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April 21,
2003
Where's
Archibald Cox When You Need Him?
An
Administration in Contempt
by
ELAINE CASSEL
In high-stakes, controversial trials, judges often
admonish the parties not to discuss the case with the press.
This type of gag order has become common in trials involving
defendants charged with acts related to terrorism. All of these
trials take place in federal court. They are prosecuted by local
United States attorneys, and decisions about the cases-from indictment
on-are made at the highest level of the Justice Department, meaning
the office of Attorney General John Ashcroft.
Judicial gag orders work to the advantage
of the government. For whether through deliberate or negligent
actions of U.S. attorneys and the press (that either does not
get it that pre-trial publicity works most often against the
defendant in a criminal trial, and reinforces the government's
theory of the case or that does get it and revels in its own
power), what the public knows is the government's theory of the
case. About all you get to hear from the defense attorneys is,
"No comment," or "We don't try our cases in the
press," or "I can't talk about the case."
What happens to prosecutors and reporters
when potentially damaging information is leaked? The reporters
may be hauled into court and asked to identify their sources.
In a typical case, they will refuse to do so, are held in contempt
and fined, and go on to do another story. In the Fairfax County,
Virginia trial of the "Beltway snipers," the man and
his surrogate son who roamed the perimeters of Washington, D.C.
last fall murdering people with a single shot from a high-powered
firearm, The Washington Post has reported in great detail
the substance of the boy's confession. Defense attorneys have
complained that the news reports violate the court order and
taints the jury pool, not to mention public opinion, most of
whom are clamoring for the death penalty for both (and that is
why they are being tried in Virginia-Attorney
General John Ashcroft "awarded" the prize defendants
to Virginia prosecutors determined to administer the lethal injection
. Last week, a Virginia judge vowed to jail any Fairfax County
employee who leaks information-presumably targeting cops who
might be talking to the press. A defense attorney has subpoenaed
the reporters, none of whom, of course, will reveal their sources.
The prosecutor shrugged, feigning his dismay at the leaks, all
the while, no doubt, gloating in his case as it is being tried
for him in the media.
Sometimes, it is the prosecutors themselves
who do the leaking, unintentionally, of course, they will insist.
And there has been a good bit of that in the "terrorist"
trials. For instance, in the case of attorney Lynne Stewart,
whom
I wrote about on this site , early in the case, the affidavit
for a search warrant for Stewart's office appeared in a New York
newspaper, outraging defense attorney Michael Tigar. When Tigar
complained to the judge, the prosecutor admitted that he "mistakenly"
left a copy of the affidavit in the court file, which a reporter
then apparently copied and published. A shrug of the shoulders,
a "Sorry, I didn't mean to do anything wrong," and
the case moved on. The damage was done. Mind you, Tigar could
not comment on the affidavit, as he abided by the court order.
But the press, the public, potential jurors, could read it and
start to develop a schema of the case that the government wanted
to project.
In terrorism trials, the Attorney General,
the "boss" of the U.S. Attorneys, has been doing some
leaking of his own. When Ashcroft announced the indictment of
Stewart in April of 2002, he all but rendered a verdict of guilty,
calling her an "associate" of her terrorist client
Sheik Abdel Rahman. If that doesn't connect the dots, what would?
He went on the David Letterman show that night to tout the case
and his promise to bring every terrorist to "justice."
But Ashcroft can't wait for justice to
wend its way through the courts. Case in point: Detroit U.S.
District Court Judge Gerald E. Rosen is presiding over the trial
of four men accused of being members of a terrorist cell. He
has ordered the government and defense attorneys not to make
any public comments about the case. At a public press conference
on Thursday, Attorney General Ashcroft praised one of the government's
witnesses, Youssef Hmimssa, even noting that he had pled guilty
to certain charges in exchange for his testimony.
"I was concerned and distressed
to wake up this morning to hear the attorney general discuss
the credibility of a witness in this trial," the judge said,
according to a New York Times story. The defense attorneys
asked the judge to find Ashcroft in contempt; the prosecutor,
a U.S. Attorney, made no effort to defend his boss. Barbara Comstock,
Department of Justice spokeswoman, played down the comments and
downgraded the judge's mandate from the status of a valid court
order (which it is) to merely his "wishes regarding publicity."
The Executive branch of the Bush Administration
(consisting of the President, Vice-President, Cabinet Departments
and agencies) has been notorious for violating court orders.
District of Columbia U.S. District Court Judge Royce Lambert
has repeatedly ordered Interior Secretary Gail Norton into court
to account for repeated violations of court orders relating to
the handling of Native American trust funds. Norton sends her
regrets to the judge, but the clearly frustrated Lambert is not
making any move to arrest her. Lambert also ordered government
attorneys in the case to pay claimants' attorneys' fees and costs
for discovery abuses, suggesting that the attorneys themselves
were obstructing his effort to ascertain if they had made false
representations to the court. When Lambert learned that the Department
of Justice was planning on paying the fines for the attorneys,
he ordered the lawyers to pay out of their personal funds.
Government lawyers today would rather
appeal than comply. But sometimes the appeals aren't filed until
the judge suggests a finding of contempt is brewing. In the case
of Jose Padilla, a U.S. citizen who allegedly had plans to detonate
a "dirty bomb" and who is being held as an unlawful
combatant in a military brig in South Carolina, a
New York federal judge has repeatedly ordered prosecutors to
allow Padilla to meet with his attorney. After weeks of refusing
to do so, they filed an appeal, designed to further delay justice.
In their appeal, they argue that the judge's order is unlawful
(based on the Administration's insistence that the Judiciary
has no oversight in matters related to "the war on terror").
Inasmuch as Bush declared Padilla an
unlawful combatant who will be tried in a military tribunal,
if at all, the government believes that the judiciary is out
of the loop. Indeed, the scheme of naming defendants unlawful
combatants is designed explicitly to remove them from the court
system. A District of Columbia federal judge recently threw out
suits brought by families of Guantanamo Bay prisoners, who have
been held by the Department of Defense for months without being
charged or being allowed access to attorneys. Her Alice-in-Wonderland
reasoning (so common today) held that the prisoners are in a
foreign country and out of the reach of U.S. courts. Never mind
that they are being held on a U.S. military installation by U.S.
military guards. They are in legal limbo, and no court in the
country can hear their pleas.
In a suit arising out of efforts to find
out who Dick Cheney met with to plan the Administration's energy
"policy," a federal appeals court last week scolded
administration attorneys for filing a motion that had no factual
or legal basis. A private attorney could easily be disciplined
by bar organizations for filing frivolous claims-but not prosecutors.
Through loopholes in professional ethics laws, they are rarely
held to account for violating professional rules in the jurisdictions
where they practice. Cheney's attorneys won't be held accountable
for abusing the judicial process. Heck no, they run the process.
And holding the Administration to account will become even rarer
in the future than it is today, as the Senate continues to grant
Bush the hard-line-ideologue judges he wants. They will look
out for him and his progeny.
No one should be above the law, but Ashcroft
and the rest of Executive Branch apparently is. Oh for an Archibald
Cox, the likes of which we need now more than ever.
Elaine Cassel
teaches law and psychology and practices law in the District
of Columbia and Virginia. She is a contributor to CounterPunch
and Findlaw.com's Writ, and keeps a watch on the Bush Administration's
rewriting of the Bill of Rights on her blog site hosted by Minneapolis, Minnesota's
City Pages.
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