Hearing of the Senate Judiciary Committee

The Department of Justice and Terrorism, December 6, 2001
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Copyright 2001 Federal News Service, Inc.

Federal News Service

December 6, 2001, Thursday

SECTION: CAPITOL HILL HEARING

LENGTH: 29467 words

HEADLINE: HEARING OF THE SENATE JUDICIARY COMMITTEE

SUBJECT: THE DEPARTMENT OF JUSTICE AND TERRORISM

CHAIRED BY: SENATOR PATRICK LEAHY (D-VT)

LOCATION: 226 DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D.C.

WITNESSES: ATTORNEY GENERAL JOHN ASHCROFT

BODY:

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

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

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

And to the attorney general, I would say welcome -- welcome you here. When
you and I chatted on the phone yesterday, as you know, I called to thank you for
coming, and I appreciate it. And of course, you've served with almost everybody
on this committee, so you should feel at home.

I appreciate the comments you made yesterday, when -- as you were telling me
just earlier, when asked about whether there should be some kind of a bipartisan
panel to look at all these things, and you said, "Well, there is at least one"
-- the one right here, on which you've served with distinction for years.

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

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

Last week the Justice Department witness appearing before this committee
described Congress as a full partner in our nation's antiterrorism efforts.
That's the way the founders and the Constitution intended it, and I appreciate
Mr. Chertoff in saying that.

The partnership of our two branches of government working together produced
an antiterrorism bill that was actually better than either the executive branch
or the legislative branch would have produced, had they acted on their own.
Also, because we acted together, we had greater confidence in the public and
their resolve. erica 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.

I commend Senator Schumer, the chairman of the administration oversight and
courts subcommittee, and Senator Feingold, the chair of our Constitution
subcommittee, for holding their hearings earlier this week, for the very
constructive contributions to those hearings by Senator Hatch and Senator
Sessions and Senator Durbin, Senator Feinstein and others. That's in the finest
tradition of our Senate and our country.

And during the past week of hearings and public debate, this oversight
process already has contributed to clarifying the president's order to establish
military tribunals. It now seems, following these hearings, that the president's
language that ostensibly suspends the writ of habeas corpus and the language
providing for secret trials and the expansive sweep of the president's November
13 order were not intended. Instead, the administration's intention is to use
procedural rules more like those in our courts and our courts martial.

Over the last week, it's become clearer that, as written, the president's
order outlines a process that is far different than our military system of
justice. American military justice is the best in the world. It includes open

trials and right to counsel and judicial review. The public can see what is
happening. It also appears that the risks of pursuing victor's justice are
beginning to be understood more fully as the initial conception of that order is
clarified. And I commend the members of this committee for their contribution to
that process.

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

Last week's hearing allowed the committee to hear first-hand -- last
Wednesday's hearing allowed the committee to hear first-hand from legal experts
across the spectrum on these questions.

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

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

Several members of the committee of both parties have been crafting ideas for
such an authorizing resolution to clarify these issues. Mr. Attorney General,
when I've called you in the past on issues to work with us, you have. And so I
invite you to work with members of the committee in creating a consensus charter
for tribunals. And I suspect the Armed Services Committee, several members of
which are on this committee, would want the same.

It's never easy to raise questions about the conduct of the executive branch
when our military forces are engaged in combat, even when those questions do not
concern our military operations. The matters we are examining concern homeland
security and our constitutional rights and preserving the limits on governmental
authority that form the foundation of our constitutional democracy. These are
questions that go to the heart of what America stands for, to its people and to
the world, especially to show them what we are and what we do when we are put to
the test, a test that we've been put to far more than most of us can remember.

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

None of us in elective or appointed positions in government has a monopoly of
wisdom or of patriotism, but under our system, none of us have a monopoly on
authority. The framers of our Constitution had great confidence in George
Washington. They didn't expect him to abuse his power.

But they did not entrust their liberty to his or to any government's good
intention. Instead, they provided a system of checks and balances, including
congressional oversight and judicial review and public scrutiny.

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

So I look forward to hearing from the attorney general. He is a friend of
each and every one of us on this committee. I thank him for making this
appearance.

And I turn to Senator Hatch, a man I've served with for decades now, back
when his hair was black; mine was there.

