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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.