Text: Ashcroft Comments on Anti-Terror Policy
Tuesday, June 8, 2004; 2:15 PM
U.S. SENATOR ORRIN G. HATCH (R-UT) CHAIRMAN
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR ARLEN SPECTER (R-PA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR LARRY CRAIG (R-ID)
U.S. SENATOR SAXBY CHAMBLISS (R-GA)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)
U.S. SENATOR JOHN EDWARDS (D-NC)
U.S. ATTORNEY GENERAL
HATCH: If we can have order.
I apologize for my laryngitis.
We welcome you, Mr. Attorney General.
Before I make my introductory remarks concerning this hearing, I want to say a few words about former President Ronald Reagan.
He took office during a difficult time in America's history and helped usher in an era of both peace and prosperity, and you really can't do much better than that.
As we face new challenges from terrorists both at home and abroad, we would do well to emulate President Reagan's unfailing qualities of dignity and courtesy, as well as his reliance on traditional American values, including his remarkable ability to communicate a sense of confidence and optimism on the future of our country.
As we work to thwart the new threat posed by terrorists, we must not forget the fact that our nation has a history of defeating determined adversaries through the leadership of men like President Reagan and the perseverance of many citizens and many nations over a sustained period of time.
We prevailed against fascism and communism and have made old enemies into new allies, and it took that type of leadership to do it.
He was one of my closest friends. I think I'm the only person he ever pre-primary endorsed, or at least up to that time. And we were very close.
And so I wish Nancy and the children the very best, and I certainly send all of the sympathy, I'm sure, of all of us to them.
Now, as we work here today, today's oversight hearings will mark the seventh hearing at which our committee will have an opportunity to explore the effectiveness of the preparedness of the federal government to prevent and respond to terrorism on American soil.
Let me welcome our distinguished witness, the 79th attorney general of the United States, and our former colleague on this committee, John Ashcroft.
The attorney general and his colleagues in the law enforcement and intelligence communities face challenging times in defending our country from terrorists. Prosecuting terrorists after they have attacked our civilians does not bring back lost lives to grieving families, and it is certainly an imperfect deterrent as these extremists are often bent on taking their own lives in these suicide missions.
Instead it has been widely acknowledged over the last three years the key is to prevent terrorism before it occurs and, when possible, interdict the terrorists on their home lands before they come to America to carry out their attacks.
And that is exactly what the Department of Justice is doing: taking the battle to the terrorists by using every available tool.
Let me commend you, Mr. Attorney General, for your department's efforts to protect this great nation.
Unfortunately, no one can guarantee 100 percent success in warding off all future terrorist attacks, but we have to do our best to try and do so.
HATCH: The American public appreciates the commitment and energy that the Department of Justice brings to this task each and every day.
In recent weeks, we have been reminded about the dangerous nature of the situation we currently face. The attorney general and the director of the FBI publicly stated that credible intelligence sources or intelligence from multiple sources indicates that Al Qaida plans to attempt an attack on the United States in the next few months.
Another very troubling development involves the terrorist conspiracy revealed by the department's recent response to my April 22nd, 2004, letter requesting information on the detention of enemy combatant and American citizen Jose Padilla.
According to the Department of Defense, we know that Jose Padilla received training in a terrorist camp in Afghanistan, including with an Al Qaida explosives expert.
We are told that he served as an armed guard of what we understood to be a Taliban outpost in Kabul.
There's also reason to believe that Mr. Padilla discussed plans to detonate a dirty bomb or alternatively to blow up multiple apartment buildings using natural gas lines in New York, Washington, D.C., or Florida with high-level Al Qaida operatives, including Khalid Shaikh Mohammed.
As my colleagues may recall, last year U.S. law enforcement and intelligence agents working together with Pakistani intelligence agents captured Khalid Shaikh Mohammed, who is Al Qaida's leading operating planner and organizer. He is believed to be the mastermind behind the September 11th attacks.
But given our democratic society's strong tradition of protecting civil liberties, all of us, especially members of this committee, have an interest in the general procedures and policies, as well as the specific facts and circumstances, under which any American citizen may be designated and detained as an enemy combatant.
Our system of checks and balances is designed to place limits on the powers of each branch of government. But the unabashed and self- proclaimed goal of terrorists to obtain and use weapons of mass destruction against American civilians compels us to rethink the adequacy of our legal structure to prevent further terrorist attacks.
We live in a dangerous world and our commander in chief must have the proper amount of authority to act decisively to protect the public.
I think the information released last week about Mr. Padilla provided useful information to the Congress and the public about the nature of these new terrorist threats.
HATCH: Having said that, I am also mindful that some have raised legitimate questions about a system that, to date, at least, limits the ability of the designated enemy combatants and their legal representatives to develop a defense and get their side of the story out. Nevertheless, I am also concerned that these new terrorists, who do not wear conventional, military uniforms and are unaffiliated with specific nation states and whose ultimate goal is nothing less than to destroy our way of life, would like nothing more than the opportunity to use all of our traditional due process protections to drag out the proceedings, tie the government for prosecutors in knots, and make publicized political speeches.
Frankly, questions can be raised about the decision to try Zacarias Moussaoui in a criminal proceeding in an Article III court. A strong argument can be made that Mr. Moussaoui is the quintessential enemy combatant and deserves to be tried by a military commission. We need more debate and discussion on the question of whether those designated as enemy combatants should be tried and afforded attorneys only after they are determined to be of no intelligence value or have exhausted their intelligence value.
As well, we need more discussion about where and by whom the lines should be drawn between permissible, aggressive interrogation techniques and when interrogation becomes torture, and whether torture is ever justified. We have all read the recent press accounts on these issues with great interest.
While I hope that one day Al Qaida will be defeated and formally surrender, it is possible that that day will never come when many of those detained at Guantanamo will agree to lay down their arms against the American people. This poses perplexing problems for a democratic country whose history suggests that wars end with finality for all combatants.
Let me take a moment to speak about the Patriot Act. This legislation was a measured attempt to help protect Americans from terrorist attacks and it's consistent with our traditional civil liberties.
HATCH: Despite the negative predictions of some, the Patriot Act has not eroded the civil liberties that we Americans hold dear.
As I understand it, the department's inspector general has consistently reported in three semi-annual reports that it has received no complaints alleging misconduct by Department of Justice employees and their use of substantive provisions of the Patriot Act.
Let me repeat: Absolutely no complaints.
Nevertheless, if we can improve and fine tune the Patriot Act, we ought to do so.
Despite the enormous task of defending against terrorist attacks, the department remains committed to ensuring that its traditional law- enforcement responsibilities are met.
Recently, the department reported that violent crime has fallen 3.2 percent nationwide. The department continues its vigorous enforcement of civil rights violations. And in fiscal year 2003, the department provided almost $7 billion to state and local governments for various law-enforcement initiatives, including almost $3 billion for training emergency first responders and purchasing equipment as well as research and development of counterterrorism technology.
Finally, let me say that the committee's markup agenda is S. 1700, the DNA legislation. I believe that the committee will report and that Senate should adopt this important bipartisan bill, which has already passed the House by a wide, bipartisan vote.
This bill will help to bring justice to thousands of victims of crimes, including many rape victims that have fallen through the cracks in the system due to the substantial 20-year backlog of rape test kits.
In addition to using DNA technology to help bring about convictions, DNA tests can also be appropriately used to help exonerate those wrongfully charged or wrongfully convicted of crimes.
I will work to bring this bill to the president's desk for his signature.
Mr. Attorney General, I look forward to your testimony here today.
HATCH: I hope to continue our bipartisan commitment to enacting measures that may be needed to win the war against terrorism and to work together in a wide range of programs that the department implements.
And I appreciate the service that you've given to our country. I know how exhausting and demanding that service is.
With that, we'll turn to our ranking member, Senator Leahy.
LEAHY: Thank you, Mr. Chairman.
And like you, we all join in sending our condolences to Mrs. Reagan. She has been a model of caring during the long, long years of her husband's illness; an illness they know is there, an illness they knew incurable at least today and would lead to the eventual end. I think all Americans, of whatever political stripe, commend her for her constance in her support of her husband.
Mr. Attorney General, welcome. It's been, I believe, about 15 months to pass since your last very brief appearance in March last year. Your testimony here comes today about 1,000 days after the September 11th attacks, and the subsequent launch of your efforts against terrorism.
As National Security Adviser Condoleezza Rice acknowledged in her testimony before the 9/11 commission, the terrorist threat to our nation did not begin in September 2001. But the preliminary findings of the 9/11 commission suggest that counterterrorism simply was not a priority of your Justice Department prior to September 11th.
Problems ranged in your department from an understaffed foreign translation program, woefully inadequate information systems, cultural attitudes that frustrated information sharing across agencies. Just one day before the attacks, on September 10th, you rejected the FBIs request to include more money for counterterrorism in your budget proposal.
And while you have recently been critical of the so-called wall between criminal investigators and intelligence agencies, you did nothing to lower it during your first seven full months in office.
LEAHY: In fact, you put up exactly the same wall in your administration.
The president is fond of saying that September 11th changed everything, as if to wipe out all missteps and misplaced priorities of the first year of this administration. After the attacks, you promised a stunned nation that its government would expend every effort and devote all necessary resources to bring the people responsible for these crimes to justice. Certainly the American people would expect no less.
So a thousand days later and it is time to ask for the fulfillment of the promise you made.
Mr. Attorney General, your statement lists accomplishments of the Department of Justice since 9/11, but you leave out a number of things.
For example, of course the obvious, Osama bin Laden remains at large.
At least three senior Al Qaida operatives who helped plan the 9/11 attacks are in U.S. custody, but there has been no attempt to bring them to justice.
The Moussaoui prosecution has bogged down before any trial.
A German court acquitted two 9/11 co-conspirators, in part because the U.S. government and Justice Department and others refused to provide evidence to them.
Three defendants who you said had knowledge of the 9/11 attacks did not have such knowledge. The department retracted your statement and then you had to apologize to the court because you violated a gag order in the case.
The man you claimed was about to explode a dirty bomb in the U.S. had no such intention or capability, and because he's been held for two years without access to counsel, any crimes he did commit might never be prosecuted.
Terrorist attacks on Capitol Hill and elsewhere involving the deadly bioterror agent anthrax have yet to be solved, and the department is defending itself in a civil rights action brought by a man who you probably identified as a person of interest in the anthrax investigation.
U.S. citizens with no connection to terrorism have been in prison as material witnesses for chunks of time, and then, "Oops, I'm sorry," when what the Justice Department announced was a 100 percent positive fingerprint match turned out to be 100 percent wrong.
LEAHY: Non-citizens with no connection to terrorism have been rounded up seemingly on the basis of their religion or ethnicity, held for months without charges, and in some cases physically abused.
Interrogation techniques approved by the Department of Justice have led to abuses that have tarnished our nation's reputation and driven hundreds, if not thousands, of new recruits to our enemies to terrorism.
Your department turned a Canadian citizen over to Syria to be tortured. And then your department deported another individual to Syria over the objection of experienced prosecutors and agents who thought he was a terrorist and wanted to prosecute him.
And one of the most amazing things, your department, under your direction, has worked to deny compensation to American victims of terrorism, including former POWs tortured by Saddam Hussein's regime. You have tried to stop former POWs tortured by Saddam Hussein -- Americans -- you tried to stop them from getting compensation.
And documents have been classified, unclassified, reclassified, to score political points rather than for legitimate national security reasons.
Statistics have been manipulated to exaggerate the department's success in fighting terrorism. The threat of another attack on U.S. soil remains high, although how high depends primarily on who within the administration is talking.
Mr. Attorney General, you spent much of the past two years increasing secrecy, lessening accountability and touting the government's intelligence-gathering powers.
The threshold issue, of course, is -- and I believe you would agree with me on this -- what good is having intelligence if we can't use it intelligently. Identifying suspected terrorist is only a first step. To be safer we have to follow through.
LEAHY: Instead of declining tough prosecutions, we need to bring the people who are seeking to harm us to justice. That's how our system works. Instead, your practices seem to be built on secret detentions and overblown press releases.
Our country is made no safer through the self-congratulatory press conferences when we're facing serious security threats.
The government agency that bears the name of justice has yet to deliver the justice for the victims of the worst mass murder in this nation's history.
The 9/11 commission is working hard to answer important questions about the attacks and how the vulnerabilities in our system that allowed them to occur, but it can't mete out justice to those involved. Neither the 9/11 commission nor this committee can do the work of your Department of Justice.
Mr. Attorney General, since September 11th, you blamed former administration officials for intelligence failures that happened on your watch. You've used a tar brush to attack the patriotism of the Americans who dared to express legitimate concerns about constitutional freedoms. You refused to acknowledge serious problems, even after the Justice Department's own inspector general exposed widespread violations of the civil liberties of immigrants caught up in your post-September 11th dragnets.
Secretary Rumsfeld recently went before the Armed Services Committee to say that he, he Secretary Rumsfeld, should be held responsible for the abuses of Iraqi prisoners on his watch.
Director Tenet is resigning from the Central Intelligence Agency. Richard Clark went before the 9/11 commission and began with his admission of the failure that this administration bears for the tragedy that consumed us on 9/11.
And I'm reminded this week, as we mourn the passing of President Reagan, that one of the acts for which he will be remembered is that he conceded, that while his heart told him that the weapons for hostages and unlawful funding of insurgent forces in Nicaragua should not have been acts of his administration, his head convinced him that they were, and he took personal responsibility.
We need checks and balances. As much as gone wrong that you stubbornly refuse to admit. For this democratic republic to work, we need openness and accountability.
Now, Mr. Attorney General, your style is often to come to attack. You came before this committee shortly after 9/11 to question our patriotism when we sought to conduct a congressional oversight and ask questions.
You went before the 9/11 commission to attack a commissioner by brandishing a conveniently declassified memo and so unfairly slanted a presentation that President Bush himself disavowed your actions.
LEAHY: So I challenge you today to abandon any such plans for the session. Begin it instead by doing that which you have yet to do: talk plainly with us and with the American people, about not only what's going right in the war on terrorism -- and there are those things that are going right -- but also about the growing list of things that are going wrong, so we can work together to fix them.
Let's get about the business of working together to do our job, a better job of protecting the American people and making sure that the wrongdoers are brought to justice, are brought to trial and are given the justice that this country can mete out.
Thank you, Mr. Chairman.
HATCH: Thank you, Senator.
General Ashcroft, we'll take your statement at this time if you care to make one.
ASHCROFT: Good morning, and I thank you for the opportunity to make this statement.
Obviously, I would be disappointed to think that I might spend my time responding to all of the charges that have just been leveled toward me. I have an agenda of things that I think are important for us to discuss with the committee. And with that in mind, I'd like to proceed with my statement rather than seek to be responsive to these items.
I was reminded, as I came to the Senate this morning, of the passing of a great giant in American government. The caisson was in the street, apparently in a rehearsal for the events that will later follow this week.
And President Ronald Reagan, who stood as a leader, certainly as a person whose leadership does indeed dwarf mine -- and if I could agree with the senator from Vermont, he is a man of much greater stature than I could ever hope to be, who rallied the nation to fight for very, very great ideals, and who dared to do great things.
