressional primary, was then appointed state auditor, lost the post in an election, then won the job of state attorney general in 1976 (a period during which he opposed desegregation in the St. Louis school district so adamantly that a federal judge threatened him and his state with contempt). He was elected governor in 1984 and senator 10 years later. In 1998 the ultra conservative John Birch Society awarded him second place on its legislative scorecard. (Ashcroft tied with North Carolina's Jesse Helms; New Hampshire senator Robert Smith was first.) Then Ashcroft lost that seat too. And in all that time a cloud of turmoil seemed to surround him, some hint of bad weather. In Missouri, at every step his was a polarizing career.
From Ashcroft, I receive no interview. The press is not high on his list of comfort zones. His former counselor Ciongoli explains this suspicion of the media with considerable sympathy: "If you were to realize every time you said something your critics were going to try to turn it into another caricature, you would be very careful."
But, in the mail, I receive a large pile of anonymously sent old press clippings on Ashcroft, and then, bit by bit, startling stories from sources back home, some of them very nervous.
Some 15 years ago, Missouri state senator Harry Wiggins, a Democrat and the spokesman for a bipartisan group trying to get funding restored for a Kansas City home for AIDS patients, met with Ashcroft in the governor's mansion. The Good Samaritan home, as it was then called, had received a $900,000 state grant, but, says Wiggins, "Governor Ashcroft vetoed it. I think twice."
Wiggins tried to explain the home's purpose. "This is a place they go, Governor, but they don't come back," he began. "Many of them, their families have rejected them."
"I understand. You got my attention," Ashcroft said with interest. "This is the place where it is cheapest for me to send them to die."
"Governor, these are human beings who have to have a place to live," protested Wiggins, "or they'll live in boxes under bridges."
Wiggins remembers Ashcroft's reply: "Well, they're there because of their own misconduct, and it wasn't very reputable misconduct, either."
Wiggins was puzzled. "When does misconduct become reputable? When disreputable?"
"That's beside the point," snapped Ashcroft.
Ashcroft had, it was swiftly discovered, a thin skin for a politician, and an almost bottomless capacity to nurse grudges. In 1992 an African-American Missouri legislator named Ronnie White outwitted a furious Governor Ashcroft, killing a measure that would have imposed a ban on most state abortions. Several years later, Senator Ashcroft managed practically single handedly to keep White off the federal bench.
An AP reporter who needled Ashcroft during a press conference was told, with keen menace, "Just come back sometime when we have a little private time together ... " After a mildly critical article on Ashcroft's political ads, the St. Louis Post-Dispatch's Deirdre Shesgreen was kicked off his campaign bus.
Missourians were amazed by the governor's tendency to assume the worst about more liberal colleagues. "He was very paranoid politically," recalls former lieutenant governor Harriett Woods. She is a feminist Democrat, but because the Missouri state constitution allows split tickets she served in 1986 under Governor Ashcroft, her main responsibility being to take his place in the event he was absent or ill.
"You have to promise you won't serve as governor in my absence," Ashcroft warned her straightaway. In return, he added, he might just give her something more substantive to do in office. Woods, astonished, explained that such a promise would violate Missouri law. "He blinked," she recalls. "On the other hand, he wasn't telling me or anybody when he left the state." Four years later, Lieutenant Governor Mel Carnahan — ultimately Ashcroft's nemesis — got the same treatment.
And Ashcroft's obsessions: these too were a puzzle. When, in 1985, a young man named Paul Offner applied for the job of head of Missouri's social services, Offner tells me, Ashcroft said, without preamble, "Mr. Offner, let me start by asking you if you have the same sexual preference as most men." Offner considered replying, "I haven't done a survey," before settling on a restrained affirmative. Still, he didn't get the job. (Through a spokeswoman Ashcroft claimed he couldn't remember the meeting.) Some years later Missouri state troopers were deployed to prevent Pete Busalacchi from ending the life of his comatose daughter, who had no hope for recovery. "It was a matter of one person in a high position inflicting his religious beliefs onto a family," Busalacchi said. "Is John Ashcroft's religion better than mine?"
