The world has changed in many ways since Sept. 11, 2001. One of the quieter changes that has taken place involves the relationship of Atty. Gen. John Ashcroft to the federal courts. One astute court watcher, Linda Greenhouse of The New York Times, recently characterized this relationship as a clash of the "imperial presidency" with the "imperial judiciary." In this felicitous phrase she has captured something, but certainly not all, of what may prove to be one of the most important and, as yet generally overlooked, issues of the current administration.
When President Bush first named John Ashcroft as his nominee for U.S. attorney general, the announcement was met with a great deal of opposition from Democrats and political liberals and was staunchly defended by Republicans and political conservatives. In spite of this controversy, Ashcroft was confirmed as attorney general. Prior to Sept. 11, he was, despite early concerns by opponents, a rather noncontroversial figure and it appeared that his tenure as attorney general might be a quiet one. All of this changed, of course, with the tragic terrorists acts of Sept. 11, passage of the Patriot Act, and the ensuing mobilization of government law enforcement after the attacks on the Pentagon and the World Trade Center and the domestic anthrax terrorist incidents.
What has happened in the past 12 months is, on one level, rather fascinating. In the aftermath of Sept. 11, Congress passed and the president signed the Patriot Act, legislation that gave sweeping new powers to federal law enforcement, particularly the FBI. Included in these powers was an increased level of concern about security, a concern that translated into what many commentators feared could be a disregard for individual liberties guaranteed by the Constitution and the courts.
These criticisms of the Patriot Act went largely unheeded in the first few months of its existence because of the ongoing war in Afghanistan and the overwhelming need to discover the perpetrators of the heinous crimes of Sept. 11. As the months have passed, however, and as the attorney general has increasingly used the Patriot Act's new powers and responded to criticism of his actions by labeling many of his critics as unpatriotic, opponents of federal government actions have become more vocal.
The great irony is that the greatest opposition to the attorney general's and the Justice Department's actions seems to be coming not from liberals or liberal organizations but from Congress, including the Republican-controlled House of Representatives, and from the federal judiciary. The extraordinary irony of having a conservative Republican attorney general at odds with a federal judiciary which is, for the most part, comprised of conservative appointees of Presidents Reagan and Bush, has not been lost on court and government watchers.
Greenhouse sees this conflict as fundamentally a battle between a judiciary in the ascendant and a war-time executive branch. It was, after all, the Supreme Court of the United States that decided the presidential election of 2000. Certainly, there is something to this theory. The attorney general has not been treating federal judges with kid gloves. On the contrary, he has openly criticized the federal judiciary. He has even managed to start a war of words with the House and Senate judiciary committees.
The Justice Department recently refused to release a federal court decision to the Senate Judiciary Committee, a conflict that was resolved only when the federal court in question sent the Senate a copy of the opinion. His current battle with the House Judiciary Committee over information also may well end up in the federal courts if the chairman of that committee, a Republican, issues a subpoena to the attorney general as he has threatened to do. One might wonder whether Ashcroft thinks he can win that battle.
The bottom line on all of this, at least in my opinion, is that Ashcroft, for all his years in the Senate and for all of his supposed conservative beliefs, seems to have forgotten one of the basic tenets of conservative politics in this country: true respect for the Constitution of the United States and for the principle of separation of powers and checks and balances. Along with this, many conservatives, following Thomas Jefferson, have a healthy skepticism about intrusive government and tend to favor limited government powers.
The issues at stake in the battles between the Justice Department and the judiciary and Congress transcend even the important questions of individual rights which they encompass, the questions which seem most to concern those on the political left. They go to the very heart of the basic structure of our constitutional government. In wartime, it is even more important that government branches work together in the way the Constitution intended.
Indeed, we must remember that we fight as a nation to preserve the Constitution and the values it upholds. Many believe that it is inappropriate and highly dangerous for a senior Cabinet officer to stymie and, at times, undermine the other two branches of government, as the attorney general seems to be doing of late. As the senior most lawyer in the federal government it is also highly disheartening to see Ashcroft act disrespectfully to both the federal judiciary and to the Congress.
The last time we saw such behavior was during Watergate. That scandal brought down a president. It is time for Ashcroft to remember that he is not the only patriot in government and that federal judges and congressmen and congresswomen also care deeply about our nation and that all members of the federal government have a duty to work together to achieve the nation's goals.
Mike Hoeflich is a professor in the Kansas University School of Law.