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90–356 PDF 2003

S. HRG. 107–1016

OVERSIGHT OF THE DEPARTMENT

OF JUSTICE

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

JULY 25, 2002

Serial No. J–107–96

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

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 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington ................ 46

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 32

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 22

prepared statement .......................................................................................... 276

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 4

prepared statement .......................................................................................... 279

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 18

Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin ....................... 25

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 28

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 39

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 43

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 35

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina ........ 284

WITNESS 

Ashcroft, Hon. John D., Attorney General, Department of Justice, Washington, D.C. ........................................................................................................... 7

QUESTIONS AND ANSWERS 

Responses of Department of Justice to questions submitted by Senator Leahy, 

December 23, 2002 ............................................................................................... 55

Responses of Department of Justice to questions submitted by Senators 

Leahy, Durbin, Feingold, Biden and Grassley, July 17, 2003 .......................... 62

Responses of Department of Justice to questions submitted by Senators 

Leahy, Biden, Grassley and Durbin, November 3, 2003 ................................... 149

SUBMISSIONS FOR THE RECORD 

Ashcroft, Hon. John D., Attorney General, Department of Justice, Washington, D.C., prepared statement ....................................................................... 263

Bryant, Daniel J., Assistant Attorney General, Department of Justice, Washington, D.C., letter ............................................................................................... 271

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OVERSIGHT OF THE DEPARTMENT OF 

JUSTICE 

THURSDAY, JULY 25, 2002

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, Pursuant to notice, at 10:03 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Kennedy, Kohl, Feingold, Schumer, 

Durbin, Cantwell, Edwards, Hatch, Grassley, Specter, Kyl, Sessions, and Brownback. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Senator Hatch is on his way, and I know we 

have votes scheduled on the floor. I will begin. Senator Hatch and 

I will give opening statements and we will keep those brief and we 

will then go to a brief statement from the Attorney General. Then 

we will have rounds of questions at 10 minutes each, using the 

early bird rule, after Senator Hatch and myself. Of course, the first 

two members here were Senator Grassley and Senator Durbin. 

Attorney General, we welcome you to the committee. It is the 

first time this year; actually, the first time in more than 8 months. 

I would hope that we might go to a more frequent schedule because 

oversight hearings give us and the American people the opportunity to hear directly from you about the performance of the Department of Justice. Oversight is what makes things work better. 

Today, oversight is even more important than ever, not only as 

a check, but to check whether the actions being taken by the Federal law enforcement agencies under your direction are necessary, 

are warranted, and are going to deal most effectively with the domestic front of the ongoing war on terrorism. 

Last fall when we worked together to enact the counter-terrorism 

bill, I said that with all its new authorizations for Government 

power, oversight of how the law is being used will be crucially important. This committee has worked hard to follow through on that 

belief and that pledge. 

As you recall, the Republican Leader in the House of Representatives wanted to make sure that on some major parts of the legislation we had sunset provisions. I agree with him, but that requires 

us to do constant oversight to determine whether those sunset provisions will automatically take place or whether the laws will be 

extended. 

2

I know that when you were a member of this committee, you too 

appreciated the crucial role of congressional oversight. I recall you 

saying at a hearing in 1999, and I think I am quoting you correctly, 

‘‘I do think that oversight is one of the most important functions 

that we have as a Congress in our constitutional system, and I am 

glad to serve on a committee that takes the responsibility seriously.’’ You were right. I want Attorney General Ashcroft and Senator Ashcroft to feel the same way about this. The committee does 

take its responsibility seriously. We need your cooperation in your 

current role to perform it. 

We worked together in this effort to defend the public safety and 

national security most significantly in the crafting of the USA PATRIOT Act last year, after the horrendous and tragic September 11 

terrorist attacks. The Congress is continuing to work closely with 

the White House in crafting a new Homeland Security Department. 

The product for the American people is a better one when the 

branches of our Government work constructively together for the 

good of the Nation. 

The hard-working men and women who have spent careers at 

the Department of Justice working for the public good have done 

some excellent work. They have endured many long and stressful 

hours, and they have achieved some great successes. I know you 

are as proud of them as we are on this committee, but in evaluating the Justice Department’s performance as an organization, we 

have some concrete facts that cannot be ignored and they can’t be 

rhetorically minimized. 

The fact is that in 2001, the first year of your tenure, the Nation’s crime rate for murder, rape, robbery, aggravated assault, 

burglary, and theft reversed a downward trend and it rose by 2 

percent over the 2000 rate. The murder rate climbed more, up by 

3.1 percent. Our new crime rate reverses 9 years of declining crime 

rates, and that should concern us all because crime is not a partisan issue. All of us are against crime. 

This reversal in the crime rate might suggest that it could come 

about because the Justice Department is focusing primarily on preventing terrorist attacks in the post-9/11 era. But the second fact, 

demonstrated when Department records were obtained under the 

Freedom of Information Act, shows that counter-terrorism efforts 

are not a valid excuse for rising crime. 

FBI referrals for prosecutions of bank fraud, bank robbery, and 

narcotics cases remained virtually unchanged after 9/11. Even after 

9/11, prosecutors in your Department declined 61 percent of international and domestic terrorism cases referred to them by the FBI 

in the 6 months from October 2001 to March 2002. They declined 

61 percent of them. 

The third fact is that before September 11, the Department’s 

counter-terrorism efforts were facing problems, and our bipartisan 

oversight efforts demonstrate that. Part of them were a management issue. When FBI supervisors are banned from appearing before the special FISA court tasked with issuing the most sensitive 

national security-related order, banned even though the law allowed them to be there, when the Justice Department and the FBI 

scramble to come up with new procedures to ensure accuracy in 

presentations to that court, when information technology is so outVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
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dated that critical information such as the Phoenix memorandum 

and other intelligence information is not put together to bolster the 

application for a court order in the Moussaoui case, then we have 

serious management problems. What I am concerned about is those 

management problems in the Department of Justice are still there. 

These counter-terrorism problems were also in part a resource 

issue. Between 1992 and 2000, the number of FBI intelligence officers steadily increased by 357 percent, but in 2001 the number 

started declining, with a 5-percent decrease in that year alone. 

The fourth fact that we have looked at in our committee is that 

FBI requests for certain increases in its counter-terrorism budget 

for fiscal year 2003 were rejected. They weren’t rejected by this 

committee or by the Congress. They weren’t rejected by the White 

House Office of Management and Budget. They were rejected by 

your Department of Justice. 

Press accounts earlier this summer reported that you had turned 

down a $58 million FBI request for counter-terrorism resources in 

the current year’s budget. Actually, the Attorney General’s 31-page 

request to OMB on September 10, 2001, regarding the Department’s fiscal year 2003 budget made virtually no reference to 

counter-terrorism, except in one area, and that was eliminating $65 

million for counter-terrorism equipment grants. 

The request did not recommend the budget enhancements requested by the FBI for foreign language services, counter-terrorism 

field investigations, and intelligence production, (field and headquarters research specialists), which totaled $57 million. A day 

later, after 9/11, the Congress and the White House worked together to supplement the counter-terrorism budget for fiscal year 

2002 with an additional $745 million, but I think opportunities 

were clearly missed. 

The last time you appeared here, you brought an Al Qaeda operations manual to make the point that the war on terrorism is serious and that you take it seriously. I want to make it clear that everybody—the Attorney General, this chairman, the Ranking Member, and every member of this committee—is very much against 

terrorism. There is no more serious business that we deal with day 

in and day out. 

You have taken an oath to support the Constitution, as have I; 

we all have. Al-Qaeda may have an operations manual that serves 

them in the short term. This country has an operations manual; we 

have an operations manual called the United States Constitution. 

It has served us for 225 years. It has served us in good times and 

bad times. It has served us during civil wars and world wars, and 

the only times we have been less than defended is when we have 

ignored the protections of that Constitution. 

We can fight terrorists. We will fight terrorists. All of us will join 

together. All of us were hurt badly last year. But we will do it and 

we will also protect, as we are all sworn to, our Constitution. 

We have a lot to do on behalf of the American people, and it is 

a great privilege to serve and represent the American people. You, 

Mr. Attorney General, are privileged to serve in one of the most important posts in Government. I know you personally and I know 

that you appreciate that privilege and I know you feel honored by 

4

it, as you should. And we are all privileged on this side to serve 

as Senators. 

But someday we will all be gone and you will be gone. There will 

be a different Attorney General, a different administration, a different chairman, and different members of this committee. But we 

want to make sure that what we do here leaves a stronger and a 

better country, a country not only protected by our institutions, 

yours and ours, but by our Constitution. 

Senator Hatch? 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman. I am honored 

to serve on this committee with every member of the committee. It 

is a wonderful committee and there is a lot that gets done here. 

I am pleased to welcome our good friend and former colleague, 

Attorney General Ashcroft, back to the committee. It need not be 

said that these are challenging times for our country. Now more 

than ever, we can fully appreciate the tireless and often heroic efforts of our Federal law enforcement officials, I would say generally 

and, of course, your efforts, General Ashcroft, specifically. 

General Ashcroft, you can be sure that the American public appreciates your leadership at the Department of Justice during 

these trying and anxious times. I want to personally commend you, 

the Department of Justice, and the entire administration for your 

dedication and commitment to ensuring the safety of our citizens. 

We have to look no further than the daily press reports to appreciate the degree to which your efforts are protecting us from terrorist threats. Hardly a day goes by that we do not hear of yet another deadly terrorist attack in the Middle East. We appreciate 

that you are taking every lawful measure in your power to protect 

our citizens from such attacks, and that is important. 

While we applaud you and take great solace in the fact that 

there have been no new attacks in the 10-months since September 

11, we all recognize that we can and must do more to prevent future attacks in our country. The administration and Congress welcomed this challenge immediately following the September 11 attacks. Once the shock, outrage, and numbness were over and wore 

off, we realized that we were living in an entirely new world where 

many aspects of our everyday lives have been changed forever. 

The administration showed leadership by sending proposed antiterrorism legislation to Congress. Congress responded by putting 

aside partisan differences in passing the PATRIOT Act with a near 

unanimous vote in the Senate. This Act provided the Justice Department with much-needed tools to combat terrorism. It was a 

measured response that balanced the need to protect Americans 

with the need to protect Americans’ civil liberties. And despite the 

dire predictions of some extremist groups, the PATRIOT Act has 

created no erosion of the civil liberties that we all hold dear as 

Americans. 

Today, I believe many of us would like to hear about the coordination of the Department of Justice with the recently proposed Department of Homeland Security. After carefully considering the 

input of Congress, academics, and other experts, as you know, the 

5

President proposed comprehensive legislation to create the new department. 

There is little question that this proposal, which will merge components of dozens of Government agencies and departments, is an 

ambitious one, but one that makes sense and will realize efficiencies that should benefit the American people, and people all 

over the world as a matter of fact. 

Government entities that are charged with protecting our country’s borders and infrastructure, assessing threats, and responding 

to national emergencies, all must work collaboratively, effectively, 

and efficiently to prevail in this war on terrorism. 

General Ashcroft, the committee is well aware of how essential 

it is to foster the effective sharing of information both within and 

among Government agencies. Indeed, many of us believe the ability 

to enhance information-sharing within Government is the most 

critical challenge we face, and was the focus of some of the most 

important changes we made when we passed the PATRIOT Act. 

We welcome your comments on this subject. 

I will say, as I have said previously, it is a pleasure to see for 

the first time in a decade a close and cooperative working arrangement and relationship between the Attorney General and the Director of the FBI. It stands as a testament to your leadership at 

the Department of Justice. Without full cooperation and effective 

communication, our country’s ability to respond to the challenges 

posed by terrorist threats would be very severely hindered. 

Since September 11, we have been made aware of a number of 

reforms you have instituted within the Justice Department. More 

recently, you announced amended guidelines that will assist the 

FBI in conducting investigations capable of preventing terrorist attacks. In my view, these guideline changes support, and in fact are 

critical to, the FBI’s reorganization plan. 

While there appears to be bipartisan support for the revised 

guidelines, concerns have been voiced about their scope. It seems 

clear to me, however, that if we are serious about ensuring that the 

FBI can operate proactively and investigate future rather than 

merely past crimes, the FBI must have the ability to do things our 

Constitution permits, like search the Internet, use commercial 

data-mining services, and visit public places. 

Just last week, you invoked authorities granted by the PATRIOT 

Act to secure our borders by requesting the Secretary of State to 

designate nine additional groups as terrorist organizations. In December of last year, the Secretary designated, at your request, 39 

such groups. Groups like Al Qaeda, Hamas, Hezbollah, which enter 

our country to network and raise funds to finance terrorist attacks 

against innocent civilians here and abroad must be kept out of the 

United States. 

You have, in short, been a very busy man, and let me tell you 

right now how much I appreciate your dedication and hard work 

to the nearly endless task that awaits you. Just last week, the Justice Department scored a major triumph in the John Walker Lindh 

case. This week, we learned that the Justice Department has succeeded in obtaining an indictment against five leaders of the Abu 

Sayyaf terrorist group that committed deadly hostage-taking acts 

against Americans and others in the Philippines. Zacarias 

6

Moussaoui, the alleged 20th hijacker in the September 11 attacks, 

has been indicted on death penalty charges and awaits trial in the 

Eastern District of Virginia. 

With each of these cases, this administration, acting through its 

Department of Justice and with the assistance of its allies overseas, sends a strong message to all who commit acts of terrorism 

against Americans. You will be found, you will be prosecuted, and 

you will be brought to justice, is what our message is. 

I also want to applaud you for your aggressive response to the 

crimes of corporate fraud. As each corporate scandal has come to 

light, you and the Securities and Exchange Commission has responded swiftly and effectively. As soon as evidence of corporate 

wrongdoing surfaced at Enron, the Department of Justice established a special task force to investigate those matters. 

Within weeks, Federal prosecutors sought and obtained a grand 

jury indictment charging Arthur Andersen with obstruction of justice. Just last month, a jury convicted Andersen. Without a doubt, 

the Department, under your leadership, has delivered a clear message to the corporate world, just as you have to the terrorist world. 

Abuses will not be tolerated and this Department is not a paper 

tiger. 

Those who question the Justice Department’s and the SEC’s resolve should consider whether some of today’s scandals could have 

been avoided through vigorous enforcement by previous administrations. At a time when too many Americans are questioning 

whether laws or ethics remain present in our board rooms, it is reassuring to know that this Justice Department will not allow corporations that have defrauded investors and employees to walk 

away with a mere slip on the wrist. 

In closing, I would like to extend special thanks to you, General 

Ashcroft, for the degree to which you and Director Mueller have 

been responsive to the inquiries of this committee and to the Joint 

Intelligence Committees. I might have to leave the hearing today 

because of my being on the Joint Intelligence Committees and the 

investigation we are doing there. 

This is your third appearance before this committee since September 11. Director Mueller has appeared here twice and has 

briefed members of this committee in separate sessions as requested. Both of you have made senior Justice Department and 

FBI employees available to address various issues of concern. So 

we sincerely appreciate the responsiveness that you both have 

demonstrated, particularly in this time of war. 

I want to thank members of the committee for the work that 

they have done so far, and I want to thank you for the work that 

you and those at the Justice Department have done. 

Thank you, Mr. Chairman. 

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

Chairman LEAHY. There is certainly no need to ask the Attorney 

General to take an oath and nobody is going to request that. 

Go ahead, sir. 

7

STATEMENT OF HON. JOHN D. ASHCROFT, ATTORNEY 

GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Attorney General ASHCROFT. Well, good morning, Chairman 

Leahy and Senator Hatch and members of the Judiciary Committee. It is pleasing to have this opportunity to see you again and 

to be with you. 

Let me assure the chairman that I do agree with him about the 

value of congressional oversight and my position in that respect is 

unchanged. I seldom quote myself, but I think the quote you chose 

accurately reflects my feelings today, as it did, I guess it was in 

1999. Thank you very much. 

Ten months ago, our Nation came under attack. It was a calculated, deliberate effort in which terrorists slammed planes into 

the World Trade Center, the Pentagon, and a field in Pennsylvania, 

killing thousands. These attacks were acts of war against our Nation and an assault on the values for which we stand, the values 

of equality, justice, and freedom. This unprecedented assault 

brought us face to face with a new enemy and demanded that we 

think anew and that we act anew in order to protect our citizens 

and our values. 

Immediately following the attacks, I ordered a top-to-bottom review and reorganization of the Department of Justice. Our objective was to mobilize the resources of our law enforcement and justice system to meet a single overarching goal: to prevent future terrorist attacks on the United States and its citizens. 

The review found that America’s ability to detect and prevent 

terrorism has been undermined significantly by restrictions that 

limit the intelligence and law enforcement communities’ access to 

and sharing of our most valuable resource in this new war on terrorism. That resource is information. 

Many of these restrictions on information were imposed decades 

ago in order to address the real and perceived abuses of law enforcement and intelligence in the 1960’s and the early 1970’s. In 

the second half of the 1970’s, the pendulum of reform swung beyond correcting abuses into imposing what we now recognize as excessive constraints on our intelligence-gathering and intelligencesharing capabilities. 

In the late 1970’s, reforms were made that reflected a cultural 

myth. It was one that suggested that we could draw an artificial 

line at the border to differentiate between the threats that we 

faced. In accordance with this myth, officials charged with detecting and deterring those seeking to harm Americans were divided 

into separate and isolated camps. Barriers between agencies broke 

down cooperation. Compartmentalization hampered coordination. 

Surveillance technology was allowed to atrophy, eroding our ability to adapt to new threats. Information, once the best friend of law 

enforcement, became an enemy. Intelligence-gathering was artificially segregated from law enforcement, effectively barring intelligence and law enforcement communities from integrating their resources. 

Under the Foreign Intelligence Surveillance Act, known as FISA, 

a criminal investigator examining a terrorist attack could not coordinate with an intelligence officer investigating the same susVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
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pected terrorists. As compartmentalization grew, coordination between law enforcement and intelligence suffered. 

Reforms erected impenetrable walls between different Government agencies, prohibiting them from cooperating in the Nation’s 

defense. The FBI and the CIA were restricted from sharing valuable information. As limitations on information-sharing tightened, 

cooperation decayed. FBI were forced to blind themselves to information readily available to the general public, including information available to those who seek to harm us. Agents were barred 

from researching public information or visiting public places, unless they were investigating a specific crime. As access to information was denied, accountability deteriorated. 

As information restrictions increased, intelligence capabilities atrophied. Intelligence-gathering techniques, created in an era of rotary telephones, failed to keep pace with terrorists utilizing multiple cell phones and the Internet. As technology outpaced law enforcement, adaptability was lost. 

The cultural of rigid information compartmentalization that took 

root in the 1970’s continued, irrespective of changes in administrations, throughout the 1980’s and 1990’s. As late as 1995, we found 

that the guidelines governing FISA procedures were tightened to a 

degree that effectively prohibited coordination between intelligence 

officers and prosecutors within the Department of Justice. 

Based on this review, we concluded that our law enforcement 

and justice institutions, and the culture that supported them, had 

to improve if we are to protect innocent Americans and to prevail 

in the war against terrorism. In the wake of September 11, America’s defense requires a new culture focused on the prevention of 

terrorist attacks. We must create a new system capable of adaptation, secured by accountability, nurtured by cooperation, built on 

coordination, and rooted in our constitutional liberties. 

Congress has already taken the first step, crucial steps to adapt 

our response to changing security requirements. The passage of the 

USA PATRIOT Act made significant strides toward fostering information-sharing and updating our badly outmoded informationgathering tools. The PATRIOT Act gave law enforcement agencies 

greater freedom to share information and to coordinate our campaign against terrorism. 

Prosecutors can now share with intelligence agents information 

about terrorists gathered through grand jury proceedings and 

criminal wiretaps. The intelligence community now has greater 

flexibility to coordinate their anti-terrorism efforts with our law enforcement agencies. 

The PATRIOT Act also modernized our surveillance tools to keep 

pace with technological change. We now have authority under FISA 

to track terrorists who routinely change locations and make use of 

multiple cell phones. Thanks to the new law, it is now clear that 

surveillance tools that were created for hard-line telephones—tools 

like pen registers, for example—these new tools apply to cell 

phones and the Internet as well. 

The recently announced reorganization of the Federal Bureau of 

Investigation is a second way we have risen to meet the new challenges we face. Our reorganization comes in the midst of the largest criminal investigation in United States history and the expanVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
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sion of the FBI Joint Terrorism Task Forces to reach each of the 

56 FBI field offices. 

Our reorganization refocuses the FBI on a terrorism prevention 

mission that is different from the past. Instead of being reactive, 

agents will now be proactive. Instead of being bound by rigid organization charts, our work force will become flexible enough to 

launch new terrorism investigations to counter threats as they 

emerge. 

Management and operational cultures will be changed to enhance this adaptability. Over 500 field agents will be shifted permanently to counter-terrorism. Subject matter experts and historical case knowledge will be centralized so they are accessible to 

field offices, the intelligence community, and our State and local 

law enforcement partners. 

The Counter-Terrorism Division at FBI headquarters will be restructured and expanded significantly to support field offices and 

other intelligence and law enforcement organizations. Finally, we 

will enhance the FBI’s analytical capacity and integrate our activities more closely with the CIA. 

A third way in which we have acted to enhance our homeland 

security is by giving updated guidance to our FBI agents in the 

field. After a meticulous review of the previous Attorney General 

guidelines, which unnecessarily inhibited agents from taking advantage of new information technologies and public information 

sources, revised guidelines were announced in May. These new directions to FBI agents are crafted carefully to correct the deficiencies of the old guidelines, while protecting both the privacy and 

the civil liberties of all Americans. 

Throughout this reform process, the Department of Justice has 

been guided by four values, the four principles that shape and inform our new anti-terrorism mission: adaptability, accountability, 

cooperation, coordination. By following these lodestars, we have 

worked with Congress and we have worked with our partners in 

law enforcement to correct the excesses of the past and to achieve 

a more stable, secure equilibrium in our justice policy. 

The creation of the Department of Homeland Security will prove 

critical to this process of restoring balance to our security policy. 

President Bush has mandated that the new Department of Homeland Security be an agile organization capable of meeting, and I 

quote, ‘‘a new and constantly evolving threat.’’ We have sought to 

achieve greater accountability for our obligation to protect the 

rights of all Americans. 

The proposed Department of Homeland Security would ensure 

that homeland security activities and responsibilities are focused in 

a single department. For the first time, America will have under 

one roof the capability to identify and assess threats to our homeland, to match these threats to vulnerabilities, and to act to ensure 

the safety and security of the American people. All Americans will 

know where the buck stops and with whom. 

We have sought to foster greater cooperation among all aspects 

of intelligence and law enforcement, be they Federal, State, or 

local. The proposed Department of Homeland Security would exemplify a new ethic of information-sharing in Government. FBI Director Mueller put it best, and I am quoting, ‘‘The FBI will provide 

10

Homeland Security the access, the participation, and the intelligence necessary for this proposed department to achieve its mission of protecting the American people.’’

President Bush has called on the Congress and the American 

people to reexamine past practices to reorganize our Government 

in order to confront the challenge that history has placed before us. 

His call echoes that of another President over 100 years ago who 

appealed to Congress and the Nation to rise to the daunting task 

that lay before it. 

‘‘The dogmas of the quiet past are inadequate to the stormy 

present,’’ President Abraham Lincoln told Congress in 1862, just 

before issuing the Emancipation Proclamation. I am quoting: ‘‘The 

occasion is piled high with difficulty,’’ he said, ‘‘and we must rise 

with the occasion. As our case is new, so we must think anew and 

act anew.’’ Securing our homeland is the responsibility with which 

history has charged us. It is the mission which calls us to think 

anew and to act anew in defense of this Nation. 

I thank you for the opportunity to testify today. I look forward 

to working closely with you as we rise to meet this challenge and 

accept this responsibility. 

Thank you. 

Chairman LEAHY. Well, thank you, Attorney General. I would 

note just in passing that such things as—whether we change the 

law or not, you still have to change the way you do things at the 

Department of Justice. Under the old laws, which we may be somewhat critical of, there are a lot of things we can do with today’s 

technology that wasn’t being done. A simple Google search on people’s names, simple address searches, the ability to actually know 

what is in one agent’s computer to another—those are things that 

come in more not as legal changes but management changes. 

The House Select Committee on Homeland Security, which is 

chaired by House Majority Leader Dick Armey, has proposed banning the so-called Operation TIPS program that your Department 

plans to deploy next month. For those who are not aware of it, it 

is a program that enlists thousands, even millions of civilians as 

TIPS informants to report their suspicions to the Justice Department. 

I just want to make sure I know how this is going to work. Apparently, your Department was so overwhelmed that when the 

Phoenix memo came in from trained investigators specifically 

pointing out Middle Eastern people with ties to terrorist organizations who were trying to take pilot lessons here in the United 

States, that couldn’t break through. But now we are going to talk 

about millions of Americans, totally untrained, calling in to this 

TIPS hotline. 

Let me ask you about this. Say a telephone repair person comes 

into your house and sees some pictures around of the World Trade 

Center, sees some books on Islamic terrorism. Let’s say they pick 

up the phone and they report that suspicious information about the 

customer. What does the Department do? Do they send out an FBI 

agent to investigate, do they store the information in their data 

base, do they bring the customer in for questioning, or do they do 

all three? 

11

Attorney General ASHCROFT. I am happy to have you make an 

inquiry about the TIPS program. 

Chairman LEAHY. But given that specific thing, Attorney General, because it is not an unrealistic thing and it is something that 

might happen—somebody is in there and they see a picture of the 

World Trade Towers or they see books on Islamic terrorism—if 

they call that in, what happens? 

Attorney General ASHCROFT. Well, first of all, the TIPS program 

is something requested by industry to allow them to talk about 

anomalies that they encounter, but it does not refer to a program 

related to private places like homes. So the particular hypothetical 

that you have posed is not appropriate to the TIPS program. 

Chairman LEAHY. So a telephone repairman couldn’t call that in? 

Attorney General ASHCROFT. Telephone repairmen have the opportunity, just like you have an opportunity, to call the FBI at any 

time. Any citizen has the opportunity to call the FBI. 

If we are talking about the TIPS program, the TIPS program is 

a program that mirrors a number of other programs that are already existing, similar to Harbor Watch or——

Chairman LEAHY. What you are saying is that that kind of a call 

would not go to the TIPS program? 

Attorney General ASHCROFT. That is correct. 

Chairman LEAHY. OK. Well, then let’s say he is in his office repairing a telephone and he saw the same thing. 

Attorney General ASHCROFT. The TIPS program—and I would be 

pleased to outline it for you—is one of five Citizens Corps program 

that are part of the President’s USA Freedom Corps Initiative. He 

announced that in his State of the Union Address. It builds on existing programs that industry groups have, and because they are 

regularly in the public in routines, they can spot anomalies, things 

that are different, truck drivers seeing things happen that don’t 

usually happen, and the like. This is focused on public places. 

Chairman LEAHY. Well, then, Attorney General Ashcroft, let’s see 

if I can follow this further. Let’s say the truck driver delivers a 

bunch of books to the house on Islamic terrorism and calls it in. 

What happens to the information? I am trying to give a practical——

Attorney General ASHCROFT. Surely. Information provided on the 

TIPS hotline, which is like any of the other hotlines, would be directed to appropriate agencies that might have an interest in the 

information. Now, I would indicate that I looked into this matter 

and there had been some talk of a data base being maintained by 

TIPS. I made a recommendation that TIPS not maintain a data 

base. That recommendation, I believe, will be respected and TIPS 

will be a referral agency that sends information that is phoned in 

to appropriate Federal, State, and local law enforcement agencies 

so that it becomes a clearinghouse for people who see something 

which they think merits attention are able to call in. 

Chairman LEAHY. But would that put that into their data base? 

Attorney General ASHCROFT. The TIPS program——

Chairman LEAHY. No, no, I don’t mean the TIPS program. Again, 

I am trying to do this because you talk about truck drivers, bus 

drivers, train conductors, mail carriers, utility readers, and so on. 

12

Again, using that one example—and this is not a trick question 

or anything; I am just trying to make sure I understand what is 

going on because we are all getting asked questions about this. 

Now, you are saying there will not be a data bank for TIPS, is 

that correct? It is your assurance to this committee there will not 

be a data bank? 

Attorney General ASHCROFT. I have recommended that there 

would be none and I have been given assurance that the TIPS program would not maintain a data base. 

Chairman LEAHY. And who have you gotten those assurances 

from? 

Attorney General ASHCROFT. The individuals who have been 

shaping the program. 

Chairman LEAHY. You don’t want to tell us who that is? 

Attorney General ASHCROFT. I am not sure exactly that I could 

name them, but I just know that I have indicated that there should 

be no data base and the word has come back to me that that is 

a point of agreement. 

Chairman LEAHY. OK. They call this in under this program and 

somebody passes it on to the FBI. Do they put it in a data bank? 

Attorney General ASHCROFT. Well, what the FBI does with data, 

what various agencies do with data, depends on the nature of the 

data. 

Chairman LEAHY. But will this person ever know that this information was called in about them? Keep in mind this person may 

turn out to be the head of Islamic studies at Harvard or something 

like that, or it may be a kid doing his—if you want to confer with 

what is his name here, go ahead, but it may be a kid doing his 

term paper at the University of Missouri. 

And you can understand the concerns. In my State, we love our 

privacy, no matter what party you belong to or anything else. The 

concern I get is will their name go in there somewhere and be in 

a data bank for something that, while it may have looked suspicious, might have a totally innocent example. 

I mean, we did this back in the early part of the last century, 

and under the guise of being vigilant we ended up being vigilantes 

and it was a very, very sorry time in our history. And that was before we had data banks and computers. I just want to make sure 

that if these things are called in, something is not going to happen 

and somebody is not going to suddenly later on get out of college 

and they are applying for a job and they find that they have been 

disqualified because of something that was thrown in there. 

Can you give us assurances on that? 

Attorney General ASHCROFT. I believe I can. The maintenance of 

any records by any party—and, of course, no record is to be maintained by the TIPS organization. So other organizations would 

maintain records in accordance with their current guidelines, law, 

and practice, as they have maintained them over the years. So it 

doesn’t represent any new recordkeeping protocols. 

Chairman LEAHY. But I am concerned about what happens. I 

mean, Americans by and large are going to do the right thing. The 

flight school in Minneapolis contacted the FBI field office because 

they had suspicions. They did the right thing. Unfortunately, not 

much came of it, but they did the right thing. 

13

In the Reid case, you had people who smelled a match or something. Fortunately today, because flights are non-smoking, if you 

light a match, you smell up the whole airplane. I am convinced 

they protected everybody on that airplane and stopped a terrible 

tragedy from happening. 

The Government website that is recruiting these volunteers for 

Operation TIPS says the Government is interested in American 

truckers, bus drivers, letter carriers, train conductors, ship captains, utility readers, and others. What others? 

Attorney General ASHCROFT. Well, what we are talking about is 

individuals who have a regular presence in the culture and would 

be able to witness anomalies, differences. Someone who is regularly 

in the neighborhood notices the presence of a truck parked in the 

neighborhood either doing surveillance or otherwise and wants to 

say, you know, that is strange, maybe we can get this referred to 

someone who might be able to make a difference in helping curtail 

some threat. So you have the ability of people who have a regular 

perception who understand what is out of order here, what is different here, and maybe something needs to be looked into. 

It is with that in mind that this program would, I believe, provide a basis for getting information to people who could make a difference with it. I would indicate to you that one of the things we 

are doing at the Federal Bureau of Investigation, for instance, is 

improving our ability to handle information that comes to us and 

to make judgments in regard to it. The entire new section on analysis of intelligence that comes into the Bureau is designed to help 

us take advantage of information in ways that we didn’t take advantage of it. 

Chairman LEAHY. Well, let me speak to that because your Department says it plans to recruit a million volunteers in the ten cities where this pilot program is going to take place. But your Department also says that the FBI will take up to 3 years to get their 

computer system into the 21st century, and 3 years in computer 

time is a long, long time. 

We know what happened before 9/11, where critical information 

that was sent to your Department never went anywhere. So if it 

is going to take you 3 years to get up to date where you can handle 

the information from your trained investigators, are you going to 

be able to collect and analyze tips submitted by one million informants, plus whoever else this comes to? 

The reason I worry, and I think the reason that Congressman 

Armey and others—and this sort of goes across the political spectrum—worry is we saw in the 1960’s where the FBI had a ghetto 

informant program to recruit people to watch their neighbors because they may be involved in political protest activity. 

In 1917, the Department of Justice formed the American Protective League, which had volunteers to report on people who might 

criticize their Government. Sometimes, they turned into vigilante 

groups that raided newspaper offices, and they actually tarred and 

feathered some people. 

