<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:98625.wais]
S. Hrg. 108-782
DOJ OVERSIGHT: TERRORISM AND OTHER TOPICS
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
JUNE 8, 2004
__________
Serial No. J-108-79
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
prepared statement........................................... 182
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 4
prepared statement........................................... 186
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York, prepared statement and attachment........................ 195
WITNESS
Ashcroft, Hon. John, Attorney General, Department of Justice,
Washington, D.C................................................ 7
QUESTIONS AND ANSWERS
Responses of John Ashcroft to questions submitted by Senator
Leahy.......................................................... 54
Responses of John Ashcroft to questions submitted by Senators
Leahy, Wyden, Grassley, Biden, Edwards, Kennedy, Kohl, Durbin,
and Feingold................................................... 63
SUBMISSIONS FOR THE RECORD
Allegheny Technologies, Jon D. Walton, Executive Vice President,
Human Resources, Chief Legal and Compliance Officer,
Pittsburgh, Pennsylvania, prepared statement................... 161
Ashcroft, Hon. John, Attorney General, Department of Justice,
Washington, D.C., prepared statement........................... 163
New York Times, June 8, 2004, article............................ 192
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania, letter and attachment............................ 200
Wall Street Journal, Jess Bravin, article........................ 203
Washington Post, June 8, 2004, article........................... 209
DOJ OVERSIGHT: TERRORISM AND OTHER TOPICS
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TUESDAY, JUNE 8, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Grassley, Specter, Kyl, DeWine,
Sessions, Craig, Cornyn, Leahy, Kennedy, Biden, Kohl,
Feinstein, Feingold, Schumer, Durbin, and Edwards.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. If we could 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 cannot 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 about 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 in
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 am 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 am sure, of
all of us to them.
Now, as we work here today, today's oversight hearing will
mark the seventh hearing at which our Committee will have an
opportunity to explore the effectiveness and 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, as has been widely acknowledged over the last 3
years, the key is to prevent terrorism before it occurs and,
when possible, interdict the terrorists on their homelands
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. 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, from multiple sources, indicates that al Qaeda
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 22, 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 Qaeda explosives expert. We are told that
he served as an armed guard of what we understood to be a
Taliban outpost in Kabul.
There is 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 Qaeda
operatives, including Khalid Sheikh Mohammed.
As my colleagues may recall, last year U.S. law enforcement
and intelligence agents, working together with Pakistani
intelligence agents, captured Khalid Sheikh Mohammed, who was
al Qaeda's leading operational planner and organizer. He is
believed to be the mastermind behind the September 11th
attacks.
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 he
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. 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 prosecutors in knots, and make
publicized political speeches.
Frankly, questions can be raised about the decision to try
Zacarias Moussaoui in a criminal proceedings 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 line 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 1 day al Qaeda will be defeated and
formally surrender, it is possible that the 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.
Now, 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 is consistent with our
traditional civil liberties. 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 in 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 on the Committee's markup agenda
is S. 1700, the DNA legislation. I believe that the Committee
will report and the Senate should adopt this important
bipartisan bill, which has already passed the House by a wide
bipartisan vote.
This bill will help 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. I hope to continue our bipartisan commitment to enacting
measures that may be needed to win the war against terrorism
and to work together on a wide range of programs that the
Department implements. I appreciate the service that you have
given to our country. I know how exhausting and demanding that
service is.
[The prepared statement of Chairman Hatch appears as a
submission for the record.]
With that, we will turn to our Ranking Member, Senator
Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Well, thank you, Mr. Chairman, and like you,
we all join sending out 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 knew was 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 conscience and her support of her
husband.
Mr. Attorney General, welcome. It has been, I believe,
about 15 months that have passed since your last very brief
appearance in March last year. Your testimony here comes today
about a thousand 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 threats to
our Nation did not begin in September 2001. But the preliminary
findings of the 9/11 Commission suggested 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, to woefully
inadequate information systems, to cultural attitudes that
frustrated information sharing across agencies.
Just one day before the attacks, on September 10th, you
rejected the FBI's 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 7 full months in office. 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 this 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, 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 Qaeda
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, the 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
has been held for 2 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 agents anthrax and ricin have yet to be
solved. And the Department is defending itself in a civil
rights action brought by a man who you publicly identified as a
``person of interest'' in the anthrax investigation.
U.S. citizens with no connection to terrorism have been
imprisoned as material witnesses for chunks of time--with an
``Oops, I'm sorry'' when what the Justice Department announced
was a ``100 percent positive'' fingerprint match turned out to
be 100 percent wrong.
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, the terrorists.
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 have tried to stop them from
getting compensation.
Documents have been classified, unclassified, and
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 apparently on who within the
administration is talking.
Mr. Attorney General, you spent much of the past 2 years
increasing secrecy, lessening accountability, and touting the
Government's intelligence-gathering powers. The threshold
issue, of course--and I believe you would agree with me on
this--is: What good is having intelligence if we can't use it
intelligently? Identifying suspected terrorists is only a first
step. To be safer, we have to follow through. Instead of
declining tough prosecutions, we need to bring the people who
are seeking to harm us to justice. That is 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 self-congratulatory press conferences when we are
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 cannot 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 have blamed
former administration officials for intelligence failures that
happened on your watch. You have used a tar brush to attack the
patriotism of Americans who dare to express legitimate concerns
about constitutional freedoms. You have 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 11
dragnets.
Secretary Rumsfeld recently went before the Armed Services
Committee to say that 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 Clarke 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 am 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. There is much that has gone
wrong that you stubbornly refuse to admit. For this democratic
republic to work, we need openness and accountability.
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 Congressional
oversight and ask questions. You went before the 9/11
Commission to attack a Commissioner by brandishing a
conveniently declassified memo in a so unfairly slanted
presentation that President Bush himself disavowed your
actions.
So I challenge you today to abandon any such plans for this
session and 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 is 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 that we can work
together to fix them. Let's get about the business of working
together to do a better job 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.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Hatch. Thank you, Senator.
General Ashcroft, we will take your statement at this time
if you would care to make one.
STATEMENT OF HON. JOHN ASHCROFT, ATTORNEY GENERAL, DEPARTMENT
OF JUSTICE, WASHINGTON, D.C.
Attorney General 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 would 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 is 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 to dare 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 and rockets but a est of wills,'' he said,
``a test of wills and ideas--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, the war
against al Qaeda: bombings in Spain, murder sprees in Saudi
Arabia, and improvised explosive devices in Iraq--terrorist
attacks that kill innocent men, women, and children.
At times, the war on terror might seem distant and
September 11th may seem a faint memory, but it is not. It is
not distant. It is not faint.
Credible intelligence indicates that al Qaeda wants to hit
the United States and wants to hit it hard. We are locked in a
mortal struggle between two visions for human life in a way
that can know only one victor. And we choose to be the victor.
Our vision is a vision of freedom; it is 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 is a brave 12-year-
old Muslim girl who goes to school in Muskogee, Oklahoma. Her
favorite subject is world cultures. Someday she wants to write
children's books. On September 11, 2003, school officials
forbad her to wear the hijab, or headscarf, that is the
expression of her religious faith.
Nashala's 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 quite 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 will wear her hijab when she appears in the United
States Senate.
The war we are fighting is a war for Nashala and for
freedom-loving people everywhere. We continue to strive, after
two centuries, to build that city upon a hill--a nation that
values the religious liberty of a single young girl and the
constitutional liberties of all of its citizens.
Now, contrast these ideals with the dark ambition of our
enemies. In the nightmare vision of the Taliban and al Qaeda,
little girls like Nashala are denied their rights. As a woman,
she could not go to school. She could not appear in public
without a man from her family to speak 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 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 Qaeda network and the terrorist
presence using immigration violations, minor criminal
infractions, and tougher visa and border controls. And we have
been criticized for these tough tactics. But we will continue
to use every means within the Department in its reach and
within the Constitution and the statutes to deter, disrupt, and
destroy terrorist threats.
