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The Grand Inquisitors


In the days and weeks after the terrorist attacks of September 11, 2001, each time Attorney General John Ashcroft made a public appearance he would preface his remarks by announcing how many “suspected terrorists”—many of them foreign nationals picked up on minor immigration violations—the government had detained. By early November, just seven weeks after the attacks, the official number stood at 1,182. Ashcroft’s message was clear. The Justice Department had matters under control, and was preventing another attack by keeping more than one thousand suspects off the streets.

In June 2003, the Justice Department’s inspector general issued an extensive report on the federal government’s treatment of immigrants locked up as “suspected terrorists” following September 11.1 The report found that in the first year of the investigation of September 11, more than seven hundred foreign nationals had been swept up, often on no charges at all, and placed in preventive detention under immigration law auspices. By order of Attorney General Ashcroft, their identities were kept secret. Also by order of the attorney general, more than six hundred of those detained were tried in secret immigration proceedings, closed to members of their families, the public, the press, and even members of Congress. The prisoners were initially held incommunicado, and thereafter limited to one phone call per week. At the Metropolitan Detention Center in Brooklyn, where eighty-four of the prisoners were kept, guards tried to deny them even that right by treating an affirmative response to the question “you doing all right?” as a waiver of their right to make their weekly phone call.

Immigration law permits detention of foreign nationals while they await the outcome of their deportation proceedings, but generally only if there is evidence that they are dangerous or pose a risk of flight. The government lacked such evidence about most of those rounded up on immigration charges after September 11, so it contrived various strategies for delaying the hearings that would reveal how little evidence it had. When detainees were able to get hearings, and immigration judges started ordering some released, Ashcroft issued a regulation permitting his immigration prosecutors to keep detainees in prison despite the judge’s release order, simply by filing a notice of appeal—without regard to whether the appeal had any merit. (Several federal courts have since declared that regulation unconstitutional.) When many of the immigrants agreed to leave the US, the Justice Department refused to let them go, keeping them locked up for months without any legitimate basis in immigration regulations while the FBI apparently tried to satisfy itself that they were not terrorists. Many detainees were brutally beaten. Today not one of these over seven hundred detainees stands convicted of a terrorist crime.2

The inspector general’s report of 2003 was a strong indictment of “the Ashcroft raids.” It found not only deliberate and systematic abuses of basic human rights, but also that the sweeps had done nothing to further our security. What was Ashcroft’s response? As he told Congress at a hearing on the report, “We make no apologies.”

That response perfectly captures John Ashcroft’s approach to his job as President Bush’s first attorney general. In his public statements he consistently resisted any attempts to engage in reflection, dialogue, debate, or even candid discussion of the difficult trade-offs between liberty and security that were presented in the aftermath of September 11. Instead, he rigidly adopted the most aggressive show of authority, whether or not this actually served our security needs, while ridiculing and challenging the loyalty of those who dared to express concerns about his practices. Above all, he never admitted a mistake.

In February 2005, Ashcroft was replaced by Alberto Gonzales, a man with a very different style. Soft-spoken and polite where Ashcroft was gruff, dismissive, and rude, Gonzales, who served as White House counsel before assuming the post of attorney general, has been willing to meet with critics, including representatives from the ACLU, the Center for Constitutional Rights, and the American-Arab Anti-Discrimination Committee. I attended one such meeting on behalf of the Center for Constituional Rights in 2005. Gonzales admits that liberty and security issues pose difficult questions. Most recently, he has publicly apologized for the apparently partisan-driven firing of eight United States attorneys, admitting, in the passive voice favored by Washington politicians, that “mistakes were made”—even if he can’t quite recall what the mistakes actually were.

A recent account of a dramatic showdown between Ashcroft and Gonzales in March 2004 suggests, however, that despite outward appearances, Gonzales was even more willing than Ashcroft to do the President’s bidding, regardless of concerns about legality. In dramatic testimony before the Senate Judiciary Committee in May, Bush’s former deputy attorney general, James Comey, a Republican and by all accounts a straight shooter, described an astounding effort by then White House Counsel Gonzales to get Ashcroft, while Ashcroft was under sedation in intensive care after an emergency gallbladder operation, to approve a National Security Agency warrantless wiretapping program that Ashcroft, Comey, FBI Director Robert Mueller, and Office of Legal Counsel head Jack Goldsmith had all previously concluded was illegal.

Ashcroft had signed off on the NSA wiretapping program repeatedly since its inception in late 2001. But in March 2004, the Justice Department reevaluated the program, and apparently concluded that it was no longer legal (no one has yet disclosed why the department’s views changed or what its specific legal concerns were). Ashcroft and Comey discussed this conclusion the day Ashcroft went into the hospital and agreed that the program should not be recertified. But when Comey, as acting attorney general in Ashcroft’s absence, informed the White House of that decision, the White House was not willing to take no for an answer. Instead, Gonzales and White House Chief of Staff Andrew Card made a late-night trip to Ashcroft’s hospital bed to see if they could get him to override Comey’s decision—even though Ashcroft was so sick that Mrs. Ashcroft had forbidden all visitors, and was apparently willing to relent only when she received a personal call from President Bush himself requesting the meeting.

Gonzales and Card did not tell Comey they were going to the hospital, but Mrs. Ashcroft did. Comey raced to the hospital, as did FBI Director Mueller. Comey, who got there first, described Ashcroft as disoriented and “pretty bad off.” Nonetheless, when Gonzales and Card arrived a few minutes later, Ashcroft rebuked them, explaining why he thought the program was illegal, and noting that in any event, “that doesn’t matter, because I’m not the attorney general.” Pointing to Comey, he concluded, “there is the attorney general.” Gonzales and Card left empty-handed.