That is why I say we can be vigilant, but we don’t want to be 

vigilantes. I just want to make sure that this is protected. And you 

say they are not going into people’s homes, but the parcel post 

14

deliverers do go into the homes, or at least step in the door, and 

they are being asked to be recruited. 

The cable people and all these others are being asked to be recruited. They sometimes have far more access to your home than 

any law enforcement can get with a search warrant. What I am 

very, very concerned about with this is we don’t end up with a data 

bank of innocent activity at a time of justifiable concern, and it is 

justifiable. I mean, I don’t doubt for a second your concern about 

terrorists and your dedication to stopping terrorism. I don’t doubt 

that for a second. 

But in doing that, let us not have a situation where someday 

when somebody is going in for a VA loan or they are going in for 

a job or whatever else, somewhere in this data bank a suspicious 

activity was reported because somebody didn’t like their dog barking in the middle of the night, didn’t like the political shirt they 

were wearing, didn’t like the music they listened to, or whatever. 

I think you share my concerns. I hope you share my concerns. 

Attorney General ASHCROFT. May I assure you that I do. 

Chairman LEAHY. Thank you. 

Attorney General ASHCROFT. Your concern about the data bank 

was one which, when I looked at the program, I thought to myself 

the other organizations that operate, the law enforcement organizations, all have policies that are well understood, that have stood 

the test of time. 

I simply recommended that there not be a data bank maintained 

in the TIPS program, that we have in these other areas which have 

these refined protocols that clearly understand the need to defend 

civil liberties—that any responsibility of TIPS simply be to refer to 

those agencies. In that respect, I think that puts us back into the 

conventional law enforcement context where we have safeguards. 

The administration in this particular circumstance is responding 

to an industry request that we have uniform reporting opportunity 

for people in various settings. Some of the things have gone beyond 

what the administration proposed. The administration never proposed cable installers, and that is part of just the apocrypha or the 

extra information that gets developed here. But I agree with you 

that we don’t want a new data base. I have recommended that 

there not be one and I have been assured that we won’t have a new 

data base here. 

Chairman LEAHY. Well, actually, from the Citizen Corps, the 

website, I took that. It talked about truck drivers, bus drivers, 

train conductors, mail carriers, utility readers, and others. That is 

where I get that. 

Attorney General ASHCROFT. Yes. I made a remark about the 

cable operators because I have recently had cable folks in my 

house. You said cable operators and I said for sure I don’t want 

them, and I looked on the list myself and found they weren’t ever 

a part of the proposal. 

Chairman LEAHY. I hope you get better cable service than I do. 

Go ahead, Senator Hatch. 

Attorney General ASHCROFT. I have told them that if I didn’t get 

better service, I was going to call you and complain. You mean it 

won’t help? 

Chairman LEAHY. It hasn’t helped me. I will call Senator Hatch. 

15

Senator HATCH. General, I share some of the concerns about the 

TIPS program. But just so we understand what you are trying to 

do, in the aftermath of the Oklahoma City bombing, the FBI, as 

I understand it, received thousands of phone calls, especially with 

regard to the identity of John Doe 1 and John Doe 2, that they 

took, and those were the sketches that they had of John Doe 1 and 

John Doe 2. 

Now, is that the type of law enforcement that you are talking 

about here, taking those calls, following up on them, seeing what 

you can do, trying to get to the bottom of terrorist activities hopefully even before they start? 

Attorney General ASHCROFT. Yes. The effort obviously following 

the explosion of the Murrah Building in Oklahoma City was an effort to find the perpetrators and to reassemble the evidence necessary to provide a basis for a conviction that would lead to justice. 

Really, what we are looking for now is to take a step in prevention. So anybody who sees things that are out of line that can help 

us prevent an attack by identifying something that might be worthy of our advance preventive activity and inspection in advance, 

we are asking for that kind of information as well. 

Industry groups such as those kinds of groups like Highway 

Watch and Coast Watch that have involved industry groups before—they have suggested that a uniform reporting opportunity 

would be appropriate and that is what this TIPS program is designed to provide. 

Senator HATCH. As I understand it, John Walsh, of ‘‘America’s 

Most Wanted,’’ has endorsed the TIPS program. How would this be 

any different from what he is trying to get, and that is people calling in to help find children who have been abducted under the 

Missing Children’s Act that we have all worked so hard on in this 

committee and in the House as well? 

Attorney General ASHCROFT. Together with Walsh, the American 

people may be the best law enforcement organization we have because they solve some very important crimes. It just so happens 

that today, in the USA Today newspaper, he endorses this program 

and concept in an editorial, which I think suggests that this is 

something every citizen can do to make America safer. 

I think we have long understood that people have a real role to 

play in a democracy in a variety of settings, including in crime control and terrorism prevention. You don’t have to move to live in a 

safer neighborhood. There are things you can do, and the people 

who are regularly present in our culture in various settings, if they 

see significant anomalies, we want them to be able to have an easy 

way to report those so that we can take steps to secure people. 

Senator HATCH. Thank you. Your comments about not having a 

data bank, names, has been very reassuring to me because we are 

all concerned. We don’t want to see a 1984 Orwellian-type situation 

here where neighbors are reporting on neighbors. We want to make 

sure that what this involves is legitimate reporting of real concerns 

that might involve some terrorist activity. 

Now, General Ashcroft, some of the same left-wing Washington 

groups and their allies who have been smearing the judicial nominations have you in their cross-hairs as well; at least that has been 

my impression. No matter how successful you are in protecting the 

16

American people from harm, while respecting civil liberties, you 

will be criticized for the effort. 

There is no way that the Fourth Amendment is going to be set 

aside, or other constitutional provisions, is there? 

Attorney General ASHCROFT. Well, no. Not only do I not have the 

authority to amend the Constitution, I don’t want to amend the 

Constitution. I think it has served us well. 

I have told the members of the Department of Justice to think 

outside the box, to think of new ways to help, but never think outside the Constitution. That has been the direction. You have got to 

think in new ways in order to avoid old things from happening 

again. Whatever your system is that allowed something to happen 

before, if you don’t change your system it might happen again. 

So we are trying to think of new ways and providing the basis 

for the right kind of information exchange between the CIA and 

the FBI, law enforcement, and intelligence. Leadership in that respect was taken by the Congress very early. Those kinds of ideas 

are the kinds of things that we are doing to improve our security. 

Senator HATCH. I have been watching some of the criticisms of 

you in the press and elsewhere. No matter what you do, you are 

criticized, and I guess that is part of this thankless job that you 

have. But I want to speak for the American people in expressing 

the profound gratitude that we feel for the job you are doing. 

I just want to explore a few areas of traditional crime and law 

enforcement that I find critically important. First, in the area of 

civil rights enforcement, I want to congratulate you. Many are concerned about recent reports of police brutality, so I want to commend you for sending Ralph Boyd out there to California over the 

recent problem out there where this young African American boy 

was slammed into the car and punched. 

Attorney General ASHCROFT. The Inglewood situation. 

Senator HATCH. I think that is important to do that, but what 

other steps have you taken to address the issue of police brutality? 

Attorney General ASHCROFT. Well, we have been aggressive in 

this respect. For instance, in the Inglewood situation the Community Relations Service and the FBI were there very early. I personally called Mayor Dorn and I asked him if he would be pleased to 

receive the Civil Rights Division Chief of the Justice Department 

there. 

We sent them there, with a view toward finding a way to solving 

the problems and changing any situation, if it exists, that is systemic or institutionalized so as to make sure we respect every 

American and that police operate within the appropriate limits of 

their responsibility and authority. We have done that in a number 

of instances and with some success, for which we are grateful. 

You will remember a little over a year ago, the city of Cincinnati 

was racked with violence related to a police situation there, and by 

going and working hard with all parties to find a solution, within 

a year’s time we had all the parties jointly come together, announced the changes that would be made, provided a structure for 

monitoring the success, so that we have a new plan, a new paradigm, a new way of working together in Cincinnati. 

We hope that that model of being very quick to respond and 

working with all the parties together can get us to the place we 

17

want to be, where people are treated with respect and human dignity, and the police have the opportunity, right, and responsibility 

to operate effectively, but there aren’t abuses which might curtail 

the liberties of individuals. 

Senator HATCH. Up until now, the FBI has been the law enforcement agency most responsible for identifying and preventing terrorist attacks in this country. As you know, Congress is moving 

quickly to establish a new Department of Homeland Security in response to the President’s request. 

Do you see the FBI’s role in terrorism investigations changing 

with the creation of this new law, and if so, in what way would 

that process work? 

Attorney General ASHCROFT. Well, certainly the FBI’s role in investigating terrorism is a changing role. The restructuring of the 

FBI itself is substantial: the reallocation of 500 agents to the 

counter-terrorism portfolio, the construction or development of a 

special analysis section to do a better job of taking the information 

we get and making sure we connect the dots. The chairman made 

reference to the need to be able to connect and integrate information we get. It is a very important need. Director Mueller has 

reconfigured the agency with that in mind. 

We are redoing the computer system, something the chairman 

also mentioned, and we want the computer system to be not only 

a modernized system, but we want it to be able to communicate 

with some of the other agencies in counter-terrorism which previously we haven’t either had the authority to communicate with 

or haven’t communicated with well. 

Even the reports that are developed at the FBI have been in a 

different format, for example, than reports developed at the CIA 

and other intelligence agencies. I think it is important for us, if we 

are going to be sending reports and information into the new Department of Homeland Security for use by that department, that 

we have a format which is consistent with information provided 

and the format in which information is provided in other agencies. 

So there is this massive undertaking of developing the right communications capacity, the right analysis capacity at the FBI. Yes, 

it will continue to be the chief domestic intelligence agency, but it 

is a retooled agency with a capacity to communicate more effectively with other agencies. It is a retooled agency with a vastly enhanced analytical capacity. 

Then one other thing I would mention is the new guidelines provide a substantially enhanced capacity to gather information. You 

have to have improved gathering, you have to have improved analysis, you have to have improved communication, and those are the 

three cornerstones of the retooled FBI. 

All of those things are things that are underway and we believe 

the FBI will serve America much more effectively as a result of 

these important reforms that Director Mueller has instituted. 

Senator HATCH. Thanks to the chairman. He has allowed me to 

ask just one more question. I would like to ask this one because 

my time is up. 

You have played a central role in revamping the FBI’s antiquated investigative guidelines. That has been important to me. I 

understand that these guidelines routinely prevented the FBI from 

18

taking the initiative to detect and prevent future crimes, as opposed to investigating crimes that had already occurred. 

Our country, of course, expects much from the FBI. We are not 

content for your agency to solve an act of domestic terrorism after 

it has occurred. Are you satisfied that the new guidelines provide 

your agents with enough leeway to proactively investigate crimes 

that might occur, and are there any tools that Congress can provide to help increase your prospects of preventing terrorist attacks? 

Attorney General ASHCROFT. Well, the new guidelines substantially improve a couple of things. We have learned, for example, 

from the circumstances that have been cited, some that the chairman cited. 

