Memo To Obama And McCain: Add To Your Do-Do List

We should pay attention to what law enforcement does and doesn't allow across the Atlantic. People who are not charged with crimes should remain anonymous. Until they are charged, authorities should merely tell the public - as the British authorities do - that folks in custody are "helping police with their inquiries."

Hyping charges is arguably an even more egregious practice because it can adversely influence judges and juries.

The poster-boy for this riff is Jose Padilla - the US citizen accused by then Attorney General John Ashcroft of plotting to use a radioactive "dirty bomb" to blow up buildings in America.

Padilla was labeled an "enemy combatant" by President Bush. He was unconstitutionally held largely incommunicado in a US military brig for more than three years until the eve of a ruling from the US Supreme Court. Only then did the DOJ - fearing the Court's decision would be another legal setback -- transfer him to the custody of the US criminal justice system.

Padilla was charged with membership in a North American terrorist support cell and with conspiracy to murder, kidnap and maim US nationals, and conspiracy to provide material support to terrorists. These are the crimes he was convicted of.  

But what of the radioactive dirty bomb? It was nowhere to be found in Padilla's indictment. Why was it dropped? Because there was no evidence that the DOJ could introduce and support in a court of law. Because it was hype.

But Padilla is far from the only victim of such politically-motivated hype. There's the case of Dr. Rafil Dhafir, an upstate New York oncologist whose arrest was widely trumpeted by the state's governor and others as a great victory in the "war on terror." But when he went on trial in 2005, prosecutors insisted - and the judge agreed - that the word "terror" should be excluded from the courtroom. His attorney accused the government of selective prosecution by singling him out because of his race, religion and cultural background.

Nonetheless, Dhafir was convicted - and sentenced to 22 years in the slammer - mainly for violating the US government's sanctions against Iraq by sending money for food, clothing and medical supplies through a charity he founded. He is believed to the only US citizen ever to be held in prison for violating the Iraq sanctions, although several humanitarian groups have admitted doing just that.
 
Then there's the case of "The Liberty City Seven" - seven Miami residents named for the impoverished area of Miami where they lived. The seven were caught in an FBI sting operation allegedly for pledging loyalty to Al-Qaeda in a plot to blow up the Sears Tower in Chicago. When they were arrested in 2006, law enforcement officials in Washington and Miami called two widely heralded press conferences, where one senior spokesman acknowledged that the terrorist plot was more "aspirational than operational."

Despite the fact that police were unable to find explosives or other materiel that would indicate that the defendants were serious about carrying out the plot, the seven were tried, not just once, but twice. In both trials, juries failed to reach a verdict on six of the seven (one was acquitted and then deported to his native Haiti).

Want more? Well, there's Brandon Mayfield, the Oregon lawyer who was held as a "material witness" (another toxic practice) because the FBI said his fingerprints were found on one of the backpacks used to carry explosives used to blow up the trains in Madrid in 2004. The convert to Islam was kept in jail without bond for two weeks, until the FBI had one of its rare oops! moments: It fessed up incorrectly getting Mayfield's fingerprints confused with someone else's.

Mayfield got an apology, a $2 million settlement, and the overturning of some provisions of the USA Patriot Act on constitutional grounds when he sued the DOJ.

These cases are, to coin a phrase, only the tip of the iceberg. There are dozens of others in which innocent people have been placed in a deadly legal limbo by the "person of interest" label, or subjected to needless trials or given excessive sentences because of political hype or prosecutorial misconduct.

Cleaning up this mess should be a lot easier than getting Harriet Myers to testify to Congress. Or closing Guantanamo. The Department of Justice makes its own rules for behaving ethically within the Constitution and the laws passed by Congress.

The DOJ can rewrite its rules as easily as it broke them. It needs to make the term "person of interest" off limits for DOJ personnel, including the FBI. And it needs to send a clear message to prosecutors and FBI folks that hyped accusations are not campaign bumper stickers or the newest super-highway to career advancement.

This will require a president with the guts to choose an attorney general who believes in the rule of law and who will not tolerate anything less.

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