Janet Ashcroft somehow acquired the same high-handed reputation. "It was Mother's Day, a Sunday, 1990, when I was called by my staff; who told me Mrs. Ashcroft wanted the Missouri State Library opened," recalls Monteria Hightower, who was then state librarian. Assuming the governor's wife wanted to show visitors around ("and that I could make a pitch for new computers," she adds, chuckling), Hightower left her family at home and hurried to unlock the darkened library. She found Janet, outside in a car with a driver, accompanied only by a boy of 12. With astonishment, she heard Janet's reason for her Sunday appearance at the library: "I want to find something on the Elizabethan era for my son's homework assignment."
Visitors to the governor's mansion often found themselves expected to join in prayer, and on one such occasion — it was a dinner gathering of lawyers, waited on (as is customary in the Missouri governor's mansion) by local prisoners who had earned the privilege — Ashcroft gave a family values speech. "In the course of this he said, 'Women in the workforce have become so prevalent that a man's role has been reduced to a sperm donor,'" reports one of the guests.
No one could believe it, says this lawyer. Everyone knew Janet Ashcroft had written a textbook on business law with her husband indeed, she would later teach law at Washington, D.C.'s traditionally black Howard University. Even their daughter, Martha, was attending law school. And yet, says the dinner guest, "he was serious. He didn't mean to be amusing."
Only the governor's wife appeared unfazed. Perhaps she was used to such opinions. (Last year, she declared in Missouri, "I have to behave myself, and I have to spoil him rotten, and that makes my life unbelievably stressful.") The night of the dinner, she was dressed girlishly, in a floral summer dress, with matching flowery sandals. Her earrings were roses modeled out of pink clay. The young lawyer complimented her on a particularly decorative artifact. "It's bolted down," Janet Ashcroft said meaningfully.
"Bolted down — I'm sure you know who the waiters are," echoed the governor, giving a swift glance at the prisoners, all within earshot, who served them. "You know how they are."
And the waiters? I wonder. What was their reaction?
"Stone-blank," replies the lawyer. "Stone, stone, stone. The waiters, who were all African-American, had to have heard. I love to pray, but what business did we have praying in the governor's mansion? That night I thought, We started this out with a prayer to God, and this is the way you end the evening? It makes me sick to think I prayed with him."
It was a mistake to underestimate Ashcroft as Clinton appointees swiftly discovered when he was elected to the Senate, in 1994. "He is one smart guy, a very intelligent, thoughtful person, no one to fool around with intellectually," says Eleanor Dean Acheson, whose job at the Justice Department included promoting the fortunes of federal judicial nominees in the Senate.
Ashcroft's interrogations of the nominees invariably began with variations on: "Do you believe the Constitution holds out the right of privacy" — a question that when answered affirmatively signaled the nominee supported abortion rights. Any squirming or obfuscation, Senator Leahy recalls, and some prospective judges were "held up for months and months, waiting. Senator Ashcroft would make them do it over again."
Then Ashcroft would deftly probe further: "What about the rights of the fetus? What in the Constitution guarantees rights to homosexuals?" Ronnie White, who had thwarted Ashcroft years earlier on abortion, was a dead duck. He had become the first African-American on the Missouri Supreme Court and had been nominated by Clinton to the federal bench. But Ashcroft spread the word that the judge not only was "pro-criminal" but had "a tremendous bent toward criminal activity," since he was "soft" on the death penalty (which was untrue: from the bench, White had voted 70 percent of the time to affirm the death penalty).
In fact, the depth of Ashcroft's antagonism to the nominee is inexplicable to this day to old acquaintances — so much so that Ashcroft had to deny any racial motivation for his vendetta. "Ronnie White is a wonderful judge. Ronnie would have been a wonderful federal judge," Harry Wiggins says simply.
Republican senators, including Kit Bond, the senior senator from Missouri, who had earlier promised to support White, were petitioned to stand fast behind Ashcroft, who was about to run for re-election, after all, against a powerful and popular Missouri governor. "He knew he was going to have one helluva race against Mel Carnahan, and he didn't want to be alone in fighting White," says Acheson. "He knew he would be nailed by black groups — he wanted a united front."
