John Ashcroft: The First and a Quarter Kind of Loyalty

Like PD Dude, I noted the attempted John Ashcroft sickbed hustle by Alberto Gonzales (then White House counsel) and Andrew Card. (then White House Chief of Staff) The short story is that the acting Attorney General, James Comey, would not sign off on the legality of the NSA's domestic spying program, so the White House sent Gonzales and Card to Ashcroft's hospital room to try to get Ashcroft to sign off on the reauthorization of the program.

Ashcroft did not sign the papers and told Card and Gonzales that Comey was the AG. The White House reauthorized the domestic spying program anyway. After Ashcroft got better, the program was reauthorized with the AG's approval. Allegedly there were some changes to the program, but those changes have not been revealed by anyone.

The entire incident speaks volumes about the ethics and morals of Gonzales and Card. It also shows that there are/were decent people in the Bush Administration who knew right from wrong. Read it; it would make a great movie or a Bill Bennett homily, except that the bad guys ultimately win and are rewarded for their utter lack of decency. Here's the transcript of James Comey's testimony.

But what does the incident say about John Ashcroft? Did he have a sickbed conversion to Defender of the Constitution? Comey said that Ashcroft expressed his views on the matter to Gonzales and Card in very strong terms and then told them that it didn't matter because Comey was the AG at the time. Comey did not state what Ashcroft's views were.

So why did Ashcroft do what he did?

1. Because legally he was not the Attorney general; he did not have the legal authority to be the AG at that time, due to his incapacity.

2. Because he was loyal to his deputy, James Comey, and to his rice bowl, the Department of Justice.

3. Because the Office of Legal Counsel said it was illegal. The OLC used to be the smart guys about the law for the executive. They looked at laws and legal questions as they affected the executive branch and said what the law was. That all changed with the Bush Administration, and the OLC became apparatchiks for the Administration, switching from "hey, boss, this is what the law says" to "OK boss, you want to justify this action? Here's how." The 2002 Torture Memo is an excellent example of the OLC's switch from honest broker to whore.
With regard to the NSA's domestic spying program, when the OLC said it was illegal, so you can imagine how blatantly illegal it had to be for OLC to have second thoughts.

4. Because he felt the Administration had gone too far in violating our Constitutional rights, requiring him to come to their rescue? I wondered if it was true when I read Comey's testimony, but it was silent about what Ashcroft's views were. So I had to do a little research about what Ashcroft had said about the domestic spying program. He's written a book, Never Again: Securing America and Restoring Justice, which is a narrative of the things he's done to keep America safe before and since 9/11. The book is very short on discussion or explanation of why, and there is no discussion of the hospital hustle (though he talks about how mean the 9/11 commission was to want him to testify after he got out of the hospital) There is no discussion of the domestic spying program, and only contempt for those who questioned the civil rights implications of his policies (he said they were aiding the enemy)
Ashcroft also spoke to NPR about his book, and when asked directly about the incident at the hospital, he either would not comment or redirected. (at 2:22 and 3:10)
On thing Ashcroft is able to answer is how necessary it is to protect our security, but he does not discuss the cost to our liberty; it is simply not part of his calculus.

So, no, I don't think John Ashcroft was doing the Constitution any favors that night in intensive care, but PD Dude has a good point - Ashcroft has principles, even though I disagree with them, and that puts Ashcroft out of step with many of the people in this Administration.

However, Ashcroft's principles are either not so strong or not so offended for him to show the second kind of loyalty to those principles, and that makes him still part of the problem.

Jack

UPDATE: WRT Alberto Gonzales; it all makes sense now...