John Ashcroft: Looking Better, but Not Good Enough

Indulge me in a brief stroll down memory lane. Not too far back, just to the days after the 2004 election when George Bush nominated Alberto Gonzales for Attorney General. Conventional wisdom held that he was a moderate who had, after all, once allowed a teen-age girl in Texas to have an abortion, that the strongest opposition would come from social conservatives, and that Democrats would not oppose him because he was Hispanic, he was moderate on abortion and, well, he was not John Ashcroft. To their credit, Democrats defied conventional wisdom. They grilled Gonzales over signing the "Torture Memo," and 36 Democratic Senators voted not to confirm him. Still, Gonzales was confirmed by a wider margin than Ashcroft. And Demcrats' questions to him, perhaps understandably, focused on more dramatic but narrow issue of the scandalously narrow definition given to torture and not on the deeper and even more disturbing implications of the Torture Memo -- that the President is above the law.

I thought about this while reading former Deputy AG James Comey's much-reported testimony about how Gonzales (then White House Counsel) and White House chief of staff Andrew Card sought to trick a hospitalized and very ill John Ashcroft into signing his approval of an unidentified "program" the Justice Department could not certify as legal. Although Comey refused to name the program in question, it has already been identified as the warrantless surveillance, which the Bush Administration has justified with essentially the same theory that the President is above the law that it used to defend torture. Comey, clearly an admirer of Ashcroft, tells a dramatic story of how Ashcroft, groggy and drugged after surgery, nonetheless rose to the occasion and gave a detailed argument of why he could not certify the program as legal. Comey relates that it was only when he, Ashcroft, their respective chiefs of staff, and Robert Mueller, Director of the FBI, all threatened to resign en masse that the President agreed to let them modify the "program" in such a way that they could certify it as legal.

It is a riveting story. Certainly Ashcroft, resolute on his sickbed and ready to resign on principle to uphold the rule of law, comes across a lot better than the sleazy Gonzales, seeking to manipulate a sick man into signing a document without understanding it. But before we go too far in admiring Ashcroft and Comey for their brave and principled stand, let us keep a few things in mind. Despite their insistence that they could not certify this "program" as legal, it had been going on since shortly after September 11, 2001, and this was already March, 2004. They had been certifying the program for nearly two and a half years before their sudden change of heart. Second, although we have only rampant speculation as to what changes were made, we do know one thing. Those changes did not go so far as to require a warrant before eavesdropping, which is to say, they did not require the program to comply with the the law (FISA) in order to be certified as legal.