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Transcript of Ashcroft December 6 Testimony Before Senate

Cite as "AILA InfoNet Doc. No. 01121032 (posted Dec. 10, 2001)"

Attorney General Transcript

Senate Judiciary Committee

"DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism."

Thursday, December 6, 2001

SEN. LEAHY: (Strikes gavel.) Let -- could I ask -- we want -- (tapping on the table) -- everybody, I want to -- certainly I don't want to cut out the press in an way here, but I would ask you to step back now, if we could, as -- let me -- just a couple of housekeeping things before we start:

I am advised there will be roll call votes this morning. Attorney General Ashcroft is familiar with that, and I -- first off, I thank the attorney general for being -- as he told me earlier, being un-senatorial and arriving early. And I do appreciate that.

What I think we'll do, with Senator Hatch's agreement, if we might, if roll call starts, we will continue on with the questioning, and at some point, as the time goes down that first roll call, as one senator finishes, we will break and go over -- the senators will go over so we can do that roll call, plus the next one, come back, and begin again with whoever is next in line -- so hopefully you'll be gone for only about 10 minutes, 12 minutes or so -- and then just see what happens with the third role call, trying to accommodate as many of you as I might.

And to the attorney general, I would say welcome -- welcome you here. When you and I chatted on the phone yesterday, as you know, I called to thank you for coming, and I appreciate it. And of course, you've served with almost everybody on this committee, so you should feel at home. I appreciate the comments you made yesterday, when -- as you were telling me just earlier, when asked about whether there should be some kind of a bipartisan panel to look at all these things, and you said, "Well, there is at least one" -- the one right here, on which you've served with distinction for years.

In the 12 weeks since the September 11 attacks, Americans and law enforcement have been working tirelessly to protect the public, to capture and thwart terrorists and to bring them to justice. And for its part, Congress, too, has moved promptly on several fronts, including our expedited consideration and enactment of the antiterrorism bill two week -- two months ago.

Now, in the two months since your last appearance before this committee, General, terrorism has also reached Congress' doorstep. That's why we're meeting in this room today and not in the Hart Building, which remains closed. One of the two anthrax letters that came to the Hill went to -- as you know, to the Hart Building, and it was of such powerful nature, that building is still closed.

Last week the Justice Department witness appearing before this committee described Congress as a full partner in our nation's antiterrorism efforts. That's the way the founders and the Constitution intended it, and I appreciate Mr. Chertoff in saying that. The partnership of our two branches of government working together produced an antiterrorism bill that was actually better than either the executive branch or the legislative branch would have produced, had they acted on their own. Also, because we acted together, we had greater confidence in the public and their resolve.

America works best when all parts of our government work together. And as we continue our discussion of important and difficult questions about the means to be used in the fight against terrorism, let no one, friend or foe, make any mistake about what this discussion is; it is a principled discussion of policy approaches. It's a constructive assessment of the effectiveness of those approaches. It's undertaken by partners in our country's effort against a common and terrible enemy.

Tomorrow is the 60th anniversary of the attack on Pearl Harbor. Many have compared the galvanizing effect of that attack to that of the atrocities committed on September 11th. Well, today, just as 60 years ago, government at every level is under great pressure to act. Our system is intended to help make sure that what we do keeps us on a heading that achieves our goals but while holding true to our constitutional principles.

The Constitution does not need protection when its guarantees are popular, but it very much needs our protection when events tempt us to, just this once, go beyond the Constitution. The need for congressional oversight and vigilance is not, as some mistakenly described it, to protect terrorists. It is to protect ourselves, as Americans, and protect our American freedoms that you and I and everybody in this room cherish so much.

Every single American has a stake in protecting our freedoms; to make sure that we keep in sight at all times a line that separates tremendous government power on the one hand and the rights and liberties of all Americans on the other hand; it's to make sure that our government has good reason before snooping into our bank records, our tax returns, our e-mails, or before the government listens in as we talk with our attorneys. It's to make sure that no one official, however well-intentioned, decides when that line is to be crossed without good reason for that decision. Now, whether the administration's recent actions are popular or unpopular at the moment -- that's not the issue.

As the oversight committee for the Department of Justice, we accept our responsibility to examine them. That's our role under the Constitution. That's our duty. We are sworn to do that; we will not shrink from that duty. But so, too, is congressional oversight important in helping to maintain public confidence in our system of laws. In our society, unlike in so many other nations, when a judge issues an order, it's respected and carried out, because the public has faith in our system and its laws. The division of power and the checks and balances built into our system help sustain and earn the public's confidence in the actions taken by the government. The consent of the governed that's at the heart of our democracy makes our laws effective and sustains our society.

I commend Senator Schumer, the chairman of the administration oversight and courts subcommittee, and Senator Feingold, the chair of our Constitution subcommittee, for holding their hearings earlier this week, for the very constructive contributions to those hearings by Senator Hatch and Senator Sessions and Senator Durbin, Senator Feinstein and others. That's in the finest tradition of our Senate and our country. And during the past week of hearings and public debate, this oversight process already has contributed to clarifying the president's order to establish military tribunals. It now seems, following these hearings, that the president's language that ostensibly suspends the writ of habeas corpus and the language providing for secret trials and the expansive sweep of the president's November 13 order were not intended. Instead, the administration's intention is to use procedural rules more like those in our courts and our courts martial. Over the last week, it's become clearer that, as written, the president's order outlines a process that is far different than our military system of justice. American military justice is the best in the world. It includes open trials and right to counsel and judicial review. The public can see what is happening. It also appears that the risks of pursuing victor's justice are beginning to be understood more fully as the initial conception of that order is clarified. And I commend the members of this committee for their contribution to that process.

Last week, Senator Specter wrote an article expressing his concern that the administration had not demonstrated the need for the president's extraordinary broad order on military commission. Others, Democrats, Republicans, moderates, conservatives, liberals have expressed concern about the broad power asserted by the administration and about the manner in which it asserted them, bypassing Congress and the court.

Last week's hearing allowed the committee to hear first-hand -- last Wednesday's hearing allowed the committee to hear first-hand from legal experts across the spectrum on these questions. Now, let me be very clear. There are circumstances where military tribunals are appropriate. And I agree with the constitutional experts and others who've testified before the committee that military tribunals can have a role in the prosecution of the campaign against terrorism. But many issues remain how to proceed with such tribunals in the best interest of our national security. And ultimately the question is not only whether our government has the right or the power to take certain actions and in certain ways, but whether the means we choose really protect our security.

Defining those circumstances where military tribunals serve our national security interests is no easy task. Congress has contributions to make to this discussion, as we already have. To many, the constitutional requirement that military tribunals be authorized by Congress is clear. To others, it's not. To everyone, it should be beyond argument that such an authorization, carefully drawn by both branches of government, would be helpful in resolving this doubt. It would give credibility to the use of military tribunals.

Several members of the committee of both parties have been crafting ideas for such an authorizing resolution to clarify these issues. Mr. Attorney General, when I've called you in the past on issues to work with us, you have. And so I invite you to work with members of the committee in creating a consensus charter for tribunals. And I suspect the Armed Services Committee, several members of which are on this committee, would want the same. It's never easy to raise questions about the conduct of the executive branch when our military forces are engaged in combat, even when those questions do not concern our military operations. The matters we are examining concern homeland security and our constitutional rights and preserving the limits on governmental authority that form the foundation of our constitutional democracy. These are questions that go to the heart of what America stands for, to its people and to the world, especially to show them what we are and what we do when we are put to the test, a test that we've been put to far more than most of us can remember.

These are questions that we need to debate openly and properly. This committee hopes to cast the light of reasoned public inquiry on the administration's actions, especially on sweeping unilateral actions that might affect fundamental rights. Ultimately, taking a close look at the assertions of government power is one of the best ways to preserve our freedom and our security.

None of us in elective or appointed positions in government has a monopoly of wisdom or of patriotism, but under our system, none of us have a monopoly on authority. The framers of our Constitution had great confidence in George Washington. They didn't expect him to abuse his power. But they did not entrust their liberty to his or to any government's good intention. Instead, they provided a system of checks and balances, including congressional oversight and judicial review and public scrutiny.

This committee will be vigilant in seeking to preserve those fundamentals of our American constitutional system. We can be both tough on terrorists and true to the Constitution. It is not an either/or choice.

So I look forward to hearing from the attorney general. He is a friend of each and every one of us on this committee. I thank him for making this appearance. And I turn to Senator Hatch, a man I've served with for decades now, back when his hair was black; mine was there.

SEN. ORRIN HATCH (R-UT): (Chuckles.) Well thank you, Mr. Chairman. I'm honored to be with you today. And as you know, I was pleased to co-author with you the letter we sent to our good friend and former colleague, the attorney general of the United States, asking him to come before this committee to describe for us, and for the American people, some of the recent initiatives undertaken by the administration to protect Americans from terrorist attacks. And I am gratified that Attorney General Ashcroft readily accepted our invitation and has taken time from his critical duties to be here with us today.

Mr. Chairman, a week ago, the airwaves were filled with alarmist rhetoric charging that the administration's actions had trampled the Constitution. During the course of these oversight hearings, as expert after expert has affirmed the constitutionality of these measures, I have noticed a change in the tone of the criticisms being leveled at the administration. The principal complaints we now hear are not that the measures are unconstitutional but, rather, that the Justice Department has engaged in insufficient consultation with Congress or with this committee before announcing them.

Now, I have a couple of observations on this particular topic. First, let's put this issue in perspective. We're at war. We're battling an enemy committed to an absolute unconditional destruction of our society. The principal means that the enemy employs toward this goal is the killing of our civilians in their homes and in their places of business. To the extent that this war is being waged on American soil, the attorney general is one of the leaders in this war. I would hope that in this time of crisis we would all check our egos, and for the good of this country, look at the merits of these proposals, rather than the manner in which they are packaged. I'm not saying that we don't have a solemn obligation to assess the department's actions to ensure that they are both effective and sufficiently protective of our civil liberties, but do any members of this committee really believe that in this time of crisis, the American people, those who live outside the capital beltway, really care whether the president, the secretary of Defense or the attorney general took the time to pick up the telephone and call us, prior to implementing these emergency measures? I implore my colleagues, let's keep our focus where it matters, on protecting our citizens. Certainly the American people are not watching us quibble about whether we should provide more rights than the Constitution requires to the criminals and terrorists who are devoted to killing our people. They are interested in making sure that we protect our country against terrorist attacks.

To those of you who say that our input is necessary to make sure that these measures are done right, I say look around. Look at the actions of the president. What do you think is happening? President Bush could have proceeded, as President Franklin D. Roosevelt did in 1942. He could have privately called the secretary of Defense and had him start working confidentially on procedures for military tribunals. Three months from now President Bush could have announced, We have captured some terrorists in Afghanistan. We will try them by military tribunal, and here are the procedures for the tribunals that have been established by the secretary of Defense. President Bush did not proceed that way. Instead, he responsibly, in my opinion, announced that he wanted military tribunals to be one option for trying unlawful combatants against this country. He publicly tasked the secretary of Defense with drafting the procedures to be employed.

Since then, this committee, the Armed Services Committee, numerous law professors, and just about every pundit with a microphone or a typewriter, have each expressed their opinion as to how those procedures should be written. That is consultation. And to show how serious the president is about this process, he reserved to himself the ultimate designation as to who will be tried in military tribunals; unlike FDR who delegated the decision to members of our armed forces -- and, I might add, and had the approval of both the New York Times and the then predecessor of the Washington Post in the process.

Mr. Chairman, what the hearings over the last two weeks have shown is this: The vast weight of legal authority confirms the constitutionality of military tribunals. And if the issue to be analyzed is not the constitutionality of the tribunals, but rather the fairness of the procedures to be used, then any criticism is entirely premature, because the administration has not yet promulgated the procedures that would be employed. Any questions to the attorney general -- Attorney General Ashcroft on this topic -- would be particularly pointless, because it is Secretary of Defense Rumsfeld, not General Ashcroft, who is charged with drafting the procedures, although we all hope that they will consult with General Ashcroft in the process, and I personally believe they will.

On the issue of detainees, what we have learned is that every person being detained has either been charged with a violation of U.S. law or is being held pursuant to a decision by a federal judge to issue a material witness warrant. Each of the detainees has had access to legal counsel, or the right to access to legal counsel, and has the right to challenge the grounds for his detention. Every detainee may, if he wishes, publicize his plight through legal counsel, friends, family, and/or the media. And while there has been some anecdotal evidence that the system has not worked flawlessly in the wake of the September 11th problems, there's absolutely no basis for believing that the Department of Justice has initiated any systematic policy to deprive detainees of their constitutional rights.

Mr. Chairman, let me also take a moment to correct the record on one score. At the time we sent our letter to General Ashcroft, it was General Ashcroft, it was widely misreported in the press that I was displeased with the attorney general, and had, quote, "demand," unquote, his appearance before the committee. Nothing could be further from the truth. I for one have been extremely pleased with the degree to which he and the department as a whole have been responsive to this committee's oversight responsibilities and requests. Not only did the attorney general promptly respond to our invitation to testify, he and the department have diligently and thoroughly responded to all of the many questions and document requests that have been sent to them by the committee throughout this year. And the department has not just been responsive to our oversight efforts; they have been proactive as well.

Last week, when the first in a series of DOJ, Department of Justice, oversight hearings was convened, the Department of Justice was not initially invited to testify. Commendably, the Department of Justice reached out saying that they believed it was appropriate, given the fact that they were the subject of the hearing that they also be participants at the hearing. Assistant Attorney General Michael Chertoff made himself available, and provided testimony last week that I think we can all agree was very helpful to the committee -- erudite testimony at that.

The same thing happened this week. When the department was again not invited to testify at Tuesday afternoon's oversight hearing, again the department reached out to us and offered us more testimony, which greatly contributed to the work of this committee. I must say the candor and responsiveness exhibited by this Department of Justice in its dealings with this committee is a refreshing departure from the responsiveness of the previous administration to our oversight responsibilities. As you all know, I was chairman of this committee for six of those previous administration years, and I can tell you that getting responsive answers from the Department of Justice during that period was like pulling teeth.

Whether we were examining the previous administration's pardoning and release of 11 convicted terrorists affiliated with the FALN, or the campaign finance irregularities probe, and the famous conflicting views within the Justice Department on whether to a special counsel to the Elian Gonzalez matter, to the last-minute pardons and so on. Given this previous experience, Attorney General Ashcroft's candor and responsiveness to this committee are in my opinion pretty commendable -- now the more commendable.

I would like to thank you, General Ashcroft, for your honorable service to the country as attorney general. I know that this nation is a safer place, due in large measure to what you and this administration is doing, and basically to your tireless, honest efforts to rid us of crime.

Mr. Chairman, I am pleased to see, and supportive of, this committee exercising its oversight authority over the Department of Justice. And I trust that the Department of Justice will always be cooperative. I trust that we all agree as to the reason why it is important that we exercise this oversight function. It is, or at least it should be, to help the Department of Justice more effectively carry out its duties, and to ensure that it does so consistently with congressional directives.

Now, I hope that we can also agree, however, that there is a point at which aggressive oversight by this committee becomes counterproductive. Certainly we do not want to reach a point where the senior leadership of the department spends all his time responding to inquiries from our committee regarding the terrorism investigation, and none of its time actually tracking down terrorists. And I know some might try to argue that this is a partisan criticism. Well, it is not. It is a bipartisan concern. I should note that one of our Senate Democratic colleagues yesterday properly observed in a press release that, quote, "They need to get off his back and let Attorney General Ashcroft do his job. Military tribunals have been used throughout history. The Supreme Court has twice upheld them as constitutional. Now we are at war, and we are talking about using military tribunals only for non-citizens.

Why in the world would we try our own soldiers with this system of justice, but not some foreigner who is trying to kill us? It's crazy. These nit-pickers need to find another nit to pick." I like that. (Laughter.) Let me continue. "They need to stop protecting the rights of terrorists. This is about national security. This is about life and death," unquote.

Now, I don't mean in any way to suggest that we should not be performing appropriate oversight, or to suggest ill motives behind this hearing today. I certainly don't mean to do that. And I appreciate working with my chairman on this matter. I should also note that these public hearings were not the only opportunity that the members of our committee had to pose inquiries to the Department of Justice. Several members have submitted numerous additional written questions following last week's hearing. The last time the attorney general appeared before this committee, Mr. Chairman, you alone directed 21 questions to him with multiple sub- parts. By my own count, over the last two months, you have submitted 12 letters to the Justice Department officials, requesting hundreds of pages of documents, and posing dozens of questions. And that is your right to do.

