John Ashcroft, who served as attorney general throughout President Bush’s first term, was in the air aboard a Citation jet on his way from Washington, D.C., to Milwaukee, Wis., on Sept. 11, 2001, when al Qaeda terrorists hijacked four commercial airliners.
As he vividly recounts in "Never Again: Securing America and Restoring Justice," Ashcroft ordered his plane refueled in Milwaukee so that he could immediately return to Washington. Ignoring an order from air traffic controllers not to take off—and then repeated orders to immediately land—his pilot carried out the mission, delivering Ashcroft safely back to his post in the Nation’s Capital. Over West Virginia, the plane was intercepted by a fighter-jet escort.
Since that day, thanks in part to Ashcroft’s stellar performance as attorney general, terrorists have been unable to consummate an attack against the United States on U.S. soil.
Before serving as U.S. attorney general, Ashcroft served one term as a U.S. senator from Missouri, two terms as governor of Missouri and two terms as Missouri attorney general. He was the 2002 HUMAN EVENTS Man of the Year. Last week, he visited with the editors of HUMAN EVENTS to chat about his book.
In Never Again: Securing America and Restoring Justice, you write about the day after Sept. 11, 2001. You have a meeting with the President. FBI Director Robert Mueller and some others are there. There is a discussion that the Justice Department can’t go forward dealing with terrorists as a law enforcement problem anymore.
John Ashcroft: Well, we were talking about an approach to probably a specific incident. I think you’re referring to Mueller’s saying, wait a second, we have to make sure we have chain of custody and all the kinds of things that make information susceptible to and eligible for presentation in a courtroom. And sometimes in order to get information that way, or to maintain it that way, either it takes too much time or you don’t get it. It dramatized the need to get information for prevention purposes, and if we can do prosecutions, fine.
I think when you have 2,973 people die, and the people who perpetrate the crime extinguish themselves in commission of the crime, you begin to say, now, wait a second, prosecution doesn’t work here. Prosecution works when people are discouraged from committing crimes for fear of being prosecuted. Those who find it an honor to kill themselves in the commission of a crime are not discouraged for fear of prosecution.
But there is also something else. Even if these guys had tried to survive—say, they had tried to jump out of the airplanes just before they hit the buildings and float down and run to a motorcycle and try to get away—the trade off at 3,000 to 19 is not a ratio we are willing to accept.
There is a sense in which this has almost geopolitical parallels. When you get to weapons of mass destruction, you just can’t wait until it happens and then be punitive. The costs are too high. So, you have to do things that are designed to interrupt.
The business of prosecution is the re-creation of the past to prove what happened so that punishment can be imposed. On the other hand, prevention is the anticipation of the future rather than the re-creation of the past. In some settings, when you see the anticipation begin to come into focus, you seek to intervene.
We do want the future to happen, there are just certain things in the future you want to interrupt.
So you made pretty much an instant decision after 9/11 that the focus of the Justice Department in defending the United States against terrorists had to be prevention, not prosecution?
Ashcroft: Yes, that our priority would be on prevention. In other words, we will always prosecute—and we prosecuted a pretty good bunch of folks—but we wouldn’t let the legal demands for evidence for prosecution ever interfere with getting ourselves in a position to prevent.
When the Patriot Act passed, it was overwhelmingly approved. Initially, you seemed to have the Democrats on your side on that.
Ashcroft: We have bookends here. We had only one vote against it in its first iteration. That was 96 to one. I think it was Sen. Russ Feingold [D.-Wis.] who voted against. I don’t remember the details now, but Russ was against some little nuance in it, and he may have actually had a point. But it was irrelevant. He’s a principled guy. You have to remember that Russ was the only guy on the Democrat side who voted for impeachment. [In January 1999, Feingold voted with Republicans to hold an actual impeachment trial and call witnesses rather than summarily dismiss the articles of impeachment that had been approved by the House.] I have tremendous respect for him because I think he votes his conscience. You get down to when the Patriot Act was re-enacted it got 89 votes. Frankly, it just became a big mechanism, some say, for funding the left. There is no trail of corpses of people whose rights were trampled.
They tried to come up with some.
Ashcroft: It fails the “name one” test.
Part of this is related to the previous question. If you think about the wall that had been erected between intelligence and law enforcement, I think, in large measure, it was erected because it was thought that if you got some of the intelligence information over into law enforcement it might somehow be poisoned because of how it had been collected and maintained. So, then the rest of the evidence would become fruit of the poisonous tree and ineligible for use in prosecution.
When you have prosecution as a focus, you want to maintain the purity of that priority. The point is this: It was consistent with the change in priority to knock down the wall when prevention became the goal.
The problem with prevention is that it requires a whole lot more information than prosecution. Prosecution is like when you throw a puzzle out on the table and you look at the box top. You know what happened, you just have to reassemble the pieces for the court. Prevention is like having 10,000 puzzles in the room, and someone has burned all the box tops, so you don’t have the pictures. As you watch certain things assemble you say, wait a second, there’s a guy renting a truck, there’s one of his cronies buying ammonium nitrate, and there’s someone else buying diesel fuel, and there’s somebody else getting fusing material. As this puzzle starts coming together you want to do something.