And we remember his words as we fight once again for freedom against tyranny. At the height of the Cold War, he put it this way: "The ultimate determinate in the struggle now going on for the world will not be bombs or rockets, but a test of wills," he said. "A test of wills and ideals, a trial of spiritual resolve, the values we hold, the beliefs we cherish, and the ideas to which we are dedicated."
And today we do meet at a time of war that does test our resolve, and we face dire threats. Around the world, we hear reports daily of this war -- war against Al Qaida. Bombings in Spain, murder sprees in Saudi Arabia, improvised explosive devices in Iraq, terrorist attacks that kill men, women and children.
ASHCROFT: At times the war on terror might seem distant, September 11th may seem a faint memory, but it is not. It is not distant. It is not faint.
Credible intelligence indicates that Al Qaida wants to hit the United States and wants to hit it hard. We're locked in a mortal struggle between two visions for human life and a war that can know only one victor. And we choose to be the victor.
Our vision is a vision of freedom. It's a vision of human dignity and tolerance for every citizen.
Let me give you an example of how this nation's dedication to that vision is played out. Nashala Hearn (ph) is a brave 12-year-old Muslim girl who goes to school in Muskogee, Oklahoma. Her favorite subject is world cultures. Some day, she wants to write children's books.
On September 11th, 2003, school officials forbade her to wear the hijab, or head scarf, that is the expression of her religious faith. Nashala's (ph) father filed suit. He believed that his daughter's constitutional rights were being violated.
The United States Justice Department agreed. The Civil Rights Division intervened to protect the constitutional rights of this quiet sixth-grader who likes reading.
We won a consent decree to protect her rights of religious expression. She may now wear her hijab at her school. And later this afternoon, Nashala (ph) will wear her hijab when she appears in the United States Senate.
The war we are fighting is a war for Nashala (ph) and for freedom-loving people everywhere. We continue to strive after two centuries to build that city upon a hill, a nation that values religious liberty of a single young girl and the constitutional liberties of all of its citizens.
ASHCROFT: Now, contrast these ideals with the dark ambition of our enemies. In the nightmare vision of the Taliban and Al Qaida, little girls like Nashala (ph) were denied their rights. As a woman she could not go to school. She could not appear in public without a man to speak from her family for her. She would never be allowed to vote, but she could be whipped.
To our enemies, a 12-year-old American girl is just another target for their attacks. But in the United States of America, under our Constitution, Nashala's (ph) life is so precious that her cause commands the attention of the government. Her right to religious freedom is so secure that it gained the full weight of the United States Department of Justice.
Every day the men and women of the Department of Justice prove their commitment to protect the lives and liberties of the American people. For more than 32 months, the Justice Department has been using every tool and every tactic in the arsenal of the justice community to stop terrorism, from aggressive enforcement of the criminal code to the deployment of the new and critical tools of the USA Patriot Act.
We have disrupted the Al Qaida network and the terrorist presence for using immigration violations, minor criminal infractions, and tougher visa and border controls. And we've been criticized for these tough tactics, but we will continue to use every means within the department and its reach and within the Constitution and the statutes to deter, to disrupt, destroy terrorist threats.
And these are not just words. We are proving in deeds our commitment to win the war against the networks of terror.
We have leveled criminal charges against 310 individuals. To date, we have won 179 convictions. We've broken up terrorist plots all across America, from Virginia to Oregon, Florida to New York, in the heartland, on the coasts.
We've targeted the lifeblood of the transnational terrorism financing stream, launching 70 investigations into terrorist financing.
But the most tangible measure of our success is found in the fact, for which we are grateful to God and the citizens of this country and law enforcement officials, we have not experienced a major terrorist attack on U.S. soil.
Our clear strategy of prevention, combined with aggressive tactics, has prevented major terrorist attacks.
ASHCROFT: America has caught numerous known Al Qaida operatives seeking to strike America, including Ali Saleh Kala Almari (ph), Jose Padilla, Iyman Faris, Zacarias Moussaoui, Richard Reid, to name a few.
Almari was sent by Al Qaida to facilitate a second wave of terrorist attacks on Americans. He arrived on U.S. soil on September 11, 2001. Further investigation revealed that Almari was an Al Qaida sleeper operative who was sent to provide support to newly arriving Al Qaida operatives.
Jose Padilla dreamed of detonating a dirty bomb in the United States, was sent here by Al Qaida to blow up apartment buildings. After he was arrested, we learned that Khalid Shaikh Mohammed had personally given him full authority to conduct operations for Al Qaida in the United States of America.
Iyman Faris, an Ohio truckdriver, scouted sites in America to help Al Qaida blow up a bridge in New York and to look for ways to attack America's rail system.
We all know about Richard Reid who, on December the 22nd, sought to ignite -- of 2001, that is -- a bomb on a commercial airliner traveling from Paris to Miami, Florida. Reid plead guilty, calling himself a disciple of Osama bin Laden and an enemy of the United States.
These individuals are not alone. Al Qaida has a fanatical desire to wage war on Americans in America. Al Qaida will send terrorist soldier after terrorist soldier to infiltrate our borders and to melt into our communities. And they do not wear uniforms. They do not respect human rights. They target civilians.
Our successes at preventing Al Qaida attacks are the direct result of information sharing, coordination and cooperation of the men and women in U.S. law enforcement and intelligence. This teamwork would have been utterly impossible without the passage of the Patriot Act, for which I thank and commend the Congress.
ASHCROFT: The act did four things. It tore down the bureaucratic wall that had been imposed between law enforcement and intelligence, allowing cooperation and information sharing. That's been very valuable.
The Patriot Act, secondly, strengthened criminal laws against terrorism.
Third, it helped speed the investigation of terrorist threats, putting agents on the street instead of behind desks doing paperwork to pursue terrorists untrapped in their offices.
And finally, the Patriot Act updated our anti-terrorism laws to reflect new technologies and to give us the same tools used to fight against drug dealers and organized crime so that we can fight against terrorists.
We know that the terrorists planned to escalate their operations in America. Credible intelligence, as mentioned by the chairman, from multiple sources, indicates that Al Qaida plans to attempt an attack on the United States during the summer or fall. And this committee knows we are entering a season of events of great symbolism, great consequence for our nation, events that would be attractive targets for terrorism.
It is a sad commentary when the observation of a memorial service for a former president of the United States must be labeled a national security special event. Such is the fact of modern life in Washington and such is the nature of the war against Al Qaida.
We know from Spain's bitter experience that Osama bin Laden and Al Qaida believe they advanced their extremist cause with the Madrid train bombings that brought the death of nearly 200 people and the injury of about 1,600 more. We have alerted the public, state and local law enforcement to these threats because we believe the face of Al Qaida is changing and their tactics are evolving.
Al Qaida continues to attract fanatical extremists from many nationalities and ethnicities, including North Africans and South Asians in particular. Al Qaida and other extremist groups have also shown an interest in recruiting young converts inside target countries as operatives who can portray themselves as traditionally European.
Al Qaida's ideal operatives may be older than those we have seen before: men in their late 20s to early 30s. In addition, they may be travelling with families to lower their profile.
In the face of this new threat, a threat that we have seen with a new face, we have shown the terrorists that America is not the same America we were on September 11th. We've learned lessons. We're continuing to learn.
Credible intelligence tells us that the coming months are months of vulnerability. The justice community has taken the following steps to ensure our safety.
First, the FBI has established a special threat task force that is focusing on the developing threat.
ASHCROFT: Task forces coordinating all our intelligence analysis and field operations, all field offices and legates have been tasked to review all counterterrorism case files and threat reporting for intelligence relevant to our intelligence requirements. That is the defense of the nation this year.
Our 84 joint terrorism task forces are collecting specific information, developing additional intelligence sources, and reporting new information, as well as reviewing old files, to ensure that the 2004 task force has all available intelligence.
Second, we have informed state and local law enforcement, and sought their help in uncovering specific actionable intelligence. The FBI has developed a series of critical intelligence priorities to guide state and local enforcement, so they can investigate and collect information that fills gaps in our nation's intelligence needs.
We've directed our 93 U.S. attorneys to convene their anti- terrorism advisory councils, to enlist state and local support. And there are about 670,000 state and local law enforcement officials, who are so important to the defense of America.
Specific intelligence is the foundation for effective counterterrorism strategies, including hardening targets, disrupting cells, elevating threat levels to engage our level of preparedness.
Third, we have alerted the public. And it's the essence of freedom and the core strength of free societies to trust the citizenry to participate in the defense of their lives and liberties.
And we've asked the public to join in the hunt for seven suspected al Qaida operatives and to be alert for suspicious activity. These suspects are Amer El-Maati, Aafia Siddiqui, Adnan El Shukrijumah, Fazul Abdullah Mohammed, Adam Gadahn, Abderraeouf Jdey, Ahmed Khalfan Ghailani.
They're all sought in the connection with possible terrorist threats in the United States. They pose a clear and present danger. They should be considered as armed and dangerous. And the public has responded, providing over 2,000 tips in the first 24 hours alone regarding this request for assistance.
In this nation we learned, on the morning of September 11, 2001, that blue skies and quiet mornings should not be mistake for peace. However earnestly we desire that peace, our terrorist enemies have declared war on America and they brought the war onto our soil.
Over the last two years we've made progress, but the war is far from over. The networks of terror continue their search for any opportunity to turn quiet, calm mornings into scenes of carnage and death.
In this war, in this time of heightened threat, we must remember the ideals we fight for, we must remember the precious liberties, even those such as 12-year-olds such as Nashala Hearn (ph).
When we remember these blessings of freedom, when we reflect on the vision we defend, our path, even in the midst of the challenges of war, is clear.
ASHCROFT: I thank you for this opportunity to make my remarks.
HATCH: Well, thank you, Mr. Attorney General.
Let me just ask a couple of questions.
You and FBI Director Mueller recently warned us about an increased risk of terrorist attacks within the next few months. Can you tell us whether you believe, and if so why you believe, our nation is better prepared to stop these acts of terrorism today than we were on September 11th, 2001? And whether or not you think the department needs additional legal tools to better protect or help protect the American public from acts of terrorism on U.S. soil?
I notice from your statement, the one that we have, that you oppose, as do I, allowing certain provisions of the Patriot Act to sunset next year, but there are additional provisions, such as the terrorist hoax legislation that Senator Schumer, Cornyn and I am co- sponsoring, that you make think are advisable for Congress to adopt.
So if you could answer that, I'd appreciate it.
ASHCROFT: Mr. Chairman, I do believe that we are better prepared than we were before. The tools of the United States Patriot Act, which were tools enacted by this Congress, have taken down the wall between the intelligence community and the law enforcement community, and that is an important amalgamation of information.
And the best friend of prevention is information. If you have the right information, you can prevent. Without that information, you can't.
In addition, the efficiencies provided in the act which provide, say, for the use of so-called multipoint, or roving, wiretaps in matters relating to terrorism really make efficient our ability to monitor or surveil terrorists in a way that we've long had the authority against drug dealers and organized crime figures since 1986 when that was afforded the department in its fight against those individuals.
ASHCROFT: And, obviously, those kinds of things are just illustrative of the kind of structural changes that have upgraded our capacity to be effective in the war on terror.
And there are other aspects which are equally important. The FBI has changed its method of operating so that it is much more focused on intelligence. It is working to establish a Directorate of Intelligence within the FBI, but the resources devoted to intelligence, the kind of communication internal to the FBI, the -- Senator Leahy pointed out that the kind of communication system in the FBI was deficient. I believe that was part of the thrust of his remarks.
And the improvement of the communication inside the FBI with the right kind of computers that can now talk from the field to headquarters, where we can have a central understanding of intelligence rather than a fragmented understanding of intelligence, which had previously characterized the case system where information was held exclusively at localities rather than being centralized.
The creation of the Terrorist Threat Integration Center, where intelligence, which comes from domestic sources, is pooled with intelligence that comes from international sources so that we have basin that receives intelligence. And that Terrorist Threat Integration Center can provide an understanding of how we can connect dots between things that are happening within the United States and things happening outside the United States to help us deter, disrupt, otherwise displace threatening terrorist activity.
All of these things are improved circumstances, and these are exemplary. For me to go and try and be exhaustive in the list of changes that have been undertaken would stress our timeframe this morning. But those are the things that I think are very important that we have now.
As it relates to the ways that we can improve, every time someone requires the department to move to respond to a hoax, it takes valuable resources. There have been thousands of hoaxes, for instance, on anthrax alone. And there should be significant penalties for individuals who divert the resources that can fight terror away from the fight against terror and are just responding to hoaxes.
Similarly, the seriousness of, I believe, the threat of terror, requires that we should have available in circumstances where people are killed and significant killing of individuals in terrorist activities should result in the death penalty.
There are circumstances where we don't believe that that exists now and that would be an improvement.
ASHCROFT: In the law for major crimes of violence and drug offenses there is a presumption that a person charged would be detained. There is no such presumption for a person charged with terrorist activity. I think it would be prudent to say that those kind of presumptions which inure to drug dealers of significant scale and violent criminals, if there is a reason for a presumption there, that would be appropriate.
There are about, I think, 335 different areas of the federal government in which enforcement officials have the right to request on an official basis documents from businesses, business records. Those are called administrative subpoenas. I believe that if those are requestable on the basis of health care fraud and other things that for terrorism cases we would be well-served to have that same kind of authority.
This doesn't mean that there's an automatic ability to get them. If a person resists that, then the courts would again step into decide whether or not it was merited. But that kind of administrative subpoena authority exists for well over 300 other kinds of circumstances.
Another item, which I believe, Senator Kyl and Senator Schumer and you have joined to work on is what's called the lone wolf amendment to FISA, which would provide the ability to surveil someone known to be involved in terrorism but not being involved in terrorism with someone else, but doing it exclusively on his or her own motion.
It seems to me that our ability to surveil that kind of person should be commensurate with our ability in other settings. So that's another one of the proposals you have been involved with in addition to the hoax statute. But these are the kinds of things that are important.
The sunsetted provisions, of course, must not expire unless we want simply to let down the guard of the United States against terror. And if we were to expose the United States to in some way reset the balance in favor of terror, we could so by deciding that we would not reenact those provisions of the Patriot Act. I think it would be a tragedy.
HATCH: My time is up. I would like to ask you to help us to work on the Radiation Exposure Compensation Act funding with the appropriators. It's very important that we keep funding going and live up to those promises.
But with that, we'll turn to Senator Leahy.
LEAHY: Thank you, Mr. Chairman.
Mr. Attorney General, yesterday in the Wall Street Journal, they had a Department of Defense memo that argues that the president has the authority, as commander in chief, to approve almost any physical or psychological error actually doing interrogation up to and including torture.
LEAHY: Today, the Washington Post quotes from a memo from your department that purportedly argues that torturing a terrorism suspect may be justified.
Now, I've been asking for copies of post-September 11th policy memos for over a year, but your department has repeatedly said such documents are classified, or they simply won't release them.
I asked you for the specific memo that's now reported in the press 10 days ago and received no response. I could read it in the press, but I have not received a response from you.