Although Carnahan was a devout Baptist, he was also, by Missouri standards, pretty liberal, its first openly pro choice governor. However, Roy Temple adds, "The only thing more offensive than a nonbeliever to Ashcroft is a believer who is nonfundamentalist."
In any event, the feelings between Ashcroft and Carnahan went far beyond political rivalry, to some dark core of bitterness stretching back to the days when Carnahan was lieutenant governor, left out in the cold. Once, two sources inform me, Ashcroft had confided to him about an irresponsible gubernatorial-campaign ad he had run against a 1984 adversary, Lieutenant Governor Ken Rothman. "I guess those ads I ran against Kenny weren't really fair or accurate, but that's politics," Ashcroft said. "Mel was horrified," Temple tells me.
On both sides during the Ashcroft-Carnahan Senate race there was constant sniping. The Democrats made much of the fact that Ashcroft had given the 1999 commencement address at Bob Jones University, a fundamentalist and racist institution. America's "character" was not secular, Ashcroft told the students, since "we have no King but Jesus." The G.O.P. volleyed with a 39-year-old photograph of Carnahan in blackface at a Kiwanis Club fund raiser. Carnahan apologized. As election time drew near, it appeared he might win, narrowly, but on October 16 he died in the crash of a twin engine Cessna, along with his 44-year-old son, Randy, and an aide.
Campaign workers initially felt "it was over and we should pack up and go home," says Marc Farinella, who was Carnahan's campaign manager. But "Ashcroft's conduct over the next several days of the campaign was an important factor in my not going home when Mel died." Carefully, the Carnahan family let it be known to Ashcroft that he was welcome to come pay his respects at their home — they understood his political desire to show sympathy during a tough campaign; in fact, a statement would be put out thanking him. However, they added, they didn't want him at the funeral services, where his presence might prove distracting. Ashcroft never responded to their request. He came to the services anyway. And his picture was in the papers.
"For Ashcroft to come to Carnahan's services over the family's objections — we felt that was despicable," says Farinella. "And then the icing on the cake! Ashcroft says he has to work through his grief over Mel by working at soup kitchens. He does this for exactly 12 minutes at one kitchen, showing up with cameras in tow. It was a photo op.
"At this point we said, The hell with it! So for the first time in the history of the United States, a dead man was elected to the Senate." Farinella struggles for speech, swallowing hard. "I can hardly talk about it."
Thomas Fowler, a Springfield attorney, who was once chairman of the Missouri Republican Party and an aide to Ashcroft's Senate campaign, reports that the defeated candidate was simply "very disappointed. I don't think I've ever seen him heartbroken about anything." Jean Carnahan, the widow, became the new senator from Missouri, in which capacity she voted against Ashcroft's nomination for attorney general.
After his lukewarm confirmation victory, Ashcroft was assured by his old Senate colleagues that they would not hold his previous history against him. He had a clean slate." So if it's the Senate or the Savior that wipes my slate clean, it's fine with me," Ashcroft told a group of 12 in his conference room. One listener was troubled. "It was just an unusual reference at a government meeting." At Ashcroft's inauguration ceremony, responsive reading required his audience to quote the prophet Micah, "to do justly, and to love mercy, and to walk humbly with thy God."
Within weeks of Ashcroft's arrival, the revolution began, although initially only his subordinates realized it, as it came in the form of a scolding memo. According to a former Justice Department lawyer, the phrases "We are proud of the Justice Department" and "There is no higher calling than public service," both of which had been pro forma in certain letters sent out to citizens and congressmen above the attorney general's signature, were to be excised. A call to Ashcroft's office provided an explanation of sorts: "Pride is one of the seven deadly sins; therefore we could not have a letter going out that would have the word 'pride' or 'proud.'" Moreover, "there is a higher calling than public service, which is service to God."
