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

Millions of words have been written and spoken about the politicization of the Department of Justice before, during and after the departure of Alberto Gonzales. But the silence on two of the DOJ's most toxic practices has been deafening.

One is publicly labeling someone "a person of interest." The other is wildly exaggerating the seriousness of the charges against a person. Both have been widely and indiscriminately used over the past decade. Both have destroyed people's lives. Both have contributed to the environment of fear that followed 9/11. Both have been unashamedly exploited for career advancement by prosecutors, and for political gain by zealously loyal Bushies.

And neither has received any serious attention from the media or from the current presidential candidates.

But a new occupant of the Oval Office could and should end these dreadful practices with the stroke of a pen.

What exactly is a "person of interest?" The answer is that nobody knows. And nobody knows because the term has no basis in law. It first rose to prominence when the DOJ applied it to Richard Jewel, the hapless security guard who alerted authorities to the presence of a suspicious package at Centennial Olympic Park in Atlanta. A bomb exploded there shortly afterwards, killing a bystander and causing a fatal heart attack to a foreign journalist. It wasn't long before the Feds' attention shifted to the guy who should have been celebrated as a hero.

Jewel was "not accused" of planting a bomb or of anything else. The Clinton Justice Department told the media he was neither a "target" nor a "suspect" - terms customarily used by law enforcement. But he was effectively both. He was relentlessly harassed by the media, which painted him as a gung-ho cop wannabee. And his life was forever damaged, notwithstanding a belated apology from then Attorney General Janet Reno (the FBI never apologized).

Then came Steven Hatfill, the "person of interest" in the deadly 2001 anthrax mailings. In 2002, he was labeled a "person of interest" by then- Attorney General John Ashcroft. Tagged by the FBI, but neither accused nor charged, the Feds hounded this government scientist 24/7 for years. He lost his job and his reputation and became obviously unemployable. 

Hatfill sued the DOJ. This summer, he agreed to take $5.82 million and an apology from the government to settle his claim that the DOJ and the FBI invaded his privacy and ruined his career.

Since Jewel and Hatfill, the "person of interest" moniker has metastasized to local and state law enforcement authorities that have used it hundreds of times. And since most ordinary folks lack the resources to fight back against injustice by innuendo, they have no option other than to let the authorities wreck their lives.

Under the DOJ's own guidelines, prosecutors are allowed to publicly identify a person only they are seeking an interview for a criminal investigation. These guidelines prohibit any other disclosure of a person's name until formal charges have been brought. Honored in the breach, as they say.

The National Association of Police Chiefs got it absolutely right when they called "person of interest" a "euphemism for a suspect."

So did Brian J. Foley, Visiting Associate Professor of Law at Boston University School of Law. He told me: "A 'person of interest' is not an official designation. It is abused.  Law enforcement is politics.  Those in power use the term to assure the public that they're 'doing something.'  Police authorities fear admitting that they literally have no clue who committed a crime."

He continued: "Unfortunately, these politicians trash lives along the way -- the 'person of interest' is someone against whom there is no real evidence but someone who can be, at least for a time, used, vilified, scapegoated.  It's time our law enforcement politicians learn to say 'No comment' and for them to educate the public that very often, especially at the beginning of a case, police have no idea who the perpetrator was, or at least no real evidence.  The public should want responsible action (and restraint), not simply action.  The media should also cease its complicity in this charade and rigorously question politicians who finger someone as a 'person of interest,' asking what evidence the police have to support their grave allegation.  Otherwise, naming someone a 'person of interest' cheaply serves many of the same cynical purposes that 'show trials' serve in totalitarian regimes."

And Prof. Peter Shane of the University of Ohio Law School. He told me: "The 'person of interest' phenomenon is something like the opposite side of the coin from terrorist watch lists.  In the name of improving public safety, government authorities want to create some status for suspicious-seeming individuals that would enlarge government's investigative power without triggering the civil liberties protections that go with identifying anyone as an actual criminal 'suspect'. So far, it is not at all clear how much safety the public is getting out of the shift to a 'preventive law enforcement' mentality.  There is a substantial risk that we will wind up less free, but actually no safer."

Well said both!

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