Ashcroft Is Rebuked by U.S. Judge:
The attorney general apologizes for twice violating a gag order
issued in a high-profile Detroit terrorism trial.
latimes.com
By Richard B. Schmitt, Times Staff Writer
WASHINGTON - In an extraordinary rebuke, a federal judge Tuesday
publicly admonished Atty. Gen. John Ashcroft for violating a gag order
covering a high-profile terrorism case in Detroit, prompting the attorney
general to issue an unusual apology to the court for his remarks.
U.S. District Judge Gerald Rosen, who is considering overturning two
convictions in the case based on other alleged government misconduct, said
Ashcroft had violated an October 2001 order he issued seeking to limit
out-of-court statements by attorneys in the case, which was the first major
criminal trial stemming from the Sept. 11 investigations.
"The Attorney General's
Office exhibited a
distressing lack of care
in issuing potentially
prejudicial statements
about this case," Rosen
said in his 81-page
ruling.
Acknowledging that the
attorney general has a
dual role of keeping the public informed about the
war on terrorism and ensuring that defendants are
accorded a fair trial, "in this case, this essential
balance was jeopardized," the judge wrote.
That trial culminated in June with a jury convicting two North African immigrants of providing material
support to terrorists, among other charges, for being part of what prosecutors contended was a
domestic "sleeper cell."
The emotionally charged case was the first test of the Bush administration's efforts to prosecute
suspected terrorists, centered in a community with a large Mideastern population. The defendants were
arrested six days after the Sept. 11 attacks; the judge said he imposed the gag order early to "lower the
volume" to ensure that the case would be tried in court.
In his rebuke, Rosen ruled that Ashcroft violated the order on two "lamentable" occasions, including at
an October 2001 news conference when he suggested that the defendants had advance knowledge of
the Sept. 11 attacks, and last spring when he praised a key government witness in the case during the
trial. The Justice Department subsequently retracted its statement insinuating that the defendants were
involved in the Sept. 11 plot.
The judge, an appointee of President Bush's father, President George H.W. Bush, said he was also
concerned about apparent government leaks to the news media in August 2002 of a superseding
indictment in the case that added terrorism-related charges, but added there wasn't any evidence that
Ashcroft was involved in "this troubling episode."
Defense lawyers strenuously objected to Ashcroft's comments when they were made, but Rosen
elected to deal with them after the trial was over. Throughout, he periodically held closed-door
emergency sessions with top Justice Department officials to impress upon them his concerns. Rosen
said the breaches continued despite the warnings, and said he was concerned that Ashcroft "apparently
did not take sufficient steps" to ensure compliance with the order by his staff.
The judge found that "a public and formal judicial admonishment" was the appropriate sanction, which
he described as "the most modest among the range of disciplinary measures that may be imposed upon
attorneys."
Defense lawyers in the case had asked the judge to hold Ashcroft in criminal contempt or require him
to appear at a hearing to explain his actions. Rosen said he decided not to take more severe action
because there was "insufficient evidence of willful misconduct or prejudice." The judge had polled
jurors during the trial to see if any had heard or read of Ashcroft's comments, and none said they had.
In a Nov. 26 letter to the court that Rosen unsealed Tuesday, Ashcroft said his remarks were "entirely
inadvertent," and said he didn't intend to disregard the order or to disrupt the court proceedings.
"I regret making these statements," the attorney general wrote. "I made a mistake in making statements
that could have been considered by the court to be a breach of the court's order. And for that I
apologize to the court and counsel."
Legal ethics specialists said they could not recall a time when a sitting attorney general was the recipient
of professional discipline by a court.
"It is extremely unusual for an attorney general to breach an order, and extremely unusual to apologize
for it," said Deborah Rhode, a professor of law at Stanford Law School. "It is unusual for this attorney
general to apologize for anything connected with national security."
Rosen is considering a defense request to reverse the convictions, based on the failure of prosecutors
to turn over a letter written in December 2001 accusing a key government witness of lying in the case. |