The oddest details seemed to carry grave theological implications, even in the Netherlands, where Ashcroft attended an international anti-corruption conference in May 2001. There, a trio of Siamese cats scampering about the residence of Cynthia Schneider, the U.S. ambassador to the Netherlands, produced alarm in the Justice advance team, according to a highly placed source. "Are there any calico cats at the residence?" they inquired of embassy staff. Ashcroft, who would be dining with Schneider, considered such creatures "instruments of the Devil," his people explained. (Ashcroft has denied any antipathy toward calico cats.)
Equally startling was the new composition of top staff. "To go from a Justice Department that was diverse, led by a woman," recalls one ex employee, "to that first wave of primarily white guys, that was a major change." Even after that first wave subsided (there was a flood of departures, including, after two years, Viet Dinh, the chief architect of the Patriot Act), the results were similar. Qualified female attorneys, complaining that Ashcroft "can't look a woman in the eye," found promotions to the highest levels almost nonexistent. Black men would be replaced by white men. In honor of Women's History Month, Janet Ashcroft, once an outspoken opponent of the Equal Rights Amendment, was asked by her husband to make a speech to women staffers. "Which is kind of a novel thing," one listener says dryly. "And he introduces her by saying she's the woman who taught him how to put dishes away. Yes, that's what he said to the women lawyers. He said she taught him you should rotate your china, put your new plates on the bottom of the stack, so you don't wear them out."
In those early days, the attorney general himself seemed already worn out at least he made it clear that the long briefing papers that had been Janet Reno's reading matter had to be reduced to what one former staffer describes as "a paragraph of background and a paragraph of talking points" per issue. But such abridgments were found onerous as well. "Do I get extra credit for reading all this?" mused Ashcroft, looking at 12 pages.
After 9/11, however, the pace stepped up. "There were a series of teams that came in to talk about changes in immigration law, FBI-related changes," recalls Adam Ciongoli, and Ashcroft spent hours probing their desires for the legal revolution in fighting terrorism with his usual analytic skill. "Why do we need this? What does it do? Are there any constitutional concerns?" he would ask. And then, most significant: "Are we allowed to do this in other areas of law enforcement?"
And that was just the problem, say his critics. It was amazing, in retrospect, the range of options that had been permissible all along in other areas of the law. Government, for example, has long been able to pierce attorney client privilege in certain cases by listening in on such conversations when the attorney himself may be facilitating a crime. "We did it under Clinton," says former deputy attorney general Eric Holder, "but we went to a judge to do it." Under Ashcroft, two years ago, this need for judicial approval was erased, providing both attorney and client were informed. Now it's up to Ashcroft to decide if there is "reasonable suspicion" to believe a conversation between a detainee and his lawyer "may" further "acts of terrorism."
Traditionally, the government has also been able to "sneak and peak," gaining access to the contents of homes, offices, and even library selections without immediately informing a suspect. Within the context of the Patriot Act, however, such measures have produced a heightened degree of alarm — and for good reason. Since 9/11 more than 18,000 anti terrorism subpoenas and search warrants have been issued. Last May, Ashcroft's people acknowledged that they had sought 248 times to delay notifying a target of an investigation. Moreover, now, as Vet Dinh tells me, you don't really have to be a suspected foreign agent to have your fife examined by law enforcement officials, just perhaps the possessor, he says, of some "evidence relating to an investigation" on terrorism. The government may seize business records and other information by seeking an order from the Foreign Intelligence Surveillance Court, a body that sits in secret and where the standards of proof are lower than in criminal court. Probable cause does not apply. And as for the search itself, Dinh adds, "There is a provision to make it confidential."
Meaning a gag order, I say.
"Exactly," says Dinh.
Meaning if you've been searched, you can't even call your local congressman to complain?
"Exactly."
This is the kind of legal expansionism that causes Bob Barr to worry about the latitude that gave rise to it, long before 9/11. "Maybe we ought to look at those old criminal applications of the law and see if they are constitutional," he says. What about the Fourth Amendment?, he wonders. "If we are really entering an era when government can pre-emptively gather evidence on individuals to prevent future crimes, if that is what the administration wants to do, then they should propose rescinding the Fourth Amendment, or dramatically amend it. If they want to do it, do it honestly."
