Ashcroft is Coming! Ashcroft is Coming!

FBI Director Robert Mueller recently agreed with President Bush’s assessment that “we” had Al Qaeda on the run.” Of course Osama and Saddam are out there somewhere, but whatever Al Qaeda is (see Steve Perry’s post that queries whether there really is an Al Qaeda), we have routed them.
So Michael Chertoff, chief of the criminal division and head of the antiterrorism prosecutions to date, is out of Justice and off to be a federal judge on the 3rd Circuit Court of Appeals (read my warning about him). And Assistant Attorney General Viet Dinh, who wrote the Patriot Act (and no doubt had a lot to do with Patriot II), is leaving boss John to teach constitutional law at Georgetown University Law School (the Dean must have a sense of humor, irony, or both).

And John is getting plea bargains left and right–though not to the charges prosecuted–and claiming, along with Bush, victory in the war on terror. Though he does, mind you, need a few more “tool” in his little black bag to finish up the task (and there is a stray right or two left in the Bill of Rights that he has not fully dispatched).

Nonetheless, things are getting a little boring around the Justice Department, what with the nude statues draped and all, and some of John’s best buddies gone.

So, this week, John brought together some of his favorite prosecutors from around the country and hauled out boxes of files. Old files. Old surveillance files. Maybe on you and me.
And John said to his disciples, charge these people. I don’t care with what. They must have done something or we wouldn’t have a file on them. Charge them with inhaling marijuana, or jaywalking, or copying a VHS tape, or writing an article, or attending a mosque, or voting Democratic (or Green, or Libertarian). Charge them. Indict them. Tell the judge they are terrorist threats (remember, terror is what I say it is) and don’t let them out on bail. Set their trials for 18 months away, like we did with that professor in Florida, who won’t see the sun shine until at least January 2005. Maybe when they have been locked up for a few months, without lawyers, mind you. I forgot to tell you that. No lawyers. They are a threat to national security. Terrorists will not have the benefit of my Constitution. And mark those you think have done something really bad–like speak out in favor of Palestinian rights, or human rights. I will get George to name them unlawful combatants. Then they can get shipped out of the country. Call Putin up. See if he will get some of those gulags out of mothballs for us.

This is not just a funny story from a blogger who has had too much caffeine. This week, Ashcroft told his prosecutors to start reviewing 25 years of telephone and e-mail wiretaps and results from secret searches–in files on 4.500 people– and decide whether they can file criminal charges under anti-terrorist laws.

The wiretaps and searches were performed on “suspected” spies and terrorists-suspected, as in no probable cause, but mere suspicion– under the 1978 Foreign Intelligence Surveillance Act. With permission from a super-secret U.S. spy court, the FBI has used such warrants to break into homes, offices and hotel rooms to install hidden cameras, copy computer files and eavesdrop on telephones. Agents also have intercepted e-mails and pried into safe deposit boxes.

Criminal prosecutors previously were not entitled to the contents of intelligence files, which were limited under Justice Department policies to government espionage and
counterterrorism experts. But a court ruling this year by the appellate branch of the secret court lowered that wall, allowing the review of old surveillance. The efforts of a trial FISA judge to curtail Ashcroft’s runaway snooping was met not only with resistance by the appeals court, but the court gave Ashcroft more than a win. Yo, John, they said. Didn’t you know that you could go back and use past searches to prosecute those new laws you wrote into the PATRIOT ACT?

So, Ashcroft reported this week that all U.S. attorney offices around the country are looking at the closed and open intelligence investigations to review for criminal purposes nationwide. There is no telling when charges will be brought, but the boots could some looking for you any day now.

And the evidence used against you may be too secret for even you to know! You may be charged with smoking weed, but they may actually be telling the judge that you are sending money to Osama.

U.S. Attorney Paul McNulty of Virginia, whose office is responsible for the terrorism case against Zacarias Moussaoui, said the review of the files allows federal prosecutors to “make sure we are aware of who is out there in the community and that we know what they’re doing and be able to make some enforcement decisions as a result.” (On a personal note, I live a couple of miles from McNulty’s home court in the Eastern District of Virginia, so they won’t have far to come for me).

As he left the meeting, Ashcroft promised that he would be asking for new terrorism tools, saying that the Patriot Act did not go far enough. He dismissed criticisms of the long and secret detentions of aliens, as reported by his own Inspector General. He would do it again, he said.

And you may be next.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teaches law and psychology, and writes Civil Liberties Watch under the auspices of The City Pages. She can be reached at: