Justice goes to war.
Dec 17, 2001, Vol. 7, No. 14 • By TERRY EASTLAND
ON NOVEMBER 29, Attorney General John Ashcroft introduced President Bush to an audience of the nation's 94 U.S. attorneys. Bush began his remarks by commending Ashcroft for "principled" and "steady" leadership. "I guess we call you General," he said. Then, turning to the U.S. attorneys, he added, "That means you all are in the Army. And I am glad you are."
Attorneys general long have been addressed as "General." But to say that those supervised by an attorney general are "in the Army" is an odd play on the title--or would be, except that the nation is at war, and the Justice Department is playing a major role. And so it was that the president found himself commenting to his audience not only on the ordinary work of federal prosecutors, but also on "the front line" where U.S. attorneys are now engaged--and General John Ashcroft commands.
Not everyone, of course, is glad to have General Ashcroft commanding. The former Missouri senator's efforts against terrorism are drawing objections from the libertarian right and especially liberals, some of whom have fired rhetorical cruise missiles. NAACP chairman Julian Bond has said that Ashcroft "knows something about the Taliban, coming as he does from that wing of American politics." Bill Goodman of the Center for Constitutional Rights has called Ashcroft and his Justice Department the nation's "main enemies." Osama bin Laden is, presumably, a minor enemy.
As it happens, bin Laden and his al Qaeda network will have to contend with Ashcroft if their operatives are inside our borders, as will all other terrorist groups who attempt to reach into the United States and kill Americans. The president has sent Ashcroft and the Justice Department into battle to fight an unconventional war.
The president thinks about the war on terrorism in terms of "two fronts"--one abroad, fought through the Defense Department, and the other at home, waged through Justice. The latter department isn't uninvolved in the war being fought overseas with aircraft and soldiers. One of the original duties of the attorney general's office, created in 1789, was to provide legal advice to the president, and Ashcroft has offered Bush counsel on the use of military tribunals to try captured terrorists. Bush authorized such tribunals a few weeks ago, and the attorney general has not shied from defending them before the public. His main assignment, however, is to fight terrorism at home.
He has moved swiftly to do that. Before September 11, fighting terrorism wasn't even among Justice's top five priorities. Afterwards, it shot up to No. 1. The goal includes investigating and prosecuting crimes of terrorism, Justice's traditional role. But in light of bin Laden's designs on America, the department now is far more preoccupied with preventing further terrorist acts. As Ashcroft explained at a Senate hearing in late September, "The new terrorist threat to Americans on our soil is a turning point in America's history. It is a new challenge for law enforcement. Our fight . . . is not merely or primarily a criminal justice endeavor--it is defense of our nation and its citizens. We cannot wait for terrorists to strike to begin investigations and make arrests. The death tolls are too high, the consequences too great. We must prevent first, prosecute second."
THE ORDER to prevent terrorism came straight from the president. Ashcroft has told aides about a meeting in the Oval Office. Robert Mueller, confirmed just days before as director of the FBI, was also there. "They all realized that there was a threat" of more terrorism inside the United States, says one aide. And the president told Ashcroft, in so many words, "never to let this happen again."
Ashcroft has been invigorated by his new assignment. Indeed, his has been a dramatic change in fortune. Last November he was defeated in his bid for reelection to the Senate. Not close to Bush, he wasn't the president's first choice for attorney general. He was selected in part because conservatives wanted an unambiguous conservative in the job--a description Ashcroft certainly fit. Because of the Democrats' disagreement with his politics, however, he endured a bruising confirmation battle. Democrats relentlessly challenged him on gun control, abortion, civil rights, and most of all his role in defeating the judicial nomination of the first black member of the Missouri Supreme Court. He was confirmed by the narrowest vote of any Bush cabinet member, 58 to 42.
Those close to Ashcroft say the sharp, at times personal, comments about him by former colleagues surprised and wounded him. That may help explain his low profile during his early months as attorney general. Ashcroft did take positions that pleased conservatives--most notably, he said the Second Amendment protects the individual's right to bear arms. But he did not emerge as the conservative activist liberals had feared. In a recent Supreme Court case, for example, rather than opposing a federal statute permitting racial preferences, he defended it, doubtless over his own strongly held policy beliefs. As for the department's day-to-day labor, Ashcroft, according to some Justice officials, often seemed bored with it. Life in the Bush cabinet may have proved too constraining for a former senator. There was talk in the corridors of Justice that the attorney general's real interest lay elsewhere--perhaps in another run for elective office.
