Attorney General John Ashcroft recently went to Congress to herald another record year of fighting terrorism, showcasing numbers showing 310 defendants charged as evidence that “the Patriot Act is al-Qaida’s worst nightmare.”

Few would argue about the nightmare part, but it is hard to see al-Qaida losing much sleep: To a large degree, Ashcroft has used antiterrorism laws against citizens with no ties to al-Qaida or even terrorism.

With many in Congress opposed to renewing parts of the USA Patriot Act, the 29-page report by Ashcroft attempts to show “a mountain of evidence that the Patriot Act continues to save lives,” but it omits critical facts that seriously undermine that claim. In fact, the report is part of an annual effort by Ashcroft to prod local prosecutors to bolster their terrorism numbers – often by using terrorism laws against conventional criminals and a curious hodgepodge of nuns, protesters and artists.

During the Vietnam War, the U.S. military was heavily criticized for its obsession with body counts as a misleading measure of the progress of a war and, worse still, an inducement to use lethal force to get the numbers up. Despite these hard lessons, a similar body count culture has taken hold under Ashcroft at the Justice Department, where prosecutors are being pressured to rack up national security indictments for annual reports showing success in the war on terrorism.

As in the Vietnam War, the Ashcroft body count policy has produced an indiscriminate targeting of anyone who can be remotely classified as a terrorist or national security threat. Where soldiers would sometimes shoot water buffalo and civilians in rice paddies for body count reports, prosecutors are pursuing artists, protesters and academics.

Prosecutors are faced with an undefined quota system – an expectation that each district will contribute cases to show, as suggested by Ashcroft, a nation rife with terrorism threats. For example, in New Jersey, prosecutors had only two cases to offer to Ashcroft in their annual body count, so they included 65 Middle Eastern men prosecuted for lying on visa applications as terrorism cases.

Using new antiterror laws and resources after Sept. 11, state prosecutors have followed Ashcroft’s lead and brought terrorism charges against such felons as a New York street gang accused of ‘‘terrorizing” a park by their presence.

The most bizarre example was Ashcroft’s prosecution of the organization Greenpeace under a 19th century law designed to punish “sailor-mongers,” the luring of sailors from their ships with women and spirits. Ashcroft wanted Greenpeace criminally convicted for boarding a ship allegedly carrying illegal mahogany. The Justice Department insisted that this was a national security case protecting our ports, but a federal judge dismissed it.

The most recent “terrorism case” speaks volumes about Ashcroft’s campaign. The crime? Using a common bacteria as part of an artistic exhibit protesting bioresearch.

A Buffalo, N.Y., group of performance artists called the Critical Art Ensemble, or CAE, does art pieces for the Internet and museums highlighting the dangers of biotechnology and genetic engineering.

The case began when CAE’s co-founder, Steven Kurtz, called 911 after his wife collapsed. When the authorities arrived, however, they quickly pushed beyond Kurtz’s wife (who died of a heart attack) and focused on equipment and books in the house that appeared to deal with biotechnology. The FBI was called in, and agents quickly confiscated everything in Kurtz’s house, from his wife’s body to term papers of his college students.

College professor Robert Ferrell was indicted for simply ordering the organisms for Kurtz.

While the case was billed as a bioterrorism investigation, the Justice Department was ridiculed by experts, given the low danger of the organisms. Unable to prove its case, the Justice Department has indicted the men on wire and mail fraud charges in an effort to secure a conviction.

Not all of these cases have resulted in failure. In one case, Ashcroft secured the curious victory of convicting three nuns who staged a protest by writing on the cap of a nuclear silo and praying until they were arrested. They were sent to prison for years and added to the pile of “national security threats” brought to justice under Ashcroft.

Ironically, the problem may not be Ashcroft’s use of arbitrary indictments but that he is not nearly arbitrary enough. At the moment, the Justice Department seems to naturally gravitate to political critics, protesters and Muslims as the usual suspects for its body counts.

While they all may be certifiably suspect in Ashcroft’s America, they seem more of an indictment than evidence of Ashcroft’s vaulted campaign on terror.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University Law School. Distributed by the Los Angeles Times-Washington Post News Service

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