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Attorney general shifts on liberties

The Boston Globe
September 26, 2001

WASHINGTON ― As a senator, John D. Ashcroft was a friend of civil libertarians, a conservative Missouri Republican working to thwart government efforts to peek into private e-mail communications.

But as an attorney general facing a historic national security crisis, Ashcroft has become an unflinching advocate for his law enforcement colleagues, demanding sweeping surveillance authority from Congress and an expanded ability to detain foreigners.

Sen. Judiciary Committee chairman
Patrick Leahy of Vermont
meeting with US Attorney General
John D. Ashcroft prior to
a hearing on homeland defense
on Capitol Hill, Sep. 25, 2001

Sitting this week at committee witness tables, Ashcroft asked his former colleagues in Congress for what conservative lobbyist Grover Norquist called an "FBI wish list" of intelligence-gathering and prosecutorial powers.

"Just as American rights and freedoms have been preserved throughout previous law enforcement campaigns, they must be preserved throughout this war on terrorism," Ashcroft said yesterday in an appearance before the Senate Judiciary Committee.

But "terrorists have a competitive advantage" because the laws have not kept pace with technology, he said.

The Ashcroft who faced the House and Senate Judiciary Committees this week, observers on both ends of the political spectrum said, was a man with changed priorities.

As a senator and new attorney general, Ashcroft fought for Internet privacy and spoke against the use of secret evidence to prosecute immigration cases.

"It is very different from what we had come to expect from Ashcroft," said Shari Steele, executive director of the San Francisco-based Electronic Frontier Foundation. "He had been quite a privacy advocate, a strong encryption advocate [to help e-mail users scramble their Internet messages]. He had been much more positive toward individual freedoms."

Approached after the hearing, Ashcroft refused to answer questions on his views on privacy. Over two days, his spokeswoman did not return calls seeking comment.

Analysts say that Ashcroft's evolution should have been expected in his new post. "Before, he was representing the interests of the American people, and now he's representing the interests of law enforcement," said Brad Jansen of the conservative Free Congress Foundation.

But civil liberties advocates are worried. "Everything that was on the wish list for government and prosecutors that didn't get passed in 1996 is getting trotted out now," said American Civil Liberties Union president Nadine Strossen, referring to antiterrorism proposals by the Clinton administration after the Oklahoma City bombing. "The idea that the government could go even further than that is truly frightening."

Ashcroft, who was one of the most conservative members of the Senate, was never a favorite of the ACLU and other liberal groups, who were rankled by his record on civil rights and his efforts to ban abortion.

But like many conservatives worried about Big Government, Ashcroft was a solid supporter of Internet privacy, introducing a proposed E-Privacy Act that sought to bar government efforts to control consumers' ability to scramble e-mail communications.

"He was actually very helpful in opposing efforts to limit or ban encryption," Norquist said. "The federal government wanted to be able to read everybody's e-mail and get into everybody's computer."

As attorney general, Ashcroft also appointed a privacy officer at the Department of Justice.

Then Ashcroft's duties were transformed by the terrorist attacks on New York and Washington. The proposal he promoted yesterday asked for broad authority to intercept private Internet information, including credit card payment records. It would also make it easier to compel an Internet provider to disclose unopened email.

Arab-American and immigration advocacy groups are also worried about the increased power the Justice Department wants when holding non-citizens, a demand the groups said is counter to Ashcroft's previous comments as attorney general.

In his early months in the Job, Ashcroft spoke positively about getting rid of rules that allow the Immigration and Naturalization Service to use secret evidence to detain a foreigner. Under current rules, a non-citizen immigrant can be detained for reasons not disclosed to even his defense lawyer.

In all but one of 26 such cases over the last three years, the detainee was of Arab or Muslim background, according to Hussein Ibish of the American Arab Anti-Discrimination Committee, which has helped gain their release.

While Ashcroft was not a cosponsor of legislation to ban secret evidence, he was seen as an ally by Arab and Muslim groups. They also saw an advocate in President Bush, who denounced the practice on the campaign trail.

Speaking before the House Judiciary Committee in June, Ashcroft said the Bush administration had never used secret evidence in immigration cases. Such evidence, he said, "is a matter of concern to this administration because it involves a very tender balance between the need to enforce the law and the rights of citizens."

Critics said that the proposal Ashcroft presented to the same committee yesterday goes even further than the use of secret evidence, in asking for the right to detain immigrants based on virtually no evidence at all.

"They are asking for even broader use of secret evidence, to deport people without telling them why," said Jean Abinader, managing director of the Arab-American Institute.

Strossen of the ACLU conceded that Ashcroft's responsibilities are different than before he became attorney general.

"To some extent, you should look at something differently when you're in the role of attorney general, versus being on the Supreme Court or in a legislature," she said. "That's part of what was behind the scheme of checks and balances."

But "we're still fighting it," she said. "We're trying to slow it down."