But then came September 11 and Bush's deployment of General Ashcroft to the domestic front. He seems a man liberated. He works long hours seven days a week, and his energies are concentrated on fighting terrorism. "He's very focused, very committed, very intense," says one Justice official. Ashcroft, the son and grandson of Pentecostal ministers and a man who takes his faith seriously, sees his September 11 assignment (as the president does his) in terms of calling. And daily he is reminded of what the terrorists did on September 11. A few days after the 11th, he hung in his office a photograph of Barbara Olson, taken during his confirmation hearings. It shows her speaking into microphones at a rally of his supporters. Barbara Olson, wife of Theodore B. Olson, the solicitor general and fourth-ranking Justice Department officer, was on the plane that the terrorists crashed into the Pentagon.
For Justice, fighting terrorism has required new legislation (the so-called Patriot Act, passed in October), new regulations, and new approaches to law enforcement, including a new Foreign Terrorist Tracking Task Force, whose goal is to prevent terrorists from entering the country and to find any who are here. In what the president (echoed by Ashcroft) has called a wartime reorganization of the Justice Department, federal prosecutors, FBI agents, and immigration officers now have as their primary mission the prevention of terrorist attacks. The FBI and the Immigration and Naturalization Service are to undergo fundamental restructuring. The department will end up spending less time on other responsibilities, while shifting 10 percent of the employee positions at the main Washington office, the FBI, and other agencies to field offices around the country.
Once beefed up, these field offices will provide hands for a new anti-terrorism task force in every U.S. attorney's office. Michael Chertoff, the assistant attorney general in charge of the Criminal Division, oversees the task forces' efforts--with Ashcroft at his elbow. And Ashcroft has centralized decision-making authority in his own office for prosecuting terrorism cases and preventing future terrorist acts. He will make the important decisions, with help from Chertoff and Deputy Attorney General Larry Thompson, among others. "There's so much that can go on, and [the cases] are so far-flung, that to have it uncoordinated centrally, you run the risk of missing the big picture," says Chertoff, who was a U.S. attorney in New Jersey under Bush's father. "You run the risk of everyone seeing a small piece, but no one being able to stand back and say, 'Wait a minute, these pieces fit together, . . . and that's not even to mention the international component.'"
Ashcroft has carved out a huge role for himself in the area of criminal law: the supervision of merely the biggest criminal investigation in American history. "I was thinking the other day," Chertoff told me, "that when I came into this job [heading the Criminal Division] I didn't have a sense of who in the department I would see most on a regular basis. I wind up with the attorney general more than any other . . . official in the government. Which is indicative of how deeply involved he is in this."
It's a wonder that Ashcroft has time for the press. But he's before cameras almost daily, holding press conferences to announce results of the department's efforts and explain new policies. "There's been a big, big public affairs component," says one aide. Ashcroft has made some stumbles. On October 31, he said the government had apprehended suspects--three Michigan men--thought to have had advance knowledge of the September 11 hijackings. Three days later the department issued this terse statement: "At this time, the Department does not take the position that the three Michigan men had knowledge of the September 11 events." Nonetheless, and despite a voice so uninflected it lulls you to sleep, Ashcroft does more than okay with the American people, perhaps because of his evident commitment to the war on terrorism. His job approval ratings run above 60 percent.
The problem he has, if it is a problem, is with the critics who claim he's a threat to civil liberties. The ACLU, editorialists across the country, and most of the Democrats on the Senate Judiciary Committee, as well as some libertarians, take this view. Clearly, they irritate him just as much as he irritates them. Last week, in his appearance before the Senate Judiciary Committee, Ashcroft said his critics "only aid terrorists, for they erode our national unity and diminish our resolve." Ashcroft didn't name the critics, but his unwise comment--a "smear," declared an editorial in the Washington Post--doubtless is juicing them up.
TO SEE how the Justice Department has gone about fighting terrorism, it's useful to look back to September 11, when Ashcroft began the investigation. His immediate focus was the dead hijackers. The department traced their countries of origin (all were from the Middle East) and travel histories, and collected financial and phone records. Since then, the aim has been to find accomplices--those who might have helped the hijackers--and also any associates of the hijackers. The department has been pursuing money trails, sometimes around the world and back, in order, as Chertoff says, "to get as broad a picture as possible of the people involved."
The department also began reviewing "old" terrorism cases--those investigated before September 11. Some, says Chertoff, were cold, meaning nothing had come of them. Others hadn't really been worked. The point of the review, he says, is to determine whether there are "other people out there who have links" to al Qaeda and, if so, to "reactivate those investigations."
In addition, the department began attacking what Chertoff calls "the conditions" that facilitate terrorist acts. He means the support network--"the people who help [terrorists] by renting cars, signing guarantees for leases, things of that sort." The point here has been to find the people "who might be, wittingly or unwittingly, available to help the next bomber." If those people are no longer around to help, that next bomber's support network may be weaker.
