Although Senate hearings have not yet been held on Cox’s nomination, corporations are already anticipating the changes he would be likely to make in their favor, considering his pro-corporate stance in the past. Corporate lobbyists are “almost giddy at the prospect of Cox” being put in charge of market regulation as SEC chairman, Business Week recently reported. If confirmed, Cox would be in a position not only to dial back enforcement of investor-friendly laws like the Sarbanes-Oxley Act of 2002 but also put the brakes on initiatives set into motion by former SEC chairman William Donaldson (who stepped down June 30), such as requiring corporations to treat stock options as an expense and mutual fund companies to have independent board members.

Co-sponsored by Cox and Sen. Chris Dodd, D-Conn., the Private Securities Litigation Reform Act was a central plank of the Republicans’ “Contract With America,” and was ostensibly aimed at discouraging frivolous lawsuits by investors. But the law provides considerable legal protections for corporate executives — and, just as important, their accountants and lawyers — who mislead investors. For example, the law provides a “safe harbor” for executives who make inaccurate “forward-looking statements” about their company’s future prospects. Securities lawyers refer to this provision as “the license to lie.”

Under the PSLRA (which became law over President Clinton’s veto), before a court can even accept a corporate fraud case, investors must prove there is a “strong inference” that the corporate defendant acted with the specific intent to “deceive, manipulate or defraud.” This is a very tough standard to meet. The 7th Circuit Court of Appeals, interpreting the PSLRA, dismissed fraud cases against corporate executives who said they simply forgot to disclose damaging information to investors. (Cox favored an even more severe version of the law that would have shielded corporations from lawsuits in nearly every circumstance.)

But describing Cox as a principal author of the bill doesn’t do justice to his significant role in its enactment. Cox was a PSLRA evangelist, and he sought to demonize his opposition. During a congressional hearing on the bill on Jan. 19, 1995, Cox described lawsuits by investors for securities fraud as “a scandal of corruption on a scale Congress hasn’t witnessed since the days of Eliot Ness and Al Capone.” These lawsuits, in Cox’s view, were nothing more than an “extortion racket.”

One of the witnesses at the hearing, echoing Cox’s theme, claimed he was “intimidated and threatened” by Rep. Ed Markey, D-Mass., and securities lawyer Bill Lerach (who also testified) for agreeing to appear at the hearing. The witness, AES Corp. president Dennis Bakke, later admitted under questioning by former Rep. Jack Fields, R-Texas, that no one had threatened him; he apologized and said he was referring to advisors who warned him about retribution. Cox was undeterred. When it was his turn to question Bakke, he said, “You pass on to those advisors, whoever they were, that they weren’t altogether wrong.”

Lerach, whom Cox described as earning his living through “legalized extortion,” turned out to be particularly prescient about the impact of the law. In his opening statement at the hearing, Lerach said that if the PSLRA was enacted, “in 10 or 15 years you will be holding another hearing with the debacle in the securities market that will make you remember the [savings and loan] mess with fondness — because the fraudsters and the dishonest people are there, and if the prohibitions against fraud are removed, they will come forward [and] they will become more active.”

As it turns out, Lerach was overly optimistic. Corporate fraud began to wreak havoc on the nation’s economy just five years later, not only at WorldCom and Enron but at Cendant, Sunbeam, Livent, Waste Management and Rite Aid, among others. Congress held hearings to find out what had gone wrong. In December 2001, testifying before the Senate about the Enron bankruptcy, Columbia University law professor John Coffee Jr., a noted expert in securities law, cited four separate provisions of the PSLRA as contributing factors in the epidemic.

Cox, for his part, has never wavered from his pro-corporate stance. In response to criticism that the PSLRA would help Enron executives defend themselves, he told the National Review Online in February 2002 that the law “is a very healthy and happy thing amidst this veil [sic] of tears.” He has also clumsily attempted to argue that the PSLRA has actually protected investors. For example, in 2002 Cox said the law “requires a company and its officers to constantly update and correct any forward-looking statement once made.” But according to the official Congressional Research Service summary, the law “states that there is no duty upon any person to update a forward-looking statement.”