When President Bush reauthorized the program anyway, Comey, Mueller, Goldsmith, Ashcroft’s chief of staff, and as many as thirty Justice Department officials threatened to resign. They held off only because Ashcroft’s chief of staff thought they should wait until Ashcroft was feeling better to see if he wanted to resign as well. Bush headed off the crisis by agreeing to modify the program to address the Justice Department’s legal concerns. Even as modified, however, the program has been declared unconstitutional by a federal judge.3

The officials who threatened to resign were all Republican political appointees who had approved and carried out numerous aggressive counterterrorism initiatives before this. That these men were so concerned that they contemplated mass resignations was a sharp rebuke of Gonzales’s actions. As Comey put it, Gonzales sought to “do an end run around the acting attorney general” and “take advantage of a very sick man who did not have the powers of the attorney general.” Perhaps most disturbing of all was the President’s decision, with Gonzales’s counsel, to continue the program despite the determination of all the top people in his own Justice Department that it was illegal.

Some have suggested that Ashcroft’s sedated stand warrants reevaluation of his role in the “war on terror.”4 While he never expressed any doubts in public, this incident suggests that on at least one occasion he stood up, under very trying circumstances, to blatant executive overreaching. But the calls for reevaluation are premature. Ashcroft repeatedly approved the illegal NSA wiretapping program, both before and after the March 2004 incident. And in view of the uniform views of his department that the program was illegal as it existed in March 2004, and Ashcroft’s formal transfer of official authority to Comey while he was in the hospital, it would have been remarkable had he done anything but say no to Gonzales and Card. In the end, the event says more about Gonzales, who acted underhandedly and possibly unethically, than about Ashcroft, who did only what he was legally required to do.

Still, the hospital encounter does illustrate a telling difference between Gonzales and Ashcroft. Ashcroft was a true believer, lacking any doubt about his principles (whether they were right or wrong). While that trait allowed him to stand up to the President on this occasion, it more often meant that he was the administration’s most outspoken advocate of sweeping executive power.

Gonzales, by contrast, was and is at bottom a consummate facilitator, willing to twist the law to serve his boss’s ends—whether on torture, detention, wiretapping, or the politicizing of the Justice Department. As far as we know, he never said no. In the end, however, despite their different styles and characters, both men did much to develop and defend a sweeping view of executive power after September 11—what Joe Conason calls “authoritarianism” in It Can Happen Here, and what Frederick Schwarz and Aziz Huq call a “monarchical executive” in Unchecked and Unbalanced.


Ashcroft oversaw the entire domestic response to the attacks of September 11, and in doing so consistently exploited laws—such as those governing immigration—for purposes they were never designed to serve. He orchestrated the raids described earlier. He directed the drafting and negotiation with Congress of the USA Patriot Act, which simultaneously expanded federal surveillance power while watering down judicial checks on that power. He launched the Special Registration program, a national campaign of ethnic profiling that required all male immigrants from Arab and Muslim countries—some 80,000 men—to report to immigration authorities and be fingerprinted, photographed, and interviewed—regardless of whether there was any other basis for suspicion. He authorized warrantless eavesdropping on communications between prisoners and their attorneys. He relaxed the rules for FBI spying, freeing agents to monitor religious services and public meetings without first establishing any basis for suspicion.

He also approved many prosecutions of alleged “terrorists” that ultimately fizzled once they got to a jury, including those of Sami al-Hussayen, a Saudi student acquitted of charges that he had aided terrorists by posting links to Muslim sermons on his Web site; Sami al-Arian, a Palestinian computer science professor in Florida who was acquitted of charges that he had conspired with Palestine Islamic Jihad to murder Americans; Mohammed Salah and Abdelhaleem Ashqar, acquitted in Chicago of charges that they had illegally raised funds for Hamas; and Abdel-Ilah Elmardoudi and Karim Koubriti, whose convictions for conspiring to provide material support to terrorism were thrown out because the prosecution failed to disclose to the defense evidence that its principal witness had lied on the stand.

  1. 1

    US Department of Justice, Office of the Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (June 2003).

  2. 2

    As a cooperating attorney for the Center for Constitutional Rights, I represent pro bono a number of immigrants who were arrested in terrorism roundups following September 11 and who have sued John Ashcroft and others for their mistreatment. See Turkmen v. Ashcroft, 2006 US Dist. LEXIS 39170 (EDNY June 14, 2006).

    In a similar case alleging abuse of an Arab Muslim immigrant detained in Brooklyn as a “terror suspect” after September 11—but not charged with any crime related to terrorism—the US Court of Appeals for the Second Circuit recently rejected John Ashcroft’s motion to dismiss the case. Refuting Ashcroft’s argument that the emergency occasioned by September 11 justified his actions, the Court stated: “The rights that the plaintiff contends were violated do not vary with surrounding circumstances, such as the right not to be subjected to needlessly harsh conditions of confinement, the right to be free from the use of excessive force, and the right not to be subjected to ethnic or religious discrimination. The strength of our system of constitutional rights derives from the steadfast protection of those rights in both normal and unusual times.” Iqbal v. Hasty, 2007 US App. LEXIS 13911 (2d Cir. June 14, 2007).

  3. 3

    ACLU v. Nat’l Sec. Agency/Central Sec. Serv., 438 F. Supp. 2d 754 (D. Mich. 2006); see also David Cole et al., “On NSA Spying: A Letter to Congress,” The New York Review, February 9, 2006.

  4. 4

    Peter Baker and Susan Schmidt, “Ashcroft’s Complex Tenure at Justice: On Some Issues, He Battled White House,” The Washington Post, May 20, 2007.

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