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 have broken up terrorist plots
all across America, from Virginia to Oregon, Florida to New
York, in the heartland, on the coasts. We have 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 a
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.
America has caught numerous known al Qaeda operatives
seeking to strike America, including: Ali Saleh Kahleh al-
Marri, Jose Padilla, Iyman Faris, Zacarias Moussaoui, and
Richard Reid, to name a few.
Al-Marri was sent by al Qaeda to facilitate a second wave
of terrorist attacks on Americans. He arrived on U.S. soil on
September 11, 2001. Further investigation revealed that al-
Marri was an al Qaeda sleeper operative who was sent to provide
support to newly arriving al Qaeda operatives.
Jose Padilla dreamed of detonating a dirty bomb in the
United States and was sent here by al Qaeda to blow up
apartment buildings. After he was arrested, we learned that
Khalid Sheikh Mohammed had personally given him full authority
to conduct operations for al Qaeda in the United States of
America.
Iyman Faris, an Ohio truck driver, scouted sites in America
to help al Qaeda 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 22, 2001,
sought to ignite a bomb on a commercial airliner traveling from
Paris to Miami, Florida. Reid pled guilty, calling himself a
disciple of Osama bin Laden and an enemy of the United States.
These individuals are not alone. Al Qaeda has a fanatical
desire to wage war on Americans in America. Al Qaeda 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 preventing al Qaeda 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.
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 has 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 antiterrorism
laws to reflect new technologies and to give us the same tools
used to fight against drug dealers and organized crime so that
we could fight against terrorists.
We know that the terrorists plan to escalate their
operations in America. Credible intelligence, as mentioned by
the Chairman, from multiple sources indicates that al Qaeda
plans to attempt an attack on the United States during this
summer or fall. As this Committee knows, we are entering a
season of events of great symbolism and 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 Qaeda.
We know from Spain's bitter experience that Osama bin Laden
and al Qaeda 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 and State and local law
enforcement to these threats because we believe the face of al
Qaeda is changing and their tactics are evolving.
Al Qaeda continues to attract fanatical extremists from
many nationalities and ethnicities, including North Africans
and South Asians, in particular. Al Qaeda 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 Qaeda's ideal operatives may be older than those we have
seen before--men in their late 20's to early 30's. In addition,
they may be traveling 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 11. We have learned
lessons. We are 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. The task force is
coordinating all our intelligence, analysis, and field
operations. All field offices and LEGATs 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 Threat
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 law enforcement so they can
investigate and collect information that fills gaps in our
Nation's intelligence needs.
We have 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 ares o important to the defense of
America.
Specific intelligence is the foundation for effective
counterterrorism strategies including hardening targets,
disrupting cells, and elevating threat levels to engage our
level of preparedness.
Third, we have alerted the public. It is 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. We have asked the public to join in the hunt for
seven suspected al Qaeda operatives and to be alert for
suspicious activity.
These suspects are Amer El-Maati, Aafia Siddiqui, Adnan G.
El Shukrijumah, Fazul Abdullah Mohammed, Adam Gadahn, Abderaoud
Jdey, and Ahmed Khalfan Ghailani. They are all sought in
connection with possible terrorist threats in the United
States. They pose a clear and present danger. They should be
considered as armed and dangerous.
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 mistaken
for peace--however earnestly we desire that peace. Our
terrorist enemies have declared war on America, and they have
brought the war onto our soil.
Over the last 2 years, we have made progress. But the war
is far from over. The networks of terror continue their search
for any opportunity to turn quiet and 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 of 12-year-olds such as Nashala Hearn.
When we remember these blessings of freedom, when we
reflect on the vision we defend, our path, even amidst the
challenges of war, is clear.
I thank you for this opportunity to make my remarks.
[The prepared statement of General Ashcroft appears as a
submission for the record.]
Chairman 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 11, 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 noticed from your statement earlier,
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 Senators Schumer, Corny, and I are
cosponsoring that you may think are advisable for Congress to
adopt. So if you could answer that, I would appreciate it.
Attorney General 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 cannot.
In addition, the efficiencies provided in the Act, which
provides, say, for the use of so-called multi-point or roving
wiretaps in matters relating to terrorism, really make
efficient our ability to monitor or surveil terrorists in a way
that we have long had the authority against drug dealers and
organized crime figures, since 1986 when that was accorded the
Department in its fight against those individuals. And,
obviously, those kinds of things are just illustrative of the
kinds 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 a 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 or disrupt or
otherwise displace threatening terrorist activities. 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 time frame
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 could improve, every time
someone requires the Department 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 individual
in terrorist activities should result in the death penalty.
There are circumstances where we do not believe that that
exists now, and that would be an improvement.
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 kinds 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, for terrorism cases we
would be well served to have that same kind of authority.
This does not mean that there is an automatic ability to
get them. If a person resists that, then the courts would,
again, step in to 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 is 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 own 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 is
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 do so by
deciding that we would not re-enact those provisions of the
PATRIOT Act. I think it would be a tragedy.
Chairman 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 is very important that we
keep that funding going and live up to those promises.
With that, we will turn to Senator Leahy.
Senator 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 actions during
interrogation, up to and including torture. Today, the
Washington Post quotes from a memo from your Department that
purportedly argues that torturing a terrorism suspect may be
justified.
Now, I have 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 that it simply
won't release them. I asked you for the specific memo that is
now reported in the press 10 days ago and received no response.
I can 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 a 9/11 Commission hearing. But you have denied
information to Members of this Committee on both sides of the
aisle, and so we conduct our oversight via what we learn in the
press. 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, 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?
Attorney General Ashcroft. I want to be sure to answer
these. My note taking--
Senator Leahy. If you miss a couple--
Attorney General Ashcroft. You will remind me.
Senator Leahy. I will want to help you out by reminding
you.
[Laughter.]
Attorney General Ashcroft. Thank you. Congress has enacted
an extensive framework of laws relevant to the way individuals
who are apprehended, detained, or captured during wartime are
interrogated during wartime. The laws are numerous. They relate
to everything from the Uniform Code of Military Justice to the
torture statute, to the War Crimes Act, to the Military
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 and are 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 Conventions and--
Senator Leahy. Mr. Attorney General, without--and I know
you have no intention of filibustering the answer, but could we
go to my specific question? Did your Department issue a
memorandum that would suggest that torture is allowed under
certain circumstances, as the press has reported? That is a
simple enough question. It could take a yes or no answer.
Attorney General Ashcroft. Well, first of all, I am not
going to comment on the memos and advice that I give to
executive departments of Government, but I will say this: that
while the job is to explain the meaning of these 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 U.S. 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. It is--
Senator Leahy. Does that mean that 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 a direct order of the President or
anybody else?
Attorney General 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 underway. We
have established a special team for prosecuting such violations
in the Eastern District of Virginia. It is a U.S. Attorney's
office that is 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
taken into account our responsibility to enforce the laws
enacted by this Congress.
Senator Leahy. I would assume that you would carry out your
responsibilities. You have sworn a solemn oath to do so. But
does your answer mean that there has or has not been an order
or directive from the President within respect to interrogation
of detainees, prisoners, or combatants?
Attorney General Ashcroft. The President of the United
States has not ordered any activity which would contradict the
laws enacted by this Congress or previous Congresses--
Senator Leahy. Not quite my--
Attorney General Ashcroft. --or the Constitution of the
United States, or any of--
Senator Leahy. Mr. Attorney General, that was not my
question--
Attorney General Ashcroft. --the treaties--
Senator Leahy. That was not my question. Has there been any
order or directive from the President with respect to
interrogation of detainees, prisoners, or combatants? Yes or
no.