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

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

Now, I have a couple of observations on this particular topic. First, let's
put this issue in perspective. We're at war. We're battling an enemy committed
to an absolute unconditional destruction of our society. The principal means
that the enemy employs toward this goal is the killing of our civilians in their
homes and in their places of business. To the extent that this war is being
waged on American soil, the attorney general is one of the leaders in this war.

I would hope that in this time of crisis we would all check our egos, and for
the good of this country, look at the merits of these proposals, rather than the
manner in which they are packaged. I'm not saying that we don't have a solemn
obligation to assess the department's actions to ensure that they are both
effective and sufficiently protective of our civil liberties, but do any members
of this committee really believe that in this time of crisis, the American
people, those who live outside the capital beltway, really care whether the
president, the secretary of Defense or the attorney general took the time to pick up the telephone and call us, prior to implementing these emergency measures? I implore my colleagues, let's keep our focus where it matters, on protecting our citizens.

Certainly the American people are not watching us quibble about whether we
should provide more rights than the Constitution requires to the criminals and
terrorists who are devoted to killing our people. They are interested in making
sure that we protect our country against terrorist attacks.

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

And to show how serious the president is about this process, he reserved to
himself the ultimate designation as to who will be tried in military tribunals;
unlike FDR who delegated the decision to members of our armed forces -- and, I
might add, and had the approval of both the New York Times and the then
predecessor of the Washington Post in the process.

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

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

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

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

The same thing happened this week. When the department was again not invited
to testify at Tuesday afternoon's oversight hearing, again the department
reached out to us and offered us more testimony, which greatly contributed to
the work of this committee. I must say the candor and responsiveness exhibited
by this Department of Justice in its dealings with this committee is a
refreshing departure from the responsiveness of the previous administration to
our oversight responsibilities. As you all know, I was chairman of this
committee for six of those previous administration years, and I can tell you
that getting responsive answers from the Department of Justice during that
period was like pulling teeth. Whether we were examining the previous
administration's pardoning and release of 11 convicted terrorists affiliated
with the FALN, or the campaign finance irregularities probe, and the famous
conflicting views within the Justice Department on whether to a special counsel
to the Elian Gonzalez matter, to the last-minute pardons and so on. Given this
previous experience, Attorney General Ashcroft's candor and responsiveness to
this committee are in my opinion pretty commendable -- now the more commendable.

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

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

Now, I hope that we can also agree, however, that there is a point at which
aggressive oversight by this committee becomes counterproductive. Certainly we
do not want to reach a point where the senior leadership of the department
spends all his time responding to inquiries from our committee regarding the
terrorism investigation, and none of its time actually tracking down terrorists.
And I know some might try to argue that this is a partisan criticism. Well, it
is not. It is a bipartisan concern. I should note that one of our Senate
Democratic colleagues yesterday properly observed in a press release that,
quote, "They need to get off his back and let Attorney General Ashcroft do his
job. Military tribunals have been used throughout history. The Supreme Court has
twice upheld them as constitutional. Now we are at war, and we are talking about
using military tribunals only for non-citizens. Why in the world would we try
our own soldiers with this system of justice, but not some foreigner who is
trying to kill us? It's crazy. These nit-pickers need to find another nit to
pick." I like that. (Laughter.) Let me continue. "They need to stop protecting
the rights of terrorists. This is about national security. This is about life
and death," unquote.

Now, I don't mean in any way to suggest that we should not be performing
appropriate oversight, or to suggest ill motives behind this hearing today. I
certainly don't mean to do that. And I appreciate working with my chairman on
this matter.

I should also note that these public hearings were not the only opportunity
that the members of our committee had to pose inquiries to the Department of
Justice. Several members have submitted numerous additional written questions
following last week's hearing. The last time the attorney general appeared
before this committee, Mr. Chairman, you alone directed 21 questions to him with
multiple sub- parts. By my own count, over the last two months, you have
submitted 12 letters to the Justice Department officials, requesting hundreds of
pages of documents, and posing dozens of questions. And that is your right to
do.

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

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

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

ATTY GEN. ASHCROFT: Thank you, Mr. Chairman, Senator Hatch, and members of
this committee. I am grateful for the opportunity of appearing to testify before
you today. It's a pleasure to be back in the United States Senate, and I am
grateful.

