On Terror and Spying, Ashcroft Expands Reach
WASHINGTON, March 14 — In the bureaucratic reshuffling
over domestic security, Attorney General John Ashcroft came out a winner.
grabbed control of the Bureau of Alcohol, Tobacco and Firearms and with
it an issue dear to his conservative agenda, guns. And he shucked responsibility
for two areas of law enforcement that had brought ridicule to the Justice
Department, the color-coded threat alert system and immigration.
In recent months, Mr. Ashcroft, once regarded as a peripheral, even
clumsy, player in the Bush administration, has not only honed his skills
as a bureaucratic infighter, he has also patched his tenuous relations
with President Bush, who told Mr. Ashcroft last month that he was doing "a
With the addition of nearly 5,000 law enforcement officials from the
firearms bureau, Mr. Ashcroft has again expanded the policing authority
of the Justice Department, a hallmark of his tenure as attorney general.
And with the fight against terrorism as his soapbox, he has pushed the
powers of federal law enforcement in directions few thought possible
before the Sept. 11 attacks. His reach extends not only to counterterrorism,
but also to issues like the death penalty and gun policy, which he attacks
with equal aggressiveness. Despite a years-long effort as a senator from
Missouri to shrink government, Mr. Ashcroft has significantly broadened
the reach of the attorney general, legal scholars and law enforcement
All of which has left his many critics increasingly worried.
Even some of his conservative peers complain that Mr. Ashcroft may have
grown too powerful. To his critics, Mr. Ashcroft is a Big Brother figure:
an attorney general whose expanding scope has allowed the Justice Department
to use wiretaps, backroom decisions, and an expanded street presence
to spy on ordinary Americans, read their e-mail messages, or monitor
their library checkouts, all in the name of fighting terrorism. And the
department's consideration of proposals that could give it still greater,
secret counterterrorism authority has provoked a fresh round of concerns.
The former Republican congressman Dick Armey, on his way out the door
last year as House majority leader, said he thought Mr. Ashcroft and
the Justice Department were "out of control."
And Representative Jose E. Serrano, Democrat of New York, told Mr. Ashcroft
at a hearing last week: "I fear some officials are so intent on
fighting against terror that they forget what we are fighting for. People
across the spectrum fear for our civil liberties."
Talking in his office, Mr. Ashcroft scoffs at the accusation that the
department has become too expansive or that he has secretly tried to
usurp authority from Congress in an effort to expand his burgeoning base.
He says he is happy to defer to Congress.
"I don't want to be in control," he said in an interview last
week. "I had a chance to be a part of that, and enjoyed it while
I was there, but I don't aspire to be legislative."
Mr. Ashcroft has managed to blunt Congressional criticism through the
carefully timed announcements of one major terrorist arrest after another.
And he has also emerged as a useful political foil for President Bush.
While the president has visited mosques to deliver a message of respect
for Muslims, for instance, it was left to Mr. Ashcroft to orchestrate
an unpopular program to register Middle Eastern immigrants. And after
Mr. Bush last year announced that he wanted to enlist workers for a terrorist "tips" program,
Mr. Ashcroft was dispatched to Capitol Hill to defend the unpopular idea.
"I think Ashcroft understands that he's a lightning rod for this
administration," said a Justice Department official close to the
attorney general who spoke on the condition of anonymity. "He's
at the center of so many different policies — terrorism, affirmative
action, the death penalty — and he's no stranger to controversy.
He's been living it all his life."
Shifting Philosophies Evolving Position On Government Size
Mr. Ashcroft is an unlikely figure to lead the Justice Department's
expansion: a politician who sharply attacked big government and privacy
intrusions and fought for states' rights is now orchestrating one of
the most sweeping federal expansions in law enforcement history.
Two years after he was confirmed by the slimmest margin for an attorney
general in 75 years, Mr. Ashcroft has not only survived that bruising
fight and a malaise that seemed to follow it, but is drawing comparisons
to Robert F. Kennedy and Franklin D. Roosevelt's attorney general,
Francis Biddle, in the muscle and ambition he has brought to the job — for
better or worse.
