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98–625 PDF 2005

S. HRG. 108–782

DOJ OVERSIGHT: TERRORISM AND OTHER TOPICS

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JUNE 8, 2004

Serial No. J–108–79

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

prepared statement .......................................................................................... 182

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 4

prepared statement .......................................................................................... 186

Schumer, Hon. Charles E., a U.S. Senator from the State of New York, 

prepared statement and attachment .................................................................. 195

WITNESS 

Ashcroft, Hon. John, Attorney General, Department of Justice, Washington, 

D.C. ........................................................................................................................ 7

QUESTIONS AND ANSWERS 

Responses of John Ashcroft to questions submitted by Senator Leahy .............. 54

Responses of John Ashcroft to questions submitted by Senators Leahy, 

Wyden, Grassley, Biden, Edwards, Kennedy, Kohl, Durbin, and Feingold .... 63

SUBMISSIONS FOR THE RECORD 

Allegheny Technologies, Jon D. Walton, Executive Vice President, Human 

Resources, Chief Legal and Compliance Officer, Pittsburgh, Pennsylvania, 

prepared statement .............................................................................................. 161

Ashcroft, Hon. John, Attorney General, Department of Justice, Washington, 

D.C., prepared statement .................................................................................... 163

New York Times, June 8, 2004, article .................................................................. 192

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania, letter 

and attachment .................................................................................................... 200

Wall Street Journal, Jess Bravin, article .............................................................. 203

Washington Post, June 8, 2004, article ................................................................. 209

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DOJ OVERSIGHT: TERRORISM AND OTHER 

TOPICS 

TUESDAY, JUNE 8, 2004 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Grassley, Specter, Kyl, DeWine, Sessions, Craig, Cornyn, Leahy, Kennedy, Biden, Kohl, Feinstein, 

Feingold, Schumer, Durbin, and Edwards. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. If we could have order. I apologize for my laryngitis. We welcome you, Mr. Attorney General. 

Before I make my introductory remarks concerning this hearing, 

I want to say a few words about former President Ronald Reagan. 

He took office during a difficult time in America’s history and 

helped usher in an era of both peace and prosperity. And you really 

cannot do much better than that. 

As we face new challenges from terrorists both at home and 

abroad, we would do well to emulate President Reagan’s unfailing 

qualities of dignity and courtesy as well as his reliance on traditional American values, including his remarkable ability to communicate a sense of confidence and optimism about the future of our 

country. 

As we work to thwart the new threat posed by terrorists, we 

must not forget the fact that our Nation has a history of defeating 

determined adversaries through the leadership of men like President Reagan and the perseverance of many citizens in many nations over a sustained period of time. We prevailed against fascism 

and communism and have made old enemies into new allies, and 

it took that type of leadership to do it. He was one of my closest 

friends. I think I am the only person he ever pre-primary endorsed, 

or at least up to that time, and we were very close. And so I wish 

Nancy and the children the very best, and I certainly send all of 

the sympathy, I am sure, of all of us to them. 

Now, as we work here today, today’s oversight hearing will mark 

the seventh hearing at which our Committee will have an opportunity to explore the effectiveness and the preparedness of the Federal Government to prevent and respond to terrorism on American 

soil. 

2

Let me welcome our distinguished witness, the 79th Attorney 

General of the United States and our former colleague on this 

Committee, John Ashcroft. 

The Attorney General and his colleagues in the law enforcement 

and intelligence communities face challenging times in defending 

our country from terrorists. 

Prosecuting terrorists after they have attacked our civilians does 

not bring back lost lives to grieving families, and it is certainly an 

imperfect deterrent as these extremists are often bent on taking 

their own lives in these suicide missions. 

Instead, as has been widely acknowledged over the last 3 years, 

the key is to prevent terrorism before it occurs and, when possible, 

interdict the terrorists on their homelands before they come to 

America to carry out their attacks. 

And that is exactly what the Department of Justice is doing—

taking the battle to the terrorists by using every available tool. Let 

me commend you, Mr. Attorney General, for your Department’s efforts to protect this great Nation. 

Unfortunately, no one can guarantee 100-percent success in 

warding off all future terrorist attacks, but we have to do our best 

to try and do so. The American public appreciates the commitment 

and energy that the Department of Justice brings to this task each 

and every day. 

In recent weeks, we have been reminded about the dangerous nature of the situation we currently face. The Attorney General and 

the Director of the FBI publicly stated that credible intelligence, 

from multiple sources, indicates that al Qaeda plans to attempt an 

attack on the United States in the next few months. 

Another very troubling development involves the terrorist conspiracy revealed by the Department’s recent response to my April 

22, 2004, letter requesting information on the detention of enemy 

combatant and American citizen Jose Padilla. 

According to the Department of Defense, we know that Jose 

Padilla received training in a terrorist camp in Afghanistan, including with an al Qaeda explosives expert. We are told that he 

served as an armed guard of what we understood to be a Taliban 

outpost in Kabul. 

There is also reason to believe that Mr. Padilla discussed plans 

to detonate a dirty bomb or, alternatively, to blow up multiple 

apartment buildings using natural gas lines in New York, Washington, D.C., or Florida with high-level al Qaeda operatives, including Khalid Sheikh Mohammed. 

As my colleagues may recall, last year U.S. law enforcement and 

intelligence agents, working together with Pakistani intelligence 

agents, captured Khalid Sheikh Mohammed, who was al Qaeda’s 

leading operational planner and organizer. He is believed to be the 

mastermind behind the September 11th attacks. 

Given our democratic society’s strong tradition of protecting civil 

liberties, all of us—especially Members of this Committee—have an 

interest in the general procedures and policies, as well as the specific facts and circumstances, under which any American citizen 

may be designated and detained as an enemy combatant. 

Our system of checks and balances is designed to place limits on 

the powers of each branch of Government. But he unabashed and 

3

self-proclaimed goal of terrorists to obtain and use weapons of mass 

destruction against American civilians compels us to rethink the 

adequacy of our legal structure to prevent further terrorist attacks. 

We live in a dangerous world, and our Commander-in–Chief must 

have the proper amount of authority to act decisively to protect the 

public. 

I think the information released last week about Mr. Padilla provided useful information to the Congress and the public about the 

nature of these new terrorist threats. Having said that, I am also 

mindful that some have raised legitimate questions about a system 

that, to date at least, limits the ability of the designated enemy 

combatants and their legal representatives to develop a defense 

and get their side of the story out. 

Nevertheless, I am also concerned that these new terrorists, who 

do not wear conventional military uniforms and are unaffiliated 

with specific nation states, and whose ultimate goal is nothing less 

than to destroy our way of life, would like nothing more than the 

opportunity to use all of our traditional due process protections to 

drag out the proceedings, tie the Government prosecutors in knots, 

and make publicized political speeches. 

Frankly, questions can be raised about the decision to try 

Zacarias Moussaoui in a criminal proceedings in an Article III 

court. A strong argument can be made that Mr. Moussaoui is the 

quintessential enemy combatant and deserves to be tried by a military commission. 

We need more debate and discussion on the question of whether 

those designated as enemy combatants should be tried, and afforded attorneys, only after they are determined to be of no intelligence value or have exhausted their intelligence value. 

As well, we need more discussion about where and by whom the 

line should be drawn between permissible aggressive interrogation 

techniques, and when interrogation becomes torture and whether 

torture is ever justified. We have all read the recent press accounts 

on these issues with great interest. 

While I hope that 1 day al Qaeda will be defeated and formally 

surrender, it is possible that the day will never come when many 

of those detained at Guantanamo will agree to lay down their arms 

against the American people. This poses perplexing problems for a 

democratic country whose history suggests that wars end with finality for all combatants. 

Now, let me take a moment to speak about the PATRIOT Act. 

This legislation was a measured attempt to help protect Americans 

from terrorist attacks and is consistent with our traditional civil 

liberties. Despite the negative predictions of some, the PATRIOT 

Act has not eroded the civil liberties that we Americans hold dear. 

As I understand it, the Department’s Inspector General has consistently reported in three semi-annual reports that it has received 

no complaints alleging misconduct by Department of Justice employees in their use of substantive provisions of the PATRIOT Act. 

Let me repeat—absolutely no complaints. Nevertheless, if we can 

improve and fine-tune the PATRIOT Act, we ought to do so. 

Despite the enormous task of defending against terrorist attacks, 

the Department remains committed to ensuring that its traditional 

4

law enforcement responsibilities are met. Recently, the Department 

reported that violent crime has fallen 3.2 percent nationwide. 

The Department continues its vigorous enforcement of civil rights 

violations. And in fiscal year 2003, the Department provided almost $7 billion to State and local governments for various law enforcement initiatives, including almost $3 billion for training emergency first responders and purchasing equipment, as well as research and development of counterterrorism technology. 

Finally, let me say that on the Committee’s markup agenda is S. 

1700, the DNA legislation. I believe that the Committee will report 

and the Senate should adopt this important bipartisan bill, which 

has already passed the House by a wide bipartisan vote. 

This bill will help bring justice to thousands of victims of crimes, 

including many rape victims that have fallen through the cracks in 

the system due to the substantial 20-year backlog of rape test kits. 

In addition to using DNA technology to help bring about convictions, DNA tests can also be appropriately used to help exonerate 

those wrongfully charged or wrongfully convicted of crimes. I will 

work to bring this bill to the President’s desk for his signature. 

Mr. Attorney General, I look forward to your testimony here 

today. I hope to continue our bipartisan commitment to enacting 

measures that may be needed to win the war against terrorism and 

to work together on a wide range of programs that the Department 

implements. I appreciate the service that you have given to our 

country. I know how exhausting and demanding that service is. 

[The prepared statement of Chairman Hatch appears as a submission for the record.] 

With that, we will turn to our Ranking Member, Senator Leahy. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Well, thank you, Mr. Chairman, and like you, we 

all join sending out our condolences to Mrs. Reagan. She has been 

a model of caring during the long, long years of her husband’s illness, an illness they knew was there, an illness they knew incurable, at least today, and would lead to the eventual end. I think 

all Americans of whatever political stripe commend her for her conscience and her support of her husband. 

Mr. Attorney General, welcome. It has been, I believe, about 15 

months that have passed since your last very brief appearance in 

March last year. Your testimony here comes today about a thousand days after the September 11th attacks and the subsequent 

launch of your efforts against terrorism. As National Security Adviser Condoleezza Rice acknowledged in her testimony before the 

9/11 Commission, the terrorist threats to our Nation did not begin 

in September 2001. But the preliminary findings of the 9/11 Commission suggested that counterterrorism simply was not a priority 

of your Justice Department prior to September 11th. Problems 

ranged in your Department from an understaffed foreign translation program, to woefully inadequate information systems, to cultural attitudes that frustrated information sharing across agencies. 

Just one day before the attacks, on September 10th, you rejected 

the FBI’s request to include more money for counterterrorism in 

your budget proposal. And while you have recently been critical of 

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the so-called wall between criminal investigators and intelligence 

agencies, you did nothing to lower it during your first 7 full months 

in office. In fact, you put up exactly the same wall in your administration. 

The President is fond of saying that September 11th changed everything, as if to wipe out all missteps and misplaced priorities of 

the first year of this administration. After the attacks, you promised a stunned Nation that this Government would expend every 

effort and devote all necessary resources to bring the people responsible for these crimes to justice. Certainly the American people 

would expect no less. So a thousand days later, it is time to ask 

for the fulfillment of the promise you made. 

Mr. Attorney General, your statement lists accomplishments of 

the Department of Justice since 9/11, but you leave out a number 

of things. For example, of course, the obvious, Osama bin Laden remains at large. At least three senior al Qaeda operatives who 

helped plan the 9/11 attacks are in U.S. custody, but there has 

been no attempt to bring them to justice. The Moussaoui prosecution has bogged down before any trial. A German court acquitted 

two 9/11 co-conspirators, in part because the U.S. Government, the 

Justice Department, and others refused to provide evidence to 

them. 

Three defendants who you said had knowledge of the 9/11 attacks did not have such knowledge. The Department retracted your 

statement, and then you had to apologize to the court because you 

violated a gag order in the case. 

The man you claimed was about to explode a dirty bomb in the 

U.S. had no such intention or capability, and because he has been 

held for 2 years without access to counsel, any crimes he did commit might never be prosecuted. 

Terrorist attacks on Capitol Hill and elsewhere involving the 

deadly bioterror agents anthrax and ricin have yet to be solved. 

And the Department is defending itself in a civil rights action 

brought by a man who you publicly identified as a ‘‘person of interest’’ in the anthrax investigation. 

U.S. citizens with no connection to terrorism have been imprisoned as material witnesses for chunks of time—with an ‘‘Oops, I’m 

sorry’’ when what the Justice Department announced was a ‘‘100 

percent positive’’ fingerprint match turned out to be 100 percent 

wrong. 

Non-citizens with no connection to terrorism have been rounded 

up seemingly on the basis of their religion or ethnicity, held for 

months without charges, and, in some cases, physically abused. 

Interrogation techniques approved by the Department of Justice 

have led to abuses that have tarnished our Nation’s reputation and 

driven hundreds, if not thousands, of new recruits to our enemies, 

the terrorists. 

Your Department turned a Canadian citizen over to Syria to be 

tortured. And then your Department deported another individual to 

Syria over the objection of experienced prosecutors and agents who 

thought he was a terrorist and wanted to prosecute him. 

And one of the most amazing things, your Department under 

your direction has worked to deny compensation to American victims of terrorism, including former POWs tortured by Saddam 

6

Hussein’s regime. You have tried to stop former POWs tortured by 

Saddam Hussein—Americans. You have tried to stop them from 

getting compensation. 

Documents have been classified, unclassified, and reclassified to 

score political points rather than for legitimate national security 

reasons. 

Statistics have been manipulated to exaggerate the Department’s 

success in fighting terrorism. 

The threat of another attack on U.S. soil remains high, although 

how high depends apparently on who within the administration is 

talking. 

Mr. Attorney General, you spent much of the past 2 years increasing secrecy, lessening accountability, and touting the Government’s intelligence-gathering powers. The threshold issue, of 

course—and I believe you would agree with me on this—is: What 

good is having intelligence if we can’t use it intelligently? Identifying suspected terrorists is only a first step. To be safer, we have 

to follow through. Instead of declining tough prosecutions, we need 

to bring the people who are seeking to harm us to justice. That is 

how our system works. Instead, your practices seem to be built on 

secret detentions and overblown press releases. Our country is 

made no safer through self-congratulatory press conferences when 

we are facing serious security threats. 

The Government agency that bears the name of Justice has yet 

to deliver the justice for the victims of the worst mass murder in 

this Nation’s history. The 9/11 Commission is working hard to answer important questions about the attacks and how the 

vulnerabilities in our system that allowed them to occur, but it cannot mete out justice to those involved. Neither the 9/11 Commission 

nor this Committee can do the work of your Department of Justice. 

Mr. Attorney General, since September 11th, you have blamed 

former administration officials for intelligence failures that happened on your watch. You have used a tar brush to attack the patriotism of Americans who dare to express legitimate concerns 

about constitutional freedoms. You have refused to acknowledge serious problems, even after the Justice Department’s own Inspector 

General exposed widespread violations of the civil liberties of immigrants caught up in your post–September 11 dragnets. 

Secretary Rumsfeld recently went before the Armed Services 

Committee to say that he, Secretary Rumsfeld, should be held responsible for the abuses of Iraqi prisoners on his watch. Director 

Tenet is resigning from the Central Intelligence Agency. Richard 

Clarke went before the 9/11 Commission and began with his admission of the failure that this administration bears for the tragedy 

that consumed us on 9/11. And I am reminded this week, as we 

mourn the passing of President Reagan, that one of the acts for 

which he will be remembered is that he conceded that while his 

heart told him that the weapons-for-hostages and unlawful funding 

of insurgent forces in Nicaragua should not have been acts of his 

administration, his head convinced him that they were and he took 

personal responsibility. 

We need checks and balances. There is much that has gone 

wrong that you stubbornly refuse to admit. For this democratic republic to work, we need openness and accountability. 

7

Mr. Attorney General, your style is often to come to attack. You 

came before this Committee shortly after 9/11 to question our patriotism when we sought to conduct Congressional oversight and 

ask questions. You went before the 9/11 Commission to attack a 

Commissioner by brandishing a conveniently declassified memo in 

a so unfairly slanted presentation that President Bush himself disavowed your actions. 

So I challenge you today to abandon any such plans for this session and begin it instead by doing that which you have yet to do. 

Talk plainly with us and with the American people about not only 

what is going right in the war on terrorism—and there are those 

things that are going right—but also about the growing list of 

things that are going wrong so that we can work together to fix 

them. Let’s get about the business of working together to do a better job protecting the American people and making sure that the 

wrongdoers are brought to justice, are brought to trial, and are 

given the justice that this country can mete out. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman HATCH. Thank you, Senator. 

General Ashcroft, we will take your statement at this time if you 

would care to make one. 