You selectively declassify memoranda to suit your political purposes, such as the Gorelick memo you offered in the midst of the 9/11 commission hearings. But you denied information to members of this committee on both sides of the aisle, and so we conduct our oversight view of what we learn in the press.
So I have four questions.
First, when will you provide a copy of this and all other requested memos to each member of this committee, Republican and Democrat?
Second, all Americans want to know whether anyone followed through on the advice of your Justice Department? Has torture or anything approaching torture been committed by U.S. personnel or in the presence of U.S. personnel anywhere in the world?
Third, has there been any order or directive from the president with respect to interrogation of detainees, prisoners or combatants?
And fourth, can you assure this committee today that your Justice Department will aggressively prosecute any person for whom there is probable cause of committing torture regardless of whether the individual was acting under a direct order of the president and regardless of whether the person being tortured was in U.S. custody?
ASHCROFT: I want to be sure to answer these, so if my note- taking...
LEAHY: If you miss a couple...
ASHCROFT: You'll remind me.
LEAHY: I'll want to help you out by reminding you.
ASHCROFT: Thank you.
Congress has enacted an extensive framework of laws relevant to the way individuals who are apprehended, detained, captured during wartime, interrogated during wartime. The laws are numerous. They relate from everything from the Uniform Code of Military Justice to the torture statute, to the War Crimes Act, to the Military and Extraterritorial Jurisdiction Act, to the Special Maritime and Territorial Jurisdiction Statute.
In addition to these statutory enactments that have been passed by the Congress and signed by the president as part of our laws, the Senate, in conjunction with the president, has committed the United States to the following of various treaties, and related to these issues would be treaties like the Geneva Convention...
LEAHY: Mr. Attorney General, without -- and I know you have no intention of filibustering the answer, but could we go to my specific questions?
Did your department issue a memorandum that would suggest that torture is allowed under certain circumstances as the press has reported? And that's a simple enough question. It could take a yes- or-no answer.
ASHCROFT: Well, first of all, I'm not going to comment on the memos and advice that I give to executive departments of government...
LEAHY: But if you get...
ASHCROFT: ... but I will say this: that while the job is to explain the meaning of the statutes and to explain, in memos, the law, I want to confirm that the president has not directed or ordered any conduct that would violate the Constitution of the United States, that would violate any one of these enactments of the United States Congress or that would violate the provisions of any of the treaties as they have been entered into by the United States, the president, the administration and this government.
LEAHY: Does that mean your department would aggressively prosecute anybody who might come under your jurisdiction under any of these laws, any person for whom there is probable cause of committing torture, regardless of whether that person was acting under direct order of the president or anybody else?
ASHCROFT: The Department of Justice will both investigate and prosecute individuals who violate the law. The Torture Act is a law that we include in that violation. The laws relating to various other aspects of conduct are.
We have before us at this time a number of investigations under way. We have established a special team for prosecuting such violations in the Eastern District of Virginia. It's a U.S. attorney's office that's accustomed to international items because it is the home of both the CIA and the Pentagon.
There is one case outside that framework that is being prosecuted, and was being prosecuted earlier, before we became aware that we might have a broader responsibility here.
But we are investigating items both on referral from the Department of Defense and from the intelligence agency. And those matters take into account our responsibility to enforce the laws enacted by this Congress...
LEAHY: I would assume that you would carry out your responsibilities; you swore a solemn oath to do so. But does your answer mean that there has or has not been any order directed from the president with respect to interrogation of detainees, prisoners or combatants?
ASHCROFT: The president of the United States has not ordered any activity which would contradict the laws enacted by this Congress or previous Congresses...
LEAHY: Not quite my...
ASHCROFT: ... or the Constitution of the United States...
LEAHY: Mr. Attorney General, that was not my question.
ASHCROFT: ... or any of the treaties.
LEAHY: That was not my question.
Has there been any order directed from the president with respect to interrogation of detainees, prisoners or combatants, yes or no?
ASHCROFT: I'm not in a position to answer that question.
LEAHY: Does that mean because you don't know or you don't want to answer? I don't understand.
ASHCROFT: The answer to that question is yes.
LEAHY: You don't know whether he's issued such an order?
ASHCROFT: For me to comment on what I advise the president...
LEAHY: I'm not asking...
ASHCROFT: ... what the president's activity is is inappropriate if -- I will just say this: that he has made no order that would require or direct the violation of any law of the United States enacted by the Congress, or any treaty to which the United States is a party as ratified by the Congress, or the Constitution of the United States.
LEAHY: Well, it doesn't answer my question. But I think my time is up. We'll come back later.
HATCH: Senator Grassley?
GRASSLEY: Yes, I would like to cover a clarification issue, a terrorist financing matter, and information sharing.
On the classification issue, I'd like to ask about the FBI and Justice Department going back in time and classifying information that Congress was given in briefings two years ago. This information involves a whistleblower by the name of Edmunds, a translator who was fired from the FBI because of problems pointed out.
Three issues. I'd like to raise all three and then have you address them.
First, what was your involvement in the decision to retroactively classify information already given to Congress if you had an involvement.
Second, who made this decision? Several division lawyers or operational people at the FBI?
And third, laws and executive orders have requirements for how information is classified. So since we do have those laws and executive orders, could you explain how the FBI and the Justice Department followed those requirements in this case?
ASHCROFT: If I'm not mistaken, in the matter to which you make reference the national interests of the United States would be seriously impaired if information provided in one briefing to the Congress were to be made generally available.
And in order to protect the national interest, a decision was made to classify the information.
ASHCROFT: I take responsibility for that decision and I believe -- and I have reviewed the matter within the last couple months, I think at your request, or the request of a letter on your part. I'm not sure if we've talked about this personally.
And that's the reason for which the decision was made.
GRASSLEY: So you made the decision, so several division lawyers or operational people at the FBI wouldn't have been involved in that?
ASHCROFT: I don't know that they would have been uninvolved. It may be that my decision was shaped based on recommendations of theirs and the participation that they would have had in some measure.
But it relates to both a lawsuit which is under way and the national security interests of the United States.
GRASSLEY: Isn't it a little ludicrous, though, saying that you classify this information now, though, because it could -- if it was exposed to the public at large, if I were briefed on it and I were not told that it was secured or anything, I could have been talking about it for the last 10 months and it could have been out to the public?
ASHCROFT: That's exactly right, Senator.
GRASSLEY: But I mean, I could have been, because it was just recently reclassified. So I could have done that. So isn't it ludicrous to classify it now?
ASHCROFT: Well, let me just put it this way: If there is spilled milk and there is no damage done, if you can recollect it and put it back in the jar, you're better off than saying, "Well, it's spilled, no damage has been done, we might as well wait until damage is done."
Our responsibility is if information is made available which is against the national interest to be in the public sphere to say we should do what we can to curtail the availability of the information. It's on that basis that I made the decision.
Now on terrorist financing, a number of departments and agencies have jurisdiction over different aspects of terrorist financing, and officials within the departments have repeatedly assured me that everyone -- everyone -- is cooperating smoothly on this issue. But what I do see is a lot of infighting and one-up-manship that is splintering our efforts instead of unifying them.
The departments participate in working groups and in coordinating committees that are supposed to alleviate much of this infighting. But what we really need is effective leadership and strategic thinking.
GRASSLEY: Does the Department of Justice have primary responsibility for determining terrorist financing and money- laundering methods and in coordinating our government's response to these vulnerabilities? And how is this responsibility -- if you have it -- being executed?
ASHCROFT: I believe that the department does have the primary responsibility on money-laundering cases to, first, determine whether or not those cases are terrorism-related, and if they are they remain the responsibility of the Justice Department.
There are money-laundering cases which have also been a part of the traditional Treasury and, now, I believe, in the Homeland Security arena, as well. But the first cut on such cases is a terrorism appraisal, which belongs with the Department of Justice. And we seek to coordinate any secondary activities after that appraisal has been made.
GRASSLEY: I have a bill that -- it's S. 1837 -- that extends the national money-laundering strategy for three years. The Department of Homeland Security has significant expertise in money-laundering investigations, but the department didn't exist when we first passed this legislation.
What should the Department of Homeland Security's role be in developing the national strategy and combating terrorist financing from the standpoint of your having primary responsibility in this area?
ASHCROFT: Well, we believe that the Department of Justice, in terms of this -- it's obviously it's role will always be to prosecute the violation.
So let me just first make it clear that when we talk about other agencies that are involved in curtailing money-laundering, they're involved in the development of the case or the detection of a scheme or the understanding that there is a problem but when it comes to actually bringing the charges, prosecutions are carried forward by the Justice Department.
Our responsibility has been, obviously, to make an assessment about whether or not the money-laundering scheme was more than simply money-laundering, but whether it was a funding effort that related to terrorism. And for that reason, the department has the first responsibility in the arena.
But if other agencies are involved in -- whether it's in conjunction with customs enforcement or in conjunction with matters related to immigration or things that are covered by other departments, those are areas where we try to coordinate our efforts, but we do not seek to control the effort. And we'll have to work to get that done.
For me to go further would require me to do additional study.
HATCH: Senator, you time is up. Do you want to make a...
GRASSLEY: My third question has to be submitted in writing because time's run out, but it deals with information sharing on law enforcement, between government agencies as well as between the federal, state and local levels. So it's something that comes up all the time back home, and I hope you'd give serious consideration to my third question and answer in writing.
ASHCROFT: It's a matter of serious importance to us, and I will.
HATCH: Senator Kennedy?
KENNEDY: Thank you.
And welcome, General.
ASHCROFT: Thank you.
KENNEDY: In the front page of the Times, it has this quote, "A team of administration lawyers concluded in a March 2000 legal memorandum, President Bush was not bound either by international treaty prohibiting torture or by federal anti-torture law because he has the authority as commander in chief to approve any techniques needed to protect the nation's security." Do you agree with that conclusion?
ASHCROFT: Senator Kennedy, I'm not going to try and issue hypothetical...
KENNEDY: I'm not asking hypothetical. This is a memoranda that, again, was referred to today in the Post. "August 2002, Justice Department advised the White House that torturing Al Qaida terrorists in captivity abroad may be justified and that international laws against torture may be unconstitutional if applied to interrogations." Do you agree with that?
ASHCROFT: I am not -- first of all, this administration rejects torture.
KENNEDY: I'm asking you whether this is -- these are -- there are three memoranda, January 9, 2002, signed by John Yo (ph), the August 2002 Justice Department, the (inaudible) amendment memo and the March 2000 -- the interagency working group. Those are three memoranda. Will you provide those to the committee?
ASHCROFT: No, I will not.
KENNEDY: On what basis? Under what basis?
ASHCROFT: On the basis that the long-standing established reasons for providing opinions provided to the executive branch...
KENNEDY: General, the executive privilege is not a legitimate basis of withholding memoranda from this committee. This Congress is investigating the prisoners' abuse that have occurred. Immense importance -- we have specific need of the documents that have allowed these abuses to occur.
The memoranda issued did not involve confidential communications between the Justice Department and the president, but instead legal advice that was widely distributed throughout the executive branch.
There are many examples of executive privilege that have been waived or over-written. President Clinton waived the privilege. President Nixon claim of absolute executive in the Watergate again.
And interesting, interesting as we -- and I will speak about President Reagan later at this afternoon or tomorrow about my own personal feelings of commendation of his life.
President Reagan, on November 4, 1982, issued guidelines on executive privilege. Ronald Reagan issued executive privilege memoranda to heads of the executive to "comply with congressional requests for information to the fullest extent consistent with the constitutional statutory obligations of the executive branch," and added that "executive privilege would be used only in the most compelling circumstances, and only after careful review demonstrated that assertions of the privilege was necessary."
KENNEDY: Now, are you invoking executive privilege here and denying us those memoranda? You've had 72 hours to think about this, General. This has been in the newspapers, you had information about it. You've had 72 hours to think about that you were going to be asked about this.
I'm a member of the Armed Services Committee. We've been investigating and looking into this. The courageous act of the chairman, John Warner. And we're entitled to know whether that information is going to be available to the committees.
ASHCROFT: Well, the confidential memoranda provided -- any confidential memoranda provided to members of the executive branch...
KENNEDY: This was generally circulated.
HATCH: Let him answer the question.
ASHCROFT: ... is considered by the department to be important that we maintain it, that we not provide it outside the executive branch.
And let me just say that we're at war, and to talk about the powers of the president...
KENNEDY: So is this -- do I understand this is executive privilege that you're -- and I just have a couple of final questions, my time's running out.
What is the reason, what's the justification not providing it?
ASHCROFT: We believe that to provide this kind of information would impair the ability of advice-giving in the executive branch to be candid, forthright, thorough and accurate at all times, and so that the disclosure of such advice and the threatened disclosure that all memos would be in some way provided would impair our ability to conduct ourselves in the executive branch.
And let me just, if I may, this is not something new.
KENNEDY: All right. But OK. We have the answer on this. And I'll just have another minute.
But in these memoranda, the memoranda claim that existing laws and international treaties prohibiting torture do not apply when the president or other officials acting commander in chief. It says the Justice Department cannot bring criminal prosecutions against official who commits torture while acting, quote, "pursuant to an exercise of presidential constitutional power." And it claims that the president can immunize subordinates from criminal liability by issuing a presidential directive or other writing authorizing the use of torture. And you claim that the authority to set the laws aside is inherent in the president of the United States.
In other words, the president of the United States has the responsibility -- the president of the United States. We've been looking about where the president -- because we know when we have these kinds of orders what happens. We get the stress test. We get the use of dogs. We get the forced nakedness that we've all seen on these. And we get the hooding.
This is what directly results when you have that kind of memoranda out there.
KENNEDY: And it says that it's all because of executive authority and executive power. And it seems how can any one other conclude, how can any one else conclude that it's the president of the United States then that has the ultimate authority and responsibility in the issuing of these order of the failure to stop these kind of activities?
HATCH: Senator, your time is up.
But if you'd care to answer.
ASHCROFT: Well, I do care to answer because the senator raises very serious issues. And I think they deserve an answer.
First of all, let me completely reject the notion that anything that this president has done or the Justice Department has done has directly resulted in the kinds of atrocities which were cited. That is false. It is an inappropriate conclusion.
The kind of atrocities which the senator has recited and which he has displayed in the photographs that he raised are being prosecuted by this administration. They are being investigated by this administration. They are rejected by this administration. They are not pursuant to any order, directive or policy of this administration. They contravene the law and they are going to be rejected as having contravened the law.
So the suggestion that somehow this administration is engaged in conduct that provided a basis for that activity is simply false.
Second, let me -- we are at war. And for us to begin to discuss all the legal ramifications of the war is not in our best interest and it has never been in times of war.
This is a long understood and long-established practice. Frank Murphy, for example, who during the World War II time in the Roosevelt administration -- let me just read to you what he said about the way these things.
He explained in part refusing to give his opinion to the Senate, citing what was already long-established practice of attorneys general in 1939. He put it this way. And I'm quoting.
While the constitutional powers of the president in time of war, now the quote starts, "have never been specifically defined and, in fact, cannot be, since their extent and limitations are largely dependent on conditions and circumstances. The right to take specific action might not exist under one state of facts, while under another it might be the absolute duty of the executive to take such action."
I'm not doing anything other than to say that there is a long- established policy reason grounded in national security that indicates that the development and the debate of hypotheses and practice of what can and can't be done by a president in time of war is not good government.
ASHCROFT: And this isn't something that comes from this administration. It comes from another administration that faced a very serious threat, and it comes from an attorney general whose respect for and familiarity with the law was so profoundly understood that he became a member of the United States Supreme Court.
And it's with that in mind that this Justice Department seeks to preserve the capacity of the department to serve the executive branch and to serve it well, and to not respond to hypotheticals about what the powers of the president may or may not be.
I will say that this administration rejects terror -- pardon me, torture. It rejects terror as well. It has operated with respect to all of the laws enacted by the Congress, all of the treaties embraced by the president and the Congress together, and the Constitution of the United States, and no direction or order has been given to violate any of those laws.
And last, again, when any of those laws is violated, an investigation is pursued, and the pursuit of that investigation, where appropriate, results in the prosecution of offenses.
HATCH: Senator Cornyn, we turn to you. It's your turn.
CORNYN: Thank you, General Ashcroft.
You have stated on multiple occasions here today and before that, of course, we are at war. And indeed it was the 107th Congress who voted, by 98-0 in the Senate and 421 in the House, to authorize the use of military force. And indeed that's what we are doing in fighting this war on terror.
CORNYN: But I am very much impressed with the challenge that that presents in the minds of many Americans to understand how this war on terror comports with our historical experience with what war entailed, where our armies fought against other uniformed armies with all of the equipment and armament that goes along with war. And, indeed, there have been high-elected officials serving here in Washington and elsewhere who have questioned whether, in fact, this is a war.
But isn't it the case, General Ashcroft, that the resolution of this very Congress that authorized the use of force and the president, as commander in chief, his execution of his powers under the Constitution in pursuant of that resolution that provides the authority that is necessary for us to not only investigate but to preempt much of the terrorist activity that has made this country safe or prevented a terrorist attack since 9/11?
ASHCROFT: Senator, this war is different -- your first point -- but there are similarities to previous conflicts. And the basis upon which this administration has acted to secure the United States in the war against Al Qaida is found in the precedents from previous settings.
In the Second World War, much discussion of which has taken place as we have celebrated the heroism of the greatest generation, un- uniformed saboteurs first came into the United States from our enemy and sought to -- with a view to disrupting and destroying and killing Americans. They were treated as enemy combatants.
And the basis for the apprehension by the executive branch of individuals as enemy combatants comes from the Supreme Court cases that followed that apprehension of unconventional, un-uniformed individuals who, against the laws of war, threatened the United States.
CORNYN: Indeed, isn't it that precedent of that Supreme Court precedent that you're referring to that provides the basis of the government's position in the Padilla and Hamdi case that's currently pending before the United States Supreme Court?
ASHCROFT: Among the precedents cited in those cases is that case. Of course, also, the courts have considered the acts of the Congress taken in this particular situation, which you cited earlier in your remarks, providing a basis for understanding that the president needed to take action to defend the American people in this war against Al Qaida and that the authority to take such action had been granted by the United States Congress.
CORNYN: Let me just ask you, in your opinion, what would be the consequences of a decision that prevented us from acting to preempt terrorist attacks, that merely treated terrorism as some species of a crime that could not be investigated and punished until after it occurred? What would be the consequences on the national security of the United States?
ASHCROFT: Well, I can give you one example, and I believe I can cite the deputy attorney general of the United States who was an active prosecutor of terrorists in New York before he became the U.S. attorney in New York and before he became the deputy U.S. attorney general. And in commenting on the Padilla case, he indicated that we would be incapable of restraining an individual whose expressed intent was to, in acts of war, destroy innocent people in America by detonating explosions, which would destroy things like apartment houses and the like.
Of course we know, also, that Padilla had also spent time studying the potential of a dirty bomb so as to detonate a device which would disperse radioactive or other very dangerous contamination materials.
And the ability to intercept and to interdict the activities of an enemy combatant, one who is a part of the enemy, has trained with the enemy, has developed a skill which could be very injurious to the public, is a long-standing ability in the United States.
ASHCROFT: As I say, it was employed by President Roosevelt in the Second World War, and obviously it's a responsibility of the president in the war against Al Qaida to be willing to defend the American people and to take such steps to do so in this war as well.
CORNYN: It's been said that the United States Constitution is not a suicide pact, so I assume that you believe -- I trust you believe that it's within the authority, under international treaties, under the...
HATCH: Senator, your time is up.
CORNYN: Well, I'll send you any other questions I may have in writing.
ASHCROFT: Thank you.
HATCH: Thank you.
BIDEN: Thank you very much.
On my six minutes, can I yield 20 seconds to my colleague to follow up on a question?
KENNEDY: Just, General, has the president authorized you to invoke the executive privilege today on these documents?
ASHCROFT: I am not going to reveal discussions, whether I've had them or not had them, with the president. He asked me to deal with him as a matter of confidence.
I have not invoked executive privilege today. I have explained to you why I'm not turning over the documents.
KENNEDY: Well, what are you invoking?
ASHCROFT: I have not invoked anything. I have just explained to you why I'm not turning over the documents.
BIDEN: Thank you very much.
Well, General, that means you may be in contempt of Congress then. You got to have a reason not to answer our questions, as you know from you sitting up here. There may be a rationale for executive privilege that misses the point, but, you know, you have to have a reason. You are not allowed, under our Constitution, not to answer our questions, and that ain't constitutional.
But that's a different question. I don't want to get off on it, because I have to talk about other things. But you all better come up with a good rationale, because otherwise it's contempt of Congress.
One of the things that I'm a little confused about here is I don't know anybody in America who's argued we shouldn't attempt to preempt terrorist attacks. The question is, what are we allowed under our Constitution to do to preempt terrorist attacks? And that's really the issue here -- not whether we should preempt, or want to preempt, but what we're allowed to do to preempt.
BIDEN: Now, one of the questions I have -- and if you don't have an answer, I understand. If you could just let me know. So seldom we get to see it. You know, I mean, when you were on the committee, Janet Reno was up 12, 13 times, 22 times in her tenure. You've been up three times. We miss you, John. We'd like to see you more.
But at any rate, is there, to the best of your knowledge, a presidential order, not a secret -- a presidential order anywhere that immunizes interrogators of Al Qaida suspects? Is there any order that the president has issued that lets it be known that they're immunized, based on the tactics they use, from prosecution? Is there such an order, if you know?
ASHCROFT: The president has issued no such order.
BIDEN: OK, good. I just want to get the record straight.
Now, the other -- I have a couple more questions along these lines, if I may. Is it your position that in time of war, which we're in now, that Congress has no authority to question the legal judgments of the executive branch even if we think the administration may have violated a treaty or a law or the Constitution? If we think you violated a treaty, a law, a statute or the Constitution, is it your position that at a time of war that we, the Congress, don't have the authority to question you and get answers to those questions?
ASHCROFT: First of all, I think the Congress has the right to ask any question it wants. And has a responsibility -- its oversight responsibility, and to debate and to criticize where it chooses to, and commend where it chooses to and not say anything if it chooses to do that.
ASHCROFT: There are certain things, that in the interest of the executive branch operating effectively, that I believe it is inappropriate for the attorney general to say.
Some of those relate to things that he has said, perhaps in advice he has given, and some relate to hypotheticals that he might say or might not give. I think in terms of drawing that issue sharply, I thought Attorney General Murphy, who subsequently became a justice of the Supreme Court, said it very clearly.
BIDEN: But what he said was generic; he didn't say anything specific. I know what he said. He didn't say anything specific. He was generic.
ASHCROFT: No, sir. And I'm going to try and do the same.
BIDEN: Oh no, you're being very generic. I acknowledge that. You are as generic as they come.
BIDEN: No, I got it. This is generic. We're trying to get specific.
And you said that there's been no -- you're not going to give us the memoranda that were referenced here.
But let me ask you as a lawyer, as a lawyer with an advanced degree beyond law school, I'd like your legal opinion as attorney general: If in fact there was a memo that said that torture might be justified and would be constitutional if applied to interrogations, if such a memo existed, would that -- is that good law? Do you believe that to be the law?
You, the attorney general of the United States, two degrees from prestigious law schools and institutions...
ASHCROFT: I have two degrees. The third degree I get when I visit the Senate.
So I don't have a degree beyond law school, other than the ones that I'm accorded here.
BIDEN: I thought you had a master's as well in law.
ASHCROFT: Oh, I don't. But I am wishing I did at this time.
BIDEN: OK. All right. Where did you go to law school?
ASHCROFT: It wasn't under your tutelage. But maybe it should have been, because I know you teach.
BIDEN: No, I understand.
But do you think -- do you think that torture might be justified?
A question to you; not memorandum, just you, John Ashcroft, attorney general of the United States, highest-ranking law enforcement officer in the United States of America, and lawyer. Do you believe in this time of war, torture might be justified and be viewed as constitutional?
ASHCROFT: Well, first of all, this administration has not ordered or approved...
BIDEN: I'm not asking that, John. Excuse me, all due respect...
ASHCROFT: I am not going to issue...
BIDEN: I just want to know your opinion.
ASHCROFT: ... or otherwise discuss hypotheticals. I'll leave that to the academics. Just ask them the subject.
BIDEN: Do you think this is justified? It's not hypothetical.
ASHCROFT: That's not hypothetical. That's a circumstance. And that's the kind of circumstance that when it is referred to the Justice Department, we investigate. And if there is a basis for prosecution, we would prosecute. And we have...
BIDEN: John, you sound like you're in the State Department. Remember the old days when you were here looking for answers, remember on this side?
ASHCROFT: I have a recollection of that.
BIDEN: Well, my time's up, I can see.
ASHCROFT: You know, I condemn torture. I think it...
BIDEN: So it's not justified, then?
ASHCROFT: I don't think it's productive, let alone justified.
BIDEN: Well, I don't either.
And by the way, there's a reason -- I'll conclude by saying -- there's a reason why we sign these treaties: to protect my son in the military. That's why we have these treaties. So when Americans are captured, they are not tortured. That's the reason, in case anybody forgets it. That's the reason.
ASHCROFT: Well, as a person whose son is in the military now on active duty and has been in the Gulf within the last several months, I'm aware of those considerations. And I care about your son. I care about...
BIDEN: He's not there. He's in JAG and he's back here. But that's the reason.
ASHCROFT: He may not be there, but my son has been. And he happens to be stateside right now for more training, but he is scheduled to go back within the month.
BIDEN: (inaudible) Pristina. We're working for you guys. And the same thing occurred.
ASHCROFT: I just want you to know...
HATCH: Senator Sessions?
SESSIONS: Thank you, Attorney General Ashcroft, for you service.
I believe the Department of Justice has achieved great things since September 11th. You've completely reevaluated how you do business. You make sure that our investigative agencies know that prevention of attacks against the United States are just as important as investigating and prosecuting them afterwards; even more important.
And that was really not the psychology of the American government before. Our agents were just taught -- as a former prosecutor that worked with them so often -- they taught to investigate crimes after they occurred.
And you've created and broken down the wall between CIA and FBI and done a lot of other things that have made us a lot more effective in defending this country and defending American citizens from attacks by a group of people who desire nothing more than to kill innocent people to further their twisted aims.
SESSIONS: And I want to thank you for it.
I know in this body, we know, the ranking member knows that he can talk and make one allegation after another after another and you like to respond to them, but you'll not have time to do that. And neither do I. But I believe there's an answer to every one of those charges.
And I appreciate the dedication of you and your staff, the long hours they've worked, long weeks and months and months beyond any normal work to make sure this country is safe and protected.
I hope you use every legal power given you. You should do that. I believe that's your obligation, do you not, to protect this country?
ASHCROFT: I have said over and over again that we will use all the assets at our disposal to protect the American people from terror. And I believe that's what they expect of their government, and they have a right to expect it.
SESSIONS: And I know -- I understand these leaked memos. Some of them, apparently, were in draft form. I'm not sure who's seen those memos or whether they were final drafts or not -- on torture. But I think you are wise not to express an ultimate decision on the absolute, ultimate power of a president of the United States to protect the people of this country.
But I know this, because I was on the Senate Armed Services Committee when we had extensive hearings on these prisons, every memorandum, every policy directive from the Department of Defense directed that they should comply with the Geneva Conventions, comply with the laws of the United States and, frankly, it does not enhance the safety of American soldiers, and, in fact, I think, could endanger them when we have senators suggest that we changed Saddam Hussein's prisons to American prisons and there's no difference.
SESSIONS: So I feel strongly about that. And I thank you for your service.
I've offered legislation in dealing with mass transportation. And after the attack in Spain, we have seen that our country has some gaps in our laws with regard to mass transportation. Have you had a chance to review S. 2289 that would close some of the gaps and enhance our ability to prosecute those who might conduct attacks on our mass transit systems in America?
ASHCROFT: My staff has spent some time considering these issues and seeking to close gaps and statutes that might relate to the protection of mass transportation systems. I think in particular to extend to the railroads the same protection against terrorist attacks that are currently provided to mass transportation systems under the federal law now is something that should be very actively considered.
And I think, while frequently railroad trains in much of the country are not perhaps mass transportation in the same way of moving people at other mass transportation systems are, they certainly are a part of our political infrastructure that deserves our attention and protection.
SESSIONS: And, Mr. Attorney General, I believe the Patriot Act, as I've read it, in essence corrected a number of basic weaknesses that existed in our current legal system or our legal system at that time. And that we fixed a lot of those. I do not believe the Patriot Act represents any major expansion of government power. It simply made sure you could utilize that power that had been approved constitutionally against drug dealers and others against terrorists. Isn't that true?
ASHCROFT: I think that's a fair characterization of the act. It does expand the power to take it to the area of terrorism. But it doesn't invade or raise new constitutional questions or issues.
These so-called roving wiretap provisions, where you could tap more than one phone of a single person, or if they threw one phone away, you could tap the next one, that's been in place since 1986 for drug traffickers. And so similar other expansions had already been made available in the pursuit of other kinds of criminal activity.
So the department supports the Patriot Act reenactment because to forfeit that would be terrible. Just like the department supports the Railroad Carriers and Mass Transportation Act about which you asked earlier.
SESSIONS: Well, I believe that the proposed changes that some have offered weaken the act substantially. I think we should not do that. And I think we ought to take some time and go over every word of the act, and we can do that, but in the end I believe we should not make that change.
And I would just note about these memorandums, you know, we've had people here complain about their memorandums from their staff to them be leaked. And rightly so. And I do believe a president has a right to obtain legal advice from his attorney general on matters and not have to have that revealed to the whole world.
HATCH: Your time is up.
We'll now turn to Senator Feinstein.
FEINSTEIN: Thanks very much, Mr. Chairman.
Welcome, Attorney General.
I'm really concerned by the answers that I've heard today, because we've passed laws against torture. The Uniform Code of Military Justice has laws. The Geneva Conventions have laws to which we subscribe by treaty. And it seems to me, what you're doing this morning -- and please correct me if I'm wrong -- is essentially reserving this for the executive domain and not being willing to share the public policy that results in the ratification of treaties and the passage of laws as it respects torture.