"For Ashcroft, the evils are pervasive," said Nancy Baker,
a professor at New Mexico State University who wrote a history of the
attorney general's office. "The current attorney general sees himself
and the Justice Department as engaged in a systemwide struggle between
good and evil, and that therefore requires very aggressive and comprehensive
Nicholas M. Gess, a senior Justice Department official in the Clinton
administration, said that the powers Mr. Ashcroft had secured "impact
the average law-abiding American much more so than acts of other Justice
Departments in the past" and represent an expanded role for the
federal government "that one would have thought would be anathema
To his supporters, however, Mr. Ashcroft's metamorphosis shows a man
willing to do what it takes to protect American lives.
"Nine-eleven clearly changed his thinking on the nature and role
of government in a very fundamental way," said Don D. Trigg, a former
aide who remains close to Mr. Ashcroft. "He's willing to tolerate
a level of government activism that perhaps he wouldn't have been willing
to embrace before those attacks."
The changes have been both structural and ideological.
After years of friction between the Justice Department and the F.B.I.,
Mr. Ashcroft has developed a close relationship with the bureau's director,
Robert S. Mueller III, in overseeing the F.B.I.'s heavily scrutinized
effort to remake itself.
He has given agents new powers to spy on possible terrorists, detain
suspects and look for patterns that could predict terrorist attacks.
He has centralized power at the Justice Department among a small inner
circle of political appointees, frustrating some career officials and
prosecutors in the field who complain that the attorney general has undercut
their authority in order to further his own agenda.
And, working with the White House, he and his aides have pushed for a
more conservative ideology on the judiciary and on appellate issues like
the Michigan affirmative action case being considered by the Supreme Court.
There have been exceptions in which Mr. Ashcroft and the Justice Department
have veered toward restraint. Most notably, his settlement of the landmark
Microsoft antitrust case, approved by a federal judge last year, allowed
the software giant to avoid a break-up and was criticized by the company's
rivals as weak and ineffective. Many competitors have now gone to European
regulators in hopes of reviving broader action.
On terrorism and other critical issues, however, Mr. Ashcroft has clearly
pushed for a more aggressive federal posture.
Indeed, civil rights advocates, targeting him in recent newspaper advertisements,
accuse Mr. Ashcroft of using the counterterrorism campaign to run roughshod
over the rights of Americans, while even some conservatives who support
many of his policies say they are concerned that he has become immune
to criticism and insulated from Congressional oversight or input.
Senator Charles E. Grassley, Republican of Iowa, said in an interview
that while he considers himself a friend of Mr. Ashcroft, he has become
increasingly "frustrated" by the Justice Department's inaccessibility
and its refusal to give Congress timely and accurate information about
"I believe in transparency, and when I write a letter to Ashcroft,
I expect an answer and I expect complete information," Mr. Grassley
said. "If they would consult me a little bit sooner, I could keep
them out of a lot of trouble."
The latest imbroglio flared last month when an 80-page draft of a Justice
Department plan to expand the department's counterterrorism powers was
leaked in the news media. The plan, a proposed sequel to the Patriot
Act, would seek legislative measures to broaden the Justice Department's
authority for granting intelligence warrants and invalidate local consent
decrees that curb police spying, among other ideas discussed.Justice
Department officials say the ideas were only in their early discussion
stages. "Percolating ideas into the system is very important," Mr.
Ashcroft said in the interview.
Still, many lawmakers were incensed because they said the Justice Department
told them repeatedly that no such plan was even in the works. Senator
Patrick J. Leahy, Democrat of Vermont, accused department officials of
lying to his staff, and he said in an interview that the department's
secrecy worries him because it suggests that when a formal proposal is
prepared, "we're supposed to roll over and play dead and just pass
Groups like the American Civil Liberties Union, meanwhile, see the document
as a dangerous expansion of powers they believe have already grown too
"John Ashcroft has clearly abused his power," said Laura W.
