Subscribe to Here’s the Deal, our politics newsletter for analysis you won’t find anywhere else.
Thank you. Please check your inbox to confirm.
Leave your feedback
Law professors from Georgetown University join Ray Suarez for a look back at John Ashcroft's tenure as attorney general.
Attorney General Ashcroft was the first member of the Bush Cabinet to step down after the president won a second term. He submitted his letter on Election Day resigning.
A former senator from Missouri, Ashcroft was at the center of a fierce civil liberties debate over anti-terrorism policies initiated by the Bush administration in the wake of the 9/11 terrorist attack.
Now two professors from Georgetown University Law Center debate his time in office.
David Cole is also an attorney at the Center for Constitutional Rights. He is the author of "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism."
And Viet Dinh was assistant attorney general for legal policy under John Ashcroft. He was the chief architect of the USA Patriot Act.
And, looking back over those years, Professor Dinh, how will this man who was attorney general at a critical time in the history of the United States be remembered, and what will he be remembered for?
I think whether you agree or disagree with him, I think everybody has to acknowledge that he is among the most, if not the most powerful attorney general in history.
Those who agree with him, like I do, applaud him for his effectiveness in transforming the U.S. Department of Justice from a reactive agency into a proactive, preventive agency with respect to the war on terror, while at the same time carrying forth the core commitments of the department by reducing violent crimes, by reducing drug use amongst our teens, by increasing corporate fraud prosecutions, increasing the prosecutions for trafficking of illegal persons and victims.
So all the while that he maintained and advanced the core competency of the Department, he also transformed the Department of Justice from an entrenched bureaucracy, looking backwards at investigations into a proactive agency in preventing another terrorist attack on the American homeland.
Professor Cole, your assessment?
Well, you know, powerful is not necessarily a good thing. Stalin is powerful. I think he is powerful, but that's in large part because he sought to sweep away any meaningful restrictions on his power and use the fact of September 11th to do so.
But this is an attorney general who treated dissent and criticism as if it was treason, who launched the largest campaign of ethnic profiling we've seen in this country since World War II, who sought… who treated judicial review and congressional oversight as inconvenient obstacles to getting the job done.
And I think ultimately he'll be seen as a disaster, both from a civil liberties perspective and also from a national security perspective.
Professor Dinh, could you take on some of those specific points?
Yes, I think that after 9/11, the charge of the Department of Justice was very simple. And it was given by the president to the attorney general at the National Security Council meeting on 9/11.
He said very simply, "John, you make sure this does not happen again." Those simple words underlie a very, very momentous charge, because obviously we live in a liberal, democratic society where targets and opportunity exist everywhere.
What John Ashcroft did was try to get into place tools and procedures whereby we can discern the terrorist plots and then act to interdict those plots and disrupt them before they actually foment into actual attacks on the American homeland.
That is a hallmark of his leadership, this transformation. I think it could have been done with a lot more authoritarian and more draconian methods, massive roundups, for example. We did not see that.
We see targeted arrests of individuals using the full prosecutorial powers to their full effect. There was no question that the Department of Justice was very aggressive in prosecuting the violation of laws, including immigration laws, against those whom they suspected of terrorism.
But it's not the Palmer raids or the mistakes of the past because here…
What are the Palmer raids?
The Palmer raids was after World War I and the red scare whereby there was a massive round-up of aliens suspected of communist sympathies and plans against the United States.
That was a preventive roundup, if you will. Here the difference is a strategy of preventive prosecutions whereby the attorney general and the Department of Justice used the prosecutorial discretion to their fullest extent in order to prosecute violations of law against those persons who would have a terrorist intent.
There need not be terrorist laws, but because there is no constitutional, legal or moral duty to violate the laws in the United States, if they do violate, we can put them in jail. That's what John Ashcroft did.
Well, Professor Cole, you're shaking your head. Why?
I think John Ashcroft essentially repeated the Palmer raids. I think you can call them the Ashcroft raids.
But Attorney General Palmer was lambasted for rounding up 5,000 foreign nationals in the wake of a series of terrorist bombings in 1919. John Ashcroft announced right after 9/11 that he was going to use every law within his power, including immigration law, to lock up suspected terrorists, keep them off the streets and prevent the next terrorist attack from occurring.
What do we know about that campaign? At this point we know based on government figures that they locked up over 5,000 foreign nationals in preventive detention anti-terrorism measures.
Of those 5,000, exactly zero have been convicted of a terrorist crime.
He is zero for 5,000 for all these people locked up. He also called in 80,000 people for special registration simply because they were Arab and Muslim.
How many of those people have been convicted of a terrorist crime? Zero — zero for 80,000. He called in 8,000 for FBI interviews simply because they were from Arab and Muslim countries.
What's the record there? Zero convictions for terrorism. So I think you see a roundup of exactly the same size if not larger than the Palmer raids. With same results.
With the Palmer raids they found no actual terrorists. And the same thing is true here with respect to the foreign nationals who were targeted.