Attorney General Ashcroft. I am not in a position to answer
that question.
Senator Leahy. Does that mean you don't know or you don't
want to answer? I don't understand.
Attorney General Ashcroft. The answer to that question is
yes.
Senator Leahy. You don't know whether he has issued such an
order?
Attorney General Ashcroft. For me to comment on what the
President--what I advised the President--
Senator Leahy. I am not asking--
Attorney General Ashcroft. --or what the President's
activity is, is inappropriate. 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.
Senator Leahy. That doesn't answer my question, but I think
my time is up. We will come back to this later.
Chairman Hatch. Senator Grassley?
Senator Grassley. Yes, I would like to cover a
classification issue, a terrorist financing matter, and
information sharing.
On the classification issue, I would like to ask about the
FBI and Justice Department going back in time and classifying
information that Congress was given in briefings 2 years ago.
This information involves a whistle-blower by the name of
Edmonds, a translator who was fired from the FBI because of
problems pointed out. Three issues. I would 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, Civil 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?
Attorney General Ashcroft. If I am 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 generally
available. And in order to protect the national interest, a
decision was made to classify the information.
I take responsibility for that decision, and I have
reviewed the matter within the last couple months, I think at
your request or a request of a letter on your part. I am not
sure if we have talked about this personally, and that is the
reason for which the decision was made.
Senator Grassley. So you made the decision, so Civil
Division lawyers or operational people at the FBI would not
have been involved in that?
Attorney General 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 underway and the national security interests
of the United States.
Senator Grassley. Isn't 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 security or
anything, I could have been talking about it for the last 10
months and it could have been out to the public.
Attorney General Ashcroft. That is exactly right, Senator.
Senator Grassley. 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?
Attorney General Ashcroft. Well, let me just put it this
way: If there is spilt milk and there is no damage done, if you
can re-collect it and put it back in the jar, you are better
off than saying, well, it is spilt, 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 is on that basis that I
made the decision.
Senator Grassley. Okay. 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 is
cooperating smoothly on this issue. But what I see instead of a
lot of in-fighting and one-upsmanship--what I do see is a lot
of in-fighting and one-upsmanship 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 in-fighting. But what we
really need is effective leadership and strategic thinking.
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?
Attorney General Ashcroft. I believe that the Department
does have the primary responsibility in 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.
Senator Grassley. I have a bill, S. 1837, that extends the
national money-laundering strategy for 3 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
in combating terrorist financing from the standpoint of your
having primary responsibility in this area?
Attorney General Ashcroft. Well, we believe that the
Department of Justice in terms of its--obviously, its role will
always be to prosecute the violations. So let me just first
make it clear that when we talk about other agencies that are
involved in curtailing money laundering, they are 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, the 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, whether it is 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 will have to work to
get that done.
For me to go further would require me to do additional
study.
Chairman Hatch. Senator, your time is up. Do you want to
make a--
Senator Grassley. My third question has to be submitted in
writing because time has run out, but it deals with information
sharing on law enforcement between Government agencies as well
as be the Federal, State, and local level. So it is something
that comes up all the time back home, and I hope you would give
serious consideration to my third question and answer it in
writing.
Attorney General Ashcroft. It is a matter of serious
importance to us, and I will.
Senator Grassley. Thank you.
Chairman Hatch. Thank you, Senator.
Senator Kennedy?
Senator Kennedy. Thank you, and welcome, General.
Attorney General Ashcroft. Thank you.
Senator Kennedy. On the front page of the Times, it has
this quote: ``A team of administration lawyers concluded in a
March 2003 legal memorandum that President Bush was not bound
by either an international treaty prohibiting torture or by a
Federal antitorture law because he had the authority as
Commander-in-Chief to approve any technique needed to protect
the Nation's security.''
Do you agree with that conclusion?
Attorney General Ashcroft. Senator Kennedy, I am not going
to try and issue a hypothetical--
Senator Kennedy. I am not asking hypothetical. This is a
memorandum that, again, was referred to today in the Post: ``In
August 2002, the Justice Department advised the White House
that torturing al Qaeda 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?
Attorney General Ashcroft. I am not--first of all, this
administration rejects torture. It does not engage in torture.
Senator Kennedy. I am asking you whether this is--there are
three memoranda: January 9, 2002, signed by John Yoo; the
August 2002 Justice Department memo; and the March 2003, the
interagency working group. Those are the three memoranda. Will
you provide those to the Committee?
Attorney General Ashcroft. No, I will not. The--
Senator Kennedy. On what basis? Under what basis?
Attorney General Ashcroft. On the basis that the
longstanding established reasons for providing opinions
provided to the executive branch--
Senator Kennedy. General, the executive privilege is not a
legitimate basis for withholding memoranda from this Committee.
This Congress is investigating the prisoner abuses that have
occurred. Immense importance. We have a specific need of the
documents that have allowed these abuses to occur. The
memoranda at issue 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 overridden. President
Clinton waived the privilege. President Nixon claimed absolute
executive privilege in Watergate. And interesting, as we--and I
will speak about President Reagan later this afternoon or
tomorrow about my own personal feelings and 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 and 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.
Now, are you invoking executive privilege here in denying
us those memoranda? You have had 72 hours to think about this,
General. This has been in the newspapers. You had information
about it. You have had 72 hours to think about it. You knew you
were going to be asked about this. I am a member of the Armed
Services Committee. We have been investigating and looking into
this, the courageous act of the Chairman, John Warner. And we
are entitled to know whether that information is going to be
available to the committees.
Attorney General Ashcroft. Well, the confidential memoranda
provided--any confidential memoranda provided to members of the
executive branch--
Senator Kennedy. This was generally circulated. This was--
Chairman Hatch. Let him answer the question.
Attorney General 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 are
at war, and to talk about the--
Senator Kennedy. So is this--do I understand--
Attorney General Ashcroft. --powers of the President--
Senator Kennedy. This is executive privilege that you are--
and I just have a couple of final questions. My time is running
out.
What is the reason, what is the justification not providing
it?
Attorney General 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 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. The Attorney--
Senator Kennedy. All right. Okay. Well, we have your answer
on this, and I will just have another minute. But in these
memoranda, the memoranda claim that existing laws and
international treaties prohibiting torture do not apply with
the President or other officials or acting commander-in-chief.
It says the Justice Department cannot bring criminal
prosecutions against officials who commit torture while acting
``pursuant to an exercise of the President's 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 have
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 have all seen on these. And we get the hooding. This is what
directly results when you have that kind of memoranda out
there. And it says that it is all because of executive
authority and executive power. And it seems--how can anyone
else conclude that it is the President of the United States
then that has the ultimate authority and responsibility in the
issuing of these orders or the failure to stop this kind of
activities?
Chairman Hatch. Senator, your time is up, but if you would
care to answer?
Attorney General Ashcroft. 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 the 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 photograph 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, 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
practices of Attorneys General, in 1939 he put it this way, and
I am quoting: Well, 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 am 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 debate of hypotheses
and practice of what can and cannot be done by a President in
time of war is not good government. 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 is 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 a 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.
Chairman Hatch. Senator Cornyn, we will turn to you. It is
your turn.
Senator Cornyn. Thank you, General Ashcroft. You have
stated on multiple occasions here today and before, of course,
that we are at war. And, indeed, it was the 107th Congress who
voted 98-0 in the Senate and 420-1 in the House to authorize
the use of military force. And, indeed, that is what we are
doing in fighting this war on terror.
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 we fought against--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 and pursuant to 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?
Attorney General 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 Qaeda
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 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.
Senator Cornyn. Indeed, isn't it that precedent, that
Supreme Court precedent that you are referring to, that
provides the basis of the Government's position in the Padilla
and Hamdi cases currently pending before the United States
Supreme Court?
Attorney General Ashcroft. Among the precedents cited in
those cases is that case. Of course, the courts also 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
Qaeda and that the authority to take such action had been
granted by the U.S. Congress.
Senator 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?
Attorney General 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. 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 potentials of a dirty bomb so as to detonate a
device which would disperse radioactive or other very dangerous
contamination materials.
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 longstanding ability in the
United States. As I say, it was employed by President Roosevelt
in the Second World War, and obviously it is a responsibility
of the President in the war against al Qaeda to be willing to
defend the American people and to take such steps to do so in
this war as well.
Senator Cornyn. It has been said that the United States
Constitution is not a suicide pact, so I assume that you
believe--I trust you believe that it is within the authority
under international treaties, under the--
Chairman Hatch. Senator, your time is up.
Senator Cornyn. Well, I will send you any other questions I
may have in writing. Thank you.
Attorney General Ashcroft. Thank you.
Chairman Hatch. Thank you.
Senator Biden?
Senator Biden. Thank you very much.
On my 6 minutes, can I yield 20 seconds to my colleague to
follow up on a question?
Senator Kennedy. General, has the President authorized you
to invoke the executive privilege today on these documents?
Attorney General Ashcroft. I am not going to reveal
discussions, whether I have 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 am not turning over the documents.
Senator Kennedy. Well, what are you invoking then?
Attorney General Ashcroft. I have not invoked anything. I
have just explained to you why I am not turning over the
documents as a matter of policy.
Senator Biden. Thank you very much, General. That means you
may be in contempt of Congress then. You have got to have a
reason not to answer our questions, as you know from 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 is a
different question. I don't want to get off on it because I
have got to talk to you about other things. But you all better
come up with a good rationale because otherwise it is contempt
of Congress.
One of the things that I am a little confused about here is
I don't know anybody in America who has 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 is really the issue here, not whether we
should preempt or want to preempt but what we are allowed to do
to preempt.
Now, one of the questions I have--and if you don't have an
answer, I understand, if you could just let me know. It is so
seldom we get to see you. When you were on the Committee, Janet
Reno was up 12, 13 times, 22 times in her tenure. You have been
up three times. We miss you, John. We would 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 Qaeda suspects? Is
there any order that the President has issued that lets it be
known that they are immunized based on the tactics they use
from prosecution? Is there such an order? If you know.
Attorney General Ashcroft. The President has issued no such
order.
Senator Biden. Okay, good. I just wanted to get the record
straight. Now, I have a couple more questions along these
lines, if I may.
Is it your position that in time of war, which we are 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 in a
time of war we, the Congress, do not have the authority to
question you and get answers to those questions?
Attorney General Ashcroft. First of all, I think that
Congress has the right to ask any question it wants and to
question and to--it 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.
There are certain things, in the interests 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 the Justice of
the Supreme Court, said it very clearly.
Senator Biden. 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.
Attorney General Ashcroft. Yes, sir, and I am trying to do
the same.
Senator Biden. You are being very generic, that is true. I
acknowledge that. You are as generic as they come. I got it.
This is generic. We are trying to get specific. And, you know,
you said that there has been no--you are 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 would 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, 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--
Attorney General Ashcroft. I have two degrees. The third
degree I get when I visit the Senate.
[Laughter.]
Attorney General Ashcroft. So I don't have a degree beyond
law school other than the ones that I--
Senator Biden. I thought you had a master's as well in law.
Attorney General Ashcroft. No, I don't.
Senator Biden. Oh, okay.
Attorney General Ashcroft. But I am wishing I did at this
time.
[Laughter.]
Senator Biden. Where did you go to law school?
Attorney General Ashcroft. It wasn't under your tutelage,
but maybe--
Senator Biden. No, I understand.
Attorney General Ashcroft. I know you teach.
Senator Biden. But do you think that torture might be
justified? That is 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?
Attorney General Ashcroft. Well, first of all, this
administration has not ordered or approved it.
Senator Biden. I am not asking you that, John, with all due
respect.
Attorney General Ashcroft. And I am not going to--
Senator Biden. I just want to know your opinion.
Attorney General Ashcroft. --issue or otherwise discuss
hypotheticals. I will leave that to the academics. This has
been the subject--
Senator Biden. Okay. Do you think this is justified? It is
not hypothetical.
Attorney General Ashcroft. That is not a hypothetical. That
is a circumstance, and that is 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 investigations--
Senator Biden. John, you sound like you are in the State
Department. Remember the old days when you were here looking
for answers? Remember being on this side?
Attorney General Ashcroft. I have a recollection of that.
Senator Biden. Well, my time is up, I can see.
Attorney General Ashcroft. You know, I condemn torture. I
think it--
Senator Biden. So it is not justified then?
Attorney General Ashcroft. I don't think it is productive,
let alone justified.
Senator Biden. Well, I don't either, and, by the way, there
is a reason--I will conclude by saying there is a reason why we
sign these treaties: to protect my son in the military. That is
why we have these treaties, so when Americans are captured,
they are not tortured. That is the reason, in case anybody
forgets it. That is the reason.
Attorney General 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 am aware of those
considerations. And I care about your son. I care about--
Senator Biden. He is not there. He is in JAG, and he is
back here. But that is the reason.
Attorney General Ashcroft. He may not be there, but my son
has been. He happens to be stateside right now for more
training, but is scheduled to go back within the month.
Senator Biden. My son was in Pristina working for you guys,
and the same thing occurred.
Attorney General Ashcroft. I just want you to know--
Chairman Hatch. Senator, your time is up.
Senator Sessions?
Senator Sessions. Thank you, Attorney General Ashcroft, for
your service. I believe the Department of Justice has achieved
great things since September 11th. It has completely re-
evaluated how you do business. You have made 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 who worked
with them so often, they were taught to investigate crimes
after they occurred. And you have broken down the wall between
the 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. 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
after another, and you would like to respond to them, but you
will not have time to do that, and neither do I. But I believe
there is an answer to every one of those charges. And I
appreciate the dedication of you and your staff, the long hours
they have 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 is your obligation--do you not?--to protect this
country.
Attorney General Ashcroft. Well, 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 is
what they expect of their Government and they have a right to
expect it.
Senator Sessions. And I understand these leaked memos, some
of them apparently were in draft form. I am not sure who has
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 suggesting that we
have changed Saddam Hussein's prisons to American prisons and
there is no difference. So I feel strongly about that, and I
thank you for your service.
I have offered legislation 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
system in America?
Attorney General Ashcroft. My staff has spent some time
considering these issues and seeking to close gaps in statutes
that might relate to the protection of mass transportation
systems. I think in particular to extend to 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 that other mass transportation systems are, they
certainly are a part of our critical infrastructure that
deserves our attention and protection.
Senator Sessions. Mr. Attorney General, I believe the
PATRIOT Act, as I have read it, in essence corrected a number
of basic weaknesses that existed in our current legal system or
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?
Attorney General Ashcroft. I think that is 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. The 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 has been in place since 1986 for drug
traffickers. So similar other expansions had already been made
available in the pursuit of other kind of criminal activity. So
the Department supports the PATRIOT Act re-enactment because to
forfeit that would be terrible, just like the Department
supports the Railroad Carriers and Mass Transportation Act
about which you asked earlier.
Senator 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
have had people here complain about the memorandums from their
staff to them being 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.
Chairman Hatch. Senator, your time is up.
We will now turn to Senator Feinstein.
Senator Feinstein. Thanks very much, Mr. Chairman. Welcome,
Attorney General.
I am really concerned by the answers that I have heard
today because we have 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 are doing this morning--and please correct me if I am
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 would like to ask you this: Will you share access of
these memos on a classified basis?