Cox’s evangelism about the law isn’t terribly surprising. He has admitted that his approach to securities law is intensely personal. For much of the time that he was pushing the PSLRA through Congress, he was being sued for securities fraud. Cox conceded to the New York Times in 1995 that being the target of securities fraud litigation had caused him to “sympathize with people who are victimized in these suits.”

Cox’s trouble started while he was practicing as an attorney for the firm of Latham & Watkins in the mid-’80s. In 1985, Cox wrote a letter on behalf of a client, First Pension Corp., to California securities regulators, assuring them that a new investment scheme dreamed up by First Pension CEO William Cooper was “low risk” and designed to be “fair, just and equitable” to investors. (Cox left out of the letter that Cooper was then under investigation by the SEC and had had his real-estate license suspended in connection with fraud at another company.) In fact, the investment Cox touted was a scam that defrauded small investors out of $130 million. Los Angeles Times columnist Michael Hiltzik described it as “one of the most flagrant con schemes in Orange County history.”

Just one week before the PSLRA bill was introduced, attorneys representing First Pension investors were threatening to add Cox as a defendant in their suit. The Associated Press noted that although the PSLRA would not directly affect the First Pension case because it was filed in state court, “it could affect future legal actions brought in federal court against him or his former law firm, Latham & Watkins.” But despite the apparent conflict of interest, Cox continued advocating for the bill, even after he was formally added as a defendant.

Spokespersons for Cox are quick to point out that Cox was eventually dropped as a defendant. But according to Michael Aguirre, who represented several hundred First Pension investors in the case, Latham & Watkins bailed out Cox. Aguirre, who is now San Diego’s city attorney, told the Los Angeles Times “that in return for dropping Cox from the case he secured an agreement that Cox’s actions could be imputed to Latham [& Watkins] in assessing its legal liability.” Aguirre eventually reached a settlement with Latham & Watkins; the terms are secret. Cooper and a couple of his associates went to prison.

In 2002, after the economy was shaken by a wave of corporate fraud, Congress reversed the deregulatory path favored by Cox and passed the Sarbanes-Oxley Act, which was designed to keep corporate fraud in check, just as investor lawsuits had done before the PSLRA became law. The new law provided more accountability for corporate executives, more disclosure of financial information and more independence for corporate auditors. But the business community was highly critical of how SEC chairman Donaldson implemented the law. U.S. Chamber of Commerce president William Donahue described Sarbanes-Oxley as a “runaway system of corporate destruction being run by … the people who work at the SEC.” Corporations are now counting on Cox to turn back the clock at the SEC.

Hearings on Cox’s nomination are expected to occur sometime before Congress’ August recess. Thus far, with Congress preoccupied with Supreme Court retirements, John Bolton and whether Karl Rove will be criminally indicted, there has been little vocal opposition to Cox among elected officials. (One of the Senate’s most liberal members, California Democrat Barbara Boxer, has indicated she will introduce Cox at his Senate banking committee hearing as a show of support.) But should the Senate banking committee conduct an aggressive investigation of Cox — perhaps subpoenaing William Cooper and the confidential settlement with Latham & Watkins — his nomination could grow contentious quickly.

Yet the evidence in the report, mandated by the International Religious Freedom Act of 1998, was not quite persuasive enough for the Bush administration. For the past several years, the State Department has ignored the recommendation of the U.S. Commission on International Religious Freedom — an independent body created by the IRFA — to list Saudi Arabia as a country of “particular concern for religious freedom.”

Saudi Arabia isn’t the only country whose crackdown on religious expression is ignored by the administration. The State Department also turned a blind eye to its own findings on Pakistan, Eritrea and Turkmenistan and failed to list them as countries of “particular concern.”

The requirement that the president (via the secretary of state) designate countries that “engage in or tolerate violations” of religious freedom as being of “particular concern” is one of the most significant provisions of the IRFA. Rabbi David Saperstein, the first chairman of the Commission on International Religious Freedom, explained that this process is important because countries “often try to accommodate U.S. concerns to avoid [that] designation.” As a result, a number of countries have made changes “that made life noticeably better” for individuals who had been mistreated because of their religion.

