Ashcroft's Mixed Legacy

Attorney Andrew Cohen analyzes legal issues for CBSNews.com and CBS News.

The Justice Department has excelled in pursuing and punishing white-collar criminals over the past three years and it has seen its share of successes in the war on terror. It has vigorously pursued the government's interests in federal court, including the Supreme Court, and has used to great effect the fear many people, including many judges, felt in the wake of the terror attacks on America. It has been precisely the sort of conservative Justice Department that our conservative President sought and expected.

But the Attorney General himself has too often had the look and feel of a carnival promoter; trying to exaggerate the scope of his department's successes even when he really didn't have to. Res Ipsa Loquitur, the law says in Latin: the thing speaks for itself.

For example, Ashcroft in December 2001 trumpeted the indictment of Zacarias Moussaoui as the "20th hijacker" of the terror attacks of Sept.11. Nearly three years later, we know that is not true. Even the 9/1 Commission Report identified another man as the hijacker who was supposed to be on Flight 93, the flight that crashed into a field in Pennsylvania. Moreover, the Administration's decision to highlight the Moussaoui case as an exemplar of American justice has been an outright disaster. Three years after it began, federal prosecutors still are fighting with Moussaoui's judge over which constitutional rights he ought to receive.

Then there is the case of Jose Padilla, the only remaining U.S.-born "enemy combatant" still in captivity. The now-departing Attorney General rushed to announce the arrest of Padilla years ago and was quick to describe him as a "dirty bomb" suspect -- even though we now know that Padilla was nowhere near having a radioactive dirty bomb or even a starter plan on how to get one. Padilla's case, too, is now wending its way through the courts but soon the White House will have to decide whether to charge him with a crime or let him go pursuant to a command by the Supreme Court.

Neither the Moussaoui case nor the Padilla case were anything close to what the Attorney General said they would be. Nor was the case of the so-called "American Taliban," John Walker Lindh, whose plea deal a few years ago now is being challenged by Lindh's families. Nor was the dramatic but unseemly roundup of thousands of people in the immediate aftermath of 9/11. Nor was the USA Patriot Act.

The fact is that the successes of the Justice Department during Ashcroft's tenure -- and there have been many -- have been of the lower profile variety; the type that don't necessarily make great copy and certainly don't generate exciting press conference opportunities, except when the defendant happened to be Martha Stewart or Kenneth Lay.

To prove this point, perhaps the single greatest legacy of the Ashcroft Justice Department is its change in emphasis away from punishing people who commit crimes to preventing people from committing them in the first place. This sea change in thinking isn't exclusive to the Justice Department; it's occurring, with varying degrees of success, at the FBI and in virtually every other law enforcement and intelligence gathering organization. It has altered the way federal prosecutors do business; the way they handle cases; the words they use when they argue in front of a judge. It has instilled a sense of drama and danger to the criminal justice system that I'm not sure existed before.

This change would have occurred no matter who was presiding over the Justice Department. But the notoriously hands-off Ashcroft deserves credit for quickly recognizing the need for that change and for pushing it as best he could past the bureaucratic obstacles well-known in Washington.

If a future terror attack is thwarted, if a truly bad guy is apprehended before he can commit terror, it will be as much because of this big-picture change as it will be because of good footwork by the good guys. This is a controversial position because it turns on its head 200 years of American law. But the terror attacks on New York and Washington turned on its head 200 years of conventional wisdom about crime and punishment. Desperate times, right?

Ashcroft got off to a very good start. He delayed for a month the execution of Timothy McVeigh, the Oklahoma City bomber, when it became clear that the feds had not turned over to McVeigh's lawyers all of the documents to which they were entitled. McVeigh was executed shortly thereafter -- three months to the day before 9/11 -- but not before the federal courts had backed up Ashcroft's estimation that the documents would not have made a difference at the bomber's trial.

Then there was Sept. 11, and of course virtually everything the Attorney General did after that date related either to preventing another crime of that magnitude or punishing those who had had anything remotely to do with it. The Justice Department's record on the first point seems fairly good -- we have not been attacked since. It's record on the second point isn't quite so good. Moussaoui was not the man Ashcroft said he was. Neither was Lindh or Padilla. Neither was anyone else directly related to the biggest crime in American history. The Justice Department's successful terror law prosecutions mostly have come from its use of a federal statute that makes it a crime to provide "material support" to anyone remotely connected to terror activities. Ashcroft deserves praise for aggressively using this statute but any Attorney General would have directed this approach.

And then there is the Patriot Act. It is an enormously broad piece of legislation which, thankfully, has a "sunset provision" that would force its end unless Congress renews it. The Attorney General was primarily responsible for its passage, his private and public assurances giving Congress the political impetus it needed to pass it, literally overnight, a few weeks after the Twin Towers fell. Most of its provisons are completely sensible and should have been part of our laws for years before September 11, 2001. But some provisions of the new law were simply grabbed from a "wish list" of legislation that Ashcroft and his minions surely knew would eventually be the subject of great debate.

Has the Patriot Act curtailed civil liberties? Perhaps. Did the Attorney General go too far in promoting it and now enforcing and defending it? Perhaps. But can you blame him? In a chaotic, frenzied, fearful climate, when people were happy to trade their liberties for a little more security, his job was to push for the most comprehensive, pro-police, anti-civil liberties laws that America could stomach. And in that sense he did his job very well. He wanted as many tools as the other two branches of government would give him to fight the bad guys -- why would anyone expect more (or less) of him?

Any blame for the excesses of the Act ought to be laid at the steps of Congress -- they are the ones who passed it -- or in federal court, where judges even now are beginning to decipher and rule on its more controversial provisions. I don't blame Ashcroft for the dubious portions of the Patriot Act (some of which, given time, surely will be deemed unconstitutional). He was just playing his role in the grand government scheme much the way a local prosecutor plays a role during a trial. Ultimately, it's up to the judge and/or jury (in this case, Congress) to act as referee.

Curiously, Ashcroft never seemed to be quite as present for his Department's victories over white-collar criminals as he was for its forays into the murky world of anti-terror law. That's too bad for him and his legacy-building agenda (such as it is) because clearly the Justice Department's dogged approach to white collar crime stands as one of its most impressive (and most surprising) achievements. Who would have thought that this Administration would go so hard after "Kenny Boy" Lay and his fat cat friends? But it did and the Attorney General and his securities specialists deserve credit.

On the other hand, the Attorney General also has overseen the harassment by the feds of citizens of states who have legalized marijuana for medical purposes -- a fairly outrageous use of resources when every moment counts in the fight against terrorism. Likewise, the Justice Department's position against physician-assisted suicide, passed by the citizens of Oregon, also stands as a disappointing policy choice from an administration, and an Attorney General, who supports states rights at the expense of a stronger federal government. If 9/11 had not occurred, we would be talking much more about these sorts of issues when we talk about John Ashcroft's legacy.

An overall legacy? How's this for starters?

His staunchly conservative reputation proceeded him to the post and the unanticipated events of his tenure required him to make decisions that were particularly controversial and perceived by his adversaries to be particular partisan. But he made those decisions, and some of those decisions were upheld by the courts, and America was not attacked again during his tenure. This did not gain him any credit with his many enemies. But it endeared him to his many friends.