For instance, the new guidelines allow cases both to be opened 

and extended by people at the local level, where they know best 

what is happening. The new guidelines allow agents to be able to 

get information on the Net, to the extent that information is available to the public on the Internet. Use of the Internet is something 

the chairman also mentioned. The new guidelines allow agents to 

go to public places. 

I believe that those are substantial enhancements, and frankly 

I would look forward to working with the committee to develop additional ideas or responses. I don’t believe we are ever going to be 

able to sit back and say, well, that is that, we are perfect now and 

we need not make adjustments. I want always to be in the idea 

business, to see if there are ways that we can improve our response 

to the threats. 

Senator HATCH. Thank you. Thank you, Mr. Chairman. 

Chairman LEAHY. The Senator from Utah speaks of the left-wing 

smear groups that seem to be attacking you. 

Senator HATCH. My, but you are sensitive. 

Chairman LEAHY. I assume he meant Grover Norquist in the 

New York Times yesterday. 

All the more reason, Mr. Attorney General, that we want you to 

actually come to some of these oversights because I think you are 

the best spokesman for you and you should be able to be here. 

Senator Kennedy? 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. General, welcome. Just quickly in regards to 

the TIPS program, my committee is the committee that has the responsibility for drafting the President’s voluntary program. To my 

knowledge there is no language proposed by the administration 

that would authorize the TIPS program. 

I think anyone that has information with regard to terrorist activity should report it to law enforcement. We all ought to encourage that, but the idea of encouraging this country to have neighbors spying on neighbors is not the spirt of volunteerism to be advocated. It seems to me that there are better ways to use funds in 

the law enforcement area. 

You speak of TIPS being authorized under the President’s voluntary program. It hasn’t been submitted. It is not there either in 

our committee nor in the appropriations. So I don’t know where 

you believe it to come from, but I invite your legislative people to 

19

work with us to try and find it because we don’t have any record 

of it. Further, I think it is inconsistent with the concept of what 

the President has outlined in terms of volunteerism, regarding people giving something back and making a difference in their community in contrast to what this program seemes to be about. 

But let me go on into some questions with regard to a favorite 

topic of yours, and that is guns. The last time you appeared before 

the committee, which was in December 2001, I asked you about the 

Justice Department’s refusal to let the FBI examine the background checks of the 1,200 people detained following September 11 

to determine whether any of them had recently bought guns. 

You responded that the law which provided for the development 

of the National Instant Check System indicates that the only permissible use of the National Instant Check System is to audit the 

maintenance of that system, and the Department of Justice is committed to following the law. 

However, a report issued Tuesday by the General Accounting Office includes a legal opinion by your own Office of Legal Counsel, 

dated October 2001, that contradicted your later assertion about 

the law. The legal opinion stated, ‘‘We see nothing in the NICS regulation that prohibits the FBI from deriving additional benefits 

from checking audit log records, such as assisting in the investigation of the September 11th attacks, as long as one of the genuine 

purposes for the checking is carried out as permitted—the purpose 

of auditing the use of the system.’’ The Office of Legal Counsel further observed that the FBI had been using this method of checking 

the system all along. 

In light of the legal opinion written by your own staff, I simply 

can’t understand why the Department decided to reject the FBI’s 

request to investigate the gun purchases by suspected September 

11th terrorists. 

Attorney General ASHCROFT. The OLC opinion that was cited in 

the GAO report, stating that information derived from genuine 

NICS audits can be used to further other law enforcement purposes, is consistent with my testimony to the Senate Judiciary 

Committee last December 6 that the only recognized use now of approved purchase records is limited to an auditing function. 

The purpose of any use of the records is auditing. If there are 

incidental law enforcement items that flow from the auditing, 

under the Brady law, then those can take place, but you cannot 

enter the records for other purposes. 

Senator KENNEDY. You are saying that they cannot be used to investigate whether the terrorists violated the gun laws? Is that 

what you are telling us? Is that what you are saying? 

Attorney General ASHCROFT. I am saying that information that 

comes available incident to an audit can be used for other law enforcement purposes. 

Senator KENNEDY. Let’s talk in practical terms. Are you saying 

that the FBI couldn’t look through that information to find out 

whether or not those terrorists bought guns? 

Attorney General ASHCROFT. I am saying that the FBI——

Senator KENNEDY. You didn’t have the authority. Is that what 

you are saying? 

20

Attorney General ASHCROFT. The FBI does not have the authority under the Brady law to use those records for criminal investigative purposes. The GAO report citing the OLC opinion indicates 

what is also true that if, in the auditing process, items of a criminal nature become available, then those can be pursued. But the 

law provides that the purpose for the maintenance of the records 

and the use of the records is for auditing purposes. 

Senator KENNEDY. Well, General, if you are representing here to 

the committee that it is your legal judgment that the Federal Bureau of Investigation could not use those records to go back and 

find out whether these terrorists bought guns—do I understand 

that that is your legal opinion, in light of what your own legal staff 

has recommended? Is that what you are telling this committee 

today? 

Attorney General ASHCROFT. My opinion is——

Senator KENNEDY. Yes or no? 

Attorney General ASHCROFT. My opinion is that the authority to 

use those records is for audit purposes, and incidental things discovered in the audit for law enforcement may be pursued, but you 

cannot use those records for purposes other than auditing. 

Senator KENNEDY. They cannot be used in investigating whether 

the terrorists had guns? Is that what you are trying to tell us? 

Let me go on. In the GAO report that studied what the effect on 

law enforcement would be if the Justice Department implemented 

your proposal to reduce the current requirement for retention of 

background check records from 90 days to 1 day, it found that a 

next-day destruction would prevent law enforcement from investigating transfer of guns to prohibited persons, such as convicted 

felons or persons guilty of domestic violence. 

It also found that the policy would eviscerate the FBI’s ability to 

retrieve guns that were sold illegally. It observed that between 

July 2001 and January 2002, the FBI used retained records to 

identify 235 illegal gun sales. Only 7 of those 235 sales would have 

been caught under your next-day destruction policy. 

Doesn’t this report show beyond dispute that your proposed policy would be removing an important tool of law enforcement, undermining the public safety? Shouldn’t that idea be scrapped and 

the 90-day retention be observed? 

Attorney General ASHCROFT. Senator, I am very pleased to address this issue. The GAO report acknowledges that by modifying 

our audit procedures so that they are conducted on a real-time 

basis, we will not lose any of the basic audit capabilities. In fact, 

the changes will improve NICS audits by catching errors more 

quickly. 

There is a way for us to use the records which are maintained. 

It is the records of personal identification that are not maintained, 

and the records that are maintained can be used to detect illegal 

purchases and to go back through the records that are maintained 

by the gun dealer to allow ATF and enforcement agencies to correct 

those situations where guns were illegally purchased or inappropriately purchased. 

So I believe that the system that we have proposed honors completely the requirements of the Brady law, and by using the nonVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
21

personal information that can be maintained we can go back and 

handle those 230-some cases that the GAO has referenced. 

Senator KENNEDY. According to the GAO: ‘‘Also, a next-day destruction policy could lengthen the time needed to complete the 

background checks and place additional burdens on law enforcement agencies, including State and local courts.’’

Let me ask about another issue. As you know, the Government 

of the District of Columbia is supervised by the Congress and local 

crimes are prosecuted by the Justice Department. D.C. law effectively prohibits anyone other than law enforcement officials from 

owning a handgun. In addition, rifles and shotguns are carefully licensed. 

As a result of your views on the Second Amendment, as set forth 

in your May 2001 letter to the National Rifle Association and subsequently adopted as official administration policy, scores of defendants in D.C. courts have filed briefs challenging the constitutional D.C. gun laws. 

To this point, the administration has refused to say whether it 

thinks these laws are facially unconstitutional or not. One Federal 

defender has described the administration’s court filings as ‘‘basic 

and anemic to the point of unconsciousness.’’

Can you give us a straight answer today on this issue? Will the 

administration protect the safety of the District of Columbia’s residents by zealously defending the constitutionality of its gun laws, 

or will these laws fall victim to the administration’s Second 

Amendment ideology? 

Attorney General ASHCROFT. The administration will defend all 

Federal guns laws, the laws which it has the responsibility to defend, and will seek to defend them effectively with full vigor and 

energy in court. 

Senator KENNEDY. I would now like to move on to another issue, 

that of immigration. In April, the Justice Department announced 

that it supported a legal opinion stating that State and local police 

officers have the inherent legal authority to arrest people on civil 

and criminal immigration law. Since then, you have made various 

statements indicating that the Justice Department has accepted 

this opinion and is moving forward to implement it. Yet, the Justice Department has refused to make public the text of the opinion. 

This is obviously of enormous concern to local law enforcement 

officials, who already are feeling overburdened by the pressures 

that are being put on them to deal with the challenges to law enforcement. It seriously undermines the ability of these departments 

to establish working relationships with immigrant communities 

and deters immigrants from reporting acts of domestic violence and 

other crimes. 

In light of these concerns, do you still intend to issue this legal 

opinion, and if so, why has the Justice Department refused to provide Congress and the public with a copy of the opinion? 

Attorney General ASHCROFT. No opinion has been issued and it 

would be inappropriate for me to comment on an opinion that has 

not been issued and on whether or not an opinion exists, whether 

that is alleged to exist but has not been issued. 

I would say this, that on June 6, as part of an announcement regarding the national security entry/exit registration system, I statVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
22

ed that the Immigration and Naturalization Service would enter 

into the NCIC—that is the National Crime Information Center—

information on specific aliens who pose a national security risk or 

have broken registration rules. 

We believe it would be appropriate for local law enforcement, 

when they encounter someone who is listed in the National Crime 

Information Center’s list as being individuals that are to be apprehended, for them to apprehend those individuals in conjunction 

with the Immigration and Naturalization Service. And to that extent, we would like to have the cooperation of State and local authorities. 

Senator KENNEDY. My time is up, General. I just want to indicate in regards to the Civil Rights Division, that we had a hearing 

about the enforcement of civil rights and we wrote to the Department. We had Assistant Attorney General Boyd and we submitted 

a series of questions which have not been answered. If you would 

be good enough to take a look at it. 

Attorney General ASHCROFT. That is the June 19 letter. I believe 

I am aware of it and we are working on a response, unless I have 

another letter in my mind. 

Senator KENNEDY. It was a May hearing, but the 19th is the date 

of the letter, yes. We would appreciate it very much if we could receive the answers in a timely manner. 

Attorney General ASHCROFT. Thank you. 

Senator KENNEDY. Thank you. 

Chairman LEAHY. General, I rather flippantly referred to Dan 

Bryant, who very appropriately was trying to hand you something. 

Both Mr. Bryant and Pat O’Brien have worked extraordinarily 

hard and we do appreciate it. 

Attorney General ASHCROFT. I think your remarks about them 

were the nicest things I have ever heard said about them. 

Chairman LEAHY. Well, I don’t know what you say to them on 

the way back, but they work very hard and I didn’t want in any 

way to be indicating that we don’t appreciate how hard they do 

work for you and the Department. 