STATEMENT OF HON. JOHN ASHCROFT, ATTORNEY GENERAL, 

DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Attorney General ASHCROFT. Good morning, and I thank you for 

the opportunity to make this statement. Obviously, I would be disappointed to think that I might spend my time responding to all 

of the charges that have just been leveled toward me. I have an 

agenda of things that I think are important for us to discuss with 

the Committee, and with that in mind, I would like to proceed with 

my statement rather than seek to be responsive to these items. 

I was reminded as I came to the Senate this morning of the passing of a great giant in American Government. The caisson was in 

the street, apparently in a rehearsal for the events that will later 

follow this week, and President Ronald Reagan, who stood as a 

leader, certainly is a person whose leadership does indeed dwarf 

mine. And if I could agree with the Senator from Vermont, he is 

a man of much greater stature than I could ever hope to be who 

rallied the Nation to fight for very, very great ideals and to dare 

to do great things. And we remember his words as we fight once 

again for freedom against tyranny. 

At the height of the Cold War, he put it this way: ‘‘The ultimate 

determinate in the struggle now going on for the world will not be 

bombs and rockets but a est of wills,’’ he said, ‘‘a test of wills and 

ideas—a trial of spiritual resolve; the values we hold, the beliefs we 

cherish and the ideas to which we are dedicated.’’ 

And today we do meet at a time of war that does test our resolve, 

and we face dire threats. 

Around the world we hear reports daily of this war, the war 

against al Qaeda: bombings in Spain, murder sprees in Saudi Arabia, and improvised explosive devices in Iraq—terrorist attacks 

that kill innocent men, women, and children. 

8

At times, the war on terror might seem distant and September 

11th may seem a faint memory, but it is not. It is not distant. It 

is not faint. 

Credible intelligence indicates that al Qaeda wants to hit the 

United States and wants to hit it hard. We are locked in a mortal 

struggle between two visions for human life in a way that can 

know only one victor. And we choose to be the victor. 

Our vision is a vision of freedom; it is a vision of human dignity 

and tolerance for every citizen. 

Let me give you an example of how this Nation’s dedication to 

that vision is played out. Nashala Hearn is a brave 12-year-old 

Muslim girl who goes to school in Muskogee, Oklahoma. Her favorite subject is world cultures. Someday she wants to write children’s 

books. On September 11, 2003, school officials forbad her to wear 

the hijab, or headscarf, that is the expression of her religious faith. 

Nashala’s father filed suit. He believed that his daughter’s constitutional rights were being violated. 

The United States Justice Department agreed. The Civil Rights 

Division intervened to protect the constitutional rights of this quite 

sixth-grader who likes reading. We won a consent decree to protect 

her rights of religious expression. She may now wear her hijab at 

her school. And later this afternoon, Nashala will wear her hijab 

when she appears in the United States Senate. 

The war we are fighting is a war for Nashala and for freedomloving people everywhere. We continue to strive, after two centuries, to build that city upon a hill—a nation that values the religious liberty of a single young girl and the constitutional liberties 

of all of its citizens. 

Now, contrast these ideals with the dark ambition of our enemies. In the nightmare vision of the Taliban and al Qaeda, little 

girls like Nashala are denied their rights. As a woman, she could 

not go to school. She could not appear in public without a man 

from her family to speak for her. She would never be allowed to 

vote, but she could be whipped. To our enemies, a 12-year-old 

American girl is just another target for their attacks. 

But in the United States of America, under our Constitution, 

Nashala’s life is so precious that her cause commands the attention 

of the Government. Her right to religious freedom is so secure that 

it gained the full weight of the United States Department of Justice. 

Every day, the men and women of the Department of Justice 

prove their commitment to protect the lives and liberties of the 

American people. 

For more than 32 months, the Justice Department has been 

using every tool and every tactic in the arsenal of the justice community to stop terrorism—from aggressive enforcement of the 

criminal code to the deployment of the new and critical tools of the 

USA PATRIOT Act. 

We have disrupted the al Qaeda network and the terrorist presence using immigration violations, minor criminal infractions, and 

tougher visa and border controls. And we have been criticized for 

these tough tactics. But we will continue to use every means within 

the Department in its reach and within the Constitution and the 

statutes to deter, disrupt, and destroy terrorist threats. 

9

These are not just words. We are proving in deeds our commitment to win the war against the networks of terror. We have leveled criminal charges against 310 individuals. To date, we have 

won 179 convictions. We have broken up terrorist plots all across 

America, from Virginia to Oregon, Florida to New York, in the 

heartland, on the coasts. We have targeted the lifeblood of the 

transnational terrorism financing stream, launching 70 investigations into terrorist financing. 

But the most tangible measure of our success is found in a fact 

for which we are grateful to God and the citizens of this country 

and law enforcement officials: We have not experienced a major 

terrorist attack on U.S. soil. 

Our clear strategy of prevention combined with aggressive tactics 

has prevented major terrorist attacks. 

America has caught numerous known al Qaeda operatives seeking to strike America, including: Ali Saleh Kahleh al–Marri, Jose 

Padilla, Iyman Faris, Zacarias Moussaoui, and Richard Reid, to 

name a few. 

Al–Marri was sent by al Qaeda to facilitate a second wave of terrorist attacks on Americans. He arrived on U.S. soil on September 

11, 2001. Further investigation revealed that al–Marri was an al 

Qaeda sleeper operative who was sent to provide support to newly 

arriving al Qaeda operatives. 

Jose Padilla dreamed of detonating a dirty bomb in the United 

States and was sent here by al Qaeda to blow up apartment buildings. After he was arrested, we learned that Khalid Sheikh Mohammed had personally given him full authority to conduct operations for al Qaeda in the United States of America. 

Iyman Faris, an Ohio truck driver, scouted sites in America to 

help al Qaeda blow up a bridge in New York and to look for ways 

to attack America’s rail system. 

We all know about Richard Reid, who, on December 22, 2001, 

sought to ignite a bomb on a commercial airliner traveling from 

Paris to Miami, Florida. Reid pled guilty, calling himself a disciple 

of Osama bin Laden and an enemy of the United States. 

These individuals are not alone. Al Qaeda has a fanatical desire 

to wage war on Americans in America. Al Qaeda will send terrorist-soldier after terrorist-soldier to infiltrate our borders and to 

melt into our communities. And they do not wear uniforms. They 

do not respect human rights. They target civilians. 

Our successes preventing al Qaeda attacks are the direct result 

of information sharing, coordination, and cooperation of the men 

and women in U.S. law enforcement and intelligence. This teamwork would have been utterly impossible without the passage of 

the PATRIOT Act, for which I thank and commend the Congress. 

The Act did four things: 

It tore down the bureaucratic wall that had been imposed between law enforcement and intelligence, allowing cooperation and 

information sharing that has been very valuable. 

The PATRIOT Act, secondly, strengthened criminal laws against 

terrorism. 

Third, it helped speed the investigation of terrorist threats, putting agents on the street, instead of behind desks doing paperwork, 

to pursue terrorists, untrapped in their offices. 

10

And, finally, the PATRIOT Act updated our antiterrorism laws to 

reflect new technologies and to give us the same tools used to fight 

against drug dealers and organized crime so that we could fight 

against terrorists. 

We know that the terrorists plan to escalate their operations in 

America. Credible intelligence, as mentioned by the Chairman, 

from multiple sources indicates that al Qaeda plans to attempt an 

attack on the United States during this summer or fall. As this 

Committee knows, we are entering a season of events of great symbolism and great consequence for our Nation—events that would be 

attractive targets for terrorism. 

It is a sad commentary when the observation of a memorial service for a former President of the United States must be labeled a 

national security special event. Such is the fact of modern life in 

Washington, and such is the nature of the war against al Qaeda. 

We know from Spain’s bitter experience that Osama bin Laden 

and al Qaeda believe they advanced their extremist cause with the 

Madrid train bombings that brought the death of nearly 200 people 

and the injury of about 1,600 more. 

We have alerted the public and State and local law enforcement 

to these threats because we believe the face of al Qaeda is changing 

and their tactics are evolving. 

Al Qaeda continues to attract fanatical extremists from many nationalities and ethnicities, including North Africans and South 

Asians, in particular. Al Qaeda and other extremist groups have 

also shown an interest in recruiting young converts inside target 

countries as operatives who can portray themselves as traditionally 

European. 

Al Qaeda’s ideal operatives may be older than those we have 

seen before—men in their late 20’s to early 30’s. In addition, they 

may be traveling with families to lower their profile. 

In the face of this new threat—a threat that we have seen with 

a new face—we have shown the terrorists that America is not the 

same America we were on September 11. We have learned lessons. 

We are continuing to learn. 

Credible intelligence tells us that the coming months are months 

of vulnerability. The justice community has taken the following 

steps to ensure our safety: 

First, the FBI has established a special Threat Task Force that 

is focusing on the developing threat. The task force is coordinating 

all our intelligence, analysis, and field operations. All field offices 

and LEGATs have been tasked to review all counterterrorism case 

files and threat reporting for intelligence relevant to our intelligence requirements, that is, the defense of the Nation this year. 

Our 84 Joint Terrorism Task Forces are collecting specific information, developing additional intelligence sources, and reporting new 

information as well as reviewing old files to ensure that the 2004 

Threat Task Force has all available intelligence. 

Second, we have informed State and local law enforcement and 

sought their help in uncovering specific, actionable intelligence. 

The FBI has developed a series of critical intelligence priorities 

to guide State and local law enforcement so they can investigate 

and collect information that fills gaps in our Nation’s intelligence 

needs. 

11

We have directed our 93 U.S. Attorneys to convene their Anti–

Terrorism Advisory Councils to enlist State and local support, and 

there are about 670,000 State and local law enforcement officials 

who ares o important to the defense of America. 

Specific intelligence is the foundation for effective 

counterterrorism strategies including hardening targets, disrupting 

cells, and elevating threat levels to engage our level of preparedness. 

Third, we have alerted the public. It is the essence of freedom 

and the core strength of free societies to trust the citizenry to participate in the defense of their lives and liberties. We have asked 

the public to join in the hunt for seven suspected al Qaeda 

operatives and to be alert for suspicious activity. 

These suspects are Amer El–Maati, Aafia Siddiqui, Adnan G. El 

Shukrijumah, Fazul Abdullah Mohammed, Adam Gadahn, 

Abderaoud Jdey, and Ahmed Khalfan Ghailani. They are all sought 

in connection with possible terrorist threats in the United States. 

They pose a clear and present danger. They should be considered 

as armed and dangerous. 

The public has responded, providing over 2,000 tips in the first 

24 hours alone regarding this request for assistance. 

In this Nation, we learned on the morning of September 11, 

2001, that blue skies and quiet mornings should not be mistaken 

for peace—however earnestly we desire that peace. Our terrorist 

enemies have declared war on America, and they have brought the 

war onto our soil. 

Over the last 2 years, we have made progress. But the war is far 

from over. The networks of terror continue their search for any opportunity to turn quiet and calm mornings into scenes of carnage 

and death. 

In this war—in this time of heightened threat—we must remember the ideals we fight for. We must remember the precious liberties, even those of 12-year-olds such as Nashala Hearn. 

When we remember these blessings of freedom, when we reflect 

on the vision we defend, our path, even amidst the challenges of 

war, is clear. 

I thank you for this opportunity to make my remarks. 

[The prepared statement of General Ashcroft appears as a submission for the record.] 

Chairman HATCH. Well, thank you, Mr. Attorney General. Let 

me just ask a couple of questions. 

You and FBI Director Mueller recently warned us about an increased risk of terrorist attacks within the next few months. Can 

you tell us whether you believe and, if so, why you believe our Nation is better prepared to stop these acts of terrorism today than 

we were on September 11, 2001, and whether or not you think the 

Department needs additional legal tools to better protect or help 

protect the American public from acts of terrorism on U.S. soil? I 

noticed from your statement earlier, the one that we have, that you 

oppose, as do I, allowing certain provisions of the PATRIOT Act to 

sunset next year. But there are additional provisions such as the 

terrorist hoax legislation that Senators Schumer, Corny, and I are 

cosponsoring that you may think are advisable for Congress to 

adopt. So if you could answer that, I would appreciate it. 

12

Attorney General ASHCROFT. Mr. Chairman, I do believe that we 

are better prepared than we were before. The tools of the United 

States PATRIOT Act, which were tools enacted by this Congress, 

have taken down the wall between the intelligence community and 

the law enforcement community, and that is an important amalgamation of information. And the best friend of prevention is information. If you have the right information, you can prevent. Without that information, you cannot. 

In addition, the efficiencies provided in the Act, which provides, 

say, for the use of so-called multi-point or roving wiretaps in matters relating to terrorism, really make efficient our ability to monitor or surveil terrorists in a way that we have long had the authority against drug dealers and organized crime figures, since 

1986 when that was accorded the Department in its fight against 

those individuals. And, obviously, those kinds of things are just illustrative of the kinds of structural changes that have upgraded 

our capacity to be effective in the war on terror. 

And there are other aspects which are equally important. The 

FBI has changed its method of operating so that it is much more 

focused on intelligence. It is working to establish a Directorate of 

Intelligence within the FBI. But the resources devoted to intelligence, the kind of communication internal to the FBI, the—Senator Leahy pointed out that the kind of communication system in 

the FBI was deficient. I believe that was part of the thrust of his 

remarks. And the improvement of the communication inside the 

FBI, with the right kind of computers that can now talk from the 

field to headquarters, where we can have a central understanding 

of intelligence rather than a fragmented understanding of intelligence, which had previously characterized the case system where 

information was held exclusively at localities rather than being 

centralized, the creation of the Terrorist Threat Integration Center, 

where intelligence which comes from domestic sources is pooled 

with intelligence that comes from international sources, so that we 

have a basin that receives intelligence, and that Terrorist Threat 

Integration Center can provide an understanding of how we can 

connect dots between things that are happening within the United 

States and things happening outside the United States to help us 

deter or disrupt or otherwise displace threatening terrorist activities. All of these things are improved circumstances, and these are 

exemplary. 

For me to go and try and be exhaustive in the list of changes 

that have been undertaken would stress our time frame this morning. But those are the things that I think are very important that 

we have now. 

As it relates to the ways that we could improve, every time someone requires the Department to respond to a hoax, it takes valuable resources. There have been thousands of hoaxes, for instance, 

on anthrax alone, and there should be significant penalties for individuals who divert the resources that can fight terror away from 

the fight against terror and are just responding to hoaxes. 

Similarly, the seriousness of, I believe, the threat of terror requires that we should have available in circumstances where people are killed and significant killing of individual in terrorist activities should result in the death penalty. There are circumstances 

13

where we do not believe that that exists now, and that would be 

an improvement. 

In the law for major crimes of violence and drug offenses, there 

is a presumption that a person charged would be detained. There 

is no such presumption for a person charged with terrorist activity. 

I think it would be prudent to say that those kinds of presumptions 

which inure to drug dealers of significant scale and violent criminals, if there is a reason for a presumption there, that would be 

appropriate. 

There are about, I think, 335 different areas of the Federal Government in which enforcement officials have the right to request on 

an official basis documents from businesses, business records. 

Those are called administrative subpoenas. I believe that if those 

are requestable on the basis of health care fraud and other things, 

for terrorism cases we would be well served to have that same kind 

of authority. 

This does not mean that there is an automatic ability to get 

them. If a person resists that, then the courts would, again, step 

in to decide whether or not it was merited. But that kind of administrative subpoena authority exists for well over 300 other kinds of 

circumstances. 

Another item which I believe Senator Kyl and Senator Schumer 

and you have joined to work on is what is called the lone wolf 

amendment to FISA which would provide the ability to surveil 

someone known to be involved in terrorism, but not being involved 

in terrorism with someone else, but doing it exclusively on his own 

or her own motion. It seems to me that our ability to surveil that 

kind of person should be commensurate with our ability in other 

settings. So that is another one of the proposals you have been involved with, in addition to the hoax statute. 

But these are the kinds of things that are important. The 

sunsetted provisions, of course, must not expire unless we want 

simply to let down the guard of the United States against terror. 

And if we were to expose the United States to in some way reset 

the balance in favor of terror, we could do so by deciding that we 

would not re-enact those provisions of the PATRIOT Act. I think 

it would be a tragedy. 

Chairman HATCH. My time is up. I would like to ask you to help 

us to work on the Radiation Exposure Compensation Act funding 

with the appropriators. It is very important that we keep that 

funding going and live up to those promises. 

With that, we will turn to Senator Leahy. 

Senator LEAHY. Thank you, Mr. Chairman. 

Mr. Attorney General, yesterday in the Wall Street Journal, they 

had a Department of Defense memo that argues that the President 

has the authority as Commander-in–Chief to approve almost any 

physical or psychological actions during interrogation, up to and including torture. Today, the Washington Post quotes from a memo 

from your Department that purportedly argues that torturing a terrorism suspect may be justified. 

Now, I have been asking for copies of post–September 11th policy 

memos for over a year, but your Department has repeatedly said 

such documents are classified or that it simply won’t release them. 

I asked you for the specific memo that is now reported in the press 

14

10 days ago and received no response. I can read it in the press, 

but I have not received a response from you. You selectively declassify memoranda to suit your political purposes, such as the 

Gorelick memo you offered in the midst of a 9/11 Commission hearing. But you have denied information to Members of this Committee on both sides of the aisle, and so we conduct our oversight 

via what we learn in the press. I have four questions. 