Most of the puzzles that are congealing—people getting married, people going to school, people starting businesses, people building publishing empires, and having magazines and newspapers—you want to have happen. So when it comes to prevention, it is an unknown science. We haven’t been at it very long.
What are your views about how we ought to interrogate terrorist detainees?
Ashcroft: Let me just say this. There has been this presumption in the culture that any thing that would provide discomfort is torture. Frankly, incarceration provides discomfort. I have a chapter in this book in which I talk about what I call the moral imperative for toughness. I could elaborate it in less personal terms, but boil it down to this: My son, Andy, is on a Navy destroyer in the Gulf right now. He is what they call the boarding officer. When they come up to a ship and it’s not clear what it’s doing there, he and a bunch of his buddies jump in a little Zodiac boat, a little rubber raft about the size of this table here. They go over and they throw a line with a hook on it up over the side of that ship, that’s their rope ladder, and they take a few MP5s or whatever, and they ascertain the status of that ship.
Not on this tour of duty, but the last time he was over there, they did that and they came up with a guy who had a boatload of AK47s, running guns to Somalia or somewhere. My point is this: When we ask our young people to put their lives on the line in foreign settings, we have a moral imperative, I believe, to get all the information we can to protect them that the law allows. I am not talking about violating our Constitution or the law. But the idea that we have to be inoffensive to a group of European intellectuals at the expense of our own flesh and blood and freedom is not only a bad idea, I think it is morally corrupt.
If we want to satisfy a group of people who are sensitive to the comfort of the people who have blown up the country, my own sense is that is a decision a culture can make, but it would be morally corrupt if on the one hand you ask your young people to go and put their lives at risk, and at the same time not be aggressive in trying to minimize the risks by developing information that could save them.
This is especially true in the environment of terror where conventional sorts of expectations about flag-flying, identification, and the laws of war are not observed. So, if somehow the administration employs alternative means, it doesn’t mean they are unconstitutional, it doesn’t mean they’re unlawful. It may mean they are different. I suspect you could devise a whole lot of various ways of interrogating. You don’t have to do anything more than watch 20 minutes of TV some evening to see there are different ways. There’s one guy who comes in and says palsy-walsy things to the guy, and then there is the bad cop, who comes in and says, “You scum bucket. Tell us what you said.”
Are there any aspects of the Patriot Act you would like to see strengthened?
Ashcroft: I think it is in pretty good condition. You know, there is a huge surge in our society for privacy. I think there are a couple of flows in our society. If you are going to be a prevention-oriented society, you have to have information, because you can’t do prevention by waiting to see what happened. It just doesn’t work, by definition. So, you need information. And people want prevention. They don’t want to let this happen again. On the other hand, you have this tremendous flow in American culture that wants privacy. As a matter of fact, the American culture has passed the demand for privacy now. I think it’s the demand for something else. I call it the demand for anonymity. People actually want to be able to do things in public that nobody remembers. I refer you to hundreds of millions of dollars spent for advertising by the City of Las Vegas that says, “What happens here stays here.” They’re appealing to a very significant aspiration in the American public: to be able to do things on the streets and in the bright lights and remain anonymous. You know what stays in Las Vegas?
Ashcroft: Absolutely. You got it. That’s the only thing that stays there.
But how do we accommodate these contradictory demands, for prevention and for privacy—where you have this demand not just for privacy, but for anonymity. Really, it is the abolition of the small town that the American people really want. They want to be able to live in a city so big that no one will recognize them doing what they do.
I think there is a big confluence of these counter streams, and the question is how do you manage that. It may be possible that we can manage it enough give assurance to people that information can be developed and used without being somehow offensive to the public.
I think the first place where this happened was in health care. People don’t want their health records known, but they realize that there is a need for their health records to be available because when you aggregate health records you find out what works and doesn’t work in remediating pathologies. I think the American people have figured out if you have the right masking, and if we have the right limitations, we can have the information and use it properly.
I remember the Levi Guidelines, put out by Atty. Gen. Edward Levi during the administration of President Ford. It seemed to me that under those guidelines you could not collect public information from organizations that actually said what they were going to do. One involved a group that was talking about infiltrating the U.S. military, but the FBI was telling me that the guidelines prevented them from collecting this information. Didn’t the Patriot Act actually change that?
Ashcroft: No. I changed that. I issued new guidelines.
That was crazy.
Ashcroft: Any eight-year-old could go look at sites on the web. But we almost literally had a situation where if terrorists put up a billboard and said we are going to bomb you and signed their names to it, the FBI would have had to avert its vision on the way down the road so they wouldn’t see it.
This is, frankly, in that arena of anonymity. People want to be able to do things in public for which they maintain anonymity. I can understand that in some measure. I don’t reject it totally. But there is real tension in this area.
Can you go to mosques and things like that, because before they were not able to go to mosques, as I understood it?
Ashcroft: With the right predicate, I think you can go to mosques.
Are you ever going to run for office again?
Do you know what former National Security Adviser Sandy Berger took?
Ashcroft: Yes. He took the highly vaunted plan that President Clinton was talking about with Chris Wallace [on Fox News]. I think what’s very interesting about it is that Clinton said, we left this plan, we left this plan. Well, if it was so obvious, why did Sandy feel he had to steal it?