Our article Monday, "Al-Arian's Third Strike," generated responses from two federal officials who took exception to George Washington University Law Professor Jonathan Turley's argument that there is "a new and disturbing trend by the Bush Administration in using grand juries against individuals who they fail to convict in criminal cases."
One pointed out that civil contempt has been used during a number of presidential administrations of all stripes to compel testimony and recounted in detail how, after several tries, a reluctant witness in a drug case finally testified truthfully and triggered indictments of dozens more people.
We are publishing the comments of the other official, who consented under a condition of anonymity:
Turley appears so blindly predisposed to see politics at play in every investigative and prosecutorial initiative related to terrorism and terrorist support networks operating in the United States that he continually speaks without marshaling the facts. He demonstrates a stunning a lack of awareness and understanding of long-established and accepted procedures and investigative tools of the criminal justice system, neither of which are desired qualities in a lawyer, let alone one who teaches law students.
Federal prosecutors work as a component element of the Executive Branch. But that does not render their work political in orientation or objective. The work of federal prosecutors is not driven by direction or orders from the President, and only very, very seldom is it done in consultation with the office of the Attorney General. Their objective is the pursuit of criminal conduct – its investigation and, where the evidence warrants, its prosecution. Turley and the terrorist defense bar attempt to cast cases like Al-Arian's as politically motivated, tying it to George Bush and those working at high levels of his administration. It is not incorrect to say, as the [other official wrote], that civil contempt has been used by "every Presidential administration." But casting it in such terms needlessly cedes a critical foundational flaw in the screeching criticisms of Turley and his ilk – that the legal action under examination is that of a political organ, here described as a Presidential Administration. Those who prosecuted Al-Arian and then later put him before the grand jury possess, as do all AUSAs, a certificate signed by the Attorney General, empowering them to exercise the powers of their office under the Constitution and as delegated by the Attorney General. Those involved in the Al-Arian case(s) are long-time career Justice Department prosecutors whose certificates were signed not by Michael Mukasey, John Ashcroft or Alberto Gonzales, but in most instances by Janet Reno, who was AG when they joined the Justice Department. As a matter of personal politics, some of the prosecutors are Republican, and others Democrat. But not one of them acts out of or in pursuit of personal politics or political objectives. And in the case of terrorist supporters like Al-Arian (and others), decisions about what to investigate and prosecute and what legal investigative tools to employ in doing so are not made by, or undertaken even in consultation with, the "Presidential administration" in power.
The point is subtle, I'll grant you, but in certain contexts it can be important. One of the most disappointing aspects of the debate over the PATRIOT Act in general, and certain of its provisions in particular, is that the opposition either does not appreciate or simply refuses to acknowledge that there was little new in the authority conferred by the Act. Most of the "powers" were previously employed, albeit under the Constitution, and blessed by courts over a long span as being constitutional. What the PATRIOT Act did was to attempt to "bolster" those powers through the congressionally blessed imprimatur of statutory authority. In the absence of a statute, the exercise of certain of those powers was not necessarily guaranteed in all applicable situations, as they were subject to the vagaries of court approval.
No two judges read the Constitution or see the law exactly the same way, thus leaving some degree of uncertainty at the margin about whether a generally accepted investigative technique would be approved in a given case. Part of the idea behind the PATRIOT Act was to secure that uncertain perimeter and make more certain the availability of many of these long accepted investigative tools. But the effect of codifying constitutional authority in this realm can and tends often to be as limiting as it is reinforcing and, worse, serves up the scope of those Constitutional powers to political debate. This observation is a different, but related, facet of a regular refrain in the written musings of Andrew McCarthy on FISA reform. (In a nutshell, Andy's point is that the underlying authority for what we do in the foreign intelligence arena is the Constitution. In an attempt to rein in the abuses of that inherent authority in prior generations – think J. Edgar Hoover and COINTELPRO – Congress and the President imposed a statutory overlay on that inherent Constitutional power of the Executive and, in so doing, subjected the exercise of certain aspects of Executive authority to prior review by the judicial branch, where it has no business, constitutionally or otherwise because the judiciary is the least democratically accountable and least qualified, as a matter of expertise, to pass on matters of national security, of the three branches of government.)
In the context of the PATRIOT Act, long-countenanced and judicially recognized constitutional powers of the executive have been codified, but, in the process, (1) have been given the appearance (to the general public, and the uncritical or uneducated observer) of existing only by statute, and (2) thoroughly politicized. The same folks who politicize the PATRIOT Act tend to cast as political everything done by prosecutors in the terrorism arena. In doing so, they denigrate: Prosecutors -- career civil servants who conduct themselves in precisely the same way regardless of Presidential administration or the politics of a particular Presidential administration; the criminal justice system; the integrity of the judiciary; and as a result they debase the very Constitution they purport to be defending.
It is more than a little ironic that Turley and company fervently advocate for broadening the scope of judicial review in the foreign intelligence arena, but cry foul when those same jurists do not look kindly upon the positions they advance on behalf of terrorism supporting clients.
Keep up the good work.