First, when will you provide a copy of this and all other requested memos to each Member of this Committee, Republican and 

Democrat? 

Second, all Americans want to know whether anyone followed 

through on the advice of your Justice Department. Has torture or 

anything approaching torture been committed by U.S. personnel or 

in the presence of U.S. personnel anywhere in the world? 

Third, has there been any order or directive from the President 

with respect to interrogation of detainees, prisoners, or combatants? 

And, fourth, can you assure this Committee, can you assure this 

Committee today, that your Justice Department will aggressively 

prosecute any person for whom there is probable cause of committing torture, regardless of whether the individual was acting under 

a direct order of the President and regardless of whether the person being tortured was in U.S. custody? 

Attorney General ASHCROFT. I want to be sure to answer these. 

My note taking— 

Senator LEAHY. If you miss a couple— 

Attorney General ASHCROFT. You will remind me. 

Senator LEAHY. I will want to help you out by reminding you. 

[Laughter.] 

Attorney General ASHCROFT. Thank you. Congress has enacted 

an extensive framework of laws relevant to the way individuals 

who are apprehended, detained, or captured during wartime are interrogated during wartime. The laws are numerous. They relate to 

everything from the Uniform Code of Military Justice to the torture 

statute, to the War Crimes Act, to the Military Extraterritorial Jurisdiction Act, to the special maritime and territorial jurisdiction 

statute. 

In addition to these statutory enactments that have been passed 

by the Congress and signed by the President and are part of our 

laws, the Senate, in conjunction with the President, has committed 

the United States to the following of various treaties, and related 

to these issues would be treaties like the Geneva Conventions 

and— 

Senator LEAHY. Mr. Attorney General, without—and I know you 

have no intention of filibustering the answer, but could we go to 

my specific question? Did your Department issue a memorandum 

that would suggest that torture is allowed under certain circumstances, as the press has reported? That is a simple enough 

question. It could take a yes or no answer. 

Attorney General ASHCROFT. Well, first of all, I am not going to 

comment on the memos and advice that I give to executive departments of Government, but I will say this: that while the job is to 

explain the meaning of these statutes and to explain in memos the 

law, I want to confirm that the President has not directed or orVerDate 0ct 09 2002 09:52 Mar 01, 2005 Jkt 098240 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\98625.TXT SJUD4 PsN: CMORC
15

dered any conduct that would violate the Constitution of the 

United States, that would violate any one of these enactments of 

the U.S. Congress, or that would violate the provisions of any of 

the treaties as they have been entered into by the United States, 

the President, the administration, and this Government. It is— 

Senator LEAHY. Does that mean that your Department would aggressively prosecute anybody who might come under your jurisdiction under any of these laws any person for whom there is probable 

cause of committing torture, regardless of whether that person was 

acting under a direct order of the President or anybody else? 

Attorney General ASHCROFT. The Department of Justice will both 

investigate and prosecute individuals who violate the law. The Torture Act is a law that we include in that violation. The laws relating to various other aspects of conduct are. We have before us at 

this time a number of investigations underway. We have established a special team for prosecuting such violations in the Eastern 

District of Virginia. It is a U.S. Attorney’s office that is accustomed 

to international items because it is the home of both the CIA and 

the Pentagon. 

There is one case outside that framework that is being prosecuted and was being prosecuted earlier, before we became aware 

that we might have a broader responsibility here. But we are investigating items both on referral from the Department of Defense 

and from the Intelligence Agency, and those matters taken into account our responsibility to enforce the laws enacted by this Congress. 

Senator LEAHY. I would assume that you would carry out your 

responsibilities. You have sworn a solemn oath to do so. But does 

your answer mean that there has or has not been an order or directive from the President within respect to interrogation of detainees, 

prisoners, or combatants? 

Attorney General ASHCROFT. The President of the United States 

has not ordered any activity which would contradict the laws enacted by this Congress or previous Congresses— 

Senator LEAHY. Not quite my— 

Attorney General ASHCROFT. —or the Constitution of the United 

States, or any of— 

Senator LEAHY. Mr. Attorney General, that was not my question— 

Attorney General ASHCROFT. —the treaties— 

Senator LEAHY. That was not my question. Has there been any 

order or directive from the President with respect to interrogation 

of detainees, prisoners, or combatants? Yes or no. 

Attorney General ASHCROFT. I am not in a position to answer 

that question. 

Senator LEAHY. Does that mean you don’t know or you don’t 

want to answer? I don’t understand. 

Attorney General ASHCROFT. The answer to that question is yes. 

Senator LEAHY. You don’t know whether he has issued such an 

order? 

Attorney General ASHCROFT. For me to comment on what the 

President—what I advised the President— 

Senator LEAHY. I am not asking— 

16

Attorney General ASHCROFT. —or what the President’s activity 

is, is inappropriate. I will just say this: that he has made no order 

that would require or direct the violation of any law of the United 

States enacted by the Congress or any treaty to which the United 

States is a party as ratified by the Congress or the Constitution of 

the United States. 

Senator LEAHY. That doesn’t answer my question, but I think my 

time is up. We will come back to this later. 

Chairman HATCH. Senator Grassley? 

Senator GRASSLEY. Yes, I would like to cover a classification 

issue, a terrorist financing matter, and information sharing. 

On the classification issue, I would like to ask about the FBI and 

Justice Department going back in time and classifying information 

that Congress was given in briefings 2 years ago. This information 

involves a whistle-blower by the name of Edmonds, a translator 

who was fired from the FBI because of problems pointed out. Three 

issues. I would like to raise all three and then have you address 

them. 

First, what was your involvement in the decision to retroactively 

classify information already given to Congress, if you had an involvement? 

Second, who made this decision, Civil Division lawyers or operational people at the FBI? 

And, third, laws and executive orders have requirements for how 

information is classified. So since we do have those laws and executive orders, could you explain how the FBI and the Justice Department followed those requirements in this case? 

Attorney General ASHCROFT. If I am not mistaken, in the matter 

to which you make reference, the national interests of the United 

States would be seriously impaired if information provided in one 

briefing to the Congress were to be generally available. And in 

order to protect the national interest, a decision was made to classify the information. 

I take responsibility for that decision, and I have reviewed the 

matter within the last couple months, I think at your request or 

a request of a letter on your part. I am not sure if we have talked 

about this personally, and that is the reason for which the decision 

was made. 

Senator GRASSLEY. So you made the decision, so Civil Division 

lawyers or operational people at the FBI would not have been involved in that? 

Attorney General ASHCROFT. I don’t know that they would have 

been uninvolved. It may be that my decision was shaped based on 

recommendations of theirs and the participation that they would 

have had in some measure. But it relates to both a lawsuit which 

is underway and the national security interests of the United 

States. 

Senator GRASSLEY. Isn’t a little ludicrous, though, saying that 

you classify this information now, though, because it could, if it 

was exposed to the public at large? If I were briefed on it and I 

were not told that it was security or anything, I could have been 

talking about it for the last 10 months and it could have been out 

to the public. 

Attorney General ASHCROFT. That is exactly right, Senator. 

17

Senator GRASSLEY. I mean I could have been, because it was just 

recently reclassified, so I could have done that. So isn’t it ludicrous 

to classify it now? 

Attorney General ASHCROFT. Well, let me just put it this way: If 

there is spilt milk and there is no damage done, if you can re-collect it and put it back in the jar, you are better off than saying, 

well, it is spilt, no damage has been done, we might as well wait 

until damage is done. 

Our responsibility is, if information is made available which is 

against the national interest to be in the public sphere, to say we 

should do what we can to curtail the availability of the information. 

It is on that basis that I made the decision. 

Senator GRASSLEY. Okay. Now, on terrorist financing, a number 

of departments and agencies have jurisdiction over different aspects of terrorist financing, and officials within the departments 

have repeatedly assured me that everyone is cooperating smoothly 

on this issue. But what I see instead of a lot of in-fighting and oneupsmanship—what I do see is a lot of in-fighting and oneupsmanship that is splintering our efforts instead of unifying them. 

The departments participate in working groups and in coordinating 

committees that are supposed to alleviate much of this in-fighting. 

But what we really need is effective leadership and strategic thinking. 

Does the Department of Justice have primary responsibility for 

determining terrorist financing and money-laundering methods and 

in coordinating our Government’s response to these vulnerabilities? 

And how is this responsibility, if you have it, being executed? 

Attorney General ASHCROFT. I believe that the Department does 

have the primary responsibility in money-laundering cases to first 

determine whether or not those cases are terrorism-related, and if 

they are, they remain the responsibility of the Justice Department. 

There are money-laundering cases which have also been a part 

of the traditional Treasury and now I believe in the Homeland Security arena as well. But the first cut on such cases is a terrorism 

appraisal, which belongs with the Department of Justice, and we 

seek to coordinate any secondary activities after that appraisal has 

been made. 

Senator GRASSLEY. I have a bill, S. 1837, that extends the national money-laundering strategy for 3 years. The Department of 

Homeland Security has significant expertise in money-laundering 

investigations. But the Department didn’t exist when we first 

passed this legislation. What should the Department of Homeland 

Security’s role be in developing the national strategy in combating 

terrorist financing from the standpoint of your having primary responsibility in this area? 

Attorney General ASHCROFT. Well, we believe that the Department of Justice in terms of its—obviously, its role will always be 

to prosecute the violations. So let me just first make it clear that 

when we talk about other agencies that are involved in curtailing 

money laundering, they are involved in the development of the case 

or the detection of a scheme or the understanding that there is a 

problem. But when it comes to actually bringing the charges, the 

prosecutions are carried forward by the Justice Department. 

18

Our responsibility has been obviously to make an assessment 

about whether or not the money-laundering scheme was more than 

simply money laundering, but whether it was a funding effort that 

related to terrorism. And for that reason, the Department has the 

first responsibility in the arena. But if other agencies are involved, 

whether it is in conjunction with Customs Enforcement or in conjunction with matters related to immigration or things that are 

covered by other departments, those are areas where we try to coordinate our efforts, but we do not seek to control the effort. And 

we will have to work to get that done. 

For me to go further would require me to do additional study. 

Chairman HATCH. Senator, your time is up. Do you want to 

make a— 

Senator GRASSLEY. My third question has to be submitted in 

writing because time has run out, but it deals with information 

sharing on law enforcement between Government agencies as well 

as be the Federal, State, and local level. So it is something that 

comes up all the time back home, and I hope you would give serious consideration to my third question and answer it in writing. 

Attorney General ASHCROFT. It is a matter of serious importance 

to us, and I will. 

Senator GRASSLEY. Thank you. 

Chairman HATCH. Thank you, Senator. 

Senator Kennedy? 

Senator KENNEDY. Thank you, and welcome, General. 

Attorney General ASHCROFT. Thank you. 

Senator KENNEDY. On the front page of the Times, it has this 

quote: ‘‘A team of administration lawyers concluded in a March 

2003 legal memorandum that President Bush was not bound by either an international treaty prohibiting torture or by a Federal 

antitorture law because he had the authority as Commander-in–

Chief to approve any technique needed to protect the Nation’s security.’’ 

Do you agree with that conclusion? 

Attorney General ASHCROFT. Senator Kennedy, I am not going to 

try and issue a hypothetical— 

Senator KENNEDY. I am not asking hypothetical. This is a memorandum that, again, was referred to today in the Post: ‘‘In August 

2002, the Justice Department advised the White House that torturing al Qaeda terrorists in captivity abroad ‘may be justified,’ 

and that international laws against torture ‘may be unconstitutional if applied to interrogations...’’’ Do you agree with that? 

Attorney General ASHCROFT. I am not—first of all, this administration rejects torture. It does not engage in torture. 

Senator KENNEDY. I am asking you whether this is—there are 

three memoranda: January 9, 2002, signed by John Yoo; the August 2002 Justice Department memo; and the March 2003, the 

interagency working group. Those are the three memoranda. Will 

you provide those to the Committee? 

Attorney General ASHCROFT. No, I will not. The— 

Senator KENNEDY. On what basis? Under what basis? 

Attorney General ASHCROFT. On the basis that the longstanding 

established reasons for providing opinions provided to the executive 

branch— 

19

Senator KENNEDY. General, the executive privilege is not a legitimate basis for withholding memoranda from this Committee. This 

Congress is investigating the prisoner abuses that have occurred. 

Immense importance. We have a specific need of the documents 

that have allowed these abuses to occur. The memoranda at issue 

did not involve confidential communications between the Justice 

Department and the President, but instead legal advice that was 

widely distributed throughout the executive branch. There are 

many examples of executive privilege that have been waived or 

overridden. President Clinton waived the privilege. President 

Nixon claimed absolute executive privilege in Watergate. And interesting, as we—and I will speak about President Reagan later 

this afternoon or tomorrow about my own personal feelings and 

commendation of his life. President Reagan, on November 4, 1982, 

issued guidelines on executive privilege. Ronald Reagan issued executive privilege memoranda to heads of the executive to comply 

with Congressional requests for information to the fullest extent 

consistent with the constitutional and statutory obligations of the 

executive branch, and added that executive privilege would be used 

only in the most compelling circumstances and only after careful 

review demonstrated that assertions of the privilege was necessary. 

Now, are you invoking executive privilege here in denying us 

those memoranda? You have had 72 hours to think about this, 

General. This has been in the newspapers. You had information 

about it. You have had 72 hours to think about it. You knew you 

were going to be asked about this. I am a member of the Armed 

Services Committee. We have been investigating and looking into 

this, the courageous act of the Chairman, John Warner. And we 

are entitled to know whether that information is going to be available to the committees. 

Attorney General ASHCROFT. Well, the confidential memoranda 

provided—any confidential memoranda provided to members of the 

executive branch— 

Senator KENNEDY. This was generally circulated. This was— 

Chairman HATCH. Let him answer the question. 

Attorney General ASHCROFT. Is considered by the Department to 

be important that we maintain it, that we not provide it outside 

the executive branch. And let me just say that we are at war, and 

to talk about the— 

Senator KENNEDY. So is this—do I understand— 

Attorney General ASHCROFT. —powers of the President— 

Senator KENNEDY. This is executive privilege that you are—and 

I just have a couple of final questions. My time is running out. 

What is the reason, what is the justification not providing it? 

Attorney General ASHCROFT. We believe that to provide this kind 

of information would impair the ability of advice-giving in the executive branch to be candid, forthright, thorough, and accurate at all 

times, and so the disclosure of such advice and the threatened disclosure that all memos would be in some way provided would impair our ability to conduct ourselves in the executive branch. And 

let me just, if I may, this is not something new. The Attorney— 

Senator KENNEDY. All right. Okay. Well, we have your answer on 

this, and I will just have another minute. But in these memoranda, 

the memoranda claim that existing laws and international treaties 

20

prohibiting torture do not apply with the President or other officials or acting commander-in-chief. It says the Justice Department 

cannot bring criminal prosecutions against officials who commit 

torture while acting ‘‘pursuant to an exercise of the President’s constitutional power,’’ and it claims that the President can immunize 

subordinates from criminal liability by issuing a Presidential directive or other writing authorizing the use of torture. And you claim 

that the authority to set the laws aside is inherent in the President 

of the United States. 

In other words, the President of the United States has the responsibility. The President of the United States. We have been 

looking about where the President—because we know when we 

have these kinds of orders what happens. We get the stress test. 

We get the use of dogs. We get the forced nakedness that we have 

all seen on these. And we get the hooding. This is what directly results when you have that kind of memoranda out there. And it says 

that it is all because of executive authority and executive power. 

And it seems—how can anyone else conclude that it is the President of the United States then that has the ultimate authority and 

responsibility in the issuing of these orders or the failure to stop 

this kind of activities? 

Chairman HATCH. Senator, your time is up, but if you would care 

to answer? 

Attorney General ASHCROFT. I do care to answer because the 

Senator raises very serious issues, and I think they deserve an answer. 

First of all, let me completely reject the notion that anything 

that the President has done or the Justice Department has done 

has directly resulted in the kinds of atrocities which were cited. 

That is false. It is an inappropriate conclusion. The kind of atrocities which the Senator has recited and which he has displayed in 

the photograph that he raised are being prosecuted by this administration. They are being investigated by this administration. They 

are rejected by this administration. They are not pursuant to any 

order, directive, or policy of this administration. They contravene 

the law and they are going to be rejected as having contravened 

the law. So the suggestion that somehow this administration is engaged in conduct that provided a basis for that activity is simply 

false. 

Second, we are at war, and for us to begin to discuss all the legal 

ramifications of the war is not in our best interest, and it has never 

been in times of war. This is a long-understood and long-established practice. Frank Murphy, for example, who during the World 

War II time, in the Roosevelt administration, let me just read to 

you what he said about the way these things—he explained in part, 

refusing to give his opinion to the Senate, citing what was already 

long-established practices of Attorneys General, in 1939 he put it 

this way, and I am quoting: Well, the constitutional powers of the 

President in time of war—now the quote starts—‘‘have never been 

specifically defined and, in fact, cannot be since their extent and 

limitations are largely dependent on conditions and circumstances. 

The right to take specific action might not exist under one state of 

facts, while under another it might be the absolute duty of the Executive to take such action.’’ 

21

I am not doing anything other than to say that there is a longestablished policy reason, grounded in national security, that indicates that the development and debate of hypotheses and practice 

of what can and cannot be done by a President in time of war is 

not good government. And this isn’t something that comes from 

this administration. It comes from another administration that 

faced a very serious threat, and it comes from an Attorney General 

whose respect for and familiarity with the law was so profoundly 

understood that he became a member of the United States Supreme Court. And it is with that in mind that this Justice Department seeks to preserve the capacity of the Department to serve the 

executive branch and to serve it well and to not respond to 

hypotheticals about what the powers of a President may or may not 

be. 

I will say that this administration rejects terror—pardon me, torture. It rejects terror as well. It has operated with respect to all 

of the laws enacted by the Congress, all of the treaties embraced 

by the President and the Congress together, and the Constitution 

of the United States. And no direction or order has been given to 

violate any of those laws. And last, again, when any of those laws 

is violated, an investigation is pursued, and the pursuit of that investigation, where appropriate, results in the prosecution of offenses. 

Chairman HATCH. Senator Cornyn, we will turn to you. It is your 

turn. 

Senator CORNYN. Thank you, General Ashcroft. You have stated 

on multiple occasions here today and before, of course, that we are 

at war. And, indeed, it was the 107th Congress who voted 98–0 in 

the Senate and 420–1 in the House to authorize the use of military 

force. And, indeed, that is what we are doing in fighting this war 

on terror. 

But I am very much impressed with the challenge that that presents in the minds of many Americans to understand how this war 

on terror comports with our historical experience with what war 

entailed, where we fought against—our armies fought against other 

uniformed armies, with all of the equipment and armament that 

goes along with war. And, indeed, there have been high elected officials serving here in Washington and elsewhere who have questioned whether, in fact, this is a war. But isn’t it the case, General 

Ashcroft, that the resolution of this very Congress that authorized 

the use of force and the President as Commander-in–Chief, his execution of his powers under the Constitution and pursuant to that 

resolution, that provides the authority that is necessary for us to 

not only investigate but to preempt much of the terrorist activity 

that has made this country safe or prevented a terrorist attack 

since 9/11? 

Attorney General ASHCROFT. Senator, this war is different, your 

first point. But there are similarities to previous conflicts, and the 

basis upon which this administration has acted to secure the 

United States in the war against al Qaeda is found in the precedents from previous settings. 

In the Second World War, much discussion of which has taken 

place as we have celebrated the heroism of the greatest generation, 

un-uniformed saboteurs came into the United States from our 

22

enemy and sought to—with a view to disrupting and destroying 

and killing Americans. They were treated as enemy combatants, 

and the basis for the apprehension by the executive branch of individuals as enemy combatants comes from the Supreme Court cases 

that followed that apprehension of unconventional, un-uniformed 

individuals who, against the laws of war, threatened the United 

States. 

Senator CORNYN. Indeed, isn’t it that precedent, that Supreme 

Court precedent that you are referring to, that provides the basis 

of the Government’s position in the Padilla and Hamdi cases currently pending before the United States Supreme Court? 

Attorney General ASHCROFT. Among the precedents cited in 

those cases is that case. Of course, the courts also have considered 

the Acts of the Congress taken in this particular situation, which 

you cited earlier in your remarks, providing a basis for understanding that the President needed to take action to defend the 

American people in this war against al Qaeda and that the authority to take such action had been granted by the U.S. Congress. 

Senator CORNYN. Let me just ask you, in your opinion, what 

would be the consequences of a decision that prevented us from 

acting to preempt terrorist attacks that merely treated terrorism as 

some species of a crime that could not be investigated and punished until after it occurred? What would be the consequences on 

the national security of the United States? 

Attorney General ASHCROFT. Well, I can give you one example, 

and I believe I can cite the Deputy Attorney General of the United 

States who was an active prosecutor of terrorists in New York before he became the U.S. Attorney in New York and before he became the Deputy U.S. Attorney General. In commenting on the 

Padilla case, he indicated that we would be incapable of restraining 

an individual whose expressed intent was to, in acts of war, destroy 

innocent people in America by detonating explosions which would 

destroy things like apartment houses and the like. 

Of course, we know also that Padilla had also spent time studying the potentials of a dirty bomb so as to detonate a device which 

would disperse radioactive or other very dangerous contamination 

materials. 

The ability to intercept and to interdict the activities of an 

enemy combatant, one who is a part of the enemy, has trained with 

the enemy, has developed a skill which could be very injurious to 

the public, is a longstanding ability in the United States. As I say, 

it was employed by President Roosevelt in the Second World War, 

and obviously it is a responsibility of the President in the war 

against al Qaeda to be willing to defend the American people and 

to take such steps to do so in this war as well. 

Senator CORNYN. It has been said that the United States Constitution is not a suicide pact, so I assume that you believe—I trust 

you believe that it is within the authority under international treaties, under the— 

Chairman HATCH. Senator, your time is up. 

Senator CORNYN. Well, I will send you any other questions I may 

have in writing. Thank you. 

Attorney General ASHCROFT. Thank you. 

Chairman HATCH. Thank you. 

23

Senator Biden? 

Senator BIDEN. Thank you very much. 

On my 6 minutes, can I yield 20 seconds to my colleague to follow up on a question? 

Senator KENNEDY. General, has the President authorized you to 

invoke the executive privilege today on these documents? 

Attorney General ASHCROFT. I am not going to reveal discussions, whether I have had them or not had them, with the President. He asked me to deal with him as a matter of confidence. I 

have not invoked executive privilege today. I have explained to you 

why I am not turning over the documents. 

Senator KENNEDY. Well, what are you invoking then? 

Attorney General ASHCROFT. I have not invoked anything. I have 

just explained to you why I am not turning over the documents as 

a matter of policy. 

Senator BIDEN. Thank you very much, General. That means you 

may be in contempt of Congress then. You have got to have a reason not to answer our questions, as you know from sitting up here. 

There may be a rationale for executive privilege that misses the 

point, but, you know, you have to have a reason. You are not allowed, under our Constitution, not to answer our questions. And 

that ain’t constitutional. But that is a different question. I don’t 

want to get off on it because I have got to talk to you about other 

things. But you all better come up with a good rationale because 

otherwise it is contempt of Congress. 

One of the things that I am a little confused about here is I don’t 

know anybody in America who has argued we shouldn’t attempt to 

preempt terrorist attacks. The question is: What are we allowed 

under our Constitution to do to preempt terrorist attacks? And that 

is really the issue here, not whether we should preempt or want 

to preempt but what we are allowed to do to preempt. 

Now, one of the questions I have—and if you don’t have an answer, I understand, if you could just let me know. It is so seldom 

we get to see you. When you were on the Committee, Janet Reno 

was up 12, 13 times, 22 times in her tenure. You have been up 

three times. We miss you, John. We would like to see you more. 

But, at any rate, is there, to the best of your knowledge, a Presidential order—not a secret, a Presidential order anywhere—that 

immunizes interrogators of al Qaeda suspects? Is there any order 

that the President has issued that lets it be known that they are 

immunized based on the tactics they use from prosecution? Is there 

such an order? If you know. 

Attorney General ASHCROFT. The President has issued no such 

order. 

Senator BIDEN. Okay, good. I just wanted to get the record 

straight. Now, I have a couple more questions along these lines, if 

I may. 

Is it your position that in time of war, which we are in now, that 

Congress has no authority to question the legal judgments of the 

executive branch, even if we think the administration may have 

violated a treaty or a law or the Constitution? If we think you violated a treaty, a law, a statute, or the Constitution, is it your position that in a time of war we, the Congress, do not have the authority to question you and get answers to those questions? 

24

Attorney General ASHCROFT. First of all, I think that Congress 

has the right to ask any question it wants and to question and to—

it has a responsibility, its oversight responsibility, and to debate 

and to criticize where it chooses to and commend where it chooses 

to and not say anything if it chooses to do that. 

There are certain things, in the interests of the executive branch 

operating effectively, that I believe it is inappropriate for the Attorney General to say. Some of those relate to things that he has said, 

perhaps in advice he has given, and some relate to hypotheticals 

that he might say or might not give. 

I think in terms of drawing that issue sharply, I thought Attorney General Murphy, who subsequently became the Justice of the 

Supreme Court, said it very clearly. 

Senator BIDEN. What he said was generic. He didn’t say anything specific. I know what he said. He didn’t say anything specific. 

He was generic. 

Attorney General ASHCROFT. Yes, sir, and I am trying to do the 

same. 

Senator BIDEN. You are being very generic, that is true. I acknowledge that. You are as generic as they come. I got it. This is 

generic. We are trying to get specific. And, you know, you said that 

there has been no—you are not going to give us the memoranda 

that were referenced here. But let me ask you, as a lawyer, as a 

lawyer with an advanced degree beyond law school, I would like 

your legal opinion as Attorney General. If, in fact, there was a 

memo that said that torture might be justified and would be constitutional if applied to interrogations, if such a memo existed, is 

that good law? Do you believe that to be the law? You, the Attorney 

General of the United States, two degrees from prestigious law 

schools and institutions— 

Attorney General ASHCROFT. I have two degrees. The third degree I get when I visit the Senate. 

[Laughter.] 

Attorney General ASHCROFT. So I don’t have a degree beyond law 

school other than the ones that I— 

Senator BIDEN. I thought you had a master’s as well in law. 

Attorney General ASHCROFT. No, I don’t. 

Senator BIDEN. Oh, okay. 

Attorney General ASHCROFT. But I am wishing I did at this time. 

[Laughter.] 

Senator BIDEN. Where did you go to law school? 

Attorney General ASHCROFT. It wasn’t under your tutelage, but 

maybe— 

Senator BIDEN. No, I understand. 

Attorney General ASHCROFT. I know you teach. 

Senator BIDEN. But do you think that torture might be justified? 

That is a question to you. Not memorandum. Just you, John 

Ashcroft, Attorney General of the United States, highest-ranking 

law enforcement officer in the United States of America, and lawyer. Do you believe in this time of war torture might be justified 

and be viewed as constitutional? 

Attorney General ASHCROFT. Well, first of all, this administration 

has not ordered or approved it. 

25

Senator BIDEN. I am not asking you that, John, with all due respect. 

Attorney General ASHCROFT. And I am not going to— 

Senator BIDEN. I just want to know your opinion. 

Attorney General ASHCROFT. —issue or otherwise discuss 

hypotheticals. I will leave that to the academics. This has been the 

subject— 

Senator BIDEN. Okay. Do you think this is justified? It is not hypothetical. 

Attorney General ASHCROFT. That is not a hypothetical. That is 

a circumstance, and that is the kind of circumstance that, when it 

is referred to the Justice Department, we investigate. And if there 

is a basis for prosecution, we would prosecute. And we have investigations— 

Senator BIDEN. John, you sound like you are in the State Department. Remember the old days when you were here looking for answers? Remember being on this side? 

Attorney General ASHCROFT. I have a recollection of that. 

Senator BIDEN. Well, my time is up, I can see. 

Attorney General ASHCROFT. You know, I condemn torture. I 

think it— 

Senator BIDEN. So it is not justified then? 

Attorney General ASHCROFT. I don’t think it is productive, let 

alone justified. 

Senator BIDEN. Well, I don’t either, and, by the way, there is a 

reason—I will conclude by saying there is a reason why we sign 

these treaties: to protect my son in the military. That is why we 

have these treaties, so when Americans are captured, they are not 

tortured. That is the reason, in case anybody forgets it. That is the 

reason. 

Attorney General ASHCROFT. Well, as a person whose son is in 

the military now on active duty and has been in the Gulf within 

the last several months, I am aware of those considerations. And 

I care about your son. I care about— 

Senator BIDEN. He is not there. He is in JAG, and he is back 

here. But that is the reason. 

Attorney General ASHCROFT. He may not be there, but my son 

has been. He happens to be stateside right now for more training, 

but is scheduled to go back within the month. 

Senator BIDEN. My son was in Pristina working for you guys, 

and the same thing occurred. 

Attorney General ASHCROFT. I just want you to know— 

Chairman HATCH. Senator, your time is up. 

Senator Sessions? 

Senator SESSIONS. Thank you, Attorney General Ashcroft, for 

your service. I believe the Department of Justice has achieved 

great things since September 11th. It has completely re-evaluated 

how you do business. You have made sure that our investigative 

agencies know that prevention of attacks against the United States 

are just as important as investigating and prosecuting them afterwards, even more important. And that was really not the psychology of the American Government before. Our agents were just 

taught—as a former prosecutor who worked with them so often, 

they were taught to investigate crimes after they occurred. And you 

26

have broken down the wall between the CIA and FBI and done a 

lot of other things that have made us a lot more effective in defending this country and defending American citizens from attacks by 

a group of people who desire nothing more than to kill innocent 

people to further their twisted aims. And I want to thank you for 

it. 

I know in this body, we know, the Ranking Member knows that 

he can talk and make one allegation after another after another 

after another, and you would like to respond to them, but you will 

not have time to do that, and neither do I. But I believe there is 

an answer to every one of those charges. And I appreciate the dedication of you and your staff, the long hours they have worked, long 

weeks and months and months beyond any normal work to make 

sure this country is safe and protected. I hope you use every legal 

power given you. You should do that. I believe that is your obligation—do you not?—to protect this country. 

Attorney General ASHCROFT. Well, I have said over and over 

again that we will use all the assets at our disposal to protect the 

American people from terror. And I believe that is what they expect of their Government and they have a right to expect it. 

Senator SESSIONS. And I understand these leaked memos, some 

of them apparently were in draft form. I am not sure who has seen 

those memos or whether they were final drafts or not on torture. 

But I think you are wise not to express an ultimate decision on the 

absolute ultimate power of a President of the United States to protect the people of this country. But I know this because I was on 

the Senate Armed Services Committee when we had extensive 

hearings on these prisons. Every memorandum, every policy directive from the Department of Defense directed that they should 

comply with the Geneva Conventions, comply with the laws of the 

United States, and, frankly, it does not enhance the safety of American soldiers and, in fact, I think could endanger them when we 

have Senators suggesting that we have changed Saddam Hussein’s 

prisons to American prisons and there is no difference. So I feel 

strongly about that, and I thank you for your service. 

I have offered legislation dealing with mass transportation, and 

after the attack in Spain, we have seen that our country has some 

gaps in our laws with regard to mass transportation. Have you had 

a chance to review S. 2289 that would close some of the gaps and 

enhance our ability to prosecute those who might conduct attacks 

on our mass transit system in America? 

Attorney General ASHCROFT. My staff has spent some time considering these issues and seeking to close gaps in statutes that 

might relate to the protection of mass transportation systems. I 

think in particular to extend to railroads the same protection 

against terrorist attacks that are currently provided to mass transportation systems under the Federal law now is something that 

should be very actively considered. And I think while frequently 

railroad trains in much of the country are not perhaps mass transportation in the same way of moving people that other mass transportation systems are, they certainly are a part of our critical infrastructure that deserves our attention and protection. 

Senator SESSIONS. Mr. Attorney General, I believe the PATRIOT 

Act, as I have read it, in essence corrected a number of basic weakVerDate 0ct 09 2002 09:52 Mar 01, 2005 Jkt 098240 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\98625.TXT SJUD4 PsN: CMORC
27

nesses that existed in our current legal system or legal system at 

that time, and that we fixed a lot of those. I do not believe the PATRIOT Act represents any major expansion of Government power. 

It simply made sure you could utilize that power that had been approved constitutionally against drug dealers and others against terrorists. Isn’t that true? 

Attorney General ASHCROFT. I think that is a fair characterization of the Act. It does expand the power to take it to the area of 

terrorism, but it doesn’t invade or raise new constitutional questions or issues. The so-called roving wiretap provisions where you 

could tap more than one phone of a single person, or if they threw 

one phone away, you could tap the next one, that has been in place 

since 1986 for drug traffickers. So similar other expansions had already been made available in the pursuit of other kind of criminal 

activity. So the Department supports the PATRIOT Act re-enactment because to forfeit that would be terrible, just like the Department supports the Railroad Carriers and Mass Transportation Act 

about which you asked earlier. 

Senator SESSIONS. Well, I believe that the proposed changes that 

some have offered weaken the Act substantially. I think we should 

not do that. And I think we ought to take some time and go over 

every word of the Act, and we can do that. But in the end, I believe 

we should not make that change. 

And I would just note about these memorandums, you know, we 

have had people here complain about the memorandums from their 

staff to them being leaked, and rightly so. And I do believe a President has a right to obtain legal advice from his Attorney General 

on matters and not have to have that revealed to the whole world. 

Chairman HATCH. Senator, your time is up. 

We will now turn to Senator Feinstein. 

Senator FEINSTEIN. Thanks very much, Mr. Chairman. Welcome, 

Attorney General. 