Attorney General Ashcroft. It is a longstanding position of
administrations going back decades that a variety of high-level
memoranda and advice are presumptively protected as a function
of a 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 is the
basis for my refusal, and I think it is 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 is 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 is narrowly defined
by the Congress. You have to be doing something pursuant to a
governmental authority specifically intended--that is a term of
art. The Congress knows that well. When you have specific
intent, it is a higher level of intent than it is in other
settings--to inflict severe physical or mental pain or
suffering. And the Congress goes to a sub-point to define
severe mental pain or suffering 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
a 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 U.S. 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 is painstakingly defined by the U.S. Congress
in this, and the definition is the same as it occurs in the
treaties as it is in the statute because the statute on torture
is designed to be an enforcement mechanism for the treaty. But
it is something done by the Congress.
Senator Feinstein. But, Mr. Attorney General, I take it
then that your answer to my question is no, that you will not
make it available on a classified basis?
Attorney General Ashcroft. That is correct.
Senator Feinstein. I think Article 17 and Article 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 its face, it seems to me that is crystal clear. So the
only reason, in my view, for memos was to be able to find some
basis to protect people who do not follow the Geneva
Conventions from prosecution. You know, I really think--
Attorney General Ashcroft. I really need to have a chance--
Mr. Chairman, I hope you will allow me to answer this.
Senator Feinstein. If I may have time--
Attorney General Ashcroft. I am sorry. I didn't mean to
interrupt.
Senator Feinstein. You go ahead, please. I want to hear the
answer.
Attorney General Ashcroft. Well, first of all, you are
making reference to the Geneva Conventions.
Senator Feinstein. Correct.
Attorney General Ashcroft. And 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.
Senator Feinstein. But you have been saying we are in war
all morning, Mr. Attorney General.
Attorney General Ashcroft. I have been saying that, and I
believe it. We are in a war with al Qaeda. 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 Qaeda
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 Qaeda, and they are not intended to apply as it
relates to al Qaeda.
Now, the law against torture applies because it was
intended to apply. But if you cite the Geneva Conventions,
Section 3 applies to high-contracting parties, and so you don't
have the--now, the President, he said we are going to follow
principles--I am not sure I can quote his exact language, but
he said we will follow and accord principles of respect similar
to those in the Geneva Convention in dealing with al Qaeda
warriors that we apprehend. But the idea that somehow the
Geneva Convention covers every conflict is simply not the law.
Senator Feinstein. So let me, because my time--
Attorney General Ashcroft. And if it were intended to be
the law, the Senate hasn't said so.
Chairman Hatch. Senator, your time is up.
Senator Feinstein. So if I understand you correctly, you
are saying in the war against terror, which is non-state,
asymmetric warfare, as far as the administration is concerned,
the Geneva Conventions do not apply.
Attorney General 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 are--some of those
relationships are governed by Geneva, but the Uniform Code of
Military Justice, it is everywhere. And the torture statutes
apply 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 is 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
will sometimes include military bases. It will sometimes
include consular offices. It will sometimes include the
residences or embassy offices. And when the Congress of the
United States makes these definitions, that is 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. 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 U.S. Congress, I am sworn
on my oath to represent the law as to what it is, not as a
person whether in my view this would be one way or another.
It is a complex arena, with the Military Extraterritorial--
I cannot even pronounce it--Military Extraterritorial
Jurisdiction Act, with the special maritime and territorial
jurisdiction responsibilities, with the Uniform Code of
Military Justice, with the various conventions, both Geneva
Conventions and the antitorture 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 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 is defined
by another.
All I am 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 re-create them in what
would--you know, just to say it is common sense to read this
provision, that means it is 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. I simply do.
Chairman Hatch. Senator, your time is up.
Senator Craig?
Senator Craig. Thank you very much, Mr. Chairman.
John, it is great to see you again. You look healthier, not
generic--healthier--and I appreciate that. We wish you could
have been with us more often. After today, I can understand--
Attorney General Ashcroft. I had intended to be with you on
a continuing basis at one time in my life.
[Laughter.]
Senator Craig. For those who haven't been home recently--
Attorney General Ashcroft. I lost the election.
Senator Leahy. I thought you meant you intended to be up
here to testify.
Attorney General Ashcroft. There is a difference between
being here to testify and sitting on your side.
Senator Craig. For those of us who have not been home most
recently, if we had--and I have, and I have been on the main
streets of Boise, Idaho, in the last 48 hours, there is no
appearance of war. Our economy is--
Attorney General Ashcroft. We want to keep it that way.
Senator Craig. Our economy is growing and thriving, and it
is 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 of 1.2 million, that is 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 to even sense we are at war. But we are. I
believe there was a young man or a 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 is why it is
being investigated fully today. 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 is 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 is also true that you have had your attorneys before us
proposing change 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 am a primary sponsor of
that, along with some of my colleagues. And we will look at
those issues. 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 drugs 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 is all that the SAFE Act largely
does. And we will pursue that with you. We will 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 law is in place
to make Government perform in the appropriate fashion. And so
that is what we are about here, and I thank 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
its that are going to be necessary and important, now and in
the future. And that is what we are about.
But I thank you for your presence here today and for your
forthrightness. That is what we expect of you. You are a
candid, bright, and capable person, and that is highly
respected by this individual. Thank you.
Chairman Hatch. Thank you, Senator Craig.
Senator Kohl?
Senator 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, the FBI
announced that al Qaeda might be seeking to attack soft targets
like apartment buildings.
Then 2 weeks ago, Deputy Attorney General Comey held a
press conference to fill us in on details of the Padilla case,
that he has 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. So we have a man in custody that we knew had met with
the highest members of al Qaeda. We believed that he was
trained to blow up apartment buildings, and we had information
about 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 Qaeda 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 in preventing such an
attack. Why wasn't that information made public back then, Mr.
Attorney General?
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 law enforcement officials. As you know, we
have an alert list of 18,000 law enforcement agencies around
the country, and that covers 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
taken whatever actions they could to be alert and to alert
individuals in their various settings in their operations to
make sure that we did what we could to protect the American
people.
Our awarenesses of Mr. Padilla's circumstances and
intentions was a progressive awareness, and I am not at this
time capable of re-creating 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 go on vacation, it
would be a very--you could have a very serious circumstance,
even absent parking associated with the building.
Senator Kohl. Mr. Attorney General, last month, FBI
Director Mueller testified here. I questioned him about
security at the upcoming Summer Olympic games. 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?
Attorney General 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 is on their territory. It is in their
sovereign jurisdiction.
The FBI and our Department were involved in preparations.
Shortly after 9/11, you will 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 have 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 have 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 we 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, very frankly, much of
security is determined before the games begin, in the structure
and 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 any 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.
Senator Kohl. In March, Chairman Hatch and I urged Justice
to complete a rulemaking that would require all imported
explosive materials to be marked in the same way domestic
explosives are marked. 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 very straightforward issue. Now
I hear the target release date of June 2004 will not be met. We
are concerned that the threat of imported explosives is not
being taken seriously enough, so I am 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?
Attorney General Ashcroft. Well, let me just say that we
recognize this as a serious issue. It is something I would much
appreciate the opportunity to review before I made comment on
it. 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 are 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 have been
patient, and this is an important matter which you don't want
to be damaged as a result of your patience.
Chairman Hatch. Senator, your time is up.
Senator DeWine?
Senator DeWine. Mr. Attorney General, good to have you with
us today.
Attorney General Ashcroft. Thank you.
Senator DeWine. The FISA statute is one of the most
important weapons we have in the fight against terrorism. In
fact, really I am not sure that there is anything that the
Justice Department does that is more important than
administering the FISA statute.
Unfortunately, it appears that we are 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 a 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, continues to be long and
slow.'' 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 with 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 have had to prioritize, we cannot get
to certain requests for FISA as fast as perhaps we might have
in the past.''
