For more than a year now I have been following John Ashcroft’s war on defense attorneys. He fired the first shot across the bow at Lynne Stewart, the New York City attorney who was court-appointed to represent Sheikh Abdel Rahman. Two weeks ago, a federal judge threw out the terrorism counts lodged against her (for representing her client’s interests), and a hearing on her motion to dismiss the remaining charges comes up on August 26.
An attorney representing one of the Alexandria 11 defendants told me that the prosecutors are trying to get him disqualified for conflict of interest involving his client and another defendant. A claim of conflict belongs to the client, not the prosecutors. What interest do they have in who defends? Ah, but the Ashcroft prosecutors do. They see their case is in trouble and strike out like a snake, rattling at anything in its path.
Maybe the Lynne Stewart ruling took a little wind out of ole John’s sails. Or maybe he has been out in the Washington, D.C. August humidity too long. But now he is after federal judges.
According to a report in The Washington Post, on July 28, Ashcroft ordered U.S. attorneys across the country to report cases in which federal judges impose lighter sentences than called for in sentencing guidelines. Ashcroft and his top guns at the Department of Injustice will then personally supervise the appeals of cases in which sentences were not harsh or mean enough for the born-again Church of God fundamentalist John Ashcroft.
Sen. Edward M. Kennedy (D-Mass.) accused Ashcroft of creating a blacklist of federal judges. Where is Ashcroft going with this beyond more appeals? Impeachment? As for the appeals themselves, the Senate’s approval of Bush’s slate of right-wing judges lacking in an ounce of independence will pay off first here. Appellate judges review cases to see is mistakes were made at the trial; sentences are reviewed if they are beyond what the law demands, not less than the maximum. But ideological judges who want to do the Bush regime’s bidding may follow Ashcroft in going outside the law and order a new trial if the sentence stopped short of the maximum. It is not clear if Ashcroft’s plot is possible under the Federal Rules of Criminal and Appellate Procedure or existing law, but that detail won’t stop Ashcroft from trying to control every federal courtroom in the U.S. and its territories.
Justice Department attorneys who received their marching orders say it is their intent to see that the laws are applied "fairly" across all jurisdictions. Fairly means harshly, and devoid of discretion, perspective, or, heaven forbid, mercy (apparently Maximum John does not read the Four Gospels). To date, Ashcroft has been almost wholly ineffective in shoving the death penalty down the collective throats of juries across the country. Does he think federal judges–at least those not appointed by Bush I, Bush II, and Reagan–are going to quiver and quake in the face of his bullying?
But as with the Patriot Act, we cannot place all the blame on Ashcroft. Congress slipped in a provision in the "Amber alert" legislation on child abductions that restricted the ability of federal judges to depart from the sentencing guidelines and made it easier to appeal and overturn "downward departures" from the guidelines.
Even Chief Justice William H. Rehnquist objected to the amendment. In a letter to Sen. Patrick J. Leahy (D-Vt.), Rehnquist said that the measure "would seriously impair the ability of courts to impose just and reasonable sentences."
Some federal judges have spoken out forcefully against what many of them see as a congressional and Justice Department assault on their independence. U.S. District Judge John S. Martin Jr. resigned from a federal court in Manhattan in June and accused Congress of attempting "to intimidate judges."
"For a judge to be deprived of the ability to consider all of the factors that go into formulating a just sentence is completely at odds with the sentencing philosophy that has been the hallmark of the American system of justice," Martin wrote in an op-ed page article in the New York Times.
The Constitution, defense attorneys, judges, and juries. What is next on Ashcroft’s list? He thinks that God had him lose the Missouri Senate race to a dead man so that he could be rewrite the Constitution after 9/11. Not content with his subversion of the Bill of Rights, he now wants to take away the Constitutional perogatives of federal judges and gut Article III of the Constitution.
Let us pray for an end to his reign.
ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: firstname.lastname@example.org