I am really concerned by the answers that I have heard today because we have passed laws against torture. The Uniform Code of 

Military Justice has laws. The Geneva Conventions have laws to 

which we subscribe by treaty. And it seems to me what you are 

doing this morning—and please correct me if I am wrong—is essentially reserving this for the executive domain and not being willing 

to share the public policy that results in the ratification of treaties 

and the passage of laws as it respects torture. 

These memos clearly do exist, and if you read the newspapers, 

they appear to be an effort to redefine torture and narrow the prohibition against it by carving out a class of something called ‘‘exceptional interrogation.’’ So these memos actually either reverse or 

substantially alter 30 years of interpretation by our body, as well 

as the executive, of the Geneva Conventions. 

I would like to ask you this: Will you share access of these 

memos on a classified basis? 

Attorney General ASHCROFT. It is a longstanding position of administrations going back decades that a variety of high-level memoranda and advice are presumptively protected as a function of a 

separation of powers, that the President has the right to get advice 

from his attorney without having the advice provided outside that 

stream of counsel. Only the President asserts privilege, which I 

28

have not done. But I believe that is the basis for my refusal, and 

I think it is a valid basis. 

Now, let me just say that it is not the job of the Justice Department or this administration to define torture. Torture has been defined by the Congress. It is defined in the Torture Act. And Congress was very careful in defining it. And in Section 2340 of the 

Torture Act, torture means an act committed by a person acting 

under color of law—it is narrowly defined by the Congress. You 

have to be doing something pursuant to a governmental authority 

specifically intended—that is a term of art. The Congress knows 

that well. When you have specific intent, it is a higher level of intent than it is in other settings—to inflict severe physical or mental 

pain or suffering. And the Congress goes to a sub-point to define 

severe mental pain or suffering in its own—this is part of the statute. ‘‘Severe mental pain or suffering means the prolonged mental 

harm caused by or resulting from the intentional infliction or 

threatened infliction of severe physical pain or suffering.’’ And it 

goes on for three more paragraphs in just defining that. 

Now, I just want to make clear that I don’t view my job as a job 

of defining torture. The Congress of the United States defined torture, and it defines torture based on the way the Senate of the 

United States agreed to international conventions relating to torture and to the Geneva Conventions. And the reservations expressed by the Senate in ratifying or providing advice and consent 

in terms of those conventions was then drawn down into this statute. And this is something that is not the product of the Justice 

Department. This is the product of the action of the U.S. Congress. 

So I want to resist the notion that the Justice Department defines torture. The Justice Department doesn’t define torture. It is 

defined, and painstakingly defined—I don’t mean any special double entendre with the word ‘‘pain’’ in relation to torture. But it is 

painstakingly defined by the U.S. Congress in this, and the definition is the same as it occurs in the treaties as it is in the statute 

because the statute on torture is designed to be an enforcement 

mechanism for the treaty. But it is something done by the Congress. 

Senator FEINSTEIN. But, Mr. Attorney General, I take it then 

that your answer to my question is no, that you will not make it 

available on a classified basis? 

Attorney General ASHCROFT. That is correct. 

Senator FEINSTEIN. I think Article 17 and Article 31 of the 

Fourth Geneva Convention is rather clear. I don’t think it needs 

definition. Article 17 says, ‘‘No physical or mental torture, nor any 

other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatsoever. Prisoners of 

war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.’’ 

On its face, it seems to me that is crystal clear. So the only reason, in my view, for memos was to be able to find some basis to 

protect people who do not follow the Geneva Conventions from 

prosecution. You know, I really think— 

Attorney General ASHCROFT. I really need to have a chance—Mr. 

Chairman, I hope you will allow me to answer this. 

Senator FEINSTEIN. If I may have time— 

29

Attorney General ASHCROFT. I am sorry. I didn’t mean to interrupt. 

Senator FEINSTEIN. You go ahead, please. I want to hear the answer. 

Attorney General ASHCROFT. Well, first of all, you are making 

reference to the Geneva Conventions. 

Senator FEINSTEIN. Correct. 

Attorney General ASHCROFT. And the Geneva Conventions apply 

in certain circumstances and don’t apply in other circumstances. 

Article 3 of the Geneva Conventions applies to prisoners of war. 

Senator FEINSTEIN. But you have been saying we are in war all 

morning, Mr. Attorney General. 

Attorney General ASHCROFT. I have been saying that, and I believe it. We are in a war with al Qaeda. But the only people who 

are accorded the protections of the Geneva Convention are, number 

one, according to the Convention itself, those nations that are highcontracting parties to the Convention. Al Qaeda is not a high-contracting party to the Geneva Convention. It repudiates the rules of 

war. It operates against civilians. It doesn’t wear uniforms, and it 

has never sought to be a high-contracting party. The Geneva Conventions do not apply as it relates to al Qaeda, and they are not 

intended to apply as it relates to al Qaeda. 

Now, the law against torture applies because it was intended to 

apply. But if you cite the Geneva Conventions, Section 3 applies to 

high-contracting parties, and so you don’t have the—now, the 

President, he said we are going to follow principles—I am not sure 

I can quote his exact language, but he said we will follow and accord principles of respect similar to those in the Geneva Convention in dealing with al Qaeda warriors that we apprehend. But the 

idea that somehow the Geneva Convention covers every conflict is 

simply not the law. 

Senator FEINSTEIN. So let me, because my time— 

Attorney General ASHCROFT. And if it were intended to be the 

law, the Senate hasn’t said so. 

Chairman HATCH. Senator, your time is up. 

Senator FEINSTEIN. So if I understand you correctly, you are saying in the war against terror, which is non-state, asymmetric warfare, as far as the administration is concerned, the Geneva Conventions do not apply. 

Attorney General ASHCROFT. Well, I am saying that there are a 

variety of laws that govern whether or not—the conduct of the 

United States as it relates to individuals we detain in time of war. 

Some of those laws are—some of those relationships are governed 

by Geneva, but the Uniform Code of Military Justice, it is everywhere. And the torture statutes apply to a variety of circumstances. 

When the Congress enacted the torture statute, it enacted a law 

that said it applied everywhere outside the United States. But 

when the Congress defined the United States, it is not simple, because when the Congress defined the United States in the torture 

statute, it said the United States shall include special maritime 

and territorial jurisdictions, which means that the United States 

just doesn’t include our 50 States. It will sometimes include military bases. It will sometimes include consular offices. It will someVerDate 0ct 09 2002 09:52 Mar 01, 2005 Jkt 098240 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\98625.TXT SJUD4 PsN: CMORC
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times include the residences or embassy offices. And when the Congress of the United States makes these definitions, that is what I 

have to live by. 

It seems a little bit of an anomaly to me that, on the one hand, 

there would be those who would accuse me of defining the law, 

and, on the other hand, individuals who would protest the fact that 

I had lived by the Congressional definition of the law. When I provide to the President of the United States or members of the executive branch an assessment of what the law is, I have to go and read 

the law. And when there are technical definitions placed in the law 

by the U.S. Congress, I am sworn on my oath to represent the law 

as to what it is, not as a person whether in my view this would 

be one way or another. 

It is a complex arena, with the Military Extraterritorial—I cannot even pronounce it—Military Extraterritorial Jurisdiction Act, 

with the special maritime and territorial jurisdiction responsibilities, with the Uniform Code of Military Justice, with the various 

conventions, both Geneva Conventions and the antitorture conventions. And they both have these carve-outs. We haven’t gotten to 

the technical part of defining the United States, which includes territory outside the United States for these purposes, because then 

the Congress has come in and said that if you look at Part 9 that 

defines the special maritime and territorial jurisdiction, it takes 

some people out. So for some people, the United States is defined 

by one set of limits; for other people, it is defined by another. 

All I am saying is that when I render advice to the executive 

branch, which I seek to do, and the professionals of my Department 

who know this much better than I do, they have to live by those 

definitions. And we cannot re-create them in what would—you 

know, just to say it is common sense to read this provision, that 

means it is everywhere. Well, the Geneva Convention doesn’t apply 

everywhere by its own terms and by the terms embraced by the 

Congress in ratification, and I have to reflect that in my advice. I 

simply do. 

Chairman HATCH. Senator, your time is up. 

Senator Craig? 

Senator CRAIG. Thank you very much, Mr. Chairman. 

John, it is great to see you again. You look healthier, not generic—healthier—and I appreciate that. We wish you could have 

been with us more often. After today, I can understand— 

Attorney General ASHCROFT. I had intended to be with you on a 

continuing basis at one time in my life. 

[Laughter.] 

Senator CRAIG. For those who haven’t been home recently— 

Attorney General ASHCROFT. I lost the election. 

Senator LEAHY. I thought you meant you intended to be up here 

to testify. 

Attorney General ASHCROFT. There is a difference between being 

here to testify and sitting on your side. 

Senator CRAIG. For those of us who have not been home most recently, if we had—and I have, and I have been on the main streets 

of Boise, Idaho, in the last 48 hours, there is no appearance of war. 

Our economy is— 

Attorney General ASHCROFT. We want to keep it that way. 

31

Senator CRAIG. Our economy is growing and thriving, and it is 

robust, and Idaho citizens are trafficking in their most normal 

ways, except for 2,000 families in Idaho at this moment whose sons 

and daughters and husbands or wives have just been called up out 

of the Reserves and the National Guard to go on special training 

to be deployed to Iraq in October. Two thousand young men and 

women out of Idaho out of a total population of 1.2 million, that 

is a heavy impact on Idaho. Idaho is very much at war. 

Last Thursday evening, I spent time at Walter Reed with young 

men and women who were pinned and taped and stitched back together. They had been brought home from Iraq. They were the victims of war. They were not the victims of traffic accidents on Pennsylvania Avenue. 

I know it is very difficult to walk out on the main streets of 

America and to even sense we are at war. But we are. I believe 

there was a young man or a woman in our uniform killed in Iraq 

in the last 24 hours. We are very much at war, and we must not 

forget that. And war does afford the executive branch of Government some extraordinary powers. 

But, having said that, what happened at Abu Ghraib prison is 

not acceptable, and we know that, and that is why it is being investigated fully today. And if those who are being investigated are 

found guilty, I trust they will be prosecuted. And the greatest 

transparency of this Government will be necessary and appropriate 

in that process. And so thank you for being vigorous in that area. 

But, John, you said something a couple of moments ago that 

frustrates me a bit when you said defining versus interpreting, and 

that is in relation to the PATRIOT Act. You and I have some disagreements there as friends, and we have disagreements on policy. 

I strongly believe in the PATRIOT Act, and I voted for it. And the 

Congress of the United States did extend powers in areas where it 

should exist and hadn’t existed. And hopefully that will be improved. 

It is also true that you have had your attorneys before us proposing change in the PATRIOT Act. I find it fascinating, therefore, 

that when some of us propose them, we become victims of high levels of criticism. I am proposing changes in the PATRIOT Act, 

known as the SAFE Act. I am a primary sponsor of that, along 

with some of my colleagues. And we will look at those issues. Senator Sessions just said we will look at it in great detail, and we 

must. You see, I trust you, but I don’t know about the next Attorney General or the next Attorney General or the next Attorney 

General. And, therefore, we will not build law based on trust. What 

have you just said? You cannot redefine the law. You can only interpret it as Congress meant it, and we gave you extraordinary 

powers in an area—or I should say we extended them out of drugs 

into terrorism. 

But I do believe in safeguards, and I do believe that there is an 

importance in asking for the right to proceed at certain times along 

the way, and that is all that the SAFE Act largely does. And we 

will pursue that with you. We will debate it thoroughly in a most 

collegial manner. It is important. Civil liberties in this country are 

a basis of our great country. And while I respect you and trust you, 

I don’t trust Government. And I don’t expect our citizens to unless 

32

the law is in place to make Government perform in the appropriate 

fashion. And so that is what we are about here, and I thank you 

very much for your diligence and your effort to be tough and strong 

throughout these most difficult times for our country. 

What I hope, though, in the end is that Saddam Hussein will not 

have taken away from us something that our Constitution in large 

part granted us and that we have it taken away in the name of 

safety and security. That is the intent of the SAFE Act. That will 

be the intent as we debate it and as we reauthorize the PATRIOT 

Act. I will vote for a reauthorized PATRIOT Act. But I will vote 

for it with some slight changes in its that are going to be necessary 

and important, now and in the future. And that is what we are 

about. 

But I thank you for your presence here today and for your forthrightness. That is what we expect of you. You are a candid, bright, 

and capable person, and that is highly respected by this individual. 

Thank you. 

Chairman HATCH. Thank you, Senator Craig. 

Senator Kohl? 

Senator KOHL. Mr. Attorney General, Jose Padilla was arrested 

on May 2nd, way back in 2002, at O’Hare and declared an enemy 

combatant a month later. In February of 2003, the FBI announced 

that al Qaeda might be seeking to attack soft targets like apartment buildings. 

Then 2 weeks ago, Deputy Attorney General Comey held a press 

conference to fill us in on details of the Padilla case, that he has 

admitted to plotting to blow up apartment buildings inside the U.S. 

He was allegedly trained to prepare and seal an apartment building in order to obtain the highest explosive yield. So we have a 

man in custody that we knew had met with the highest members 

of al Qaeda. We believed that he was trained to blow up apartment 

buildings, and we had information about how he was going to do 

that. 

I believe it would have been beneficial to share this information 

with the American public at that time, millions of whom live in 

apartment buildings. Putting the American public on notice that al 

Qaeda was planning this sort of attack would have added another 

layer of protection. Instead of relying exclusively on law enforcement, we could have had immediately millions of Americans assisting us in preventing such an attack. Why wasn’t that information 

made public back then, Mr. Attorney General? 

Attorney General ASHCROFT. The information of which you speak 

was shared with a variety of individuals who we felt could be helpful to us in making sure that the plots never transpired. We shared 

that very extensively with State and local government law enforcement officials. As you know, we have an alert list of 18,000 law enforcement agencies around the country, and that covers almost 

700,000 law enforcement officials. 

We also went to the apartment owners groups of individuals to 

talk to them about security and to make sure that they would 

taken whatever actions they could to be alert and to alert individuals in their various settings in their operations to make sure that 

we did what we could to protect the American people. 

33

Our awarenesses of Mr. Padilla’s circumstances and intentions 

was a progressive awareness, and I am not at this time capable of 

re-creating exactly when we learned each of these things. But I 

know that we early went into the apartment owners and operators 

community with information about the vulnerability that apartment buildings have, particularly those where the parking is associated with the building. But, obviously, if someone were to carry 

small amounts of explosives into a building one day at a time and 

then go on vacation, it would be a very—you could have a very serious circumstance, even absent parking associated with the building. 

Senator KOHL. Mr. Attorney General, last month, FBI Director 

Mueller testified here. I questioned him about security at the upcoming Summer Olympic games. His answer was not entirely satisfying. He acknowledged that there were gaps in Greek security, but 

that it was too early to assess how well the Greek authorities were 

doing to fill these gaps. Can you give us some further information, 

some further sense of assurance? 

Attorney General ASHCROFT. Well, the United States of America 

is not responsible for security at the Greek games. We are interested in assisting and providing assistance, but the responsibility 

for the security is the responsibility of the Greek nation. It is on 

their territory. It is in their sovereign jurisdiction. 

The FBI and our Department were involved in preparations. 

Shortly after 9/11, you will remember we had the Winter Olympics 

under the jurisdiction of the Chairman of this Committee, and we 

spent a lot of time and energy considering security. We have sent 

a team of individuals that were involved in that endeavor to make 

sure that those involved with the games in Greece have a capacity 

to understand what the challenges are. We have provided input for 

a Europol threat assessment for the Greek games. Our Ambassador 

has coordinated with a working group regarding security. 

We will do what we can to be of assistance. I know that there 

are other parts of this administration other than the Justice Department that are aggressively involved, and during the operational period of the games, the FBI will be deploying a team of 

personnel to Athens. But, very frankly, much of security is determined before the games begin, in the structure and the way things 

are set up and the way things are done. 

The support that we have been involved in developing has been 

a matter of our volunteering to assist. The FBI has not been given 

any specific operational tasking in support of the Olympic games, 

nor has the FBI been given any specific operational mandate in the 

event of an incident during the games. But we are providing the 

help that is being requested and trying to provide input that will 

elevate the level of security and reduce the risk to both athletes 

and spectators in Athens. 

Senator KOHL. In March, Chairman Hatch and I urged Justice 

to complete a rulemaking that would require all imported explosive 

materials to be marked in the same way domestic explosives are 

marked. This would allow investigators to determine the origin of 

explosives and aid them in tracking down criminals. Four years to 

finalize that rulemaking, it seems to me, is too long for a very 

straightforward issue. Now I hear the target release date of June 

34

2004 will not be met. We are concerned that the threat of imported 

explosives is not being taken seriously enough, so I am going to introduce legislation next week that will require markings to be 

placed on all imported explosives. Can I count on your support, 

your Department’s support, for that legislation? 

Attorney General ASHCROFT. Well, let me just say that we recognize this as a serious issue. It is something I would much appreciate the opportunity to review before I made comment on it. ATF 

has submitted a final draft rule to the Department for review. The 

Department has also recently met with representatives of the explosives industry that are concerned about this and the fact that 

there ought to be a level playing field between both domestic and 

foreign manufacturers and producers of explosives. 

