Democratic Underground

Ashcroft's Fundamental Flaw
December 15, 2001
by Zak Mann

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John Ashcroft introduced seven (7) different bills to amend the Constitution during his Freshman (and only) term as a U.S. Senator. That's an astounding fact, given that the instrument has been altered only 17 times in more than two-hundred years. Clearly, he's dissatisfied with the document. Now, as Attorney General, he is attempting to do, by edict, what he could not accomplish by following the rules.

Don't say it out loud, though. Ashcroft claims that kind of criticism gives "ammunition to America's enemies." In other words; It's OK for him to do it, but it's not OK for anyone to report it. Ashcroft argues that "charges of kangaroo courts and shredding the Constitution," ... "only aid terrorists."

Interesting logic, John.

Let's see if we can follow some of Ashcroft's reasoning. He says those who think there will not be further acts of terrorism against the United States "are fooling themselves," and then he turns around and says that we are going to have to give up some of our cherished liberties in order to prevent further acts of terrorism. His argument is disputed by it's own premise. Terrorists are trained to "use America's freedom as a weapon against us" he warns, as he waves an Al Qaeda training manual in the face of Congress in defense of his assault on the Constitution. Then he relies upon a remarkably selective use of the Constitution, itself, to defend his usurpation of unconstitutional power. Simply amazing! Politicians are practiced at talking in circles, but Ashcroft's logic would make your head spin if you took his rationalizations for anything more than what they are - a series of self-contradictory excuses.

But in Ashcroft's own words, "Since lives and liberties depend on clarity, not obfuscation, and upon reason, not hyperbole, let me take this opportunity to be clear:" The logic of the Attorney General is fundamentally flawed - and that flaw is neither parochial, nor abstract - it's a genuine threat. After promising clarity in the Senate hearings last week, Ashcroft launched into a series of straw-man arguments, and flag-waving assurances that his actions are only aimed at terrorists, so obviously, according to John, if you disagree with him, you must agree with terrorists.

Nonsense. His argument is not only false, it's insulting. America deserves, and the current crisis demands, much better than that kind of muddled fallacy from it's leaders. To prove the point, let me illustrate the one thing in last week's hearing that Ashcroft was very clear about:

When several Senators questioned him about why he had not allowed the FBI to access records of gun purchases by individuals currently being detained by the Justice Department, he stood up to them. He answered:

"The law which provided for the development of the N.I.C., the National Instant Check system, indicates that the only permissible use for the National Instant Check system is to audit the maintenance of that system. And the Department of Justice is committed to following the law."

If that is, in fact, what the law says, then he was correct to answer that way. We are a nation of laws. It doesn't matter whether you like the law or not; as Americans, it is our duty to follow the law. The Attorney General says he cannot break the law, even if breaking it would aid in the fight against terrorism. He's right. And that is precisely the fundamental flaw in John Ashcroft's logic; he is unwilling to apply that same standard to his own agenda.

Unfortunately for John Ashcroft, the second amendment is not the only law in America. "The right of the people to keep and bear arms, shall not be infringed" is one of the things John Ashcroft likes about the Constitution, so he defends it. But if he applied his unwavering fidelity to, not only that principle, but to all the others as well, we would be looking at a very different set of circumstances today. Examples:

  • The Justice Department is currently detaining hundreds of individuals in secret, without indictment, which Ashcroft defends as a proper response to the threat of terrorism, but the Constitution does NOT say, "No person shall be be ... deprived of life, liberty, or property, without due process of law, ... unless we're really, really upset."
  • Ashcroft defends the idea of secret military tribunals, with the infantile and absurd argument: "what are we supposed to do, hire a flamboyant lawyer for them?", but the Constitution does NOT say, "the accused shall enjoy the right to a speedy and public trial, ... unless they're charged with something shocking and reprehensible." As much as we despise terrorism and terrorists, we are still obliged to observe the rule of law.
  • There's more: Now Ashcroft is attempting to resurrect the long-repudiated and dangerous practice of allowing the FBI to spy on religious and antiwar individuals and groups in hopes of rooting out terrorist sympathizers. But the Constitution does NOT say, "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, ... unless the Attorney General disagrees with their political philosophy."
  • And lastly, John Ashcroft says that those who criticize him "only aid terrorists, for they erode our national unity," but the Constitution does NOT say, "freedom of speech" and "freedom of the press" are "only acceptable if the ideas espoused are popular and do not erode national unity."

John Ashcroft can wave Al Qaeda training manuals around the floor of the senate all he wants to, and he can try to intimidate and silence his critics by repeating "terrorism, terrorism, terrorism," but he is missing the point in a major way. Liberty is dangerous - it always has been - it always will be. That's the nature of it.

Of course we should take steps to protect America from terrorism - every step we possibly can - as long each of those steps is lawful, and legitimate, and constitutional. Thomas Jefferson said "I would rather be exposed to the inconveniencies attending too much liberty, than those attending too small a degree of it."

In the United States of America, we owe our allegiance, not to Thomas Jefferson - and not to George Bush or John Ashcroft either - but to the Constitution. We do not trust individuals, no matter how much we like them, or how much they wave the flag. We trust the rule of law - and not only when it's convenient, or when it fits our personal program, or when it's easy. We trust it, because without it, we are not a beacon of Liberty to the world; without it, we are not a free people; without it, we are not America.

John Ashcroft took an oath to defend the Constitution, when he accepted the office of Attorney General. That oath required that he not only "provide for the common defense," but that he "secure the blessings of liberty to ourselves and our posterity." Quite clearly - and quite logically - he has failed to do his duty. He has violated his oath. He has abandoned his post. It is time for him to go. He must resign or be fired. Liberty and the rule of law demand it.