Wall Street Journal Law’s Blog

Sep. 15, 2008

By Ashby Jones

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It’s not often that an assistant U.S. Attorney gets singled out and criticized by name (far more frequent, it seems, are attacks on an entire U.S. Attorney’s office or the Justice Department itself.) But the Washington Post over the weekend spilled a lot of ink over a controversy involving Gordon Kromberg, an assistant U.S. attorney for the Eastern District of Virginia.

According to the story, Kromberg has taken a lot of heat recently for comments made and tactics taken in terrorism prosecutions. The story’s lead:

When Sami al-Arian, one of the nation’s most prominent terrorism defendants, was about to be released into his daughter’s custody to await a new trial on contempt charges, Kromberg protested, saying that “in this particular culture,” a woman could not prevent her father from fleeing. Federal judge Leonie M. Brinkema lashed out at the prosecutor, calling his remark insulting. Earlier, she had chastised Kromberg for changing a boilerplate immunity order beyond the language spelled out by Congress and questioned whether Arian’s constitutional rights had been violated.

“I’m not in any respect attributing evil motives or anything clandestine to you, but I think it’s real scary and not wise for a prosecutor to provide an order to the Court that does not track the explicit language of the statutes, especially this particular statute,” Brinkema said at the hearing in the Alexandria courtroom.

Through a spokesman, Kromberg declined to comment to the WaPo. But according to the story, Kromberg’s critics say he has joked about torture, improperly confronted another suspect in public and has lamented “the Islamization of the American justice system.”

Kromberg’s defenders call his style “tough but fair.” “Gordon is very effective and professional,” said Andrew McCarthy, a former federal terrorism prosecutor. “As long as nothing goes boom, they want to say you’re an Islamophobe. The moment something does go boom, if the next 9/11 happens, God help anyone who says they weren’t as aggressive as Gordon.”

Defense lawyers and legal ethicists argue that Kromberg’s comments and actions, if true, have crossed the line. “He’s a loose cannon,” said Stephen Gillers, an expert in legal ethics at New York University Law School who reviewed court documents in the Arian case. “If I were the Justice Department, I wouldn’t want him on the front lines of these highly visible, highly contentious prosecutions.”