These memos clearly do exist, and if you read the newspapers they appear to be an effort to redefine torture and narrow the prohibition against it by carving out a class of something called exceptional interrogation. So these memos actually either reverse or substantially alter 30 years of interpretation by our body, as well as the executive, of the Geneva Conventions.
I'd like to ask you this: Will you share access of these memos on a classified basis?
ASHCROFT: It's a long-standing position of administrations going back decades that a variety of high-level memoranda and advice are presumptively protected as a function of the separation of powers; that the president has the right to get advice from his attorney without having the advice provided outside that stream of counsel.
Only the president asserts privilege, which I have not done. But I believe that's the basis for my refusal, and I think it's a valid basis.
Now, let me just say that it is not the job of the Justice Department or this administration to define torture. Torture has been defined by the Congress. It's defined in the Torture Act and Congress was very careful in defining it. And in Section 2340 of the Torture Act, torture means "an act committed by a person acting under color of law." It's narrowly defined by the Congress. You have to be doing something pursuant to a governmental authority, specifically intended -- that's a term of art, the Congress knows that well; when you have specific intent, it's a higher level of intent than it is in other settings -- to inflict severe physical or mental pain or suffering.
And then the Congress goes to a subpoint to define severe mental pain or suffering, and in its own -- this is part of the statute. "Severe mental pain or suffering means the prolonged mental harm caused by or resulting from the intentional infliction or threatened infliction of severe physical pain or suffering." And it goes on for three more paragraphs in just defining that.
Now, I just want to make clear that I don't view my job as the job of defining torture. The Congress of the United States defined torture, and it defines torture based on the way the Senate of the United States agreed to international conventions relating to torture and to the Geneva Conventions. And the reservations expressed by the Senate in ratifying or providing advice and consent in terms of those conventions was then drawn down into this statute.
And this is something that is not the product of the Justice Department, this is the product of the action of the United States Congress.
So I want to resist the notion that the Justice Department defines torture. The Justice Department doesn't define torture. It is defined and painstakingly defined -- I don't mean any special double entendre with the word "pain" in relation to torture -- but it's painstakingly defined by the United States Congress in this.
ASHCROFT: And the definition is the same as it occurs in the treaties as it is the statute because the statute on torture is designed to be an enforcement mechanism for the treaty.
But it's something done by the Congress.
FEINSTEIN: But, Mr. Attorney General, I take it, then, that you're answer to my question is, no, that you will not make it available on a classified basis.
ASHCROFT: That's correct.
FEINSTEIN: I think Article 17 and Articles 31 of the fourth Geneva Convention is rather clear. I don't think it needs definition.
Article 17 says, "No physical or mental torture nor any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatsoever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind."
On it's face, seems to me that's crystal clear. So the only reason, in my view, for memos were to be able to find some basis to protect people who do not follow the Geneva Conventions from prosecution. And I really think...
ASHCROFT: And I really need to have a chance -- Mr. Chairman...
FEINSTEIN: All right.
ASHCROFT: Mr. Chairman, I hope you'll allow me to answer this.
ASHCROFT: I'm sorry. I didn't mean...
FEINSTEIN: Time to do it. You go ahead, please. I want to hear the answer.
ASHCROFT: Well, first of all, you're making reference to the Geneva Conventions.
ASHCROFT: The Geneva Conventions apply in certain circumstances and don't apply in other circumstances. Article 3 of the Geneva Conventions applies to prisoners of war.
FEINSTEIN: But you've been saying we're in war all morning, Mr. Attorney General.
ASHCROFT: I have been saying that. And I believe it. We're in a war with Al Qaida.
But the only people who are accorded the protections of the Geneva Convention are, number one, according to the convention itself, those nations that are high contracting parties to the convention. Al Qaida is not a high contracting party to the Geneva Convention. It repudiates the rules of war. It operates against civilians. It doesn't wear uniforms. And it has never sought to be a high contracting party.
The Geneva Conventions do not apply as it relates to Al Qaida.
ASHCROFT: Now, the law against the torture applies because it was intended to apply. But if you cite the Geneva Conventions, Section 3 applies to high contracting parties and so that you don't have the -- now, the president, he said, "We're going to follow principles" -- I'm not sure I can quote his exact language, but he said, "We'll follow and accord principles of respect similar to those in the Geneva Convention in dealing with Al Qaida warriors that we apprehend."
But the idea that somehow the Geneva Convention covers every conflict is simply not the law. And if it were intended to be the law...
FEINSTEIN: But let me...
ASHCROFT: ... as it said so...
FEINSTEIN: ... time is up.
Let me -- so if I understand you correctly, you're saying, in the war against terror, which is non-state assymetric warfare, as far as the administration is concerned, the Geneva Conventions do not apply.
ASHCROFT: Well, I am saying that there are a variety of laws that govern whether or not -- the conduct of the United States as it relates to individuals we detain in time of war.
Some of those laws -- some of those relationships are governed by Geneva, but the Uniform Code of Military Justice, it's everywhere. And the torture statute applies to a variety of circumstances. When the Congress enacted the torture statute, it enacted a law that said it applied everywhere outside the United States.
But when the Congress defined the United States, it's not simple. Because when the Congress defined the United States in the torture statute, it said, "The United States shall include special maritime and territorial jurisdictions," which means that the United States just doesn't include our 50 states. It'll sometimes include military bases. It'll sometimes include consular offices. It'll sometimes include the residences or embassy offices. And when the Congress of the United States makes these definitions, that's what I have to live by.
It seems a little bit of an anomaly to me that, on the one hand, there would be those who would accuse me of defining the law; and on the other hand, individuals who would protest the fact that I had lived by the congressional definition of the law.
ASHCROFT: When I provide to the president of the United States or members of the executive branch an assessment of what the law is, I have to go and read the law. And when there are technical definitions placed in the law by the United States Congress, I am sworn on my oath to represent the law as to what it is, not whether as a person whether in my view this would be one way or another.
And it's a complex arena with the Military Extraterritorial Jurisdiction Act with the Special Maritime Territory and Jurisdiction responsibilities with the Uniform Code of Military Justice with the various conventions, both Geneva Conventions and the anti-torture conventions. And they both have these carve-outs.
We haven't gotten to the technical part of defining the United States, which includes territory outside the United States for these purposes. Because then the Congress has come in and said that, if you look at Part 9 that defines the military or the Special Maritime and Territorial jurisdiction, it takes some people out. So for some people, the United States is defined by one set of limits; for other people, it's defined by another.
All I'm saying is that when I render advice to the executive branch which I seek to do, and the professionals of my department who know this much better than I do, they have to live by those definitions and we cannot recreate them.
Just to say, "It's common sense to read this provision," that means it's everywhere. Well, the Geneva Convention doesn't apply everywhere by its own terms and by the terms embraced by the Congress in ratification. And I have to reflect that in my advice.
HATCH: Senator, your time is up.
CRAIG: Thank you very much, Mr. Chairman.
John, it's great to see you again. You look healthier, not generic, healthier. And I appreciate that.
CRAIG: We wished you could have been with us more often. After today, I can understand...
ASHCROFT: I had intended to be with you on a continuing basis...
CRAIG: I know that.
ASHCROFT: ... for the first time in my life.
CRAIG: For those who haven't been home recently...
ASHCROFT: I lost the election.
CRAIG: I meant being up here to testify.
ASHCROFT: (OFF-MIKE) difference between being here to testify than there is sitting on your side of -- pardon me.
CRAIG: For those who haven't been home most recently, if we hadn't, and I have, and I've been on the main streets of Boise, Idaho, in the last 48 hours, there's no appearance of war. Our economy...
ASHCROFT: We want to keep it that way.
CRAIG: Our economy is growing and thriving and it's robust and Idaho citizens are trafficking in their most normal ways, except for 2,000 families in Idaho at this moment whose sons and daughters and husbands or wives have just been called up out of the Reserves and the National Guard, to go on special training to be deployed to Iraq in October.
Two thousand young men and women out of Idaho, out of a total population, out of a total population of 1.2 million. That's a heavy impact on Idaho. Idaho is very much at war.
Last Thursday evening, I spent time at Walter Reed with young men and women who were pinned and taped and stitched back together. They had been brought home from Iraq. They were the victims of war. They were not the victims of traffic accidents on Pennsylvania Avenue.
I know it is very difficult to walk out on the main streets of America and even sense that we are at war. But we are. I believe there was a young man or woman in our uniform killed in Iraq in the last 24 hours.
We are very much at war and we must not forget that. And war does afford the executive branch of government some extraordinary powers.
But, having said that, what happened at Abu Ghraib prison is not acceptable. And we know that and that's why it's being investigated fully today.
CRAIG: And if those who are being investigated are found guilty, I trust they will be prosecuted. And the greatest transparency of this government will be necessary and appropriate in that process.
And so thank you for being vigorous in that area.
But, John, you said something a couple of moments ago that frustrates me a bit when you said defining versus interpreting, and that's in relation to the Patriot Act. You and I have some disagreements there as friends, and we have disagreements on policy.
I strongly believe in the Patriot Act and I voted for it. And the Congress of the United States did extend powers in areas where it should exist and hadn't existed, and hopefully that will be improved.
It's also true that you've had your attorneys before us proposing changes in the Patriot Act. I find it fascinating therefore that when some of us propose them, we become victims of high levels of criticism.
I am proposing changes in the Patriot Act, known as the SAFE Act. I'm a primary sponsor of that, along with some of my colleagues. And we will look at those issues. As Senator Sessions just said, we will look at it in great detail, and we must.
You see, I trust you, but I don't know about the next attorney general or the next attorney general or the next attorney general, and therefore we will not build law based on trust.
What have you just said? You cannot redefine the law; you can only interpret it as Congress meant it. And we gave you extraordinary powers in an area -- or I should say we extended them out of drug into terrorism.
But I do believe in safeguards, and I do believe that there is an importance in asking for the right to proceed at certain times along the way, and that's all that the SAFE Act largely does.
CRAIG: And we'll pursue that with you. We'll debate it thoroughly in a most collegial manner. It is important. Civil liberties in this country are a basis of our great country.
And while I respect you and trust you, I don't trust government. And I don't expect our citizens to unless the laws are in place to make government perform in the appropriate fashion.
And so that's what we're about here. And I think you very much for your diligence and your effort to be tough and strong throughout these most difficult times for our country.
What I hope, though, in the end, is that Saddam Hussein will not have taken away from us something that our Constitution, in large part, granted us, and that we have it taken away in the name of safety and security.
That is the intent of the SAFE Act. That will be the intent as we debate it and as we reauthorize the Patriot Act. I will vote for a reauthorized Patriot Act. But I will vote for it with some slight changes in it that are going to be necessary and important now and in the future, and that's what we're about.
But I thank you for your presence here today and for your forthrightness. It's what we expect of you. You are a candid, bright and capable person, and that is highly respected by this individual. Thank you.
HATCH: Thank you, Senator Craig.
KOHL: Mr. Attorney General, Jose Padilla was arrested on May 2nd way back in 2002 at O'Hare and declared an enemy combatant a month later. In February of 2003, FBI announced that Al Qaida might be seeking to attack soft targets like apartment buildings. And then two weeks ago, Deputy Attorney General Colmey (ph) held a press conference to fill us in on details of the Padilla case.
Padilla's admitted to plotting to blow up apartment buildings inside the U.S. He was allegedly trained to prepare and seal an apartment building in order to obtain the highest explosive yield.
KOHL: So we had a man in custody that we knew had met with the highest members of Al Qaida. We believe that he was trained to blow up apartment buildings. And we had information on how he was going to do that.
I believe it would have been beneficial to share this information with the American public at that time, millions of whom live in apartment buildings, putting the American public on notice that Al Qaida was planning this sort of attack, would have added another layer of protection. Instead of relying exclusively on law enforcement, we could have had immediately millions of Americans assisting us and preventing such an attack.
Why wasn't that information made public back then, Mr. Attorney General?
ASHCROFT: The information of which you speak was shared with a variety of individuals who we felt could be helpful to us in making sure that the plots never transpired.
We shared that very extensively with state and local government and law enforcement officials. As you know, we have an alert list of 18,000 law enforcement agencies around the country, and that covers over almost 700,000 law enforcement officials.
We also went to the apartment owners groups of individuals to talk to them about security and to make sure that they would take whatever actions they could to be alert and to alert individuals in there various settings in their operations to make sure that we did what we could to protect the American people.
Our awareness of Mr. Padilla's circumstances and intentions was a progressive awareness. And I'm not at this time capable of recreating exactly when we learned each of these things.
But I know that we early went into the apartment owners and operators community with information about the vulnerability that apartment buildings have, particularly those where the parking is associated with the building.
But, obviously, if someone were to carry small amounts of explosives into a building one day at a time and then to go on vacation, you could have a very serious circumstance even absent parking associated with the building.
KOHL: Mr. Attorney General, last month, FBI Director Mueller testified here. I questioned him about security at the upcoming summer Olympic Games.
KOHL: His answer was not entirely satisfying. He acknowledged that there were gaps in Greek security, but that it was too early to assess how well the Greek authorities were doing to fill these gaps.
Can you give us some further information, some further sense of assurance?
ASHCROFT: Well, the United States of America is not responsible for security at the Greek games. We are interested in assisting and providing assistance, but the responsibility for the security is the responsibility of the Greek nation. It's on their territory, it's in their sovereign jurisdiction.
And the FBI and our department, we're involved in preparations. Shortly after 9/11, you remember, we had the winter Olympics, under the jurisdiction of the chairman of this committee. And we spent a lot of time and energy considering security.
We sent a team of individuals that were involved in that endeavor to make sure that those involved with the games in Greece have a capacity to understand what the challenges are.
We've provided input for a Europol threat assessment for the Greek games. Our ambassador has coordinated with a working group regarding security. We will do what can to be of assistance.
I know that there are other parts of this administration other than the Justice Department that are aggressively involved. And during the operational period of the games, the FBI will be deploying a team of personnel to Athens. But quite frankly, much of the security is determined before the games begin, in the structure, the way things are set up and the way things are done.
The support that we have been involved in developing has been a matter of our volunteering to assist. The FBI has not been given specific operational tasking in support of the Olympic Games, nor has the FBI been given any specific operational mandate in the event of an incident during the games.
But we are providing the help that is being requested and trying to provide input that will elevate the level of security and reduce the risk to both athletes and spectators in Athens.
KOHL: In March, Chairman Hatch and I urged Justice to complete a rule-making that would require all imported explosive materials to be marked in the same way domestic explosives are marked.
KOHL: This would allow investigators to determine the origin of explosives and aid them in tracking down criminals.
Four years to finalize that rulemaking, it seems to me, is too long for a straightforward issue. Now I hear the target release of June 2, 2004 will not be met. We are concerned that the threat of imported explosives is not being taken seriously enough, so I'm going to introduce legislation next week that will require markings to be placed on all imported explosives.
Can I count on your support -- your department's support for that legislation?