So I thank you for your interest in this. Your prodding is appropriate. I think you are right. Four years is too long. And we will 

work to issue the rule, but I could understand if you want to go 

forward with the legislation because you have been patient, and 

this is an important matter which you don’t want to be damaged 

as a result of your patience. 

Chairman HATCH. Senator, your time is up. 

Senator DeWine? 

Senator DEWINE. Mr. Attorney General, good to have you with 

us today. 

Attorney General ASHCROFT. Thank you. 

Senator DEWINE. The FISA statute is one of the most important 

weapons we have in the fight against terrorism. In fact, really I am 

not sure that there is anything that the Justice Department does 

that is more important than administering the FISA statute. 

Unfortunately, it appears that we are still having problems with 

the FISA process. On the plus side, it seems as though the Justice 

Department has been more aggressive in filing FISA applications 

with the result that last year we saw a record number of applications, over 1,700, according to your testimony. Unfortunately, however, many applications are still sitting and waiting to be processed. The staff of the independent 9/11 Commission tells us, and 

I quote, ‘‘The application process, nonetheless, continues to be long 

and slow.’’ And that process is still subject to, and again I quote, 

‘‘bottlenecks.’’ 

Similarly, Mr. Attorney General, on May 20th, at the last FBI 

oversight hearing held by this Committee, I asked FBI Director 

Mueller how well he thought the FISA statute was being utilized. 

Frankly, he seemed a little uncomfortable with the question, and 

he didn’t want to go into much detail because some of the information understandably might be classified. But what he said was 

this—and I must tell you, Mr. Attorney General, I was very concerned with what he did say, and let me quote, and this is a direct 

quote. ‘‘We still have concerns. There is still frustration out there 

in the field in certain areas where, because we have had to 

prioritize, we cannot get to certain requests for FISA as fast as perhaps we might have in the past.’’ 

So you have got the independent 9/11 Commission saying that. 

You have got the FBI Director with his very candid comment to our 

Committee. Other information that I received indicates there is a 

bottleneck. You know, I understand that you are doing a better job, 

35

you are putting more resources into this, but governance is priorities. And I don’t know anything that is more important that you 

all are doing than getting these FISA applications through. And if 

I was somebody out in the field and I had worked up a FISA application and I thought it was the most important thing in the world 

and I had worked it up, and I had everything lined up, and it was 

sitting there and sitting in Washington and I couldn’t get it 

through, I would be very discouraged. I think it has to have had 

a demoralizing effect on the people out in the field. 

There is still a problem there. I mean, there is still a problem. 

And I guess my question is what can we do, what can you do to 

put more resources on this? 

I just think, Mr. Attorney General, you have got a while to go 

on this, and I just do not think there is anything more important 

that you are doing, and I just think you need to put more resources 

on it and prioritize this. 

Attorney General ASHCROFT. Let me thank you for raising this 

issue. It is a matter of great concern to me. 

The first or second thing that happened to me after I got into office was a call from the FISA Court saying that we needed to renovate the FISA operation. We did, and that was early in the year 

2001. And then when September 11th hit, the demand for FISA 

coverage skyrocketed. It has increased, well, the numbers really 

are not very helpful because we can say, by the number of petitions, by 85 percent, but some of these are very substantial multiple surveillance petitions, so that it does not really reflect the 

true numbers total. 

I think there are a couple of things that we wanted to do, and 

we want to restructure the operation so that we do not have a duplicative effort—one on the FBI side and then have it done all over 

again when it comes to Justice and redone. And we want to be able 

to work promptly by avoiding those kinds of bottlenecks. 

In April of this year, in response to these issues, and part of 

them I think you had written about or conferred with me about, 

as I recall. 

Senator DEWINE. That is correct. 

Attorney General ASHCROFT. We created a special group of attorneys to look at this out of the Office of Intelligence, Policy and Review to cut down on the costs of moving across the street, back and 

forth, to the FBI and moving from the field to Washington, and we 

are making progress. The problem is remediating. We have fewer 

pipeline FISAs now than before, but we are not home yet, and so 

we will continue to work in that respect. 

I have asked, in each of the past 3 weeks, the Chairman of this 

task force for reports, and the reports are encouraging. I would just 

say this, that we are prioritizing among FISA applications— 

Senator DEWINE. I understand you are. 

Attorney General ASHCROFT. —so that at least the most promising of those applications are the ones that would be first attended 

to, but, frankly, it is not easy always to know where you are going 

to get the best intelligence, and it is not a situation where I am 

confident in saying, ‘‘Oh, well, we do not have to worry about that 

one. That might not be as productive as a—’’ 

36

Senator DEWINE. Mr. Attorney General, my time is up, but I 

think that is just the point. I think you are prioritizing, and you 

have to, but I think it is dangerous when you have to prioritize. 

I think you are doing a better job, but all of the information I can 

get indicates that we have still got a while to go. I think you all 

can do a better job, and I just think that you need to put more resources on this, and I would just encourage you to put more resources on this. 

I do not know that there is anything more important that you 

are doing in the war on terrorism, and I do not know how to say 

it any stronger. You have got to put more resources on this. You 

have got to do a better job, and I thank you, sir. 

Chairman HATCH. Thank you, Senator. 

Senator Feingold? 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Mr. Attorney General, welcome. I must tell you I am deeply troubled by this administration’s repeated efforts to misrepresent to the 

American people the true substance of the debate over the PATRIOT Act. As you are well aware, no one in the Senate is suggesting that the PATRIOT Act be repealed. Furthermore, this is 

not, nor has it ever been, about the wall coming down between intelligence and criminal investigators. We all enthusiastically supported that needed change. 

But we do deserve to have an honest discussion about the use 

of the PATRIOT Act so the Congress can decide if it has been 

abused, if it needs to be fixed or if every word of the PATRIOT Act 

should be extended without change beyond the sunset date for 

some provisions almost 18 months from now. 

It has been almost 3 years since the USA PATRIOT Act was 

signed into law, and still the American people do not know how 

some of the most controversial provisions, dealing with roving wiretaps, access to library and book-seller records and sneak-and-peek 

warrants are being used. Three months ago, I wrote to you and 

asked specifically how Section 215, dealing with library records, 

was being used, and I still have not been provided a satisfactory 

response. 

In the meantime, you, the President and others in the administration have been calling on Congress to simply renew the PATRIOT Act, while allowing the deafening silence on how it is being 

used to grow louder every day. We, in the Congress and the American people, deserve better. 

Mr. Attorney General, when can I and others in Congress expect 

to hear the specifics about how the PATRIOT Act is being used, either in an open forum or in a classified briefing? 

Attorney General ASHCROFT. The information is provided to the 

Intelligence Committees and is available to members of the Congress through the Intelligence Committees. We have reported, on 

a regular basis, to the Intelligence Committees about the operation 

of the PATRIOT Act, and we are required to do so in the PATRIOT 

Act. Part of the safeguards of the PATRIOT Act, in addition to 

every activity of the FISA community basically being preauthorized 

by a Federal judge and the fact that we have that kind of screening 

by the Federal Courts in advance, we are required, twice a year, 

to report to the Congress and the Intelligence Committees— 

37

Senator FEINGOLD. General, are you saying that this is not something you will be providing directly to members of this Committee? 

Attorney General ASHCROFT. We do not provide those kind of 

classified reports directly to the Judiciary Committee. We do provide them to the Intelligence Committees. That has been the format for providing and the procedure for providing classified information to the Congress. 

Senator FEINGOLD. General, I am confused. I have been provided 

in the past with some information that I wanted updated of this 

very kind, and I do not understand why I would not get an update, 

for example, on the number of sneak-and-peek searches and the 

use of that. It seems to me that, instead of broader information 

that should be provided at a time when we need the information 

to decide what to do with the Act, the scope of the information that 

I am going to be allowed to look at is narrowing. 

Attorney General ASHCROFT. I am told that that is being assembled for you and that you will be provided with information about 

the implementation of the Delayed Notification Search Warrant 

provision of the act, which I would hope to be able to clarify is not 

a part of the specific antiterror parts of the act, but is simply part 

of the generic criminal law which was added to the act in the passage of it. 

Senator FEINGOLD. Which has surely been cited repeatedly as an 

important tool in the fight against terrorism. 

Attorney General ASHCROFT. It certainly has, but not exclusively. 

Senator FEINGOLD. Mr. Chairman, I hope that we can figure out, 

as a Committee, how this information can be obtained, and whether classified or not, in the context of the Judiciary Committee. Otherwise I do not know how we are going to be able to evaluate with 

the PATRIOT Act as these sunset provisions come up. 

Mr. Attorney General, I also want to make a clarification for the 

record. In discussing the PATRIOT Act with Senator Sessions, you 

stated that roving wiretap authority has been available since 1986 

in the criminal law, and that is true. But the PATRIOT Act gave 

the FBI authority under FISA that is broader than that available 

under the criminal law. The SAFE Act, which I co-sponsor with 

Senator Craig, does not seek to eliminate roving wiretap authority, 

as the administration officials have repeatedly tried to tell people 

it does. It just seeks to put in place protections for innocent people 

that are already present in the criminal law. 

So let me, respectfully, challenge you and your staff to engage in 

good-faith discussion with us about this issue, rather than continuing to assert incorrectly both what the PATRIOT Act does and 

also what the SAFE Act does. 

General Brandon Mayfield is an innocent American citizen who 

was falsely implicated and detained for the May 11th terrorist 

bombing in Spain. But for the fact that he had access to counsel 

and judicial review, Mr. Mayfield might still be in jail today. If held 

as an enemy combatant, Mr. Mayfield would be in a military jail 

without the right to an attorney, and his truthful statements of innocence would be taken simply as failures of his interrogators. 

In the Mayfield case, I am very trouble by what appears to have 

been a rush to judgment by the U.S. attorney. At least 3 weeks before the Government sought to detain Mayfield as a material witVerDate 0ct 09 2002 09:52 Mar 01, 2005 Jkt 098240 PO 00000 Frm 00041 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\98625.TXT SJUD4 PsN: CMORC
38

ness, DOG was already aware that the Spanish police disputed the 

FBI’s conclusion. As you are aware, in the Government’s filings in 

the Mayfield case, one of the explicit reasons cited for detaining 

Mr. Mayfield as a material witness was that the FBI learned from 

an informant that the informant had distributed copies of the 

Koran throughout U.S. prisons and that this version contained an 

appendix called, ‘‘The Call to Jihad in the Koran: Holy Fighting for 

Allah’s Cause.’’ 

The Material Witness Affidavit does not state that Mr. Mayfield 

ever read this Koran, endorsed this version of the Koran, possessed 

this Koran or had ever seen this Koran. Yet, after describing this 

apparently irrelevant reference to the Koran in the affidavit, the 

very next paragraph of the Material Witness Affidavit states that 

surveillant agents ‘‘have observed Mayfield drive to the Bilal 

Mosque, located at 4115 160th Avenue, Beaverton, Oregon, on several different occasions.’’ 

Mr. Mayfield appears to have been singled out for heightened 

scrutiny based on a number of legitimate factors, but also because 

of his religious beliefs. And I do have to say I appreciate, General, 

what you said in your statement about Nashala Hearn, who will 

testify this afternoon in the Constitution Subcommittee. I agree 

with you, that she has a right to wear a head scarf to school, but 

I hope you and the Department would extend the same respect for 

free exercise of religion to those who attend mosques or other 

houses of worship. I would hate to see our Nation become a place 

where simply exercising one’s religious beliefs is a basis for investigation and criminal prosecution. 

So, General, I do not know if you personally reviewed the affidavit before it was filed, but in light of what happened in the 

Mayfield case, what steps have you taken that will assure the millions of law-abiding Muslims in this country that their religion will 

not cause them to be targeted for criminal investigation or prosecution. 

Chairman HATCH. Senator, your time is up, but if the General 

cares to answer. 

Attorney General ASHCROFT. Well, very frankly, I want to thank 

the Senator. I think these remarks are well-taken, especially as it 

relates to Brandon Mayfield. Although I am very happy to discuss 

the SAFE Act and what I consider would be the impairment of our 

ability, for instance, in roving wiretaps for the SAFE Act would require, I believe, that we have an identity for a person before we 

could get a wiretap. And frequently these terrorists are very good 

at concealing their identity and disguising themselves, and there 

are things that perhaps need to be discussed, and you may be willing to do that. 

Let me move to the Mayfield situation. That is an unfortunate 

situation which I regret. Any time any American is detained and 

we later find out that the detention was not necessary for the 

maintenance of public safety and that someone’s liberties were offended, I think that is something to regret. There are inevitably 

times when people are charged and then found innocent. If you 

have a system, you will have circumstances like that. As a matter 

of fact, the pride of our system is that people are found innocent 

because we adjudicate these things. 

39

I would want to assure you that, when the fingerprint came 

from—when we gained access to the fingerprint, we had no identifying characteristics, whether it was male, female, who it belonged 

to. It was only identified to a specific person after the analysis, 

which brought the reason for the identification and the match. So 

that this was not a circumstance where someone colored his or her 

judgment about the analysis. 

I would point out, as well, something that was, frankly, shocking 

to me. It was that the independent fingerprint expert appointed by 

the Court reached the same conclusion. The fingerprint had been 

a photograph from a partial print, and obviously when the real 

print became available and additional analysis was engaged in, it 

was determined, and early in that process, before we actually—

when we learned that the reservations of the Spanish were so substantial, we went to the Court, asked for the release of Mr. 

Mayfield. I understand, though, that he had already been detained, 

and that is a matter to regret. 

In terms of what are we doing to avoid that, first of all, the Director of the FBI has convened a group to try and look and review. 

And, secondly, you asked about what are we doing to assure 

Muslim Americans that their rights are respected. And we have a 

pretty significant history of that. Today’s action, which I mentioned 

regarding Nashala, is not usual. We have investigated over 400 

cases of discrimination that followed the 9/11 plots. We have been 

to mosques. We have helped prosecute cases. We have provided assistance in State and local investigations that have resulted in over 

100 convictions, I believe, and there have been Federal cases that 

have involved convictions of between I would say close to 15 to 20 

cases where discrimination against Muslim Americans. So that we 

have worked together with State and local authorities. There have 

been heinous acts of discrimination, including shootings and things 

like that, arson, and we will continue to do everything we can to 

signal that we believe the religious liberties of individuals of all 

faiths merit our respect and protection, aggressively. 

And to the extent we can continue to communicate that, we will, 

and I would be open to suggestions about how we might do it more 

effectively. 

Senator FEINGOLD. Let me thank you, General, and just say—because I know my time is up—that we are going to be spending the 

entire afternoon here in the Subcommittee on the issue of alleged 

concerns about freedom of exercise of religion in our country. 

This kind of situation that you, of course, apologized for, raises 

a very serious concern about the freedom of exercise of religion on 

the part of many millions of Americans who could easily feel intimidated if we get this wrong, and I am deeply concerned that 

that not happen. But I do appreciate your answer, and I thank you, 

Mr. Chairman. 

Chairman HATCH. Thank you, Senator. 

Senator Specter? 

Senator SPECTER. Thank you, Mr. Chairman. 

Attorney General Ashcroft, I believe that there are many important provisions of the PATRIOT Act; for example, the provision 

which tore down the law between warrants under the Foreign Intelligence Surveillance Act, so that when evidence was uncovered 

40

which was relevant on the trial of a criminal case, that there would 

not be that artificial barrier. There are other aspects of the PATRIOT Act where I have some concerns with respect to the issue 

of showing reasons for exercising the authority which is enumerated in the act. 

There has been a good deal of questioning on the provisions of 

the act, which relate to library books, relate to records, relate to 

other documents. There is an analogous situation as to provisions 

on the detention of aliens, analogous from the point of view of exercising authority where there is probable cause or, articulated in another fashion, very good reason for doing so. 

I raised a question with you back on July 25th at 2002 about the 

detention issue, where there had been a ruling by the immigration 

judge and the Board of Immigration Appeals and that you had the 

authority to overrule both of those boards. And at that time you responded that you had never exercised that authority. 

On April 17th of last year, an issue came before you where there 

was a young Haitian refugee, where there had not been any showing of a problem with respect to terrorism, and you overruled both 

the Immigration judge and the Board of Immigration Appeals. And 

then the Inspector General of the Department of Justice criticized 

the Department for the failure to distinguish between immigration 

detainees who are connected to terrorism and those who do not 

have any reason for detention. 

I would ask you to reconsider the policy so that there is an individualization of what you do. If there is an indication of terrorism, 

probable cause or an articulatable standard for concern, I can see 

that. But it seems to me that the essence of American justice to 

evaluate everybody on an individual basis ought to lead you to a 

different policy than that which you had the blanket articulation 

back on April 17th of last year. 

Attorney General ASHCROFT. If you care for me to make remarks 

about that, I would be pleased to be responsive. 

Senator SPECTER. Okay. I would appreciate that. 

Attorney General ASHCROFT. This was known as the ‘‘Matter of 

D.J.’’ It involved a group of 216 undocumented individuals from 

Haiti and the Dominican Republic, who arrived in Florida in October of 2002. The vessel was one that came into the waters in an 

unauthorized way, evaded Coast Guard attempts at interdiction, 

and many of the passengers attempted to flee from law-enforcement officers before they were apprehended. So here we had individuals whose intention was to come into the United States and remain here illegally. 