Now, General Ashcroft, I again want to thank you, and particularly the men and women of the Department of Justice for their Herculean efforts over the past number of weeks, and especially over the last week and a half in responding to the oversight efforts of this committee. We have had a lot of questions, and your responses over the past week have helped delay many initially alarmist and sometimes hysterical concerns. And let us not forget that these same men and women at the Department of Justice are the ones who are charged with the essential task of making sure that a day like September 11th never happens again on our soil, or any action like those that occurred last week against us.

Now, if my colleagues would like to grant additional authorities to the president or the attorney general to aid in this war, and to save American lives, I for one will be all ears, as long as such powers are consistent with our Constitution. Mr. Chairman, there is no real question remaining as to the constitutionality of the administration's initiatives to date. I want to thank you for your dedication to oversight, and I am hopeful that today's hearing will proceed as a fair examination into the administration's actions to stop terrorists and save American lives. I want to thank you for this hearing. I thank the attorney general for his willingness to be present and for his responsiveness to our oversight requests. Thank you very much.

SEN. LEAHY: General Ashcroft, again I appreciate your comment. Yesterday we were talking that you welcomed the opportunity to be here. I think it is important that you are here. I appreciate that you felt the same way, and the floor is yours.

ATTY GEN. ASHCROFT: Thank you, Mr. Chairman, Senator Hatch, and members of this committee. I am grateful for the opportunity of appearing to testify before you today. It's a pleasure to be back in the United States Senate, and I am grateful. On the morning of September 11th, as the United States came under attack, I was in an airplane with several members of the Justice Department en route to Milwaukee, in the skies over the Great Lakes. By the time we could return to Washington, thousands of people had been murdered at the World Trade Center, 189 more were dead at the Pentagon, 44 had died in the crash to the ground in Pennsylvania. From that moment, at the command of the president of the United States, I began to mobilize the resources of the Department of Justice toward one single overarching and overriding objective: to save innocent lives from further acts of terrorism.

America's campaign to save innocent lives from terrorists is now 87 days old. It has brought me back to this committee to report to you in accordance with Congress's oversight role. I welcome this opportunity to clarify for you, and for the American people, how the Justice Department is working to protect American lives while preserving American liberties.

Since those first terrible hours of September the 11th, America has faced a choice that is as stark as the images that linger of that morning. One option is to call September 11th a fluke, to believe it could never happen again, and to live in a dream world that requires us to do nothing differently. The other option is to fight back, to summon all our strength and all of our resources, and devote ourselves to better ways to identify, disrupt and dismantle terrorist networks.

Under the leadership of President Bush, America has made the choice to fight terrorism -- not just for ourselves, but for all civilized people. Since September 11th, through dozens of warnings to law enforcement, a deliberate campaign of terrorist disruption, tighter security around potential targets, and a preventative campaign of arrest and detection of law-breakers, America has grown stronger, and safer in the face of terrorism. Thanks to the vigilance of law enforcement and the patience of the American people, we have not suffered another major terrorist attack. Still, we cannot -- we must not allow ourselves to grow complacent.

The reasons are apparent to me each morning. My day begins with a review of the threats to Americans and to American interests that have been received in the previous 24 hours. If ever there were proof of the existence of evil in the world, it is in the pages of these reports. They are a chilling daily chronicle of the hatred of Americans by fanatics who seek to extinguish freedom, enslave women, corrupt education, and to kill Americans wherever and whenever they can.

The terrorist enemy that threatens civilization today is unlike any we have ever known. It slaughters thousands of innocents, a crime of war and a crime against humanity. It seeks weapons of mass destruction, and threatens their use against America. No one should doubt the intent nor the depth of its continuing, disruptive hatred.

Terrorist operatives infiltrate our communities, plotting, planning, waiting to kill again. They enjoy the benefits of our free society, even as they commit themselves to our destruction. They exploit our openness -- not randomly or haphazardly, but by deliberate premeditated design.

This is a seized al Qaeda training manual -- a "how-to" guide for terrorists that instructs enemy operatives in the art of killing in a free society. Prosecutors first made this manual public in the trial of the al Qaeda terrorists who bombed U.S. embassies in Africa. We are posting several al Qaeda lessons from this manual on our website today so that Americans can know about the enemy.

In this manual, al Qaeda terrorist are now told how to use America's freedom as a weapon against us. They are instructed to use the benefits of a free press, newspapers, magazines, broadcasts, to stalk and to kill victims.

They are instructed to exploit our judicial process for the success of their operations. Captured terrorists are taught to anticipate a series of questions from authorities and in each response to lie -- to lie about who they are, to lie about what they are doing, to lie about who they know in order for the operation to achieve its objective. Imprisoned terrorists are instructed in this manual to concoct stories of torture and mistreatment at the hands of our officials. They are directed to take advantage of any contact with the outside world. This manual instructs them, and I quote, "Communicate with brothers outside prison and exchange information that may be helpful to them in their work. The importance of mastering the art of hiding messages is self-evident here." Closed quote.

Mr. Chairman, and members of this committee, we are at war with an enemy that abuses individual rights as it abuses jetliners. It abuses those rights to make weapons of them with which to kill Americans.

We have responded by redefining the mission of the Department of Justice. Defending our nation and its citizens against terrorist attacks is now our first and overriding priority. We have launched the largest, most comprehensive criminal investigation in world history to identify the killers of the September 11th tragedy and to prevent further terrorist attacks.

Four thousand FBI agents are engaged with other international counterparts in an unprecedented worldwide effort to detect, disrupt and dismantle terrorist organizations. We've created a national task force at the FBI to centralize control and information sharing in our investigation. This task force has investigated hundreds of thousands of leads, conducted over 500 searches, interviewed thousands of witnesses, and obtained numerous court-authorized surveillance orders. Our prosecutors and agents have collected information and evidence from countries throughout the Middle East and through Europe.

Immediately following the September 11th attacks, the Bureau of Prisons acted swiftly to intensify security precautions in connection with al Qaeda and other terrorist inmates, increasing perimeter security at a number of key facilities.

We have sought, and we received additional tools from Congress for which we are grateful. You have cited them, and they were important. Already we have begun to utilize many of these tools. Within hours of the passage of the USA Patriot Act, we made use of its provisions to begin enhanced information sharing between the law enforcement and intelligence communities. We have used the provisions allowing nationwide search warrants for e-mail and subpoenas for payment information. We have used the act to place those who access the Internet through cable companies on the same footing as other individuals. Just yesterday, at my request, the State Department designed 39 entities as terrorist organizations pursuant to the USA Patriot Act.

We have waged a deliberate campaign of arrest and detention to remove suspected terrorists who violate the law from our streets. Currently we have brought criminal charges against about -- well -- against, pardon me, 110 individuals, of whom 60 are in federal custody. The INS has detained 563 individuals on immigration violations, has in detention today.

We have investigated more than 250 incidents of retaliatory violence and threats against Arab-Americans, Muslim-Americas, Sikh Americans, and South Asian-Americans. Since September 11th, the Customs Service and Border Patrol have been at their highest state of alert. All vehicles and persons entering this country are subjected to the highest level of scrutiny.

Working with the State Department, we have imposed new screening requirements on certain applicants for non-immigrant visas. At the direction of the president, we have created a Foreign Terrorist Tracking Task Force to ensure that we do everything we can to prevent terrorists from entering the country and to locate and remove those who are already here.

We have prosecuted to the fullest extent of the law individuals who waste precious law enforcement resources through anthrax hoaxes. We have offered non-citizens willing to come forward with a valuable -- pardon me, willing to come forward with valuable information a chance to live in this country and one day to become citizens.

We have forged new cooperative agreements with Canada to protect our borders and the economic prosperity that our borders and the appropriate maintenance of the flow of commerce across those borders sustains. We have embarked on a war-time reorganization of the Department of Justice. We are transferring resources and personnel to field offices where citizens are served and protected. The INS is being restructured to better perform its service and border security responsibilities. Under Director Bob Mueller, the FBI is undergoing an historic reorganization to put the prevention of terrorism at the center of its law enforcement and national security effort.

Outside Washington, we are forging new relationships of cooperation with state and local law enforcement. We have created 93 anti-terrorist task forces across the country, in each U.S. attorney's district, to integrate the communications and activities of state, local and federal law enforcement.

In all of these ways and more, the Department of Justice has sought to prevent terrorism with reason, careful balance, and excruciating attention to detail. Some of our critics, I regret to say, have shown less affection for details. Their bold declaration of so-called facts have quickly dissolved upon inspection into vague conjecture. Charges of kangaroo courts and shredding the Constitution give new meaning to the term "fog of war." Since lives and liberties depend on clarity, not obfuscation, and upon reason, not hyperbole, let me take this opportunity to be clear. Each action taken by the Department of Justice, as well as the war crimes commissions considered by the president and the Department of Defense, is carefully drawn to target a narrow class of individuals -- terrorists. Our legal powers are targeted at terrorists. Our investigation is focused on terrorists. Our prevention strategy targets the terrorist threat.

Since 1983, the United States government has defined terrorists as those who perpetrate premeditated, politically motivated violence against non-combatant targets. My message to America this morning then is this: if you fit this definition of a terrorist, fear the United States, for you will lose your liberty. We need honest, reasoned debate, and not fear-mongering. To those who pit Americans against immigrants and citizens against non- citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of goodwill to remain silent in the face of evil.

Our efforts have been crafted carefully to avoid infringing on constitutional rights while saving American lives. We have engaged in a deliberate campaign of arrest and detention of law-breakers. All persons being detained have the right to contact their lawyers and their families.

Our respect for their privacy and concern for saving lives motivates us not to publicize the names of those detained. We have the authority to monitor the conversations of 16 of 158,000 federal inmates and their attorneys because we suspect these communications could facilitate acts of terrorism. Each such prisoner has been told in advance his conversations will be monitored. None of the information that is protected by attorney-client privilege may be used for prosecution. Information will only be used to stop impending terrorist acts and to save American lives.

We have asked a very limited number of individuals, visitors to our country holding passports from countries with active al Qaeda operations, to speak voluntarily with law enforcement. We are forcing them to do nothing. We are merely asking them to do the right thing, to willingly disclose information they may have of terrorist threats to the lives and safety of all people in the United States. Throughout all our activities since September the 11th, we have kept Congress informed of our continuing efforts to protect the American people.

Beginning with a classified briefing by Deputy -- pardon me, by Director of the FBI Mueller and me on the very evening of September 11th, the Justice Department has briefed members of the House, the Senate and their staffs on more than 100 occasions. We have worked with Congress in the belief and the recognition that no single branch of government alone can stop terrorism.

We have consulted with members out of respect for the separation of powers that is the basis of our system of government. However, Congress's powers of oversight -- Congress's power of oversight is not without limit. The Constitution specifically delegates to the president the authority to, and I quote, "take care that the laws are faithfully executed," closed quote. And, perhaps most importantly, the Constitution vests the president with the extraordinary and sole authority, as commander-in-chief, to lead our nation in times of war.

Mr. Chairman and members of this committee, not long ago I had the privilege of sitting where you now sit. I have the greatest reverence and respect for the constitutional responsibilities you shoulder. I will continue to consult with Congress so that you may fulfill your constitutional responsibilities. In some areas, however, I cannot and will not consult with you. The advice I give to the president, whether in his role as commander- in-chief when at war or in any other capacity, is privileged and confidential. I cannot and will not divulge the contents, the context, or even the existence of such advice to anyone, including Congress, unless the president instructs me so to do.

I cannot and will not divulge information, nor do I believe that anyone here would wish me to divulge information that would damage the national security of the United States, the safety of its citizens, or our efforts to ensure the same in an ongoing investigation.

As attorney general, it is my responsibility, at the direction of the president, to exercise those core executive powers the Constitution so designates. The law enforcement initiatives undertaken by the Department of Justice, those individuals we arrest, detain or seek to interview, fall under these core executive powers.

In addition, the president's authority to establish war crimes commissions arises out of his power as commander-in-chief. For centuries, Congress has recognized this authority, and the Supreme Court has never held that any Congress may limit it.

In accordance with over 200 years of historical and legal precedent, the executive branch is now exercising its core constitutional powers in the interest of saving the lives of Americans. I trust that Congress will respect the proper limits of executive-branch consultation that I am duty-bound to uphold. I trust as well that Congress will respect this president's authority to wage war on terrorism and to defend our nation and its citizens with all the power vested in him by the Constitution and entrusted to him by the American people.

I thank you for your willingness to allow me to complete this statement.

SEN. LEAHY: No, I think it's important that you do, and I again appreciate you doing that. Senator Thurmond has asked to make a short statement of support. And without objection from the other members, the senior member of this committee, I would yield to Senator Thurmond.

SEN. STROM THURMOND (R-SC): Mr. Chairman, I am pleased that you are holding this very important hearing on the president's law enforcement initiatives in the war against terrorism. This committee has an important oversight role, and we must ensure that the actions of the government are in accordance with the Constitution.

Mr. Attorney General, thank you for taking time from your busy schedule to be here today. You have done an excellent job of leading the Department of Justice during these difficult times, and I thank you for your faithful service to our nation.

I believe that the criticism directed towards the administration is unfounded (due ?) to prevent future attacks, has a great responsibility. The president has responded with action and will protect American lives while protecting civil liberties.

Mr. Chairman, I believe that's the policies of the administration (are regular ?) law enforcement tools and our Constitution. These efforts of the president and the attorney general will further our war against terrorism. I look forward to hearing the testimony of the attorney general today.

Thank you very much.

SEN. LEAHY: Thank you. General, you've stated that the authority for the military order arises out of the president's position as commander-in-chief, and the Supreme Court has never held that the Congress may limit it. But the fact is that the Supreme Court has never upheld the president's authority extending so far as to allow him to unilaterally set up military tribunals absent congressional authority. So, basically, this is a calculated risk that the Supreme Court would uphold something it has not upheld before. I mention that because I look at Ex Parte Milligan, for example, which says that military tribunals for non-military personnel cannot be justified under the mandate of the president because he is controlled by law. His sphere of duty is to execute, not to make the laws, and there is no unwritten criminal code to which resort (to be had?) as the (source?) of jurisdiction, thus raising a very highly questionable -- saying it's highly questionable that he could do this, absent congressional authority.

Now, there is interest in the Congress in defining what a military tribunal could be, what would be his authority. Administration officials have stated the planned scope of military tribunals was far narrower than had been suggested by the original order. More recent assurances that they would be applied sparingly have been very helpful. So I wanted to see how the administration would use the military order.

First, as written, the military order applies to non-citizens of the United States. That would cover about 20 million people here in the United States legally today. But the president's counsel now says military commissions would not be held in the United States but rather close to where our forces may be fighting. And then an anonymous administration official said there's no plan to use military commissions in this country but only for those caught in battlefield operations.

Secondly, while the military order is essentially silent on the procedural safeguards that would be provided at military commission trials, the White House counsel has now explained that military commissions would be conducted like courts-martial.

Third, nothing in the military order would prevent commission trials from being conducted in secret, which was done, for example, of the eight Nazi saboteurs after World War II, most often cited by the administration.

But now Mr. Gonzalez says that trials before military commissions would be as open as possible. Mr. Chertoff said something similar. Now, this is in sharp contrast to the statements before our hearings that, quote, from the administration, "Proceedings promise to be swift and largely secret, with one military officer (stating?) that the release of information might be limited to various facts, like defendants' name." Finally, the order expressly states that the accused in military commissions shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, at any court. But now the administration says this is not an effort to suspend habeas corpus.

So now, with the explanations that have come out subsequently, I understand, first, that the administration does not intend to use military commissions to try people arrested in the United States; secondly, the military commissions will follow the rules of procedural fairness used for trying U.S. military personnel; and thirdly, the judgments of the military commissions will be subject to judicial review. Is that your understanding also?

ATTY. GEN. ASHCROFT: Well, you've given me a lot to think about in that question.

SEN. LEAHY: Well, let me -- I --

ATTY. GEN. ASHCROFT: You've spoken of a number of things that I'd like to comment on.


ATTY GEN. ASHCROFT: First of all, about the authority of the president of the United States to wage war under the Constitution and to address war crimes in the process of waging war, I believe that's clearly the power of the president and his power to undertake that unilaterally. The Supreme Court did address, in the Quirin case 60 years ago, the issue of war crimes commissions. And in that case, it cited the authority of the congressional declaration of war as language recognizing the president's power to create war crimes commissions, but I don't believe that the court indicates that,or predicates its assumption and accordance of the president that power, upon that particular authority.

