Attorney General John D. Ashcroft, the most Orwellian figure of the Bush administration,
announced Nov. 9 that he is resigning from his post. Praised by some conservatives, disdained by most civil libertarians (myself included) and vilified by leftists, the former senator has served as a visible face of the administration’s domestic anti-terrorism efforts.
Ashcroft epitomized the Bush administration’s approach to all brands of challenges it faced during its first term, from sex education policy to military action in Afghanistan: Ashcroft has served as direct and uncompromising, stymied in policy goals only by the bounds of constitutionality and, occasionally,
jurisprudence.
That simple, unyielding rigor
extends to his personal life, too.
He doesn’t smoke or drink
or even dance. Such asceticism
may seem odd, but politicians
appointed to federal office are often
offbeat. It takes an eerily tireless
breed to brave the day-in-day-out
goings-on of managing a Byzantine
bureaucracy in turn responsible for the common defense of the world’s third-largest nation.
In fact, you might want someone this adamantly square, albeit peculiar, to be your attorney general. (President Clinton certainly thought so when he tapped eventual Saturday Night Live joke Janet Reno for the position.) Someone so dedicated to rules and unsusceptible to philosophical or political caprice might serve well as the nation’s chief legal officer, representing a government to best improve the livelihoods of a
nation’s citizens through arguing
public policy.
But even during the close of his often-embattled tenure, Ashcroft only lives up to half of this hypothetical bargain. During remarks to the Federalist Society’s national convention, he blasted the judicial branch for a “profoundly disturbing trend” of “intrusive judicial oversight” (read: checks and balances) over
executive decisions.
His argument is as follows: “Second-guessing of presidential determinations in these critical areas can put at risk the security of our nation in a time of war.” Later: “Our nation and our liberty will be all the more in jeopardy as the tendency
for judicial encroachment and
ideological micro-management are
applied to the sensitive domain of
national defense.”
This argument is philosophically bunk, but worse, it’s dangerous. The sensitivity and exigency of these “areas,” and the extent to which novel national security measures violate traditional rights, should make “second-guessing” more important, not less. (“Second-guessing” should be cynically read as “due review to ensure constitutionality of government conduct.”) Were Ashcroft really so interested in protecting liberties and staving off “ideological micro-management,” he should welcome balanced judicial insight, not reject tests of constitutionality applied to new policies that probably overstep the government’s authority.
In June, the U.S. Supreme Court rejected a Justice Department argument that the Bush administration may indefinitely hold and interrogate alleged al-Qaida and Taliban combatants without the right to an attorney. Enemy combatants (or whatever Guantanamo Bay detainees are) certainly aren’t due all the legal benefits that citizens are due when charged with a crime. However, Ashcroft ought to have come up with a justification for de facto habeas corpus that was cogent enough to pass muster under judicial review, rather than sloppily denouncing the involved judges as
nettlesome and partisan “activists.”
Despite his composure and constancy, these and other jurisprudential missteps — which have often served the end of curtailing important liberties — mean that I won’t soon miss Attorney General John Ashcroft. We need for the nation’s top legal office someone with Ashcroft’s steadfast soul, but with a mind that will apply that resolve to placing civil liberties and the balance of powers above unchecked executive privilege, not the other way around.

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