So you have got the independent 9/11 Commission saying
that. You have got the FBI Director with his very candid
comment to our Committee. Other information that I received
indicates there is a bottleneck. You know, I understand that
you are doing a better job, you are putting 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 had worked
it up, and I had everything lined up, and it was sitting there
and sitting in Washington and I couldn't get it through, I
would be very discouraged. I think it has to have had a
demoralizing effect on the people out in the field.
There is still a problem there. I mean, there is still a
problem. And I guess my question is what can we do, what can
you do to put more resources on this?
I just think, Mr. Attorney General, you have got a while to
go on this, and I just do not think there is anything more
important that you are doing, and I just think you need to put
more resources on it and prioritize this.
Attorney General Ashcroft. Let me thank you for raising
this issue. It is 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 has increased, well,
the numbers really are not very helpful because we can say, by
the number of petitions, by 85 percent, but some of these are
very substantial multiple surveillance petitions, so that it
does not really reflect the true numbers total.
I think there are a couple of things that we wanted to do,
and we want to restructure the operation so that we do not have
a duplicative 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 kinds of
bottlenecks.
In April of this year, in response to these issues, and
part of them I think you had written about or conferred with me
about, as I recall.
Senator DeWine. That is correct.
Attorney General 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 are not home yet, and so we will continue to work in that
respect.
I have asked, in each of the past 3 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--
Senator DeWine. I understand you are.
Attorney General Ashcroft. --so that at least the most
promising of those applications are the ones that would be
first attended to, but, frankly, it is not easy always to know
where you are going to get the best intelligence, and it is not
a situation where I am confident in saying, ``Oh, well, we do
not have to worry about that one. That might not be as
productive as a--''
Senator DeWine. Mr. Attorney General, my time is up, but I
think that is just the point. I think you are prioritizing, and
you have to, but I think it is dangerous when you have to
prioritize. I think you are doing a better job, but all of the
information I can get indicates that we have still got a while
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 do not know that there is anything more important that
you are doing in the war on terrorism, and I do not know how to
say it any stronger. You have got to put more resources on
this. You have got to do a better job, and I thank you, sir.
Chairman Hatch. Thank you, Senator.
Senator Feingold?
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 the 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 has been almost 3 years since the USA PATRIOT Act was
signed into law, and still the American people do not know how
some of the most controversial provisions, dealing with roving
wiretaps, access to library and book-seller 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. 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?
Attorney General Ashcroft. The information is provided to
the Intelligence Committees and is available to members 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 preauthorized 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--
Senator Feingold. General, are you saying that this is not
something you will be providing directly to members of this
Committee?
Attorney General Ashcroft. We do not provide those kind of
classified reports directly to the Judiciary Committee. We do
provide them to the Intelligence Committees. That has been the
format for providing and the procedure for providing classified
information to the Congress.
Senator Feingold. General, I am confused. I have been
provided in the past with some information that I wanted
updated of this very kind, and I do not understand why I would
not get an update, for example, on the number of sneak-and-peek
searches and the use of that. It seems to me that, instead of
broader information that should be provided at a time when we
need the information to decide what to do with the Act, the
scope of the information that I am going to be allowed to look
at is narrowing.
Attorney General Ashcroft. I am told that that is being
assembled for you and that you will be provided with
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
antiterror parts of the act, but is simply part of the generic
criminal law which was added to the act in the passage of it.
Senator Feingold. Which has surely been cited repeatedly as
an important tool in the fight against terrorism.
Attorney General Ashcroft. It certainly has, but not
exclusively.
Senator 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 do not know how we are going to be able
to evaluate with the PATRIOT Act as these sunset provisions
come up.
Mr. Attorney General, I also want to make a clarification
for the record. In discussing the PATRIOT Act with Senator
Sessions, you stated that roving wiretap authority has been
available since 1986 in the criminal law, and that is 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-sponsor with Senator Craig, does not seek to
eliminate roving wiretap authority, as the administration
officials have repeatedly 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.
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. If 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
failures of his interrogators.
In the Mayfield case, I am very trouble by what appears to
have been a rush to judgment by the U.S. attorney. At least 3
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 are aware, in the
Government's filings in the Mayfield case, one of the explicit
reasons cited for detaining Mr. Mayfield as a material witness
was that the FBI 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 this Koran, endorsed this version of the
Koran, possessed this Koran or had ever 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 ``have
observed Mayfield drive to the Bilal Mosque, located at 4115
160th Avenue, Beaverton, Oregon, on several different
occasions.''
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, who will testify this afternoon in the
Constitution Subcommittee. I agree with you, that she has a
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 would 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 do not 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.
Chairman Hatch. Senator, your time is up, but if the
General cares to answer.
Attorney General Ashcroft. Well, very frankly, I want to
thank the Senator. I think these remarks are well-taken,
especially as it relates to Brandon Mayfield. Although I am
very happy to discuss the SAFE Act and what I consider would be
the impairment of our ability, for instance, in roving wiretaps
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 that the detention was not
necessary for the maintenance of public safety and that
someone's liberties were offended, I think that is 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. 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 out, as well, something that was, frankly,
shocking to me. It was that the independent fingerprint expert
appointed by the Court reached the same conclusion. 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 is a matter
to regret.
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, is not usual. We have investigated
over 400 cases of discrimination that followed the 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 would say close to 15 to 20 cases where
discrimination against Muslim Americans. So that we have worked
together with State and local authorities. There have been
heinous acts of discrimination, including shootings 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 would be open to suggestions about how we might do
it more effectively.
Senator Feingold. Let me thank you, General, and just say--
because I know my time is up--that we are going to be spending
the entire afternoon here in the Subcommittee on the issue of
alleged concerns about freedom of exercise of religion in our
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.
Chairman Hatch. Thank you, Senator.
Senator Specter?
Senator Specter. Thank you, Mr. Chairman.
Attorney General Ashcroft, I believe that there are many
important provisions of the PATRIOT Act; for example, the
provision which tore down the law 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.
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 at 2002
about the detention issue, 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 do not have any reason for
detention.
I would ask you to reconsider the policy so that there is
an individualization of what you do. If there is 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 lead you to a different policy than that which you had
the blanket articulation back on April 17th of last year.
Attorney General Ashcroft. If you care for me to make
remarks about that, I would be pleased to be responsive.
Senator Specter. Okay. I would appreciate that.
Attorney General 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 attempts at
interdiction, and many of the passengers attempted to flee from
law-enforcement officers before they were apprehended. So here
we had individuals whose intention was to come into the United
States and 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--
Senator Specter. Attorney General Ashcroft, I just have 10
minutes. Could you focus on the issue as to whether there is
individual treatment for that behavior.
Attorney General Ashcroft. Well, sometimes individual
treatment is important. Sometimes it is 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 will not 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 had
hoped to have happen anyhow.
And the triggering of mass migrations, which can be very
disconcerting, can result from a signal that if you come to the
United States, you will not 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, and that is the basis for my
decision.
Senator Specter. Attorney General Ashcroft, a final
question. There is only 6 minutes here. This is a matter that I
wrote to you back on November 12th of 2003, and I got an answer
from an assistant which was a nonanswer. I will ask that both
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 clean-up 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 the 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 U.S. 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 that I referred to and a memorandum, dated June 7th,
from Allegheny Technologies to me, be placed in the record,
which will set forth in some greater detail the underlying
factors, and I would appreciate a response from the Attorney
General.
Chairman Hatch. Without objection.
Attorney General Ashcroft. Well, the case I believe to
which you refer is the United States v. City of Glen Cove. I
think you have characterized the case as a consent judgment was
lodged with the Court to provide an opportunity for public
comment. The TDY Holdings Company, 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.
Senator Specter. 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 U.S. Government, do you not think it
is fundamentally unfair to represent both sides in a
controversy?