Nevertheless, the identical authority found in the article of declaration of war in the Second World War is now the authority which is listed in the Uniform Code of Military Justice at 10 USC Section 821, and it is my position that the president has an inherent authority and power to conduct war and to prosecute war crimes absent that indication in the code of Military Justice. But for those who would disagree with that, the identical provision authority that was existent and was present in the Quirin situation is now present in the U.S. Code of Military Justice.

SEN. LEAHY: But General, if I might just for a moment, the Quirin case did not address the question of whether the president could set up a military tribunal absent congressional authority. They did not address that question. and the previous, Ex Parte Milligan, apparently did.


SEN. LEAHY: But my question still goes to this, aside from -- and understand, there are members on both sides of the aisle who are willing to work with you to try to establish an authority, a congressional authority for military tribunals, but in a certain framework. But with all the changes and switchbacks and everything else in the statements that have come from different parts of the administration, my question is still, basically, does the administration -- whether these are legal or not, is my understanding correct that the administration, one, does not intend to use military commissions to try people arrested in the United States; two, the military commissions would follow the rules of procedural fairness used for trying U.S. military personnel; and three, the judgments of the military commissions will be subject to judicial review. Are those three points -- is that understanding correct? Is that your understanding?

ATTY GEN. ASHCROFT: I cannot say that I have that understanding in the way that you have it. I do not know that the United States would forfeit the right to try in a military commission an alien terrorist who was apprehended on his way into the United States from a submarine or from a ship carrying explosives or otherwise seeking to commandeer an American asset to explode or otherwise commit acts of terror within the United States.

SEN. LEAHY: But not my question, General.

ATTY GEN. ASHCROFT: Your question asked about people arrested in the United States; it would be possible for that person to be so arrested. I think -- I don't -- let me just indicate this; two points. One, I want to mention that Ex Parte Milligan was limited in the Quirin case; limited to its facts, and the Quirin case upheld the use of commissions in the United States against enemy belligerents. And number two, the president's order, which I believe to be constitutional, assigns to the Department of Defense the development of a framework that would answer many of these questions, but it's premature to try and anticipate exactly what that framework would be, in my judgment. I stand ready, as provided in the president's military order establishing commissions to try war crimes, to assist the Department of Defense. And frankly, I would stand ready to convey, if you wanted me to be the conduit, to convey suggestions from the Congress to the Department of Defense, although you all have complete access to the Department of Defense for the achievement of those purposes.

SEN. LEAHY: Just so the members of the committee will understand, originally -- I am advised that we're going to have three votes beginning at 11:00 on three federal judges, one being a courts of appeal judge, the other two being district judges. I have asked, I have sent word to the floor and asked if they might do by voice vote the two district judges, because they are both ones that we voted unanimously to pass out of the Judiciary Committee. The court of appeals judge would be then done by a roll call, and if that procedure is followed, which I understand they will, we would not have that first vote until -- (aside) -- when, 10:40? Eleven? Eleven-forty. So with that, I yield to Senator Hatch.

SEN. HATCH: Well, thank you, Mr. Chairman.

General Ashcroft, some have questioned the continuing validity of Ex Parte Quirin, of that case as authority for further presidential orders establishing military commissions. On the other hand, that case was unanimously decided by the eight justices who heard it. Further, the Supreme Court reaffirmed Quirin just four years later in In Re Yamashita, and in both cases, they followed historic practice given -- or, practiced, since our country's founding.

Now, given the case law, the historical practice and the Section 821 of Title X of the United States Code, which continues to expressly recognize military commissions, passed by Congress, is it your view that the current United States Code is sufficient legal basis for the president's military order?

ATTY GEN. ASHCROFT: It is my view that the United States Code of Military Justice as enacted by the Congress provides the same kind of support it provided, or the articles provided, relied upon, in the Quirin case, so that if one were to come to the conclusion that the president is absent the power without congressional authorization, then one clearly has a Supreme Court opinion that indicates that such power is existent in statute.

I do not have the view, however, that the president needed that in order to have such commissions, and I don't believe that the Quirin case indicates that either. So that we've come to a place of perhaps a disagreement without a difference. In either event, the president has the authority to constitute military commissions for the trial of crimes of war, and I think that's very important. These commissions, by the order, will be full and fair proceedings. the Department of Defense has been asked to construct a framework for conducting full and fair proceedings --

SEN. HATCH: And -- and the order suggests that all other agencies of government cooperate with the Department of Justice, so I presume your agency will cooperate with the Department of Justice?

ATTY GEN. ASHCROFT: We would be pleased to render any assistance to the Department of Defense --

SEN. HATCH: Department of Defense, yes.

ATTY GEN. ASHCROFT: -- if they were to call upon us and, frankly, it would -- it is expected that we would be standing ready for that responsibility.

SEN. HATCH: Thank you. Now, the Executive Office of the United States Attorney's report said, for the fiscal year 2001, the conviction rate of civilians tried on criminal charges in Article III courts around the country is 91 percent. The Southern District of New York, in that district, the conviction rate is 97.2 percent. Given that the conviction rate of the military commissions used after World War II was approximately 85 percent -- if there is any basis for prejudging military commissions as unfair to defendants, or somehow that they lack the constitutional safeguards, or would lack the constitutional safeguards, although admittedly not all of the additional rights that some of the extreme interpreters would wish to grant to criminals, even to terrorist defendants.

ATTY GEN. ASHCROFT: Well, it's pretty clear that military commissions for the litigation of war crimes, international commissions to litigate war crimes, are not uncommon. As a matter of fact, the United States Senate has indicated that it supports them. Where Bosnians were abused as a result of war crimes, we have supported the use of military or war crimes commissions to litigate those wrongs about war crimes committed by the perpetrators of those horrific acts.

Whether we're talking about Rwanda in Central Africa or Bosnia in Central Europe, or looking historically to Nuremberg and the trials there and the additional war crimes tribunals after there, these have been full and fair proceedings. They have been understood by the Congress of the United States to be full and fair, and have been supported by the Congress.

As recently as two years ago, the Congress of the United States voted 90 to nothing -- pardon me, the Senate of the United States voted 90 to nothing that Milosevic should be tried in a war crimes commission. So this is not an unusual way to resolve war crimes committed in time of war.

SEN. HATCH: General, some recent press reports have suggested that the department has forced the FBI to abandon its long-term investigation and its historical approach to investigating counter-terrorism. I would like you to comment on this and explain what change or changes, if any, the FBI has made to its mission. And on this issue, I would also like to read excerpts from a letter to the Washington Post from a former FBI agent that intends to set some of these recent misrepresentations straight.

This letter says, "In regard to the article entitled 'Ex FBI Officials Criticize Tactics on Terrorism' by Jim McGee printed in your newspaper November 28th, 2001." He offers the following comments -- and let me just read a few, and I'll put the letter in the record. "The article quotes me out of context" -- I better get the name here -- the name is Oliver B. Revell, Buck Revell. "The article quotes me out of context, and therefore conveys an inaccurate portrayal of my views on the current FBI/Justice Department efforts in the aftermath of the September 11th terrorist attacks.

"First, I believe that the FBI-associated law enforcement agencies from the Justice Department are doing a very good job under difficult circumstances.

"Two, the terrorist attacks and subsequent anthrax incidents have presented our law enforcement agencies with the most difficult problem that they have had to face in their entire history." And he goes on through the rest of this letter. So, again, could you comment on this and whether or not your -- the FBI and the Justice Department are not using the appropriate investigatorial techniques that have been long used, and/or whether you have to use those plus additional ones to be able to get the job done in protecting the American people?

I ask unanimous consent that that letter go into the record.

ATTY. GEN. ASHCROFT: Very frankly, we have set as a priority the prevention of additional terrorist attacks, and we don't ever want anything like September 11th again to visit the United States, on our own soil with innocent victims. And we hope to improve our performance regularly, by making whatever changes we can to upgrade our ability to detect and to prevent terrorism, to disrupt it and to make it difficult, in fact impossible. So we will do what we can to learn from the past, and we will implement new strategies to protect America in the future.

We did not have the kind of protection we needed on September 11th. So for us to continue and to act as if no changes would be appropriate may not be in our best interests. It's with that in mind that we will use whatever new techniques we can develop, and we'll try and be open to suggestions from the American people, from the Congress, and to those who have served the bureau in the past and those who now serve the bureau, our objective is to secure American liberties and to protect American lives.

SEN. HATCH: Thank you, Mr. Attorney General.

SEN. LEAHY: Thank you. I have a number of other items also for the record, and without objection they will be submitted for the record. And Senator Kennedy?

SEN. KENNEDY: Thank you very much. Thank you, general. General, like Senator Leahy, I am profoundly concerned about the administration's broad plan on the military tribunals, and the plan raises extremely serious questions about fundamental civil liberties, questions that have not yet been satisfactorily answered b y the administration's officials defending it.

History has shown that the military courts have been effective. But they have also shown that they have been abused. And this time we want to try and get it right. And it is of profound importance to the country that we defend our ideals and our security.

President Bush's executive order is a broad proposal that has enormous potential for abuse. There are few if any due process rights granted to defendants, and the trials may occur in complete secrecy. So constitutional experts have told us, however, that we can implement fair military trials that ensure fundamental civil liberties. We know it can be done, we know it should be done, but we have not heard that it will be done. So I am interested in what steps are being taken to give meaning to the principle -- you know, you reference here yourself this morning of full and fair trial military tribunals, and how the administration will work with the Congress to protect the constitutional ideals. And when will we hear this? What can you tell us about the scope?

ATTY GEN. ASHCROFT: Well, I am pleased to say that the president's order requires that there be full and fair trial proceedings. Those are the kinds of descriptive terms that have governed the development of war crimes commissions and have govern the proceedings of war crimes commissions that operate today.

The president has ordered -- and it is a military order to the Department of Defense -- it's out of his responsibility as commander and chief of a nation in conflict -- that he ordered that the Defense Department develop a framework that would provide full and fair proceedings. There are obviously some hints in the president's order that indicate a level of fairness that I think is clearly understood. He has indicated that the hearing should be closed when it's in the national interests to close them.

And when -- and I think the administration has made clear its desire not to close hearings when they are not in the national interests. It is to be noted that every judicial or adjudicatory process that I know of has some provision for closing hearings, to protect the system and to protect the integrity of the operation. Our courts provide for sealed orders. They sometimes even have gag orders. They have in certain areas plans to protect the identify of witnesses.

Similarly, the ongoing war crimes efforts in The Hague that relate to war crimes have those kinds of similar procedures. I believe that the Department of Defense, which has over 3,000 active full-time working lawyers, and which conducts a wide variety of military operations that relate to the adjudication of charges, has the capacity to develop a plan and framework that will work effectively. And I expect it to do so -- we'll stand ready to assist them in doing so.

SEN. KENNEDY: Can you give us some idea when that will be announced? And can you be any more precise in terms of the scope? Or is that the way you want to leave it?

ATTY GEN. ASHCROFT: Well, senator, I cannot. I just don't have specific information about the timeline. I would mention that the time of this setting is one where the president has sought to create a tool to protect American lives through his conduct of the war, and to create it in advance, and to make it known to the Congress and the people of this country well in advance of any demand for its services. In the Roosevelt administration 60 years ago we didn't have the luxury of that kind of commentary, and I am sure contributions made by the Congress and those in the culture would be welcomed by the secretary of Defense.

SEN. KENNEDY: Well, I would have liked to have gotten into the questions on the automatic -- the administration's automatic stays of immigration judges' release orders, and the attorney-client communications. But let me in the time that I do have left just get into one area, and that is in reference to the New York Times story this morning. Last month, a manual entitled, "How I Trained Myself for Jihad" -- it's a manual very similar to the one that you mentioned here --was found in a terrorist safe house in Kabul. And it states, "In other countries, some states of U.S., it is perfectly legal for members of the public to own certain types of firearms. If you live in such a country, obtain an assault weapon legally --prefer AK-47 or variations -- learn how to use it properly, and go and practice in the areas allowed for training."

In September, a federal court convicted a number of members of the terrorist group Hezbollah on seven counts of weapons charges, and conspiracy to ship weapons and ammunition to Lebanon. He had purchased many of the weapons at gun shows in Michigan. We have been trying to deal with this problem for many months -- potential terrorists can walk into a gun show, walk out with a gun, no questions asked.

The report in today's New York Times that officials at the Department of Justice refused to let the FBI examine its background checklist to determine whether any of the 1,200 people detained following the September 11th attacks recently bought guns. Why is the department handcuffing the FBI in its efforts to investigate gun purchases by suspected terrorists?

ATTY GEN. ASHCROFT: Thank you, Mr. Senator, for that inquiry. The answer is simple: The law which provided for the development of the NIC, the National Instant Check system, indicates that the only permissible use for the National Instant Check system is to audit the maintenance of that system. And the Department of Justice is committed to following the law in that respect. And when --

SEN. KENNEDY: Do you think it ought to be changed?

ATTY GEN. ASHCROFT: When the request first came, obviously the instinct of the FBI was to use the information to see. When they were advised by those who monitor whether or not we are following the congressional direction, we stopped. And I believe we did the right thing in observing what the law of the United States compels us to observe. The list --

SEN. KENNEDY: Do you think it ought to be changed in that provision? The FBI obviously wants that power in order to try to deal with the problems of terrorism. Do you support it?

ATTY GEN. ASHCROFT: I won't comment on specific legislation in the hypothetical.

SEN. KENNEDY: But would you submit legislation to do what the FBI wants to have done? Would you work with the FBI and submit legislation to deal with this?

ATTY GEN. ASHCROFT: I will be happy to consider any legislation that you would propose.

SEN. KENNEDY: Thank you, Mr. Chairman.

SEN. LEAHY: Thank you, Senator Kennedy. Senator Grassley.

SEN. GRASSLEY: Thank you, Mr. Chairman. And welcome to our former colleague. In the Quirin case, the Supreme Court held that the Nazi spies were defined as "unlawful belligerents." As such, the Court held that they were subject to the laws of war with trial by military tribunal. By the same token, would a member of al Qaeda be classified then as an "unlawful belligerent"?

ATTY GEN. ASHCROFT: Quirin demonstrates the fact that there is what's called habeas corpus review, even of military commissions. And this is the question. But the Court clearly using the language of the Roosevelt administration to bring the war crimes commission into effect there said that it would exercise its habeas corpus jurisdiction to decide whether or not the commission was constitutional; and, secondly, whether the belligerents were actually eligible for trial under the commission.

We would anticipate that the same kind of review by the United States Supreme Court which had been exercised with virtually identical language in the order in Quirin would be exercised by the Supreme Court in the order that has been a military order for war crimes commission by President Bush.

SEN. GRASSLEY: Well, then, al Qaeda members are, quote, "unlawful belligerents," unquote?

ATTY GEN. ASHCROFT: Well, the order indicates that those to be tried under the order have to have committed war crimes. And I believe that's the test as to whether or not there is an adjudication of someone's case by the war crimes commission. And members of al Qaeda are unlawful belligerents under the law of war. The laws of war are different than the criminal laws of our cultures. They exist outside the criminal codes. But there are offenses that are very clear; for instance, the targeting of innocent civilians for targets of destruction. I mean, that's very clear the World Trade Center is not a military target, not part of the command and control of the military unit. The taking of hostages and killing innocent hostages is a war crime that violates the law of war. That certainly was done when innocent individuals were taken hostage aboard airplanes and then brutally murdered when those were crashed.

So the al Qaeda are unlawful belligerents under the law of war. They are not armed forces of any state. They do not bear arms openly, as normal combatants do, but they are unlawful combatants because they secret themselves and because they conduct acts which are violations of the law of war.

SEN. GRASSLEY: Would the procedural rules that the secretary of Defense will be drafting -- would it be your advice to him that they would be less or more than those rights afforded members of our own armed forces in military tribunals?

ATTY GEN. ASHCROFT: My view is that the president has ordered that there be full and fair proceedings, that they be open when possible basically, and closed when necessary to protect our interests. It's inconceivable to me that the president would intend that those who seek to destroy the American system of liberty and rights would have greater rights than those who are seeking to defend those rights in our military.

SEN. GRASSLEY: The purpose of my question is -- am I not right on this? -- and maybe my colleagues can correct me, but we -- there has been some justification for the president's action besides the constitutional power of commander in chief, that Congress has given the president some authority under the military code of justice in regard to this. So my question comes from that comparison, and that point to the president's power.

ATTY GEN. ASHCROFT: Well, it is my view that the Congress has recognized the power inherent in the president, both in the articles of war that supported the Roosevelt administration's establishment of the commission in the 1940s, and the Bush administration's establishment of the commission most recently. I might add that these presidents are not alone. From George Washington to Abraham Lincoln, to George Bush and to Franklin Delano Roosevelt, presidents have undertaken these responsibilities, and they have done so both with and without the specific language of the Uniform Code of Military Justice found in the law today.

