The case against John Ashcroft.

The law, lawyers, and the court.
Oct. 27 2004 5:48 PM

The Case Against John Ashcroft

Why don't Democrats condemn the disastrous attorney general?

A bizarre thing—unnoticed by the press in this campaign—is that no one is discussing crime in America this election. Aside from one minor Kerry remark during the debates about his days as a prosecutor, the modern tradition of hot air on crime-toughness seems to have ended. Where did the demagoguery go? More important—why haven't the Democrats realized they can redeploy it this year, in a well-earned critique of John Ashcroft's lousy performance as attorney general?

Perhaps the notable drop in the crime rate over the last decade has nullified the crime issue among politicians and the public. It's unlikely this is the entire explanation, since professed fear of crime rarely correlates with crime rates or actual victimization risk, and, in any event, the last year has seen some worrisome signs of a new increase in homicides.

Perhaps, then, the Democrats have finally and completely insulated themselves on this issue by outflanking the Republicans. President Richard Nixon started the modern demagogic tough-on-crime tradition, announcing the War on Crime and the War on Drugs as his solutions to the social unrest of the 1960s, which he blamed on the Democrats. Bush the elder refined the tradition to destroy Michael Dukakis with the trope of the furloughed rapist Mr. Horton. (Journalist Bernard Shaw only made things worse with his famously idiotic question to Dukakis in the 1988 debate, offering Dukakis the opportunity, which the Massachusetts governor declined, to display his testosterone in conceiving his action-hero revenge on the hypothetical rapist/killer of his wife.) But Democrats finally figured out that crime really does pay, and by 1992, Bill Clinton had learned that ensuring the execution of an Arkansas death-row inmate with barely half of his brain left intact was necessary to secure victory.

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Before long, the Democrats-on-crime were the party of California Gov. Gray Davis—on whose right flank on the issue no Republican could find space. Davis—his campaigns bought and paid for by the California Correctional Peace Officers Association—outdid the Republicans in his push for the death penalty and three-strikes-you're-out legislation, and rejected almost all the parole recommendations he got from an almost wholly Republican Board of Prison Terms—no matter how meritorious the case. Democrats hoped that by outdoing Republican fear-mongers on crime, they could avoid seeing the issue ever used against them again.

But now they face a new incarnation of the issue: The new street crime is domestic terror. The Arab/Muslim enemy in our midst is the new Willie Horton, and predictably, John Kerry has been condemned as too weak to fight the new criminal threat. Only a few days ago, Vice President Dick Cheney claimed Sen. Kerry was unfit to combat the alleged threat of a weapon of mass destruction being used against an American city.

So, here is the unrecognized opportunity open to the Democrats: If we are indeed returning to the toughest-law-enforcer-in-town contest, John Ashcroft is the lousiest prosecutor in America. He makes great theater of indictments, then quickly retreats into the background when his toughness is shown to be nothing more than unproven claims. He touts ordinary criminal indictments—unrelated to terrorism—in an apparent attempt to disguise his ineffectiveness in fighting stateside terrorism. Yet no one has said a word.

Ashcroft has rightly been accused of ignoring basic civil liberties in the interests of combating terrorism—gaining new powers for more extensive wiretaps and more invasive searches based on national security pretexts. But let's assume the nation would tolerate some curtailment of civil rights in the name of better protection against domestic terrorism. The question remains, have these new powers made us safer? And yes, it's true there have been no more terrorist attacks stateside since 9/11. But Ashcroft's main job is to prosecute, not prevent future attacks, and his hit rate on terrorist-related crimes is atrocious.

We have seen major terrorist prosecutions brought with much political publicity fail with hardly a whimper. The major jury conviction his Justice Department finally did achieve in the war on terror occurred in Detroit, and those convictions were subsequently thrown out by the judge for prosecutorial misconduct. Even without the misconduct, that case was startlingly weak. In fact, there has been no conviction for an act of domestic terrorism since 9/11 *. And as David Cole points out here, Ashcroft is now zero for 5,000, in that the Justice Department has detained 5,000 people on grounds that they are somehow connected to terrorism—and convicted none.

This "big lie" is further compounded when we consider how dismally the other terror prosecutions have turned out. For example, we just sent back to Saudi Arabia Yaser Esam Hamdi—a U.S. citizen who had been held in solitary confinement for over two years on the assumption that he was an enemy combatant—when, in fact, the United States had virtually no evidence to sustain that charge. Saudi Arabia—not exactly known for its strong support for rights of defendants—now refuses to impose U.S.-mandated restrictions on his movements. In the Saudi government's view, no credible evidence would justify them.

Ashcroft's defenders may argue that the problem is not his effectiveness but, rather, the constraints of due process. But that argument won't wash. This administration as a whole has relied on broad self-proclaimed powers of indefinite detention to hold prisoners both domestically and overseas, under very harsh conditions, including long periods of isolation and boredom. What have we learned from these prisoners? Apparently nothing. What has their detention accomplished? Not much more than hardened militancy. As reported this week in the New York Times, even the CIA has grown concerned that the effect of the harsh conditions at Guantanamo is resulting in the further radicalization of the prisoners.

Perhaps Ashcroft's defenders would say that he's performing well but is overwhelmed by the devious brilliance of the terrorist criminals—who are so clever in hiding their behavior and plans that no amount of hard investigative work could succeed in uncovering their plans. But the report of the 9/11 commission details an American failure of investigation and coordination, not a story of tactical or operational brilliance by the enemy. Ashcroft's Justice Department simply does not do the hard work necessary to uncover the plots and prosecute the perpetrators.

What about the tool the government demanded from Congress to police the domestic terrorist front? The USA Patriot Act has been used almost exclusively to pursue non-terrorist cases. On Dec. 1, 2003, Michael Isikoff of Newsweek reported that at least two-thirds of the searches relying on provisions of the Patriot Act were in money-laundering cases, with no terrorism connection whatsoever. As of May 2004, the Patriot Act had led to 310 charges against individuals and 179 convictions. But only a tiny fraction of these cases could be described as involving terrorist activity, and essentially none of that tiny minority involved an actual or threatened attack within the United States. In the end, the Patriot Act has been principally used to support allegations totally unrelated to terrorism, such as uncovering evidence against bribery and corruption involving strip clubs in Nevada, computer crimes, and sex crimes against children. Even when used in circumstances that arguably are related to terrorism, the alleged plots were in support of wholly foreign terrorist activity, such as support of Chechen rebels or Hamas—activity in no way representing a domestic threat. In a July 2004 report purporting to confirm the great utility of the Patriot Act in protecting Americans, the Justice Department was able to detail at most seven examples of the use of the act against foreign terrorist activity and less than four sets of convictions or guilty pleas involving fewer than 20 individuals.

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