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Ashcroft's "Distressing Lack of Care"

Hamdi and the Phony War on Terrorism

by CHRISTOPHER BRAUCHLI

The war against terror continues to be accompanied by critical acclaim from its authors, George W. Bush, Richard Cheney and John Ashcroft and criticism from much of the rest of the country. A study of its successes explains why.

One of the administration’s proudest early achievements in the war against terrorism was the arrest six days after 9/11 of four Arab immigrants living in Detroit. Attorney General John Ashcroft was terribly excited by their capture and let it be known that he believed the men were members of a sleeper cell associated with al Qaeda and had plans to obtain weapons and attack domestic and foreign targets. Because Mr. Ashcroft knew that they were the epitome of evil he kept them in solitary confinement for more than two years which gave them a taste of the kind of society he believed they were trying to destroy.

As excited as the Attorney General was at their capture, he was even more excited during the trial. He could not resist praising one of the government witnesses and making other comments during the trial, comments that caused Judge Gerald E. Rosen who was hearing the case to rebuke the Attorney General for violating a gag order that had been imposed by the judge. The judge said Mr. Ashcroft demonstrated "a distressing lack of care" in public statements he made about the case. Who could fault him for his enthusiasm, however? These were the first terrorists to be brought to trial and their conviction, when obtained, would be the first conviction of terrorists since 9/11. The convictions would also justify the harsh treatment given them by Mr. Ashcroft.

In June 2003, one of the defendants was acquitted, one was convicted of document fraud and two were convicted of conspiring to support Islamic extremists plotting attacks in the United States. Mr. Ashcroft hailed the Detroit convictions as a clear message that the United States would work diligently to disrupt and dismantle terrorist "sleeper cells" at home and abroad.

The judge ordered a review of how the prosecution had handled the case. The review was conducted and on September 1 of this year the Justice Department acknowledged that it had uncovered evidence that completely undermined the case. The Department asked the judge to put an end to the terror case and try the three men only on document fraud. John Ashcroft is only voluble when he touts guilt before trial. He had nothing to say about the dismissal of the terrorism charges.

Another of John Ashcroft’s cases in which the arrest was loudly trumpeted as an example of success in the war against terrorism was the case of Yaser E. Hamdi, an American citizen captured in Afghanistan and held in solitary confinement for more than two years. That case is also heading for the Ashcroft dump. Commenting on Mr. Hamdi’s arrest Mr. Ashcroft suggested that Mr. Hamdi was responsible for the death of CIA agent Johnny Spann (although that was nothing more than speculation on his part since he gave no evidence to support the charge.) He also created the impression that Mr. Hamdi was directly involved in the events of 9/11.

In June the United States Supreme Court told Mr. Ashcroft that he did not have the unchecked authority to detain Mr. Hamdi and other enemy combatants indefinitely without access to legal counsel. On August 16, Robert G. Doumar of Federal District Court in Norfolk, Va. said of Mr. Hamdi’s detention: "This case appears to be the first in American jurisprudence where an American citizen has been held incommunicado and subjected to an indefinite detention in the continental United States without charges, without any finding by a military tribunal, and without access to a lawyer." On August 27 the judge told the government that Mr. Hamdi’s confinement clearly raised constitutional issues and asked for an explanation of the solitary confinement imposed on Mr. Hamdi. Mr. Ashcroft has repeatedly demonstrated his lack of familiarity with the constitution but very likely asked one of his assistants to see what the judge was referring to. The task wouldn,t have been too difficult since the judge gave Mr. Ashcroft a hint. He said Mr. Hamdi’s confinement might violate the 8th Amendment which prohibits the infliction of cruel and unusual punishment.

As a result of the court’s rulings and negotiations between Mr. Hamdi’s attorney and the U.S. attorneys, Mr. Hamdi is about to be released and sent to Saudi Arabia where he grew up. As soon as that happens Mr. Ashcroft will almost certainly hold a press conference to explain why Mr. Hamdi was held in solitary confinement for more than two years.

CHRISTOPHER BRAUCHLI is a Boulder, Colorado lawyer. His column appears weekly in the Daily Camera. He can be reached at: brauchli.56@post.harvard.edu