SEN. GRASSLEY: Could you provide us with more details on the constitutional statutory authority supporting the Department of Justice's decision to monitor attorney-client communications? The new regulations indicate that procedural safeguards will be implemented to prevent abuse of monitors of confidential information. Could you say in detail the specific safeguards, as well as how the department plans to implement the new regulation? And also, does the new regulation differ from current and past Justice Department policies sand practices regarding the monitoring of attorney-client communications?

ATTY GEN. ASHCROFT: I am very pleased to address this topic of attorney-client communications. The Supreme Court has defined the rights that are involved in this setting in a case known as Weatherford v. Bursey, a 1977 case of the United States Supreme Court. In that case the monitoring was unannounced. In other words, it was genuinely eavesdropping. The word "eavesdropping" does not define what the United States Justice Department proposes doing in certain cases now. Eavesdropping would be an unnoticed, no information given to the inmate or to the lawyer. The department's first rule would be that you first give notice to the individual and to his lawyer. Secondly, this is done by individuals who are forbidden to have association with or communication with any prosecutors. Thirdly, no information can be used at all that flows from the understanding or the auditing of these conversations without first being approved by a federal judge, unless; fourthly, it is information which could help avert a terrorist attack.

Now, let me go briefly to the reason for this. First of all, there are only 16 people out of the 158,000 people in the federal prison system to whom this order now applies. They are the only 16 people in special administrative procedures. And we are simply, for terrorists who would seek

to follow the al Qaeda manual and assist those brothers in their operation on the outside in continuing to perpetrate acts through hidden messages and other signals they send through their attorneys -- we simply aren't going to allow that to happen.

Now, I believe that the safeguards we have crafted fully satisfy well beyond the kinds of conditions which were sanctioned, or at least accepted by the court in the Weatherford (sp) case. And it is not the intention of this Justice Department to either disrupt the effective communication between lawyers and the accused, but it is neither our willingness to allow individuals to continue terrorist activities or other acts which would harm the American public by using their lawyers and those conversations to continue or to extend acts of terrorism or violence against the American people.

SEN. GRASSLEY: Mr. Chairman, I've got a statement I want to put in the record, and then I have two questions I want to submit for answer in writing, and both of them refer to an incomplete letter I received from you, plus an answer from the FBI that has not been responded to yet.

SEN. LEAHY: Thank you, Senator Grassley. And the record will be open for a statement of any senators who wish. And, of course, the attorney general has been around here long enough to know that there will be follow-up questions to be submitted to him, and I would --


SEN. LEAHY: -- and I would expect your help and cooperation in those --

ATTY GEN. ASHCROFT: I will do my best.

SEN. LEAHY: Senator Kohl.

SEN. HERB KOHL (D-WI): Thank you, Mr. Chairman. Mr. Attorney General, since the events of September 11th, the president and the Justice Department have commanded the trust and the support of the American people and the Congress more than ever as they prosecute the war on terrorism, and this is as it should be. With that trust, however, there comes, as you know, responsibility. That responsibility is to make sure that the American people understand and trust the actions that the government is taking, especially when it comes to issues like civil liberties and the rule of law. It causes a great deal of consternation in our country when we hear about Americans abroad who are subject to foreign or military courts. We are outraged when we hear that the Americans on trial may not get an attorney, an impartial jury, or even a fair chance to defend themselves. So we should never open our country to that kind of criticism from abroad. I believe that no one should ever doubt that American justice holds the high moral ground, and I'm sure that you agree.

Mr. Attorney General, it is with that regard -- that with respect to military tribunals, we and I believe that you need to do a little more, and we would like to help you with that effort. No one believes that defendants should receive all of the protections afforded in normal criminal proceedings. For example, I do not see a need for the defendant to get his Miranda warnings or a jury of his peers. But there are five basic principles that I believe should be respected, and I would be interested in your response.

Number one, at some point we need a clear understanding of who will be subject to these tribunals.

Number two, the defendants must receive the assistance of counsel in mounting a defense, and with that counsel, defendants must be permitted timely access to evidence and the right to cross-examine witnesses, and have the right to present exculpatory evidence.

Number three, if the standard of proof is to be less than "beyond a reasonable doubt," then it must be at least as high as "guilt by clear and convincing evidence."

Number four, the death penalty must not be imposed simply by a vote of a majority of the jurors.

And number five, the system must guarantee the defendant a right to a meaningful appeal.

Now, my question to you as the attorney general of the United States, speaking to the American people in advance of the rules that may come forth from the president, as you have suggested, what would be your response to those five principles.

ATTY GEN. ASHCROFT: Well, first of all, these are obviously laudable principles as they relate to the adjudication of criminal charges against an individual. And I'm sure these are the kinds of considerations that these kinds of principles will be weighed in the deliberations of the Department of Defense. I think a full and fair proceeding is very likely to require many of these things you've mentioned. In the war crimes tribunals, which this Congress and this country has supported for the litigation -- the adjudication of war crimes against others, you know, in Bosnia and Romania and other settings, some of these kinds of principles exist there.

And, I think that it's very important for members of the Congress to state their considerations in this regard and to make them known to those officials who will be developing the final rules that exist here. I don't know anything in the order of the president which would preclude the vast majority of the items which you have indicated. The kinds of guidelines which support the war crimes tribunals, for instance, at The Hague, are the kinds that exist in the president's order to develop the procedures which is -- which are now before the secretary of defense.

So, I would urge you and members of the committee to make these contributions to the secretary of defense. And I believe that it is the intention of the secretary of defense to fashion a system which will support the world's respect for the way in which America always conducts justice.

SEN. KOHL: I thank you, Mr. Attorney General.

SEN. LEAHY: Senator Specter.

SEN. ARLEN SPECTER (R-PA): Thank you. Attorney General Ashcroft, the regulations which you promulgated for detention of aliens provides that even after the immigration judge orders release, that is stayed by an appeal, and even after the appellate tribunal orders release, that is stayed automatically if it's certified to you as attorney general. But there are no standards set forth as to why the person would be detained further. There is a generalized requirement that these detention rules are articulated for national security, but even after releases by two courts, the detention contains -- remains automatic, without any procedure, or establishment, or articulation of standards as to why. Shouldn't there be some standard? And how do you make that determination for continued detention in the face of the two judicial orders?

ATTY GEN. ASHCROFT: Well, in the cases which we -- which prompted us to embark upon this procedure, we came to the conclusion that it may be necessary for us from time to time to ask for the detention of an individual pending the final outcome and adjudication of the charges against that individual, and they have to do with national security.

SEN. SPECTER: But what is the -- what is the standard for detention after two judges have ruled that he should be released?

ATTY GEN. ASHCROFT: Well, those judges are part of the process that is assigned to the Immigration and Naturalization Service function, which is a process which is overseen by the attorney general. And if the attorney general develops an understanding that it's against the national interest and -- and would in some way potentially violate or jeopardize the national security, then those orders are overruled.

SEN. SPECTER: Attorney General Ashcroft, let me ask you to supplement your answer in writing. What you just said is very generalized. I would like you to provide to the committee what standards the attorney general uses and how that ties into the statute which requires release after seven days. The statute, of course, would take precedence over a regulation. But I want to move on to another question now, and if you would supplement that in writing --

ATTY GEN. ASHCROFT: I'd be happy to do that. The statute requiring release after seven days is -- I believe the statute says that can be held without charges for seven days. We're talking about individuals against whom charges remain.

SEN. SPECTER: Well, there appears to me, at least on the face, to be some inconsistency, but if you would address that in writing --

ATTY GEN. ASHCROFT: I'd be very happy to do so. Thank you for the opportunity.

SEN. SPECTER: -- specifying why your decision is to keep him in detention after those two judicial orders, I would appreciate it.

The Constitution provides, Article 1, Section 8, Clause 14, empowering Congress to establish courts with exclusive jurisdiction over military offenses. There has been a statute, which was referred to in the executive order, which delegates certain authority to the president, providing that procedures may be prescribed by the president by regulations which shall so far as he considers practicable apply the principles of law and rules of evidence generally recognized in the trial of criminal cases in the United States district courts. Now, under that statute, there's a pretty plain presumption of using the regular rules of law and rules of evidence unless
the president makes the determination that it's not practicable.

When you commented that you were not going to notify the Congress when
you have conversations with the president, I agree with you totally. I think
that's a privileged communication. And that's the same kind of privilege
which some of us are looking toward on an examination of monitoring
attorney-client conversations. Any person in the United States has the same
attorney-client privilege that the president does. And I appreciate your
determinations and respect that.

But, we're not really talking about notifying Congress on something you
talked to the president about We are talking about consulting with the
Judiciary Committee -- you used to sit next to me right here --

ATTY GEN. ASHCROFT: It was a pleasure.

SEN. SPECTER: You have --

ATTY GEN. ASHCROFT: It's easier on that side. (Laughter.)

SEN. SPECTER: -- pleasure both ways. But you get more than five
minutes. (Laughter.)

ATTY GEN. ASHCROFT: What makes you think that's a pleasure? (Laughter.)

SEN. SPECTER: But the question -- the question that I have for you --my red light is on -- is given the Congress' Congressional authority, and this is not your fault, when Assistant Attorney General Michael Chertoff testified, he told us that the Department of Justice wasn't even involved in
this executive order, and that the regulations for the implementation go to the Department of Defense, which was a little surprising, since it's the Department of Justice which has the institutional knowledge and experience.

I note that in the brochure you passed out, that the executive order is on paper with the masthead of the Department of Justice. But as I understand it, DOJ didn't have anything to do with the executive order. What I'd like you to address is your sense as to the appropriate relationship between the Judiciary Committee, the Senate, and the promulgation of the executive order, and the role that the Department of Justice ought to have in rules to implement the generalizations of the executive order.

ATTY GEN. ASHCROFT: Well, that's a very, very interesting question. And, first of all, it's not -- I don't believe this is an executive order. I believe this is an order of the commander-in-chief and it's a military order. And in as much as it is, many times I think a number of us have slipped to call it an executive order. But the president operates in two ways to deal with crime. It's his responsibility in the criminal justice system to have as his administration the prosecution of crime, but in his conduct of his responsibility to pursue the war powers and to defend the United States in those settings, he has the right to call forth through the military order the development of a way to adjudicate war crimes, which are separate and distinct from the criminal justice system. I believe that the president indicated in the order which he issued establishing war crimes commissions, that the practicability, I believe is the word that is in the statute, if it were to be applied to this particular commission order, does not exist which would require adherence to those rules.

SEN. SPECTER: Thank you very much.

SEN. LEAHY: Thank you. General, I am advised that there is to be the first of several confirmation votes on judges that's to begin in about three minutes. And my request to have anything after the first one be by voice vote will be granted. So what I'm going to do is take a 10-minute break. Senator Hatch and I will go over, as will others, and be prepared to come back and begin
immediately at the end of that time, and we will go to the senator from California, Senator Feinstein, at that time. You'd probably like to stretch your legs anyway.


SEN. LEAHY: So we stand in recess.


SEN. LEAHY: Our former colleague, the attorney general, knows that, just like five-minute questions often are not, 15-minute roll calls often are not. But I appreciate senators who went over to vote and came back. I've also been told we will not have another roll call for a while. We just are
about to finish a vote on confirming a circuit court of appeals judge, and we'll then voice-vote other district judges. But Senator Feinstein was next in line. And Senator, I appreciate you being here, and I'll yield to you.

SEN. FEINSTEIN: Thank you very much, Mr. Chairman. Mr. Attorney General, I'd like you to know personally that I am very supportive of what your department is doing and what you are trying to do. Perhaps as a member of the Intelligence Committee, we learn things about what is happening that we can't really disclose. But I'm convinced that there is reason for deep concern and there are good reasons for doing what the president has proposed.

It was interesting for me to read through the al Qaeda manual, the translation of which you just distributed to us. And so that everybody might know, I just want to read one small part. It's under "Principles of Military Organization," and it says, "Missions required of the military organization:
The main mission for which the military organization is responsible is the overthrow of the godless regimes and their replacement with the Islamic regimes.

"Other missions consist of the following: Gathering information about the enemy -- the land, the installations and the neighbors; kidnapping enemy personnel, documents, secrets and arms; assassinating enemy personnel as well as foreign tourists; freeing the brothers who are captured by the enemy; spreading rumors and writing statements that instigate people against the enemy; blasting and destroying the places of amusement, immorality and sin, not a vital target; blasting and destroying the embassies and attacking vital economic centers; blasting and destroying bridges leading into and out of the cities." That's a pretty clear statement of military mission.

Having said that, and just following up on Senator Kennedy's questioning, I'm also aware that many people who may well be associated with terrorist organizations, how they buy their weapons -- and the manual also speaks to that, how to buy these weapons. And I would -- you very nicely offered to look at any proposal.

I'd like this afternoon to send you a proposal which Senators Corzine, Inouye and Reed and I will shortly introduce which is for a universal background check for the purchase of weapons and which is modeled after the Pennsylvania law, which I believe was signed by Governor Ridge. I'd like to ask that you take a good look at that proposal and tell me what you think about it.

Also, having participated in the other hearings, I want to express one thought to you. The resolution the Congress passed authorizing the president to use force was quantified, and it was quantified because a country, as in a full declaration of war, isn't what we're fighting against. So no country was named. But the president was authorized to use all military force against the perpetrators of 9/11, and where that would take him in terms of using that military force.

Now, it may or may not have the same legal standing as a full declaration of war, but I think there is room for some problems here. So I am of the opinion that we should pass an authorizing resolution that really gives you, as the executive branch, the authority to do what you need and also states some things like the standard of proof, like whether it's open or partially closed, the right to counsel, those kinds of things in that declaration. And I have a series of questions, and I won't have time to ask them all, about where you stand with respect to precise points that would be in that declaration. But I'd like to ask one question, because I think it's the heart of a lot of the concern, at least on this side of the aisle.

The White House counsel, Alberto Gonzales, wrote an op-ed for the New York Times recently in which he explained some of the legal provisions in the president's November 13th order. And I'd like to state this. Mr. Gonzales, and I quote: "The order covers not only foreign enemy war criminals. It does not cover United States citizens or even enemy soldiers abiding by the laws of war."

Now, two days ago, Ambassador Prosper testified that he interpreted this sentence to mean that only those who commit, and I quote, "grave violations that require organization, leadership, promotion of purpose," end quote, will be tried by a military commission. However, the order is sufficiently broad to leave open the concern that this order could cover many people who have a very peripheral relationship to the September 11th attack.

Does the order -- and this is getting at the intent -- does the order only apply to the leaders of al Qaeda and those directly involved in the September 11th attacks and other international terrorist attacks, or will it also apply to those only peripherally involved in criminal activity?

ATTY GEN. ASHCROFT: I think it's, first of all, important to note that it does not apply to American citizens, nor does it apply to people who violate the criminal law of this country generally.

SEN. FEINSTEIN: Is that legal aliens.

ATTY GEN. ASHCROFT: This is -- legal aliens are obviously subject to this order. But the point is that the commissions were called into existence by issuing a military order by the president that would try war crimes. So individuals who have committed war crimes in the context of this time of conflict are subject to this order unless they are United States citizens. And technically, in that respect, the universe of individuals eligible for coverage is a large number.

But similarly, every criminal law that we pass in the United States has a potential coverage of 280 million people. That's the population of individuals. And we see those laws as protecting the 280 million people, not putting them in jeopardy.

Similarly, I believe the president's purpose in this war crimes commission which he has issued -- and obviously it calls for the right to counsel and things in the commission order -- is to protect people, not to place them in jeopardy; and obviously the 20 million people in the United States that it would protect, even though the fact they would be eligible for prosecution here, are people who also fear the kind of terrorism that destroyed a number of individuals, not citizens of the United States, in the World Trade Center bombing and in the other incidents that related to September 11th.

It is important that the president's directive that we have a full and fair hearing be reflected in what the Department of Defense eventually details as the procedures. And I would -- I think it'd be appropriate for discussion and contribution to be substantial in that regard to the department.

SEN. FEINSTEIN: I know my time has expired. Let me just clear this up. You're saying, then, that the military tribunal will only be used for those who would be prosecuted for war crimes.

ATTY GEN. ASHCROFT: War crimes. And the order limits the jurisdiction of the commission to the commission of war crimes.

SEN. FEINSTEIN: Thank you.

SEN. LEAHY: I think it also says those who harbor or assist or anything else. Is that correct?

ATTY GEN. ASHCROFT: When it talks about the trials to be conducted, it talks about trials to be conducted for war crimes.

