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