http://www.alternet.org/story.html?StoryID=10358
Did Ashcroft "Look the Other Way" as Missouri Governor?
Daniel Forbes, Progressive Review
January 19, 2001
John Ashcroft drapes himself in the mantle of "integrity." He used the word
in reference to himself several times during his introduction by
President-elect Bush as the Attorney General nominee. The repeated
characterization fuels the oft-proclaimed notion that Sen. Ashcroft is a man
of such moral rectitude that the nation can count on him to fully enforce all
laws -- no matter his personal views. During the first day of his Senate
confirmation hearings, Sen. Ashcroft declared, raising his right hand for
emphasis, that, "When I swear to uphold the law, I will keep my oath, so help
me God." Yet, during Sen. Ashcroft's tenure as governor of Missouri, he
blithely told two senior law enforcement officials he would ignore a serious
matter of law, according to Don Burger, then an official with the US
Department of Justice. Says Burger, two law enforcement officials said Gov.
Ashcroft had told them he would "look the other way" should the police ignore
a ruling about to emerge from the Missouri Supreme Court. The ruling,
ultimately issued in November 1990, mid-way through Sen. Ashcroft's second
term as governor, concerned a case brought by a local school board that
argued that Missouri law enforcement must follow the state constitution and
turn proceeds from asset forfeiture cases over to education rather than keep
the money for themselves. Millions of dollars were at stake, money Missouri
law enforcement agencies had used for years to buy everything from computers
to radio systems to cars and guns. Now, with a ruling expected shortly, the
cops were nervous that their well might run dry. But, according to Burger's
recollection of statements by the two top cops, who spoke independently at
different times during the meeting, police -- especially the highway patrol
that reports to the governor's office -- need not fear interference from the
same cabinet nominee who now pledges to rigorously and impartially enforce
the nation's laws. Hosted by US Attorney Bradshaw, the meeting was attended
by members of what was known informally as the Law Enforcement Coordinating
Committee, says Burger. Among the items on the agenda was a discussion of the
"problem of state law," he says -- that is, the provision in Article IX,
Section 7 of Missouri's constitution that requires "the clear proceeds of all
penalties, forfeitures and fines collected hereafter for any breach of the
penal laws of the state ... shall be distributed annually to the schools of
the several counties according to law." Referring to the sheriff and the
police chief, Burger told the Review, "Both men stated at different times
during the meeting that -- based on their conversations with Governor
Ashcroft -- the governor said he would 'look the other way' specifically
regarding the [Missouri] Supreme Court's ruling and asset seizures going to
education. That was the terminology used by both persons." Burger adds that
he remembers both individuals using the specific "look the other way"
terminology because, "It struck me as an unusual reference regarding the
applicability of funds to be set aside for education." In fact, says Burger,
the remarks were salient enough, that he later jotted down the Ashcroft quote
in the margins of a Dept. of Justice report he was reading. The governor's
statement, in Burger's opinion, indicated that Missouri law enforcement
agencies would continue, despite any state supreme court ruling, to "use
asset forfeiture to divert money to sheriff and police department projects."
Bradshaw, now in private practice in Kansas City, recalls no such statements
by any police officials at any meeting he attended. Mindy Tucker, a
spokesperson for the Bush/Cheney transition team said that ignoring a court
ruling "is not a position ever held by Gov. Ashcroft." She based her
statement, she said, on conversations with "people familiar with his
positions on this." But, consider the disclosure last May by Karen Dillon,
who's written an award-winning two-year series in the Kansas City Star on
asset forfeiture issues: "In 1990, just a few days after the Missouri Supreme
Court ruled that state forfeitures had to go to education in most cases, the
US attorney for the Western District of Missouri wrote a letter to state and
local law enforcement agencies. 'I know that all of you in law enforcement
are in desperate need for additional financial resources,' wrote Jean Paul
Bradshaw. He explained that police could bring seizures to a federal agency
even if the agency had no involvement in the case. 'As most of you know, the
money we share through our forfeiture program goes [directly] to the state or
local law enforecment agency,' he wrote." The fruits of Ashcroft's alleged
winking and Bradshaw's exhortation were harvested richly. There have been
subsequent attempts in 1992, 1993, and last year in the Missouri legislature
to strengthen the law that forfeited assets be conveyed to education. Another
attempt will be made in the upcoming session. A report by the staff of the US
Senate Judiciary Committee; a 1998 federal district court case and Dillon's
massive and continuing series in the Kansas City Star also suggest an end-run
around the state constitutional requirements. City Councilman and Mayor Pro
Tem of Kansas City, Alvin Brooks, is a former police detective and a charter
board member of the Community Anti-Drug Coalitions of America. He was also
one of President Bush's "Thousand Points of Light," and, according to his
bio, was recognized by William Bennett as "a front-line soldier in our war
against drugs." Back in 1990 he was running the Ad Hoc Group Against Crime in
Kansas City, which fought crime and drug abuse. During that time Brooks says
