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Alberto Gonzales, a gentler Ashcroft

By Noah S. Leavitt
FindLawexternal link Columnist
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(FindLaw) -- Recently, Attorney General John Ashcroft announced his resignation. Shortly thereafter, President Bush nominated White House Counsel Alberto Gonzales to replace Ashcroft. Ashcroft said he will remain in his position until the Senate confirms Gonzales.

To students of history, the news of Ashcroft's departure, followed by the instant appointment of Gonzales as his replacement, may have recalled the final hours of the French monarch Louis XIV -- the "Sun King."

As the story goes, the death in 1715 of Europe's most powerful ruler was announced by one of the palace guards. The guard raised his truncheon in the air, broke it in half, and threw the pieces into the anxious crowd below, shouting "The king is dead!" The guard then took a new staff and held the weapon high for the crowd to see, yelling "Long live the king!"

The point, of course, was that the enormous power Louis XIV had amassed would exist long after his death. Even though one particular ruler was gone, the broader political structure he had created would remain.

This point may be just as applicable to John Ashcroft and his Department of Justice, as to Louis XIV and the French throne. It is likely, for reasons I will explain in this column, that Ashcroft's departure -- like the Sun King's, will not lead to significant changes of direction in the larger institution which he headed.

Rather, we can expect to see an extension of many of the policies Ashcroft initiated under his successor, whether it is Gonzales (as expected), or another.

Dismal post-9/11 legacy

Ashcroft's legacy as attorney general is clear: he weakened the rule of law and undermined civil liberties of people in the United States.

Soon after the attacks of September 11, 2001, Ashcroft ordered that more than 1,200 Muslim men be held as suspected terrorists. In addition, he rounded up thousands of Middle Eastern persons for extensive questioning.

In June 2003, the Office of the Inspector General of Ashcroft's own Justice Department sharply criticized Ashcroft for his post-9/11 roundup and treatment of Middle Eastern persons. (For more details, please see a column by Anita Ramasastryexternal link)

Throughout his tenure as attorney general, Ashcroft expressed strong support for the Patriot Act, before and after it was signed by the President on October 26, 2001. The Patriot Act infringes Americans' civil rights in a number of important respects.

After the Patriot Act became law, Ashcroft repeatedly used it, or allowed U.S. attorneys to use it to prosecute non-terrorist crimes. Yet last year he called the librarians who were concerned about the Act's authorization of FBI searches regarding borrowers' reading habits were filled with "hysteria."

Beginning as far back as December 2001, he accused other dissenters and civil libertarians of "aiding terrorists." Again Louis XIV comes to mind: Voltaire famously compared Louis to Caesar Augustus, in large part because he cruelly punished those who challenged him.

Throughout his tenure, Ashcroft claimed that he was prosecuting dangerous terrorists. In fact, however, among the 360-some "terrorism" cases for which Ashcroft claims credit during his watch, which resulted in approximately 190 convictions -- almost all of which were for non-terrorism related charges -- the average sentence was only two weeks.

For instance, in the purported "Detroit terror cell prosecution," as I discussed in a prior column, the Department of Justice had to ask the court to dismiss terrorism charges because of extensive misconduct on its own part. In that case, the Department of Justice had failed to comply with its constitutional obligation to turn over key evidence that would have helped the defense to the defendants' counsel.

Ashcroft's legacy, in short, is a shameful one. In his resignation note, he absurdly claimed that, over his tenure, "the rule of law has been strengthened and upheld in the courts."

Yet without judges, the "rule of law" is easily destroyed. And Ashcroft has nothing but contempt for judges.

Enemy combatant claims

Ashcroft detained American citizens in military brigs as "enemy combatants" without access to judicial review -- asserting these detentions were entirely legal. In summer 2003, in Hamdi v. Rumsfeldexternal link, the U.S. Supreme Court held, to the contrary, that American citizen Yaser Hamdi had the right to go to court to challenge his detention.

Rather than continue to litigate the case, the Ashcroft Justice Department executed a settlement in which the purportedly highly dangerous Hamdi would be allowed to depart the U.S. to reside in Saudi Arabia.

During his tenure, he repeatedly urged judges to trust the government's word for whether a particular person was an "enemy combatant" -- rather than conducting their own inquiry, and applying law to facts.

Ashcroft fought against judicial review of potentially illegal and indefinite detentions at Guantanamo, and in military prisons. He has also sought to force detainees at Guantanamo to stand before military commissions -- a practice U.S. District Judge James Robertson ruled on November 8external link violates the Geneva Conventions.

And last Friday, November 12, in a speech to the Federalist Society, Ashcroft -- still the acting Attorney General -- warned of a "profoundly disturbing trend" of federal judges tending to "second guess" presidential determinations on legal questions. He was plainly taking aim at Robertson's ruling.

