Next month, the Senate will hold a vote of no confidence hearing for Alberto Gonzales, and it's time to call upon the one person in the room at the time who can answer essential questions as to what was said, what the NSA program looked like in its original state, why he refused to sign off on the legislation, and what role the president had in this whole affair. It's time for the Senate to subpoena John Ashcroft and, if necessary, provide him with the same limited immunity that was given Monica Goodling in exchange for talking.
That Ashcroft thought the program was illegal, and that more than two dozen members of the Justice Department, including then director of the FBI, Robert Mueller, threatened to resign over the executive branch attempt to monitor even greater number of Americans communications without a court order, we know, but his refusal to approve the program was not merely heroic, but shocking in light of some of the shady, and legally dubious post-9/11 prosecutorial gestures. Even a cursory look at some high profile litigation in which Mr. Ashcroft was involved peripherally will reveal just how egregious the initial NSA surveillance legislation must have been.
Back in April, 2003, Ashcroft was admonished by a federal judge for violating a gag order in the trial of four Detroit men who were indicted for operating a terror cell. He is also said to have ignored gag orders in the case of John Walker Lindh leading one observer to remark that "It is especially disturbing that it is the Attorney-General himself who has violated court orders and ethics rules." (FindLaw)
As recently as last September, a judge in Idaho denied a request to grant absolute immunity to the former attorney general from testifying in an indictment of the government for the wrongful arrest of Abdullah al Kidd as a material witness in a computer terrorism case. Should the case go to trial, and Mr. Ashcroft be compelled to testify, he will now have to answer allegations, under oath, that he was himself responsible for compromising Kidd's rights by "creating a national policy to improperly seek material witness warrants in an effort to arrest individuals without probable cause." (Jurist) Importantly, the judge's ruling prohibits the government from pre-emptive strikes against its own citizens, and a policy of "preventively" detaining suspects by labelling them material witnesses.
So, taken in context, we have a former attorney general who has defied explicit court orders, and spoken to the press about high profile terror cases, as well as one who attempted to detain suspects without probable cause defying efforts to bully him into approving a warrantless surveillance program that was brought to him, ostensibly for signing, at his hospital bed. What in the hell was in that program that prompted an anti-terror hawk to stand up to this president when he was in no condition to do so, and who better to answer that than Mr. Ashcroft himself?.
Failure on the part of Congress to obtain testimony from this former attorney general, who is now a material witness, on the original NSA legislation, who it was that sent Andrew Card and Alberto Gonzales to visit him, what they discussed, and what role the White House plays in this so-called grand political theatre will constitute a breach of contract between government and the people, and an ethical lapse of seismic magnitude. Whether one votes no confidence in the current attorney general or not, the Senate must get to the truth, once and for all, even if it means they must put John Ashcroft on the stand.