Attorney General John Ashcroft's Assault on Civil Liberties (Updated September 2003)

Since becoming Attorney General John Ashcroft:

• Has had a negative impact on civil liberties issues ranging from reproductive choice, religious liberty, freedom of speech, criminal defendants’ rights and equal opportunity.
• Has worked to undermine and eliminate the authority of the federal judiciary to review certain actions of the Attorney General and federal law enforcement agencies.
• Has appointed individuals who have poor civil rights/liberties records to high-level DOJ positions.
• Has not conferred with Congress or interest groups before attempting to undo settled areas of civil rights and civil liberties law.
• Has demonstrated a disregard for court orders that do not favor the DOJ

Bold and Regressive Steps to Violate Civil Liberties in the Wake of September 11

• Pressured Congress to hurriedly enact his legislation, the USA Patriot Act, which gave astonishing powers to federal agencies:
  • The Act dramatically increases the government’s surveillance, search-and-seizure and wiretapping authority.

    The Act greatly expanded government policing powers, even in cases unrelated to terrorism.

    The Act allows for the sharing of secret information on American citizens among federal agencies.

• During Congressional testimony, asserted that anyone who raised concerns about his actions would “”aid terrorists”” and “”give ammunition to America’s enemies,”” statements which are antithetical to the spirit of the First Amendment right to dissent.
• Authorized DOJ officials to monitor the discussions that attorneys have with clients who are in federal custody, including those detained, but not charged with a criminal offense in violation of the First, Fourth, Fifth and Sixth Amendments.
• Rounded up and imprisoned over 1200 men of Middle Eastern descent based largely on pretextual immigration violations and refused to disclose their identity and location and the reason for their detention. The detainees have been denied fundamental due process rights.
• Sought to question roughly 8,000 men of Middle Eastern descent, who are legal residents of the U.S., a flagrant form of racial profiling.
• Imposed a policy of selectively enforcing deportation orders against men from Middle Eastern countries.
• Formed regulations that deny federal compensation to the partners and non-biological children of lesbian, gay and bisexual victims of September 11.
• Helped draft the presidential order creating secret military tribunals which bypasses the U.S. court system and contains significant due process violations. Allows for the imposition of the death penalty.
• Reversed the presumption of openness that is an underpinning the Freedom of Information Act by supporting agency decisions to withhold information if there is a sound legal basis for doing so, thereby rejecting the Reno position that information ought to be released under FOIA unless such release would be harmful.
• Indicated that he is considering relaxing domestic guidelines that prohibit the federal law enforcement agencies from spying on First Amendment-protected activities.
• Has called for the use of local police for enforcement of immigration laws.
• Has asked Neighborhood Watch groups to work with the federal government to identify terrorists.
• Has asked local law enforcement to submit proposals seeking federal funds to expand their capacity to identify and spy on suspected terrorists in local communities.
• Initiated a project in August of 2002 called Operation TIPS (Terrorist Information and Prevention System) that would recruit and train 1 million volunteers (including postal workers, utility personnel and the like) in 10 cities who would be encouraged to report suspicious terrorist activity.
• Directed all federal prosecutors not to agree to judges’ downward departures from the federal sentencing guidelines except in rare cases. In addition, Ashcroft requires that prosecutors, within 14 days, report when a judge imposes a downward departure from the guidelines.
• Continues to misrepresent and misled the American public about the scope and impact of the USA Patriot Act, through his Patriot Act Tour. Ashcroft will visit 16 states and 18 cities for three weeks during his Patriot Act Tour to shore up support for the legislation that was passed in October 2001 as well as laying the groundwork for the introduction of the Victory Act.
• Encouraged the 93 US Attorneys to lobby members of Congress who voted for an amendment that would prohibit DOJ funds to be used to enforcement “”sneak and peak”” warrants. The US Attorneys were also asked to turn out law enforcement officers and the citizens to community meetings around the country as well as write op-eds in local papers in support of the USA Patriot Act. This request was made to coincide with Ashcroft’s Patriot Act Tour.
• Further restricted DOJ’s centralized control over plea-bargaining of cases by federal prosecutors.

Undermining the Effective Enforcement of Civil Rights Laws

• Said that he believes that “”there is no evidence of racial bias in the administration of the federal death penalty,”” despite various studies to the contrary, including one from the DOJ itself.
• Considered releasing the Adam’s Mark Hotel chain from a racial discrimination court ordered settlement, which would set an unacceptable precedent in public accommodations law.
• Abandoned a landmark civil rights case against the Philadelphia transit system. The transit system used a harsh physical test that has nothing to do with the job requirements, but excludes nearly all women applicants from transit police positions.
• Has failed to bring any new cases against any police departments for police misconduct or abuse. Is attempting to change the definition of racial profiling in a way that would undermine future litigation.
• Undercut minority-voting rights by failing to fully enforce the Voting Rights Act in Mississippi.
• Under his leadership, DOJ has brought only one new case for civil rights violations in the workplace.
• Said that the disparity in sentencing between crack and powder cocaine is “”proper,”” making DOJ one of the few groups that clings to this position.
• Justice Department determined that the Monterey County, CA plan to reduce the number of polling places for the Oct. 7 recall election compiled with the federal Voting Rights Act. This decision further frustrates efforts to provide access to voting facilities in a county with a history of low voter turnout and racial and ethnic discrimination.
• Released racial profiling guidelines that were little more than rhetorical smoke and mirrors. The policy guidelines provide no rights or remedies and include a broad and largely undefined exception when “”national security”” concerns come into play.

Other Concerns

• Eliminated a pilot program that provided federal money to pay for DNA testing to exonerate innocent inmates.
• Issued an order that certified federal agents to repeal the licenses of any doctor who prescribed lethal drugs for terminally ill patients, an express challenge to Oregon law.
• Has blurred the line between church and state by conducting daily sessions of prayer and Bible study at the DOJ. (According to a recent report in the New Yorker, these sessions have not been occurring since September 11.)
• Has been a major proponent of Bush’s faith based initiative. Has worked to create a legal theory that would withstand a constitutional challenge to direct federal funding of religious groups including churches, synagogues and mosques.
• Refused to meet with civil liberties groups as well as fellow Republicans regarding concerns about potential civil liberties violations in the Patriot Act.
• In the government’s case against Zacarias Moussaoui, the DOJ announced that it would defy a court order to allow the defendant to depose a material witness. DOJ officials have stated that if they lose this issue on appeal, they will simply remove the case to a military tribunal. This approach clearly illustrates the DOJ operating with a predetermined verdict, and points to a willingness to disregard the Judiciary when it suits them.
• Ashcroft violated a federal judge’s gag order in a terrorism case. US District Court Judge Rosen has given Ashcroft until September 12th to explain why he should not be required to appear in front of the judge regarding this violation.
• Continues to use demagoguery to intimidate those who would question his policies. He has now called the amendment that would prohibit DOJ funds to be used to enforcement “”sneak and peak”” warrants the “”Terrorist Tip-off Amendment.””

*Prepared by the staff of the ACLU Washington Office and update September 5, 2003.