Professor Cole, using the examples that were given… first of all, is he right no one has been convicted of a crime related to terrorist or nefarious activities in the United States, and was that ethnic profiling, as Professor Cole suggests?
No, there have been plenty of convictions. The Lakawana cell was broken up and they pled guilty. The Portland cell was broken up. They either pled guilty or were convicted.
A number of other important cells were disrupted and convicted. Approximately 300 persons have been convicted or pled guilty to terrorism-related charges.
With respect to the interviews themselves, they were not an instance of profiling because these were basic investigative interviews that were entirely voluntary in nature.
After 9/11, what we found is that we need to gather information relating to the plans of al-Qaida. If a robbery happens on a street, then what you normally do is knock on the doors around the neighborhood.
What the Department of Justice sought to do was recreate the metaphorical neighborhood by looking at individuals who are from countries where al-Qaida's are active, who will fit the profile whereby they would have the same characteristics that they would obtain information about al-Qaida and sought their help voluntarily.
And a lot of that turned up very good information, which led to the prosecution and disruption of significant terrorist…
Well, let me stop you right there, Professor Dinh, because while you defended the attorney general's legal theories under which you did that and the methods that he used, wasn't he at times rebuffed by courts and eventually by an inspector general of the United States for some of those same methods and points of view on how to handle this problem?
First of all, the inspector general was very, very clear, and by the way, that report was authorized and required by the USA Patriot Act in order to accumulate allegations of abuse.
It did find that with respect to the immigration detentions, that in the aftermath of 9/11, a number of these individuals were held beyond the statutory and regulatory period that were permitted — I believe it is 30 days. For that the Department of Justice has apologized.
And I think that is also a good mark of John Ashcroft's leadership. He did not sweep that under the rug.
But he said point blank, those are mistakes; we will undertake procedures in order to prevent their recurrence. The same thing happened in Detroit.
The Department of Justice, after finding out an investigator exceeded the bounds of his authority and potentially violated the rights of a terrorist defendant, the Department of Justice did a full-blown investigation, went into court and said we admit error, threw out the conviction and threw out the prosecution.
That's a proud day for the Department of Justice because it reaffirmed that they were protecting freedom through law rather than in spite of law.
Look, first of all, the inspector general found massive abuses.
He found that people were locked up on no charges at all; that people were held where there was no evidence that they were dangerous; that people were locked up for long periods of time after their cases were resolved; that people were beaten.
And what was the attorney general's response? The day after that report was issued: "We make no apologies." So I don't know where Viet got the apologies.
His official response was: "we make no apologies." The inspector general also found that none of these people were found to have any connection to terrorism and also found that people were picked up on such information as a tip received by the Justice Department that there were too many Middle Eastern men working at a convenience store down the street.
So they go down to the convenience store and arrest the men because there's too many Middle Eastern men; no evidence that they're involved in terrorism whatsoever.
And I stand on the figure.
Not one person who was locked up as a foreign national in preventive detention by John Ashcroft over 5,000, not one of them was convicted of a terrorist crime.
The only convictions that Viet pointed to are convictions of citizens, were people who were not subjected to preventive detention. These suspected terrorists that John Ashcroft labeled the suspected terrorists turned out to have nothing to do with terrorism whatsoever.
Viet says 300 people have been indicted in connection with terrorism investigations. That's something that John Ashcroft frequently says. What he doesn't say is that most of those people are not indicted on anything to do with terrorism.
What he doesn't say is that a Syracuse research department that looked at Justice Department figures found that the median sentence imposed on persons convicted for crimes in cases that the Justice Department labeled as terrorism was 14 days.
Now, 14 days is not the kind of sentence you get if you're convicted of terrorism. It's the kind of sentence you get if you're convicted of some completely petty crime.
And it doesn't prevent terrorist attacks from occurring if you put someone…
Oh, yes it does.
You opened by saying that this was a powerful and effective attorney general — does this go, do some of these things go to the question of his effectiveness?
Absolutely. First of all, it's not 5,000. There's somewhere north of 1,000 that was prosecuted for immigration violations.
And, listen, if we can remove these people from the streets by prosecuting on the immigration violations, so be it. We don't have to go after them on terrorism charges.
And this is the first time, by the way, that I have ever heard David Cole complain a criminal conviction is sentenced too lightly. And so I want to note that for the record.
But I think those figures point out the underlying success of the strategy. The strategy from day one has been very clear: We will not wait to build a capital sentencing case for terrorism because we may miss and then more lives will be lost.
What we will do is simply use all the laws at our disposal, immigration charges, theft charges, credit card fraud, whatever it is, in order to remove these people from the people they would do harm.
And I think those statistics, events rather than failure, show the success of that strategy to prevent terror.
Well, there are many other things that John Ashcroft did over the four years, but he himself when he resigned said the centerpiece was protecting the homeland in the war on terror.
And, that's where a lot of this conversation went. Professors both, thank you very much.
Thank you, Ray.
Support Provided By:
Additional Support Provided By: