Ashcroft Is Rebuked by U.S. Judge

In an extraordinary rebuke, a federal judge Tuesday publicly admonished Atty. Gen. 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 considering overturning two convictions in the case based on other alleged government misconduct, said Ashcroft had 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 Sept. 11 investigations.

“The Attorney General’s Office exhibited a distressing lack of care in issuing potentially prejudicial statements about this case,” Rosen said in his 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.

That trial culminated in 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 Mideastern population. The defendants were arrested six days after the Sept. 11 attacks; the judge said he imposed the gag order early to “lower the volume” to ensure that the case would be tried in court.

In his rebuke, Rosen ruled that Ashcroft violated the order on two “lamentable” occasions, including at an October 2001 news conference when he suggested that the defendants had advance knowledge of the Sept. 11 attacks, and last spring when he praised a key government witness in the case during the trial. The Justice Department subsequently retracted its statement insinuating that the defendants were involved in the Sept. 11 plot.

The judge, an appointee of President Bush’s father, President George H.W. Bush, said he was also concerned about apparent government leaks to the news media in August 2002 of a superseding indictment in the case that added terrorism-related charges, but added there wasn’t any evidence that Ashcroft was involved in “this troubling episode.”

Defense lawyers strenuously objected to Ashcroft’s comments when they were made, but Rosen elected to deal with them after the trial was over. Throughout, he periodically held closed-door emergency sessions with top Justice Department officials to impress upon them his concerns. 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. Rosen said he decided not to take more severe action because there was “insufficient evidence of willful misconduct or prejudice.” The judge had polled jurors during the trial to see if any had heard or read of Ashcroft’s comments, and none said they had.

In a Nov. 26 letter to the court that 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.

“I regret making these statements,” the attorney general wrote. “I made a mistake in making statements that could have been considered by the court to be a breach of the court’s order. And for that I apologize to the court and counsel.”

Legal ethics specialists said they could not recall a time when a sitting attorney general was the recipient of professional discipline by a court.

“It is extremely unusual for an attorney general to breach an order, and extremely unusual to apologize for it,” said Deborah Rhode, a professor of law at Stanford Law School. “It is unusual for this attorney general to apologize for anything connected with national security.”

Rosen is considering a defense request to reverse the convictions, based on the failure of prosecutors to turn over a letter written in December 2001 accusing a key government witness of lying in the case.