Murphy, director of the A.C.L.U.'s Washington office. "He is supposed
to be the chief enforcer of the Constitution for the executive branch,
but he has given lip service to constitutional rights and has systematically
eroded free speech rights, privacy rights and due process rights, in
the context of fighting the war on terrorism."
Guns and Death Penalty: Expanding a View Of Government's Role
The dominance of the terrorism issue has often obscured the expanded
federal presence that Mr. Ashcroft has brought to other issues as well,
legal experts say. Whether challenging Oregon's assisted-suicide law
or prosecuting "medical marijuana" users in California despite
a state initiative legalizing the practice, he has used the weight of
the Justice Department in ways that have reversed past policies and that
some legal scholars say have impinged on the rights of states.
Perhaps nowhere has Mr. Ashcroft's personal imprimatur on traditional
law enforcement issues been seen more clearly than in the areas of guns
and the death penalty, separate but related areas in which he has pushed
for a more expansive view of the federal government's role. While he
has fought to protect and expand gun owners' rights, he has often pushed
for the most severe punishments available — draconian measures,
death penalty opponents maintain — against those who use guns or
other weapons to commit capital crimes.
After Mr. Ashcroft took office, the National Rifle Association declared
him "a breath of fresh air," and officials there said he has
not disappointed them.
Chris W. Cox, the N.R.A.'s chief lobbyist, said that after eight years
of what the group saw as hostile attacks by the Clinton administration,
Mr. Ashcroft's support of the Second Amendment "obviously was a
change welcomed by our country's 80 million gun owners."
In one crucial development, the Justice Department argued before the
Supreme Court last May that the Second Amendment "broadly protects
the rights of individuals." That stance was at odds with decades
of official government positions holding that the Second Amendment ensured
only a collective right of the states to organize militias.
Gun control advocates say that at least 40 people nationwide have now
cited Mr. Ashcroft's interpretation of the Second Amendment to challenge
their gun convictions and that, if adopted by the courts, that view could
essentially invalidate existing laws like assault weapon bans.
Gun control groups have also attacked Mr. Ashcroft for seeking to have
records on gun sales in a federal database destroyed after 24 hours and
for barring the F.B.I. from using those records in its terrorism investigations.
The attorney general further riled some Democrats last week by refusing
to support a reauthorization of the ban on assault weapons, a retreat
from the position of support he took at his confirmation hearing.
"He's the most pro-gun attorney general in American history," said
Mathew S. Nosanchuk, a gun law specialist with the Violence Policy Center.
And with the Justice Department now assuming control of gun enforcement
from the Treasury Department, he said, "It's the fox guarding the
Even some officials at the F.B.I. questioned the value of moving the
bureau of Alcohol, Tobacco and Firearms to the Justice Department, saying
in a draft report last year that it could undercut the F.B.I.'s authority
to investigate terrorism and bomb cases.
But Mr. Ashcroft said the Justice Department's new oversight of the
firearms bureau is "one of those happy marriages," and he predicted
a continued upturn in gun enforcement — one of his top priorities.
Federal gun prosecutions are up 32 percent in his administration.
No less controversial has been Mr. Ashcroft's pursuit of the death penalty.
A vivid episode came after John Muhammad and Lee Malvo were arrested
in last October's Washington-area sniper shootings. With different jurisdictions
vying to prosecute them, Mr. Ashcroft made the final call based in large
part, his aides acknowledged, on where the two suspects would stand the
best chance of being executed if convicted.
"It is appropriate — it is imperative — that the ultimate
sanction be available for those convicted of these crimes," he said
in announcing that Fairfax and Prince William counties in Virginia would
get the cases.
Mr. Ashcroft's critics say the exercise was an unseemly effort to impose
his strong personal support for capital punishment.
James Wyda, a lawyer who represented Mr. Mohammad in Maryland, said
the death penalty "is driving the Justice Department's decision-making
in unprecedented ways."
