John Ashcroft's Close Call

[October 22nd, 2003] John Ashcroft dodged a bullet in Portland last week.

On Thursday, the U.S. attorney general held a press conference announcing that Jeffrey Leon Battle and native Portlander Patrice Lumumba Ford had pleaded guilty to conspiring to levy war against the United States.

The two were part of a group that attempted to travel to Afghanistan in October 2001 to defend fellow Muslims against invading American troops.

The timing of the deal was no coincidence. That morning, Judge Robert E. Jones was scheduled to hear a defense request to throw out email and wiretap evidence gathered under the U.S.A. Patriot Act, the post-9/11 anti-terrorism law, calling it unconstitutional.

Prosecutors had issued an ultimatum to Ford and Battle: If they did not accept the offer of a lighter sentence before the hearing, the deal would evaporate--meaning the two faced life behind bars.

With four co-defendants already working with prosecutors, Battle and Ford would have found it nearly impossible to avoid a guilty verdict, even without the challenged evidence.

But a ruling against the government by Jones, if upheld on appeal, could have knocked out a key provision of the Patriot Act that expanded the feds' ability to snoop on suspected terrorists and foreign spies. Lawyers say the Portland Seven--American citizens who weren't accused of terrorism--seemed perfect for that challenge.

Barry Sheldahl, Oregon's First Assistant U.S. Attorney, conceded that the "motive" for the plea-offer deadline was to avoid the "uncertainty" created by the defense motions--which he characterized as "difficult."

Jones' trademark independence also must have been cause for concern. Last year, the Republican judge seemed to take pleasure in blocking the Bush administration's attempt to outlaw Oregon's voter-approved assisted-suicide law.

"Our belief was that if there's any judge in the country who would [rule against Ashcroft] it would be Judge Jones," says Jack Ransom, who represented a co-defendant of Ford and Battle.

Two months ago, Jones seemed to have reached his limit with the secrecy mandated by the Patriot Act in the Portland Seven case. In August, for an earlier motion, the prosecution attempted to submit sealed evidence. But Jones ordered prosecutors to remove the secret parts and make the rest public. Then he ruled solely on the basis of the public information.

"He made it real clear that he did not like conducting hearings in secret," says Ford's co-counsel, Marc Sussman.

Jones was poised to rule on the Patriot Act challenge even as Ashcroft tours the country to defend the law against increasing criticism in Congress from both Democrats and Republicans. Ashcroft tried to use last week's news to make his case, saying "the plea agreements in the Portland case would have been more difficult to achieve, were it not for the legal tools provided by the U.S.A. Patriot Act."

Ashcroft's claim, however, "is just factually incorrect," says Battle's attorney, Kristen Winemiller. She says the bulk of the evidence against Battle and Ford was gathered using old-fashioned, "tried and true" law-enforcement techniques.

"The allegation that the Patriot Act made this case," says Ransom, "is completely bogus."