The clear lesson is that the government, in its understandable and laudable resolve to protect our security, cannot be relied on to protect our basic rights and liberties. —Lawrence Goldman, president of the National Association of Criminal Defense Lawyers, responding to the Justice Department inspector general’s report on the post-9-11 mass imprisonment of immigrants with roots in this country
We did not violate the law. —Attorney General John Ashcroft, testifying before the House Judiciary Committee on June 5
For all the growing rebellion around the country against Ashcroft’s contorting of the Constitution, the conduct of his office has been most severely attacked so far in the June 2 report of Glenn A. Fine, inspector general of Ashcroft’s own Department of Justice.
As usual, most of the media did not stay on this story long, but the inspector general’s stingingly detailed internal exposure of Ashcroft’s reckless disregard of the Bill of Rights has finally aroused disquiet among enough Democrats and Republicans to lead, they say, to sustained congressional oversight. A necessary target of scrutiny is the attorney general’s sweeping, reckless violation of due process in the dragnet arrests and imprisonments (not just “detentions”) in the months after 9-11. Also to be questioned is his insistence—during his June 5 testimony before the House Judiciary Committee—on demanding even more extractions of parts of the Bill of Rights.
During that Ashcroft testimony, Democratic representative William Delahunt of Massachusetts went beyond the inspector general’s report to echo the apprehensions of, by now, millions of Americans about Ashcroft’s further intentions of violating their privacy:
“It appears that the American people feel that the government is intent on prying into every nook and cranny of people’s private lives, while at the same time doing all it can to block access to government information that would inform the American people about what is being done in their name.”
Delahunt’s desire for open government previously led him to support allowing television cameras in federal courtrooms. And with regard to aberrant prosecutors both inside the Justice Department and out of it, he has also worked with a bipartisan coalition to bring DNA technology into the judicial process to prevent wrong but irreversible applications of the death penalty.
Ashcroft, in his appearance before the House Judiciary Committee, enthusiastically called for expanded death penalty sentencing for those involved in terrorism that leads to fatalities. He would also like “material support” of terrorists more loosely defined.
As for Inspector General Glenn Fine’s report, the essence of his extensive evidence against the attorney general is that Ashcroft and some of the members of his senior staff deliberately established a policy that, as New York Times legal affairs reporter Adam Liptak noted—paraphrasing the report—replaced “ordinary rules” with “no rules or perverse ones.”
Liptak continued, “The report says that the usual presumptions of the legal system were turned upside down in the aftermath of the attacks on September 11, 2001. As a result, people detained on immigration charges were considered guilty until proved innocent and were often held for months [without bail] after they were ordered [by judges] released [or deported].” (Emphasis added.)
As you will see later in this series, in view of Ashcroft’s indifference to, and ignorance of, certain highly relevant constitutional precedents during his conversations with senior officials of his staff during the days after the 9-11 attack, his approval and pursuit of this policy underline his unfitness for office then, and certainly since.
Those conversations are reported in Steven Brill’s valuable book After: How America Confronted the September 12 Era, published earlier this year by Simon and Schuster. I will cite them in the next two columns.
When I called the Justice Department to congratulate Inspector General Fine for his independence as an official whistle-blower, I told his spokesman, Paul Martin, of what I had found in After. “We are familiar,” said Martin, “with Mr. Brill’s book.”
It is useful to note that Fine is not an appointee of Ashcroft’s biggest booster, George W. Bush. He was named inspector general of the Justice Department by President Clinton in 2000. (See, I actually can say something positive about the man who now, so some say, would like to be secretary-general of the UN. He couldn’t be any less effective than Kofi Annan.)
As the inspector general emphasizes, hundreds of people, not yet “cleared” by the FBI and therefore presumed innocent of links to terrorism under our former system of law, were imprisoned for weeks and months—”many in extremely restrictive conditions of confinement.”
In the Bureau of Prisons’ Metropolitan Detention Center in Brooklyn, says the report, these conditions included ” ‘lockdown’ for at least 23 hours per day; escort procedures that included a ‘four-man hold’ with handcuffs, leg irons, and heavy chains any time the detainees were moved outside their cells; and a limit of one legal telephone call per week and one social call per month.”
Two lights were on in the cells of these “detainees” 24 hours a day, and some prisoners were slammed against walls by the guards. Moreover, the report notes that Justice Department officials admitted to the inspector general’s office that soon after the roundup started they realized “many in the group of . . . detainees were not connected to the attacks or terrorism.”
Not one of the 762 imprisoned was ever charged with a terrorism-related crime. And many were deliberately prevented from reaching attorneys. More on that next week.
Yet, as the Times reported on June 3, the inspector general’s report refused to “single out for criticism Attorney General Ashcroft or specific senior department advisers, prosecutors, or FBI agents.”
In a message, I asked the inspector general how he could not criticize these official abusers of the basic due process rights of those prisoners. I have yet to get an answer.
But Ashcroft’s office declared, “We make no apologies for finding every legal way possible to protect the American public from further terrorist attacks.” Despite “no apologies,” procedural changes are promised for the next roundup of terrorism “suspects.” But no punishment yet for these derelictions of duty for anyone, from Ashcroft on down.