Mr. Ashcroft also surprised many legal observers by seeking the death
penalty against a former Air Force intelligence officer, Brian P. Regan,
who was accused of plotting to sell national secrets to Iraq, Libya and
China. A Virginia jury convicted him last month but spared his life.
Although the Justice Department has not released data on Mr. Ashcroft's
death penalty decisions, lawyers who have tracked the issue say he appears
to have been much more willing than his predecessor, Janet Reno, to override
the recommendations of his own prosecutors and order capital charges
in federal cases.
Of 283 cases before him, Mr. Ashcroft has overruled prosecutors who
sought leniency 30 times and overruled death penalty recommendations
7 times, according to Kevin McNally of the Federal Death Penalty Resource
Counsel Project, which collects and provides information to lawyers defending
in capital cases. In a Long Island case last month, Mr. Ashcroft made
the unusual decision to reject a proposed plea agreement with a defendant
who had agreed to testify against others tied to a deadly Colombian drug
ring in exchange for a life sentence.
Mr. Ashcroft and Assistant Attorney General Michael Chertoff, head of
the criminal division, said the department's main objective in assessing
capital cases is to ensure a fair and consistent national application
in keeping with federal death penalty laws.
But Jamie Orenstein, a former Justice Department official who advised
Janet Reno on capital cases, said: "It's a certain kind of uniformity
they are going for. They are reshaping the entire country in the shape
of the most aggressive jurisdictions."
While the department's strong stance has drawn support from some law
enforcement officials and legal experts, others believe it runs counter
to national trends showing declining public support for the death penalty
and an increasing willingness by some states to consider moratoriums.
"He is certainly the first attorney general in the United States
in the last half-century with any kind of enthusiasm for executions," said
Franklin E. Zimring, a law professor at the University of California
in Berkeley who specializes in law enforcement issues. "He has an
affirmative belief in them. That is far outside the mainstream of recent
American thinking about capital punishment, even among people who support
the death penalty."
War on Terrorism: A Change in Mission After Sept. 11
The attorney general was flying on a Cessna jet over Detroit en route
to a Milwaukee appearance that September morning when he got the emergency
call and his face turned ashen.
On the back of the speech he was delivering that day, he scribbled: "Tower
has been hit. Second tower has been hit," recalled Susan Dryden,
an aide with him on the flight.
"He got off the phone and his first words to us were, `Our world
has changed forever,' " she recounted. "He knew immediately
that his department was going to be at the center of everything that
was about to happen."
In Mr. Ashcroft's seven months on the job before the attacks, some associates
said he seemed adrift, almost bored. "He was still trying to find
his niche," an aide said. There was even speculation — vigorously
dismissed by his advisers — that he might try another run for the
But the Sept. 11 attacks energized him, some aides said.
Within days, he dispatched a top adviser, Viet D. Dinh, to develop a
package of legislative proposals to give the F.B.I. broadened powers
to wiretap suspects, use intelligence information in criminal cases and
trace dirty money, among many other long-sought changes. After a brief
but spirited tussle with some members of Congress who succeeded in putting
in "sunset" provisions that capped the life of the changes,
the package became the historic and controversial U.S.A. Patriot Act.
In the months that followed, Mr. Ashcroft would become a fixture at
the F.B.I.'s terrorism command center and briefed the president almost
daily as the Justice Department sought to deter the possibility of future
attacks. Terrorism has so dominated his schedule that he even suspended
his morning prayer meetings at the Justice Department — a practice
challenged by some critics as improper — because they conflicted
with his White House terror briefings.
There have been clear stumbles along the way in the counterterrorism
campaign. Some members of Congress remain unconvinced that the F.B.I.
is up to the task of leading counterterrorism operations, the department's
terrorist warnings have prompted confusion and complaints from the public,
and the case against Zacarias Moussaoui, the suspected "20th hijacker," has
threatened to derail because of unforeseen legal problems, among other
issues. The department's prosecutions of terrorist financiers and John
Walker Lindh have also been criticized as flawed and heavy-handed, with
convictions obtained on only a small portion of the original charges
filed against the defendants.