Section 236 of the Immigration and Naturalization Act provides 

broad discretion to me as to whether to detain or release such 

aliens pending a final decision on their removal. 

Now, individuals who are willing to come to the United States, 

and many of these people, I admire their initiative and their 

drive— 

Senator SPECTER. Attorney General Ashcroft, I just have 10 minutes. Could you focus on the issue as to whether there is individual 

treatment for that behavior. 

Attorney General ASHCROFT. Well, sometimes individual treatment is important. Sometimes it is important to make a statement 

41

about groups of people that come. If we make a statement that 

groups of people that can come, can just merge into society and will 

not be detained in the United States when they come illegally, one 

of the communications that takes place is back to the country of 

origin: All you have to do is come. Even if they stop you and catch 

you, you will be evaluated as just fine and set loose in the country, 

which is what you had hoped to have happen anyhow. 

And the triggering of mass migrations, which can be very disconcerting, can result from a signal that if you come to the United 

States, you will not be detained. 

I think national security interests have to be considered when we 

are encountering aliens who arrive in large numbers from overseas 

and do so illegally, and that is the basis for my decision. 

Senator SPECTER. Attorney General Ashcroft, a final question. 

There is only 6 minutes here. This is a matter that I wrote to you 

back on November 12th of 2003, and I got an answer from an assistant which was a nonanswer. I will ask that both these letters 

be made a part of the record. 

But it involves a constituent of mine, Allegheny Technologies, Incorporated, which you and I talked about last week. And this involves the clean-up of a site which has tungsten, which is a naturally radioactive material. And my constituent had paid $5 million 

voluntarily and was then asked to pay another $7 million, with the 

prospect of an additional $5 million on an allocation made by the 

Department of Justice which had a conflict of interest, where the 

Department was representing both sides—representing the Environmental Protection Agency and the U.S. Government, which was 

a responsible party. 

And it seems to me that it is fundamentally unfair to have the 

Department of Justice on both sides of the issue with a conflict of 

interest. 

I would ask unanimous consent, Mr. Chairman, that the letters 

that I referred to and a memorandum, dated June 7th, from Allegheny Technologies to me, be placed in the record, which will set 

forth in some greater detail the underlying factors, and I would appreciate a response from the Attorney General. 

Chairman HATCH. Without objection. 

Attorney General ASHCROFT. Well, the case I believe to which 

you refer is the United States v. City of Glen Cove. I think you 

have characterized the case as a consent judgment was lodged with 

the Court to provide an opportunity for public comment. The TDY 

Holdings Company, which is owned by Allegheny Technologies, recently was granted the right to intervene in the case and will have 

the opportunity to participate directly in any Court review of the 

consent judgment. 

And I believe their being at the table allows them to get justice 

in the context of the supervision of the Federal Court. And they are 

represented by counsel, and represented well by counsel. So, for me 

to go beyond that, in this forum, would be, I believe, inappropriate. 

Senator SPECTER. Mr. Attorney General, they had to get leave to 

intervene, and there was an enormous hurdle that they had to 

overcome after the Department of Justice made a finding holding 

them for 49 percent of responsibility, only because they were a 

deep pocket. And where that eliminates obligations by others, inVerDate 0ct 09 2002 09:52 Mar 01, 2005 Jkt 098240 PO 00000 Frm 00045 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\98625.TXT SJUD4 PsN: CMORC
42

cluding the U.S. Government, do you not think it is fundamentally 

unfair to represent both sides in a controversy? 

Chairman HATCH. Senator, your time is up. 

Attorney General ASHCROFT. This case is before the Court at this 

time. For me to comment on fairness or unfairness of it would be 

imprudent, to say the least, in representing the United States. 

Senator SPECTER. Mr. Attorney General, that is not the point. 

A final comment, Mr. Chairman. This is what you did in the Department of Justice. The Court is going to consider the matter really reviewing your discretion. Apparently, they have a disagreement 

because they allowed Allegheny Technologies to intervene. But I 

am asking you a very separate question, not what is pending on 

litigation, but what the Department of Justice did in imposing 

these burdens on my constituent. 

Attorney General ASHCROFT. I will be happy to review this matter. 

Senator SPECTER. I would appreciate it if you would. 

Chairman HATCH. Thank you. 

Senator Schumer? 

Senator SCHUMER. Mr. Chairman, thank you. 

And, Mr. Attorney General, I know this has not been an easy day 

for you, and we respect your being here. But in all due respect, I 

have to say sometimes you are your own worst enemy, and I would 

like to try to interject a note of balance here. 

There are times when we all get in high dudgeon. We ought to 

be reasonable about this. I think there are probably very few people in this room or in America who would say that torture should 

never ever be used, particularly if thousands of lives are at stake. 

Take the hypothetical. If we knew that there was a nuclear bomb 

hidden in an American city, and we believed that some kind of torture, fairly severe maybe, would give us a chance of finding that 

bomb before it went off, my guess is most Americans and most Senators, maybe all, would say do what you have to do. 

So it is easy to sit back in the armchair and say that torture can 

never be used, but when you are in the foxhole it is a very different 

deal. And I respect, I think we all respect the fact that the President is in the foxhole every day. So he can hardly be blamed for 

asking you or his White House counsel or the Department of Defense to figure out, when it comes to torture, what the law allows, 

and when the law allows it, and what there is permission to do. 

The problem is not in asking the question. The problem is not 

with the issues being explored. The problem is there has to be very 

careful guidance, and it should be made public. And most people 

are reasonable and would understand that. If it does not, it has no 

legitimacy. And the penchant for secrecy, the fact that JAG lawyers 

had to release this, is what I think ends up making this issue far 

more difficult or that is what is reported in the papers that JAG 

lawyers might have released this, JAG lawyers, makes it more difficult. 

To me, it is the same thing as what happened in the PATRIOT 

Act. The PATRIOT Act, as it emerged from the Congress, ended up 

being fairly balanced, but people wanted to scrutinize it, as they 

should, as they should with torture, as they should with any of 

these things. Whenever security and liberty are in balance, that is 

43

just the point where the Founding Fathers wanted open and wide 

debate. 

Well, you know, librarians all across this country thought that 

all of the books were being looked at, and it took a year. I wrote 

you letter after letter saying, ‘‘Make it public.’’ Finally, you made 

it public. No libraries had—the provision, I think it was 215, as I 

remember, was not used, but not before large numbers of people 

got into a whole panic. 

So secrecy is the issue here. There has to be open debate, and 

particularly on an issue like this one, which is a sensitive issue, 

which is a difficult issue, which, in our new world where everything is public, makes your job, the President’s job in this difficult 

world, difficult, and I appreciate that difficulty. I really do. I do not 

agree with the ideologues on either side here—far left or far right. 

So I would renew the request that you make these memoranda 

public. If they are not tight enough, if they allow too many loopholes, we certainly do not want torture to be used willy-nilly. We 

do not want, at the whim of a lieutenant, to say, ‘‘Hey, there is security at stake here. We should use it,’’ but we also do not want 

the situation like I mentioned in Chicago to preclude it. But it has 

got to be done carefully. And if it is pubic, and if there is debate, 

you can be sure it will be careful. That is what the Founding Fathers in their wisdom said. 

You said two different things in response to the questions of Senators Kennedy, Leahy and Feinstein. You said you could not release them because they were privileged, but I tend to doubt that 

because they were evidently widely distributed. It is not the President hearing from the counsel. 

Then, you said they could not be released because they are classified. I tend to doubt that because you can redact whatever needs 

to be redacted in terms of classified. Certainly, the balancing tests 

would not be classified because they cannot be terribly specific. 

Why can you not release these documents? We can we not have 

a discussion, in this brave, new post–9/11 world? And Lord knows 

I live with it as much as anybody, coming from the city I do and 

knowing people that were lost. Why can we not start doing these 

things publicly, openly, understanding that there are many different views and coming to a consensus or as close to a consensus 

that we are going to? 

So I renew my plea and the plea of others. Why can you not release these memos? And let us have a debate. Maybe they are not 

100 percent. They are probably not 100-percent right. Maybe they 

are 10 percent, maybe they are 90 percent. We do not know. 

Could you again reiterate to me the specific reasons why these 

memos cannot be made public, and we can take the debate from 

there. 

Attorney General ASHCROFT. I think the reason—and if I did say 

that I was exerting executive privilege—I do not believe I said that, 

and I did not intend to say I was exerting the privilege. I think 

only the President exerts the privilege, and I have not done so. 

Senator SCHUMER. Right. 

Attorney General ASHCROFT. I have stated a reason, and that is 

that the President has a right to receive advice from his Attorney 

General in confidence and so do other executive agencies of GovernVerDate 0ct 09 2002 09:52 Mar 01, 2005 Jkt 098240 PO 00000 Frm 00047 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\98625.TXT SJUD4 PsN: CMORC
44

ment. And this does not mean that there cannot be debate on such 

topics, it just means that the private advice that the President gets 

from his Attorney General does not have to be a part of the debate. 

There is nothing in what I am saying here that would restrain 

debate either in the Congress or in the public about such issues. 

You have given I think a little dissertation on this, and I do not 

mean anything pejorative about that. It is the kind of thing you 

would get in law school. Some professor would toss out the deal, 

and set these things up, and it would be the occasion for the kind 

of give-and-take in a debate which might well be appropriate. 

And I think I commend that kind of debate except when the persons involved in the actual conduct of a war signal the parties to 

the war the entirety of the strategy and understanding of the way 

the war may be conducted. There are times when that is not in the 

best interests. 

And if I may just say this. I know this, that our armed forces 

train our own people to resist interrogation techniques. As soon as 

we know what the interrogation techniques are, we go to our own 

armed forces, and we say this is the way you resist these interrogation techniques. 

Now, for us to advertise by way of a variety of means, whether 

it includes one kind of disclosure or not, exactly the way in which 

we do things may not be the right way to conduct policy at the time 

of war. Senator Biden talked about the fact that there may be 

things that we would do in order to protect and secure the interests 

of our own citizens who are a part of these—our responsibility of 

war. That strikes home at my house. 

Senator SCHUMER. But, sir, you are saying there is no— 

Chairman HATCH. Senator, your time is up. 

Senator SCHUMER. Well, I just want to make this one point. 

Chairman HATCH. All right. 

Senator SCHUMER. And maybe I do not understand it fully. You 

are saying that you are not asserting privilege, but then you are 

saying, when I speak to the President directly, I want to do that 

privately. So you are sort of asserting privilege. 

Attorney General ASHCROFT. I am asserting the need for the Executive Branch to be able to receive confidential advice regarding 

the state of the law as a function of the doctrine of separation of 

powers. 

Senator SCHUMER. But these memos were more pol—they had an 

effect on policy and what happened not just they were not just your 

private advice in a discussion with the President one evening. They 

are far more authoritative than that. Thousands rely on it. And I 

would be happy to— 

Attorney General ASHCROFT. I am not going to comment on the 

documents that you allege provided the basis for a news story. I am 

simply not going to do that. 

Chairman HATCH. Senator Kyl? 

Senator KYL. Thank you very much, Mr. Chairman. 

Welcome back, Mr. Attorney General. I appreciated very much 

not only your oral testimony, but reviewing your written statement 

as well. I regret that I was not here for all of the exchange that 

you had with colleagues. I do not want to dwell on that either, just 

45

to maybe make one quick point, and then get back to something 

I think that is very important. 

Most of us here are lawyers, and we understand the importance 

of getting good, confidential advice from staff, especially legal advice, and it is frequently conflicting. And if it is subject to being 

misunderstood, that is to say that maybe one piece of it gets out 

into the public and is then assumed or portrayed as the totality of 

advice or your conclusion or the decision that the President made, 

then lots of misinterpretations can result. 

And so it does seem to me that the question here is not what a 

particular memo may or may not have said, and I conclude that 

you are not in a position to confirm or deny that that is the whole 

story, but rather what the President’s policy was, what the administration’s policy is. And my understanding, from the very first response to Senator Leahy, was that the President’s decisions and directives are in accord with the law and in accord with the Constitution. I mean, for me, that is the ultimate answer here. Am I incorrect in that conclusion? 

Attorney General ASHCROFT. Well, the President has ordered the 

Department of Defense to treat al Qaeda and Taliban detainees humanely and, to the extent consistent with military necessity and in 

a manner consistent with the principles of the Geneva Conventions, in spite of the fact that they are not parties to Geneva, because we respect those principles. 

Obviously, in terms of the Iraq conflict, where Iraq is a high-contracting party to the Geneva Conventions, the United States is 

bound by those Conventions, both Article 3 relating to prisoners of 

war, and Article 4 relating to civilian population. And that is the 

basis for my indicating the President has issued no order or directive directing conduct that would violate the torture statute or any 

of these other laws which guide our behavior—should guide our behavior, and do guide and have guided our behavior. 

Senator KYL. And I thank you for that. 

And then the second point you made, since Fort Huachuca, in Arizona, is a place where a lot of our military intelligence work is 

done, where people are trained to interrogate prisoners and so on, 

and a lot of the ideas about how to train our soldiers in resisting 

interrogation techniques is analyzed, I think it is worth mentioning 

that to provide a blueprint to potential enemies as to precisely how 

we might go about interrogating them is to give them exactly the 

information they need to know in determining how to resist it. 

There are a lot of stories, and stories in the sense of factual information that has come out of this war on terror relative to professional training that al Qaeda terrorists have gotten on how to resist interrogation techniques. Somebody is training them very well. 

Some of them are very, very good at it, and I take your point that 

it is not useful to give anybody a blueprint as to how we might go 

about interrogating them fully within American law and the Geneva Conventions. 

Can I change the subject, though, and ask you just to comment 

on something that you wanted to talk about here, I think is critical. 

You are perhaps aware that we have introduced a bipartisan bill 

to reinstate all of the provisions of the PATRIOT Act, that is to 

say, to eliminate the sunset provisions, on the theory that the terVerDate 0ct 09 2002 09:52 Mar 01, 2005 Jkt 098240 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\98625.TXT SJUD4 PsN: CMORC
46

rorists are not going to be sunsetting any time soon and that we 

need to continue to pursue them in the same way that we pursue 

other kinds of criminals in our society. 

You detailed, in your written statement, a wonderful list of examples of cases that the PATRIOT Act has been useful for and 

some statistical information about that. I just wanted to conclude 

by asking you, for the American people, to succinctly state why it 

is important for us to retain these provisions of the law that we 

have used temporarily so far, but are permanent in the law with 

respect to bank robbers, and kidnappers, and other kinds of criminals, why it is important to keep these provisions of the law in the 

PATRIOT Act, the act that is now being very useful in going after 

terrorists. 

Attorney General ASHCROFT. It is important because terrorists 

are sophisticated users of technology—the roving wiretap provision, 

which really does not mean you can rove around and tap wires. It 

means you can follow a person from the use of one phone to the 

use of another phone. If a guy gets on his car phone, and then his 

home phone, and then his vacation house phone, and his office 

phone, you do not have to go back to court each time to get a separate order. 

Terrorists have understood that switching phones is a way to 

avoid detection and avoid surveillance. The drug community understood this in the 1980’s and began, and the Congress recognized 

that and gave authority to follow them. We need that same kind 

of robust authority to curtail terrorism that we have to curtail the 

drug traffic. 

Similarly, we need the ability to get business records that would 

tell us where terrorists are. Now, we have had 300-plus administrative subpoena authorities for Federal agencies to be able to ask 

businesses about their business records. 

Shortly after 9/11, we needed to try and find out the whereabouts 

of an individual. We went into a hotel to ask if such a person was 

there. They said, ‘‘We need a subpoena before we can release that. 

It is a matter of corporate policy.’’ Well, going to get a grand jury 

subpoena is a bigger deal than we have had the administrative 

subpoena capacity we have in areas like health care fraud that 

could provide quick information about the whereabouts of a terrorist. 

Those are the kinds of things that make it necessary for us to 

have a robust authority, within the framework of the Constitution, 

as a matter of fact, within the limits that have already been 

reached by other enforcement techniques for other crimes. And for 

us to walk away from those is for us to let down our guard against 

an enemy which is not getting less sophisticated, but is getting 

more sophisticated. 

Senator KYL. Thank you, Mr. Attorney General. I appreciate 

your dedication to this effort and that of all of the people in the 

Department that work with you, and it is good to see you back in 

great health. 

Chairman HATCH. Thank you, Senator. 

Senator Durbin? 

Senator DURBIN. Thank you very much, Mr. Chairman. 

Mr. Attorney General, thank you for being here. 

47

I do not believe what we have seen today is a routine Senate Judiciary Committee hearing. I think a lot of people are following this 

hearing around the world, and they are asking hard questions of 

us and our Government, particularly after Abu Ghraib. 

And I think the questions that are being asked is whether or not 

something has changed in America, whether some of our time-honored commitments have become a casualty of the war against terrorism. The President, and virtually every leader in Congress, has 

assured them that it does not, that we still stand by the same values and principles that we always have. 

