He has made sure that the rights of Americans are respected and protected. —George W. Bush, on accepting the resignation of John Ashcroft, November 9
We’re not sacrificing civil liberties. We’re securing civil liberties. —Attorney General John Ashcroft, September 11, 2002
I once suggested to the American Civil Liberties Union that it award John Ashcroft its Medal of Liberty because he has done more—however inadvertently—than any American since 9-11 to educate the public on how fragile our constitutional liberties are, and why it’s so essential to never let up on the agents of government who strive to strip them away.
In October 2001, Ashcroft bullied the Patriot Act through Congress. The bill was so huge—including the late-night changes at the White House, with only the Republican leadership present—that many members of Congress did not have time to read it. Most who did, and had qualms, voted for it anyway for fear of jeopardizing their re-election prospects on charges of being soft on patriotism. In the House, Wisconsin Democrat David Obey, who did vote against it, said bitterly: “Why should we care? It’s only the Constitution.”
Only one senator, Democrat Russ Feingold, voted against the Patriot Act. On the floor, on the night of the vote, then Democratic Senate leader Tom Daschle told the Democratic caucus not to vote for any of Feingold’s amendments. He wanted the Democrats to also show their patriotism.
Confident that he held most of the electorate in his hand, Ashcroft was gratified when, for some time, the polls showed that a considerable majority of Americans were indeed willing to trade their individual liberties under the Constitution—insofar as they knew what those liberties are—for supposed security against homicidal jihadists.
Nor could Ashcroft resist tarring the dissenters, declaring at a Senate hearing toward the end of 2001: “To those who would scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve.”
But the designated traitors were not intimidated and indeed fired up their resolve to protect the Constitution against this frenzied hit man. Their numbers kept growing as our chief law-enforcement officer, fortified by the morning prayer meetings he held at the Justice Department, feasted on the omnivorous advances in surveillance technology that not even George Orwell could have imagined.
Gradually, a foreboding arose across political, ethnic, racial, religious, and other lines that we were entering the twilight of our liberties.
In Yale University’s law journal, Legal Affairs, its editor, Lincoln Caplan, wrote, “What is more startling than the scope of these new powers [particularly embodied in Attorney General Ashcroft] is that the government can use them on people who aren’t suspected of committing a crime. Innocent people can be deprived of any clue that they are being watched and that they may need to defend themselves.”
Long before the mainstream media took notice, a network of insistent resisters—a combination of demographic and political bases in hundreds of towns and cities—created a Bill of Rights dynamic that propelled town and city councils to pass Bill of Rights resolutions that vigorously informed their members of Congress that these constituents demanded they rein in Ashcroft and the rest of the Bush team who were dismantling the Constitution.
The constitutional warrior organizing much of this network through the Internet is Nancy Talanian of the first Bill of Rights Defense Committee, in Northampton, Massachusetts.
Meanwhile, partly because of these committees and the work of the ACLU in Congress and the courts, some members of Congress—increasingly aware of their responsibility to hold Ashcroft and Bush accountable under the separation of powers—have been mounting their own determined resistance through legislation in the works. They range from liberal Democrats to deeply conservative Republicans who are also libertarians and distrust any administration which does not recognize that we would not have had a Constitution unless and until the Bill of Rights became the first 10 amendments.
If the Constitution survives, it will be, in part, because John Ashcroft, without realizing it, made so many of us aware that—as Louis Brandeis warned—”the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
On learning of this zealot’s resignation, Anthony Romero, executive director of the American Civil Liberties Union, said, “The legacy of Mr. Ashcroft will take an enormous amount of work to undo.”
But the legacy still continues, and will grow, under Ashcroft’s designated successor, Alberto Gonzales—more on whom in next week’s column. It continues along with George W. Bush, and a Democratic Party insufficiently focused—as a party—on the realization that these persistent threats to civil liberties can energize many more parts of the electorate than the party leadership was able to do in the presidential campaign.
To move in that essential direction, the Democratic Party needs a candidate, starting soon, and a stronger rank-and-file movement in Congress, that will clearly and honestly identify the Democratic Party as the party of the Constitution.
Are there any such signals on the horizon? This war on terrorism will be the longest in our history, continuing for at least decades. Libertarian Republicans are not in control of their party, and they need a lot of help across the aisle. It’s only the Constitution at stake.