But Mr. Ashcroft said last month's capture of Khalid Shaikh Mohammed
represents a significant and potentially crippling blow to Al Qaeda. While
"it would be foolhardy" to underestimate Al Qaeda's ability
to regroup, Mr. Mohammed's capture is "a serious impairment"
to the organization, he said.
"I feel like we are winning the war on terror," he said.
Since the Sept. 11 attacks, the Justice Department says it has doubled
the number of counterterrorism investigations and has issued more than
18,000 search warrants and subpoenas. Prosecutors have brought terrorism
charges in more than 200 criminal terrorism cases, with Mr. Ashcroft
often seizing the spotlight — and sometimes riling administration
officials — by personally announcing the high-profile ones, like
Mr. Lindh, Mr. Moussaoui and suspected "sleeper cells" around
the country. And prosecutors have secured convictions so far in about
half, the department says.
Mr. Ashcroft has worked with the White House and the Pentagon to set
up a hotly debated system for using military tribunals to try "enemy
combatants" outside civilian courts, and he has pushed for closer
cooperation with the C.I.A. after years of mistrust.
He has rewritten the quarter-century-old Justice Department guidelines
for the conduct of agents, lifting restrictions imposed after political
abuses by the F.B.I. and allowing agents to monitor libraries, political
groups, religious facilities and the Internet in seeking out terrorists — despite
protests from many groups.
And, working closely with Mr. Mueller, he has created dozens of new
Joint Terrorism Task Forces around the country, and he has overseen the
reorganization of the F.B.I. as it moved to pour additional agents and
resources into counterterrorism, hire and train new analysts and linguists,
and create "flying squads" of terrorism specialists to zero
in on terrorist hot spots.
"I've never seen agents get as excited about changes as this," Nancy
Savage, president of the F.B.I. Agents Association, said of the recent
changes put in place by Mr. Ashcroft. "It's like `thank God, we're
finally getting some tools we should have gotten a long time ago.' "
Mr. Chertoff, the criminal chief, said that wholesale changes would
likely have taken place no matter who the attorney general was on Sept.
11, 2001. "I don't know that it would have been different under
anyone else," he said in an interview.
What Mr. Ashcroft brought to the table, Mr. Chertoff said, was a single-minded
focus. "He made it very clear, very early on, that it was very important
to focus on preventing a future attack, to make sure that no more American
lives should be lost," he said.
Civil Rights Antiterror Actions Create Odd Alliance
Mr. Ashcroft's legacy will no doubt be determined by his success or
failure in defeating terrorism, political and legal observers agree.
But if fighting terrorism has become his lifeblood, they say, protecting
civil rights is clearly his Achilles heel. Many groups have questioned
what price they must pay in civil liberties for the sake of security.
Even before he became attorney general in February 2001, Mr. Ashcroft
was attacked for his record on civil rights. Opponents of his nomination
depicted him as racially insensitive, pointing to his praise for a neo-Confederate
magazine, his attacks on several minority judicial candidates, and his
acceptance of an honorary degree from Bob Jones University at a time
when it banned interracial dating.
Black civil rights leaders were once the group most critical of Mr.
Ashcroft's record, and they have accused him of adopting a less aggressive
posture toward issues like police misconduct, housing discrimination
and workplace bias. But for all the criticism from blacks, Mr. Ashcroft's
newfound pursuit of terrorists has now created a new and even more vigilant
foe — Arab-Americans — and it has recast the debate over
civil liberties to include a larger universe of immigrants and visiting
"Since he's been in office, American Muslims have lost many of
their civil rights," Ibrahim Hooper, a spokesman for the Council
on American-Islamic Relations, said in an interview.
"All Muslims are now suspects. We have to assume that every mosque
in America is being bugged by the F.B.I., with the attitude that's prevalent
today at the Justice Department."