Attorney General ASHCROFT. Thank you, and for America. 

Chairman LEAHY. Thank you. 

Senator Grassley? 

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Before I turn to my questioning, I want to 

make an observation from just the exchanges we have had. I see 

a certain inconsistency and a certain irony in the questioning from 

the committee’s majority on TIPS and on records of people that 

own guns. It seems like we have heard some serious privacy concerns about the FBI receiving voluntary tips from private citizens 

about what suspicious things these citizens might see in public 

places. 

But these people on the other side of the aisle seem to think that 

the FBI should look freely through gun records that are kept private under our law. This is an inconsistency that seems to be more 

about restricting the right of Americans to bear arms than proVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
23

tecting our country. I would just observe that. And I think it is 

very clear, so maybe I don’t have to point out the observation. 

Mr. Attorney General, I am going to refer to a letter that you 

have answered, a letter with some questions that weren’t answered, so you know where I am coming from. But I want to give 

some background so that I can show I am not picking on General 

Ashcroft, as opposed to Clinton or previous Bush or previous 

Reagan Attorneys General. I have been fairly consistent in observing bureaucratic dialog on the False Claims Act and fraud. 

In the early years of the 1980’s, I observed the Department of 

Defense trying to influence the Justice Department not to prosecute certain Defense contractors. I even saw recommendations 

when there was a small settlement with, I think, Sperry Rand, 

which company I don’t think exists today, that something be settled in a very small way with a global settlement that everything 

that was pending against that company at that time would be absolved, and it was by the Justice Department. All of this brought 

us to the passage of the False Claims Act of 1986. 

Now, we probably still have problems with the Defense Department, but I have been concentrating more on fraud within Medicare and the use of the False Claims Act in that area. So that is 

the background of where I am coming from over a long period of 

time. 

I appreciate your agency’s initial response to my letter of June 

25. I was pleased to hear that it has been and will continue to be 

the position of the Department of Justice that under appropriate 

circumstances there may be liability under the False Claims Act for 

alleged kickback violations. I was especially pleased to hear that 

you continue to fight health care fraud and abuse diligently by investigating and prosecuting kickback violations under the False 

Claims Act. 

This Act is the Government’s most potent weapon in the war on 

fraud and abuse, and I would appreciate your assurances here 

today—hence my first question—that you would intend to continue 

using the False Claims Act to punish wrongdoing to the fullest extent of the law. I think your letter said that, but I still would like 

to ask you. 

Attorney General ASHCROFT. Yes, sir, the letter reflects the commitment of the Department. 

Senator GRASSLEY. OK. Now, as pleased as I am with the Department’s position, I am disappointed that other more detailed requests for documentation on June 25 to Mr. McCollum were entirely unanswered. I asked for a variety of documents, employee 

lists, case files, and received none. It seemed to me that Mr. McCollum’s letter kind of read like ‘‘look at my seven questions.’’ He answered one and then said kind of take my word that we are going 

to be making sure that this law is fully enforced. 

Now, I followup by saying that I want to follow President Reagan’s advice, ‘‘trust but verify.’’ I am submitting a copy of my letter 

for today’s record, and ask that you do just that, verify your assistant’s response by providing the documentation requested, and do it 

in a timely fashion. 

24

I would like to make reference to what I am asking about so that 

my colleagues know. And if any of my colleagues do not think this 

is legitimate, they can challenge me on it. 

I asked, for instance, within the last 2 years, has any HHS employee, with the exception of career staff at the OIG, discussed a 

change to or modification of the False Claims Act enforcement policy with respect to kickback allegations either in general or in a 

specific case. There was not a response, and that surely is not a 

confidential situation. 

I asked for a list of all Department of Justice and HHS employees who have been involved in litigating the case against HCA, including those employees who have been involved at the line attorney, supervisory, and policy levels, and to note individuals that are 

involved in analyzing or prosecuting kickback allegations. 

In addition, has any political appointee contacted you regarding 

the False Claims Act application to alleged anti-kickback violations, in general, or the case against HCA in particular? If so, provide details. We got no response and no lists, and I don’t think any 

of that would be confidential. 

I asked for a list of all Department of Justice and HHS employees in attendance at the meeting that was scheduled to take place 

on the afternoon of March 7 with Mr. Scully that he noted in his 

March 7 testimony to me before another committee of the Congress, and to provide a list of topics discussed at that meeting, as 

well as any notes. I am aware that some of that might be confidential, but surely not all of that would be confidential. 

Then I asked for a list of all HCA cases involving alleged violation of Federal anti-kickback laws that the Department of Justice 

has either joined or declined to join within the last 4 years. I won’t 

go on to read the rest of that part of the letter. 

I am aware of the fact that some pleadings in False Claims Act 

cases are under seal to protect whistleblowers, but I think the bottom line is we are trying to get a snapshot of the Department of 

Justice’s thinking here. We would like to see the arguments made 

in court to the fullest extent possible that the False Claims Act allows. 

So that is the information I haven’t gotten and I would hope that 

you would be cooperative with me in getting that information because it is very important in my making sure that there is no compromise of prosecution in these areas any more than there was 

back during the Reagan administration with Defense contractors. 

Attorney General ASHCROFT. Certainly, Senator, I am pleased to 

receive this information. I will check and make an inquiry and will 

get back to you. I would like to work with you. Your record in the 

false claims area has not only been notable, it has been very beneficial to the American Government and the American people, and 

we will work with you to resolve these difficulties. 

Senator GRASSLEY. I don’t have time to read a lot of background 

for this question, but let me ask very directly in another area, in 

the area of cyber security. 

In the case of the FBI, will all current full-time employees dedicated to the NIPC be moved to the new Department of Homeland 

Security, in addition to numerous details, and what provisions have 

been made to guarantee that critical transfer of the NIPC instituVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
25

tional knowledge, in addition to employees, hardware, and open 

cases, have been made? 

Attorney General ASHCROFT. It is my understanding that the 

proposed Department of Homeland Security would receive from 

NIPC individuals who assess vulnerabilities and develop a strategy 

to inform the business community and governmental community 

about how to harden or otherwise design our infrastructure, particularly computers, et cetera, so that they are resistant to attack. 

It is my understanding that those who investigate computer 

crimes would remain in the FBI and that that function of law enforcement and investigation would remain. I am very sensitive to 

the idea that in that kind of a transition period we try and make 

sure that as much information travels with individuals who are 

moving as is important, and that we frankly establish, when the 

transfer is made, at that instant, the line of communication between these organizations will reside in different settings, because 

it is important that those in the investigative area be able to inform those in the prevention area of what new things they find in 

their investigations and the like that reflect things that might relate to the nature of the threat. 

Sometimes, in the investigation you come across things that will 

inform an understanding of what kind of threat there is, and therefore should be part of whatever kind of hardening of the assets we 

have. 

Senator GRASSLEY. You could help me if you would quantify the 

percentage of employees that might be going over. 

Attorney General ASHCROFT. I will be happy to try and get that 

done for you, sir. That is something I simply don’t have in this 

computer at this time. 

Senator GRASSLEY. Mr. Chairman, I thank you. 

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

Chairman LEAHY. Thank you. 

I would note, partly in line with what Senator Grassley was saying, we really do want answers to the requests that we send. We 

have 23 outstanding requests to various parts of the Department 

of Justice dating back a year, July of last year. This kind of gives 

you an idea of what they are right here. 

I am going to resubmit those as part of the written questions at 

the end, as well as the questions that Chairman Sensenbrenner 

and Ranking Member Conyers asked you about implementing the 

PATRIOT Act, partly because if we see there answers, it saves us 

having to ask them. I understand you haven’t answered them either. I know it has been a little bit busy, but these are legitimate 

questions that Senator Grassley and I and Senator Specter and 

others have asked and we would like to have responses. 

Senator Kohl? 

STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM 

THE STATE OF WISCONSIN 

Senator KOHL. Thank you. 

Mr. Attorney General, when FBI Director Mueller testified before 

this committee early last month, I asked him about the complete 

absence of pre-boarding screening for passengers on chartered airVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
26

craft, those private flights of which there are thousands each and 

every day across our country. 

Today, anyone with a high enough credit limit can charter a 747, 

bring whomever they want on board and whatever they want on 

board, including, as you know, weapons, and potentially repeat the 

horrific events of September 11. 

After much prodding, the TSA did issue a regulation requiring 

those passengers who charter the very largest aircraft, those over 

95,000 pounds takeoff weight, or about the size of a DC–9, to undergo pre-boarding screening, just as a passenger on a commercial 

airline would. We are glad that they took this step, but it is not 

enough to simply cover about 2 percent of the private aircraft 

flights that exist. 

Soon after that hearing, we received an encouraging letter from 

the FBI informing us that the Bureau shared our concern about 

private charter aircraft. Further, the FBI told us that Director 

Mueller has directed personnel from the FBI Counter-Terrorism 

Division to participate in an intelligence community working group 

on this issue. The FBI told us to expect their report by July 1 of 

this year. We have not yet seen the report or even an executive 

summary of it. 

While I am pleased that the FBI seems to be taking this threat 

seriously, I am disheartened that they have not made it a sufficient 

priority to complete the report by their self-appointed deadline. It 

continues to surprise us that no matter how many administration 

officials we speak to—and we spoke to many, many officials at the 

very highest levels—we cannot seem to get this rather simple issue 

resolved. 

So I would like to ask you here today where we are on this issue 

of security on private-chartered aircraft in this country, whether or 

not you consider it to be serious enough to require your attention 

and what we can expect to see resolved in the immediate future. 

Attorney General ASHCROFT. Senator, I thank you for your leadership on this issue. We learned with a tragic sense of the consequences that an airplane and its fuel can become a weapon of 

very serious destruction. 

The Transportation Safety Administration has the responsibility 

in this area, including charter flights, but we don’t ignore that because they have the authority there. I will look into this matter 

and I will get back to you very quickly. I think this is a matter of 

priority. 

We have on various occasions alerted the general aviation sector 

to the fact that those airplanes also can constitute a threat and 

that we need to be careful in regard to those. I will make this a 

matter of priority to report to you on the nature of these proceedings and find out why July 1 was not the delivery date for the 

report. 

Senator KOHL. Well, I do appreciate that, and you and I have 

had a long and friendly relationship at the highest level of trust 

and so I believe you are going to. But I need to tell you I have 

heard exactly that from some of your Cabinet colleagues, exactly 

that answer, a very, very important issue. We understand that we 

don’t want to have private aircraft flights traveling across this 

country in great numbers without any security. I will look into it 

27

immediately and you can expect an answer of consequence at the 

very earliest date. I have heard that. 

And I am not berating you in any way. I just want to make the 

comment, Mr. Attorney General, that we have heard that from 

some of your direct colleagues, and yet nothing happens and I am 

trying to figure it out. You know, I don’t want to think, nor would 

you want me to think or the American public to think, that those 

who are well-connected and don’t want to go through security 

checks on private charter flights, which are, of course, the privilege 

of the well-connected, can manage to have their way in this administration. You don’t want me to think that, you don’t want anybody 

to think that, because you don’t want that to be true. 

