Less safe, less free

But, Ashcroft supporters will respond, there have been no terrorist attacks on U.S. soil since Sept. 11. In his letter to the American people, Ashcroft thanks the Lord -- "the Builder of our city and the Author of our freedom" -- for this fact. There's certainly more reason to thank him than Ashcroft.

Of the more than 5,000 foreign nationals detained in anti-terrorism measures, not a single one stands convicted of any terrorist offense. On preventive detention, Ashcroft's record is zero for 5,000. Nor did he find a single terrorist among the 80,000 Arabs and Muslims called in for registration, or the 8,000 sought out for FBI interviews.

Ashcroft boasts that he deported more than 500 people in connection with these efforts. But his policy was not to deport individuals until they were cleared of any connection to terrorism. So these are misses, not hits, in finding actual terrorists.

He also claims that his terrorism investigations led to 368 criminal indictments and 194 convictions. What he doesn't say is that all but a handful of the convictions were for petty offenses, not terrorism charges. A Syracuse University study found that the median sentence actually handed down in cases labeled "terrorist" by the Justice Department in the first two years after 9/11 was 14 days -- not the kind of sentence you'd expect for a terrorist.

And where are the al-Qaida sleeper cells that prompted the aggressive sweeps in the first place? The closest thing Ashcroft can point to are six young men from Lackawanna, N.Y., who followed a charismatic religious leader to an al-Qaida training camp in Afghanistan, but returned to the United States showing no interest in terrorism and undertook no activity whatsoever in furtherance of even a petty crime, much less a terrorist plot.

The only criminal conviction involving an actual terrorist incident that Ashcroft can cite is that of shoe bomber Richard Reid, and he was captured not by anything the government did but simply because an alert flight attendant noticed a strange-looking man trying to light his shoe.

So Ashcroft can point to few tangible results from his war on terrorism. Whether attackers have been deterred is unknowable, but if Ashcroft's efforts had actually identified real terrorists, one would expect to see them prosecuted, and we don't. While the Justice Department implemented many sensible reforms -- including increased border and airport security, more resources and attention directed at terrorism, and better information sharing -- those reforms would have been adopted by anyone in office on Sept. 12, 2001.

Of most concern from a security perspective, Ashcroft's sledgehammer tactics have sparked a backlash of resentment, here and abroad, which has in turn made us substantially less safe. Anti-Americanism is at an all-time high, and one of the central complaints that fuels it is bitterness at how the rule of law has been abused in the war on terrorism, especially when it comes to foreign nationals. That unprecedented worldwide animus poses the greatest threat to our national security in the years to come. And for that, we have Ashcroft, not the Lord, to thank.

Ashcroft's legacy has been to make us both less safe and less free, fulfilling Ben Franklin's prophecy that those who sacrifice essential liberty for security deserve neither. Yet the attorney general's attitude in the face of all this is perhaps best captured in the Justice Department's immediate response to its own inspector general's findings, in June 2002, that the department had brutally abused the rights of hundreds of immigrants in the sweeps that followed Sept. 11, and that none of the individuals rounded up had turned out to be terrorists: "We make no apologies."

As for Gonzales, there is little reason to think he'll change course. After all, he made Ashcroft look like a moderate in the administration's internal debates over military tribunals, and dismissed the Geneva Conventions as "quaint" and "obsolete" in a memo to President Bush urging him to deny prisoner-of-war protections to those detained at Guantánamo Bay, Cuba. Gonzales requested the infamous Justice Department memo of August 2002, a detailed guide to how to torture and get away with it, and only repudiated it nearly two years later, after the Abu Ghraib scandal, and after the memo was leaked.

As my colleague and former Bush administration insider Viet Dinh said, Gonzales will "differ in tone but not in substance" from his predecessor. Unfortunately, we need much more than a change in key.

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