Mr. Ashcroft's actions have created an odd alliance of opponents, as
conservative civil libertarians have joined forces with Arab-American
groups, human rights advocates and some members of Congress who say the
department's counterterrorism tactics have threatened the civil liberties
and due process rights of many thousands of people.
Paul Weyrich, a conservative activist who was a senior adviser to Mr.
Ashcroft's short-lived bid for the presidency in 1998, said he "rejoiced" when
Mr. Ashcroft was nominated as attorney general. But he said many conservatives
have become disillusioned by Mr. Ashcroft's disregard for privacy interests
and civil liberties intrusions on the lives of ordinary Americans.
"I don't think he has assessed the long-term constitutional implications
of all of this, and that's a disappointment," Mr. Weyrich said.
He noted there has been speculation that Mr. Ashcroft might be a candidate
for vice president if Dick Cheney bowed out, but he said: "I think
there would be some significant objection from conservatives if that
were to be raised at this point."
Civil liberties concerns extend well beyond the Patriot Act. Mr. Ashcroft
has also allowed the F.B.I. to seek voluntary interviews with thousands
of Muslims and tally the number of mosques. He has initiated new measures
making it easier to monitor and detain immigrants and foreign visitors.
And he has infuriated the defense bar by refusing to divulge information
about many of those detained after Sept. 11 and by expanding the Justice
Department's authority to monitor jailhouse conversations between federal
inmates and their lawyers in select cases.
To Arab-Americans and civil rights advocates, such steps and many others
like them amount to ethnic profiling and a violation of the Fourth Amendment.
To Mr. Ashcroft and his aides, however, they reflect smart policing — a
strong but constitutional response to an unparalleled terrorist threat.
Mr. Ashcroft says he will resort to any means legal and viable to identify
and stop terrorists — an approach he often likens to Robert Kennedy's
pledge as attorney general to jail mobsters for "spitting on the
sidewalks." Even so, Mr. Ashcroft says that protecting civil rights
in the course of that effort is his "highest priority," and
he told lawmakers last week that "we must not abandon freedom in
the pursuit of security."
In the past, Mr. Ashcroft has gone so far as to question the loyalty
of those who challenge the constitutionality of his tactics. In a defining
moment in December 2001 at a Senate hearing, Mr. Ashcroft declared: "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. They give ammunition to America's
enemies, and pause to America's friends."
The public baiting angered many Democrats, but the lingering resentments
have not prompted any significant pullback by the Justice Department.
Moreover, Mr. Ashcroft and his aides point out that federal courts have,
for the most part, rejected the due process challenges that the department
has faced in its terrorism campaign.
Mr. Ashcroft said in the interview that the president's "constitutionally
mandated defense of the United States" has demanded extraordinary
measures, including the declaration of enemy combatants and the secrecy
surrounding the detentions of prisoners at Guantánamo Bay and
foreign nationals in the United States after the Sept. 11 attacks.
Justice Department officials said they see no reason to rethink their
strategy. "We have had the ability to sustain the president's decisions
over and over in court," Mr. Ashcroft said.
There have been exceptions, however. One federal judge, ruling last
year that the Justice Department should have to make public the names
of detainees in its terrorism investigations, said that secret arrests "are
a concept odious to a democratic society."
This week saw another round of mixed results for the department in its
court fights. In Washington, a federal appellate court ruled that prisoners
from the Afghanistan war held in Guantánamo Bay may not challenge
their detentions in the courts, but in a separate case heard in New York,
a federal judge ruled that Jose Padilla, the suspect in the "dirty
bomber" case, has the right to meet with a lawyer to challenge his
status as an enemy combatant.
With the Supreme Court ultimately likely to rule on the use of secret
hearings and other counterterrorism tactics, Mr. Ashcroft may be walking
a fine line between protecting the public and compromising its rights,
legal and political observers said.
"You don't want the United States to turn into some sort of police
state," said John C. Danforth, the former Missouri senator who has
known Mr. Ashcroft for years, "but the first duty of government is
to protect its citizens. It's an extremely difficult job that he has."