On the morning of September 11th, as the United States came under attack, I
was in an airplane with several members of the Justice Department en route to
Milwaukee, in the skies over the Great Lakes. By the time we could return to
Washington, thousands of people had been murdered at the World Trade Center, 189
more were dead at the Pentagon, 44 had died in the crash to the ground in
Pennsylvania. From that moment, at the command of the president of the United
States, I began to mobilize the resources of the Department of Justice toward
one single overarching and overriding objective: to save innocent lives from
further acts of terrorism.erica's campaign to save innocent lives from
terrorists is now 87 days old. It has brought me back to this committee to
report to you in accordance with Congress's oversight role. I welcome this
opportunity to clarify for you, and for the American people, how the Justice
Department is working to protect American lives while preserving American
liberties.

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

Under the leadership of President Bush, America has made the choice to fight
terrorism -- not just for ourselves, but for all civilized people. Since
September 11th, through dozens of warnings to law enforcement, a deliberate
campaign of terrorist disruption, tighter security around potential targets, and
a preventative campaign of arrest and detection of law-breakers, America has
grown stronger, and safer in the face of terrorism. Thanks to the vigilance of
law enforcement and the patience of the American people, we have not suffered
another major terrorist attack. Still, we cannot -- we must not allow ourselves
to grow complacent. The reasons are apparent to me each morning. My day begins
with a review of the threats to Americans and to American interests that have
been received in the previous 24 hours. If ever there were proof of the
existence of evil in the world, it is in the pages of these reports. They are a
chilling daily chronicle of the hatred of Americans by fanatics who seek to
extinguish freedom, enslave women, corrupt education, and to kill Americans
wherever and whenever they can.

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

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

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

In this manual, al Qaeda terrorist are now told how to use America's freedom
as a weapon against us. They are instructed to use the benefits of a free press,
newspapers, magazines, broadcasts, to stalk and to kill victims. They are
instructed to exploit our judicial process for the success of their operations.
Captured terrorists are taught to anticipate a series of questions from
authorities and in each response to lie -- to lie about who they are, to lie
about what they are doing, to lie about who they know in order for the operation
to achieve its objective. Imprisoned terrorists are instructed in this manual to
concoct stories of torture and mistreatment at the hands of our officials. They
are directed to take advantage of any contact with the outside world. This
manual instructs them, and I quote, "Communicate with brothers outside prison
and exchange information that may be helpful to them in their work. The
importance of mastering the art of hiding messages is self-evident here." Closed
quote.

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

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

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

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

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

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

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

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

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

We have forged new cooperative agreements with Canada to protect our borders
and the economic prosperity that our borders and the appropriate maintenance of
the flow of commerce across those borders sustains.

We have embarked on a war-time reorganization of the Department of Justice.
We are transferring resources and personnel to field offices where citizens are
served and protected. The INS is being restructured to better perform its
service and border security responsibilities. Under Director Bob Mueller, the
FBI is undergoing an historic reorganization to put the prevention of terrorism
at the center of its law enforcement and national security effort.

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

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

Since 1983, the United States government has defined terrorists as those who
perpetrate premeditated, politically motivated violence against non-combatant
targets. My message to America this morning then is this: if you fit this
definition of a terrorist, fear the United States, for you will lose your
liberty.

We need honest, reasoned debate, and not fear-mongering. To those who pit
Americans against immigrants and citizens against non- citizens, to those who
scare peace-loving people with phantoms of lost liberty, my message is this:
your tactics only aid terrorists, for they erode our national unity and diminish
our resolve. They give ammunition to America's enemies, and pause to America's
friends. They encourage people of goodwill to remain silent in the face of evil.

Our efforts have been crafted carefully to avoid infringing on constitutional
rights while saving American lives. We have engaged in a deliberate campaign of
arrest and detention of law-breakers. All persons being detained have the right
to contact their lawyers and their families. Our respect for their privacy and
concern for saving lives motivates us not to publicize the names of those
detained. We have the authority to monitor the conversations of 16 of 158,000
federal inmates and their attorneys because we suspect these communications
could facilitate acts of terrorism. Each such prisoner has been told in advance
his conversations will be monitored. None of the information that is protected
by attorney-client privilege may be used for prosecution. Information will only
be used to stop impending terrorist acts and to save American lives.

