Welcome to Gonzales Watch - Blawging the Ex-Attorney General

Michael Elston is a ‘94 graduate of Duke University’s Law School.

He prosecuted terrorism cases in the U.S. Attorney’s Office for the Eastern District of Virginia when Paul McNulty was the U.S. Attorney for the district. Elston then followed McNulty to the Dept. of Justice headquarters in Washington, D.C.

After September 11, 2001, Elston worked in the DOJ’s Office of Legal Policy drafting anti-terrorism legislation, which subsequently became the USA PATRIOT Act (the “Patriot Act”). He was involved in prosecuting two of the most well-known terrorism cases in the United States. The first was the prosecution of John Walker Lindh, an American-born Talib believed who fought with the Taliban in Afghanistan. Lindh was convicted and sentenced to 20-years in federal prison.

Elston also was involved in opposing media requests for access to sealed documents in the terrorism case against Moroccan-born French al Qaeda member Zacharias Moussaoui.

Here is what Elston told Duke University Law School alumni about his thoughts on terror-related prosecutions:

“Before 9/11, federal prosecutors primarily dealt with drug and gun offenses, bank robberies, and white-collar crime. Things changed a great deal on that day. The federal government reassigned substantial law enforcement resources to anti-terrorism initiatives. We had a significant drop-off in the non-terror work after 9/11, because so many federal law enforcement officers were pulled into the 9/11 and other terrorism-related investigations. The word came down: “Don’t let this happen again.”

Now resources have been added so that both areas can be pursued with energy: anti-terrorism efforts and regular criminal cases.

Whenever laws are changed to give law enforcement new tools, as occurred with passage of the Patriot Act, there is an accompanying concern about the potential for abuse of those tools. And rightly so. Our country’s strength depends on, and has always depended on, our ability to have fully informed, free and open debates on these issues. The Patriot Act debate, however, has too often been marked by uninformed debate.

What was particularly disappointing to me about the on-going debate is the assumption that the Justice Department would misuse or abuse these new tools. In my experience, the federal law enforcement community is full of hard working, honest people with integrity, who believe passionately in the Bill of Rights. I am confident that we will reach the right balance between what we need to do to keep the country safe and what we need to do to protect our constitutional rights. In the course of public debate over the “sunset clauses” of the Patriot Act, statistics will come out as to how current investigative powers are used and any alleged abuses of those powers. I don’t think there will be many actual examples of abuse. Frankly, those of us in law enforcement simply have so much work to do that we don’t have time snoop through the records of law-abiding citizens. In fact, Senator Dianne Feinstein, a California Democrat, stated during a Senate hearing two years after the law went into effect that she had “never had a single abuse of the Patriot Act reported to me. My staff e-mailed the A.C.L.U. and asked them for instances of actual abuses. They e-mailed back and said they had none.”

I also believe that a lot of the angst stems not so much from the Patriot Act, but from a lack of awareness as to what the powers available to law enforcement were before 9/11. For example, law enforcement has always been able to use subpoenas to access such things as bank records and obtain court orders to install wiretaps. The Patriot Act just provides new ways for law enforcement to get that information in terrorism investigations, and to get some information faster, such as searches of e-mail accounts. Speed is crucial in national security investigations.

Domestically, we have to stop [terrorists] before they act. We have to focus on stopping the people who commit and support criminal acts in advance. That may involve aggressively enforcing immigration laws, federal firearms and explosives laws, as well as bringing terrorism-specific charges in appropriate cases. Prosecuting people attempting to enter the country illegally, prosecuting identity theft, and undermining the ability of terrorist organizations to freely use our financial system to support their activities, for example, makes it harder for terrorists to achieve their objectives. That’s our number one goal.”