WAR ON TERRORISM Judge rebukes Ashcroft over gag order

The case involved two immigrants convicted of supporting terrorism.
LOS ANGELES TIMES
WASHINGTON -- In an extraordinary rebuke, a federal judge publicly admonished Attorney General 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 already considering overturning two convictions in the case based on other alleged government misconduct, said Tuesday that Ashcroft 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 9/11 investigations.
"The Attorney General's Office exhibited a distressing lack of care in issuing potentially prejudicial statements about this case," Judge Rosen said in an 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.
The case
That trial culminated last 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 and prominent Middle Eastern population. The defendants were arrested just six days after the Sept. 11 attacks in 2001; the judge said he imposed the gag order early on to "lower the volume" to ensure that the case would be tried in court.
Judge Rosen ruled Tuesday that Ashcroft violated the order on two "lamentable" occasions, including at an October 2001 news conference in which he suggested that the defendants had advance knowledge of the Sept. 11 attacks, and at a news event this past spring during the trial in which he praised a key government witness in the case. The Justice Department subsequently retracted its statement insinuating that the defendants were involved in the Sept. 11 plot.
Waiting until end
Defense lawyers strenuously objected to Ashcroft's comments when they were made, but Judge Rosen elected to deal with them after the trial was over. Throughout, he periodically held a series of closed-door emergency sessions with top Justice Department officials to impress upon them his concerns. Judge 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. Judge Rosen said he decided not to take more severe action because there was "insufficient evidence of willful misconduct or prejudice."
In a Nov. 26 letter to the court that Judge 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.