Null and Void: Guarantees of Liberty

Not so long ago, a certain member of the United States Senate summoned the press to denounce controversial demands by federal law-enforcement officials for invasive power. While conceding that some additional measures to curtail crime and terror might be necessary, he insisted that fundamental freedoms could not be compromised. “These needs must be addressed, but the provisions must not destroy our constitutional liberties, including the First, Fourth and Fifth Amendments,” said the Senator. “But frankly, no amendment to the Constitution needs more protection than any other. They all must be respected and protected at the highest levels.”

That impassioned spokesman for civil liberties was John Ashcroft. At the time, Mr. Ashcroft was leading a bipartisan effort to protect the integrity of encryption software from what his group regarded as overly intrusive and commercially damaging regulation. It was one of the rare occasions in his public career when the Missouri conservative displayed any zeal for constitutional rights (other than those he believes are extended to gun owners under the Second Amendment). Even then, there were reasons to wonder about the sincerity of those fine phrases, which inspired not only civil libertarians but also generous campaign contributors in the computer industry and the top Republican lobbyists they’d hired to safeguard their interests.

Now he and his boss, George W. Bush, are raising the most serious threats to liberty since John Mitchell did the dirty work of Richard Nixon. With their proposals to abrogate the rights of suspected terrorists and their refusal to acknowledge Congressional authority in such matters, the Attorney General and the President are voiding the guarantees of liberty they swore to defend.

Back when he was under scrutiny by the Senate, press and public, critics of Mr. Ashcroft’s nomination mainly worried whether his religious piety would distort Justice Department policy on abortion rights, gay rights and kindred aspects of the ongoing culture war. Relatively little was said about his attitude toward civil liberties or the rights of criminal defendants. Enthusiastic endorsers of the Ashcroft nomination included William Safire, the libertarian New York Times columnist who is currently (and quite correctly) raising alarms about the administration’s “kangaroo court.”

Yet Mr. Ashcroft’s record on civil liberties and the Constitution long ago betrayed his tendency toward the authoritarian, if not the dictatorial. As long ago as 1989, while governor of Missouri, he sought to abolish bail for certain defendants accused of selling drugs, an attempted abrogation of a basic right that the St. Louis Post-Dispatch denounced as “hysteria.” And from there he went on to do worse.

Upon reaching the Senate, Mr. Ashcroft displayed an unseemly desire to deface the document he was sworn to uphold, in ways that inevitably would undermine individual liberty. During his six-year tenure, he introduced or sponsored at least seven constitutional amendments; by comparison, that isn’t too far short of the total number of amendments in the two centuries since the founders ratified the first 10, also known as the Bill of Rights.

Among the many “improvements” Mr. Ashcroft suggested was an amendment that would allow future amendments to be passed more easily. And, of course, he was always a leading advocate of the so-called flag-burning amendment, which would make desecration of the American flag a federal offense. Showing the same opportunism he now employs to seize unwarranted power, he tried to ram the flag-burning amendment through the Senate two years ago during the U.S. intervention in Kosovo, when he hoped patriotic fervor would overwhelm libertarian opposition.

That danger is far greater today, when patriotism is mingled with fear and fury. The Attorney General and the White House weren’t satisfied by the instantaneous passage of the “U.S.A. Patriot Act,” which greatly expanded their surveillance and detention capacities. The act’s quick approval, virtually without debate, only made Mr. Ashcroft contemptuous of the elected representatives who jumped at his command. He has ignored several letters from Senator Patrick Leahy, chairman of the Judiciary Committee, about civil-liberties issues raised by the “war on terrorism.”

And until last week, he brushed aside bipartisan requests that he appear on Capitol Hill to explain himself. Evidently, the Attorney General was just too busy to answer questions from that other branch of the government. (Busy with what would be a good question, since the Justice Department has very little to show in the form of evidence or indictments.)

 For the moment, the only significant restraint on Mr. Ashcroft and his boss comes from European allies such as Spain, a former dictatorship that ironically seems more inclined than the United States government to uphold the most important American traditions. It is up to Mr. Ashcroft’s former colleagues in the Senate to remind him forcefully of those rights he once urged officials to respect and protect “at the highest levels.