ASHCROFT: Well, let me just say that we recognize this is a serious issue. It's something I'd much appreciate the opportunity to review before I may comment on.
ATF has submitted a final draft rule to the department for review. The department has also recently met with representatives of the explosives industry that are concerned about this and the fact that there ought to be a level playing field between both domestic and foreign manufacturers and producers of explosives.
So I thank you for your interest in this. Your prodding is appropriate. I think you're right: Four years is too long. And we will work to issue the rule, but I could understand if you want to go forward with the legislation because you've been patient. And this is an important matter, which you don't want to be damaged as a result of your patience.
HATCH: And your time is up.
DEWINE: Attorney General, good to have you with us today.
ASHCROFT: Thank you.
DEWINE: The FISA statute is one of the most important weapons we have in the fight against terrorism. In fact, really, I'm not sure there's anything that the Justice Department does that's more important than administering the FISA statute. Unfortunately, it appears that we're still having problems with the FISA process.
On the plus side, it seems as though the Justice Department has been more aggressive in filing FISA applications, with the result that last year we saw record number of applications: over 1,700 according to your testimony. Unfortunately, however, many applications are still sitting and waiting to be processed. The staff of the independent 9/11 commission tells us, and I quote, "The application process, nonetheless, continue to be long and slow."
DEWINE: And that process is still subject to, and again I quote, "bottlenecks."
Similarly, Mr. Attorney General, on May 20th, at the last FBI oversight hearing held by this committee, I asked FBI Director Mueller how well he thought the FISA statute was being utilized.
Frankly, he seemed a little uncomfortable with the question. And he didn't want to go into much detail because some of the information, understandably, might be classified. But what he said was this -- and I must tell you, Mr. Attorney General, I was very concerned by what he did say, and let me quote -- and this is a direct quote -- "We still have concerns. There is still frustration out there in the field in certain areas where, because we've had to prioritize, we cannot get to certain requests for FISA as fast as perhaps we might have in the past," end of quote.
So you've got the independent 9/11 commission saying that. You've got the FBI director with his very candid comments to our committee. Other information that I receive indicates there's a bottleneck.
You know, I understand that you're doing a better job. You've put more resources into this. But governance is priorities. And I don't know anything that is more important that you all are doing than getting these FISA applications through.
And if I was somebody out in the field and I had worked up a FISA application and I thought it was the most important thing in the world and I'd worked it up and I had everything lined up. And it was sitting there, sitting in Washington, and I couldn't get it through, I would be very discouraged. I think it has a -- I think it has to have a demoralizing affect on the people out in the field.
DEWINE: And there's still a problem there. I mean, there is still a problem.
And I guess my question is what can you do to put more resources on this? I just think, Mr. Attorney General, you've got a ways to go on this. And I just don't think there's anything more important that you're doing. And I just think you need to put more resources on it and prioritize this.
ASHCROFT: Let me thank you for raising this issue. It's a matter of great concern to me.
The first or second thing that happened to me after I got into office was a call from the FISA court saying that we needed to renovate the FISA operation. We did. And that was early in the year 2001.
And then when September 11th hit, the demand for FISA coverage skyrocketed. It's increased by -- well, the numbers really aren't very helpful. We can say by the number of petitions up by 85 percent, but some of these are very substantial multiple surveillance petitions so that it doesn't really reflect the true numbers total.
I think there a couple of things that we wanted to do. We want to restructure the operations so that we don't have a duplicate effort, one on the FBI side, and then have it done all over again when it comes to Justice and redone. And we want to be able to work promptly by avoiding those kind of bottlenecks.
In April of this year, I combined -- in response to these issues, and part of them I think you had written about or conferred with me about, as I recall...
DEWINE: That's correct.
ASHCROFT: ... we created a special group of attorneys to look at this out of the Office of Intelligence Policy and Review to cut down on the costs of moving across the street back and forth to the FBI and moving from the field to Washington.
And we are making progress. The problem is remediating. We have fewer pipeline FISAs now than before but we're not home yet. And so we will continue to work in that respect.
I have asked, in each of the past three weeks, the chairman of this task force for reports and the reports are encouraging.
I would just say this: that we are prioritizing among FISA applications...
DEWINE: I understand you are.
ASHCROFT: ... so that at least the most promising of those applications are the ones that would be first attended to. But, frankly, it's not easy always to know where you're going to get the most, the best intelligence.
ASHCROFT: And it is not a situation where I'm confident in saying, "Well, oh well, we don't have to worry about that one. That might not be as productive..."
KOHL: And, Mr. Attorney General, my time is up. But I think that's just the point. I think you are prioritizing and you have to, but I think it's dangerous when you have to prioritize.
I think you're doing a better job, but all the information I can get indicates that we've still got a ways to go. I think you all can do a better job. And I just think that you need to put more resources on this. And I would just encourage you to put more resources on this.
I don't know that there's anything more important that you're doing in the war on terrorism. And I don't know how to say it any stronger: You've got to put more resources on this; you've got to do a better job.
And I thank you, sir.
HATCH: Thank you, Senator.
FEINGOLD: Thank you, Mr. Chairman.
Mr. Attorney General, welcome.
I must tell you I am deeply troubled by this administration's repeated efforts to misrepresent to the American people the true substance of the debate over the Patriot Act. As you are well aware, no one in the Senate is suggesting that the Patriot Act be repealed.
Furthermore, this is not, nor has it ever been, about the wall coming down between intelligence and criminal investigators. We all enthusiastically supported that needed change.
But we do deserve to have an honest discussion about the use of the Patriot Act so that Congress can decide if it has been abused. If it needs to be fixed or if every word of the Patriot Act should be extended without change beyond the sunset date for some provisions, almost 18 months from now.
It's been almost three years since the USA Patriot Act was signed into law, and still the American people don't know how some of the most controversial provisions, dealing with roving wiretaps, access to library and bookseller records, and sneak-and-peek warrants, are being used.
Three months ago, I wrote to you and asked specifically how Section 215, dealing with library records, was being used, and I still have not been provided a satisfactory response.
In the meantime, you, the president and others in the administration, have been calling on Congress to simply renew the Patriot Act, while allowing the deafening silence on how it is being used to grow louder every day.
FEINGOLD: We in the Congress and the American people deserve better.
Mr. Attorney General, when can I and others in Congress expect to hear the specifics about how the Patriot Act is being used, either in an open forum or in a classified briefing?
ASHCROFT: The information is provided to the Intelligence Committees and is available to a member of the Congress through the Intelligence Committees.
We have reported on a regular basis to the Intelligence Committees about the operation of the Patriot Act. And we are required to do so in the Patriot Act.
Part of the safeguards of the Patriot Act, in addition to every activity of the FISA community basically being pre-authorized by a federal judge and the fact that we have that kind of screening by the federal courts in advance, we are required twice a year to report to the Congress and the Intelligence Committees.
FEINGOLD: General, are you saying that this was not something you'll be providing to members of this committee?
ASHCROFT: We do not provide those kind of classified reports directly to the Judiciary Committee. We do provide them to the Intelligence Committees. That's been the format for providing and the procedure for providing classified information to the Congress.
FEINGOLD: General, I'm confused. I've been provided in the past with some information that I wanted updated of this very kind. And I don't understand why it wouldn't get an update, for example, on the number of sneak-and-peak searches and the use of that.
Seems to me that a set of broader information that should be provided at a time when we need the information and decide what to do with the active scope of the information that I'm going to be allowed to look at is narrowing.
ASHCROFT: I'm told that's being assembled for you and that you will be provided with the information about the implementation of the delayed notification search warrant provision of the act, which I would hope to be able to clarify is not a part of the specific anti- terror parts of the act, but is simply a part of the generic criminal law which was added to the act...
FEINGOLD: For which you surely have been cited repeatedly as an important tool in the fight against terrorism.
ASHCROFT: It certainly has, but not exclusively there.
FEINGOLD: Mr. Chairman, I hope that we can figure out as a committee how this information can be obtained and whether classified or not in the context of the Judiciary Committee. Otherwise, I don't know how we're going to be able to evaluate what we should do with the Patriot Act should these sunset provision come up.
Mr. Attorney General, I also want to make clarification for the record: In discussing the Patriot Act with Senator Sessions, you stated that rolling wiretap authority has been available since 1986 in the criminal law, and that's true.
But the Patriot Act gave the FBI authority under FISA that is broader than that available under the criminal law. The SAFE Act, which I co-sponsored with Senator Craig, does not seek to eliminate roving wiretap authority, as the administration officials have repeated tried to tell people it does. It just seeks to put in place protections for innocent people that are already present in the criminal law.
FEINGOLD: So let me respectfully challenge you and your staff to engage in good-faith discussion with us about this issue rather than continuing to assert incorrectly both what the Patriot Act does and also what the SAFE Act does.
General, Brandon Mayfield is an innocent American citizen who was falsely implicated and detained for the May 11th terrorist bombing in Spain. But for the fact that he had access to counsel and judicial review, Mr. Mayfield might still be in jail today. Held as an enemy combatant, Mr. Mayfield would be in a military jail without the right to an attorney. And his truthful statements of innocence would be taken simply as failure of his interrogators.
In the Mayfield case, I am very troubled by what appears to have been a rush to judgment by the U.S. Attorney.
At least three weeks before the government sought to detain Mayfield as a material witness, DOG was already aware that the Spanish police disputed the FBI's conclusion. As you're aware in the government's court filings of the Mayfield case, one of the explicit reasons cited for detaining Mr. Mayfield as a material witness was that the FBI had learned from an informant that the informant had distributed copies of the Koran throughout U.S. prisons and that this version contained an appendix called, "The Call to Jihad in the Koran: Holy Fighting for Allah's Cause."
The material witness affidavit does not state that Mr. Mayfield ever read the Koran, this Koran, endorsed this version of the Koran, possessed this Koran or ever -- had ever even seen this Koran.
Yet after describing this apparently irrelevant reference to the Koran in the affidavit, the very next paragraph of the material witness affidavit states that surveillant agents, quote, "have observed Mayfield drive to the Bilal Mosque located at 415 160th Ave., Beaverton, Oregon, on several different occasions," end quote.
Mr. Mayfield appears to have been singled out for heightened scrutiny based on a number of legitimate factors but also because of his religious beliefs.
And I do have to say, I appreciate, General, what you said in your statement about Nashala Hearn (ph), who will testify this afternoon in the Constitution Subcommittee. I agree with you that she has the right to wear a head scarf to school, but I hope you and the department would extend the same respect for free exercise of religion to those who attend mosques or other houses of worship.
I'd hate to see our nation become a place where simply exercising one's religious beliefs is a basis for investigation and criminal prosecution.
So, General, I don't know if you personally reviewed the affidavit before it was filed, but in light of what happened in the Mayfield case, what steps have you taken that will assure the millions of law-abiding Muslims in this country that their religion will not cause them to be targeted for criminal investigation or prosecution?
HATCH: Senator, your time is up.
If the general cares to answer?
ASHCROFT: Very frankly, I want to thank the senator. I think these remarks are well-taken, especially as it relates to Brandon Mayfield.
Although I'm very happy to discuss the SAFE Act and what I considered would be the impairment of our ability, for instance, in roving wire taps. For the SAFE Act would require, I believe, that we have an identity for a person before we could get a wiretap. And frequently these terrorists are very good at concealing their identity and disguising themselves. And there are things that perhaps need to be discussed. And you may be willing to do that.
Let me move to the Mayfield situation. That is an unfortunate situation which I regret. Any time any American is detained and we later find out the detention was not necessary for the maintenance of public safety and that someone's liberties were offended, I think that's something to regret. There are inevitably times when people are charged and then found innocent. If you have a system, you will have circumstances like that.
As a matter of fact, the pride of our system is that people are found innocent because we adjudicate these things. I would want to assure you that when the fingerprint came from -- when we gained access to the fingerprint, we had no identifying characteristics, whether it was male, female, who it belonged to. And it was only identified to a specific person after the analysis which brought the reason for the identification and the match. So that this was not a circumstance where someone colored his or her judgment about the analysis.
I would point as well something that was, frankly, shocking to me. It was that the independent fingerprint expert appointed by the court reached the same conclusion.
ASHCROFT: The fingerprint had been a photograph from a partial print. And obviously when the real print became available and additional analysis was engaged in, it was determined. And early in that process, before we actually -- when we learned that the reservations of the Spanish were so substantial, we went to the court, asked for the release of Mr. Mayfield. I understand, though, that he had already been detained, and that's a matter to regret.
And in terms of what are we doing to avoid that, first of all, the director of the FBI has convened a group to try and look and review.
And secondly, you asked about what are we doing to assure Muslim Americans that their rights are respected. And we have a pretty significant history of that. Today's action, which I mentioned, regarding Nashala (ph) is not unusual.
We have investigated over 400 cases of discrimination that followed 9/11 plots. We have been to mosques. We have helped prosecute cases. We have provided assistance in state and local investigations that have resulted in over 100 convictions, I believe.
And there have been federal cases that have involved convictions of between I'd say close to 15 to 20 cases where discrimination against Muslim Americans so that we've worked together with state and local authorities. There have been heinous acts of discrimination including shooting and things like that: arson.
And we will continue to do everything we can to signal that we believe the religious liberties of individuals of all faiths merit our respect and protection aggressively. And to the extent we can continue to communicate that, we will. And I'd be open to suggestions about how we might do it more effectively.
DEWINE: Let me thank you, General, and just say, because I know my time is up, that we're going to be spending the entire afternoon here in the subcommittee on the issue of alleged concerns about freedom of exercise or religion or country. This kind of situation that you, of course, apologized for raises a very serious concern about the freedom of exercise of religion on the part of many millions of Americans who could easily feel intimidated if we get this wrong. And I am deeply concerned that that not happen.
But I do appreciate your answer.
And I thank you, Mr. Chairman.
HATCH: Thank you, Senator.
SPECTER: Attorney General Ashcroft, I believe that there are many important provisions of the Patriot Act. For example, the provision which tore down the wall between warrants under the Foreign Intelligence Surveillance Act, so that when evidence was uncovered which was relevant on the trial of a criminal case, that there would not be that artificial barrier.
There are other aspects of the Patriot Act where I have some concerns with respect to the issue of showing reasons for exercising the authority which is enumerated in the act.
SPECTER: There has been a good deal of questioning on the provisions of the act, which relate to library books, relate to records, relate to other documents. There is an analogous situation as to provisions on the detention of aliens analogous from the point of view of exercising authority where there is probable cause or, articulated in another fashion, very good reason for doing so.
I raised a question with you back on July 25th of 2002 about the detention issues, where there had been a ruling by the immigration judge and the Board of Immigration Appeals and that you had the authority to overrule both of those boards. And at that time you responded that you had never exercised that authority.
On April 17th of last year, an issue came before you where there was a young Haitian refugee where there had not been any showing of a problem with respect to terrorism. And you overruled both the immigration judge and the Board of Immigration Appeals. And then the inspector general of the Department of Justice criticized the department for the failure to distinguish between immigration detainees who are connected to terrorism and those who don't have any reason for detention.
And I would ask you to reconsider the policy so that there is an individualization of what you do. If there's an indication of terrorism, probable cause or an articulatable standard for concern, I can see that.
