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Attorney General John Ashcroft has a tough job on his hands. In the wake of the Sept. 11 attacks, he is confronted with one of the most extreme threats to domestic safety in our country’s history. He not only has to lead the fight to apprehend those who have committed those crimes, but also has to prevent such acts from occurring again. The attorney general, as lead prosecutor for the United States, has taken on that job with zeal. He has assumed the role of the chief advocate for the country and has tried to press every advantage he can. Among other actions, he has closed detention hearings for immigration detainees, ordered the Bureau of Prisons to listen to certain attorney-client conversations, detained noncitizens without the benefit of counsel or judicial review, facilitated the implementation of military tribunals to try noncitizens for terrorist crimes, instituted the use of the classification “enemy combatant” to hold American citizens without access to counsel or judicial review, and publicly criticized as unpatriotic those who question these measures. All these things are being done in the name of fighting the war against terrorism. GENERAL ASHCROFT? But the attorney general is not a member of the military fighting a war — he is a prosecutor fighting crime. For all the rhetoric about war, the Sept. 11 attacks were criminal acts of terrorism against a civilian population, much like the terrorist acts of Timothy McVeigh in blowing up the federal building in Oklahoma City, or of Omar Abdel Rahman in the first effort to blow up the World Trade Center. The criminals responsible for these horrible acts were successfully tried and convicted under our criminal justice system, without the need for special procedures that altered traditional due process rights. Our country has faced many forms of devastating crime, including the scourge of the drug trade, the reign of organized crime and countless acts of rape, child abuse and murder. The acts of Sept. 11 were horrible, but so are these other things. One arguable difference between those crimes and the tragedies of Sept. 11 is that foreign organizations, possibly even foreign governments, were involved in the planning, funding and carrying out of the Sept. 11 attacks. But we have never treated such influences as a basis for ignoring the core constitutional protections ingrained in our criminal justice system. The “war on drugs” — a longer-term and far more devastating disaster for our country in terms of the number of affected people — has been facilitated by foreign organizations and governments. Yet, even after Panamanian President Manuel Noriega was arrested by U.S. military forces in Panama, he was brought to the United States, tried in the federal courts, and had full access to counsel, a trial by jury, the right to cross-examine witnesses and the right to present his own defense. So what is John Ashcroft to do? Is he not supposed to be the lead advocate for law enforcement and use every tool he can to fight this crime? Is he not to seek every extension of the law and advantage he can imagine to wage this battle? Yes, but his duties do not end there. As a prosecutor, he has a special responsibility beyond merely being the lawyer for one of the parties to a case. He is one of the major bulwarks against excess and abuse in the administration of justice. So much of what is done in the prosecution of crime happens before any court is involved. Because of this, we must rely on the prosecutors to watch out for the rights of everyone, including those they seek to punish. The attorney general justifies much of his agenda by pointing to the “war on terrorism” and saying that it is an extreme situation that calls for extreme actions. But too much danger lies down that road. The protections built into our criminal justice system are there not merely to protect the guilty, but, more importantly, to protect the innocent. They must be applied to everyone to be effective. What are we fighting for if, in the name of protecting the principles that have raised this nation to the pinnacle of civilization, we abandon those very principles? As Justice George Sutherland wrote in Berger v. United States (1935), a prosecutor “is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” It is a difficult balancing act between being a protector against crime and a protector of rights. But that is what lies at the heart of being a prosecutor. We want Attorney General Ashcroft to be an aggressive advocate for our country. We want him to be effective in the fight against terrorism, as well as in the fight against all forms of crime that harm our country. We also want him to be a protector of the rights, liberties and freedoms that make this country the envy of the world. Only by doing both will he truly fulfill his important role as the lead prosecutor for the United States of America. James M. Cole is a partner at Bryan Cave in Washington, D.C. Before entering private practice, he worked in the Justice Department for 13 years, first as a prosecutor, and then as deputy chief of the Criminal Division’s Public Integrity Section.

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