SEN. LEAHY: But General -- and I don't expect that you've had time to see this -- I faxed down to your office yesterday some proposed legislation, and I'm not asking questions on that because it wouldn't be fair; you've just gotten it. But I wish you and your experts would look at some proposed legislation. I know Senator Feinstein has raised this issue with me, I think, several days ago, actually, and Senator Schumer and others have.

Members in both parties of the Armed Services Committee raised the issue. I've got to tell you, I think, from a constitutional and an historical point, the president, you, the secretary of Defense and others will be strengthened in your resolve, but also in your abilities, by having a congressional mandate and framework for these military tribunals.

Nobody up here has questioned the fact that you can have military tribunals, but as an op-ed piece in the Post and others said today, very special circumstances where they are done. But if you have congressional framework, congressional approval, a lot of the questions that are being asked would stop. And I really think, as the senator from California and others have suggested, you should do that.

Please take a look at some of the ideas I've sent and others will send you, because ultimately we work better when we work together. We do not give the best image to the rest of the world when we work apart.

SEN. FEINSTEIN: Mr. Chairman?


SEN. FEINSTEIN: Would you just allow me, because the order is a little different from what the attorney general said. The order states, "To be tried for violations of the laws of war and other applicable laws by military tribunals." So you're saying, "Strike the other applicable laws."

ATTY GEN. ASHCROFT: I believe that the correct construction of the order would indicate that only individuals who had committed war crimes would be subject to the jurisdiction of the commission.

SEN. LEAHY: Again, I think that's why we should have it laid out very specifically in the law, not by executive order but in the law, what is and what is not allowed.

ATTY GEN. ASHCROFT: I guess I would refer you to Section 4, Part A: "Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission, that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment and/or death." I don't think that's instructive. I've been handed something that is --

SEN. LEAHY: Well, General --

ATTY GEN. ASHCROFT: It must be in response to some other question.


SEN. LEAHY: General, this is not a game -- this is not a game of "gotcha."

ATTY GEN. ASHCROFT: I'm informed that it is instructive and this is more --

SEN. LEAHY: I thought you were going to say you were informed it is a game of "gotcha." (Laughter.)

ATTY GEN. ASHCROFT: I'll be glad to confer with you about this. Thank you.

SEN. LEAHY: The point is, we're laying down not only a legal history; we're laying down an historical history here. So I would ask, in reviewing the transcript, certainly if there's additions, changes you want to make, do so. And I would say the same for members of the panel.

The senator from Arizona has been very patient.

SEN. HATCH: Mr. Chairman, if I could just make one comment about that.

SEN. LEAHY: Not as patient as the senator from Utah. Yes, go ahead.

SEN. HATCH: We've all seen how cooperative the Congress is on something as mundane and simple as economic stimulus package. You can imagine what they'd do with this, because I just got -- you know, I was just amazed. Honest to goodness, I was amazed to see some of the comments of Julian Bond against our attorney general. Some of the things he says are really quite offensive.

SEN. LEAHY: We're talking about this --

SEN. HATCH: Wait just a second. And I'm just saying that there are differences on these matters. But one difference that I don't think anybody can dispute is that we have had presidential military commissions from the time of George Washington, and Congress has generally gone along with them because of the need to cooperate and resolve these problems of war. So I just make that point, for whatever it's worth.

I'd like to put in the record some remarks that I would make and also a report by Cecil Angel, a Free Press staff writer, about some of the comments made against our -- I think inappropriate comments and very, very inflammatory comments made against our attorney general, I think terrible comments from somebody who I believed should be in a position of respect.

SEN. LEAHY: We have a number of things that will be put in the record. Of course, every senator will be allowed to put whatever they want in the record. But General, please take a look at the legislation we've sent down to you. This committee doesn't deal with economic stimulus packages. It deals with the criminal codes and others of this country, and we've moved pretty rapidly, working together on the anti-terrorism legislation. We demonstrated we can do that when the country's future is at stake.

ATTY GEN. ASHCROFT: On to the category of "The staff is always right," let me just say that this does say, "All offenses triable by military commission," and that's artful language designed to mean war crimes.

SEN. LEAHY: I understand.

ATTY GEN. ASHCROFT: But I'll be happy to go further with that and clarify that in another setting.

SEN. LEAHY: Do take a look at the legislation. I would like to have your views on it, the legislation we sent you.


SEN. LEAHY: Senator Kyl.

SEN. KYL: Thank you, Mr. Chairman. I would just note that Senator DeWine was here before I was. Are we just going in the regular order? Or --

SEN. DEWINE: That's fine, Mr. Chairman.

SEN. LEAHY: I'm sorry.

SEN. KYL: I'd be happy to defer to Senator DeWine if --

SEN. DEWINE: Go ahead -- it doesn't matter.

SEN. KYL: All right, thank you. Thank you.

SEN. DEWINE: Go ahead, Jon.

SEN. LEAHY: I'm sorry, that was my mistake.

SEN. KYL: All right, I thank the senator from Ohio. I just have three questions. Let me just make a quick comment in view of the colloquy that has occurred here before. The attorney general today, and Michael Chertoff last week, made it clear that the president's order is pursuant to his authority as commander in chief, directed to the Department of Defense for both the execution of the military commissions, as well as the development of the rules and procedures for their conduct, that he is perfectly willing to pass on any suggestions that we have. This is not a Judiciary Committee responsibility or a congressional responsibility. And I would hate to think that we would take time out from holding hearings on the 100- plus judges that are pending before us, for example, to try to come up with the rules and procedures for conducting these military commissions.

It is a Defense Department responsibility, a presidential responsibility. And while l am sure they will have the able advice of the Department of Justice should they request it, as the attorney general has volunteered, it is not something that either we as a committee, nor the Congress generally, should start getting into at this point in the session, and with all of the other business that is pending before this committee. That is my opinion on that.

Just three questions, Mr. Attorney General. First of all, Senator Feinstein's comment got me thinking about this. Our special forces round up a couple hundred of these radical Arabs who we have been reading about. We even shoot the Taliban soldiers in the back when we think they are trying to flee -- they are so tied into the al Qaeda. And so they fall into our hands, and it seems to me we have got three choices. I suppose what we could say is, Here, to the Northern Alliance -- you take them -- and I'd hate to think about their civil rights in that situation. But that would be the easiest thing, because military commissions are a lot of trouble. But we could also try them before the military commissions. It seems to me the third option is clearly not an option, and that is bringing them to the United States for Article III trials.

So my first question is what your take is really on the need for the commissions. We talked a lot about the potential rules and procedures. But why do we need them in the first place?

Secondly, the point has been raised about the law to be applied to U.S. citizens. There already is a United States citizen, a fellow by the name of John Walker, who tied up with these Taliban fighters and was recently captured. and there have been questions about what will be done with him. And I wonder if you could tell us what the Department of Justice, if anything, what the Department of Justice intends to do about the case of John Walker. And, third, if you would, again because the Defense Department is the department of government responsible for the development of the procedures for the conduct of the military commissions -- you alluded to something in your statement I think could well justify a lot more comment, especially relating to the oversight authority of this committee -- and that is you've said that the Justice Department is in some respects being restructured to fight this war on terrorism. We have a new obligation, a new mandate here. And to the extent you'd like to edify us about what you are intending to do to make us safer, I would appreciate hearing more on that as well.

ATTY GEN. ASHCROFT: Thank you very much, senator. Let me first say why commissions. I believe the president has a duty in time of war to see to it that those individuals who are involved in whatever war there is against the United States don't target innocent civilians. And if we don't impose a penalty to those who violate the laws of war, we will provide an incentive for the violation of the law of war.

The war crimes commission ordered by the president, now being developed by the Department of Defense, is designed to say that attacks on innocent civilians that are not military targets, taking hostages and killing them, are acts of war. Now, when we come to those responsible for this, say who are in Afghanistan, are we supposed to read them the Miranda rights, hire a flamboyant defense lawyer, bring them back to the United States to create a new cable network of Osama TV or what have you, provide a worldwide platform from which propaganda can be developed? We have judges in the United States that are constantly protected because of their prior involvement in terrorist trials. Can you imagine making a courthouse in a city a target for terrorist activity as a result of focusing the world's attention on some trial in the normal setting for these war crimes?

Well, war crimes are well understood in the international community. We have ongoing war crimes tribunals that relate to atrocities conducted against the Rwandans, relate to atrocities conducted against the Bosnians. There have been a few atrocities conducted against the United States of America, and I think it's appropriate that we exercise the discipline of a war crimes commission to hold those responsible who violated the law of war in that respect.

Now, you raise the case of an individual said to have been a U.S. citizen who joined the other side. I really am not in a position to respond regarding any specific prosecution or case or alleged crime committed by an American. I would say very clearly that history has not looked kindly upon those that have forsaken their countries to go and fight against their countries, especially with organizations that have totally disrespected the rights of individuals, that make women objects of scorn and derision, that outlaw education. That's certainly the case. And there -- I will not belabor you right now with a list of the kinds of criminal actions that could be taken in the criminal justice system against such individuals. I can tell you that no person will be -- no citizen of the United States will be tried in a war crimes tribunal. The commission order of the president indicates that that is limited to non-citizens.

SEN. KYL: Mr. Chairman, General Ashcroft, did you want to comment at all about the restructuring of the Department of Justice for the purpose of protecting --

ATTY GEN. ASHCROFT: Well, thank you. You know, I believe that there is a noble purpose is justice, and that is to prevent crime. Whenever we prosecute, we are trying to remedy the absence of justice that came when someone's rights were infringed. And I've always said that we are the Justice Department, not just the prosecution department. So our -- we have begun even a more pervasive shift towards prevention -- finding ways to disrupt and prevent this activity rather than to try to remediate it, because we know that the scar that is left by thousands of people who die in even a single terrorist incident is a scar that can't be remediated. And all the prosecutions in the world aren't as good as preventing that.

So if we have a sea change in terms of our effort, it's to try and reconfigure our thinking toward prevention, not just prosecution. We are going to be sending people from Washington to the front lines in our offices to prevent and to prosecute and to disrupt terrorism, rather than have so many people in Washington, D.C. But we are going to be learning about how we can additional deploy our resources so as to make sure this doesn't happen again. This is something that is intolerable and unacceptable, and we have got to fight to make sure it's not repeatable.

SEN. KYL: I appreciate that. Thank you. Thank you, Mr. Chairman.

SEN. LEAHY: Senator Feingold.

SEN. FEINGOLD: Thank you, Mr. Chairman. Thank you, Mr. Attorney General, I appreciate this opportunity for all of us to ask you questions today. I would like to just start with a general questions. There is often an attempt at hearings like this to sort of set a room tone at the beginning, to put everything in context. And one thing that my good friend, the senator from Utah, the ranking member, said, was that -- I believe he was asking another senator saying that we ought to get off the back of the attorney general. And in your own statement you referred to people who use -- or refer to phantoms of lost liberty as being tactics that aid the terrorists by eroding national unity. I would just like your assurance that you do not consider the hearings that we have been holding under the leadership of the chairman and the hearing today as in any way being too much on your back or in any way somehow aiding the terrorists by eroding national unity.

ATTY GEN. ASHCROFT: I am very pleased to repeat what I said in my statement, that I was pleased to be here, that I am honored to be here, that we do need reasoned discourse. I did indicate that we need reasoned discourse as opposed to fear mongering. And I think that's fair. This is the place where reasoning and discourse take place. And we do need to be fair enough about this to allow the details to be known.

When news organizations across America, from all sides of the spectrum I might add, trumpet as a headline, "attorney general eavesdrop conversations between lawyers and clients," and they leave it there, that's a gross misrepresentation about civil rights.

SEN. FEINGOLD: Let me get into the specifics. And I appreciate that, and I take your responses, certainly suggesting that this process is entirely appropriate.


SEN. FEINGOLD: So let me proceed with that.

ATTY GEN. ASHCROFT: And it includes other hearings held, and to which we have sent members of the department.

SEN. FEINGOLD: Fair enough. Let me turn then to the topic of one of those hearings, the issue of secretion detention of hundreds of individuals, most --

ATTY GEN. ASHCROFT: May I -- may I just indicate that -- and I guess I should not interrupt, but secret detention is something I would like --

SEN. FEINGOLD: Let me strike the word "secret," so my time doesn't get used up in the description.

ATTY GEN. ASHCROFT: Yes, let's do that.

SEN. FEINGOLD: The detention of hundreds of individuals, mostly of Arab or Muslim backgrounds, and many if not most for minor immigration violations. So far, Mr. Attorney General, you have refused to provide a full accounting of these individuals. At first you said that the law prevented you from disclosing the identities of the roughly 550 individuals held on immigration charges.

When I asked Mr. Chertoff last week to cite the law that prevents the department from releasing the information, he confirmed that there is no such law. You also stated that you did not want to help Osama bin Laden by releasing a list of the detainees. Yet you and Mr. Chertoff have said nothing prevents the detainees from self- identifying. Now this it strikes me just entirely undercuts the argument that giving out this information will help bin Laden, because if you really thought it would you wouldn't permit self- identification; you wouldn't have released the names of 93 individuals who have been charged with federal crimes.

Moreover, as the hearing of the committee held on Tuesday showed, saying detainees can self-identify is sometimes questionable at best. Mr. Al Maqtari, a former detainee who testified, was allowed one phone call of no longer than 15 minutes a week for almost the entire two months he was held in detention. So I would like to specifically ask you about the right of the people being detained to consult an attorney. Mr. Chertoff testified before this committee last week that every one of these individuals has a right to counsel; every person detained has a right to make phone calls to family and attorneys. But the right to an attorney is meaningless if in practice it's impossible for an individual in custody to contact his attorney.

And we heard testimony in the committee Tuesday of at least two instances where individuals were unable to speak with their lawyers for days or even weeks after they were detains. We know that these are not the only such instances. Furthermore, it became clear that the roadblocks to individuals consulting with counsel not only caused great hardship to the clients and violate their rights, but it also hinders the investigation and wastes the resource of law enforcement on people who it turns out have no connection to terrorism.

So I'd like you to answer two questions in this regard. Will you commit to this committee today that the Department of Justice will take immediate steps to assure that every detainee is made aware of his right to be represented by counsel, and made aware of organizations or groups that will represent him without charge if he can't afford a lawyer; that counsel are able to locate and consult with their clients without difficulty; that detainees are permitted to contact their attorneys as often as they need to, and receive or return all calls from their attorneys without interference?

And, second, until the full disclosure requested in my October 31st letter is made, I would request that the Department of Justice determine if any of the people currently held in detention are not represented by counsel. Will you do that?

ATTY GEN. ASHCROFT: I think I can promise I can do virtually everything you've said. You've made a pretty particular and detailed proposal. You've said that they would be able to return every phone call. And there are reasonable limits that I think have to be imposed, even on those individuals who have violated the law and want to confer with their attorneys. I believe it is the right, and will take steps to make sure again that every detainee understands that we believe it to be his or her right that they have counsel for those for whom government counsel is not provided; in other words, that there is not a government-funded counsel, we have a practice of providing pro bono counsels. And we have been bringing people of those pro bono counsels into the detention facilities regularly, so that individuals who are being detained can have an opportunity to see an attorney if they haven't called them or haven't chosen to. They still have a chance to confer.

I want to do that, and I do not intend to hold individuals without access to counsel. And we will take steps to make sure that we don't. I don't believe that we are. And I will make available to individuals an understanding of pro bono counsel or free counsel in the event that they are not classified as individuals entitled to an attorney at government expense.

I would -- let me clarify a couple of things, if I might -- and I will try not to take too much time. When Mr. Chertoff was answering the question, he said, "I don't know that there is a specific law that bars the disclosure of the names." That was his testimony. And let me just tell you what the frame of reference is when I talk about the law regarding detainees. The law varies in relation to the nature of the detainee. If a detainee is a permanent resident but an alien to the United States, the law prohibits the disclosure of his name or her name. If the person is not a permanent resident but is here on another kind of visa or authority, the law recognizes the duty of the attorney general or the authorities to protect prosecutions and investigations by not providing lists of the names.

These laws are basically summed up in the FOIA legislation, which talks about freedom of information. And one of the considerations I have is that the privacy rights of individuals in this setting should be respected, that people should not be labeled as "terrorists" while we are still investigating any connections they might have to terrorism. With that in mind, I have -- as in addition to protecting from disclosing information about who we have in custody or don't have in custody as a coordinated list, I have refrained from developing the list, and frankly don't intend to develop such a list.

