ASKING ALL THE WRONG QUESTIONS OF ASHCROFT

If it were not for the fact that these clowns hold and exercise real power
over the lives of real American citizens, one would be tempted to view
contemporary American politics as nothing more than a particularly low form
of farce -- a self-referential satire on its own brand of vaudeville that
doesn't even know enough about vaudeville to take it seriously on its own
terms. Based on what they choose to show us on television, these guys don't
even know enough about politics and governance to take them the least bit
seriously.

The latest example of the tendency can be found in the Senate hearings
considering the nomination of former Missouri senator -- and governor and
attorney general -- John Ashcroft to be attorney general of the United States.

There are valid reasons to be concerned -- not necessarily opposed, all
things considered, but at least concerned -- about elevating Mr. Ashcroft
to the top law-enforcement position in the United States on policy grounds.
But the manic opponents of his nomination have raised none of these valid
concerns, preferring to concentrate on bogus and fanciful charges that he
is a racist or an opponent of abortion so zealous he will countermand the
laws of the country or encourage wanton lawbreaking.

Meanwhile Mr. Ashcroft's supporters have been content to tout his supposed
integrity, an integrity that vanished -- at least intellectual integrity,
which seems essential to integrity in action -- almost instantly as soon as
he was confronted by a tough question or two. There may be examples of
integrity in Mr. Ashcroft's career, but his supporters have been little
concerned to dredge any up and display them for the consideration of the
American people. Instead, they seem content to chant "integrity" like a
mantra, apparently viewing the fact that he hasn't been caught buggering
6-year-olds as sufficient evidence.

I think I understand the emphasis on integrity by Ashcroft supporters,
although few of them are even honest enough to say so out loud. The hope
seems to be that a man of integrity will get right on the messy and
Herculean task of cleaning up the Augean Stables into which Janet Reno has
turned the more politicized than ever U.S. Department of Justice. Mr.
Ashcroft alluded to the hope (without being quite forthright about it) in
the opening day of hearings, when he said, "I understand the responsibility
of the attorney general's office, I revere it, I am humbled by it. [Sidebar
warning: almost any public figure who says he is humbled is almost surely
the opposite.] And if I am fortunate enough to be confirmed, I will spend
every waking moment, and probably some sleeping moments as well, dedicated
to ensuring that the Justice Department lives up to its heritage, not only
enforcing the rule of law, but guaranteeing rights for all Americans."

That's not quite as forthright as "Janet Reno has politicized the
department more thoroughly than any recent attorney general and I'll do the
opposite," but it seems close to what Mr. Ashcroft was trying to suggest.

What hopeful conservatives -- who seem to have the historical memory of a
spider mite -- seem to think is that Janet Reno was a new phenomenon under
the sun as an attorney general who -- gasp! -- actually let politics rather
than the dispassionate judgment of the law enter into her decision-making
process. That attitude ignores the fact that the attorney general's
position in modern American politics has traditionally been the most
overtly political of the Cabinet positions. The lately tarnished but still
sainted John F. Kennedy appointed as attorney general not only his campaign
manager but his brother. Talk about covering your back! But although the
example eventually got the law changed to forbid presidential siblings in
the position, it was hardly unprecedented.

Harry Daugherty was Warren Harding's campaign manager and his attorney
general. Homer Cummings was Franklin Roosevelt's campaign manager and his
attorney general. (He conceived the infamous "court-packing" scheme that
led to the "switch in time that saved nine.") Howard McGrath was Harry
Truman's campaign manager and his attorney general. Herbert Brownell filled
both positions for Dwight Eisenhower. John Mitchell was Richard Nixon's
campaign manager and his attorney general.

Mitchell's indictment on several charges in the wake of Watergate led to a
tendency to fill the post with somebody other than the actual campaign
manager, but most attorneys general since have been at least close cronies
of the president. Griffin Bell was close to Jimmy Carter. Ed Meese was
something very close to Ronald Reagan's best personal friend, William
French Smith his former personal lawyer. All Janet Reno proved was that you
didn't have to be a long-time personal friend and confidant of a president
to be a willing political tool.

Presidents like to have trusted personal confidants or willing shills in
charge of the Justice Department for many of the same reasons Mafia
chieftains like to have trusted confederates in police departments and the
judiciary. Having those posts filled with people who maintain a foolish
adherence to the impartial administration of the law as written can be
extremely embarrassing and inconvenient -- or worse -- to such worthies.

