The Magazine

That Devil Ashcroft

From the March 3, 2002 issue: John Ashcroft: civil-liberties menace?

Mar 3, 2003, Vol. 8, No. 24 • By DAVID TELL, FOR THE EDITORS
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A FEW WEEKS BACK, a Washington-based "investigative research" outfit called the Center for Public Integrity announced that it had recently "obtained" a large and significant set of confidential legal papers from someone inside the Justice Department--a someone whose name the Center for Public Integrity did not make public, his integrity being of a sort that bar association ethics panels and the department's own Office of Professional Responsibility tend not to recognize.

Never mind that, though. For CPI executive director Charles Lewis, the leak was a stroke of purest good fortune. He runs a scrupulously nonpartisan shop, you understand, and his donor list represents the full spectrum of American viewpoints, from the Gaia Fund to the Streisand Foundation and everything in between, and he cares only for the public interest, let the chips fall where they may. Okay, sure: If by chance, when fall they do, those chips should happen to embarrass a Republican, like that awful John Ashcroft fellow, well, then the good folks at CPI probably aren't going to start weeping in their beer, exactly. But never mind that, either. What matters is that an anonymous, self-styled whistle-blower gave Charles Lewis a copy of the latest "secret" Big Brother plan being hatched by awful John Ashcroft's awful staff henchmen, and that Lewis then made out like Paul Revere, rushing to warn each Middlesex village and farm--and all the Justice Department beat reporters, too--of an imminent and positively "breathtaking" threat to the Republic and its freedoms.

Also, Lewis made a photographic facsimile of the document in question--apparently an advanced but less-than-final draft of omnibus anti-terrorism legislation provisionally entitled the "Domestic Security Enhancement Act of 2003"--and posted it on CPI's Internet home page. Where it remains to this day, and where anybody interested might long ago have tracked it down and read the thing.

Which otherwise humble and obvious piece of information turns out to be the entire episode's explanatory linchpin, and much the most depressing aspect of all the overheated commentary it's occasioned. Because, as anybody who does take the trouble to track down and read the "Domestic Security Enhancement Act of 2003" very quickly begins to suspect, the overheated commentary it's occasioned is ill-informed--so freakishly ill-informed, in fact, as to constitute something close to an outright hoax, the punditry equivalent of one of those "I am treasurer of the Nigerian exile government" e-mail money scams. You wouldn't think it possible, but in this case, unfortunately, it cannot be dismissed out of hand: The pundits involved, Charles "Public Integrity" Lewis included, may barely have glanced at, much less earnestly studied, the very same Justice Department proposal they claim to find scandalous.

Yet none among the claimants seems ever to have been bothered by the fear he might be exposed as a humbug. None has hesitated to allege--by reference to wholly imaginary details purportedly contained in a draft legislative package Ashcroft has not yet been presented for review--that the attorney general of the United States, left to his own devices, would dismember the Bill of Rights and establish a police-state autocracy in its place. What's more, far worse, it's not at all clear that the confidence with which Messrs. Lewis & Co. are circulating such a paranoid fantasy is the slightest bit misplaced. Demonstrably paranoid and fantastic the notion may be, but these days, for some reason, a great many perfectly respectable Americans have come to accept it, on some level, as truth--the kind of postulatory truth that's immune to disproof. Everybody knows that John Ashcroft is a not-so-closet fascist, just as everybody once knew that the Sun orbited Earth. And practically no one who isn't a Bush administration political appointee seems prepared to raise much fuss in dissent.

Try counting the dissenters on your fingers if you think we exaggerate. The depth and ubiquity--and the gestural, pietistic, sub-rational character--of suspicion and contempt now routinely directed against federal law enforcement initiatives, real or prospective, obeys no standard boundary of politics or ideology. What John Ashcroft proposes, a veritable universe of articulate American opinion lately opposes, pretty much sight unseen. And not everybody in that universe depends for his salary on the Gaia Fund or Streisand Foundation. At least where the Justice Department's present "war on privacy" is concerned, what meaningful difference any longer exists, at the end of the day, between a man like Charles Lewis and...oh, say, Bill O'Reilly, to take one random example?