While it may be news to Ashcroft, it's the job of federal judges to make sure the president's legal calls do not conflict with the Constitution, or other U.S. law, including the Geneva Conventions. Without such judicial policing of the executive, there would be no rule of law; all would be discretion, and any abuse could occur and remain unremedied.

Ashcroft also claimed in his resignation note that "the objective of securing the safety of Americans from crime and terror has been achieved." But in fact, the well-known terrorists jailed during the last four years have been jailed as a result of other countries' cooperation with the United States, not as a result of Ashcroft's prosecutions. If Americans are safer, it is not because of Ashcroft.

Blurring church,state boundary

Ashcroft's tenure as attorney general not only threatened the constitutional guarantees set forth in our Bill of Rights, it also greatly diminished the separation of church and state.

Ashcroft conducted morning prayer breakfasts with his DOJ staff. He spent thousands of dollars purchasing drapery to cover nude sculptures in Department of Justice headquarters. His resignation letter ended with a hope that God will continue to bless, guide and direct President Bush.

Unsurprisingly, then, under Ashcroft's leadership, the justice department -- which ought to be preserving constitutional walls between church and state -- did its best to break down those very walls.

The Ashcroft justice department worked for land-use laws that provided special privileges for religious groups. In 2002, it successfully argued before the Supreme Court for the constitutionality of school vouchers that could be used for private religious schools.

Indeed, the Department of Justice even created a faith-based office to provide legal support for the administration's many faith-based programs. As Marci Hamilton has pointed out, Ashcroft created a position called the Special Counsel for Religious Discrimination in the Civil Rights Division, and staffed it with an attorney with a long record of working to promote religious entities in the public arena.

Again, one can see shades of Louis XIV -- who is remembered for working effectively and successfully to create a highly centralized and absolutist state based in a single religious philosophy.

Louis worked tirelessly to expand the power of the French throne to control religious affairs. In particular, he minimized the pope's power over the French church, and replaced it with the king's power, believing that the only way to achieve unified national power was to achieve a religiously unified Catholic nation. He persecuted many non-Catholic groups, like the Huguenots, who were members of the French protestant church and expelled all Jews from French colonies, strictly prohibiting the practice of these "dissenting" religions.

The result of Louis's religious crusade was to increase tensions throughout Europe, which led other countries to band together to challenge France. Perhaps someday history may judge that the crusade of Ashcroft, and others like him, similarly increased tensions throughout America.

Continuing a shameful legacy

Alberto Gonzales's personality is very different than John Ashcroft's. Gonzales, reportedly, is less brash and less touchy. Yet Gonzales's policies may be much the same as Ashcroft's.

And his politics, and supporters, are much the same as Ashcroft's. Gonzales, too, enjoys Christian Coalition support -- which suggests he, too, may try to blur the church/state line.

Like Ashcroft, Gonzales favors greater executive branch secrecy. Like Ashcroft, Gonzales favors the centralization of presidential power -- as well as its expansion. Indeed, Gonzales provided the legal arguments used to claim that the president has the power, under the Constitution, to order torture, despite the fact that torture violates the Geneva Conventions and other international agreements the United States has ratified and implemented.

Indeed, Gonzales deemed international law -- which becomes the law of the United States, under our Constitution, when properly ratified by the Senate -- to be "quaint" and outdated when applied to the war on terrorism. To say this, is to say, in effect that the Constitution itself is quaint and outdated.

Unsurprisingly, Gonzales -- like Ashcroft -- has been a strong supporter of the Patriot Act, and the president's recent calls to renew its key provisions which are set to sunset next year. And Gonzales, like Ashcroft, has been a proponent of the administration's policy of detaining any person it labeled an "enemy combatant" without giving them access to the courts to make an effective determination of their status.

According to Gonzales -- and to Ashcroft before him -- even judicial review to determine whether the facts support the "enemy combatant" designation should not occur. Gonzales, like Ashcroft, believes that the president's -- and attorney general's -- kingly power trumps even some of the most prized of American's basic rights, the rights to physical liberty, and to due process of law.

In sum, the most likely scenario is that Gonzales will simply be a more affable, personable version of Ashcroft, and Ashcroft's broader political and legal agenda will continue far into the future.

Indeed, Gonzales may be even more effective than Ashcroft in pressing this agenda -- for Ashcroft seemed to have a special talent for alienating the press and spurring dissenters to dissent even more strongly. Gonzales, in contrast, is far less likely to make remarks that spur attacks. He will likely shun the press conferences that got Ashcroft into trouble with the White House.

So the proper cry may be, "The attorney general is gone! Long live the attorney general!" Gonzales may extend Ashcroft's legacy even more effectively than Ashcroft did.

Louis XIV probably would be impressed.


Noah Leavitt, a FindLawexternal link columnist, is an attorney and author.

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