There are other reasons the Department of Justice is inherently
politicized. There are simply too many federal laws on the books to enforce
them all with equal vigor, even with a bloated staff of 123,000 attorneys,
investigators, Border Patrol agents and correctional officers. Choices must
be made and priorities must be set (given the unfortunate unlikelihood that
any attorney general will spearhead a streamlining of the federal statute
books). The question of how to allocate resources is invariably political,
and presidents naturally want those choices to be made in accordance with
their own agendas, if they have any.

The romantic notion that any attorney general will disinterestedly serve an
entity as abstract as "the American people" or even the "rule of law,"
then, is not high on any realist's list of likely outcomes. John Ashcroft
may well clean up some of the messes Janet Reno is leaving behind and
prosecute some malefactors who richly deserve it. He is most unlikely to be
an objective, impartial servant of "the law," if only because the federal
law in its current condition is bloated and rife with contradictions. And
while the emphasis in the hearings may dictate that he is unlikely to stand
idly by as violent protesters overrun abortion clinics, to take one
example, you can be sure that he will make political choices.

The most troubling aspect of John Ashcroft's record, especially from the
standpoint of the concept of the rule of law as an instrument evolved over
the centuries to protect the rights of citizens, is his zealousness as a
drug warrior. The only time, during the first day of the hearings, that he
shed the cautiousness that dictates behavior for any nominee facing hostile
questioning and became animated, was when he talked about how much more
vigorously he plans to pursue the drug war and clean up America's bad habits.

He displayed real passion and conviction in these statements, as compared
to the discomfort compounded by a certain smarminess and smugness when
cheerfully announcing he was willing to sell out (or at least compromise
what some naifs thought were his firm convictions) on gun control
(Mandatory trigger locks poll well? I'm all for 'em.) and illegitimate
federal power in general.

Now I didn't really expect any of the worthy Honorables to ask the question
that should be posed to anybody who views himself as a constitutionalist
and a conservative: "Mr. Ashcroft, you have taken the oath many times, in
many positions, to protect and defend the Constitution of the United
States. Can you explain to me where, in the enumerated powers of Article I,
Section 8, which creates a national government of strictly limited powers,
the national government is given the power to prohibit the ingestion of
certain drugs?"

Back in more innocent days, when legislators wanted to prohibit beverage
alcohol during the 'teens of the century now blessedly past, they
understood that the Constitution didn't give the national government the
power to do so. They understood that an amendment to the constitution would
be necessary to give the government such power, so they duly proposed,
campaigned for and passed an amendment. Since the New Deal, however, such
niceties seem anachronistic, and the national government does whatever it
wants to do, relying on pliant courts to approve most of the
unconstitutional grabs for power while striking down a law from time to
time to maintain appearances.

Whether the constitutional argument about the drug war is politically
viable or not, however, the maintenance and (if Ashcroft is to be believed)
potential intensification of the drug war raises serious questions about
the administration of justice and the protection of constitutional rights
that deserve much more serious attention than is likely in the provincial
precincts of the Imperial City.

Trying to enforce drug laws -- which are "victimless crimes" not
necessarily in the existential sense that nobody else but the drug user
ever suffers or is victimized, but in the narrower jurisprudential sense
that there is unlikely to be a "complaining victim" eager to bug the police
and demand that the perpetrator be found and prosecuted, as in a burglary
or a mugging -- requires police work of a type that is bound to raise
questions and ultimately to erode constitutional rights.

To catch drug offenders police must penetrate private places, get in on
transactions in which great pains are taken to keep them hidden, and snoop
into peoples' private ways in increasingly intrusive ways. If they don't,
there's simply no hope of ever enforcing such laws.

So, police use informers, often of dubious character and reliability. They
go undercover, often at serious risk to themselves and others. They push
the courts to allow more wiretaps, more exceptions to the constitutional
provisions that require warrants and probable cause to break into peoples'
homes. They are forced to rely increasingly on forced entrances, and on
quasi-military tactics. They use entrapment and "sting" operations more
frequently.

When these tactics don't work, they request ever more liberal
asset-forfeiture laws, under which property can be seized on the basis of
suspicion of its being involved in drug crimes, and the owner then has the
burden of proof to demonstrate that the property is innocent, even when no
charges are ever filed. If that doesn't amount to a systematic erosion of
the concept of property rights that was one of the mainstays of the
American founding, I don't know what is.

