Copyright 2002 American Lawyer Media, ALM LLC
September 9, 2002
Volume 25; Issue 35
Section: Points of View; Commentary and
Analysis
CONSIDERING ASHCROFT
AN ATTORNEY GENERAL PLAYS MANY PARTS: POLITICAL LEADER,
PROSECUTOR, CIVIL LIBERTARIAN, AND POLICEMAN. A YEAR AFTER SEPT. 11,
FOUR VIEWS ON HOW JOHN...
James M. Cole
Attorney General John Ashcroft has a tough job on his
hands. In the wake of the Sept. 11 attacks, he is confronted with
one of the most extreme threats to domestic safety in our country's
history. He not only has to lead the fight to apprehend those who
have committed those crimes, but also has to prevent such acts from
occurring again.
AN ATTORNEY GENERAL PLAYS MANY PARTS: POLITICAL
LEADER, PROSECUTOR, CIVIL LIBERTARIAN, AND POLICEMAN. A YEAR AFTER
SEPT. 11, FOUR VIEWS ON HOW JOHN ASHCROFT IS
DOING.
A Prosecutor Must Protect Rights of
All
The attorney general, as lead prosecutor for the United
States, has taken on that job with zeal. He has assumed the role of
the chief advocate for the country and has tried to press every
advantage he can. Among other actions, he has closed detention
hearings for immigration detainees, ordered the Bureau of Prisons to
listen to certain attorney-client conversations, detained
noncitizens without the benefit of counsel or judicial review,
facilitated the implementation of military tribunals to try
noncitizens for terrorist crimes, instituted the use of the
classification "enemy combatant" to hold American citizens without
access to counsel or judicial review, and publicly criticized as
unpatriotic those who question these measures. All these things are
being done in the name of fighting the war against
terrorism.
General Ashcroft?
But the attorney general is not a member of the military
fighting a war--he is a prosecutor fighting crime. For all the
rhetoric about war, the Sept. 11 attacks were criminal acts of
terrorism against a civilian population, much like the terrorist
acts of Timothy McVeigh in blowing up the federal building in
Oklahoma City, or of Omar Abdel-Rahman in the first effort to blow
up the World Trade Center. The criminals responsible for these
horrible acts were successfully tried and convicted under our
criminal justice system, without the need for special procedures
that altered traditional due process
rights.
Our country has faced many forms of devastating crime,
including the scourge of the drug trade, the reign of organized
crime, and countless acts of rape, child abuse, and murder. The acts
of Sept. 11 were horrible, but so are these other
things.
One
arguable difference between those crimes and the tragedies of Sept.
11 is that foreign organizations, possibly even foreign governments,
were involved in the planning, funding, and carrying out of the
Sept. 11 attacks. But we have
never treated such influences as a basis for ignoring the core
constitutional protections ingrained in our criminal justice system.
The "war on drugs"--a
longer-term and far more devastating disaster for our country in
terms of the number of affected people--has been facilitated
by foreign organizations and governments. Yet, even after Panamanian
President Manuel Noriega was arrested by U.S. military forces in
Panama, he was brought to the United States, tried in the federal
courts, and had full access to counsel, a trial by jury, the right
to cross-examine witnesses, and the right to present his own
defense.
So what is John Ashcroft to do? Is he not supposed to be
the lead advocate for law enforcement and use every tool he can to
fight this crime? Is he not to seek every extension of the law and
advantage he can imagine to wage this battle? Yes, but his duties do
not end there.
As a prosecutor, he has a special responsibility beyond
merely being the lawyer for one of the parties to a case. He is one
of the major bulwarks against excess and abuse in the administration
of justice. So much of what is done in the prosecution of crime
happens before any court is involved. Because of this, we must rely
on the prosecutors to watch out for the rights of everyone,
including those they seek to punish.
The
attorney general justifies much of his agenda by pointing to the
"war on terrorism" and saying that it is an extreme situation that
calls for extreme actions. But too much danger lies down that
road. The protections built
into our criminal justice system are there not merely to protect the
guilty, but, more
importantly, to protect the innocent. They must be applied to
everyone to be effective. What are we fighting for if, in the name
of protecting the principles that have raised this nation to the
pinnacle of civilization, we abandon those very
principles?
As Justice George Sutherland wrote in Berger v. United
States (1935), a prosecutor "is the representative not of any
ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation
to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall
be done." It is a difficult balancing act between being a protector
against crime and a protector of rights. But that is what lies at
the heart of being a prosecutor.
We want Attorney General Ashcroft to be an aggressive
advocate for our country. We want him to be effective in the fight
against terrorism, as well as in the fight against all forms of
crime that harm our country. We also want him to be a protector of
the rights, liberties, and freedoms that make this country the envy
of the world. Only by doing both will he truly fulfill his important
role as the lead prosecutor for the United States of
America.
James M. Cole is a partner at Bryan Cave in Washington,
D.C. Before entering private practice, he worked in the Justice
Department for 13 years, first as a prosecutor, and then as deputy
chief of the Criminal Division's Public Integrity
Section.