The law requires the president to make this designation each year by Sept 1. But the Bush administration’s last designation was in March 2003 — more than 16 months ago. Saperstein says the administration’s failure to comply with the timetable of the law “undermines the consistency of diplomatic efforts across the globe and eases the pressure” on countries that persecute people on the basis of religion.

The IRFA is the fulfillment of America’s obligation under the Universal Declaration of Human Rights, a document adopted by U.N. General Assembly in 1948 to protect “the equal and inalienable rights of all members of the human family.” Every signatory is obliged to do what it can to make sure that the principles expressed in the declaration are respected, including the affirmation that “everyone has the right to freedom of thought, conscience and religion” (from Article 18). The 1998 act was an aggressive effort to ensure that the United States fulfills its part of the bargain with respect to religious freedom. The bill passed Congress unanimously and was championed by the religious conservatives whom Bush considers the core of his political base. Although the act requires the executive branch to take significant and specific steps to promote international religious freedom, the Bush administration, in contradiction to its public statements, has failed to comply with the letter or the spirit of the law.

The administration touts international religious freedom as a priority of its foreign policy agenda. Page 3 of the president’s June 2002 National Security Strategy describes religious tolerance as one of the “nonnegotiable demands of human dignity.” Deputy Secretary of State Richard Armitage recently called religious freedom “a central tenet of United States foreign policy.” Bush himself, in a May 2001 speech to the American Jewish Committee, said with uncharacteristic eloquence, “It is not an accident that freedom of religion is one of the central freedoms in our Bill of Rights. It is the first freedom of the human soul — the right to speak the words that God places in our mouths. We must stand for that freedom in our country. We must speak for that freedom in the world.”

The State Department explained in February that promoting international religious freedom has a renewed importance since 9/11 because it “reinforces the development and strength of civil societies, and it dampens the appeal of religious extremism and religion-based violence.”

Saudi Arabia, as a nation known to have provided recruits and funding for the 9/11 terrorist attacks, ought to be the prime target of such a policy. In May, the annual report of the U.S. Commission on International Religious Freedom revealed: “There are numerous serious reports, which warrant official U.S. government investigation, that Saudis are funding efforts to propagate globally a religious ideology that promotes hate, intolerance, and other human rights violations toward non-Muslims and disfavored Muslims.” Michael Young, current chairman of the commission, said the State Department’s repeated refusal to list Saudi Arabia, Eritrea, India and Pakistan as countries of concern was “wrong” and not “in the interest of the people in those countries … [or] the global community.”

What’s more, the administration has failed to take actions authorized by law to improve the conditions of religiously persecuted people in the countries that were designated as being of “particular concern” in March 2003: Burma, China, Iran, Iraq, North Korea and Sudan. The IRFA requires the administration to impose one or more of 15 specified penalties on designated countries. The penalties range from an official condemnation to the suspension of security assistance to economic sanctions. Instead, for each of these countries, the administration has invoked a provision in the law that allows the president to waive the requirement if “pre-existing sanctions are adequate.” For example, no additional sanctions were imposed on China because of existing restrictions on U.S. exports of crime control and detection equipment to that country.

The Commission on International Religious Freedom calls the reliance on preexisting sanctions “technically correct under the statute” but “unacceptable as a matter of policy.” “Reliance on pre-existing sanctions,” the commission says, “provides little incentive for [countries] to reduce or end severe violations of religious freedom.” According to the commission, “the failure to take additional action under IRFA suggests that nothing further can, or will, be done by the U.S. government to those countries that are deemed the world’s worst violators of freedom of religion or belief.”

Since 2001, the State Department has also failed to meet the reporting requirements of the IRFA. The law requires the secretary of state to transmit to Congress an annual report by Sept. 1 of each year or the first day after that on which Congress is in session. In 2003, the State Department didn’t complete its report until mid-December, and when the report was finally submitted, it was incomplete. According to the Commission on International Religious Freedom, the State Department “has not made public any actions it has taken” regarding countries that violate religious freedom “despite statutory provisions … that require public dissemination of that information.” The State Department has also “not submitted to the Congress the required evaluation of the effectiveness of prior actions.”

