Second thoughts about Ashcroft: Policies over the top

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Written By W. James Antle III

One of my first columns of the year in 2001 was an endorsement of John Ashcroft for U.S. attorney general.  He had compiled a reasonably conservative voting record in the Senate and possessed the requisite credentials. Meanwhile, his opponents consisted of a Who’s Who of left-wing groups that were intent on disqualifying him for office on the basis of his Pentecostal beliefs and smearing him as a racist.

While I still think Ashcroft is personally decent and stand by my refutation of the more outrageous accusations leveled against him during his confirmation process, I no longer support him with enthusiasm. My second thoughts about Ashcroft stem from the fact that he has not been the consistent constitutionalist many of his conservative supporters had hoped he would be.

Of course, some of our hopes might have just been wishful thinking in any case. Ashcroft, like any other conservative likely to be nominated to run the Justice Department during a Republican administration, has always been a conservative of the law-and-order variety. There is nothing wrong with this in itself, as law and order is a good thing, but these kinds of conservatives tend to forget about the constitutional division of power between the states and the federal government. In their eagerness to appear – and in some cases, even to actually be – tough on crime, they frequently push to federalize crimes that are properly under state jurisdiction and otherwise expand the role of the federal government into state prerogatives. They also do not scrutinize federal “anti-crime” spending as closely as they would social spending and they tend to not be adequately concerned about civil liberties.

Even on issues where he took positions more to constitutional conservatives’ liking, Ashcroft frequently did not do so by appealing to the current Constitution. He was a leading proponent of conservative constitutional amendments that would attempt to amend the Constitution in order to overturn judicial rulings that were themselves the result of misinterpretation or willful disregard of the Framer’s plain words.

Therefore, disappointing though it may be, it probably should not have been surprising that Ashcroft has not been the poster child of constitutionalism in crafting anti-terrorism policy. One needn’t take the position that the Constitution is a suicide pact that mandates we do nothing to protect ourselves from the terrorist threat to recognize that some of the policies he has helped spearhead were constitutionally over the top.

The PATRIOT Act is one infamous example. Although passed overwhelmingly by both houses of Congress at the behest of President George W. Bush, who promptly signed it into law, this piece of legislation was formulated by Ashcroft’s Justice Department. Its provisions increase executive powers without a commensurate expansion of congressional or judicial oversight, a risky move that runs counter to the Constitution’s system of checks and balances. It weakens the Fourth Amendment by allowing roving wiretaps and more warrantless searches. (There are other cases where federal agents will be required to obtain a warrant but do not need to notify the person whose property is being searched of this fact until after the search is complete.) Some analysts believe it permits law enforcement agencies to evade accepted probable cause requirements. This legislation also expands federal power to monitor and track telephone and Internet usage.

Part of the problem is that Section 802 defines terrorism amorphously enough to allow for misinterpretation by future prosecutors and agents, who may choose to apply the act beyond its authors’ original intent. There is some concern that these new powers may at some point be used to suppress legitimate political dissent. It is easy to see why politicians were eager to pass something along the lines of the PATRIOT Act shortly after the horror of Sept. 11 – though it might be reassuring if more of them had actually had the time to read it – but there needs to be equal concern for safeguards that would prevent such legislation from being abused.

The same problem exists with the TIPs Program. Originally, it called for enlisting millions of Americans – approximately one in 24 – to basically spy on their fellow citizens in order to report what they consider suspicious activity. But what constitutes suspicious activity? What restrictions are in place to protect the privacy and civil rights of innocent Americans who would be subject to such snooping? Most importantly, where in the Constitution does Ashcroft find authorization for the Justice Department or the federal government generally to create such a program?

It is possible that in practice something like Operation TIPS would not be as close to an “American Stasi” as Reason magazine’s Brian Doherty envisions. My friend Lawrence Henry argued in The American Prowler that “Ashcroft’s TIPS program threatens no Big Brotherish control” and pointed to other “tip” programs nobody objects to, such as the National Center for Missing and Exploited Children and the New York Police Department’s terrorism hotline. Henry is a sober thinker and writer with sound instincts. But even his own article contains examples of how snoopery can be used to diminish the liberties of innocent people engaged in peaceful activities, such as Connecticut’s law that allows people to inform on neighbors with “too many guns” and the anonymous snitch that sent New York City authorities to stop smoking in National Review’s Manhattan office. (William F. Buckley, Jr. also mentioned this incident in his syndicated column.) It is not surprising that House Majority Leader Dick Armey (R-TX) stripped funding for it from the homeland security bill passed by the House.

Of course, Ashcroft’s statism is not confined to terrorism-related initiatives, where some degree of overdoing it might be understandable. He has not done anywhere near as much to reverse Janet Reno’s Justice Department policies as either his hysterical opponents predicted or his fervent supporters hoped. But he has beaten his chest about law and order, even circumventing states’ rights to stamp out medical marijuana. “In the name of goodness and principle,” William L. Anderson wrote in, “Ashcroft deprives desperately ill people of even a modicum of relief from their painful ordeals.”

Sure, Ashcroft has done some good things, such as adopting a better stance on the Second Amendment than even Ed Meese’s Justice Department during the Reagan years. And the recent story in The New York Times alleging widespread conservative dissatisfaction with him was probably inaccurate. Most of the liberal attacks against him are motivated more by anti-Christian bigotry than anything he has actually done in office. But as far as going about “the business of resuscitating constitutional law” as I had predicted when he was nominated, he has regrettably done nothing of the sort.

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