Barr warms to his subject. "That's the argument I use with the gun control folks." Repeal the Second Amendment, he tells them, if that's your real aim.
More alarming to civil libertarians than the Patriot Act ("In truth, the Patriot Act is simply a metaphor for all these civil liberties violations," Laura W Murphy, the ACLU's chief lobbyist, tells me) are subsequent government decisions. Americans on American soil learned that they could be jailed indefinitely as "enemy combatants," a status that has its origins in World War II. Foreigners guilty of mild infractions of immigration law (including Pakistani editor Ejaz Haider, who had been invited to the United States by the State Department but who was detained after failing to check in with immigration authorities within 40 days of his arrival) can be picked up on the streets by armed men. Or detained and deported, often without benefit of counsel. Or worse.
The Justice Department's own inspector general, Glenn A. Fine, reported last year that in Brooklyn's Metropolitan Detention Center some guards slammed inmates against walls, dragged them by their arms, stepped on the chains between their ankle cuffs, and promised prisoners, "You're going to die here."
In fact, of the estimated thousands of detainees rounded up and subjected to preventive detention ("We don't know how many," Senator Leahy acknowledges), few were prosecuted and only two found guilty. Not a real fine haul, I suggest to Ciongoli, who is very tall, with piercing dark eyes. Ciongoli is one of many who recently left the Justice Department. (He now works at Time Warner.) He is an Ashcroft friend, a former Senate staffer who lobbied hard to prevent Ronnie White from becoming a federal judge. These days he doesn't understand the fuss made about the anonymity of detainees, whose names and numbers, were they known, might help al Qaeda, he says. Besides, "no one was stopping them from identifying themselves," he points out solemnly.
As for the minuscule number of convictions, the question is, says Ciongoli, "Are we making the country safer?" The answer? "Categorically yes! I mean, if you look at 9/11 hijackers, most of them we couldn't have charged with anything .... So it's entirely possible that the people we rounded up, based on suspicion that they were linked to others, were trying to do the same thing! They looked a lot like the 9/11 hijackers. They appeared to be otherwise largely law-abiding. They were in violation of their immigration status, and we had varying levels of information about their affiliations with groups that caused us concern."
How does that satisfy the Constitution? I wonder.
The dark brows lower. "We are entitled to arrest, detain, and deport them! You're characterizing it as a tiny haul!" He is distinctly annoyed. "Uh, I'm finding some of your questions interesting in their characterization in what appears to be, candidly, sort of a hostile bias."
There is an uncomfortable moment here, during which I am reminded of a conversation I had days earlier with David Keene, the head of the American Conservative Union. "Where I fault Justice and the attorney general," said Keene, "is in the disingenuous way they defended the Patriot Act and then tried to imply that anyone who faults the act is either in league with terrorism or not sensitive to terrorism."
Then Keene said, "I don't believe I have to give up my conscience to be a good conservative." If there's another attack, he adds, "you can bet" there will be worse to come.
In late 2003, it was learned, the government began using the Patriot Act against suspects who had little or no connection to terrorism. "We thought that was going to happen, and it did happen," says Keene. "Remember when RICO [the anti-racketeering act] was used against organized crime and now it's used against any four people who get together? Now Justice is sending out memos saying, 'Hey, you can use this against other criminals.' Because of a real threat, we have allowed the bar to be lowered."
Thus, the owner of a strip club, accused of paying off officials to allow contact between topless dancers and customers, discovered that the Patriot Act was used to get subpoenas for his financial documents. ("Clearly within the legal parameters of the statute," declared FBI special agent Jim Stern.) A lovesick 20-year-old California woman who wrote threats on board a cruise ship in order to return home swiftly to her boyfriend received two years in a federal prison again thanks to the Patriot Act, which mandates stiff penalties for making false threats on mass transportation. With the help of government's ever-expanding powers, suspected blackmailers, child pornographers, drug traffickers, and a computer hacker who stole trade secrets have been pursued. Hundreds of cases in all, say grateful Justice Department officials. "Prosecutors already have the tools they need," says Holder, clearly puzzled. But evidently, they want more.