We have asked a very limited number of individuals, visitors to our country
holding passports from countries with active al Qaeda operations, to speak
voluntarily with law enforcement. We are forcing them to do nothing. We are
merely asking them to do the right thing, to willingly disclose information they
may have of terrorist threats to the lives and safety of all people in the
United States.

Throughout all our activities since September the 11th, we have kept Congress
informed of our continuing efforts to protect the American people. Beginning
with a classified briefing by Deputy -- pardon me, by Director of the FBI
Mueller and me on the very evening of September 11th, the Justice Department has
briefed members of the House, the Senate and their staffs on more than 100
occasions. We have worked with Congress in the belief and the recognition that
no single branch of government alone can stop terrorism.

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

Mr. Chairman and members of this committee, not long ago I had the privilege
of sitting where you now sit. I have the greatest reverence and respect for the
constitutional responsibilities you shoulder. I will continue to consult with
Congress so that you may fulfill your constitutional responsibilities.

In some areas, however, I cannot and will not consult with you. The advice I
give to the president, whether in his role as commander- in-chief when at war or
in any other capacity, is privileged and confidential. I cannot and will not
divulge the contents, the context, or even the existence of such advice to
anyone, including Congress, unless the president instructs me so to do.

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

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

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

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

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

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

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

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

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

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

Thank you very much.

SEN. LEAHY: Thank you. General, you've stated that the authority for the
military order arises out of the president's position as commander-in-chief, and
the Supreme Court has never held that the Congress may limit it. But the fact is
that the Supreme Court has never upheld the president's authority extending so
far as to allow him to unilaterally set up military tribunals absent
congressional authority.

So, basically, this is a calculated risk that the Supreme Court would uphold
something it has not upheld before. I mention that because I look at Ex Parte
Milligan, for example, which says that military tribunals for non-military
personnel cannot be justified under the mandate of the president because he is
controlled by law. His sphere of duty is to execute, not to make the laws, and
there is no unwritten criminal code to which resort (to be had?) as the
(source?) of jurisdiction, thus raising a very highly questionable -- saying
it's highly questionable that he could do this, absent congressional authority.

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

So I wanted to see how the administration would use the military order.
First, as written, the military order applies to non-citizens of the United
States. That would cover about 20 million people here in the United States
legally today.

But the president's counsel now says military commissions would not be held
in the United States but rather close to where our forces may be fighting. And
then an anonymous administration official said there's no plan to use military
commissions in this country but only for those caught in battlefield operations.

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

Third, nothing in the military order would prevent commission trials from
being conducted in secret, which was done, for example, of the eight Nazi
saboteurs after World War II, most often cited by the administration. But now
Mr. Gonzalez says that trials before military commissions would be as open as
possible. Mr. Chertoff said something similar.

Now, this is in sharp contrast to the statements before our hearings that,
quote, from the administration, "Proceedings promise to be swift and largely
secret, with one military officer (stating?) that the release of information
might be limited to various facts, like dependents' name."

Finally, the order expressly states that the accused in military commissions
shall not be privileged to seek any remedy or maintain any proceeding, directly
or indirectly, at any court. But now the administration says this is not an
effort to suspend habeas corpus.

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

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

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

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

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, apparently did.

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 in statute.

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

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

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

SEN. HATCH: Department of Defense, yes.

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

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

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

Whether we're talking about Rwanda in Central Africa or Bosnia in Central
Europe, or looking historically to Nuremberg and the trials there and the
additional war crimes tribunals after there, these have been full and fair
proceedings. They have been understood by the Congress of the United States to
be full and fair, and have been supported by the Congress. As recently as two
years ago, the Congress of the United States voted 90 to nothing -- pardon me,
the Senate of the United States voted 90 to nothing that Milosevic should be
tried in a war crimes commission. So this is not an unusual way to resolve war
crimes committed in time of war.

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

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

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

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

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

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

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

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

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

And Senator Kennedy?

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

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

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

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

The president has ordered -- and it is a military order to the Department of
Defense -- it's out of his responsibility as commander and chief of a nation in
conflict -- that he ordered that the Defense Department develop a framework that
would provide full and fair proceedings. There are obviously some hints in the
president's order that indicate a level of fairness that I think is clearly
understood. He has indicated that the hearing should be closed when it's in the
national interests to close them. And when -- and I think the administration has
made clear its desire not to close hearings when they are not in the national
interests.

It is to be noted that every judicial or adjudicatory process that I know of
has some provision for closing hearings, to protect the system and to protect
the integrity of the operation. Our courts provide for sealed orders. They
sometimes even have gag orders. They have in certain areas plans to protect the
identify of witnesses. Similarly, the ongoing war crimes efforts in The Hague
that relate to war crimes have those kinds of similar procedures.

I believe that the Department of Defense, which has over 3,000 active
full-time working lawyers, and which conducts a wide variety of military
operations that relate to the adjudication of charges, has the capacity to

develop a plan and framework that will work effectively. And I expect it to do
so -- we'll stand ready to assist them in doing so.

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

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

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

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

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

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

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

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

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

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

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

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

SEN. KENNEDY: Thank you, Mr. Chairman.

SEN. LEAHY: Thank you, Senator Kennedy.

Senator Grassley.

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

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

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

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

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

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

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

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

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

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

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

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

Now, let me go briefly to the reason for this. First of all, there are only
16 people out of the 158,000 people in the federal prison system to whom this
order now applies. They are the only 16 people in special administrative
procedures. And we are simply, for terrorists who would seek to follow the al
Qaeda manual and assist those brothers in their operation on the outside in
continuing to perpetrate acts through hidden messages and other signals they
send through their attorneys -- we simply aren't going to allow that to happen.

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

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

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

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 your response.

Number one, at some point we need a clear understanding of who will be
subject to these tribunals. Number two, the defendants must receive the
assistance of counsel in mounting a defense, and with that counsel, defendants
must be permitted timely access to evidence and the right to cross-examine
witnesses, and have the right to present exculpatory evidence. Number three, if
the standard of proof is to be less than "beyond a reasonable doubt," then it
must be at least as high as "guilt by clear and convincing evidence." Number
four, the death penalty must not be imposed simply by a vote of a majority of
the jurors. And number five, the system must guarantee the defendant a right to
a meaningful appeal.

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

ATTY GEN. ASHCROFT: Well, first of all, these are obviously laudable
principles as they relate to the adjudication of criminal charges against an
individual. And I'm sure these are the kinds of considerations that these kinds
of principles will be weighed in the deliberations of the Department of Defense.

I think a full and fair proceeding is very likely to require many of these
things you've mentioned. In the war crimes tribunals, which this Congress and
this country has supported for the litigation -- the adjudication of war crimes
against others, you know, in Bosnia and Romania and other settings, some of
these kinds of principles exist there.

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

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

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

SEN. LEAHY: Senator Specter.

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

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

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

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

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

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

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

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

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

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

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

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

ATTY GEN. ASHCROFT: It was a pleasure.

SEN. SPECTER: You have --

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

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

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

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

What I'd like you to address is your sense as to the appropriate relationship
between the Judiciary Committee, the Senate, and the promulgation of the
executive order, and the role that the Department of Justice ought to have in
rules to implement the generalizations of the executive order.

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

SEN. SPECTER: Thank you very much.

SEN. LEAHY: Thank you. General, I am advised that there is to be the first of
several confirmation votes on judges that's to begin in about three minutes. And
my request to have anything after the first one be by voice vote will be
granted.

So what I'm going to do is take a 10-minute break. Senator Hatch and I will
go over, as will others, and be prepared to come back and begin immediately at
the end of that time, and we will go to the senator from California, Senator
Feinstein, at that time. You'd probably like to stretch your legs anyway.

ATTY GEN. ASHCROFT: Yes, sir.

SEN. LEAHY: So we stand in recess.

(Recess.)

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

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

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

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

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

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

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

Now, it may or may not have the same legal standing as a full declaration of
war, but I think there is room for some problems here. So I am of the opinion
that we should pass an authorizing resolution that really gives you, as the
executive branch, the authority to do what you need and also states some things
like the standard of proof, like whether it's open or partially closed, the
right to counsel, those kinds of things in that declaration.

And I have a series of questions, and I won't have time to ask them all,
about where you stand with respect to precise points that would be in that
declaration. But I'd like to ask one question, because I think it's the heart of
a lot of the concern, at least on this side of the aisle.

The White House counsel, Alberto Gonzales,