Ashcroft's Way
America's top cop has been demonized and lionized. He's a complex guy all right, just not the guy everyone thinks he is
This same ethos helps explain why Ashcroft, the gun-control foe, has increased certain gun-crime prosecutions, like those of felons carrying guns. Critics say the attorney general is ignoring laws that target rogue gun dealers, but Justice spokesman Mark Corallo says prosecutions of dealers are actually up 150 percent.
It also explains why Ashcroft wrote a letter to the National Rifle Association, without consulting with his appellate lawyers, to assert his own interpretation of the Second Amendment. In Ashcroft's conception, it protects the individual's right to bear arms, not just the militias' right--which has been the accepted jurisprudence for decades. The Ashcroft letter triggered at least 130 court challenges in federal gun cases in Washington, D.C., and Virginia alone. Having kicked over the hornet's nest, Ashcroft then helped his prosecutors fight, and win, every case. Mathew Nosanchuk, litigation director of the Violence Policy Center, says Ashcroft's "pandering" to the NRA "put the Justice Department on a collision course with itself."
By far the most important criticisms of Ashcroft's Justice Department have to do with its response to the 9/11 attacks. Ashcroft and the department have been rebuked by Fine, Justice's inspector general, for unwarranted detention and abuse of some illegal immigrants immediately after the attacks. Civil liberties groups have challenged some provisions of the U.S.A. Patriot Act--the antiterrorism law passed after 9/11--as unduly intrusive. Although a Gallup Poll last year found that 70 percent of Americans felt the law was either strong enough or could be toughened even more, for many, the Patriot Act has become a symbol of what they view as Ashcroft's legal excesses.
In fact, the law has nothing to do with the measures for which Ashcroft has drawn the most heated criticism. The Patriot Act, the government argues, was designed to update laws passed before cellphones and the Internet were created, to allow FBI agents to obtain wiretaps on multiple cellphones and track terrorism suspects' Internet usage. It also allows federal agents to obtain terrorism suspects' business records--including their library browsing habits--while delaying notification that their homes have been searched, with a federal judge's approval.
Controversial? Sure, but federal judges and civil liberties groups have focused on other, more troubling Justice Department policies outside the Patriot Act. They cite policies like jailing terrorism suspects as "material witnesses" so that they can be interrogated by investigators and prosecutors, even though they have not been charged with any crime. Or the preventive detention of illegal aliens and the 600-odd secret trials of those detainees. Or Ashcroft's legal defense of the administration's detention of thousands of "enemy combatants" at Guantanamo Bay, Cuba--with no prospect of trial for most. Ashcroft also modified existing rules to allow the government to detain illegal aliens even after courts ruled that they should be released--measures that four federal judges have ruled unconstitutional. "The public, in its wonderful ignorance or infinite wisdom, has wrapped all these theories into one ball," says University of Maryland legal scholar Michael Greenberger, "and attacked the Patriot Act as an easy target to express their deep anger over what's happening."
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