Ashcroft in Conference

'Let's Not Let Them Get Johnnie Cochran on the Phone'

In the hours and days immediately following [the September 11] attacks, Attorney General John Ashcroft . . . directed that FBI and INS agents question anyone they could find with a Muslim-sounding name . . . in some areas . . . they simply looked for names in the phone book. . . . . Anyone who could be held, even on a minor violation of law or immigration rules, was held under a three-pronged strategy, fashioned by Ashcroft and a close circle of Justice Department deputies including criminal division chief Michael Chertoff, that was intended to exert maximum pressure on these detainees . . . —From a summary of Ashcroft strategy sessions contained, in further detail, in Steven Brill's After: How America Confronted the September 12 Era (Simon & Schuster)


I came to respect Steven Brill's reporting skills years ago, when his 1978 book, The Teamsters (Simon & Schuster), exposed the scrofulous inner workings of one of the country's strongest unions. Later, he founded The American Lawyer and its chain of siblings; Court TV; and Brill's Content. No longer associated with those influential stimuli to the media, Brill is now a columnist for Newsweek. He returned to reporting in his current book, After, which—with clear source notes—lets us in on strategy sessions at the Justice Department in the weeks after 9-11.

These revelations add further critical weight to the June 3 report by the Justice Department's inspector general, which, in my view, raises powerful questions about Ashcroft's fitness for office—not to mention his revisions of the Constitution in the subsequent USA Patriot Act and executive orders. The report was based on internal documents and over 100 interviews with detainees and government officials.

In fairness to Brill, I should point out that he does not agree with my assessment of Ashcroft, specifically the attorney general's roundup of hundreds of detainees whom he kept in prison for weeks, sometimes months, often under harsh conditions, by turning the American rule of law upside down. Under Ashcroft's orders, the prisoners were presumed guilty until proved innocent. But Steve Brill told the June 3 New York Times:

"We have to acknowledge that we stood the system on its head. But maybe it was for a good reason. It was a national emergency. Ashcroft's view was that he would rather put 762 people away for some number of months if two or three of them are guilty or can prove others are guilty."

Yet, by contrast with that conception of justice, one New Jersey FBI agent told Brill: "I'm an educated person, not some bigoted Southern sheriff from the sixties."

A section in After, "Saturday, September 29, 2001," starting on page 145, is based, says Brill in the source notes, on accounts from "two of the people who are closest to Ashcroft and were directly involved in these discussions [in the Justice Department]." The material is further confirmed, Brill adds, "by a White House official familiar with Ashcroft's articulation of the strategy in White House meetings."

Central in formulating this strategy was Michael Chertoff, assistant attorney general in charge of the criminal division. Recently, Chertoff has been confirmed by the Senate, 88 to 1, for a seat on the Third Circuit Court of Appeals (a level directly below the Supreme Court). The one opposing vote was from Senator Hillary Clinton, Democrat of New York, because Chertoff was the lead lawyer in a Senate investigation of the Whitewater affair. Senator Pat Leahy, Democrat of Vermont, said Chertoff merited the honor of a unanimous vote.

You decide, from what follows, whether Michael Chertoff is fit to be a federal appellate judge. Worth keeping in mind is what Democratic congresswoman Linda Sánchez of California said during John Ashcroft's June 5 testimony before the House Judiciary Committee. She skeptically asked Ashcroft to comment on a pledge she says Chertoff made during the roundup of immigrants that "every one of the detainees has the right to counsel, and every one of the detainees has the right to make phone calls to attorneys."

The attorney general did not respond to her request for an answer.

In his book After, Steve Brill, based on his sources, reports that in the strategy sessions at the Justice Department, Chertoff, agreeing that the detainees should be held for long periods of questioning, said that even if some got a hearing, "the hearings could not only be done in secret, but also could be delayed, and that even after the hearings were held and they were ordered deported [usually for only minor immigration violations], there was nothing in the law that said they absolutely had to be deported immediately. They could be held still longer."

As for the detainees' right to contact lawyers, Chertoff and the others in the room, reports Brill, knew that under INS rules, the prisoners "were entitled to call a lawyer from jail, but the lists the INS provided of available lawyers invariably had phone numbers that were not in service." (Emphasis added.)

Brill adds that "according to one person who says he was there, someone in the room remarked that the government should not try too hard to make sure these people could contact lawyers. 'Let's not make it so they can get Johnnie Cochran on the phone,' another lawyer added."

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