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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
SEN. LEAHY: Sure.
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,
ATTY GEN. ASHCROFT: Well --
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
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
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
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
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
"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
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
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
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
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
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.
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
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
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
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
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
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
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
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 --
ATTY GEN. ASHCROFT: Indeed, I do.
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
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
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
SEN. KOHL: I thank you, Mr. Attorney
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
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
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
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
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.
ATTY GEN. ASHCROFT: Yes, sir.
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
"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
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. LEAHY: Yes.
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
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
ATTY GEN. ASHCROFT: I'm informed that it is instructive and this is
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.
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
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
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.
ATTY GEN. ASHCROFT: Thank 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
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
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
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
ATTY GEN. ASHCROFT: Absolutely.
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,
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
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
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
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
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
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,
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
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
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
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
SEN. LEAHY: You may want to submit all 64 for the record, General
ATTY GEN. ASHCROFT: Pardon?
SEN. LEAHY: Feel free to submit the 64 for the record --
ATTY GEN. ASHCROFT: I said 56.
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
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
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
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
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?
ATTY GEN. ASHCROFT: Yes, it is.
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
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
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.
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
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
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
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
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
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
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.
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
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
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
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.
ATTY GEN. ASHCROFT: Thank you.
SEN. LEAHY: The senator from North Carolina.
SEN. EDWARDS: Thank you, Mr. Chairman. Good afternoon, Mr. Attorney
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
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
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
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
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.
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
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.