Beverley Lumpkin: Halls of Justice

W A S H I N G T O N, Nov. 16, 2001 -- On Thursday afternoon we learned that Mary Jo White, the U.S. attorney in Manhattan, had decided to resign.

Some observers, and at least one ex-Clinton/Reno senior Justice official — albeit semi-facetiously — immediately drew a direct correlation with the president's authorization of military tribunals two days before.

The supposition was, if she knew she wasn't going to be allowed to try Osama bin Laden, what's the point of sticking around? One top aide to Attorney General John Ashcroft assured me he knows of no reason to believe that was the thinking behind her decision.

White is not alone in having an elevated view of her place in the world. Main Justice has long regarded her predecessors, too, as independent cusses; the official name of the district, the Southern District of New York, is often transformed in Washington to "the Sovereign District" because of the tendency of Manhattan's chief prosecutor to go it alone. But because it's long been one of the largest and most active U.S. attorneys' offices, it has also attracted the best and brightest of legal talent, and it has a reputation for producing brilliant and aggressive prosecutions.

White was regarded as one of the most aggressive of the lot; famously tiny but fierce and feisty, she was also a favorite of the FBI, particularly of former Director Louis Freeh.

It was partly through his urging that her office had obtained virtually sole ownership of the bin Laden prosecution franchise. Janet Reno might roll her eyes at "the other attorney general," but White produced results, so Reno was content to let her have her way. And having served 8 ½ years, White could hardly claim her time in office was cut unreasonably short.

White's own statement said she had planned to step down in early fall after the Africa embassy bombings trial ended, but the Sept. 11 attacks delayed her departure. Of course, since January there had been guessing about how long the Bush administration would keep her around.

With regard to the former President Clinton pardon controversy, it perfectly suited Justice to let her proceed; she was furious at the pardon of fugitive financier Marc Rich, and having one of Clinton's own appointees in charge of an investigation of him removed the appearance of partisan bias. Similarly, it was convenient to have her in place to take over the investigation of Sen. Robert Torricelli, D-N.J., when the campaign finance task force disbanded.

But Ashcroft's spokeswoman, Mindy Tucker, has always made clear that White was not indispensable in those inquiries; Tucker frequently pointed out that White was being retained to handle terrorism prosecutions, specifically to see the embassy bombings case through trial (at least, trial of those captured thus far).

But after Sept. 11, with the greatest loss of life in her district, it must have seemed only natural to White that she would continue her crusade against bin Laden and his network. Indeed, her prosecutors took the first steps in putting together a Sept. 11 case, bringing various material witnesses before their grand jury.

By then, however, Ashcroft had other ideas. His criminal division has a chief, Michael Chertoff, who's no slouch in the fiercely aggressive prosecution department himself — and it's no accident that he's an alumnus of the Sovereign District.

But also, there is now a U.S. attorney in the Eastern District of Virginia who is utterly trusted and relied upon by both Ashcroft and FBI Director Robert Mueller — Paul McNulty, who helped shepherd both the attorney general's and the director's nominations through the Senate, and served as one of the senior staffers in the department until his recent confirmation. His district encompasses the Pentagon, so he has jurisdiction for crimes committed there.

So Ashcroft created a task force, under Chertoff, for Sept. 11-related prosecutions. Yes, White was on the task force, but so was McNulty, and it was clear she would not have it all to herself. Her strong arguments to the contrary were unavailing. Could she yet read the writing on the wall, or did it take the president's order about military tribunals? Or was she always ready to leave right about now? You be the spinner.

Letting Ashcroft Be Ashcroft

Some of the groups that opposed Ashcroft's nomination as attorney general are yelling the equivalent of "we told you so" in light of several recent controversial actions, including approval of eavesdropping on conversations between detainees and their attorneys, the compilation of a list of 5,000 men to be questioned about terrorist activities, and — although not his idea but his approval of — the president's creation of military tribunals.

To some it appears that once he got the anti-terrorism legislation through Congress, the attorney general took the gloves off.

Arguably the most troubling action is what Sen. Patrick Leahy, D-Vt., called Ashcroft's "unilateral executive decision" to allow interception of attorney-client conversations of detainees. Acknowledging that "these are difficult times," Leahy warned the attorney general in a letter, "Trial by fire can refine us, but it can also coarsen us."

He appended a list of eight questions seeking the basis and authority for Ashcroft's action, but Leahy pointedly noted the attorney general's failure to respond to several other recent letters on important matters.

The chairman of Ashcroft's oversight committee complained that since the passage of the anti-terrorism law, he has "felt a growing concern that the trust and cooperation Congress provided is proving to be a one-way street."