Last February, a proposal known as the Domestic Security Enhancement Act (nicknamed Patriot II) leaked from the Justice Department, causing instant consternation — at which point Ashcroft assured everyone that it was simply a draft, that's all. It gave a fair idea, however, of options being considered. "I don't think it's dead by any stretch of the imagination," says Barr. The ACLU's executive director, Anthony Romero, observes, "It was clear Ashcroft was caught with his hand in the cookie jar. But what you're finding now is that they're taking pieces of Patriot II and sprinkling it across pieces of legislation."
Among its provisions: the creation of a DNA database of terrorism suspects and their associates. The power to wiretap Americans for 15 days without a court order after terrorist attacks. The ability to block bail for terrorism suspects, make secret arrests, and expand the federal death penalty to convicted terrorists. In addition, as Patriot II revealed, the government would like to revoke the American citizenship of anyone who helps an organization the attorney general deems terrorist.
Your idea, to revoke U.S. citizenship? I ask Viet Dinh.
Dinh wrinkles his nose, his expression suffused with disgust. "Nor do I think that that policy, vetted, would satisfy legal, constitutional strictures," he says. In fact, he is troubled about more than this — about Jose Padilla, for instance, who was suspected of planning to detonate a "dirty bomb." American-born-and-raised, he was arrested at Chicago's O'Hare airport, was designated an "enemy combatant," and has been consigned to a military prison since June 2002. "I do not necessarily agree with the position the president and the U.S. government is adopting with respect to military detention," Dinh says. Four weeks later, the second U.S. Circuit Court of Appeals agreed with him.
"Hysteria" is how Ashcroft describes citizens' concerns. "Castles in the air. Based on misrepresentation. Supported by unfounded fear. Held aloft by hysteria." Significantly, he said this in a speech in Memphis, and not to his old colleagues in Congress, whom he now largely ignores.
"As attorney general, he is extremely reluctant to testify and appear," Leahy complains. "Jim Sensenbrenner of the House Judiciary Committee had to threaten to subpoena his answers. Senator Arlen Specter said to Ashcroft, 'How do we communicate with you?' It's a big mistake." There are issues Leahy would love to discuss with his old colleague: Ashcroft's demand that judges who impose more lenient sentences than those prescribed by federal guidelines be monitored by prosecutors, who must then report back to him. The roundup of detainees. The fate of those deported to countries famous for human rights violations. But the attorney general isn't available for consultation. As far as Ashcroft is concerned, says Leahy, "Congress is irrelevant."
Much more significant, however, is the second revolution Ashcroft has fomented, this one entirely inadvertent and not as well known to the general public. How could Ashcroft have possibly imagined the unlikely alliances his measures would promulgate? Or that the very patriots on whom he had counted would be trampling down party lines, massing in their zeal and fervor — against him? These days Chief Justice William Rehnquist is as one with the American Bar Association and Victoria Toensing, former deputy assistant attorney general of the criminal division at Justice, in his denouncing Ashcroft's incursions into judicial independence. ("I helped get those sentencing guidelines passed in 1984, God help me," says the staunch Republican Toensing, "and that's what they were: guidelines.") Within the courts there seems to be a significant mutiny taking place. "They can have their blacklist," Michael B. Mukasey, chief judge of the U.S. District Court in Manhattan, said recently. "But we have life tenure."
With special pride, Ralph Neas, president of Norman Lear's liberal advocacy group, People for the American Way, informs me that the chief speakers at his last conference were the conservative Keene and Grover Norquist of the right-wing Americans for Tax Reform, along with the liberal actor Alec Baldwin. With undisguised glee, Anthony Romero, the openly gay 38-year-old head of the ACLU, discusses former congressman Bob Barr.
You and Barr, such strange bedfellows, I tell Romero.
"Yes, Bob Barr and I are a great couple, really we are equals," Romero replies with a laugh. He appears to be giving consideration to the strange new legal world in which we find ourselves, for better, for worse. "Maybe if they give us the right to marry one day, I can propose to him."
