Michael Chertoff:
Ashcroft's Top Gremlin;
Spreading
Mischief from DoJ to the Federal Bench
By Elaine Cassel
OpeEdNews.com
June 16, 2003
I have been watching John
Ashcroft so long that it is getting to be a little boring. Promising to
use all available means to "fight terrorism," prosecuting every
violation of law "to the fullest extent of the law," desperately
wanting the death penalty for every possible offense, and, according to
his remarks last week before the Senate Judiciary committee, wanting laws
changed to impose the death penalty for even more offenses. Ashcroft
changes law and procedure by signing Executive Orders, and yes, he can get
away with that unless a court stops him. So far, no court has. Some
congressional members, damn few, express mild dismay at his tactics, such
as locking up resident aliens after 9/11 and holding some of them for
months without access to family or lawyers (or charges), then deporting
many on the most technical visa violations (some of them the fault of INS,
over which he has authority). It never ends-the Ashcroft watch. It only
gets worse, and more frightening.
But now I have a new gremlin to
watch, someone who is as intent on undermining the law and Constitution as
Ashcroft. I am referring to the man behind the criminal prosecution of
terrorists, Michael Chertoff. Chertoff, former chief of the Justice
Department's criminal division, and a scary looking guy if ever there was
one, has been elevated to the level of Court of Appeals judge--the 3rd
Circuit Court of Appeals, whose jurisdiction includes Delaware, New
Jersey, and Pennsylvania. What's so scary about Michael? Well, besides
having no judicial experience and being a right-ring radical who does not
believe in the Constitution and wants to rewrite federal law and rules of
procedure on an ad hoc, case by case basis, as it suits him, nothing I
guess.
A good place to look for
Chertoff's legal philosophy is in the prosecution of Zacarias Moussaoui ,
now taking place in the Eastern District of Virginia. Chertoff is not the
prosecutor of course, Paul McNulty of the Eastern District is. But
Chertoff is McNulty's boss and he is calling the shots. So Chertoff argued
the government's case in the super secret hearing before the 4th Circuit
Court of Appeals last week. The government is trying to block trial judge
Leonie Brinkema's ruling that Moussaoui and his lawyers have access to the
government's star witnesses against him. The government has refused and
appealed. Judge Brinkema, who still believes in the Constitution, rightly
ruled that to deny Moussaoui that access is a blatant violation of the
Sixth Amendment right to confront witnesses.
Brinkema indicates that she will
not be a party to making exceptions to the Constitution on a case-by-case
basis. She, in effect, suggests that maybe Justice better take Moussaoui
to Guantanamo and try him there in secret, in the military tribunals they
set up. Easy there to not only try him, but convict him, and execute him .
So why is the government insisting on keeping him in federal court?
I have the answer, and it lies in
Chertoff. Chertoff's goal, I believe, and the goal of Ashcroft and Bush in
supporting this prosecution in federal court, is to subject federal
trials, as they see fit, to ad hoc exemptions of whatever laws (be they
constitutional, criminal code, or rules of procedure) that will suit their
purposes. Their grand scheme is to ultimately cripple and dismantle the
federal courts as we know them, one brick at a time.
Support for this theory of mine
includes their prosecution of attorney Lynne Stewart, for, in effect,
zealously representing her client; rules created by Ashcroft that subject
attorneys and their clients to surveillance, be they under secret wiretaps
issues by the secret FISA court or monitoring of all contacts in prison
settings. These procedures came about by fiat from Ashcroft. They make any
attorney who represents someone charged with an act of
"terrorism" (and a terrorist crime is one defined by Bush and
Ashcroft-that is an ad hoc determination, as well).
The Moussaoui case has many
examples of legal changes. Moussaoui and even his attorneys (!) cannot
receive all documents related to the case, because of "national
security" interests. Witnesses may appear in court behind screens (!)
so that they cannot be seen. And, the Fourth Circuit hearing last week was
closed-closed-for the first time in history. Under Ashcroft we have had
secret warrants (or no warrants), secret hearings denying bail, secret
trials, and now secret appellate court arguments. Next, we can expect the
Supreme Court to be closed, can't we?
The 4th Circuit hearing was close
to all but those "screened" and approved by the Justice
Department, the Defense Department, and the CIA. The judge presiding over
the hearing told the "security" official to jump up if any
attorney arguing the case said anything that would jeopardize national
security-so that the room could be cleared! Then, as will happen in a
trial, the government can proceed out of the presence of the defendant or
his attorney. Oh, of course, Moussaoui was not allowed to be at the
appellate hearing last week. How is that for a legal system.
Chertoff argued to the 4th
Circuit that the Court could not order the government to produce its start
witness against Moussaoui because (are you ready?) he, the witness, is out
of the country at an undisclosed location. True, but the witness is in the
custody of the federal government! The out-of-the country argument is a
sham. This is similar to a ruling recently by the federal court that ruled
that Guantanmo Bay prisoners had no access to federal courts for claims
that they be charged or release because-they are out of the country!! Of
course, in federal custody, but that does not matter.
The absurd arguments contrary to
the letter and spirit of all that not only the Constitution, but current
federal law provides, is appalling and shameful. Chertoff will be making
those arguments for the government when they appear before his court (and
if you think that appellate judges don't make arguments, you did not hear
Supreme Court Chief Justice Rehnquist make Bush's arguments for his
attorney, not Solicitor General Ted Olson. And you have not read the
rulings of the Fourth Circuit when it denied an American citizen, Yasir
Hamdi, the right to see a lawyer. He is locked up in some military brig.
He has not been charged with a crime and has been in custody for close to
a year. The opinion was a political treatise, not a legal argument. And
the treatise-opinion supported the government's argument that courts step
back and not conduct meaningful judicial review or, heaven forbid,
overrule the government in a time of "war." And that treatise
said that the "war" on terror will only be over when the
President says it is over, and that the "front" of the war may
change from time to time. When the "front" changes, then the
government may tighten up surveillance and arrests on that
"battleground," which could be Alexandria, Virginia or any city
in the country.
This same court will rule on
Moussaoui's right to have access to a witness who, by all counts, may help
his case and hurt the government. If the 4th Circuit rules that the
witness may not be produced, federal law, procedure, and the Constitution
will have been violated to support the Bush-Ashcroft agenda. The Senate
Judiciary Committee approved Michael Chertoff with hardly an argument
(though they did conduct an "investigation" into charges that he
engaged in some misconduct while at DOJ, which turned up nothing, or so we
are told).
Keep your eye on Michael Chertoff.
As bad for the law and Constitution as many of Bush's judicial appointees
are, Chertoff has been the architect of prosecutions in the "war on
terror." And he may have big changes in mind for you, me, the courts,
and the Constitution.
Elaine Cassel practices
law in Virginia and the District of Columbia, teaches law and psychology,
and writes Civil
Liberties Watch under the auspices of The City Pages. She can be
reached at: ecassel1@cox.net |