But it seems to me that the essence of American justice to evaluate everybody on an individual basis ought to leave you to a different policy than that which you had to blanket articulation back on April 17th of last year.
ASHCROFT: If you care for me to make remarks about that, I would be please to be responsive.
SPECTER: OK. I would appreciate that.
ASHCROFT: This was known as the matter of D.J. It involved a group of 216 undocumented individuals from Haiti and the Dominican Republic who arrived in Florida in October of 2002. The vessel was one that came into the waters in an unauthorized way, evaded Coast Guard's attempts at interdiction and many of the passengers attempted to flee from law enforcement officers before they were apprehended. So we had individuals whose intention was to come into the United States or remain here illegally.
Section 236 of the Immigration and Naturalization Act provides broad discretion to me as to whether to detain or release such aliens pending a final decision on their removal.
Now, individuals who are willing to come to the United States -- and many of these people I admire their initiative and their drive...
SPECTER: Attorney General Ashcroft, I just have 10 minutes. Could you focus on the issue as to whether there is individual treatment for that...
ASHCROFT: Sometimes individual treatment is important. Sometimes it's important to make a statement about groups of people that come.
If we make a statement that groups of people that can come can just merge into society and won't be detained in the United States when they come illegally, one of the communications that takes place is back to the country of origin, all you have to do is come, even if they stop you and catch you, you will be evaluated as just fine and set loose in the country, which is what you would hope to have happen anyhow. And the triggering of mass migrations which can be very disconcerting can result from the signal that if you come to the United States, you won't be detained.
I think national security interests have to be considered when we are encountering aliens who arrive in large numbers from overseas and do so illegally.
ASHCROFT: And that's the basis for my decision.
SPECTER: Attorney General Ashcroft, final question, as there are only six minutes here.
This is a matter that I wrote to you back on November 12th of 2003, and I got answer from an assistant, which was a non-answer.
I'll ask that both of these letters be made a part of the record.
But it involves a constituent of mine, Allegheny Technologies Incorporated, which you and I talked about last week. And this involves the cleanup of a site which has tungsten, which is a naturally radioactive material.
And my constituent had paid $5 million voluntarily and was then asked to pay another $7 million, with a prospect of an additional $5 million, on an allocation made by the Department of Justice, which had a conflict of interest, where the department was representing both sides: representing the Environmental Protection Agency and the United States government, which was a responsible party.
And it seems to me that it is fundamentally unfair to have the Department of Justice on both sides of the issue with a conflict of interest.
I would ask unanimous consent, Mr. Chairman, that the letters I referred to, and a memorandum dated June 7, from Allegheny Technologies to me be placed in the record, which will set forth in some greater detail the underlying factors. And would appreciate a response from the attorney general.
HATCH: Without objection.
ASHCROFT: The case I believe to which he refers, the United States v. City of Glencove (ph). And I think you have characterized the case as -- a consent judgment was lodged with the court to provide an opportunity for public comment.
ASHCROFT: The TDY Holdings Company (ph), which is owned by Allegheny Technologies, recently was granted the right to intervene in the case and will have the opportunity to participate directly in any court review of the consent judgment.
And I believe their being at the table allows them to get justice in the context of the supervision of the federal court. And they are represented by counsel and represented well by counsel. So for me to go beyond that in this forum would be, I believe, inappropriate.
SPECTER: Well, Mr. Attorney General, they had to get leave to intervene, and there was an enormous hurdle that they had to overcome after the Department of Justice made a finding holding them for 49 percent of responsibility only because they were a deep pocket. And where that eliminates obligations by others, including the United States government, don't you think is fundamentally unfair to represent both sides in a controversy?
HATCH: Senator, your time is up.
ASHCROFT: This case is before the court at this time. For me to comment on fairness or unfairness of it would be imprudent, to say the least, in representing the United States...
SPECTER: Well, Mr. Attorney General, that's not -- that's not the point.
Final comment, Mr. Chairman.
This is what you did in the Department of Justice. The courts can consider the matter really reviewing your discretion. Apparently they have a disagreement because they allowed Allegheny Technologies intervene. But I'm asking you a very separate question, not what's pending on litigation but what the Department of Justice did and imposing these burdens on my constituents.
ASHCROFT: I'll be happy to review this matter.
SPECTER: I'd appreciate it if you would.
HATCH: Thank you.
SCHUMER: Mr. Chairman, thank you.
And, Mr. Attorney General, I know this hasn't been an easy day for you. And we respect your being here. But in all due respect, I have to say sometimes you're your own worst enemy.
And I'd like to interject a note of balance here. There are times when we all get in high dudgeon. We ought to be reasonable about this. I think there are probably very few people in this room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake.
Take the hypothetical: If we knew that there was a nuclear bomb hidden in an American city and we believed that some kind of torture, fairly severe maybe, would give us a chance of finding that bomb before it went off, my guess is most Americans and most senators, maybe all, would say, "Do what you have to do."
SCHUMER: So it's easy to sit back in the armchair and say that torture can never be used. But when you're in the foxhole, it's a very different deal.
And I respect -- I think we all respect the fact that the president's in the foxhole every day. So he can hardly be blamed for asking you or his White House counsel or the Department of Defense to figure out when it comes to torture, what the law allows and when the law allows it and what there is permission to do.
The problem is not in asking the question. The problem isn't with the issues being explored. The problem is there has to be very careful guidance, and it should be made public. And most people are reasonable and would understand that. If it doesn't, it has no legitimacy.
And the penchant for secrecy, the fact that JAG lawyers had to release this is what, I think, ends up making this issue far more difficult -- or that's what's reported in the papers that JAG lawyers might have released this -- makes it more difficult.
To me, it's the same thing as what happened in the Patriot Act. The Patriot Act, as it emerged from the Congress, ended up being fairly balanced. But people wanted to scrutinize it, as they should, as they should with torture, as they should with any of these things.
Whenever security and liberty are in balance, that's just the point where the founding fathers wanted open and wide debate.
Well, you know, librarians all across this country thought that all the books were being looked at. And it took a year. I wrote you letter after letter saying, "Make it public."
Finally, you made it public. No libraries. And the provision -- I think it was 215, as I remember -- wasn't used. But not before large numbers of people got into a whole panic.
So secrecy is the issue here. There has to be open debate, and particularly on an issue like this one, which is a sensitive issue, which is a difficult issue, which in our new world where everything is public makes your judge, the president's job in this difficult world difficult. And I appreciate that difficulty. I really do. I don't agree with the ideologues on either side here, far left or far right.
So I would renew the request that you make these memoranda public.
SCHUMER: If they're not tight enough, if they allowed too many loopholes, we certainly don't want torture to be used willy-nilly. We don't want the whim of a lieutenant to say, "Hey, there's security at stake here. We should use it."
But we also don't want the situation like I mentioned in Chicago to preclude it. But it's got to be done carefully. And if it's public. And if there's debate you can be sure it'll be careful. That's what the founding fathers in their wisdom said.
Now, you said two different things in response to the questions of Senator Leahy, Kennedy and Feinstein. You said you couldn't release them because they were privileged. But I tend to doubt that because they were evidently widely distributed. It's not the president hearing from the counsel.
Then you said they couldn't be released because they're classified. I tend to doubt that because you can redact whatever needs to be redacted in terms of classified. Certainly the balancing tests would not be classified because they can't be terribly specific.
Why can't you release these documents? Why can't we have a discussion in this brave new post-9/11 world? And Lord knows, I live with it as much as anybody, coming from the city I do and knowing people that were lost. Whey can't we start doing these things publicly, openly, understanding that there are many different views and coming to a consensus or as close to a consensus that we're going to?
So I renew my plea and the plea of others. Why can't you release these memos? And let's have a debate. Maybe they're not 100 percent. They're probably not 100 percent right. Maybe they're 10 percent, maybe they're 90 percent; we don't know.
Could you again reiterate to me the specific reasons why these memos can't be made public and we can take the debate from there?
ASHCROFT: I think the reason -- and it's not that -- if I did say that I was asserting executive privilege, I don't believe I said that and I didn't intend to say I was asserting the privilege. I think only the president asserts the privilege and I have not done so.
ASHCROFT: I have stated a reason and that is that the president has a right to receive advice from his attorney general in confidence, and so do other executive agencies of government.
ASHCROFT: And this does not mean that there can't be debate on such topics. It just means that the private advice that the president gets from his attorney general doesn't have to be a part of the debate.
There's nothing in what I am saying here that would restrain debate, either in the Congress or in the public, about such issues. You've given I think a little dissertation on this -- I don't mean anything pejorative about that; it's the kind of thing you would get in law school. Some professor would toss out the deal and set these things up and it would be the occasion for the kind of give and take in the debate which might well be appropriate.
And I commend that kind of debate except when the persons involved in the actual conduct of a war signal the parties to the war the entirety of the strategy and the understanding of the way the war may be conducted. There are times when that's not in the best interest.
And if I may just say this, I know this: that our armed forces train our own people to resist interrogation techniques. As soon as we know what the interrogation techniques are, we go to our own armed forces and we say, "This is the way you resist these interrogation techniques."
Now, for us to advertise by way of a variety of means, whether it includes one kind of disclosure or not, exactly the way in which we do things, may not be the right way to conduct policy at the time of war.
Senator Biden talked about the fact that there may be things that we would do in order to protect and secure the interests of our own citizens, who are part of these -- our responsibility at war. That strikes home at my house.
SCHUMER: But, sir, you're saying there is no...
HATCH: Senator, your time is up.
SCHUMER: Well, I just want to make this one point.
HATCH: All right.
SCHUMER: Maybe I don't understand it fully. You're saying that you're not asserting privilege, but then you're saying, "When I speak to the president directly, I want to do that privately," so you're, sort of, asserting privilege.
ASHCROFT: I am asserting the need for the executive branch to be able to receive confidential advice regarding the state of the law as a function of the doctrine of separation of powers.
SCHUMER: But these memos were more -- they had an effect on policy and what happened. They weren't just your private advice in a discussion with the president one evening. They're far more authoritative than that. Thousands rely on that.
And I'd be happy...
ASHCROFT: I am not going to comment on the documents that you allege provided a basis for a news story.
ASHCROFT: I'm simply not going to do that.
HATCH: Senator Kyl?
KYL: Thank you very much, Mr. Chairman.
And welcome back, Mr. Attorney General.
I appreciate it very much not only your oral testimony, but reviewing your written statement as well. I regret that I wasn't here for all of the exchange that you had with colleagues. I don't want to dwell on that either. Just to maybe make one quick point and then get back to something I think that is very important.
Most of us here are lawyers, and we understand the importance of getting good confidential advice from staff, especially legal advice. And it's frequently conflicting. And if it's subject to being misunderstood, that is to say that maybe one piece of it gets out into the public and is then assumed or portrayed as the totality of advice or your conclusion or the decision that the president made, then lots of misinterpretations can result.
And so it does seem to me that the question here is not what a particular memo may or may not have said -- and I conclude that you are not in a position to confirm or deny that that's the whole story -- but rather what the president's policy was, what the administration's policy is.
And my understanding, from the very first response to Senator Leahy, was that the president's decisions and directives are in accord with the law and in accord with the Constitution. And, I mean, for me, that is the ultimate answer here.
Am I incorrect in that conclusion?
ASHCROFT: Well, the president has ordered the Department of Defense to treat Al Qaida and Taliban detainees humanely and, to the extent consistent with military necessity, in a manner consistent with the principles of the Geneva Convention in spite of the fact that they're not parties to Geneva because we respect those principles.
Obviously, in terms of the Iraqi conflict, where Iraq is a high contracting party to the Geneva Convention, the United States is bound by those conventions, both Article 3 relating to prisoners of war and Article 4 relating to civilian population.
And that's the basis for my indicating the president has issued no order or directive directing conduct that would violate the torture statute or any of these other laws, which guide our behavior, should guide our behavior and do guide and have guided our behavior.
KYL: And I thank you for that.
And then the second point that you made, since Fort Huachuca in Arizona is a place where a lot of military intelligence work is done, where people are trained to interrogate prisoners and so on, and a lot of the ideas about how to train our soldiers in resisting interrogation techniques is analyzed. I think it is worth mentioning that to provide a blueprint to potential enemies as to precisely how we might go about interrogating them is to give them exactly the information they need to know in determining how to resist it.
KYL: There are a lot of stories -- and stories in the sense of factual information that's come out of this war on terror -- relative to professional training that terrorists -- Al Qaida terrorists have gotten on how to resist interrogation techniques.
Somebody is training them very well. Some of them are very, very good at it.
And I take your point that it is not useful to give anybody a blueprint as to how we might go about interrogating them fully within American law and the Geneva Conventions.
Can I change the subject, though, and ask you just to comment on something that you wanted to talk about here I think is critical? You are perhaps aware that we have introduced a bipartisan bill to reinstate all of the provisions of the Patriot Act, that is to say to eliminate the sunset provisions, on the theory that the terrorists are not going to be sun setting anytime soon and that we need to continue to pursue them in the same way that we pursue other kinds of criminals in our society.
You detailed in your written statement a wonderful list of examples of cases that the Patriot Act has been useful for and some statistical information about that.
I just wanted to conclude by asking you, for the American people, to succinctly state why it is important for us to retain these provisions of the law that we have used temporarily so far but are permanent in the law with respect to bank robbers and kidnappers and other kinds of criminals, why it's important to keep these provisions of the law in the Patriot Act or the act that is now being very useful in going after terrorists.
ASHCROFT: Well, it's important because terrorists are sophisticated users of technology: the roving wiretap provision, which really doesn't mean you can rove around and tap wires, it means you can follow a person from the use of one phone to the use of another phone. If a guy gets on his car phone and then his home phone and then his vacation house phone and his office phone, you don't have to go back to court each time to get a separate order.
Terrorists have understood that switching phones is a way to avoid detection and avoid surveillance. The drug community understood this in the 1980s and began. And the Congress recognized that and gave authority to follow them. We need that same kind of robust authority to curtail terrorism that we have to curtail the drug traffic.
Similarly, we need the ability to get business records that would tell us where terrorists are. Now, we've had 300-plus administrative subpoena authorities for federal agencies to be able to ask businesses about their business records.
Shortly after 9/11 we needed to try to find out the whereabouts of an individual, went into a hotel to ask if such a person was there. They said, "We need a subpoena before we can release that. It's a matter of corporate policy."
Well, going to get a grand jury subpoena is a bigger deal than if you had the administrative subpoena capacity we have in areas like health care fraud that could provide quick information about the whereabouts of a terrorist.
Those are the kinds of thing that make it necessary for us to have a robust authority within the framework of the Constitution, as a matter of fact within the limits that have already been reached by other enforcement techniques for other crimes.
ASHCROFT: And for us to walk away from those is for us to let down our guard against an enemy which is not getting less sophisticated, but is getting more sophisticated.
KYL: Thank you, Mr. Attorney General.
I appreciate your dedication to this effort and that of all the people in the department that work with you. And it's good to see you back in great health.
HATCH: Well, thank you, Senator.