What explains the administration’s failure to take seriously the issue of international religious freedom? Why, after top officials publicly declared it a priority, has the administration failed to meet even the minimum statutory requirements? The extent of its neglect of those requirements suggests that the administration’s failure goes beyond incompetence or carelessness. Clearly, despite repeated public statements to the contrary, the administration does not view international religious freedom as a priority.

Robert Seiple, the first U.S. ambassador-at-large for international religious freedom, attributes the administration’s neglect of the issue to “the limited amount of political oxygen in Washington,” adding that the neglect is “disappointing to those of us who have been working the issue.” It should be disappointing to anyone who values human rights, national security, the rule of law — and religious liberty. For all the White House’s talk about religious freedom and its open appeal to religious constituencies in the election campaign, Bush’s record in this area is stunning for its lack of interest, consistency and results.

1) If counterterrorism was a top priority for the Justice Department prior to 9/11, why did Ashcroft ignore the FBI’s specific request in August 2001 for additional counterterrorism resources?

That month the FBI submitted its internal budget request to the Department of Justice, seeking 248 counterterrorism agents and support staff, 54 translators to review a backlog of foreign language intelligence, and 200 professional intelligence researchers to analyze the intelligence. Yet when Ashcroft submitted his final budget request to the White House on Sept. 10, 2001, 24 hours before the al-Qaida attacks, he did not request funding for any of the FBI’s urgent needs. In fact, Ashcroft proposed cuts in counterterrorism efforts, including a $65 million reduction for counterterrorism equipment grants, a $20 million reduction for border control, and a $1.4 million reduction for the National Domestic Preparedness Office. Of the 68 programs where Ashcroft proposed increases, not a single one involved counterterrorism. In Attorney General Janet Reno’s budget for 2000, counterterrorism was her first priority. What was Ashcroft’s thinking that led him to remove it as a priority and to propose extensive cuts?

2) Why wasn’t counterterrorism one of the seven strategic goals Ashcroft outlined in a May 2001 memo to his division heads?

In that memo, he outlined his major goals for the upcoming budget year. Among his priorities: reducing gun violence, protecting the rights of crime victims, and strengthening internal Justice Department financial systems. Counterterrorism was not mentioned. By contrast, Attorney General Janet Reno’s budget guidance of April 2000 listed counterterrorism as the area where “up-to-date human and technological infrastructure” was critical.

By August 2001, Ashcroft had created a “strategic plan” document to spotlight his priorities. Out of 36 “objectives” Ashcroft highlighted 13 in yellow. The document explained “Highlight=AG Goal.” Although objective 1.3 was “combat terrorist activities,” it was not highlighted. Tellingly, in November 2001, Ashcroft released a revised strategic plan that contained the same seven strategic goals as the original and one addition. Now his No. 1 goal: “Protect America Against the Threat of Terrorism.” But who had neglected it before 9/11?

3) Between Jan. 20 and Sept. 11, 2001, were the FBI field offices instructed to increase surveillance of known suspected terrorists? If so, why hasn’t Ashcroft been able to provide any evidence to the commission proving it?

In her public testimony, Condoleezza Rice said, “The FBI tasked all 56 of its U.S. field offices to increase surveillance of known suspected terrorists and to reach out to known informants who might have information on terrorist activities.” But commissioner Jamie Gorelick rejected Rice’s claim as not factual, saying, “We have no record of that. The Washington field office international terrorism people say they never heard about the threat, they never heard about the warnings … special agents in charge around the country, Miami in particular, no knowledge of this.” According to a Newsweek report, Ashcroft rebuffed specific requests by the FBI to discuss counterterrorism with special agents in charge. At a spring 2001 meeting with special agents in charge in Quantico, Va., Ashcroft told then FBI director Louis Freeh that his priorities were “violent crime and drugs,” and when Freeh said that those were not his priorities and began discussing counterterrorism, “Ashcroft didn’t want to hear about it.” This confrontation may be particularly significant in light of commissioner Tim Roemer’s comments during Rice’s public testimony: “The FBI is the key here. Nothing went down the chain to the FBI field offices.” Can Ashcroft recount his conversations and meetings with FBI officials about counterterrorism?

