Reform Jewish Leaders Urge Attorney General Ashcroft to Ensure Constitutional Protections in the Criminal Justice System

" We recognize that in the wake of the horrific attacks of September 11, we cannot afford 'business as usual.' Nonetheless, we must express our deep concern that the investigation into the tragic events of September 11 is not following a course that pays due attention to the basic constitutional protections of our criminal justice system."   - Rabbis Yoffie and Saperstein

NEW YORK, December 18, 2001 - In a letter today to U.S. Attorney General John Ashcroft, Rabbi Eric H. Yoffie, President of the Union of American Hebrew Congregations and Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism, expressed their support of the Administration's efforts to combat terrorism, while raising concern regarding the manner in which law enforcement officials have pursued the September 11th terrorist investigation. The letter notes, "we must be vigilant in ensuring that the investigation into the terrorist attacks does not undermine the very liberties that make this country worth celebrating and protecting."

The complete letter follows:

On behalf of the Union of American Hebrew Congregations (UAHC), encompassing 1.5 million Reform Jews in 900 congregations across North America, we write in support of the Administration's efforts to combat terrorism. We recognize that in the wake of the horrific attacks of September 11, we cannot afford "business as usual." Nonetheless, we must express our deep concern that the investigation into the tragic events of September 11 is not following a course that pays due attention to the basic constitutional protections of our criminal justice system.

As you know, Deuteronomy 16:20 enjoins us "Tzedek, tzedek tirdof – Justice,justice shall you pursue." Biblical commentators have suggested that the word "justice" is repeated in this powerful passage to teach us that we must act justly in the pursuit of justice; that we must insist on both just ends and just means. Like all Americans, we support the vital and urgent efforts of law enforcement to bring the perpetrators of the horrible crimes of September 11 to justice. But we must be vigilant in ensuring that the investigation into the terrorist attacks does not undermine the very liberties that make this country worth celebrating and protecting.

Although we understand the necessity to give law enforcement the tools it needs to wage an effective war on terrorism, we are particularly troubled by your recent directive allowing federal officials to listen in on conversations between certain detained individuals and their lawyers. This sweeping measure, which was instituted without congressional approval or public deliberation, is a particularly troubling case in point. It weakens not only the protection of attorney-client privilege, but the basic right to competent legal counsel altogether. Lawyers cannot advocate for their clients effectively if they must constantly fear undermining their cases by merely speaking with the individuals they are sworn to represent.

Other aspects of the investigation are similarly disturbing. Your order allowing immigrants to be detained without charge for an unspecified "reasonable time" during a "national emergency" gives the Justice Department effectively the same power of indefinite detention that you sought – and were specificallydenied – in the proposed anti-terrorism legislation. This regulation violatesnot only the due process protections of the Sixth Amendment, but the will of Congress as well.

The proposed use of military tribunals to try suspects also raises concerns. As they are described in President Bush's executive order, these courts would operate behind closed doors and without many of the constitutional and procedural safeguards we believe are vital to protecting our nation's cherished commitment to civil liberties and to equal justice under the law. Our government has taken a principled stand in defending American citizens who are tried without significant due process protections in military courts abroad. We should not undermine our own rules of due process by authorizing the use of military tribunals that provide few of the fundamental protections guaranteed by our criminal justice system. Open military tribunals, bound by the traditional protections that govern both our civilian and military courts, might be an important tool in prosecuting the exponents of terror. But under the original form of the President's executive order, non-citizens could be detained indefinitely, tried largely on the basis of classified evidence to which their lawyers would not have significant access, and convicted without a unanimous verdict. Such individuals would have practically no opportunity to appeal the tribunal's decision. Let us recognize the effectiveness and fairness of our judicial system, under which the perpetrators of the 1993 World Trade Center bombing and the 1998 African embassy bombings were brought to justice. The courts called on to try those accused of perpetrating the horrible crimes of September 11 should not abandon the principles that make both justice and freedom essential values of America's legal fabric. Those values must continue to be upheld by all American courts, be they civilian or military.

We are also concerned that prosecutors are calling on judges to deny bond to detained individuals based on little significant evidence. The Washington Post recently revealed the existence of a secret affidavit asserting that detainees should continue to be held on often-minor violations, even without a viable argument connecting them to September 11. This legal document turns the traditional presumptions of our criminal justice system on their head, essentially arguing that judges should deny bail to individuals based not on the evidence placed before them, but rather on the lack of evidence, on the promise of a prosecutor that the individual in question fits into a "mosaic." That legal argument makes it nearly impossible for a defense attorney to prevent her client from being detained.

Against this backdrop, we must respectfully raise urgent concerns regarding the manner in which law enforcement officials have pursued this investigation. The pursuit of justice in this case requires that we commit ourselves to an investigation that is as fair as it is vigorous, and that does not undermine the fundamental protections that are the very foundation for our criminal justice system. Unfortunately, recent actions by the Justice Department stand in stark contrast to these principles. We urge you to reconsider the course this investigation has taken.

Respectfully,

/s/
Rabbi Eric H. Yoffie
President, Union of American Hebrew Congregations

/s/
Rabbi David Saperstein
Director, Religious Action Center of Reform Judaism