November 10, 2004 | WebMemo on Department of Homeland Security

The Ashcroft Legacy: Liberty and Security

And so John Ashcroft's tenure as Attorney General of the United States has come to an end. His opponents will rejoice, his supporters despair. Assuredly, he will be remembered, more so than most other Attorneys General are.


But when the history is written, when his accomplishments are assessed not by partisans of the immediate here and now but by more dispassionate and objective analysts of the future, how will John Ashcroft be remembered? What will be his legacy?


Save for one event, Ashcroft's tenure would have been remembered as a comparatively successful one for a law-and-order Attorney General. Violent crimes have been reduced to their lowest level in 30 years. Drug-trafficking prosecutions against major narcotics dealers are up, and the Department of Justice's task force on corporate crime has aggressively pursued boardroom fraudsters. This is a solid record to be proud of, to be sure, but it is nothing earth-shattering.


That one other event, however, changes the entire perspective: Because of September 11, Ashcroft will be remembered as the first Attorney General to confront terrorism seriously. And though his critics have not been kind and his efforts have not been completely free of missteps, when history looks back on Ashcroft's efforts it will treat him quite well.


Consider the obvious first-more than three years have passed since September 11, and there have not been any attacks on the United States. This is not for lack of desire on the part of al-Qaeda. Of course, domestic law enforcement efforts don't tell the whole story of that effort-no doubt our offensive efforts in Afghanistan also played a significant role. But on the domestic front, through efforts led by Attorney General Ashcroft, we have broken up terrorist sleeper cells all across the country, and we have frozen more than $140 million in terrorist assets. These are not idle statistics; they are real threats disrupted.


The case of Mohammad Junneh Barbar illustrates the point. As recently as February 2004, Barbar was in Waziristan, the unruly province in northern Pakistan where the remnants of al-Qaeda are thought to lurk. Barbar, a United States citizen, recently admitted to a plan to ship military equipment to al-Qaeda in Waziristan. In another part of his plot, he bought bomb-making materials and operated a jihadi camp with the intent to conduct a bombing campaign. Rigorous investigation and law enforcement uncovered Barbar's activities and thwarted his plans, and he now sits in a federal prison, having been convicted of providing material support to terrorists.


But even more significant than the legal efforts initiated by Attorney General Ashcroft is the beginning of the long and difficult task of changing the culture of non-cooperation between the FBI and CIA. As any experienced staff member in either agency will tell you, before September 11 the two agencies were barely on speaking terms. And culture like that is hard to change-it will take a long time. But under Attorney General Ashcroft's leadership, with strong assistance from FBI Director Robert Mueller, the FBI has done its part to begin to shift that culture. We see greater cooperation and more information sharing today than ever in the past. And that change, so seemingly process-oriented and insignificant, is an important building block in creating the structures and systems that will see us through a protracted conflict with radical terrorists.


Critics will say that Ashcroft's successes pale beside his failures-in the aftermath of his resignation they will no doubt try to paint him as insensitive to civil liberties and uncaring about legal niceties.


They are wrong.


Consider one example, the Patriot Act. As the Heritage Foundation report " A Patriot Act Reader" details, most of the tales of abuse and misuse are based on mistaken information. Even Russ Feingold, the only Senator to vote against the Patriot Act, says that he is in favor of 90 percent of it. And potential critics as diverse as the Inspector General for the Department of Justice and Senators Joseph Biden (D-DE) and Diane Feinstein (D-CA) say that they can't find any real evidence of abuse. In fact, with respect to one often-criticized provision of the Patriot Act (the so-called "Sneak and Peek" provision), Senator Feinstein has said that the law is actually an improvement for civil liberties and that it offers more protection against unlawful intrusions by law enforcement than did the pre-Patriot Act law.


And what of other alleged abuses? Again, they are mostly the stuff of legend. Take one notorious example-the arrest of more than 700 immigrants of Arab descent in New York in the immediate aftermath of the September 11 attacks. As the DOJ Inspector General has explained, the systems used by the FBI and INS for arresting and detaining immigrants broke down during that hectic period-in large part because they were never designed for a tragedy on such a scale. Far too many immigrants were held for too long and were not told why they had been detained. There were even instances of physical abuse by Bureau of Prison officers that are completely inexcusable. America can, and should, do better.


But what critics neglect is that during Attorney General Ashcroft's time in office it has. The Inspector General's report listed dozens of recommendations for change-recommendations and criticism that made front-page news across the country. The Inspector General's subsequent report, made 12 months later, says that the Department and the INS have undertaken the difficult work of putting into place new procedures that, should another catastrophic attack occur, will prevent a repetition of those procedural errors. This second report did not make the headlines, though it is arguably the more important of the two.


And that, in the end, captures what is perhaps John Ashcroft's greatest success. He has begun to put in place processes and systems of law that will stand us in good stead for the future. After all, any new system of laws and law enforcement procedures that we develop and implement must be designed to be tolerable over the long term. The war against terrorism, like the Cold War, is one with no immediately foreseeable end. Thus, excessive intrusions of civil rights cannot be justified as merely emergency measures that will lapse upon the termination of hostilities. Instead, policymakers must be restrained because Americans could have to live with the war on terror and the policies with which we wage it for many years.


By that measure, John Ashcroft's tenure has been a success. Many of the steps taken to combat terror had already been used to combat organized crime. And there is little evidence of any real abuse. No First Amendment liberties have been curtailed, no dissent or criticism suppressed. While Thomas Jefferson was right that we must be cautious and guard against governmental excess, John Locke, the seventeenth-century philosopher who greatly influenced the Founding Fathers, was equally right when he wrote, "In all states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from the restraint and violence from others; which cannot be where there is no law; and is not, as we are told, a liberty for every man to do what he lists."Thus, the government has two obligations: to protect civil safety and security against violence and to preserve civil liberty. Or as Thomas Powers has put it, "In a liberal republic, liberty presupposes security; the point of security is liberty."


John Ashcroft's success is in recognizing that achieving these goals is not a zero-sum game. We can achieve both-liberty and security-to an appreciable degree. Indeed, if there is any lesson to be learned from the Cold War, it is that we must pursue both, for otherwise we risk becoming like those whom we oppose. Ashcroft's tenure will be remembered for having set us on that right path.

Paul Rosenzweig is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation.

About the Author

Paul Rosenzweig
Edwin Meese III Center for Legal and Judicial Studies