The drug war, then, has created what many refer to as the "drug war
exception" to the Fourth Amendment, and it has encouraged the
militarization of the police. Where do you think America's cops learned the
kind of "dynamic entry" tactics they used during the first assault on Waco
or the kidnapping of Elian Gonzalez? Indeed, the BATF was able to get
equipment and training from the military to organize the legally and
morally unjustified assault at Waco by lying, almost certainly knowingly
and consciously, about David Koresh and his band maybe violating drug laws.
That's because the futility of the drug war led to lawmakers creating the
only exception to the principle that the military should not be used for
domestic law enforcement purposes -- the military can be used if it's to
conduct the "war on drugs," which clarifies the fact that it is really a
war on the American people.

Not only is the drug war the proximate cause of a number of erosions of
constitutional rights and liberties that should be of concern to Americans,
there is evidence that the American people are beginning to understand it
and to demand changes in the prohibitionist policies to which most
politicians cling so stubbornly. Despite opposition from almost all elected
and law enforcement officials, people have passed medical marijuana laws,
by margins that would be viewed as landslides if any politician garnered
them, in every state where they have been put on the ballot. California
voters in November passed Proposition 36, which requires probation and
treatment instead of jail for simple possession of drugs, and voters in
Oregon and Utah approved reforms in the asset forfeiture laws.

Even outgoing drug czar Barry McCaffrey has said often (though he hasn't
adjusted his budget accordingly) that you can't deal with drug problems
through interdiction and enforcement alone, that prevention and treatment
are vital and probably more important. Yet, John Ashcroft is on record as
saying that "A government which takes the resources that we would devote
toward the interdiction of drugs and converts them to treatment resources …
is a government that accommodates us at our lowest and least." He has
supported more "liberalized" asset forfeiture laws and was a proud
co-sponsor of the notorious methamphetamine bill in the last Congress, that
would have used prior restraint to restrict speech and writing about
illicit drugs and in its original form would have allowed warrantless
searches when people were not at home without even a requirement that they
be informed that their house had been searched.

Ashcroft repeatedly criticized the Clinton administration for not being
zealous or punitive enough in its approach to drug law enforcement. He
supported mandatory minimum sentences for drug offenses, which have eroded
the judgment of judges and in practice filled prisons with low-level
offenders while leaving the "kingpins" at which they were purportedly
directed relatively unscathed.

To have a drug warrior zealot as attorney general at a time when the
political landscape on prohibition seems to be changing -- when the people
are trying to tell the politicians, in every way made available to them,
that prohibition is a failure and it's time to consider alternatives -- is
potentially very troubling.

Perhaps it's all for the best. Maybe what's required to push the people far
enough that they start exacting a political price from politicians who
ignore them will be to have a drug warrior who actually seems to believe in
vigorous enforcement of the drug laws as a first principle (obviously
overriding devotion to the Constitution) rather than a hypocrite who is
willing to double arrests and double the budget to enforce laws that (as he
recently admitted) he doesn't believe in.

Other questions of substance have received short shrift in the Ashcroft
hearings. What would Ashcroft do about the Microsoft persecution, an issue
that could have an enormous impact on the health of the economy and the
future of high tech? Would he recommend any reforms in the antitrust laws?
What is his attitude toward freedom of expression and action on the
Internet? Has he read the Cato Institute's remarkable recent book, "The
Rule of Law in the Wake of Clinton," and how does he plan to address the
perception that the powerful, especially the president and the vice
president, are beyond the reach of the law?

How would he advise a president on the legitimacy of executive orders that
circumvent the will of Congress? Does he think that there is such a thing
as "regulatory taking" of property that deprives an owner of the use of his
property and therefore requires compensation under the Fifth Amendment?
Would he advise a president considering a foreign adventure that the
Constitution gives Congress the sole power to declare war? How much
American sovereignty (if any) does he think can be legitimately ceded to
international organizations and institutions? What does he think about the
Clinton administration's repeated attempts to create databases on all
Americans?

Instead of such substantive questions, we get goofy allegations of being a
neo-Confederate, stern lectures for taking the same position on the Second
Amendment that Hubert Humphrey held, and barely veiled bigotry against
firmly held religious belief.

But the most important questions about John Ashcroft revolve around whether
he can be a zealous drug warrior and a defender of the constitutional
rights of all Americans at the same time. Unfortunately, those key
questions have received almost no attention either from the Honorables or
from the media.

I suppose that after some sound and fury John Ashcroft will become the next
attorney general. The hearings on his nomination could have been an
opportunity to explore some genuine and serious issues that the next
attorney general will confront. The Senate and most of the media have
muffed the opportunity.