But today, Mr. Attorney General, you quote former Justice Murphy, and tell us ‘‘a Nation at war is bound by different rules, rules 

that limit disclosure, rules that expand the powers of the Government and rules that change time-honored standards.’’ 

Notwithstanding the wisdom of Justice Murphy, I think the Supreme Court, in Ex Parte Milligan, should be our guide in commenting on the suspension of habeas corpus by President Abraham 

Lincoln during the Civil War, and this is what the Court said: 

‘‘The Constitution of the United States is a law for rulers and 

people equally in war and in peace, and covers, with the shield of 

its protection, all classes of men at all times under all circumstances. No doctrine involving more pernicious consequences 

was ever invented by the wit of man than that any of its provisions 

can be suspended during any of the great exigencies of Government. Such a doctrine leads directly to anarchy or despotism.’’ 

Mr. Attorney General, you have said you will not disclose these 

memos, and I will get to that point in a moment, but I can tell you, 

frankly, contents of the memos have already been disclosed for the 

world to see. And the contents of the memos call into question your 

statement that it is not your job or the job of this administration 

to define torture. 

Here is a memo by your Assistant Attorney General, Jay Bybee, 

quoted in this morning’s paper, which defines torture as ‘‘must be 

equivalent in intensity to the pain accompanying serious physical 

injury such as organ failure, impairment of bodily function or even 

death.’’ 

Another memo, which you will not disclose, but which has been 

leaked and is quoted this morning, talks about seven techniques 

that the Courts have considered torture. And the memo goes on to 

say, ‘‘While we cannot say with certainty that the acts falling short 

of these seven would not constitute torture, we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law.’’ 

Mr. Attorney General, if that is not a definition of torture coming 

straight out of your Department by the people who answer to you, 

what is it? 

And here is the problem we have. You have said that you are not 

claiming executive privilege. That is for the President to claim. But 

the law is very clear. You have two options when you say, no, to 

this Committee. Either the executive claims privilege and refuses 

to disclose or you cite a statutory provision, whereby Congress has 

limited its constitutional right to information. 

48

So which is it, Mr. Attorney General, is it executive privilege or 

which statute are you claiming is going to shield you from making 

this disclosure of these memos at this point? 

Attorney General ASHCROFT. Thank you for your remarks. 

First of all, let me agree with you as it relates to the value of 

the Constitution, both at war and at peace. I could not agree more 

heartily with you that the Constitution is controlling, and I would 

never suggest that we absent ourselves from the consideration of, 

and adherence to, and complete compliance with the Constitution 

of the United States. And if there is any way in which I have suggested in my remarks today that we would not do that, I want to 

take this opportunity to make it very clear that the Constitution 

of the United States is controlling in every circumstance and is 

never to be disregarded. There is flatly no doubt. 

Senator DURBIN. I respect that. But under which standard are 

you denying this Committee the memos, either executive privilege 

or a specific statutory authority created by Congress, exempting 

your constitutional responsibility to disclose? Under which are you 

refusing to disclose these memos? 

Attorney General ASHCROFT. I am refusing to disclose these 

memos because I believe it is essential to the operation of the Executive Branch that the President have the opportunity to get information from his Attorney General that is confidential and that the 

responsibility to do that is a function of the Executive Branch and 

a necessity that is protected by the doctrine of the separation of 

powers in the Constitution. 

Senator DURBIN. Mr. Attorney General— 

Attorney General ASHCROFT. And for that reason, and that is the 

reason for which I have not delivered to the Congress or the members of the Senate these memos—any memos. 

Senator DURBIN. Mr. Attorney General, with all due respect, 

your personal belief is not a law, and you are not citing a law, and 

you are not claiming executive privilege. And, frankly, that is what 

Contempt of Congress is all about. You have to give us a specific 

legal authority which gives you the right to say, no, or the President has to claim privilege, and you have done neither. 

I think this Committee has a responsibility to move forward on 

this. 

Chairman HATCH. Are these memos classified? 

Senator LEAHY. Is this a side-bar conference on something the 

Attorney General has so authoritatively stated his position on? 

Attorney General ASHCROFT. This is me getting advice which will 

remain confidential. 

Chairman HATCH. That is great. 

Senator LEAHY. I know, but the Attorney General has been 

speaking about these memos so authoritatively, that you ought to 

at least be able to say whether they are classified or not. 

Attorney General ASHCROFT. I have answered your questions. 

The Committee has not made a decision to ask for these memos. 

Senator DURBIN. No, but the Chairman asked you a specific 

question. Are these memos classified? 

Attorney General ASHCROFT. Some of these memos may be classified in some ways for some purposes. I do not know, I do not— 

49

Senator DURBIN. Mr. Attorney General, with all due respect, that 

is a complete evasion. What you have done is refuse to cite a statutory basis for disclosing these memos, refused to claim executive 

privilege, and now suggest that some parts of these may be classified. 

Mr. Chairman, I hope we take this up very seriously because I 

think it gets to the heart of our relationship. The Attorney General 

is an occasional guest here, and we are glad to have him. But I 

think to come here and basically tell us that we cannot see documents from your Department on the basis of what you have said 

this morning is not fair and not consistent with our Constitution. 

Mr. Chairman, since you used a bit of my time, I ask one last 

question. 

Chairman HATCH. I would be glad to give you one. 

Senator DURBIN. I would like to go to the SAFE Act for a moment. And I listened carefully, as you were discussing the SAFE 

Act with Senator Larry Craig, who is a cosponsor, and we discussed the PATRIOT Act. You discussed it with Senator Feingold. 

Attorney General ASHCROFT. I did not discuss anything with 

Senator Craig. It is the one Senator with whom I made no response. He consumed his entire time, and they went to the next 

questioner. So you may have listened carefully, but if you heard me 

talking, you heard something that did not happen. 

Senator DURBIN. Let me acknowledge what the Senator said. The 

Senator said that we were acknowledging what Senator Sessions 

had said earlier, we are going to go through the PATRIOT Act lineby-line, and then your conversation with Senator Feingold abut the 

roving wiretaps. 

Do I take it from what you have said that you are open to a discussion of the PATRIOT Act and whether there are provisions 

which should be revisited and changed? 

Attorney General ASHCROFT. I am prepared to give reasons for 

the administration’s position on the PATRIOT Act in the context of 

a discussion, and I expect the United States Senate to be involved 

in robust discussions about all of the kinds of things it undertakes. 

I cannot imagine that the United States Senate would not be interested in a robust discussion of those kinds of issues. 

Senator DURBIN. Well, you served on this Committee, and in the 

Senate, and understand as I do that the only perfect laws written 

were the Ten Commandments, and occasionally the others need 

amendment. 

I would ask you if you believe those of us who are questioning 

some of the provisions of the PATRIOT Act, do you believe that we 

are playing politics with national security? 

Attorney General ASHCROFT. I have never asserted that, and I 

have no reason to believe it. I have not even considered it. I simply 

have my own beliefs about the act, and I am a little bit stunned 

to hear a question about politics and the act. 

Senator DURBIN. Well, let me say that when we introduced the 

SAFE Act, and I have been on Capitol Hill for over 20 years, it is 

the first time I could ever remember the administration said they 

would veto it, as it was introduced, without a Committee hearing, 

without amendment, without even presenting the bill to the White 

House. And you have charged that the SAFE Act would unilaterVerDate 0ct 09 2002 09:52 Mar 01, 2005 Jkt 098240 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\98625.TXT SJUD4 PsN: CMORC
50

ally disarm America’s defenses, risk American lives and eliminate 

some of the PATRIOT Act’s most critical new tools. 

So, for me, to ask the question of you as to whether or not you 

believe Senator Craig, myself, Senator Sununu, Senator Kerry and 

others, are in some way playing politics with national security, I 

do not think is an unreasonable inquiry. 

Attorney General ASHCROFT. I simply expressed my position that 

I believe that it would be to place the United States in serious jeopardy, to forfeit a number of the protections that are included in the 

PATRIOT Act. I stand by that statement. I believe it would be a 

very unwise course to chart, to retreat from the authorities which 

have made possible the interruption and displacement of terrorist 

activities and individuals involved in them in the United States. 

Senator DURBIN. Thank you, Mr. Attorney General. 

Thank you, Mr. Chairman. 

Chairman HATCH. Senator Leahy has a question he would like 

to ask. 

Senator LEAHY. Mr. Chairman, it is so extremely rare we get the 

Attorney General up here, I wish we actually had time to follow up 

on the questions. 

Chairman HATCH. We will keep the record open, and we will 

allow until Friday, at 5 o’clock, written questions to be submitted. 

Senator LEAHY. And do we have a time for response? Because we 

still have questions out, and it took about 15 months the last time 

to get some answers, and we still have things out there that seem 

to have disappeared in the Justice Department. How long would 

you set for the time for the response to the questions, Mr. Chairman? 

Chairman HATCH. General, how much time do you think you 

might need. 

Attorney General ASHCROFT. Well, that depends. 

Chairman HATCH. You do not know what the questions are. 

Attorney General ASHCROFT. Mr. Chairman, it depends because 

the responsibility depends upon how many questions are asked. We 

have answered about, in the last 15 months, over 800 questions, 

and they average three parts each. That is about close to 2,500 

questions from this Committee. I know that we have answered 

about 80 letters from Senator Leahy, and we work hard to get, in 

addition to the questions that are proposed, the letters that are 

sent. 

We have had about 2,500 letters that we have answered so far 

in this. I believe we are in the 108th now Congress of the United 

States, and so we will do our best to answer with expedition, but 

it depends on how many questions are asked in terms of how much 

resource and capacity we have to answer them. 

Chairman HATCH. I cannot differ with that. Let me just say that 

assuming that there are a reasonable number of questions from the 

Committee, and I suspect most of them will come from the Democrat’s side, we would like you to have your answers back within a 

couple of weeks. Now, if you need more time— 

Attorney General ASHCROFT. Why do we not say this, that if you 

would let us have until the end of June, and if we need more time, 

we will come and explain to you why we need more time. 

51

Chairman HATCH. I think that is fair because I suspect you are 

going to get a lot of questions, and we will give you enough time. 

Senator LEAHY. Mr. Chairman, there would probably be a lot less 

questions, and a lot less letters if these were more accountability 

and cooperation. I know that an awful lot of letters, both mine 

and— 

Attorney General ASHCROFT. You are not the champion. There 

are Republicans who ask more than you. 

Senator LEAHY. —members of the Republican side who do not get 

responses or, if they do, it is after 8 months, a year or sometimes 

longer. There would probably be a lot less, Mr. Attorney General, 

if you actually appeared before this Committee more often, and we 

could actually ask the questions. 

I wanted to compliment you not on not answering Senator Durbin’s question, which you did not answer, but on answering Senator 

Biden’s when you said there was no presidential order immunizing 

torture. I appreciate your straightforward answer to that question, 

and your follow-up with an answer to Senator Kyl. 

However, I would like the same kind of straightforward answer 

to my own ‘‘yes or no’’ question which I asked you earlier. Has 

there been any order or directive from the President with respect 

to interrogation of detainees, prisoners or combatants? 

I should think you could answer either yes or no on that. 

Attorney General ASHCROFT. You know, the President—as a matter of fact, I have it here—the President ordered the Department 

of Defense to treat al Qaeda and Taliban detainees humanely and 

to the extent consistent with military necessity in a manner consistent with the principles of the Geneva Conventions. 

Senator LEAHY. I appreciate that. 

Attorney General ASHCROFT. That means the answer to your 

question at least is yes to that extent. I do not know if— 

Senator LEAHY. Has there been any other order or directive from 

the President with respect to interrogation of detainees, prisoners 

or combatants? 

Attorney General ASHCROFT. I am unable to tell you more than 

that at this time. 

Senator LEAHY. I will submit that as one of the questions, so you 

have a good heads up as to one of the questions for the record. It 

is simply this: Has there been any other order or directive from the 

President with respect to interrogation of detainees, prisoners or 

combatants? It is a pretty easy question. It should have a pretty 

easy answer. I mean, there either is one or there is not. 

Attorney General ASHCROFT. Mr. Chairman, a note just handed 

me indicates that I should correct something that I said to Senator 

Feingold, and I am sorry he is not here. They indicate that we provide, on a semi-annual basis, classified information on Section 215, 

relating to business records, to this Committee not just to the Intelligence Committees. I guess I was confused with the House. 

[Pause.] 

Attorney General ASHCROFT. I guess we are doing it to both 

Committees now. It had been our practice earlier. 

So at least that circumstance is less sticky than we thought. 

Twice a year we provide classified information on Section 215, relating to business records and— 

52

Chairman HATCH. That was my understanding. 

Attorney General ASHCROFT. Well, thank you. I am sorry to have 

misstated that earlier, and I at least am grateful for the—I can correct one of the errors I have made this morning. 

Chairman HATCH. General, I told you that I would try not to 

keep you beyond 12:30—2.5 hours. We have kept you three. 

Let me just say this to you. Naturally, members of this Committee are interested in these very important issues, and I think 

you handled yourself very well here today, but I also fully understand, when you are at war, that it is important to follow the advice of people like former Justice Murphy during the Franklin 

Delano Roosevelt administration. 

We want you to be as forthcoming as you can in response to written questions, but I do understand how difficult it is to answer 

some of these questions during the time of this very unique situation that we have never faced before—a war with terrorists all over 

the world and different groups of terrorists all over the world, in 

addition to Afghanistan and Iraq, and the difficulty of dealing with 

these hidden enemies who basically are trying to undermine the 

very principles of democratic Government around the world, and 

especially in our country, and following 9/11 and the potential of 

perhaps more terrorist activities and destructive activities not only 

around the world, but in our country. 

So I have a great deal of empathy for you in this position. It is 

a tough job, and people can distort what you say. They can fail to 

understand what you say. You have had to be very careful of what 

you have said here today, and I fully understand why, and I think 

any reasonable person who looks at it understands why, too. 

Having said that, our colleagues on the other side will submit, 

and maybe some on this side, written letters and written questions, 

and I hope that you will have your staff and others work with you 

to give us the responses as quickly as you can—hopefully, before 

the end of June. 

And I hope that both sides will be reasonable in their questions 

and not play political games, but really ask questions for the purpose of helping us to defend our country, and our laws, and our 

Constitution, rather than to try to score cheap political points, 

which occasionally happens on this Committee. I know nobody 

knows that, but me, but I sure know it. 

So we appreciate that you have give us 3 hours and 5 minutes 

of your time today. We know that is a long time for any Cabinetlevel official to testify, and we appreciate the way you have testified and those who work with you. 

I appreciate my colleagues. They are all very interesting. They 

are all very, very bright. This is a tough Committee, some say the 

toughest on Capitol Hill. I concur with that. 

I will turn for the last remarks from Senator Leahy. 

Senator LEAHY. Mr. Chairman, first off, I want to compliment 

you on what is a rare appearance of the Attorney General, for giving time for this hearing. I think you have given a lot of time. Obviously, we would like to do follow-ups, but absence of that I would 

ask, one, that we put in the record some of the articles referenced 

here today. I would ask consent for that. 

Chairman HATCH. Without objection. 

53

Senator LEAHY. And, secondly, on a parenthetical issue that has 

nothing to do with the Attorney General or anybody else, I would 

like to raise the issue of the comments that we have to take these 

extraordinary measures because we are at war. I was with President Bush and others at Normandy this weekend looking at the 

graves of the thousands of people who died there. That was a war, 

and that was a time when extraordinary steps, extraordinary sacrifice and extraordinary measures were taken to save this country, 

Europe and the rest of the world. That was a real war. 

We should understand—you, and I and the rest of us here—we 

will face terrorist activities for as long as we live. Some will be effective, some will not be effective. Whoever is Attorney General, 

whoever is President will do their best to fight against terrorists. 

But that is not quite the same, because what I would hope is 

that even though these various terrorist groups, including some 

that may come up years from now that we have never even suspected, may come and go, this country will survive because of its 

Constitution. I would hope the Constitution will live long after all 

of us are gone, and that is a concern, also. Terrorists will strike at 

us. We will defeat them. Eventually, we will, I am sure of it. But 

we defeat ourselves if we do not protect our Constitution and allow 

it to remain alive and well long after every one of us have left office, and long after we have left this earth and gone on to whatever 

may be our eternal reward. 

Chairman HATCH. Well, thank you, Senator, and I want to thank 

you, General. 

I was in Guantanamo just a few weeks ago, went thoroughly 

through all of the procedures there, and I have to say that these 

are difficult times. These are difficult issues, difficult questions, but 

I was satisfied that they were working within the bounds of the 

Geneva Convention, even though they are terrorists down there or 

a significant number of the approximately 600 of them are brutal 

terrorists. And because of the way they are working with them, we 

are getting a lot of very important and useful information, and I 

know that could not occur without the help of the Justice Department. 

So I just want to thank you for all of the hard work you do. I 

know that you have had recent illness, and you have still been willing to come here today, and I want to just personally thank you 

for it and tell you that I think you have done a very good job. 

With that, we will recess until further notice. 

[Whereupon, at 1:35 p.m., the Committee was adjourned.] 

[Question and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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