April 11, 2003

April 11, 2003 | Commentary on Legal Issues

Smoking Out the Truth

For the first time since World War II, we're at war on two fronts. In Iraq we're fighting against an army, and everywhere else we're battling terrorism.

It's a full-time job, as Attorney General John Ashcroft has acknowledged.

"The war against terrorism is now the single, over-arching priority of justice and law enforcement," Ashcroft said last year. "Not just the men and women of the Department of Justice and the Federal Bureau of Investigation, but of the 18,000 state and local law-enforcement agencies as well."

That singleness of purpose has enabled us to break up at least four domestic terrorist cells, obtain 108 convictions or guilty pleas from terrorists, and deport 478 people linked to the Sept. 11 tragedy.

But not everyone at the Department of Justice shares Ashcroft's vision that his department ought to make terrorism Job #1. Some remain fixated on an older battle-namely, a $289 billion lawsuit against tobacco companies.

In the interest of full disclosure, I'll admit to enjoying an occasional cigar and even a pipe, and I'll also admit that tobacco companies supported Heritage last year to the tune of 0.26 percent (that's right, one quarter of 1 percent!) of our income.

But it's not the 0.26 percent of our budget that makes me wonder what's going on here. It's the mystery of why these lawsuits-first filed in 1999 by the Clinton administration under claims that even then-Attorney General Janet Reno suspected wouldn't hold up-are still around.

As things stand now, a federal judge has tossed out a huge part of the suit, saying government attorneys had misinterpreted two laws. The only part that remains, claims related to alleged violations of federal racketeering laws, also stands on shaky ground.

So why has Attorney General Ashcroft allowed the suit to go forward? As a senator, he opposed it. In a letter to a constituent in 2000, he wrote, "I am concerned that the … lawsuit could set an unwise precedent leading to the federal government filing lawsuits against countless other legal industries."

And even now, the Justice Department's civil division is handling it without his supervision. An unidentified official told The New York Times he never even actually signed off on the latest filing. Which raises the question: Did the Attorney General of the United States tell his civil division attorneys to do this? If so, why didn't he sign the filings? And if not, then why are they doing it?

With the possible exception of Defense Secretary Donald Rumsfield, Ashcroft would seem the least likely member of President Bush's cabinet to fall victim to what's known in Washington as "agency capture." That's when an outsider is appointed to run an agency, but the career employees there take advantage of their superior knowledge of its inner workings to run the place as they please without regard to his wishes or the wishes of the president he serves.

The purpose of having a president appoint the members of his cabinet is to enable him to put people who share their vision into these jobs. People are policy-a principle, by the way, we defended even when it was the Republicans who wanted to deny President Clinton his fair share of political appointees. The whole principle is thwarted if cabinet officials allow agency employees to do as they please.

If Attorney General Ashcroft isn't going to supervise his employees, he can expect them to meander from his priorities even more. If he's changed his mind about tobacco suits, he needs to say so. If he hasn't, which I suspect to be the case, he needs to order these suits dropped and these attorneys to turn their attention elsewhere. May I suggest the "over-arching priority" of fighting terrorism?


-Edwin Feulner is the president of The Heritage Foundation, a Washington-based public policy research institute.

About the Author

Edwin J. Feulner, Ph.D. Founder, Chairman of the Asian Studies Center, and Chung Ju-yung Fellow
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