You mentioned that each of these individuals has had the right to self-disclose their incarceration. Each of these individuals obviously has had the right to contact a lawyer -- you have cited some who have said that their contact hasn't been with free enough access, and I will look carefully into that. I know that one of the individuals that I believe you had at your hearing was an individual that I had, immediately when I had heard that there may have been an irregularity regarding his detention, sent FBI members to his home the minute -- when I heard about that, upon his release. And our report was that he didn't allege a problem at that time. But I am eager -- was then, remain eager -- to reserve these rights.

It is with that in mind that I would say that we have detained about 500 -- we have in detention about 563 individuals who are being detained on Immigration and Naturalization Service items related to the events of 9-11.

We have a total of about 20,000 people detained in the Immigration and Naturalization detention program. We have about 54 people detained on criminal charges, and those individuals obviously, unless the court has sealed the nature of the charge, there is a public record of their detention, although it is not a coordinated list. We have detained some other individuals, and I am not at liberty to discuss their detentions, because they are the subjects of material witness warrants.

SEN. FEINGOLD: Sorry, Mr. Chairman, I know my time is up, but let me just say quickly in response that there still has been no law cited for us that suggests that the law prohibits the disclosure. We have no citation to that effect. And we are still wondering what that is. And, Mr. Chairman, I appreciate the attorney general describing the practice with regard to right to counsel. But I want your commitment, Mr. Attorney General, that everyone in detention will get a lawyer, and will be able to consult with them. Can you give me that commitment?

ATTY GEN. ASHCROFT: Well, no I can't. I cannot force lawyers on individuals who refuse lawyers. I can make a lawyer available to every person in detention. In terms of the availability to lawyers for calling them, I am not authorized to provide lawyers for those in the INS detention at public expense, but I will promise you I will do everything --

SEN. FEINGOLD: But you commit to making a lawyer available to every person in detention?

ATTY GEN. ASHCROFT: If lawyers are willing to provide service to those individuals, and we are helping generate those lawyers, we will do that.

SEN. FEINGOLD: Thank you, Mr. Chairman.

SEN. LEAHY: Thank you.

ATTY GEN. ASHCROFT: I might -- if I might --

SEN. LEAHY: Yes, go ahead --

ATTY GEN. ASHCROFT: -- I would cite privacy Act 5, U.S. Code 562(a) --that's paren (a), paren (2), as -- and the FOIA 5 U.S. Code 552(b)(6), especially as the prohibition regarding naming legal permanent residents.

SEN. FEINGOLD: You are citing this as a prohibition on disclosing any of the names of those in detention?

ATTY GEN. ASHCROFT: Not any of the names of those in detention. As I indicated earlier, senator, I -- there is a varying legal standard, depending on the status of the individual. The prevention is on a narrow group of individuals that are permanent residents. The authority not to disclose relates to those who are not permanent residents, but disclosure of which, in the judgment of law enforcement authorities would be ill advised as it relates to aiding the enemy or interfering with the prosecution.

SEN. FEINGOLD: Well, Mr. Chairman, I would simply add that this confirms that there simply is no blanket prohibition in the law of disclosure, and I would just like that on the record.

ATTY GEN. ASHCROFT: I -- I can agree with the senator, and would stipulate to the fact that there is no blanket prohibition.

SEN. FEINGOLD: Thank you, Mr. Chairman.

SEN. LEAHY: Thank you both. Senator DeWine.

SEN. DEWINE (R-OH): Mr. Chairman, thank you. Mr. Attorney General, thank you for your testimony, and thank you for the good job that you are doing for our country.

We've had the opportunity in this country for the last several weeks to have a spirited debate about military tribunals. I think after that debate, it is clear -- and after your testimony it is clear that military tribunals are constitutional, that there is certainly historic precedent for doing it.

I think also it is clear that in certain limited cases, there -- you do have the need in this country to protect the trier of the facts, the judge or a jury, witnesses in some cases. And I think it's also clear that in some cases we have the need to protect intelligence sources and intelligence information.

I would, though, like to talk for a moment with you about -- and I understand that it's not your department that is putting out the protocols and writing the rules, but I again assume that you will have some input into that. I'd like to talk a little bit about some of the public policy issues and public concerns that I have, and foreign policy concerns I have about the use of military tribunals. We have every day in this world hundreds of thousands, maybe millions of U.S. citizens who travel or who live in other countries. I think we have to be concerned about the perception of what we are doing, not just the reality of what we are doing. I have, certainly, confidence in this administration in doing it correctly, but I think also the perception is very, very important.

So, I would certainly hope that when the administration comes out with the protocols, in addition to what has already been stated, that there would be some other things that would be very clear. One would be a very clear guidelines as to the rules of evidence.

Second, that the rules would provide very clear standards of proof and burden of proof, ultimate burden of proof that would have to be met before someone could be convicted.

Third, I would hope that there would be a provision for a review, a final review of the verdict beyond the initial court or the initial trier of fact.

And fourth, and certainly not least, is that I would hope that these would be held in public, in open, that they would be as open as possible unless there is a compelling reason for their closure.

Tribunals throughout history, certainly of the last century and into the current century, have provided an opportunity for mankind and for civilization to advance. We all cite and think about, I guess, the Nuremberg trials, controversial with some people at the time. But I think as we look back, those -- those hearings, those trials, we look back as an advancement in civilization, that we do in fact hold people accountable for what they do, but we do it in the right way, and we do it, when possible in a public way.

So, I think these are tools for us to advance, tools for us to learn, and tools for us to teach. One of the great things this country teaches, and one of the great things that we export when we talk about what we export -- and I think the greatest thing we export is the rule of law. And we see it -- and you have traveled to foreign countries, I have traveled, and we do a great job in trying to convince people that if they really want to advance, if they want to protect rights, if they want to have advancement of civilization, they will in fact have the rule of law.

And so I think we just need to be very, very careful as we approach this. I think it's been demonstrated the need to have these, but I think it's also that in each particular case, I will the president at his word, that he will make the decision and in each case there will be, I would hope, a very compelling reason -- a compelling reason to have a military tribunal, and a compelling reason to go beyond that if they have to be close, a compelling reason to close those particular hearings.

Let me just ask you a question and then I'll let you comment if you could. I'm learning after a few years in the Senate how to do this -- you get all your comments and then you give the witness the opportunity to comment right as the red light comes on. It's clear, based on, I think, what we have read, and based upon good common sense, and some of the things you have said today, there has to have been a fundamental shift in how the department operates and what it sees as its mission. And I don't want to put words in your mouth, but we would all, I think, assume that there has been some change in the mission, and the change has to do with the protecting of the United States citizens against future terrorist activities.

With that change, as you look at the future of the department, doesn't that mean that there will be some things that you simply will not do as well, or you simply will not be able to emphasize as much? And maybe you have not had a chance to sit back and think about this or do long- range planning, but it seems to me that as a country, as a department, as an administration, ultimately as this -- as this committee that has oversight, that's something that we have to think about as a people, the mission of your department, which I think, I will say at least, fundamentally had to change after September 11th. Your comments.

ATTY GEN. ASHCROFT: Well, I thank the Senator. And not only is the red light on, but it's flashing -- (laughter) -- and so I -- I'm glad you mentioned the rule of law. I can't think of a more savage interruption and disruption and violation of the rule of law than the events of September the 11th. They are war crimes. And to fail to prosecute war crimes is to reinforce the idea that somehow we can forget about the rule of law. I believe we need to send a message to the world that America does not tolerate the disruption of the rule of law, the slaughter of innocents, war crimes. So, I think the president has a duty, a solemn duty, to constitute a commission to resolve the war crimes issue.

It's not as if war crimes issues are not a part of the every day discourse of the world, seen by our allies and our enemies alike. I think a number of members of this committee have visited The Hague and have actually witnesses proceedings -- which I would be surprised if they're not ongoing today, where atrocities against other nations are being remedied in a war crimes tribunal setting that has very similar language and structure to the language and structure proposed by the order of the president. This order of the president talks about openness. It talks about evidence needing to have probative value. It talks about the kinds of votes that would have to be taken in order to make sure that a verdict is appropriate. And I believe the order signals enough in terms of those -- respect for those rights of the accused that the Department of Defense will act appropriately and be -- as a matter of fact, I expect it to.

I just want to know -- want you to know that I believe that the -- there are fundamental rights at stake here, and it's the right of the American public to expect not to be abused by war criminals, and that the president has a duty and responsibility where, in his words, I think, to bring them to justice or to bring justice to them. And this is a part of getting that done.

SEN. LEAHY: Thank you.

SEN. DEWINE: Do you want to take a crack at the second part of the question?

ATTY GEN. ASHCROFT: Oh, the -- it is said that those organizations that have too many priorities express no priority at all. I recently totaled up the way the Justice Department has grown, and I have found that in our records we had stated that there are 56 priorities for the Department of Justice.

SEN. LEAHY: You may want to submit all 64 for the record, General Ashcroft.


SEN. LEAHY: Feel free to submit the 64 for the record --


SEN. LEAHY: Oh, 56 -- you can submit that for the record.

ATTY GEN. ASHCROFT: I mean, that's inflation for you. (Laughter.) But anyhow, I mean, it might as well be 64. If you try to do everything, perhaps you can't do anything well. It's pretty clear to me that there are some things that we might not do well, but we better do well the job of preventing, as well as possible the job of preventing terrorism.

Now, I have some reticence about saying that because preventing terrorism is a very difficult job. We witnessed this week the carnage in Israel. It's a society that has far fewer freedoms than we do and a far greater investment in terrorism protection and prevention, and yet 25 innocents were slaughtered in Israel this last week in terrorist activities. So, it's with that in mind that I -- it is an awesome mandate to try and focus our energy, and there may be some things we won't do as -- at the same level of priority we did before because we understand that saving lives is the highest priority.

SEN. DEWINE: Thank you.

SEN. LEAHY: Thank you. Senator Schumer.

SEN. SCHUMER: Thank you, Mr. Chairman. And thank you for holding these hearings. And I want to thank you, Mr. Attorney General, for being here. And we understand the large job you have ahead of you, and appreciate all your efforts -- whether we agree with all of them or not -- on that behalf.

Let me say that you gave a strong, eloquent statement about the danger before us when you opened, and how you needed to get every tool that you could to fight terrorism. I think that's something that most Americans, in one degree or another, would agree with. But it seems to me that there's one place where you're not seeking that tool at all, and that is the right of illegal immigrations, or whether -- to find out whether illegal immigrants have guns, particularly the people on your detainee list.

Now, there was an article in the New York Times that said that the people in the FBI want this power, want this ability, and the Justice Department has overruled them. I was troubled to read that when the FBI ran an initial check as to whether some of these detainees, 186 of them, had purchased guns, that two had. And when the ATF checked its database, they found that 34 had purchased guns. I don't have to tell you that for all illegal immigrants and for most legal immigrants, they have no right to a gun. And this would seem to somebody, to most with any knowledge of law enforcement, to be an important tool that you could use in helping make us safe.

And so my questions are going to be all about this, because I'm a little befuddled. You're looking for new tools in every direction. I support most of those. But when it comes to the area of even illegal immigrants getting guns and finding out if they did, this administration becomes as weak as a wet noodle. And the question is why, and how we can change that.

So, I'd like to ask you a few questions about that. I would note that most people read the law to allow you to do this right now. In the Federal Register of November 25th, 1998, it says, routine use C -- C is the category that deals with -- provides the necessary authority for further coordination among law enforcement agencies for the purpose of investigating, prosecuting and/or enforcing violations of criminal or civil law, or regulation that may come to light during NICS, during NICS operations. That seems pretty clear. And so I just want to ask you a couple of questions about that.

The first is, do you believe that you do not have the right right now to ask for checks? We ask for checks of these illegal immigrants' immigration status, and we look if they violated other laws. Do you believe you don't have the right to ask, to check whether they have purchased a gun illegally?

ATTY GEN. ASHCROFT: I believe I could ask an immigrant whether or not he or she has purchased a gun illegally. I don't think there's any problem with me asking any citizen, whether or not they've purchased a gun illegally, or an permanent resident alien, or an illegal alien.

SEN. SCHUMER: Do you believe -- then if you could do that, is there anything wrong with checking the database you now have, the NICS system to see if they've done it, to see if they're telling the truth?

ATTY GEN. ASHCROFT: It's my belief that the United States Congress specifically outlaws and bans the use of the NICS -- NICS database, and that's the use of approved purchase records for weapons checks on possible terrorist or anyone else. That the --

SEN. SCHUMER: I would say most, in all due respect, Mr. Attorney General, most disagree with you. But let's just assume that's the case. Why didn't you ask us for, when you asked us for a whole lot of things in the anti-terrorism bill, a whole lot of different things that you said new circumstances required us to need? A, why didn't you ask us for that authority, if you believe you don't have it, which most people do?

And B, would you support legislation that I will drop in tomorrow to give you that authority?

ATTY GEN. ASHCROFT: Well, I would be very pleased if you would send me legislation. I'll review it. If Congress passes a law to help us fight terrorism by keeping guns out of the hands of illegal aliens and other individuals that should not have guns in their possession, I will fight to sustain the law, and I will enforce the law.

SEN. SCHUMER: In all due respect, sir, I'm asking you a slightlydifferent question -- two slightly different questions. Number one, why wasn't this asked for in the counter-terrorism bill, a bill I supported? In fact, I took your side against my chairman on some of the issues there. Why didn't we ask for it then if it was at least ambiguous? And B, why not support it right now?

I appreciate the fact that you would review it if I sent it to you, but let's assume that it's very simple legislation that simply allows NICS checks of illegal immigrants, of those, for instance, that you have detained? Why can't you just tell us right now that you would support such legislation? It seems perfectly logical to do. It seems, as you said, and I agree with you, that illegal immigrants here don't have more rights or even the same rights as American citizens. Why couldn't we just make that simple proposition and solve this problem right now? Because, at least according to the New York Times, and I realize the difficulty in dealing with unnamed sources, there are large numbers of people in your own FBI who believe that would be a very important power for them to have. So, again, would you be willing to support such legislation, or the concept? I'm not saying we could draft it together.

ATTY GEN. ASHCROFT: I will say again to you that I don't want to make a commitment to legislation without seeing it. If you will send me legislation like that, I will review it. And I would, upon passage by the Congress of the United States, enforce it vigorously.

SEN. SCHUMER: (Inaudible) --

ATTY GEN. ASHCROFT: (Inaudible) --

SEN. SCHUMER: I'm sorry, please --

ATTY GEN. ASHCROFT: The only recognized use of -- use now of approved purchaser records is limited to an auditing function. And I believe that my responsibility, which was rather forcefully provided as sort of a -- to me an admonition as I took this job and took the oath of office, is to enforce the law. And I believe that the law prohibits, in its current state, any other use of approved purchaser records. That's a subcategory of data used by the FBI. So, if you will send me legislation, I'll review it. And we can confer about it.

SEN. SCHUMER: But you're certainly allowed to use the system, because these people don't have the right to have a gun.

ATTY GEN. ASHCROFT: I believe that the United States Congress, in enacting the law which created this database, limits the lawful use of this database. And I believe that it is my responsibility to live within the law. I don't want to hear two messages from this committee -- not both in the same day, or not on a variety of different days -- not that you want me to enforce some laws and not other laws, and you want me to ignore laws, or respect some rights and not other rights. I'm very pleased to tell you that if you send me the legislation I'll review it, and if you pass the legislation, I'll enforce it.

SEN. SCHUMER: Thank you, Mr. Chairman.

SEN. HATCH: Mr. Chairman, if I could just make one comment. As one of the authors of the NICS legislation, which everybody admits has worked very well, one of the biggest parts of the debate was whether or not you could disclose matters in NICS because -- because on side felt that if you did it would be wrong; the other side thought if you did it would be wrong. And it got into a big mish-mash there, and so that's why the legislation turned out the way it is. But, I'll be interested in whatever the senator suggests.

ATTY GEN. ASHCROFT: My staff has added a piece of information here that may or may not be of interest. Approved purchaser records are those that are denied use in the law.

SEN. HATCH: Right.

ATTY GEN. ASHCROFT: Denied purchaser records can be used and are being used. So there's a difference. The law is as the Congress wrote it, and I intend to enforce the law as it has been written and signed by the president.

SEN. HATCH: We wrote it that way because we had to. It was the only way we could pass it.

SEN. SCHUMER: Mr. Chairman, if you don't run the checks, you're not going to know who should be denied.

ATTY GEN. ASHCROFT: I don't think we're -- we are ships passing in the night, or maybe I'm a rowboat passing you as a ship, whatever it is here. I don't mean to --

SEN. SCHUMER: I hope we can be rowing in the same direction on this issue.

ATTY GEN. ASHCROFT: All right, we'll work on it.

SEN. SCHUMER: Okay. Thank you, Mr. Chairman.

SEN. LEAHY: Thank you. The senator from Alabama.