Attorney General ASHCROFT. I simply don’t want unsafe things 

surrounding the people of the United States. 

Senator KOHL. And there are these thousands of private aircraft 

flying around everyday and there is no security on these aircraft, 

not even something as simple that would satisfy me, at least initially, as these wand checks that take place at airports. People are 

stopped and they are given these wand checks. 

These devices cost about $200 and the pilots of these chartered 

aircraft could be required to wand hand-check the passengers. We 

don’t even have that, and I am asking myself, well, why wouldn’t 

we do that? Why wouldn’t people as interested in security as you 

all are, and above all do not want any kind of a repetition of September 11—why wouldn’t we do that? I am trying to figure out who 

is trying to prevent it. Well, I will just leave it at that. 

One other question. Many people are worried about the Justice 

Department’s commitment to strong antitrust enforcement, especially in light of the Department’s settlement of the Microsoft antitrust litigation earlier this year. Some people think that this settlement is not only a weak remedy, but also a reversal from the aggressive posture of the previous administration. 

We continue to believe that the maintenance of vigorous competition in the economy is essential to getting consumers the best products at the best prices, and that active enforcement of our Nation’s 

antitrust laws is vital to ensuring competition. Right now, Justice 

has a number of important antitrust matters pending, including 

the proposed merger between satellite television companies 

EchoStar and DirecTV, a merger about which we have serious reservations. 

What would you say to people who are concerned about the priority that you are placing on antitrust enforcement, and can we 

hope to see vigorous enforcement of antitrust? 

Attorney General ASHCROFT. Well, thank you very much for that 

question, Senator. I believe you will continue to see vigorous antitrust enforcement. We have moved forcefully against hard-core 

antitrust violators, such as price-fixing and bid-rigging. 

During this past year, the Antitrust Division has secured almost 

$109 million in criminal fines, convicted 19 corporations and 20 individuals, sentenced 23 people to prison terms averaging over 18 

months, and continued a trend toward likelier and longer prison 

terms for antitrust offenders. We mean business here. We have 

also secured a record criminal antitrust restitution order of $22.5 

million in a criminal antitrust order. 

28

I think maybe the best-known criminal action that we took was 

our case attacking price-fixing of sellers’ commissions at fine art 

auctions by the world’s two dominant auction houses, Sotheby’s 

and Christie’s. You are aware of the conviction there that resulted 

in a sentence in prison, plus I think a fine of over $7 million. 

We take the integrity of the competitive environment very seriously, and we will be guided by the responsibility to maintain that 

integrity in our antitrust enforcement efforts and we will be aggressive in doing so. 

Senator KOHL. I am glad to hear you say that and I am certain 

of your conviction in the matter. I think particularly nowadays, the 

American people need to know that we are interested in having a 

vigorous economy, a competitive economy, as well as an economy 

of integrity. The fact that you feel the same way is encouraging to 

me. 

Thank you. 

Attorney General ASHCROFT. Thank you. 

Senator KOHL. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Next, we will go to Senator Kyl, and I should just note for scheduling there may be a vote starting at quarter of. Of course, we will 

finish the time of Senator Kyl and then take about a 5-minute 

break and come back, and the next to be recognized will be Senator 

Feingold. That will also give the Attorney General a chance to 

stretch his legs, if he wants. 

Senator Kyl? 

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 

STATE OF ARIZONA 

Senator KYL. Thank you, Mr. Chairman. Is there a way to turn 

this on? 

Chairman LEAHY. Yes, there is a little switch right on the top, 

on the one on the right. Mine is on the left and yours is on the 

right. I don’t know if this was a political statement or not. 

I would advise all Senators these mikes are very, very sensitive. 

That is why we have got the on/off switch. A couple of very funny 

jokes were heard over the Internet last week and we don’t want to 

do that again. 

Senator KYL. Well, clearly they weren’t jokes I told, Mr. Chairman. 

Mr. Attorney General, thank you for being here. I appreciate 

your testimony, especially your written testimony, which I think 

captures very nicely the challenge that you faced when you came 

into the Department of Justice just before the events of September 

11 and what has been necessary to change since then, and I am 

sure the change will take a while to work out. 

One thing that I wanted to note is that, of course, tip lines have 

been in use by law enforcement at the State and Federal level for 

as long as there has been law enforcement, I suppose. I specifically 

wanted to note the fact that two of the most important investigations that were commenced right after September 11 were the result of tips given by private citizens in Tucson, Arizona, Mr. Chairman, where alert citizens, just regular folks, noticed something 

29

very strange. And as a result of reporting it to law enforcement, 

two very important investigations were commenced. 

One had to do with a lady who saw people of a certain description hurriedly copying passports, xeroxing passports at one of these 

public copying facilities, in an area of town that raised issues as 

well. Another involved a landlady who, after a couple of people 

moved out, noticed a lot of things about their apartment in the 

trash and so on. 

You might have read about one or more of these cases, but these 

alert citizens reporting this information caused important investigations post-9/11 to be commenced. So I think it is important 

every now and then to illustrate the practicality of this kind of information being passed on to appropriate law enforcement authorities, and I urge our fellow Americans, without being snoops, nevertheless to be alert and to do that. 

Mr. Attorney General, one of the things you commented on was 

bringing some of the laws, including FISA laws, up to date to reflect technology and the techniques of terrorists and criminals. Two 

of the items mentioned had to do with nationwide wiretap authority and trap and trace authority, to extend beyond the regular old 

telephone that used to exist to the use of cell phones and to obtain 

information about the points of origin and the places called not 

only on telephones, but also computers. 

An additional element of change that has been suggested—and 

the FBI Director as well as the agent from Minneapolis who was 

in the news a couple of months ago strongly endorsed this and it 

is legislation that Senator Schumer and I have pending now—

would remove the requirement in a FISA warrant case of having 

to prove initially a connection to a foreign terrorist organization or 

foreign country. 

In your view, would that change be warranted? The probable 

cause requirement still exists. Would that kind of change be warranted and would it be useful? 

Attorney General ASHCROFT. Well, I very much appreciate the 

concern expressed by you and Senator Schumer in this respect. 

Really, what it would provide would be a better tool in the event 

that we were dealing with a lone terrorist, unassociated or unaffiliated with terrorist groups. The proposal in that respect would seriously strengthen our capacity, and I think that is an undeniable 

sort of asset of such a proposal. 

The Department’s Office of Legal Counsel has come to the conclusion that it is a constitutional proposal, that it doesn’t infringe 

the Constitution. Last year, the administration endorsed an identical proposal. While there is no formal endorsement at this time, 

I think this concept is a strengthening concept which would provide 

an ability to curtail the activities of a freelance terrorist not having 

connection to a terrorist group. 

One person can plant a bomb on an airplane. One person could 

send anthrax through the mail. A person acting alone could assassinate political leaders, or a person can attack and kill intelligence 

personnel as part of terrorism, one person alone. So I very much 

appreciate the fact that you and Senator Schumer are sensitive to 

this, and we would look forward to working together to address 

these concerns with you. 

30

Senator KYL. Thank you. Mr. Attorney General, it could also be 

a situation in which, at the time the individual first came to the 

attention of law enforcement authorities, there wasn’t any specific 

indication of the connection, but there is sufficient reason to believe 

that a crime may be in the planning stages. So you could get the 

FISA warrant, only then to find out or be able to prove the direction connection to the terrorist organization. I am assuming that 

that could well be the case as well. 

Attorney General ASHCROFT. That could very well be the case. It 

is not always apparent that people—especially in the days of complex communication where we now exist, they don’t have to meet 

together to be acting together. So they may appear to be acting 

alone, when in fact, after closer inspection, we would find that they 

were acting in concert. 

Senator KYL. And, of course, the purpose of the FISA warrant is 

to be able to further investigate, and that may be then when you 

find that information out. 

Mr. Chairman, by I think a clerical mistake the legislation that 

I am referring to was not specifically assigned to this committee. 

I think there will be a hearing in the Intelligence Committee, to 

which it was assigned, but it properly belongs within—or at least 

we should take cognizance of it even if it is not assigned here, and 

it may end up being assigned here. 

In any event, I hope that we can work with you. Senator Schumer and I both have an interest in moving this quickly and I hope 

that we can work to get action on this piece of legislation quickly. 

Chairman LEAHY. If it is assigned here, we will take a look at 

it, and I appreciate what you said about the two citizens in Arizona 

who got the word out. Earlier when you were out, I was pointing 

out, though, that I just don’t want the Department of Justice so inundated with this TIPS program that we repeat the same mistake 

that happened actually out in Arizona where they overlooked the 

Phoenix memo, which was an extraordinarily important memo. The 

balkanization, something that both the Attorney General and Director Mueller are working on, stopped that memo from getting up 

to the proper authorities prior to September 11. 

Senator KYL. Sure, and of course to make the point that any law 

enforcement, be it the sheriff’s office, the local police department, 

or the FBI, would be appropriate places for these tips to be called 

into. 

The other thing, Mr. Attorney General, I would like to draw your 

attention to is a related piece of legislation that Senator DeWine 

has introduced that is basically the flip side of the bill that I was 

just talking about that Senator Schumer has introduced. 

It essentially says that where you can demonstrate a connection 

to a foreign terrorist organization or foreign country, but you may 

not have the probable cause that would ordinarily attend to the 

granting of a FISA warrant, in that case you could still proceed 

upon reasonable suspicion, I believe is the phrase. 

I appreciate your staff looking into the question of whether there 

is a possibility of marrying those two concepts, where you could 

have either/or. In other words, if you could make the definite connection to foreign terrorist organization or foreign country, the 

standard of cause might be less to get the warrant. If you can’t 

31

make that connection, then the standard of cause would be the typical probable cause. 

It may be that we can formulate a really helpful change here in 

the law. And, again, not just taking a look at it, but trying to get 

this done quickly would be our goal. 

Attorney General ASHCROFT. Well, I am eager to work with you, 

Senator Schumer, and Senator DeWine in this respect to examine 

the interrelationship that exists there and to discuss the potential 

of these varying standards which have legal ramifications and the 

like. I think working together would be a very good way to get it 

done, and done well. 

Senator KYL. Now, finally, you closed your testimony, or I think 

you answered one of the previous questioners with the notion that 

you don’t necessarily assume that at this point in time we have everything exactly right, that we have to look at things as they 

evolve. You are open to new ideas, and so on. 

It is a two-way street. I think we invite the Department of Justice as situations change, as technology changes, or as you identify 

areas that need addressing to bring those to our attention, and if 

they require legislative change that we be able to act in a quick 

fashion, that we not let these things drag out too long, because 

very month of delay in making a needed change is an increased opportunity for a terrorist or a criminal to do their evil deeds. That 

is not something obviously that we should be supporting. 

Is there anything else at this point, beyond the items that you 

mention in your testimony, that you think we might profitably look 

at in the way of making potential changes that you would alert us 

to or any other needs that you are aware of at this time that we 

should be addressing? 