Chairman Hatch. Senator, your time is up.
Attorney General 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.
Senator Specter. Mr. Attorney General, that is not the
point.
A final comment, Mr. Chairman. This is what you did in the
Department of Justice. The Court is going to consider the
matter really reviewing your discretion. Apparently, they have
a disagreement because they allowed Allegheny Technologies to
intervene. But I am asking you a very separate question, not
what is pending on litigation, but what the Department of
Justice did in imposing these burdens on my constituent.
Attorney General Ashcroft. I will be happy to review this
matter.
Senator Specter. I would appreciate it if you would.
Chairman Hatch. Thank you.
Senator Schumer?
Senator Schumer. Mr. Chairman, thank you.
And, Mr. Attorney General, I know this has not been an easy
day for you, and we respect your being here. But in all due
respect, I have to say sometimes you are your own worst enemy,
and I would like to try 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.
So it is easy to sit back in the armchair and say that
torture can never be used, but when you are in the foxhole it
is a very different deal. And I respect, I think we all respect
the fact that the President is 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 is
not 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
does not, 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 is what is
reported in the papers that JAG lawyers might have released
this, JAG lawyers, makes it more difficult.
To me, it is 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 is just the point where the Founding Fathers
wanted open and wide debate.
Well, you know, librarians all across this country thought
that all of 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 had--the provision, I
think it was 215, as I remember, was not 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 job, the
President's job in this difficult world, difficult, and I
appreciate that difficulty. I really do. I do not 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. If they are not tight enough, if they allow too many
loopholes, we certainly do not want torture to be used willy-
nilly. We do not want, at the whim of a lieutenant, to say,
``Hey, there is security at stake here. We should use it,'' but
we also do not want the situation like I mentioned in Chicago
to preclude it. But it has got to be done carefully. And if it
is pubic, and if there is debate, you can be sure it will be
careful. That is what the Founding Fathers in their wisdom
said.
You said two different things in response to the questions
of Senators Kennedy, Leahy and Feinstein. You said you could
not release them because they were privileged, but I tend to
doubt that because they were evidently widely distributed. It
is not the President hearing from the counsel.
Then, you said they could not be released because they are
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 cannot be terribly specific.
Why can you not release these documents? We can we not 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. Why can we not 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 are going to?
So I renew my plea and the plea of others. Why can you not
release these memos? And let us have a debate. Maybe they are
not 100 percent. They are probably not 100-percent right. Maybe
they are 10 percent, maybe they are 90 percent. We do not know.
Could you again reiterate to me the specific reasons why
these memos cannot be made public, and we can take the debate
from there.
Attorney General Ashcroft. I think the reason--and if I did
say that I was exerting executive privilege--I do not believe I
said that, and I did not intend to say I was exerting the
privilege. I think only the President exerts the privilege, and
I have not done so.
Senator Schumer. Right.
Attorney General 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. And this does not mean that there
cannot be debate on such topics, it just means that the private
advice that the President gets from his Attorney General does
not have to be a part of the debate.
There is nothing in what I am saying here that would
restrain debate either in the Congress or in the public about
such issues. You have given I think a little dissertation on
this, and I do not mean anything pejorative about that. It is
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 a debate which
might well be appropriate.
And I think 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
understanding of the way the war may be conducted. There are
times when that is not in the best interests.
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 a part of
these--our responsibility of war. That strikes home at my
house.
Senator Schumer. But, sir, you are saying there is no--
Chairman Hatch. Senator, your time is up.
Senator Schumer. Well, I just want to make this one point.
Chairman Hatch. All right.
Senator Schumer. And maybe I do not understand it fully.
You are saying that you are not asserting privilege, but then
you are saying, when I speak to the President directly, I want
to do that privately. So you are sort of asserting privilege.
Attorney General 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.
Senator Schumer. But these memos were more pol--they had an
effect on policy and what happened not just they were not just
your private advice in a discussion with the President one
evening. They are far more authoritative than that. Thousands
rely on it. And I would be happy to--
Attorney General Ashcroft. I am not going to comment on the
documents that you allege provided the basis for a news story.
I am simply not going to do that.
Chairman Hatch. Senator Kyl?
Senator Kyl. Thank you very much, Mr. Chairman.
Welcome back, Mr. Attorney General. I appreciated very much
not only your oral testimony, but reviewing your written
statement as well. I regret that I was not here for all of the
exchange that you had with colleagues. I do not 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 is frequently conflicting. And
if it is 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 is
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. I mean, for me, that is
the ultimate answer here. Am I incorrect in that conclusion?
Attorney General Ashcroft. Well, the President has ordered
the Department of Defense to treat al Qaeda and Taliban
detainees humanely and, to the extent consistent with military
necessity and in a manner consistent with the principles of the
Geneva Conventions, in spite of the fact that they are not
parties to Geneva, because we respect those principles.
Obviously, in terms of the Iraq conflict, where Iraq is a
high-contracting party to the Geneva Conventions, 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 is 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.
Senator Kyl. And I thank you for that.
And then the second point you made, since Fort Huachuca, in
Arizona, is a place where a lot of our 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.
There are a lot of stories, and stories in the sense of
factual information that has come out of this war on terror
relative to professional training that al Qaeda 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 sunsetting any time 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 is important to keep these
provisions of the law in the PATRIOT Act, the act that is now
being very useful in going after terrorists.
Attorney General Ashcroft. It is important because
terrorists are sophisticated users of technology--the roving
wiretap provision, which really does not 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 do not 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 1980's 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 have 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 and find out the
whereabouts of an individual. We went into a hotel to ask if
such a person was there. They said, ``We need a subpoena before
we can release that. It is a matter of corporate policy.''
Well, going to get a grand jury subpoena is a bigger deal than
we have 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 things 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. 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.
Senator Kyl. Thank you, Mr. Attorney General. I appreciate
your dedication to this effort and that of all of the people in
the Department that work with you, and it is good to see you
back in great health.
Chairman Hatch. Thank you, Senator.
Senator Durbin?
Senator Durbin. Thank you very much, Mr. Chairman.
Mr. Attorney General, thank you for being here.
I do not believe what we have seen today is a routine
Senate Judiciary Committee hearing. I think a lot of people are
following this hearing around the world, and they are 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 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 invented 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 have said you will not disclose
these memos, and I will get to that 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 is not your job or
the job of this administration to define torture.
Here is a memo by your Assistant Attorney General, Jay
Bybee, quoted in this morning's paper, which defines torture as
``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 which has
been leaked and is quoted this morning, talks about seven
techniques that the Courts have considered torture. And 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 is not a definition of
torture coming straight out of your Department by the people
who answer to you, what is it?
And here is the problem we have. You have said that you are
not claiming executive privilege. That is for the President to
claim. But the law is 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 statute are you claiming is going to shield
you from making this disclosure of these memos at this point?
Attorney General 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 could
not agree more heartily with you that the Constitution is
controlling, and I would never suggest that we absent ourselves
from the consideration of, and adherence to, and complete
compliance with the Constitution of the United States. And if
there is any way in which I have suggested in my remarks today
that we would not 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. There is flatly no doubt.
Senator 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?
Attorney General 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.
Senator Durbin. Mr. Attorney General--
Attorney General Ashcroft. 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.
Senator Durbin. Mr. 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 have done neither.
I think this Committee has a responsibility to move forward
on this.
Chairman Hatch. Are these memos classified?
Senator Leahy. Is this a side-bar conference on something
the Attorney General has so authoritatively stated his position
on?
Attorney General Ashcroft. This is me getting advice which
will remain confidential.
Chairman Hatch. That is great.
Senator Leahy. I know, but the Attorney General has been
speaking about these memos so authoritatively, that you ought
to at least be able to say whether they are classified or not.
