After a week of extraordinary comments and actions by prosecutors from Manhattan to Richmond, it is not a stretch to contend that judicial oversight over the executive branch's legal fight against domestic terrorism is on life support these days. The presumption of innocence is pretty much dead.
In Richmond Monday, government lawyers told a distinguished federal appeals court panel to butt out of the case of Yaser Esam Hamdi, the American citizen held without charges as an enemy combatant. And in New York this week, Justice Department attorneys told an earnest federal district court judge that he did not have the authority to order the FBI to look into whether its agents improperly forced a confession out of an Egyptian student detained after the terror attacks on America.
In Washington, meanwhile, U.S. Attorney General John Ashcroft called the sniper shootings an "atrocity" and said the death penalty is appropriate even though the Justice Department's own mandated death penalty evaluation -- codified in its manual -- may not have even begun, much less ended. And lest anyone have any doubts about where law enforcement stands on the sanctity of the presumption of innocence for even the most vilified suspects, Virginia Attorney General Jerry W. Kilgore labeled John Allen Muhammad and John Lee Malvo "these twisted murderers" as he practically begged the feds to let Virginia try them first in order to get them executed as quickly as possible.
Taken together, these developments ought to be alarming to liberals and conservatives alike who are concerned that the White House is using the amorphous war on terror -- domestic-branch -- to relentlessly and remorselessly grab extraordinary power away from the other two branches of government.
And they ought to be equally worrisome to all people who treasure constitutional rights such as the right to a fair trial by decorous prosecutors who must prove their case beyond a reasonable doubt to impartial jurors in a judicious setting free from prejudice, bias or a mob mentality.
But there has been barely a peep of protest about the week's disconcerting events and remarks from the chattering class of lawyers, journalists, jurists and politicians whose job it is to shed light on government's exercise of power and, if warranted, to move to check that power.
The Hamdi hearing, for example, is only the most recent instance of the Bush Administration's "don't worry your pretty little head about it" mentality toward the judicial branch when it comes to terrorism and the Constitution. At issue this week was whether prosecutors had given a panel on the 4th U.S. Circuit Court of Appeals enough justification to continue to hold Hamdi as an "enemy combatant." That designation, which was unilaterally made this summer by President Bush, has resulted in Hamdi being held in legal limbo -- neither a criminal defendant with constitutional rights, nor a prisoner of war with international rights.
In the Hamdi case, the government continues to argue that the courts may not second-guess that designation, even as Justice Department attorneys concede that Hamdi has not been given access to his lawyers to determine whether the classification could and should be challenged. And if the courts accede to that demand, they would be ceding now and for the foreseeable future extraordinary power and authority to the executive branch of government.
But is anyone out there raising a ruckus about what this might mean for you or me? Hardly. Even the judges who are being asked to cut their authority don't seem to be particularly concerned about the sheer scope of the administration's argument
Meanwhile, in the case out of New York, federal prosecutors continue to thumb their collective noses at U.S. District Judge Jed S. Rakoff, who ordered them months ago to report back to him whether Abdallah Higazy had been coerced by the FBI into confessing that he owned an aviation radio found in a lower Manhattan hotel just after the World Trade Center was attacked. Such intransigence by lawyers would have been unthinkable prior to the terror attacks.
Now government lawyers say that the separation of powers doctrine -- the most substantial part of the government's argument in Hamdi -- permits them to decide for themselves whether they will obey the order. Is anybody out there concerned about how such an unseemly dispute will affect the ability of federal judges in the future to issue enforceable orders? If so, I haven't heard them speak above a whisper.
Then there's the Attorney General and his counterpart in Virginia, who, in the span of a few days this week, completely obliterated the sniper suspects' rights to the presumption of innocence. Not just by loudly labeling them guilty before trial -- before the first bit of evidence has been seen by the first judge or juror -- but by promising so quickly to seek the death penalty. Indeed, by publicly manipulating the system in order to all but ensure that the men receive a death sentence. You can understand why political figures would say these sorts of things in the current atmosphere of fear and rage in and around the nation's capital. But these particular political figures have legal obligations even to criminal defendants; obligations they break when they say things they shouldn't.
For example, then-Attorney General Janet Reno raised eyebrows in 1995 when she made some tepid remarks about the applicability of the death penalty for the Oklahoma City bomber(s) and the McVeigh defense team subsequently mounted a serious legal challenge to the government's decision to seek the system's ultimate punishment. The argument they made -- and almost won on -- was that the federal government may not prejudge a defendant's candidacy for the death penalty before undertaking a substantial review under Justice Department guidelines.
Clearly, that review has not been completed in Muhammad's case. But has anyone in a position of responsibility in the legal system come forward in the past week to criticize Generals Ashcroft and Kilgore for the inappropriate way they have vitiated the constitutional rights of Muhammad and Malvo? I haven't heard them if they have.
Attorneys General aren't just the top law enforcement officials for a particular region. And they aren't supposed to be simple mouthpieces for the victims of crime. They are supposed to be, instead, symbols of the justice system in all of its forms. A bit above the fray, and able and willing to interject a cool jet of dispassion into the heat of a high-profile crime.
By this standard, John Ashcroft and Jerry Kilgore have failed miserably. Ashcroft, by calling the sniper crimes an "atrocity"; Kilgore by calling the men "murderers" as often as he can. But has anyone called them on it? Or chastised them for ignoring the basic rule of law that says that people ought to be tried in court under evidentiary rules instead of before the cameras and through media leaks? Again, hardly.
It's clear that the country is in no mood these days to coddle criminal defendants or to put unnecessary hobbles on the nation's military or law enforcement officers. The September terror attacks all but ended that debate. But, still, the executive branch must answer to the judicial branch when it comes to the final word on individual rights and liberties. The leaders and symbols of our criminal justice system are paid and expected to rise above the nation's mood for punishment before the adjudication of crime.
It's been a week where the old saw -- "sure, we'll have a fair trial. And then we'll hang them" -- seems not only like the prevailing popular sentiment, but also government policy. In other words, it's been a bad week for the delicate balance between the government and the governed.
By Andrew Cohen