Others who weighed in on the new monitoring policy included Robert Hirshon, the president of the American Bar Association, who pronounced himself "deeply troubled," and asserted the new rules "run squarely afoul of the Fourth and Sixth Amendments."

Hirshon pointed out that if the Justice Department has probable cause to believe criminal activity is occurring, it can ask a judge for an order to approve such monitoring. He said, "Prior judicial approval and the establishment of probable cause ... are required if the government's surveillance is to be consistent with the Constitution and is to avoid abrogating the rights of innocent people."

The Center for Constitutional Rights denounced the compilation of a list of 5,000 young men who entered the country in the past two years carrying passports from suspect countries. "Questioning individuals without any evidence of wrongdoing amounts to the very definition of racial profiling," said its press release, continuing, "Since September 11th, we have already seen thousands of people who have been harassed by local authorities over immigration matters totally unrelated to the attacks."

Justice released two memos sent to all U.S. attorneys from Ashcroft and his deputy, Larry Thompson, explaining the list and the need for assistance in questioning its members.

Ashcroft underscored the urgency of the mission: "The objective is to collect any information that the individuals on this list may have regarding terrorist elements in this country and abroad. These individuals were selected for interviews because they fit the criteria of persons who might have knowledge of foreign-based terrorists."

Thompson's memo emphasized a certain, shall we say, delicacy that is to be employed in conducting these "consensual" interviews:

"Unless the individual prefers to conduct the interview away from his home, workplace or neighborhood, you should ordinarily not ask him to accompany you to the police station or the field office. A number of these individuals may have difficulty with the English language and little understanding of our criminal justice system, and we want them and the other members of their communities clearly to understand that they are not being taken into custody ...

"You should feel free to use all appropriate means of encouraging an individual to cooperate, including reference to any reward money that is being offered for information about terrorists. However, you should be careful about mentioning an individual's potential criminal exposure.

"While the primary purpose of these interviews is not to ascertain the legality of the individuals' immigration status, the federal responsibility to enforce the immigration laws ... is an important one. Therefore, if you suspect that a particular individual may be in violation of the federal immigration laws, you should call the INS representative.

"You should also be careful not to inquire into an individual's religious beliefs and practices."

I think that should make every one of those 5,000 feel ever so much better.

With the military tribunal issue, the opposition includes some fairly vociferous statements from conservative voices as well. Although this decision came from the president, the attorney general has strongly defended it; lawyers under his command were also involved in advising the president on the decision.

But last week, before the president's announcement, the conservative Heritage Foundation released a study that concluded that for the legal authority of a military court to be absolutely clear, it would be necessary for Congress formally to declare war. "Short of a formal declaration of war, it's difficult to predict with much certainty how the Supreme Court would rule in the matter. If President Bush wants to remove legal doubt, he should seek an official declaration."

New York Times columnist William Safire was somewhat less courtly: "Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has just assumed what amounts to dictatorial power to jail or execute aliens." Calling them "drumhead tribunals" and a "kangaroo court," Safire rails against the removal of all checks and balances in this "Soviet-style abomination."

Sen. Arlen Specter, R-Pa., took to the Senate floor to complain that Congress had not been consulted on the issue. "This is a matter which should receive deliberation of the Judiciary Committee because there are very many, very weighty issues to be considered."

Chairman Leahy agreed, and has schedules a hearing for Nov. 28. He has requested Ashcroft to testify about various actions taken by Justice since Sept. 11.

Ashcroft used very strong language in defending the tribunals. First, "let me just say that the United States is in the state of war. ... In the course of the war, we may capture terrorists in places like Afghanistan, who I don't think we should have to bring back to the United States in order to bring them to justice."

Further, "foreign terrorists who commit war crimes against the United States ... are not entitled to, and do not deserve, the protections of the American Constitution." And again, to underscore the point about war crimes, he said the Sept. 11 hijackers "and those who assisted them in doing so committed the kinds of criminal activity that would qualify as war crimes."

After this kind of rhetoric, a former top Justice official who had earlier championed the idea of military tribunals, who has long believed "this is war, not crime," told me "the administration is doing its best to make my views on this look bad."

He believes that at least in the abstract the idea of a tribunal is a good one: it's impossible to imagine Bin Laden on trial in any normal courthouse setting; we are at war — they aren't criminals but enemies; there's precedent from World War II; there can be expedited procedures, and ample protection for sensitive intelligence sources.

But, he lamented, "you don't have to throw everything overboard." You should close the proceedings only to protect intelligence; you should not prevent review by civilian courts; you should not deprive defendants of the counsel of choice. He concluded, "they've taken a good idea and left themselves far more vulnerable than they should have by overdoing it."

Beverley Lumpkin has covered the Justice Department for 15 years for ABCNEWS. Halls of Justice appears every Friday.