he had many conversations with Don Burger, representing the Dept of Justice,
about the mechanics of asset forfeiture and how to steer some of those funds
to local drug treatment programs. He said his discussions with Burger focused
on "how could we get law enforcement to bring some money back to the
neighborhoods where the forfeitures were taking place." He adds, "Don did
research on this and said here's what community groups should do to try to
get some of this money." Told of Burger's allegations, Kevin Zeese, executive
director of the Common Sense for Drug Policy Legislative Group opposing the
Ashcroft nomination, says "Ashcroft told people to go ahead, to federalize
it, I'll look the other way. That's an affirmative action, but one he tried
to keep his fingerprints off." Hilary Shelton, director of the NAACP
Washington Bureau, says that senators he has spoken to, including Russ
Feingold (D-WI), report that Sen. Ashcroft has told his former Senate
colleagues that he'll vigorously enforce the law without exception. But
Shelton maintains that, "If indeed these allegations are true, it raises
major, fundamental concerns about Mr. Ashcroft's ethical ability to serve as
attorney general. It begs the question of how he will enforce laws that he
doesn't agree with." The concept by which state and local law enforcement
agencies still circumvent the Missouri Constitution is known as "adoptive
forfeiture." Basically, the cops call in federal agents, typically DEA
agents, and have them "adopt" the case. Stopping a car on Interstate 70, for
instance, and finding drugs and a quantity of cash, the Missouri Highway
Patrol declares that it has detained the assets (often including the car
itself), but has not "seized" them. It leaves that to the DEA. Then,
according to federal guidelines, the feds keep 20% of the proceeds and, in
effect, launder the remainder back to the local authorities; often, several
jurisdictions will slice up the pie. Everyone but school kids is happy.
Quoting the Kansas City Star, the Senate Judiciary Committee report quotes
one officer as saying, "We don't deal in state forfeitures at all, because
law enforcement doesn't derive any revenues from that." Evidence that the
tactic continues is found in a concurring opinion issued by a federal judge
in the Eight Circuit in 1998, who found that the Missouri Highway Patrol and
the DEA "successfully conspired to violate the Missouri Constitution." James
D. Worthington, a partner in the Lexington, MO, law firm of Aull, Sherman,
Worthington, Giorza and Hamilton, represented the local school board in the
1990 case. He says the case was prompted by press reports of three separate
forfeitures of approximately $1 million each in a particular county, and the
school board in Odessa reasoned that surely they should have received some
funds. After the court ruling, says Worthington, police agencies indicated
they would comply. "But then they proceeded with a sleight of hand, a bait
and switch, a calling the feds down to have the feds 'seize' the money. It's
been nothing but organized blackmail, graft and corruption." Don Burger
joined Justice in 1968, recruited by Ramsey Clark to spend a career working
primarily to foster improved relations among the many different shades of
Americans. He served the final years of a twenty-two year career based in
Kansas City. Retired from federal service, he's now a consultant on civil
rights issues. Atkins Warren is now regional director of the Dept. of Justice
for the states of Missouri, Kansas, Nebraska and Iowa, and he worked with
Burger for many years in Washington. "He was a very good employee," said
Warren. "He did a lot to resolve community conflict." Warren termed Burger
"credible," then added, "He was excellent." US Rep. Jim Clyburn, Democrat of
South Carolina, got to know Burger through their work with the National
Association of Human Rights Workers; Rep. Clyburn is a past president and
Burger served a term as national secretary. (Burger was also president of his
government employees union local.) Rep. Clyburn, who opposes the Ashcroft
nomination, says, "Burger was always a straight shooter with me. I never had
any dealings with him that make me question whether he was a straight shooter
or not." Leonard Zeskind, formerly research director for the anti-Klan,
Atlanta-based Center for Democratic Renewal, worked with Burger combating
hate crimes and white supremacy organizations such as the Covenant Sword and
Arm of the Lord in rural Missouri. Currently writing a book for Farrar,
Strauss, Giroux on white nationalist groups and a former McArthur Foundation
"genius" award winner, Zeskind declares Burger, "a reasonable guy, a nice,
smart guy." In fact, Burger is such a straight arrow, he actually referred a
potential favorable witness on Sen. Ashcroft's behalf to Missouri Senator Kit
Bond. With accusations of racism hounding Sen. Ashcroft, Burger says he
referred an African-American woman to Sen. Bond who was anxious to speak
favorably of her experience at Evangel University in Springfield, MO, the
college run by Ashcroft's father. Marlene Henderson confirms that last
Friday, Burger called both Sen. Bond's Missouri and Washington offices on her
behalf. Burger says he's fairly agnostic on Ashcroft's nomination, but that
he's spent a career trying to develop funding for drug treatment, among other
things, and wants to call attention to where seized assets are still being
directed. New York freelancer Daniel Forbes testified before both the US
Senate and the House of Representatives regarding his series in Salon on sub
rosa White House payments to television networks and magazines rewarding
anti-drug content. A subsequent Salon article detailed the media campaign's
origins as an attempt to influence voters on state medical marijuana
initiatives.