Attorney General Ashcroft. I have answered your questions.
The Committee has not made a decision to ask for these memos.
Senator Durbin. No, but the Chairman asked you a specific
question. Are these memos classified?
Attorney General Ashcroft. Some of these memos may be
classified in some ways for some purposes. I do not know, I do
not--
Senator 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 are 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 what
you have said this morning is not fair and not consistent with
our Constitution.
Mr. Chairman, since you used a bit of my time, I ask one
last question.
Chairman Hatch. I would be glad to give you one.
Senator Durbin. I would 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 cosponsor, and we
discussed the PATRIOT Act. You discussed it with Senator
Feingold.
Attorney General Ashcroft. I did not discuss anything with
Senator Craig. It is the one Senator with whom I made no
response. He consumed his entire time, and they went to the
next questioner. So you may have listened carefully, but if you
heard me talking, you heard something that did not happen.
Senator Durbin. Let me acknowledge what the Senator said.
The Senator said that we were acknowledging what Senator
Sessions had said earlier, we are going to go through the
PATRIOT Act line-by-line, and then your conversation with
Senator Feingold abut 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?
Attorney General 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 of the kinds of
things it undertakes. I cannot imagine that the United States
Senate would not be interested in a robust discussion of those
kinds of issues.
Senator Durbin. Well, you served on this Committee, and in
the Senate, and understand as I do that the only perfect laws
written were the Ten Commandments, and occasionally the others
need amendment.
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?
Attorney General 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 am a little
bit stunned to hear a question about politics and the act.
Senator Durbin. Well, let me say that when we introduced
the SAFE Act, and I have been on Capitol Hill for over 20
years, it is the first time I could ever remember the
administration said 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 have 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 do not think is an unreasonable inquiry.
Attorney General Ashcroft. I simply expressed my position
that I believe that it would be to place the United States in
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
and displacement of terrorist activities and individuals
involved in them in the United States.
Senator Durbin. Thank you, Mr. Attorney General.
Thank you, Mr. Chairman.
Chairman Hatch. Senator Leahy has a question he would like
to ask.
Senator Leahy. Mr. Chairman, it is so extremely rare we get
the Attorney General up here, I wish we actually had time to
follow up on the questions.
Chairman Hatch. We will keep the record open, and we will
allow until Friday, at 5 o'clock, written questions to be
submitted.
Senator Leahy. And do we have a time for response? Because
we still have questions out, and it took about 15 months the
last time to get some answers, and we still have things out
there that seem to have disappeared in the Justice Department.
How long would you set for the time for the response to the
questions, Mr. Chairman?
Chairman Hatch. General, how much time do you think you
might need.
Attorney General Ashcroft. Well, that depends.
Chairman Hatch. You do not know what the questions are.
Attorney General Ashcroft. Mr. Chairman, it depends because
the responsibility depends upon how many questions are asked.
We have answered about, in the last 15 months, over 800
questions, and they average three parts each. That is about
close to 2,500 questions from this Committee. I know that we
have answered about 80 letters from Senator Leahy, and we work
hard to get, in addition to the questions that are proposed,
the letters that are sent.
We have had about 2,500 letters that we have answered so
far in this. I believe we are in the 108th now Congress of the
United States, and 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.
Chairman Hatch. I cannot 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's side, we would like you to have your answers
back within a couple of weeks. Now, if you need more time--
Attorney General Ashcroft. Why do we not say this, that if
you would let us have until the end of June, and if we need
more time, we will come and explain to you why we need more
time.
Chairman Hatch. I think that is fair because I suspect you
are going to get a lot of questions, and we will give you
enough time.
Senator Leahy. Mr. Chairman, there would probably be a lot
less questions, and a lot less letters if these were more
accountability and cooperation. I know that an awful lot of
letters, both mine and--
Attorney General Ashcroft. You are not the champion. There
are Republicans who ask more than you.
Senator Leahy. --members of the Republican side who do not
get responses or, if they do, it is after 8 months, a year or
sometimes longer. 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 on answering
Senator Biden's when you said there was no presidential order
immunizing torture. I appreciate your straightforward answer to
that question, and your follow-up with an answer to Senator
Kyl.
However, I would like the same kind of straightforward
answer to my own ``yes or no'' question which I asked you
earlier. 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.
Attorney General Ashcroft. You know, the President--as a
matter of fact, I have it here--the President ordered the
Department of Defense to treat al Qaeda and Taliban detainees
humanely and to the extent consistent with military necessity
in a manner consistent with the principles of the Geneva
Conventions.
Senator Leahy. I appreciate that.
Attorney General Ashcroft. That means the answer to your
question at least is yes to that extent. I do not know if--
Senator Leahy. Has there been any other order or directive
from the President with respect to interrogation of detainees,
prisoners or combatants?
Attorney General Ashcroft. I am unable to tell you more
than that at this time.
Senator Leahy. I will submit that as one of the questions,
so you have a good heads up as to one of the questions for the
record. It is simply this: Has there been any other order or
directive from the President with respect to interrogation of
detainees, prisoners or combatants? It is a pretty easy
question. It should have a pretty easy answer. I mean, there
either is one or there is not.
Attorney General Ashcroft. Mr. Chairman, a note just handed
me indicates that I should correct something that I said to
Senator Feingold, and I am sorry he is not here. 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.
[Pause.]
Attorney General Ashcroft. I guess we are doing it to both
Committees now. It had been our practice earlier.
So 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--
Chairman Hatch. That was my understanding.
Attorney General Ashcroft. Well, thank you. I am sorry to
have misstated that earlier, and I at least am grateful for
the--I can correct one of the errors I have made this morning.
Chairman Hatch. General, I told you that I would try not to
keep you beyond 12:30--2.5 hours. We have 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 handled yourself very well here today, but I also
fully understand, when you are 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 have 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 undermine 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 is a tough job, and people can distort what you say. They
can fail to understand what you say. You have had to be very
careful of what you have 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 side, written letters and
written questions, and I hope that you will have your staff and
others 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 have give us 3 hours and 5
minutes of your time today. We know that is 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 are all very interesting.
They are all very, very bright. This is a tough Committee, some
say the toughest on Capitol Hill. I concur with that.
I will turn for the last remarks from Senator Leahy.
Senator Leahy. Mr. Chairman, first off, I want to
compliment you on what is a rare appearance of the Attorney
General, for giving time for this hearing. I think you have
given a lot of time. Obviously, we would like to do follow-ups,
but absence of that I would ask, one, that we put in the record
some of the articles referenced here today. I would ask consent
for that.
Chairman Hatch. Without objection.
Senator Leahy. And, secondly, on a parenthetical issue that
has nothing to do with the Attorney General or anybody else, I
would like to raise the issue of the comments that we have to
take these extraordinary measures because we are at war. I was
with President Bush and others at Normandy this weekend looking
at the graves of the thousands of people who died there. That
was a war, and that was a time when extraordinary steps,
extraordinary sacrifice and extraordinary measures were taken
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.
But that is not quite the same, because what I would hope
is that even though these various terrorist groups, including
some that may come up years from now that we have never even
suspected, may come and go, this country will survive because
of its Constitution. I would hope the Constitution will live
long after all of us are gone, and that is a concern, also.
Terrorists will strike at us. We will defeat them. Eventually,
we will, I am sure of it. But we defeat ourselves if we do not
protect our Constitution and allow it to remain alive and well
long after every one of us have left office, and long after we
have left this earth and gone on to whatever may be our eternal
reward.
Chairman 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. 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 are getting a lot of
very important and useful information, and I know that could
not occur without 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 have still
been willing to come here today, and I want to just personally
thank you for it and tell you that I think you have done a very
good job.
With that, we will recess until further notice.
[Whereupon, at 1:35 p.m., the Committee was adjourned.]
[Question and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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