SEN. SESSIONS: Attorney General Ashcroft, congratulations to you andyour staff for the extraordinary effort, including the FBI, Immigration and all the agencies that you've marshaled and invigorated to do everything possible to protect the people of America from further attacks. I think it's got to be concluded that the things you have done have helped prevent further attacks. I think few of us, after September 11th, thought we would be this far along without additional attacks. So some things you're doing are working.

Now, we've had a lot of criticisms and suggestions and explicit condemnations of actions, saying that they violate laws of the United States or the Constitution of the United States. Let me simply ask you directly -- and that same question I asked Mr. Chertoff -- is there anything that you have done and the Department of Justice has promulgated that you believe violates the Constitution or any statutes of the United States in your effort to fight terrorism?

ATTY GEN. ASHCROFT: I believe that every action we've taken is authorized by the Constitution of the United States and is lawful.

SEN. SESSIONS: I think that's important, Mr. Chairman. And I know a lot of people on our committee and others around the country are saying they have concerns. Well, when this all came up, I could see people having concerns. But after we've had some time here to look at it, I think, in my opinion as a federal prosecutor of 15 years, and just as a person who can read plain language and cases, we're looking at a circumstance where no laws of this country are being violated; no precedent, no historical rights that we've come to be known have been violated by what you've done. And I think we ought to recognize that.

If anybody has a specific, explicit example of an action that's in violation of law, let's have them say it. Just saying concerns is not enough. And to use irresponsible and reckless language, I think, accusing the Department of Justice prematurely, perhaps without full study, of violating the law and the Constitution, as some have had, I think does have the tendency to erode unity in the country and undermine respect for our leadership in a time of war. And that just ought to be carefully done.

So I would just note that Senator Schumer had an excellent hearing earlier this week. We had some of the nation's foremost experts on military commissions and professors. We had two well-known Democratic/liberal professors in Cass Sunstein and Laurence Tribe, among others, who I believe quite clearly indicated their firm belief that the commissions are legal. Cass Sunstein indicated the only question is how they would be conducted. I think that's a real final, I would say, affirmation of the legality of what you're doing here.

One of the questions that I was somewhat troubled about when I first heard it, as a lawyer and as a prosecutor who knows the delicacy of lawyer-client privilege, was the suggestion that you would monitor communications between lawyers and clients. That was blown up in the newspapers in a way that caused me concern. But as I have understood that, at this point, you have concluded only 16 people in the whole federal system might be subject to this monitoring. Is that correct?

ATTY GEN. ASHCROFT: To be subject to -- you have to be subject to special administrative measures and our population measures. And our population of that category is now 16 out of 158,000 detainees in the federal prison system. That's not in the INS system; federal prison system.

SEN. SESSIONS: It's very few, and they're targeted in a way that I think is rational. The Weatherford (sp) case that you cited, which I had not been familiar with, and put on the board, the Weatherford (sp) case certainly suggests that the right to attorney-client communication is not absolute.

And the attorney general's manual, which I had pulled, that Attorney General Janet Reno has cited, provides circumstances, very controlled and very carefully done, but it does provide circumstances, does it not, for monitoring attorney-client -- seizing attorney-client records and other things under certain limited circumstances?

ATTY GEN. ASHCROFT: I'm not an expert in the manual as promulgated by my predecessor, but we do not believe the right to be without reason. And the Weatherford (sp) case is our guide.

SEN. SESSIONS: Well, I remember Justice Goldberg made the comment once that the Constitution is not a suicide pact. I don't think we are required to assume that we're prohibited from doing things that are legitimate under the circumstances. And I believe, from my experience as a prosecutor -- I know in my experience dealing with drug dealers and Mafia people that those criminals have conducted criminal enterprises from inside the jail. Isn't that true in your experience as a former attorney general?


SEN. SESSIONS: And it seems to me that the mechanism you have devised is the way to do it. It provides for, Mr. Chairman, an entirely independent group to monitor the conversation, only after the jailed person and his lawyer have been told the conversations will be monitored. They would be required by law to not utilize that information unless they found within those communications actions or comments that would further criminal attacks against the United States and that they would not be given to the prosecutors who are prosecuting the individual in jail for the criminal offense. Isn't that correct?

ATTY GEN. ASHCROFT: That's correct.

SEN. SESSIONS: And Mr. Attorney General, would you use your supervisory power, such as it is, would you use your power to prosecute criminals, if any of those people who monitored conversations breached that wall, as they were ordered to do?

ATTY GEN. ASHCROFT: I would take -- I would prosecute to the fullest, both with disciplinary action and legal action, those who would abuse this responsibility and trust.

SEN. SESSIONS: Mr. Chairman, I would just conclude with the words of Justice Jackson, who discussed in the Nuremberg military commission trials -- he said this. We're going to be judged not so much on the procedures we set forth -- those are my words. I think you'll be judged and the administration and the president will be judged not just on the procedures and words used to set up these commissions, but on whether justice is done.

He said this: "We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well. We must summon such detachment and intelligence, integrity to our task, that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice."

I think that's our challenge, to make sure that when this is over, that occurs. And I am encouraged by the fact that the president of the United States has taken this burden upon himself personally, to guarantee this. And history will hold him to account if they're not fair.

Thank you.

SEN. LEAHY: Senator Durbin.

SEN. DURBIN: Thank you, Mr. Chairman. And Mr. Attorney General, thank you for joining us today and taking our questions.

On November 10th, before the United Nations General Assembly, President Bush said, quote, "We have a responsibility to deny weapons to terrorists and to actively prevent private citizens from providing them," end of quote.

I think the president was right. Do you agree with his premise?

ATTY GEN. ASHCROFT: I think we do have a responsibility to deny weapons to terrorists.

SEN. DURBIN: I also believe that you were correct earlier in your statement when you said that we need to focus on prevention, not just protection. And the reason I raise that is that -- let me give you a few examples of things that I think we could do to deny weapons to terrorists and to prevent terrorist activity, as opposed to just prosecuting those who have committed these heinous crimes.

Last year, Conor Claxton, who was accused of being a member of the Irish Republican Army, testified that he had purchased firearms at gun shows in South Florida to smuggle back to Northern Ireland. On September 10th, the day before the attack at the World Trade Center, Mohamed and Ali Boumelhem, members of Hezbollah, were convicted on charges of conspiring to smuggle guns and ammunition to Hezbollah. The FBI had observed these two individuals buying weapons at gun shows in Michigan.

On October 30th, long after September 11th, when we were clearly doing everything we could to stop this kind of activity, Muhammad Navad Aswar (ph), a Pakistani, pleaded guilty to immigration violations and illegally possessing a firearm. Mr. Aswar (ph) bought his firearm at gun shows in Michigan.

You passed out -- someone did on your behalf -- this al Qaeda manual, which you showed us earlier. And I had a chance to just glance through it very quickly. Here's their advice to their operatives in terrorist cells around the world. "In buying guns, don't lengthen the time spent with the seller. It's important to depart immediately after purchasing the weapons," the quote that was given you earlier from another training manual that was disclosed in Kabul.

This is advice to terrorists. "In countries like the United States, it's perfectly legal for members of the public to own certain types of firearms. If you live in such a country, obtain an assault rifle legally, preferably an AK-47 or variations. Learn how to use it properly, and go and practice in the areas allowed for such training."

Mr. Attorney General, many of us supported your request for additional authority to fight terrorism, despite criticism from the left and from others that we were invading the rights in the Bill of Rights. We believe that you and the president and America needed the tools to fight terrorism.

My question to you follows on earlier questions by my colleagues. Why is it, when it gets to the Second Amendment, when it gets to this question of purchasing firearms, particularly by illegal immigrants who are here in the United States, who have connections with terrorism, that there's such a blind eye from the Department of Justice?

The president said about military tribunals -- he reminded us we must not let foreign enemies use the forums of liberty to destroy liberty itself. Couldn't the same be said about some of our rights under the Bill of Rights?

Should we let our foreign enemies use the rights of Americans to bear arms to attack and destroy liberty itself?

The bottom-line question is this. Following Mr. Schumer, can we expect this administration to come forward, proactively rather than reactively, to deal with this proliferation of guns to the hands of terrorists and would-be terrorists that clearly threaten Americans and may threaten our men and women in uniform overseas?

ATTY GEN. ASHCROFT: Obviously the balancing of the rights of individuals is the responsibility of the development of policy. I've indicated to Senator Schumer that I agree that illegal aliens should not be armed and that I would be very pleased to consider proposed legislation that would enhance our security by making it clear that they're not to be armed. In all of the efforts of the al Qaeda operation, they look for avenues of freedom which they can then exploit. They look at our judicial system and seek to exploit it. They look at freedom of speech and seek to exploit that. And we always have to balance very carefully, when we legislate, to curtail their activities in ways that respect the freedoms, understanding the value of the freedoms, but also understanding the vulnerability that may come if there are those who seek to abuse them.

SEN. DURBIN: May I ask you this --

ATTY GEN. ASHCROFT: It's with that in mind that I am willing to review legislation that you would send me in this respect.

SEN. DURBIN: Would you agree, then, that illegal immigrants to this country and would-be terrorists should not be able to buy guns at gun shows and ship them back to their terrorist organizations overseas or use them in some conspiracy or plot in the United States? Would you agree with that?

ATTY GEN. ASHCROFT: Well, the Brady law currently prohibits illegal aliens, felons and terrorists from buying guns. So I'd agree with that. I will enforce that, to the extent that I -- whenever we come upon those --

SEN. DURBIN: But what about the gun shows?

ATTY GEN. ASHCROFT: You just cited for me the fact that illegal aliens were being prosecuted by the Justice Department for possessing such weapons. And --

SEN. DURBIN: But how many have we missed?

ATTY GEN. ASHCROFT: Well, I can't tell you how many we've missed.

SEN. DURBIN: Because we don't check their backgrounds at gun shows, Mr. Attorney General. That's the whole point of changing the law. That's why we need your help and the support of the administration. We have worked with you to give you more powers to deal with terrorism. Isn't this an important weapon for you to have to fight terrorists who are buying guns at gun shows?

ATTY GEN. ASHCROFT: You know, the gun shows provide a basis for the sale of guns by individuals -- not so much at the gun show, but frequently contacts are made there that are subsequently involved in private treaties over the sale of guns. Federally licensed gun dealers selling guns at gun shows are subject to the Brady law, and the Brady law does prohibit all felons, including terrorists and illegal aliens, from purchasing guns.

SEN. DURBIN: That's such a small part of the problem. If we are going to deal with the whole problem and give you the authority to deal with it effectively, I hope the administration will be as forthcoming when it comes to the Second Amendment as they have on other amendments -- have an open mind on finding ways to make America safer. I believe you are dedicated to that. I think the president is by his very words. But if we can cooperate, put something in place to keep these guns out of the hands of terrorists at gun shows, I think it will make America safer. Thank you.

ATTY GEN. ASHCROFT: I'd be happy to confer with you.

SEN. LEAHY: Thank you. Thank you, Senator Durbin. Senator McConnell, who has been very patient.

SEN. MCCONNELL: Thank you, Mr. Chairman. When you are the last man you have no choice but to be patient. Coming back on this committee after all these years as the least senior member reminds me that when you get down to the end of the table, everything has been said, but not everyone has yet said it. (Laughter.) I -- in listening to my colleagues, Mr. Attorney General, the first thing I want to do is congratulate you. We are exceedingly proud of you as a former member of this body for the truly outstanding job that you are doing -- were doing before 9-11, but particularly since 9-11. The best evidence it seems to me that you have won already the public discussion over military commissions is that this hearing seems to become a hearing about gun control. Obviously many of our friends on the other side feel that the military commission argument has largely been lost.

But at the risk of bringing up an argument that we have already essentially won -- because I think you are absolutely right on this, right on the Constitution, right on (society ?) and right on the necessity of having military commissions available to the president during the prosecution of this war. I think you have won that argument.

But I do want to, even though it's been won, make my one question on that subject. On Tuesday, one of the members of this committee asked whether a trial by court martial rather than a military commission would work for war criminals. Like you, I think there would be operational problems with using courts martial rather than military commissions in these kinds of circumstances. For example, I don't think we should have to perfectly establish the chain of custody of evidence that our armed forces came across on some Afghan battlefield or in a cave. But aside from the operational problem inherent in using a trial by courts martial for foreign war criminals, do you think it would be perverse really to give war criminals all the privileges and procedures that we give to American citizen soldiers under the United States Code of Military Justice, when our soldiers are not war criminals? This would also send a perverse message to foreign war criminals: Go ahead and commit war crimes, and you'll be treated just like an American soldier who does not commit war crimes.

Would not treating foreign unlawful combatants just like American lawful combatants remove a distinction -- a disincentive for committing war crimes?

ATTY GEN. ASHCROFT: I thank the senator. I believe the president has two responsibilities. One is to see to it that his Justice Department vigorously prosecutes laws that are passed -- enacted by the Senate and House and in conjunction with what the president signed into law. He has another responsibility when he is conducting a war. That is to make the world -- make sure that the world does not commit war crimes against the citizens of the United States. And in resolving each of those issues, it's important for him to protect the national interests at the highest level possible.

Now, because the constitutional founders didn't expect us to have war conducted by committee, they vest in the president of the United States very substantial powers, and focus those powers in him for the conduct of the war, and that includes the creation of war crimes commissions.

The president of the United States, while he is obviously interested in protecting the national interests, and intends to do so vigorously, is committed to full and fair hearings. And I think as Senator Sessions has indicated, the world will judge us based on whether or not we have full and fair hearings. But let us never forget that the world also understood and understands the nature of the war crimes perpetrated, and also understands that there are conditions during the time of war which might mean that it is inappropriate to have certain procedures which might reveal or place in jeopardy the interests of the United States, about our tactics, about our troops, about our positions or even vulnerabilities which we might have that might be disclosed.

So there is clearly a need to tailor the proceedings --not to avoid fairness or fullness of opportunity, but to make sure that the interests of the United States are protected. It is in that respect that I think we have to -- we should make it clear that we are not going to allow war criminals to try to exploit the justice system of the United States so as to perpetrate an attack upon the United States designed to destroy that justice system, whether that justice system be in the criminal justice system or the Uniform Code of Military Justice.

For that reason, I think the president assigned the responsibility to the secretary of Defense that he create a system attentive to these principles that was full and fair, but was designed to protect the United States of America. And I hope that the system also signals unmistakably to the world that innocent lives are not to be destroyed by war criminals, and such activity will not go unnoticed or uncompensated or unresponded to by the United States.

SEN. MCCONNELL: Again, Mr. Attorney General, I want to congratulate you. I think you have won the public discussion on military commissions. You have done it in an outstanding way, and we thank you very much for being here today.

SEN. LEAHY: Mr. Attorney General, I think everybody would assume that we have demonstrated very much to the world that we do not take lightly these attacks on our soil. All you have to do is turn on the evening news and sees the tens of billions of dollars of effort -- bombs being dropped, our special forces, Marines even giving up their lives to carry that out. We also want to demonstrate to the American people at the same time that we also have an equal commitment to preserving those liberties that have made us free.

ATTY GEN. ASHCROFT: We could not agree more profoundly on that, Mr. Chairman.

SEN. LEAHY: I understand. Senator Cantwell.

SEN. CANTWELL: Thank you, Mr. Chairman. And, General Ashcroft, thank you for your patience and testimony today. Hopefully I can bring up a few subjects that haven't been discussed, and appreciate your help in getting through a few questions, if we could.

Obviously the cumulative nature of the department's actions over the past few months -- the expansion and the eavesdropping authority in the terrorism bill, the expansion of use of e-mail searching, with technologies like Carnivore; the compilation of data bases on Arab Americans; and just this week a request made to the Intelligence Committee to broaden the FISA wiretap authority even further -- brings a lot of questions in America that maybe we may just be going too far too fast.

And given that, I guess my first question is -- and given that really the safeguards and judicial review that have been in place before on some of these wiretap and eavesdropping measures are being eased -- what do you really -- should be the process of oversight? And to be specific, if I could, if we are expanding the watching capacities of the FBI and the Justice Department, who should be watching the watchers in our oversight?

ATTY GEN. ASHCROFT: You remind me of a spate of cartoons that has appeared in the last week, and it's generally a kid sitting on Santa's knee, and Santa saying, "I know when you've been sleeping, I know when you've been awake, I know when you've been bad or good" -- and the kid looks up and says, "Who are you, John Ashcroft?" (Laughter.)

SEN. CANTWELL: I'm not sure everybody in America is laughing at that.