4) After 9/11, why did Ashcroft slash almost $1 billion from an emergency FBI request to bolster counterterrorism efforts?

Immediately after 9/11 the FBI made a $1.5 billion request for emergency resources to combat terrorism. But Ashcroft refused to provide two-thirds of these resources. Roughly $1 billion in funding was denied for items such as security improvements, communications equipment and technical support. Why? Where did the money go instead?

5) Beginning in the summer of 2001, Ashcroft stopped flying commercial airlines and traveled exclusively by private jet because of an FBI “threat assessment.” What, exactly, did the threat assessment say? Why is the threat assessment still being withheld from the public?

In July 2001, CBS News revealed that Ashcroft, on the advice of the FBI, “was traveling exclusively by leased jet aircraft instead of commercial airlines.” At the time, the FBI refused to identify “what the threat was, when it was detected or who made it.” Eight months after 9/11, in an attempt to deflect criticism, Ashcroft said his decision to stop flying commercial airlines was “because of personal threats on his life, not out of fears about terrorist hijackings.” When Ashcroft was asked by a reporter to explain further he “walked from the room without comment.” Curiously, when Ashcroft’s behavior was initially reported, a top official at the CIA said “he was unaware of specific threats against any Cabinet member.” Whatever the rationale, Ashcroft’s use of private jets cost taxpayers more than $1,600 an hour. Was he aware of threat warnings? Will he now urge their immediate declassification?

6) Does Ashcroft regret the treatment of the 762 innocent foreign men detained by the federal government in the U.S. for months after 9/11? Does Ashcroft think those men — many of whom were subject to verbal and physical abuse and had their due process rights violated — deserve an apology?

A report released in December by Department of Justice inspector general Glenn Fine found “foreign nationals held at a New York detention facility after the Sept. 11, 2001, attacks were victims of physical and verbal abuse by guards.” Officers at the facility “slammed and bounced detainees against the wall, twisted their arms and hands in painful ways, stepped on their leg restraint chains and punished them by keeping them restrained for long periods of time.” A T-shirt with the detention center’s slogan, covered in blood stains, “including those that appeared to have come from detainees being slammed into the wall,” hung in the receiving area for prisoners for months. An earlier report, released by Fine in June, documented how hundreds of detainees’ due process rights were violated by federal officials who imprisoned them without charges or evidence. Of the 762 individuals who were the subject of Fine’s review “none was ever charged with terrorism-related crimes.” Nevertheless, when questioned about the situation before Congress last June, John Ashcroft said he had “no apologies,” adding, “We must be vigilant.” What message does Ashcroft believe he is sending to the world about the protection of legal rights and civil liberties that are at the heart of the American example?

7) In October 2001, Ashcroft appeared with President Bush at a press conference to unveil a list of 22 “most wanted terrorists.” Thirty months later at least 20 of those individuals are still at large. Why is the war on terrorism lagging?

On Oct. 10, 2001, Ashcroft, President Bush and FBI director Robert Mueller appeared at FBI headquarters to announce the creation of the Most Wanted Terrorists list. Bush called the 22 individuals placed on the list “the most dangerous [terrorists] — the leaders and key supporters, the planners and strategists.” Bush added, “They must be found. They will be stopped, and they will be punished.” But only one person on the list — Khalid Shaikh Mohammed — has been captured. (One other individual on the list, Muhammed Atef, may be dead). Yet despite capturing or killing fewer than 5 percent of the individuals who, by their own admission, are the world’s most dangerous terrorists, Ashcroft continues to repeatedly tout the success of his counterterrorism efforts against al-Qaida. In a speech in October 2003, Ashcroft bragged that “two-thirds of al-Qaida’s leadership worldwide is either in custody or dead.” It seems that, when success proves elusive, Ashcroft simply changes the definition of success. Were resources moved from the war on terrorism to the war in Iraq? Would additional resources assist in the capture of the terrorists on the Most Wanted list?