The department also has conducted interviews--with college students (on more than 200 campuses) from Middle Eastern countries, and with 5,000 young Middle Eastern men who entered the country in the past two years from nations with links to terrorism. The interviews are voluntary, and, notwithstanding critics' claim that such interviews are inherently coercive, there have been almost no complaints from the interviewees. The purpose of the interviews has been to gather information relevant to terrorist activity, past or future. Recently the department began offering noncitizens a carrot: Those who volunteer "useful and reliable information" about anyone who has committed or is about to commit a terrorist attack can qualify for a green card, a first step toward becoming an American citizen.
In sum, what the department has been trying to do is identify, as Chertoff puts it, "the broadest range of people that we need to be concerned about"--that is, terrorists, their accomplices, and their helpers. Critics contend that the department has purposely gone after Middle Eastern men. It would seem the department has done that, and indeed couldn't help but do it, given the ethnicity of those who seized the planes on September 11. Yet the department insists the criteria it is using to look for terrorists don't include ethnicity but rather "common-sense" factors. Says Chertoff: "We look at things such as where you've come from in terms of travel, how you've entered, what your travel pattern has been, what your visa's been, things like that, which are based upon our experience both in this case and in others, about where terrorists train, where they tend to have points of departure. . . . Whatever the impact [is] in terms of particular groups, what's driving us here is the criteria that the criminals and the terrorists are choosing in setting up their conspiracy and carrying it out."
Justice is dealing with suspected terrorists according to a strategy Ashcroft says he borrowed from Robert F. Kennedy (for whom the main Justice building was renamed last month). In his campaign against organized crime, Kennedy used obscure statutes to arrest and detain suspected mobsters in order to disrupt their efforts. Ashcroft says he's doing the same thing now. Thus, Justice will bring whatever case it can against a suspect, if it cannot bring an actual terrorism charge. "Let the terrorists among us be warned," Ashcroft said in a speech to the nation's mayors. "If you overstay your visa--even by one day--we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage. . . . Our single objective is to prevent terrorist attacks by taking suspected terrorists off the streets."
The great objection to this approach was famously articulated by Justice Robert Jackson in a 1940 speech to U.S. attorneys when he warned of the most dangerous power a prosecutor has: "He will pick people he thinks he should get rather than pick cases that need to be prosecuted." Justice Antonin Scalia cited Jackson in his memorable dissent in the 1988 case sustaining the independent counsel statute against constitutional challenge, and conservatives quoted Jackson often in the battle over the legality and wisdom of that law, now happily expired. But Ashcroft's critics haven't invoked Jackson, doubtless because of the present wartime context.
In any event, the Justice Department maintains that every case it brings in the war on terrorism will be justified on its own terms. "We can't detain anybody unless they've committed a crime or an immigration violation," says Chertoff. "So there's no concept that we can just identify somebody and say, 'We're going to detain you for no reason.'" He adds, "Nobody has a right to be immune from being charged or prosecuted based on a law violation. It's true that, a lot of times because of scarce resources, we don't necessarily do small cases. But that's a matter of grace, not of right." When "it's in the interest of national security to adjust our priorities," he says, we must do so. And this is what the department is doing now.
JUSTICE HAS YET to charge anyone for the attacks of September 11. "Not to this point," is the tantalizing way Chertoff puts it. But the department has detained more than 1,200 people and released about half of them. The key question about those still in custody is which of them are still terrorism suspects, and which are not but are believed to have violated some law and are therefore, under the new approach, subject to prosecution. Ashcroft has refused to identify most of those in custody and has offered little information about them, a point that annoys his critics, though not (here again) the majority of Americans.
The same can be said of a new regulation permitting the monitoring of communications between those in custody and their lawyers. This may be done when "reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism"--something al Qaeda operatives have been known to do. That's one reason this regulation has stirred little controversy. There are others. First, both the person in custody and his lawyer are to be notified in writing of the monitoring. Second, the point of the monitoring is to learn about imminent violence or terrorist activity, in order that the government can move against it. Third, other information gleaned from the monitoring can't be used in any way unless the government first gets permission from a court. Justice says that only 16 of 158,000 inmates currently in federal custody would be eligible for monitoring.
Clearly, we're in the early phases of the war on terrorism. Ashcroft and his aides know that they can't guarantee there won't be another major terrorist attack. They can only hope that their strategy, aggressive as it is, will prove sufficient. "We're doing all we humanly can to disrupt and impede and deflect terrorist acts," says Chertoff. The question Ashcroft's armchair generals rarely ask is whether that will be enough. Day by day, we're going to find out.
Terry Eastland is publisher of The Weekly Standard.