ATTY GEN. ASHCROFT: Well, let me apologize if that's offensive to you. I don't take it lightly. I have -- I do know that the things that I do are serious, although I try not to take myself too seriously. I think this committee is a valuable -- has a valuable and an appropriate oversight responsibility. That's why I was eager to respond to the committee. I volunteered to come in on Thursday of last week, and was told that Thursday would be an inappropriate day last week. So I am here this week.

I don't take lightly your responsibility, and I don't take lightly the responsibilities that we have to enforce the law. But neither do I take lightly the responsibility we have to safeguard the liberty of individuals. That's why when we want additional authority, and when we want and we seek additional authority, we don't take it lightly. An authority that we do not have, we come and ask this Congress for and work with them on.

The Intelligence Committee has recently sought to make four adjustments in the law. Two of them are really the corrections of what have to be viewed as almost typographical sorts of housekeeping things that were with the U.S.A. Patriot Act, and another two are minor adjustments that the Intelligence Committee believes would be appropriate. But I fully agree, if you are suggesting, that you have a solemn responsibility to see to it that we don't go too far. And I think that is always an appropriate question, and it's a question that I never want to fail to ask myself.

SEN. CANTWELL: Well, in following that line of questioning, particularly in the areas and use of Carnivore and Magic Lantern, which is technology that I believe that the FBI is using, and in our expansion in the anti-terrorism bill. I mean, I just want you to know voting for that legislation, giving my constituents the assurance that we were going to monitor carefully and have oversight -- I am asking you know if the Department of Justice will meet with Congress on a regular basis -- maybe four times a year, in closed-door session if necessary -- and provide information to us on the usage of Carnivore and Magic Lantern as eavesdropping on electronic mail, that I think America is concerned about.

ATTY GEN. ASHCROFT: I need to try to clarify something. Carnivore was a proposal which has been very significantly adjusted to meet a number of concerns expressed I think by the people who have dealt with you, and I have dealt with, and I dealt with when I was in the Senate. And it is now with those adjustments been referred to by a different name, DCS 1000 I believe is the name of it.

I am interested in working with the Congress to make sure that that law is appropriately -- that capability is appropriately deployed and respectfully deployed, and would be pleased to find a way to do that, and will work with you to get that done.

SEN. CANTWELL: So you think possibly meeting four times a year for reports on the usage of that technology? I know that you mentioned earlier -- and I know that sometimes headlines can be unfair, but and probably the category of headlines that John Ashcroft would hate -- yesterday's ZDNet on-line publication had: "Warning: We know what you are typing, and so does the FBI." And the article goes on to talk about how the expanded authority under the Patriot could mean that the FBI would be using the Magic Lantern technology, which really creates a worm if you will on an e-mail, so that the suspect who may be your target then sends an e-mail to another individual, thereby sending this worm and virus, and then leaving them open to having their keystrokes monitored. And I think in the interest of not wanting to have more headlines like this, if we can work more closely together to understand how this technology is used, and making sure that Americans' e-mails under this broad expansion of powers to catch terrorists aren't being overly used in invading U.S. citizens' rights to communicate electronically.

ATTY GEN. ASHCROFT: I welcome the opportunity for the department to work with you toward these objectives.

SEN. CANTWELL: Thank you. And, if I could, I'd appreciate your signing of the U.S.-Canadian agreement on cooperation on immigration and asylum. Obviously we are in the last days here working very diligently on the northern border issues. And one of the concerns that we have -- in the anti-terrorism bill we authorized the tripling of northern border inspectors, INS, Customs agents. And yet in the supplemental that has been submitted by the administration, there's very few dollars for those activities. So I am asking whether you support the homeland defense measures here in the Senate that would appropriate dollars for that effort that we did authorize in the Patriot Act.

ATTY GEN. ASHCROFT: Senator, I believe we need additional resources along the northern border. We have about 5,500 miles of border with Canada. Even with the assignment of National Guard troops to try to backfill some of the overstressed individuals there, we are at a very low number. In some respects we have less -- I think it's about one person for every hundred miles, if we count the way the shift would have to be so that people don't work full-time all the time. And I will urge upon the administration the devotion of the appropriate resources to provide us with not only a secure border, but with a border that gives us the facility and flow necessary to keep commerce going, and the valuable trade between our countries.

I was in Detroit and Ottawa both this week earlier, and we have about $1.3 billion a day that crosses our borders in trade between the United States and Canada. About one out of every five dollars of trade the United States does anywhere in the world is with Canada. And if we don't have the capacity to move that trade expeditiously, we hurt ourselves economically very badly. That's the basis for our effort to provide additional cooperation. And this president has instructed me in the homeland defense and security arena to work with the Canadians to the advantage of both of our countries, and I'll try to work with you in the same respect.

SEN. CANTWELL: And I know my time has expired, Mr. Chairman, but if I would I think I will submit one last question on the U.S.- Canadian agreement as it relates to biometrics. There's a mention in there of agreement working with Canada on the permanent residency -- you know, green card status -- and the use of biometrics. And I think what our language in the anti-terrorism bill envisioned is more working on visas of people seeking to come into the country on a temporary basis, and using some sort of biometrics standard there to positively identify people that we don't want into the country, as opposed to people who are working here on a permanent basis having to submit when they actually already do for those green card standards. But I'll submit a question on that. Thank you.


SEN. LEAHY: The senator from North Carolina.

SEN. EDWARDS: Thank you, Mr. Chairman. Good afternoon, Mr. Attorney General.

ATTY GEN. ASHCROFT: Good afternoon.

SEN. EDWARDS: Appreciate your patience. I know this has been a long hearing. We want very badly to make sure that you have the tools you need to protect the American people, including new laws and new measures. But while we are protecting American lives we also need to be certain that we protect American values and American principles. And it seems to me that these times of crisis and times of war are times when those principles and values are most at risk, when people get caught up in the passion of doing what's necessary under the circumstances. We have seen in the past during World War II the internment of over 100,000 Japanese Americans by a great president.

And I am sure at that time that was a very popular move. But it is not something I don't think that we are very proud of today. And I am not suggesting that these military tribunals are equivalent to that, but whatever we do I want to make sure that your children and mine and our grandchildren will be proud of what we have done. And my concern about the whole issue of military tribunals is not the notion of using them. I can easily see that there would be circumstances in which it would make sense to use them. My concern is that this directive, this order, is extraordinarily broad. And I want to ask you about three or four areas, if I can, to see if we can make sure that some of the things that the order would appear to allow in fact are not something that you intended or intend to do.

Number one, the order says that a person who is subject to the order shall be detained. And then goes on to say if that individual is tried. So subject to the order, you shall be detained if you are tried. So on the face of the order, it would appear to allow unlimited detention without trial.

First, can you tell us today that that is not something that will happen under this order?

ATTY GEN. ASHCROFT: Senator, I believe -- and I am trying to recreate some of this order in my mind -- but I believe that when you get to the trial part it talks about "when tried." And I think that's the intent of the order.

SEN. EDWARDS: Well, I'm looking -- excuse me for interrupting you --I'm looking at the language right now. "If the individual is tried" is the language of the order, at least the language that I have in front of me.

ATTY GEN. ASHCROFT: I, I think there's another part of the order.

SEN. EDWARDS: Without getting caught up on the semantics stuff, it is not -- you do not intend to use this order to detain people and detain them for an unlimited period of time without trial. Is that true?

ATTY GEN. ASHCROFT: I believe it's completely fair to say that.

SEN. EDWARDS: Okay. Second, there's a provision in the order that says, "The president or the secretary of defense makes the final decision." I believe you're familiar with that provision.

On the face of the order, that would allow the president or the secretary of the defense to in fact overturn an acquittal by a tribunal. In other words, to come in after the case has been tried, there has been an acquittal, and the secretary of defense decides, "We don't agree with that, we're going to overturn it," and in fact on the face of the order, it would allow the secretary of defense alone to impose the death penalty.

What I want to know is, is that the intent of the order, or can you tell us today that if in fact there is an acquittal at the tribunal level, that that would not be overturned by the secretary of defense?

ATTY GEN. ASHCROFT: I believe it's a settled practice of war crime commissions that you can't overturn a committal. I can -- I feel confident in telling you that's not the intention --

SEN. EDWARDS: And that will not -- that will not occur?

ATTY GEN. ASHCROFT: I do not believe that to be intended by the order.

SEN. EDWARDS: Third, burden of proof. There's nothing in -- nothing in the order that deals with the issue of burden of proof. That, on its face, would allow someone to be convicted and in fact receive the death penalty on a greater weight of the evidence standard, or a preponderance of the evidence standard, 51 percent verses 49 percent.

Can you tell us that in order for someone to be convicted under this order, and for the death penalty to be imposed against them, that you will require a significantly higher burden of proof than preponderance of the evidence or greater weight of the evidence, which is only used in civil cases in this country?

ATTY GEN. ASHCROFT: I think it's pretty clear that the president has asked the secretary of defense to develop a set of regulations and procedures governing the war crimes commissions that are full and fair. Admission of such evidence would have -- would be evidence of probative value. There is a provision for the accused to be represented by counsel. The conviction and sentence would be upon two-third majority vote.

SEN. EDWARDS: Mr. Attorney General, excuse me for interrupting you, but the only thing I'm asking you about -- I'm not asking you about any of those thing, I'm only asking you about the burden of proof -- are will you require, in order for somebody to be convicted and the death penalty be imposed against them, that the burden of proof be more than just a preponderance of the evidence?

ATTY GEN. ASHCROFT: I think that's an issue which is still to be determined. And it would be beyond my power to speculate on that. The secretary of defense is formulating the procedures, and among those procedures may be items like appeals procedures and other instructions to those conducting the trials, but I cannot provide further information than to say that at this time.

SEN. EDWARDS: Well, you are the attorney general of the United States. You are an experienced lawyer. I'm asking you whether you believe it is appropriate for somebody to be convicted and receive the death penalty based on 51 percent of the evidence? Do you or do you not? You, just you personally?

ATTY GEN. ASHCROFT: I'm not going to try and -- to develop a set of rules or regulations on that evidentiary standard or other standards at this time. That's the responsibility of the secretary of defense in regard to this very serious matter. And I would expect him to very carefully make judgments in this arena. And I -- I personally am not -- have not given that the kind of thought at this moment to say what exactly I would do were I to have the responsibility, which I don't have.

SEN. EDWARDS: Now, you just mentioned a provision in the order that says that the conviction can occur on a two-thirds vote as opposed to a unanimous vote. Does that mean that under this order, if there's a three person tribunal, that somebody could be convicted, receive the death penalty, and be executed based upon a 2-to-1 vote?

ATTY GEN. ASHCROFT: I would believe that this states a minimum standard in its direction to the secretary of defense. I means that two out of three of the triers of fact have to come to a conclusion before a sentence could be imposed.

SEN. EDWARD: Which means that if the tribunal is composed of three people, the case is presented, two of the three say that the death penalty should be imposed, one says it should not, it could be imposed and the person could be executed. Is that what you're saying?

ATTY GEN. ASHCROFT: If this were to be -- if you're talking about a two-thirds rule, and if that's the rule that eventually is adopted by the secretary of defense, two out of three is two-thirds. And I agree with that.


SEN. EDWARDS: All right.

ATTY GEN. ASHCROFT: U.N.-sponsored tribunals allow conviction on a simple majority, like the ones at The Hague and the ones in -- that are litigating and adjudicating the atrocities against those in Central Africa.

SEN. EDWARDS: Do those -- excuse me, Mr. Attorney General -- do those allow the death penalty?

ATTY GEN. ASHCROFT: I don't know.

SEN. EDWARDS: I don't believe they do. Let me ask you one last area --the area and the whole question of appeals. We've seen, in our court system, which most of believe is one of the best if not the best in the world, over the last two decades people who, based on later-found evidence, DNA evidence, for example, have absolutely been found to -- it could not have been possible that they committed the crime. The White House counsel has said that a challenge can be made to the jurisdiction of the court.

Now, you and I understand that the jurisdiction is very different than whether, in fact, the person committed the crime, whether they're guilty, whether evidence should have been admitted that would have shown that the person couldn't have committed the crime. All those issues that go to the basic question, which I think most Americans are concerned about, about these kinds of issues, is did this person do it? Did they in fact do what they've been accused of doing. Do you believe that there needs to be a process that allows some appeal that looks at the fundamental question of how the trial was conducted, whether evidence was properly considered by the court, and whether, in fact, there's evidence that was not considered by the court that would have shown this person, in fact, did not do it, did not commit this crime?

ATTY GEN. ASHCROFT: In the president's order to the secretary of defense to develop procedures here, I believe there is adequate latitude for the secretary of defense to develop a potential and a framework for appeals.

SEN. EDWARDS: But isn't that something you believe should be done?

ATTY GEN. ASHCROFT: I believe that the president and the secretary of defense both, according to the order, constitute appellate authorities. And I think those appellate authorities are consistent with systems that -- that provide the kind of justice that is likely -- less likely to have error.

SEN. EDWARDS: But the president and the secretary of defense are the people who decided the prosecution should be brought in the first case. Do you believe there needs to be an objective third party that looks at the trial, looks at the conviction, looks at the imposition of the death penalty, if that in fact has occurred, and looks at whether it should have happened?

ATTY GEN. ASHCROFT: The secretary of defense would have the authority to develop appellate procedures under the order, military order for the development of war commissions issued by the president. And I believe that that authority is available to him. And if he chooses to confer with me about that, I'll provide advice to him regarding appellate procedures.

SEN. EDWARDS: Do you believe in fact there needs to be a review, an objective review by a third party? That's what I'm asking you.

ATTY GEN. ASHCROFT: I'm going to reserve my comments to provide advice to the president and the secretary of defense regarding any questions they have for me regarding what should be or should not be added in terms of procedures for this order.

SEN. EDWARDS: Thank you, Mr. Attorney General. Thank you, Mr. Chairman.

SEN. LEAHY: Thank you. Thank you, Senator Edwards. I think by hearing this testimony, I think all the more reason guidelines should be set by the Congress for military tribunals, especially on the question of preponderance of the evidence in the death penalty. But I think we can do that. But I would suggest that Senator Hatch and I and others at least have that discussion.

SEN. HATCH: Can I make just one last comment? I'd like to read on person's defense of the military tribunal system. And let me quote it. Quote, "It is of the utmost importance that no information be permitted to reach the enemy on any of these matters: how the terrorists were so swiftly apprehended, colon, how our intelligence services are equipped to work against them, what sources of information we have inside al Qaeda, who are the witnesses against the terrorists, how much we have learned about al Qaeda, terrorist methods, plans, programs, and the identity of other terrorists, and might be or have been sent to this country, how much we have learned about al Qaeda weapons, intelligence methods, munitions plants, and morale.

All of the testimony given at a trial bears to some degree upon these matters. There is no satisfactory way of censoring and editing this testimony for the press without revealing by statement or significant omission the answers to many of the questions which may now be puzzling our enemies. We do not propose to tell our enemies the answers to the questions which are puzzling them. The only way not to tell them is not to tell them.

The American people will not insist on acquiring information which by the mere telling would confer an untold advantage upon the enemy." Now, these are not -- unquote, by the way -- these are not my words. These are the words of Franklin Delano Roosevelt's attorney general, Francis Biddle, in announcing the military tribunal that FDR constituted in connection with the Quirin case. I've merely substituted al Qaeda for Germany and the word terrorist for saboteur. And the reason I read this is to provide some perspective. The issues we are confronting here are not new.

The same issues that concern us today concerned our forefathers during World War II, and the same reasoning that persuaded FDR to constitute a military tribunal still ring true today.

So, if I could submit for the record the full remarks of Attorney General Biddle, I think it would be --

SEN. LEAHY: We will close with this, just to note that you've raised that point, note that on that tribunal, nor was there, of course, Congressional authorization. But I'd also point out that history has now shown the driving force behind that tribunal was to cover up the mistakes of J. Edgar Hoover, at a time when he was about to receive a medal from --

SEN. HATCH: I don't believe there was congressional -- (inaudible) --

SEN. LEAHY: -- from Congress -- and I -- be that as it may, this was -- had there been an open trial, you would have found the evidence came from two of the saboteurs who had to beg the FBI to arrest them. I think we have a far different FBI today, far better FBI today. I think that the attorney general and Director Mueller deserve a lot of credit for that.

General, I thank you. You've been here for almost three hours. You've been patient. You know there will be other questions that will be asked for you. I appreciate your comments earlier, that you were perfectly willing and even eager to be here to testify. I appreciate that. Those are the best tradition of oversight. I also -- we do appreciate the fact that we are all united in wanting to battle terrorists. We also want to make sure all of us -- you, me and everybody else -- that we preserve our own liberties in doing it. And with that, we thank you, and we stand adjourned.