After: How America Confronted The Sept. 12 Era

TUESDAY, SEPTEMBER 11, 2001

When he got the news of the second plane hitting, Attorney General John Ashcroft was in a small government Cessna jet on his way to Milwaukee, where he was going to participate in the President's child literacy program by reading to a group of schoolchildren.

Ashcroft immediately ordered the plane to turn around, only to be told that there wasn't enough fuel to get back to Washington. After refueling in Milwaukee, he had still more trouble making it back to the center of action. The Federal Aviation Administration insisted that his plane be diverted to Richmond, because of an order it had issued to ground everything that wasn't a military plane. "It was a real negotiation," Ashcroft recalls.

When he'd arrived at the White House late that afternoon, President Bush had taken Ashcroft aside and said, "John, make sure this can't happen again."

The FBI's job now was to protect, not gather evidence that would stand up in court for prosecutions. Ashcroft was determined to force that fundamental shift, even if it meant he'd be de facto head of the FBI.

For Ashcroft, the sudden challenge was an elixir of sorts. Associates would soon notice his new focus, the new bounce in his step. Using one of his many sports analogies, he would explain it this way: "Some people don't like to get the ball at the foul line in the last second of the game. I do. I like to get that ball."

MONDAY, SEPTEMBER 17, 2001

James Sensenbrenner, the powerful Republican chairman of the House Judiciary Committee, recalls that when he had come out of the shower at his home in Wisconsin on Sunday morning, he heard the voice of John Ashcroft on one of the Sunday talk shows saying something about the legislation he was proposing to give his agents and prosecutors more tools to go after terrorists.

What legislation? Neither Ashcroft nor any of his people had told Sensenbrenner a thing about it, and, under usual House rules, it was Sensenbrenner's committee that had to pass on any such new laws related to the criminal code before the full House would consider them. Sensenbrenner suspected some kind of end run. Normally, that would seem unlikely, given that he and Ashcroft were of the same party and same conservative persuasion. Hoping to clear up the confusion, Sensenbrenner called House Speaker Dennis Hastert to ask what was happening. Hastert said he, too, knew nothing but would call around.

By that evening Sensenbrenner, still in Wisconsin, was sitting on his porch reading a faxed draft of an entire 100-plus-page piece of legislation. Sensenbrenner, marking up the document furiously, was astounded. Ashcroft and his people had written the magna carta of federal agents, freeing them to wiretap, search, arrest, and hold almost at will, with little judicial oversight.

Most shocking was that the bill suspended what was known in the law as habeas corpus--which gave anyone detained on American soil the right to demand a court hearing to challenge the authority of those holding them. Lincoln had suspended habeas corpus for a time during the Civil War. Now Ashcroft was proposing that it just plain be eliminated during this undefined emergency that had no designated end date. What was going on at Justice, the conservative Republican from Wisconsin wondered. (Ashcroft says he cannot "reconstruct with any accuracy" whether the suspension of habeas corpus was proposed. Sensenbrenner's recollection, as well as that of two White House officials who saw the draft, seems credible.)

It turned out that Ashcroft had excluded an even more influential Republican power center from his deliberative process: the White House. When one of deputy chief of staff Josh Bolten's aides heard Ashcroft on the talk shows, she was curious. She hadn't heard anything about his new proposals. On Monday, when she asked someone in the White House counsel's office for a copy, she was told that one was on the way--that they hadn't been directly involved either. That was unusual; the White House counsel and his staff are at the center of executive branch legal policy. When Bolten's aide, who is a former Supreme Court clerk, finally got to read the draft, she immediately warned Bolten that there was a lot of explosive stuff in the document.

Ashcroft had apparently taken the President's order to him, to "make sure this never happens again," too personally. Bolten now had to call Ashcroft and tell him that this was not the way it was done, that the bill now had to be recalled, circulated and "scrubbed" by the affected departments and the White House staff.

Beyond his predilection to want to control as much as he could, some on his own staff thought that another reason Ashcroft hadn't "scrubbed" the bill beforehand was that he didn't appreciate the significance of the prosecutor-written laundry list he was proposing. Although Ashcroft is a graduate of the highly regarded University of Chicago Law School and a former Missouri state attorney general, even some of his own deputies at Justice were surprised by how uninterested he was in the niceties of the law. One veteran staffer recalls that through six different meetings on this bill and another key legal initiative, he had never once heard Ashcroft cite a legal case and had watched him blanch when someone in the room cited a case, as if that person was discourteously speaking another language. Whether it was lack of interest or lack of intellectual firepower, the Attorney General seemed not to appreciate the complexities of the constitutional issues he was dealing with.

