John Ashcroft: Patriot, Act 2

A mellower John Ashcroft, or a harsher right flank?
A mellower John Ashcroft, or a harsher right flank? (Mark Wilson/getty Images)
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By Dana Milbank
Thursday, June 3, 2010

Remember when John Ashcroft was the man everybody loved to hate?

For the left, he was the demon of the early aughts: patriarch of the Patriot Act, godfather of Gitmo, the prude who draped the bosom of the Spirit of Justice.

How quaint that all seems now, in this era of death panels and tea parties and tyranny and socialism. In comparison to Sarah Palin, Rand Paul, Michele Bachmann and Joe Wilson, Ashcroft is an avuncular figure of a gentler time.

The former attorney general went to the Heritage Foundation on Wednesday to talk about detainee policy, but he wound up agreeing for the most part with the Obama administration. He also asserted the need for terrorism suspects in civilian courts to be read their Miranda rights. He declined to criticize Obama's handling of the Joe Sestak case or the BP spill. And rather than breathing fire, he taught the audience a Johnny Horton ditty from 1959 about the Battle of New Orleans:

We fired our cannon till the barrel melted down

So we grabbed an alligator and we fought another round

We filled his head with cannonballs, and powdered his behind

And when we touched the powder off the gator lost his mind

Ashcroft is back, cornier than ever. Let the eagle soar, like she's never soared before!

Ashcroft's rehabilitation began with the discovery a few years ago that, as he lay ill in an intensive-care unit in 2004, he sided against Alberto Gonzales by refusing to reauthorize the Bush administration's domestic surveillance program, which the Justice Department determined to be illegal. Ashcroft had also opposed Bush officials who wanted to hold detainees indefinitely at Guantanamo Bay without due process. He insisted that Zacarias Moussaoui, involved in the 9/11 attacks, be tried in a civilian court.

It's not as if Ashcroft is some sort of squishy moderate. At Heritage on Wednesday, he could be heard arguing that it was "slander" and "bankrupt" to call the Guantanamo prison evil. "People are safe there; people are treated humanely there," he said. "The idea of detaining people who fight against you is an act of mercy." He also offered the quirky argument that "it's too easy to judge in retrospect" that it was wrong to force Japanese Americans into internment camps during World War II.

The difference is that Ashcroft's rule-of-law conservatism now sounds genteel at a time when so many Republican leaders have gone off in the direction of anti-government hysteria.

Asked about Republican demands for a special prosecutor to look into White House job offers to Sestak, Ashcroft would only say generally that "there are a lot of good people in the Justice Department who are capable of prosecuting criminal activity, and by and large I am in favor of asking them to do their jobs." Asked about the Obama administration's plan to investigate criminal charges against BP, he answered: "If someone ever commits a crime against me or my family, I would hope that in something less than five weeks they would decide to investigate it."

In a sense, Ashcroft's position on detainees has been vindicated by none other than the Obama administration, which agreed with the Bush administration's position that prisoners at Bagram air base in Afghanistan don't have the right to challenge their detention in federal courts. That case, which the government won at the appellate level, is likely to come before the Supreme Court. "The Justice Department was asked if they wanted to change their pleading as the administration rolled over," Ashcroft pointed out, and "the Justice Department declined to change its position. . . . I would just say that I'm thankful."

Ashcroft, in his own conciliatory gesture, implicitly acknowledged that he was on the wrong side in the Hamdi v. Rumsfeld detention case, in which the Supreme Court ruled against the Bush administration. "The Hamdi case was a bit of an anomaly because Hamdi was an American citizen, and it's been considered settled law for a long time that American citizens always have the right in American courts to petition the court for habeas corpus," Ashcroft allowed.

Ashcroft can afford to be magnanimous. He's got a lobbying practice that gives him less pressure and more money than his government job did. Now he jokes readily about being "the only person ever to have lost his Senate seat to a deceased opponent." He riffs about the "pixie dust" of freedom and suggests the Supreme Court has applied a "bonsai" pruning technique to the Constitution. And the man who gave us phrases such as "sneak and peek" now waxes about how "there is no such thing as the need to balance freedom" and how "the defense of freedom, then, is the single most important responsibility of a culture."

All together now: From rocky coast to golden shore, let the mighty eagle soar!

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