Apology Expected 

Being attorney general means never having to say you're sorry.

My job is to connect the dots. So follow me as I take you from a typical newspaper story about yet another convicted murderer being freed on account of DNA testing to the testimony last week of Attorney General John Ashcroft. The first is clear evidence of the imperfectibility of the criminal justice system, and the second is the smug refusal to admit it. Ashcroft has a serious attitude problem.

That attitude was on display when he testified before the House Judiciary Committee. The attorney general was asked about a report from his own inspector general criticizing the way in which the Justice Department had treated 762 illegal immigrants locked up and detained after the September 11th terrorist attacks. None of them -- that's precisely zero -- was ever linked to terrorist activities.

Yet, some of them were held incommunicado for months. Either they were refused lawyers or so many obstacles were put in their way that it amounted to the same thing. They were denied visitors. Some were held in solitary confinement, verbally harassed and threatened, and, on occasion, allegedly physically manhandled. To all of this, Ashcroft responded with a shrug. "We make no apologies," he said -- and, of course, he asked for additional death penalties in terrorism cases.

But apologies are most certainly in order. In the first place, the Justice Department got things exactly backward. In this country, you're innocent until proven guilty -- not the other way around. Second, harsh and inhumane treatment -- keeping the cell illuminated 24 hours a day -- ought not to be tolerated. After all -- and it is worth repeating -- the detainees were never charged with any crime linking them to terrorism. Most of them were detained because they were Muslims or Arabs. In this country, that ain't a crime.

Two caveats are in order. After hacking through the gobbledygook of the inspector-general report ("Prior to September 11, 2001, the MDC had a SHU, but not an ADMAX SHU"), I'd have to say that physical or verbal abuse was not all that common and it seems the Justice Department was more confused than it was tyrannical. After all, it was establishing a detention system virtually from scratch -- and in something of a panic, at that.

We also have to remember that some of the September 11th terrorists were in this country because the immigration system had failed. At the time, we were on the lookout for exactly the sort of people who had destroyed the World Trade Center and a section of the Pentagon -- young, Islamic males. The detention system made some sense.

Nonetheless, innocent people were held behind bars, sometimes cruelly, for months at a time. The report highlights the experience of one woman who for two months was repeatedly told her husband was not being detained (he was) and who, even after she found him, was permitted to visit him only three times in five months. Isn't she deserving of an apology?

Not from Ashcroft. To hear him, the system worked perfectly. This is precisely the mindset he brings to capital punishment, of which he clearly cannot get enough. Routinely, it seems, yet another person walks from death row, freed on account of DNA testing. Routinely, we hear of yet another case where the defense lawyer fell asleep, a lab technician lied, or some cop got a confession out of some addled suspect who did not, as it turned out, commit that particular crime. Oops.

I can appreciate the challenge the Justice Department had after September 11th. The FBI was overstretched and its agents were probably dog-tired. America had undergone a wrenching, tragic experience, and there was no reason then -- and no reason now -- to think it could not be repeated. Unprecedented challenges required unprecedented steps. Some innocent people were bound to be locked up.

But when they were cleared, the detainees were owed an apology. A more humble -- a less arrogant -- attorney general would have conceded that mistakes were made, procedures violated, and that these are serious matters of concern. In this country, we bend over backward to protect the innocent.

Richard Cohen is a member of the Washington Post Writers Group and a frequent contributor to the Flyer.


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