TUESDAY, SEPTEMBER 25, 2001

At about 10:00 a.m., Ashcroft took his seat at the witness table of the Senate Judiciary Committee. A week ago Sunday he'd been on the talk shows describing a bill that he hadn't even felt he needed to clear with the White House before proposing. It was as if he could get the staff to write it, chat it up a bit on television, and go to a Rose Garden signing ceremony a few days later. But now it was clear that that was not going to happen.

At the end of the prior week, ACLU Executive Director Anthony Romero and his top Washington lobbyist, Laura Murphy, had forged an alliance with conservative Republicans in the House that had derailed Ashcroft's plan for legislation on the fly. Romero and Murphy had gotten right-wing Georgia Congressman Bob Barr and four other conservative Republicans on the Judiciary Committee to send Sensenbrenner a letter listing ten provisions of the bill that needed, the letter said, "significant further public debate." Another set of provisions--seven in all--was "unacceptable as written," the letter said.

A special court with looser requirements for warrants related to national security investigations targeting "foreign agents" had been established in 1978. Ashcroft was now proposing a profound expansion of what and whom that court could cover. It was based on the legitimate argument that in the September 12 era, a national security threat no longer meant Russian spies, but could mean people living quietly in their communities, who are not necessarily agents of a foreign country but instruments of a terrorist organization that had some foreign connection.

But to Ashcroft's opponents at the ACLU--and, now, on the Republican right in the Judiciary Committee--it was one thing to have a special court al-low a shortcut around the Fourth Amendment's protections against unreasonable search and seizure if the target was a Russian who worked at the United Nations mission and was suspected of being a spy. It was something else to allow that shortcut to target a Muslim American who had worked for the last 10 years at a pizza parlor in Paterson, New Jersey. Thus, the provisions that Barr and his colleagues found unacceptable cut to the core of what Ashcroft was trying to do.

For Ashcroft, it was an appalling turn of events. The proposed law, which through a clever acronym construction was called the USA Patriot Act (as in Provide Appropriate Tools Required to Intercept and Obstruct Terrorism), was, in Ashcroft's eyes, falling into the business-as-usual legislative hopper. They didn't understand that we were at war, and the President had told him that he was the one who had to stop the next attack.

"Every day that passes with outdated statutes and old rules of engagement is a day that terrorists have a competitive advantage," Ashcroft told the Senate Judiciary Committee. "Until Congress makes these changes, we are fighting an unnecessary uphill battle."

MONDAY, OCTOBER 1, 2001

In the years before Sensenbrenner took over as chairman, the House Judiciary Committee had been the most notoriously partisan group of politicians in the country. The committee, which had started the impeachment process against President Clinton rolling with its raucous 1998 hearings and vote, had firebrands on the Republican right, matched by a healthy contingent of strident Democrats on the left. Yet this afternoon, the committee voted 36-0 to approve a scaled-back version of Ashcroft's Patriot Act.

Romero and Murphy weren't thrilled, but they were satisfied that the sharpest edges of the Patriot Act had been blunted. This bill did not give Ashcroft the expanded authority he wanted to break into homes and search them secretly, or to detain immigrants indefinitely simply by declaring he had "reason to believe" the person was involved in terrorism. It also narrowed Ashcroft's proposed definition of terrorism, and cut back on the latitude he had sought to monitor e-mail correspondence. Also, all the new wiretapping and monitoring authority given the feds under the act would expire at the end of 2003 unless Congress renewed it--a provision that Sensenbrenner thought critical to preserving Congress's leverage and oversight authority.

Romero and the ACLU staff could now turn their attention to the Senate. Their goal was to get the Senate to want to match the House by putting some of its own limits into the Ashcroft bill. That didn't seem like it would be difficult, since the Senate was controlled by Democrats. Then, they might end up with all of the House and Senate limits in the conference bill that would be worked out by the two chambers, once each passed its own version. It seemed like a good plan.