DURBIN: Thank you very much, Mr. Chairman.
Mr. Attorney General, thank you for being here.
I don't believe what we've seen today is a routine Senate Judiciary Committee hearing. I think a lot of people are following this hearing around the world. And they're asking hard questions of us and our government, particularly after Abu Ghraib.
And I think the questions that are being asked is whether or not something has changed in America, whether some of our time-honored commitments have become a casualty of the war against terrorism.
The president and virtually every leader in Congress has assured them that it does not; that we still stand by the same values and principles that we always have.
But today, Mr. Attorney General, you quote former Justice Murphy and tell us a nation at war is bound by different rules, rules that limit disclosure, rules that expand the powers of the government and rules that change time-honored standards.
Notwithstanding the wisdom of Mr. Murphy -- Justice Murphy -- I think the Supreme Court, in ex parte Milligan, should be our guide.
In commenting on the suspension of habeas corpus by President Abraham Lincoln during the Civil War, and this is what the court said, "The Constitution of the United States is a law for rulers and people equally in war and in peace, and covers with the shield of its protection all classes of men at all times under all circumstances.
"No doctrine involving more pernicious consequences was ever invited by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism."
Mr. Attorney General, you've said you won't disclose these memos -- and I'll get to the point in a moment -- but I can tell you, frankly, contents of the memos have already been disclosed for the world to see.
And the contents of the memos call into question your statement that it's not your job or the job of this administration to define torture.
DURBIN: Here is a memo by your assistant attorney general, Jay Bybee, quoted in this morning's paper, which defines torture as, quote, "must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function or even death."
Another memo which you will not disclose, but has been leaked, and is quoted this morning, talks about seven techniques that the courts have considered torture.
The memo goes on to say, "While we cannot say with certainty that the acts falling short of these seven would not constitute torture, we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law."
Mr. Attorney General, if that isn't a definition of torture, coming straight out of your department, by the people who answer to you, what is it?
And here's the problem we have. You have said that you're not claiming executive privilege; that's for the president to claim. But the law's very clear: you have two options when you say no to this committee: Either the executive claims privilege and refuses to disclose, or you cite a statutory provision whereby Congress has limited its constitutional right to information.
So which is it, Mr. Attorney General? Is it executive privilege, or which statue are you claiming is going to shield you from making this disclosure of these memos at this point?
ASHCROFT: Thank you for your remarks.
First of all, let me agree with you as it relates to the value of the Constitution both at war and at peace. I couldn't agree more heartedly with you that the Constitution is controlling. And I would never suggest that we absent ourselves from a consideration of and adherence to and complete compliance to the Constitution of the United States.
ASHCROFT: And if there is any way in which I have suggested in my remarks today that we wouldn't do that, I want to take this opportunity to make it very clear that the Constitution of the United States is controlling in every circumstance and is never to be disregarded.
DURBIN: I respect that.
But under which standard are you denying this committee the memos, either executive privilege or a specific statutory authority created by Congress exempting your constitutional responsibility to disclose? Under which are you refusing to disclose these memos?
ASHCROFT: I am refusing to disclose these memos because I believe it is essential to the operation of the executive branch that the president have the opportunity to get information from his attorney general that is confidential and that the responsibility to do that is a function of the executive branch and a necessity that is protected by the doctrine of the separation of powers in the Constitution.
And for that reason -- and that is the reason for which I have not delivered to the Congress or the members of the Senate these memos, any memos.
DURBIN: Sir, Attorney General, with all due respect, your personal belief is not a law, and you are not citing a law and you are not claiming executive privilege. And, frankly, that is what contempt of Congress is all about.
You have to give us a specific legal authority which gives you the right to say no or the president has to claim privilege. And you've done neither.
I think this committee has a responsibility to move forward on this.
HATCH: Are these memos classified?
Is this a sidebar conference on something the attorney general has so authoritatively stated his position on?
ASHCROFT: I'll tell you: This is me getting advice which will remain confidential.
HATCH: Well, I know. But the attorney general has been speaking about these memos so authoritatively that you ought to be able to at least say whether they are classified or not.
ASHCROFT: I have answered your questions. The committee has not made a decision to ask for these memos.
DURBIN: No, but the chairman asked you a specific question. Are there memos classified?
ASHCROFT: Some of these memos may be classified in some ways for some purposes.
ASHCROFT: I don't know. I don't...
DURBIN: Mr. Attorney General, with all due respect, that is a complete evasion. What you have done is refuse to cite a statutory basis for disclosing these memos, refused to claim executive privilege, and now suggest that some parts of these may be classified.
Mr. Chairman, I hope we take this up very seriously because I think it gets to the heart of our relationship. The attorney general is an occasional guest here, and we're glad to have him.
But I think to come here and basically tell us that we cannot see documents from your department on the basis of which you've said this morning is not fair and not consistent with our Constitution.
Mr. Chairman, since you used a bit of my time, may I ask one last question?
HATCH: I'd be glad to give you...
DURBIN: I'd like to go to the SAFE Act for a moment. And I listened carefully as you were discussing the SAFE Act with Senator Larry Craig, who is a co-sponsor, and we discussed the Patriot Act. You discussed it with Senator Feingold.
ASHCROFT: I didn't discuss anything with Senator Craig. It's the one senator with whom I made no response. He consumed his entire time, and they went to the next questioner. So...
DURBIN: All right.
ASHCROFT: ... you may have listened carefully, but if you heard me talking, you heard something that didn't happen.
DURBIN: Let me acknowledge what the senator said. The senator said that we were acknowledging what Senator Sessions had said earlier we're going to go through the Patriot Act line by line, and then your conversation with Senator Feingold about the roving wiretaps.
Do I take it from what you have said that you are open to a discussion of the Patriot Act and whether there are provisions which should be revisited and changed?
ASHCROFT: I am prepared to give reasons for the administration's position on the Patriot Act in the context of a discussion. And I expect the United States Senate to be involved in robust discussions about all the kinds of things it undertakes.
I can't imagine that the United States Senate would not be interested in a robust discussion of those kinds of issues.
DURBIN: Well, you served on this committee and in the Senate and understand, as I do, that the only perfect law that was written were the 10 Commandments, and occasionally the others need amendment.
DURBIN: I would ask you if you believe those of us who are questioning some of the provisions of the Patriot Act -- do you believe that we are playing politics with national security?
ASHCROFT: I have never asserted that and I have no reason to believe it. I have not even considered it.
I simply have my own beliefs about the act and I just I'm a little bit stunned to hear a question about politics and the act.
DURBIN: Well, let me say that when we introduced the SAFE Act -- and I've been on Capitol Hill for over 20 years -- it was the first time I can ever remember the administration saying they would veto it as it was introduced, without a committee hearing, without amendment, without even presenting the bill to the White House.
And you've charged that the SAFE Act would unilaterally disarm America's defenses, risk American lives and eliminate some of the Patriot Act's most critical new tools.
So for me to ask the question of you as to whether or not you believe Senator Craig, myself, Senator Sununu, Senator Kerry and others are in some way playing politics with national security, I don't think is an unreasonable inquiry.
ASHCROFT: I simply expressed my position, that I believed that it would place the United States at serious jeopardy to forfeit a number of the protections that are included in the Patriot Act.
I stand by that statement. I believe it would be a very unwise course to chart, to retreat from the authorities which have made possible the interruption, displacement of terrorist activities, and individuals involved in them in the United States.
DURBIN: Thank you, Mr. Attorney General.
Thank you, Mr. Chairman.
HATCH: Senator Leahy has a question he'd like to ask.
LEAHY: Mr. Chairman, it's so extremely rare that we get the attorney general up here, I wish we actually had time to follow up on the questions.
HATCH: We will keep the record and we will allow, until Friday at 5 o'clock, written questions to be submitted.
LEAHY: Do we have a time for response? Because we still have questions out -- it took about 15 months the last time to get some answers, and we still have things out there that seemed to have disappeared into the Justice Department.
LEAHY: How long would you set for the time for the response to the questions, Mr. Chairman?
HATCH: General, how much time do you think you might need?
ASHCROFT: Well, that depends. Mr. Chairman, it depends because the responsibility depends on how many questions are asked.
We have answered about, in the last 15 months, over 800 questions, and they averaged three parts each. That's about close to 2,500 questions from this committee.
I know that we've answered about 80 letters from Senator Leahy. And we worked hard to get -- in addition to the questions that are proposed the letters that are sent, we've had about 2,500 letters that we have answered so far in this, I believe we're in the 108th now, Congress of the United States.
So we will do our best to answer with expedition. But it depends on how many questions are asked in terms of how much resource and capacity we have to answer them.
HATCH: I can't differ with that.
Let me just say that, assuming that there are a reasonable number of questions from the committee, and I suspect most of them will come from the Democrat side, we would like you to have your answers back within a couple of weeks. Now, if you need more time...
ASHCROFT: Why don't we say this: that if you would let us have until the end of June, and if we don't have -- if we need more time, we'll come and explain to you why we need more time?
HATCH: I think that's fair, because I suspect you're going to get a lot of questions...
LEAHY: Mr. Chairman, they'll probably be a lot less questions, a lot less letters -- and I know that an awful lot of the letters, both mine and...
ASHCROFT: You're not the champion.
LEAHY: ... and members of the Republican side don't get responses. And what they do is after eight months, a year or something like that -- there would probably be a lot less, Mr. Attorney General, if you actually appeared before this committee more often and we could actually ask the questions.
I wanted to compliment you, not on not answering Senator Durbin's question, which you did not answer, but you did answer Senator Biden's when you said there was no presidential order immunizing tortures.
LEAHY: I appreciate your straightforward answer to that question. And you followed with an answer to Senator Kyl. So I would ask -- all I'd like is the same kind of straightforward answer to my own yes-or-no question which I asked you earlier. And that can be answered yes or no.
Has there been any order or directive from the president with respect to interrogation of detainees, prisoners or combatants? I should think you could answer either yes or no on that.
ASHCROFT: You know, the president -- as a matter of fact I had it here -- the president ordered the Department of Defense to treat Al Qaida and Taliban detainees humanely and, to the extent consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions.
LEAHY: I appreciate that.
ASHCROFT: That means the answer to your question at least is yes to that extent. I don't know...
LEAHY: And has there been any other order or directive from the president with respect to interrogation of detainees, prisoners or combatants?
ASHCROFT: I'm unable to tell you more than that at this time.
LEAHY: I will submit that as one of the questions so you have a good heads-up when the questions for the record is simply this. Has there been any other order or directive from the president with respect to interrogation of detainees, prisoners or combatants? It's a pretty easy question. It should be a pretty easy answer. Either there is one or there isn't.
ASHCROFT: Mr. Chairman, a note just handed to me indicates that I should correct something that I said to Senator Feingold and I'm sorry he's not here.
And they indicate that we provide on a semi-annual basis classified information on Section 215 relating to business records to this committee, not just to the Intelligence Committees. I guess I was confused with the House -- I guess we're doing it to both committees now; it has been our practice earlier.
So that at least that circumstance is less sticky than we thought. Twice a year, we provide classified information on Section 215 relating to business records and...
HATCH: That was my understanding.
ASHCROFT: Well, thank you. I'm sorry to have misstated that earlier. And I at least am grateful I can correct one of the errors I've made this morning.
HATCH: General, I told you that I would try not to keep you beyond 12:30, two and a half hours. We've kept you three.
Let me just say this to you: Naturally, members of this committee are interested in these very important issues. And I think you've handled yourself very well here today.
HATCH: But I also fully understand when you're at war that it is important to follow the advice of people like former Justice Murphy during the Franklin Delano Roosevelt administration.
We want you to be as forthcoming as you can in response to written questions. But I do understand how difficult it is to answer some of these questions during the time of this very unique situation that we've never faced before, a war with terrorists all over the world and different groups of terrorists all over the world, in addition to Afghanistan and Iraq, and the difficulty of dealing with these hidden enemies who basically are trying to undermined the very principles of democratic government around the world and especially in our country, and following 9/11 and the potential of perhaps more terrorist activities and destructive activities not only around the world but in our country.
So I have a great deal of empathy for you in this position. It's a tough job. And people can distort what you say, they can fail to understand what you're saying. You've had to be very careful with what you've said here today. And I fully understand why. And I think any reasonable person who looks at it understands why, too.
Having said that, our colleagues on the other side will submit -- and maybe some on this -- written letters -- have written questions, and I hope that you will have your staff and others who work with you to give us the responses as quickly as you can; hopefully before the end of June.
And I hope that both sides will be reasonable in their questions and not play political games, but really ask questions for the purpose of helping us to defend our country and our laws and our Constitution rather than to try to score cheap political points, which occasionally happens on this committee.
I know nobody knows that but me, but I sure know it.
So we appreciate that you've given us three hours and five minutes of your time today. We know that's a long time for any Cabinet-level official to testify. And we appreciate the way you have testified and those who work with you.
I appreciate my colleagues. They all are very interesting. They're all very, very bright. This is a tough committee; some say the toughest on Capitol Hill. I concur with that.
I'll turn for last remarks from Senator Leahy.
LEAHY: Mr. Chairman, first off, I want to compliment you for what is a rare appearance of the attorney general for giving time.
I think you've given a lot of time.
LEAHY: Obviously, we would like to do follow-ups. But I'd ask, one, we put in the record some of the articles referenced here today; I ask consent for that.
HATCH: Without objection.
LEAHY: And secondly, just parenthetically, nothing to do with the attorney general or anybody else, but I hear some of these comments about why we have to take these extraordinary measure because we are at war.
I was with President Bush and I was at Normandy this weekend looking at the graves (inaudible) the thousands of people died there.
That was a war and that was a time when extraordinary steps were taken, extraordinary sacrifice and extraordinary measures to save this country, Europe and the rest of the world. That was a real war.
We should understand -- you and I and the rest of us here -- we will face terrorist activities for as long as we live. Some will be effective, some will not be effective. Whoever is attorney general, whoever is president will do their best to fight against terrorists.
That's not quite the same, because what I would hope -- even though these various terrorists groups, some that may come up years from now we would have never even suspected. But those may come and go, those terrorist groups.
This country survived because of its Constitution. I would hope the Constitution would live long after all of us are gone. And that is a concern also.
Terrorists, they'll strike at us. We'll defeat them; eventually we will, I'm sure of it. But we will defeat ourselves if we don't keep our Constitution alive and well long after everyone of us have left office, long after we've left this Earth and got onto whatever may be our eternal reward.
HATCH: Well, thank you, Senator.
And I want to thank you, General.
I was in Guantanamo just a few weeks ago, went thoroughly through all of the procedures there. And I have to say that these are difficult times there. These are difficult issues, difficult questions.
But I was satisfied that they were working within the bounds of the Geneva Convention, even though they are terrorists down there -- or a significant number of the approximately 600 of them are brutal terrorists. And because of the way they are working with them, we're getting a lot of very important and useful information.
And I know that couldn't occur but with the help of the Justice Department. So I just want to thank you for all of the hard work you do. I know that you have had recent illness and you've still been willing to come here today. And I want to just personally thank you for it and tell you that I think you've done a very good job.
And with that, we'll recess until further notice.
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