Justice goes to war.
Dec 17, 2001, Vol. 7, No. 14 • By TERRY EASTLAND
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.