Professor O'Reilly, of course, holds the Factor Chair in constitutional law at Fox News Channel University, where he propounds a famously illiberal jurisprudence; "I'm not the ACLU poster boy," as he puts it. But he has "read over this Domestic Security Enhancement Act" business, and it's all of a sudden got him ACLU-poster-boy-quality mad. This thing's "not going to fly with me," O'Reilly lectures. "Ashcroft is throwing sheets over statues. Come awwn." The Factor seems particularly exercised about the might-be proposal's would-be amendment to one such statute in particular: Title 42, Section 14132 of the U.S. Code, which currently delimits the FBI's authority to collect and maintain DNA identification records for past federal offenders. According to Charles Lewis's purloined document--according to Bill O'Reilly--the Ashcroft crowd now wants to rewrite this provision so that any old "cop" can "go up to you and me--no reason, all right?--and say, 'Hey, give me that DNA sample'. . . . I can be, and you can be pulled over, and anybody watching could be pulled over. And a cop could take you right out of the car and say, 'Hey, give me your fingerprints right now.'"

O'Reilly is hardly the only person who pretends to have "read over" the legislative language at issue and found in it a chromosomes-on-demand, everyone's-cellcode-in-the-computer nightmare like this. Similarly dystopian accounts of a "secret" Justice plan for double-helix surveillance--"secret," truth be told, only in the sense that this magazine's next issue will be a "secret" until we've finished writing it--are also on offer from, yes, the ACLU. And from Charles Lewis and columnist William Safire, too. And from more unsigned newspaper editorials, for that matter, than any one man could hope to read in a month. Each of these accounts is fabricated, however.

Just for starters, federal law cannot authorize non-federal, local "cops" to do anything at all, and not a word in the "Domestic Security Enhancement Act" draft suggests otherwise. More to the point, by its own plain terms, the document contemplates expanded DNA collection authority for federal officials only and specifically with respect to "enemy combatants" so designated by the president personally, prisoners of war, battlefield detainees, and people arrested as "suspected terrorists." This last is no vague, catchall phrase, incidentally. It is a term of art explicitly defined by law--such that its application must always rest on an individualized showing of suspicion, the persuasiveness of which may always be challenged in the courts.

Nobody is planning to pull "you" from your car and demand "you" turn over a pair of your genes.

Nobody is planning, as Charles Lewis somehow convinced Bill Moyers during an interview on PBS, to "strip [your] citizenship" just because "you were found making what you thought was a legitimate contribution to some non-profit organization and months from then, that . . . organization were deemed by the government to have been in some way supporting terrorists...even if you didn't know." Yes, "that's right," Lewis replied. Except that no, it's not. Here again, by its own plain terms (and in this case, consistent with governing Supreme Court precedent), the "secret" Justice plan would fully embrace the classic mens rea standards of criminal law: The government would first have to prove that "you" had knowingly and intentionally provided material support to a terrorist group known to be engaged in ongoing hostilities against the United States--essentially, that you were guilty of treason. Then and only then would the Justice Department possess discretionary latitude, through the vehicle of a regular expatriation proceeding in a regular court subject to regular constitutional strictures, to question your continued entitlement to citizenship.

ACLU legislative counsel Tim Edgar says the "Domestic Security Enhancement Act" would mean that "an activist who is simply gathering information on human rights violations could be wiretapped on the theory that they are gathering information for a foreign intelligence power, without any indication that they are violating the law or that their activities present a threat to national security." Mr. Edgar is wrong about that; the relevant provisions of the bill contain a mens rea requirement.

And so on.

No one need feel sorry for John Ashcroft personally; he doesn't seem to mind his critics all that much. Neither should anyone suppose that the mere existence of their criticism poses a consequential public policy problem in and of itself. Quite the contrary: Even in times of relative calm, how the attorney general of the United States balances considerations of public safety and individual rights in his administration of federal law is a subject of enormous importance. And any related proposal he advances should therefore warrant scrupulous public attention. The "Domestic Security Enhancement Act," should it ever formally debut, will be such a proposal. It ought to get some serious criticism.

But that's not what's happening. The criticism isn't serious; it is uniformly self-indulgent, heedless of detail, and hysterical. And especially in an age of terrorism, an insistence on the right kind of public debate should count as more than merely an aspirational nicety of goo-goo political science. Yes, civil liberties are at stake. But people's lives are, too. Executive-branch initiatives intended to help save those lives do not become "instruments of repression used by totalitarian states" (as the San Francisco Chronicle has lately suggested)--and ought not be set aside on that basis--purely by dint of the fact that they originate at staff levels of a Justice Department led by a Republican named Ashcroft. Nobody's civil liberties are advanced by lying about the government this way.

--David Tell, for the Editors