Ashcroft's Complex Tenure At Justice
On Some Issues, He Battled White House

By Peter Baker and Susan Schmidt
Washington Post Staff Writers
Sunday, May 20, 2007

As attorney general, John D. Ashcroft was the public face of an administration pushing the boundaries of the Constitution to hunt down terrorists, but behind the scenes, according to former aides and White House officials, he at times resisted what he saw as radical overreaching.

Testimony last week that a hospitalized Ashcroft rebuffed aides to President Bush intent on gaining Ashcroft's approval of a surveillance program he had deemed illegal provided a rare view of the inner workings of the early Bush presidency and the depth of internal disagreement over how far to go in responding to the threat of terrorism after the attacks of Sept. 11, 2001.

According to former officials, it was not the only time that the former Missouri senator chosen for the Bush Cabinet in part for his ties to the Christian right would challenge the White House in private. 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.

These internal disputes often put Ashcroft at odds with Vice President Cheney and then-Defense Secretary Donald H. Rumsfeld, said the officials, who recalled heated exchanges in front of the president. In the end, the officials said, the conflicts contributed to Ashcroft's departure at the conclusion of Bush's first term, when the president replaced him with a close friend from Texas, Alberto R. Gonzales, who presumably would be more deferential to the White House.

None of this meant that Ashcroft was a closet liberal. He championed a broad expansion of government power to investigate possible terrorist cells through the USA Patriot Act, authorized the detention of hundreds without charges in the days after Sept. 11, pushed immigration agents to fully use their power to deport foreigners, secured new authority to peer into private records even in libraries, and oversaw legal interpretations that opened the door to harsh interrogation techniques that critics called torture.

"All of us wanted to err on the side of public safety after the attacks," said former deputy attorney general Larry D. Thompson. But even while taking an "aggressive stand" on the Patriot Act and other measures, "John was completely devoted to the Department of Justice and completely devoted to the Constitution," Thompson said.

Ashcroft declined to comment last week. But Mark Corallo, his former spokesman, said that when it came to resisting what he considered excesses, "he really did throw some sharp elbows."

Ashcroft's public statements and actions prompted some liberals at the time to call him a "zealot" and accuse him of "shredding the Constitution." Sen. John F. Kerry (D-Mass.), the 2004 Democratic presidential nominee, urged voters to "end the era of John Ashcroft." But the account of a nighttime hospital confrontation between Ashcroft and Bush aides -- provided Tuesday by Thompson's successor, James B. Comey, to the Senate Judiciary Committee -- prompted something of a reappraisal of Ashcroft by some on the left last week.

Sen. Charles E. Schumer (D-N.Y.) praised his "fidelity to the rule of law." The Wonkette Web site posted the headline: "Ashcroft Takes Heroic Stand." Under a similar headline, "John Ashcroft, American Hero," Andrew Sullivan expressed astonishment on his Atlantic magazine blog that "John Ashcroft was way too moderate for these people. John Ashcroft."

Ralph G. Neas, president of the liberal group People for the American Way and one of Ashcroft's strongest critics over the years, said the incident told more about his successor, Gonzales, who was one of the two Bush aides at the hospital that night.

"I did not think it was even possible to make John Ashcroft into a civil libertarian," Neas said in an interview. "But somehow Alberto Gonzales for at least one moment managed to make John Ashcroft into a defender of the Constitution."

Still, critics were not ready to embrace Ashcroft, even if they considered him a hero for that night in the hospital. "That's fair, I think he was," said Tom Malinowski of Human Rights Watch. "Clearly, we had an attorney general at that point who at least had strong, independent views. . . . I just wish Ashcroft had exhibited similar independence on the issue of torture."

Ashcroft was a failed presidential candidate and a Missouri senator who had just lost reelection to a dead man when Bush picked him to become attorney general in 2001. A favorite of Christian conservatives, he quickly drew attention when he held prayer sessions in his Justice Department office and when aides ordered $8,000 drapes to cover the bare-breasted "Spirit of Justice" sculpture in the building's Great Hall. He fought vigorously against abortion, affirmative action and gun control.

After Sept. 11, his department became the crucible for forging new law enforcement and intelligence-gathering methods, and he pressed aides to be creative in the use of power to stop any further attacks. He helped push through the Patriot Act by the end of that year, and he faced off against then-Secretary of State Colin L. Powell over whether to grant Guantanamo detainees the protections that prisoners of war are entitled to under the Geneva Conventions.

Ashcroft wanted to be able to interrogate detainees, while Powell argued that observing the conventions would discourage abuse of captured U.S. soldiers. The White House largely sided with Ashcroft, deciding not to grant detainees prisoner of war status.

But former officials said Ashcroft also rejected ideas he considered extreme. When one aide made such a suggestion, colleagues said Ashcroft replied, "I know I asked you to think outside the box, but I don't want you to think outside the Constitution." Chuck Rosenberg, who was Comey's chief of staff and is now a U.S. attorney in Virginia, said, "I always thought Ashcroft was an extremely principled guy."

Ashcroft wanted to interrogate Guantanamo detainees, but former officials said he also argued that they had to be given some form of legal process, putting him at odds with Rumsfeld and Cheney. When Rumsfeld backed off and proposed creating military tribunals, Ashcroft again chafed. For instance, former officials said, he objected to the fact that detainees would have no right to appeal verdicts and forced that to be changed.

"He was personally offended about the way they went about it," said one former aide who spoke on the condition of anonymity to discuss internal deliberations. "He said something to Rumsfeld like, 'You guys gave more process to [Oklahoma City bomber] Tim McVeigh than you are doing in this case, and you knew he did it.' He understood we had to hold these guys and that it could still be done with some sense of process and American fairness. He kept asking, 'Why are we creating problems?' "

Out of loyalty to Bush, former aides said, Ashcroft did not make these dissents public.

"He was a voice for moderation on a wide range of issues that he never got credit for because he did it the right way, behind the scenes," said another former official who asked not to be named. "On many, many issues the administration has gotten itself in trouble on, if they had listened to his advice, they would have been better off."

That is not the way it was seen in the White House. Ashcroft was viewed by some Bush aides as too independent and eager for the spotlight; he particularly irritated them by arranging a satellite hookup from Moscow, where he was visiting, to announce the arrest of terrorism suspect Jose Padilla.

"They resented some of his showboating," said a former White House aide who did not want to be identified to avoid offending Ashcroft. "Almost alone among the Cabinet secretaries, he was seen as a self-promoter and grandstander."

By the time Bush won a second term, Ashcroft had decided to step down and the White House made clear that was fine. But he feared internal rivals would leak his decision, so he wrote his resignation letter by hand and personally delivered it to Bush on Election Day, Corallo said.

"He was not going to trust these people to spin his resignation and backstab him any more," he said. "In the end, the only one he trusted was the president."

Staff writer John Solomon contributed to this report.

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