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Trusted with nothing less than the administration of Justice, the United States Attorney General is arguably the second most important officer in the nation's war on terrorism. With the threat of another domestic attack in the consciousness of the public, the importance of the Department of Justice (DoJ), and law enforcement generally, cannot be understated. Effective criminal prosecution and intelligence gathering are essential to protect and defend American citizens.
Unfortunately, under the stewardship of the Clinton administration, the DoJ focused much of its attention on far more trivial matters. While former administration officials and career bureaucrats may dispute this contention, as Dr. James W. Frick famously said, "Don't tell me where your priorities are; show me where you spend your money and I'll tell you what they are." By this logic, the Clinton administration believed antitrust enforcement to be almost 20 times more important than counterterrorism, a shocking reflection of misjudged priorities.
In fiscal year 2000, the DoJ's counterterrorism fund was roughly equal to the DoJ's community relations service. Worse, the out year Clinton budget forecasts recommended that the counterterrorism fund be cut by 24 percent between 2001 and 2002, while the budget for the entire Justice Department was to grow by nearly 8 percent over the same period.
Instead of acting to protect and defend American citizens from real threats, the Clinton Justice Department chose to expand grievance patrols - like the civil rights division - and pursue civil and antitrust lawsuits against American businesses. The two most egregious of these suits - from both a consumer and taxpayer perspective - were the antitrust suit against Microsoft and the civil case brought against the tobacco industry.
While the Microsoft suit was fueled by the animus of its competitors, the tobacco litigation was an unabashed attempt by government to forcibly transfer funds from the balance sheets of lawful businesses to the federal treasury. In both instances, federal courts narrowed potential liability and dismissed the more outrageous portions of the government's case.
In the Microsoft trial, a federal appeals' court dismissed two of the government's three charges and rejected the Clinton administration's plan to dismember the company. In the tobacco case, a federal judge invalidated the government's civil suit to recoup funds used to treat tobacco-related illness, but allowed the Racketeer Influenced and Corrupt Organization (RICO) portion of suit against the industry to proceed.
In November, the new Bush Justice Department resolved the outstanding legal issues in the Microsoft case through a settlement that establishes a compliance board to regulate the business practices of the company. While far from ideal, the settlement would allow the DoJ to devote its time and resources towards more pressing needs and finally close the period of uncertainty that has done so much to damage the technology sector of the economy.
A settlement also seemed to be on the horizon in the RICO suit against tobacco, but no agreement has been reached. To win, the federal government must demonstrate that the tobacco industry acted as a criminal enterprise, like the Mafia, for which the RICO statute was intended.
Whatever its faults, the tobacco industry is not a crime syndicate. It sells legal products to willing consumers at prices largely dictated by federal and state tax levies. While treating language and the law in such an unserious fashion may have been old hat to the Clinton administration, the Bush Justice Department should refrain from following in its footsteps. The Clinton DoJ's criminal investigation into the tobacco industry lasted for five years and failed to produce a single indictment for perjury or deceit. To pursue a RICO case against a legitimate business that sells legal products is never a good course of action, but to do so at the expense of defending against another terrorist attack would be malfeasance.
None of this should be construed to suggest that the DoJ and its agencies should be kicking down doors and detaining foreign nationals instead of pursuing reckless suits against American industry. It simply means that by devoting attention to less compelling matters, the DoJ limits the time and resources available to reduce the threat of domestic terrorism in a manner consistent with constitutional liberties. By diverting resources towards the ridiculous, policymakers encourage those on staff tasked with law-enforcement to play "catch-up" at the expense of liberties.
One example of the zealousness caused by past inattention was the way DoJ officials lobbied for the USA Patriot Act, which granted the DoJ new authority to investigate and prosecute alleged terrorists. While some of the changes were necessary to update old laws to the realities of new technology - such as allowing a single warrant to wiretap all of a suspect's telephones - others were far more controversial. For instance, the act allows the DoJ to conduct secret searches and obtain private medical, financial, and educational information without a court order. In addition, the act allows both the Attorney General and Secretary of State to designate domestic groups as "terrorist organizations" to gain additional surveillance and prosecutorial authority.
Although a good argument can be made for the inclusion of each and every provision in the act, concerns about its breadth are hardly un-American, or supportive of terrorists. In fact, the DoJ has coveted many of the provisions for years and intended to use them for far more than counterterrorism. And as the misuse of the RICO statute demonstrates, federal prosecutors may be inclined to stretch the definition of "terrorist organization" to gain procedural advantages over organizations and individuals that could hardly be considered terrorists.
For example, a recent investigation by the Miami Herald revealed that the Justice Department has been padding its counterterrorism statistics by labeling ordinary criminal acts, such as obnoxiously demanding additional drinks on a trans-pacific flight, illegal gun sales, and a boat hijacking, as acts of terrorism. Without a precise definition of what actually constitutes "terrorism," it is conceivable that polluters, firearm manufacturers, and perhaps even Enron could be prosecuted as terrorists.
There is no question that the foibles of the past administration and the shock of September 11th have left Americans more insecure about their safety. The DoJ and its agencies have a vital role to play to restore confidence, punish wrongdoers, and guard the borders against those who wish us harm. But to do so effectively, it must refrain from engaging in the politically motivated nonsense of the past administration. By devoting scare resources towards inquisitions of lawful businesses, the DoJ cannot possibly fulfill its mission to protect and defend the American people, while maintaining meticulous concern for basic American freedoms.