Ashcroft: Closet Civil Libertarian?

A piece in yesterday’s Post points out that, contrary to John Ashcroft’s reputation as a lockstep defender of the administration’s war-on-terror policies, as attorney general, Ashcroft “at times resisted what he saw as radical overreaching”:

In addition to rejecting to the most expansive version of the warrantless eavesdropping program, the officials said, Ashcroft also opposed holding detainees indefinitely at the U.S. military base at Guantanamo Bay, Cuba, without some form of due process. He fought to guarantee some rights for those to be tried by newly created military commissions. And he insisted that Zacarias Moussaoui, accused of conspiring with the Sept. 11 hijackers, be prosecuted in a civilian court.

All true, but the article leaves out one of the most important occasions on which Ashcroft pushed back.  In 2002, the adminstration seriously contemplated extending the Jose Padilla treatment–that is, indefinite confinement at the will of the president, without charges or access to counsel–to all Americans suspected of terrorist activity.  As Michael Isikoff and Daniel Klaidman reported in Newsweek three years ago, in addition to Padilla, “officials privately debated whether to name more Americans as enemy combatants—including a truck driver from Ohio and a group of men from Portland, Ore.,” as well as the Lackawanna Six

For Dick Cheney and his ally, Donald Rumsfeld, the answer was simple: the accused men should be locked up indefinitely as “enemy combatants,” and thrown into a military brig with no right to trial or even to see a lawyer. That’s what authorities had done with two other Americans, Yaser Hamdi and Jose Padilla. “They are the enemy, and they’re right here in the country,” Cheney argued, according to a participant. But others were hesitant to take the extraordinary step of stripping the men of their rights, especially because there was no evidence that they had actually carried out any terrorist acts. Instead, John Ashcroft insisted he could bring a tough criminal case against them for providing “material support” to Al Qaeda. 

Indeed, though Ashcroft seemed to have been on board with the transfer of Padilla out of civilian custody, he apparently helped prevent a much broader assault on the rule of law. 

Now I think calling John Ashcroft a civil libertarian for this would be setting the bar pretty low.  But after nearly six years of radical overreaching, it’s hard not to fall victim to the “soft bigotry of low expectations.”