Why, in the days after 9/11, did Ashcroft, along with White House and State Department officials, allow two dozen members of the bin Laden and Saudi royal families to circumvent FAA restrictions forbidding flights and leave the country without full FBI questioning?

Immediately after the 9/11 attacks all domestic aircraft were grounded. While some commercial flights slowly resumed, private aviation was completely prohibited for weeks. Despite the fact that 14 of the 19 hijackers were Saudis, Craig Unger’s new book, “House of Bush, House of Saud,” reveals that numerous Saudi citizens — including two dozen members of the bin Laden family — were permitted to violate the ban so they could quickly return to Saudi Arabia. Not one of the bin Ladens was questioned by the FBI or the Justice Department before departing, even though many had direct ties to Osama bin Laden and might have provided valuable information about Osama’s finances, associates and supporters. U.S. officials later learned from a captured al-Qaida operative that one of the men permitted to leave without questioning, Saudi Prince Ahmed, “knew beforehand that an attack was scheduled for American soil” on 9/11. On Sept. 19, 2001, as Saudis with close associations to Osama bin Laden were permitted to freely leave the country, Ashcroft said he had “a responsibility to use every legal means at our disposal to prevent further terrorist activity by taking people into custody who have violated the law and who may pose a threat to America.” But instead of focusing on the Saudis who likely had valuable information, Ashcroft launched a dragnet that avoided Saudis. Why?

9) Condoleezza Rice testified that, during the summer of 2001, “there were 70 full field investigations underway of [al-Qaida] cells.” Why didn’t Ashcroft demand that the national security advisor organize daily meetings at the White House of the highest officials with national security responsibility, including himself, to force information from the bureaucracy to the top and locate the terrorist threat? Why did Ashcroft not raise the subject of those field investigations at the one principals meeting of national security officials that discussed terrorism (specifically, the Predator drone aircraft) before 9/11?

Rice has insisted that principals meetings on the al-Qaida threat were unnecessary. She testified that she did not believe “bringing the principals over to the White House every day … was a good way to go about this. It wasn’t an efficient way to go about it.” Yet the only knowledge she had of the 70 investigations into al-Qaida cells operating in the United States was from the still classified Aug. 6 President’s Daily Brief. That memo was not enough to induce Rice to act. She testified that reading there were 70 investigations into al-Qaida cells operating domestically, at a time al-Qaida had publicly declared war on America, suggested to her that she did not need to do more. She explained that the Aug. 6 PDB contained “no recommendation that we do something about this.” In contrast, during the Clinton administration, frequent high-level meetings conducted by then National Security Advisor Samuel Berger in 1999, spurred action that disrupted the al-Qaida Millennium plots. Will Ashcroft produce and declassify the memos on these 70 investigations? Detail any discussion he ever had with Rice or President Bush about the investigations? If not, why not?

10) If there were structural impediments to information sharing among federal agencies prior to 9/11, why did you testify under oath before the Congress in May 2001 that the National Security Council was a “highly effective instrument” in coordinating federal agencies dealing with counterterrorism?

The Bush administration has repeatedly attempted to deflect responsibility for the intelligence failures prior to 9/11 by claiming that structural impediments to information sharing among agencies precluded effective counterterrorism efforts. Condoleezza Rice testified, “If anything might have helped stop 9/11 it would have been better information about threats inside the United States … [but] structural and legal impediments … prevented the collection and sharing of information by our law enforcement and intelligence agencies. So the attacks came.” But Ashcroft told the Congress in May 2001 that the National Security Council was “a highly effective instrument in facilitating coordination among the pertinent federal agencies with counterterrorism responsibilities.” Why did the Justice Department and the NSC fail to coordinate federal agencies with counterterrorism responsibilities prior to 9/11?

Attorney General Ashcroft, what is your responsibility — and the responsibility of National Security Advisor Condoleezza Rice and President Bush — for this failure?