FRIDAY, OCTOBER 12, 2001

Murphy had gone to bed last night disappointed that just before midnight the Senate had passed a version of the Patriot Act that had almost none of the modifications that staffers for Senator Patrick Leahy, the Vermont Democrat and chairman of the Judiciary Committee, had assured her they would fight for. Instead, the Senate Democrats had basically caved in to Ashcroft. When Russell Feingold of Wisconsin had stood to explain why he was casting the one dissenting vote, Democratic Majority Leader Tom Daschle countered, "We've got a job to do. The clock is ticking."

Still, Murphy, Romero, and the other ACLU people held out some hope. Leahy's people had assured Murphy that he and Daschle would appoint sympathetic members to the conference committee that would negotiate with the House over a final version of the bill.

But by the morning of the 12th, Murphy knew that was not to be. Amazingly, Sensenbrenner's more moderate bill had been scuttled. In its place was a bill that House Speaker Dennis Hastert had negotiated with Ashcroft overnight, and it was almost identical to the Senate bill. It had stripped out almost all of the softenings of the original Ashcroft proposal.

By 8:30, Murphy and other ACLU staffers were on the phone to their friends who were staffers on the Hill, screaming about a betrayal. They even reached some members of Congress. Most were sympathetic, but some screamed back that the ACLU people simply didn't understand what was going on--what the atmosphere was like, what the fear was like. Helicopters and jet fighters were still patrolling the skies over the Capitol. There were bomb scares. Ashcroft was announcing new threats almost every day.

Later that morning, the House voted 337-79 to pass the bill. The outraged dissenters complained that no one could possibly have had the time to read the enormously complex 342-page law that amended 15 different federal statutes and that had been printed out only hours before.

The ACLU effort was dead.

Ashcroft now had the tools he needed.

For the ACLU and other civil libertarians, and for honest citizens whose sole offense might be having a Muslim name, Ashcroft's new tools presented a whole new version of American justice. But for people living in sleeper cells--waiting to attack, yet not committing any overt crimes or revealing any other explicit evidence for which the old rules of search and seizure had applied--the feds' new latitude presented a whole new set of vulnerabilities. Indeed, the idea of being in a sleeper cell was to live quietly and obey all the rules until the moment came to act. So to Ashcroft and everyone else trying in those frantic early weeks following September 11 to find those who lay waiting to attack, the new law was well named. To them, this was Congress at its patriotic best.

SEPTEMBER 11, 2002

John Ashcroft went to an early prayer service at the Washington National Cathedral, where he read the names of some of the victims of the attacks. He attended a Pentagon memorial at 9:30.

Ashcroft then went over the case, now planned to be made public with arrests and indictments on Friday or Monday, against five Buffalo-area men who were suspected of being part of a sleeper cell. Ashcroft's frustration was that the only crime they could be charged with was giving "material support" to a designated "terrorist group." The only evidence they had even of that was that one of the suspects had, under repeated questioning, conceded that during what he said was a religious trip to Pakistan in June of 2001 (three months before the September 11 attacks) he and his friends had accepted an invitation to go to an Al Qaeda training camp. The law had never been tested in court to see if going to a training camp constituted providing "material support." Besides, the defend-ants--who had no criminal records and were American citizens--seemed certain to claim that they might have been lured to the camp, but did not know its purpose until they got there (this was, after all, before the September 11 attacks), then left and never did anything to further anyone's terrorist designs. Again, the problem with charging members of sleeper cells with actual terrorism was that they were sleepers--or were innocent people wrongly accused.

As more details would surface as a trial approached, it would become clear that the provisions of the USA Patriot Act giving federal agents wide latitude to investigate suspected terrorists had been pivotal in making the case. Almost from the day the law was signed in October, these defendants' phone conversations, financial and travel records, and e-mails had been relentlessly and secretly examined by FBI agents, after they had obtained a warrant from the special national security court. It was probably only because the Patriot Act now allowed the evidence they had obtained to be used in a criminal case that they had been able to be prosecuted.

JANUARY 2003

In each of what are now three pending terror cell cases (involving groups in Detroit, Buffalo, and Oregon), Ashcroft faces a difficult challenge of establishing guilt beyond a reasonable doubt against people who, by definition, were sleepers, if they were anything at all, not overt criminals. But by mid-January he had achieved at least partial vindication of his prosecution of the Buffalo case, when one of the defendants agreed to plead guilty and testify against the others. Regardless of whether he wins convictions, if the defendants in these cases were sleepers, he certainly has achieved his primary mission of preventing them from carrying out attacks.