Judge weighs Ashcroft charge
Friday, October 3, 2003
A contempt decision against attorney general would be only second citation in history.
By David Shepardson / The Detroit News
DETROIT -- A federal judge will soon decide whether to order U.S. Attorney General John Ashcroft to face criminal contempt charges for allegedly violating a gag order in the Detroit terror case.
Lawyers for three men charged with providing material support to terrorists asked U.S. District Judge Gerald E. Rosen to hold Ashcroft in contempt after he publicly praised a government informant, Youssef Hmimssa.
"His testimony has been of value, of substantial value," Ashcroft said at an April 17 speech in Washington. "Such cooperation is a critical tool for our war on terrorism."
If Ashcroft were held in contempt, he would be only the second U.S. attorney general in history to be cited by a judge.
A decision to order Ashcroft to appear in Detroit to face contempt charges would fuel a legal drama that would be fodder for Democratic critics and spark intense media coverage, legal experts said.
It could result in the appointment of a special prosecutor to investigate and seek Justice Department documents such as the e-mails of officials who worked on Ashcroft's April 17 speech. The special prosecutor might interview potential witnesses, including a federal appeals court judge, experts said.
"It would be a circus. But we've had circuses before," said Richard Friedman, a law professor at the University of Michigan.
After a month of legal wrangling, a decision appears near.
On Sept. 26, Rosen held a two-hour closed-door meeting about the matter with defense lawyers and Justice Department officials, including Christopher A. Wray, the acting assistant attorney general who heads the department's criminal division. Rosen didn't announce a decision at the meeting, and lawyers on both sides were advised not to comment.
Ashcroft has yet to personally respond to the request and did not file an affidavit explaining his actions.
The government's response, signed only by U.S. Attorney Jeffrey G. Collins, said Rosen should dismiss the contempt request without a hearing.
"Compelling the attorney general's appearance to address the defendants' allegations -- where he has not sought to influence the jury's deliberations or the outcome of the defendants' trial -- is inadvisable because it would likely serve only to chill legitimate public briefings in the future," said the 16-page statement.
The controversy stems from a raid two years ago in the frantic days after the Sept. 11 attacks.
On Sept. 17, 2001, Joint Terrorism Task Force agents went to the door of a southwest Detroit flat looking for a man who appeared high on the terror watch list. Instead, they found three men and a day planner that had what the government said were drawings of targets in Turkey and Jordan.
The men were charged with planning "specific violent attacks," including on an American air base in Incerlik, Turkey, and a military hospital in Amman, Jordan. Two men were eventually convicted of providing material or resources to terrorists and possession of false documents.
Because of intense publicity surrounding the case, Rosen imposed a gag order Oct. 23, 2001, barring lawyers from making public comments.
Eight days later, Ashcroft said at a news conference that "three Michigan men suspected of having knowledge of the Sept. 11, 2001, attacks, for example, were arrested on charges of possessing false documents."
He retracted the remarks, and one of his aides, Michael Chertoff, apologized to the judge during a conference call.
Then in August 2002, Fox News reported that the government would seek to indict four men in Detroit on terrorism charges the day before the indictment was sought.
"The reporter's story did track some of the language in the not-then-filed superseding indictment," wrote Deputy Attorney General Larry Thompson in an Oct. 16 memorandum that was sent to department officials -- including Ashcroft -- reminding them of Rosen's gag order.
The apparent leak sparked another closed-door hearing with Rosen and the lawyers and included Thompson. Rosen put all the
lawyers on notice that he wouldn't tolerate any more violations of the gag order.
"I'm putting everybody on notice there will be no violations. There are no more free passes," Rosen said.
Richard Lustig, a veteran criminal attorney based in Birmingham, said Rosen was fair in overseeing the terror trial.
There has been recent tension between the judiciary and the Justice Department, Lustig said. Ashcroft recently directed U.S. attorneys to notify him when judges give offenders lower prison terms than the sentencing guidelines dictate.
"Maybe Ashcroft will see the value in giving judges discretion," Lustig said. "It might do the system some good if Ashcroft has to appear."
But Evan Caminker, dean of the University of Michigan Law School and a former Justice Department official, said Rosen's decision would be made on the basis of the law. "If Judge Rosen decides to go forward, he would go forward in cautious steps that would appropriately respect the attorney general and his office," Caminker said.
Rosen, a law professor and co-author of a legal text, was appointed to the federal bench by the first President Bush in 1990. He has been involved in politics: Rosen unsuccessfully ran for Congress as a Republican in 1982 against U.S. Rep. Sander Levin, D-Royal Oak. |