Attorney General ASHCROFT. Well, very frankly, the priority need 

for legislative change is the coordination into the Department of 

Homeland Security of the vast array of programs that have frontline responsibilities in defending this country. Digesting that and 

getting that done effectively has been a laudable objective. 

I know that Minority Leader Gephardt, of the House, has indicated that—I think he is the first fellow that said we ought to get 

this done by September 11. That was an important commitment. 

I believe the Senate leadership has responded, as well as House 

leadership generally, to that challenge. I think that is the top priority we have now legislatively in defending the American people. 

Senator KYL. I thank you very much. I especially enjoyed the 

Lincoln quotation at the end of your speech. It is quite apropos, I 

think. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Speaking of FISA, we have asked, Senator 

Specter has and I have, some significant questions about problems 

the Department has had in FISA under either the new or old laws. 

We haven’t gotten those answers and I think before we go too 

much farther we ought to find out how we are doing here. 

We will take a break. Senator Feingold is voting. When he comes 

back, if I am not already back, he can start this up and we will 

go on and continue the usual rotation. Thank you, Attorney General. 

[The committee stood in recess from 11:50 a.m. to 11:59 a.m.] 

32

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD [PRESIDING.] We will continue the hearing. 

I welcome you. Before I begin my questions, I would like to take 

a moment to just make a couple of comments. You talked in your 

opening statement about the need to, quote, ‘‘think anew and act 

anew.’’ While it may be true that a review of the Department and 

Federal law enforcement resources and information-sharing capability is needed, and I agree with that, I certainly don’t think you 

or the administration should be rewriting the Constitution and its 

careful checks and balances on all three branches of Government 

and its protection of the fundamental civil rights of all Americans. 

The second thing I would like to say is to bring your attention 

to a letter I sent you yesterday asking for a report on the implementation of the PATRIOT Act. That letter requests a copy of your 

response to a similar letter sent by the House Judiciary Committee, which I think Chairman Leahy just referred to, as well as 

responses to some additional questions about issues like the use of 

the business records provision to obtain library records. I look forward to the earliest possible response to my letter, and I would ask 

unanimous consent that this letter be placed in the record. 

General, on the issue of the round-up and detention of 1,200 individuals since September 11, one aspect of this issue that I find especially troubling is the Department’s refusal to identify how many 

people are being detained as material witnesses and not for any 

criminal conduct. 

Rule 46(g) of the Federal Rules of Criminal Procedure requires 

the prosecutor to submit a biweekly report to the court with the 

reasons why a witness who is being held for more than 10 days 

pending indictment or trial should not be released or have his or 

her testimony taken by video deposition, and the reasons why the 

witness should still be held in custody. 

I would like to ask you if the Department has complied with this 

requirement, and if so, I ask you to provide copies of these reports 

to the committee. 

Attorney General ASHCROFT. Senator, the material witness program is one that is court-supervised and it is the responsibility of 

the Department to comply with the rules as requested by the court. 

I know of no circumstance in which we have failed to comply with 

the orders of the court or the rules of the court in respect to material witnesses. 

Senator FEINGOLD. Well, we would like some confirmation of 

that, because we have heard that the biweekly reports have not 

been filed. So, obviously, if you could provide copies of the reports 

to the committee, that would be a great help. Thank you, General. 

I have also heard troubling reports that individuals being held 

as material witnesses have been threatened with retaliatory action 

if they challenge their detention and go public with their cases. 

Specifically, I have heard that the Justice Department has threatened to recategorize these individuals from material witness status 

to enemy combatant status. 

I would like to know if this is true. Has a prosecutor or Department official threatened any person held as a material witness or 

their lawyer with retaliatory action if they go public? 

33

Attorney General ASHCROFT. I have no knowledge of any such activity on the part of the Department. 

Senator FEINGOLD. I would ask that some kind of determination 

be made to make sure that is not the case, and that you let the 

committee know the results. I am glad to hear that. This kind of 

conduct, of course, would undermine the integrity of our justice system, and I look forward to any further comments you may have on 

that in the future. 

Attorney General ASHCROFT. Thank you. 

Senator FEINGOLD. I would like to now turn to the issue of the 

detention of U.S. citizens. I have always believed that one of the 

most important principles of our legal system has been that Americans cannot be arrested and held indefinitely without charge or access to counsel or judicial review simply on the arbitrary decision 

of a government official, even the President. 

Section 4001(a) of Title 18 of the U.S. Code, enacted in 1971, provides, ‘‘No citizen shall be imprisoned or otherwise detained by the 

United States, except pursuant to an act of Congress.’’

So I would ask you, General, what is the legal authority for the 

President’s decision to transfer Jose Padilla from civilian custody 

to military custody and to hold him there indefinitely? I am especially interested to know whether you advised the President that 

Section 4001(a) prohibits indefinite detention without charges of 

U.S. citizens, and if not, why not. 

Attorney General ASHCROFT. Let me address 4001 of Title 18, 

U.S. Code, which is the title dealing with the criminal law and 

with the criminal justice system. 

The President’s authority to detain enemy combatants, including 

U.S. citizens, is based on his commander-in-chief responsibilities 

under the Constitution, not provisions of the criminal code, and it 

is bolstered by the Congress’ September 18, 2001, authorization to 

use force, which plainly includes the force necessary to detain 

enemy combatants. 

Section 4001(a) does not, and constitutionally I don’t believe it 

could interfere with the President’s constitutional power as Commander-in-Chief. 4001(a) reads, ‘‘No citizen shall be imprisoned or 

otherwise detained by the United States, except pursuant to an act 

of Congress.’’ As you mentioned, that was enacted in 1971. 

While the language appears broad, the section as a whole plainly 

addresses the Attorney General’s authority with respect to Federal 

civilian prison system detainees and not the President’s constitutional power as the Commander-in-Chief to detain enemy combatants. 

Senator FEINGOLD. Well, General, is there an act of Congress or 

even a court decision issued since 1971, since the date of that statute, that you believe grants the President the authority to transfer 

and hold Padilla in military custody indefinitely? If so, what act of 

Congress or court decision grants this authority to the President? 

Attorney General ASHCROFT. Well, in 1984 Congress enacted 10 

U.S.C. 956, which explicitly authorizes payment for the detention 

of enemy combatants, so that there are items that clearly make it 

understood and recognize what I believe is the constitutional authority——

34

Senator FEINGOLD. Does that statute refer to U.S. citizens being 

held as enemy combatants? 

Attorney General ASHCROFT. It does not differentiate between 

enemy combatants. In that respect, it is very similar to the case 

law that does not differentiate between enemy combatants and others when it comes to detaining individuals who have been a part 

of an enemy action against the United States. 

I might point out that even when 4001(a) was being enacted, 

Congressman Abner Mikva and others in the debate over it stated 

that the provisions did not interfere with the President’s commander-in-chief powers, so that there is legislative history to indicate that it was understood when 4001(a) was passed that the law 

did not purport to in any way derogate that which was constitutionally established regarding the President’s power as the Commander-in-Chief. No court has ever construed 4001(a) to apply outside the context of civilian detention, but these cases admittedly 

don’t come up very often. 

Senator FEINGOLD. Well, General, the law in 1971 was enacted 

following a long and troubling history in our Nation during which 

the United States detained 100,000 Japanese Americans, German 

Americans, and Italian Americans, not because they committed 

crimes, but out of a fear of what they might do. And I think there 

is serious dispute here with regard to your interpretation of what 

this——

Attorney General ASHCROFT. May I comment on that, Senator? 

The detention of citizens of the United States who are not enemy 

combatants but merely of an ethnic group, which I think you refer 

to in the detention of citizens of Japanese origin during the Second 

World War, is obviously a very different item than the detention 

of enemy combatants. 

I think the Supreme Court case law recognizes the difference between enemy combatants and others in this respect, and it is something that we are very conscious of and sensitive to. 

Senator FEINGOLD. General, let me ask you this, given the importance of this practice apparently to the administration. Other than 

Padilla and Hamdi, are there other U.S. citizens currently being 

held as enemy combatants, and if so, who are they? Why are they 

being held as enemy combatants, where are they being held, and 

how long have they been held? 

Attorney General ASHCROFT. I am told there are none. I know of 

none and I am told there are none. 

Senator FEINGOLD. It is just the two of them, then? 

Attorney General ASHCROFT. That is my understanding. 

Senator FEINGOLD. Is that correct? That is your understanding? 

Attorney General ASHCROFT. That is the best information I have. 

Now, I don’t know whether someone might emerge and confess 

himself to be an American citizen, having been serving in an 

enemy force. 

Senator FEINGOLD. But you are not aware of any such person? 

Attorney General ASHCROFT. I am aware of none other. 

Senator FEINGOLD. Let me turn to one other question, the issue 

of racial profiling that you and I have discussed many times. During your confirmation hearing, you said that you believe racial 

profiling is wrong and should end, and you pledged to work to adVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
35

dress the issue, once confirmed. In his first address to a joint session of Congress in February of last year, President Bush also said 

that he believed racial profiling is wrong and should end in America. 

Do you remain committed to working with me and Representative Conyers to get a bill to the President’s desk this year that will 

accomplish that goal—to make it absolutely clear that racial 

profiling is wrong and should be understood as illegal in America? 

Attorney General ASHCROFT. Yes. 

Senator FEINGOLD. Thank you. My time is up and Senator Specter is here and I am going to turn to Senator Specter. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you very much, Mr. Chairman. 

Attorney General Ashcroft, when you sat next to me on this dias 

a couple of years ago, I think it is accurate to say that you shared 

my frustration about getting responses from the Attorney General. 

I had raised some questions with you in your testimony last December, and before getting to the substance of the matter I want 

to ask you about how busy you are. 

Now, maybe you are too busy to respond to Senators’ letters, and 

if you are, frankly, I can understand that. But if that is so, then 

I know I can always track you down or find you at the White 

House. But when I wrote to you back on December 20 relating to 

your testimony at a Judiciary Committee hearing on December 6, 

I asked you to provide in writing a standard for your action in continuing to detain aliens after they were ordered released by both 

an immigration judge and by the Board of Immigration Appeals. 

Then I suggested in a letter a standard which would be lesser 

than probable cause, the standard of ‘‘stop and frisk,’’ which was 

an articulable, reasonable suspicion that an alien is involved in terrorist activity or is a threat to national security. 

When I didn’t receive a response, I wrote you on March 7, asking 

you about it and sending a letter. Then we had a brief conversation 

in the White House one day, and I received a letter from Assistant 

Attorney General Daniel Bryant which did not answer the question 

at all, but in critical part said only, quote, ‘‘While the INS has not 

adopted a particular legal standard as to when the automatic stay 

procedure should be invoked, the INS has implemented a multi-layered review process that includes the requirement for approval at 

the headquarters level to ensure that the automatic stay mechanism is invoked only where appropriate.’’

Now, I know you would not be surprised that I found that response inadequate, because we need standards as to when you are 

going to detain somebody and it is not sufficient to have a multilayered review process. Before the matter got to the multi-layered 

review process, as I noted in the first letter, there had already been 

a determination by the immigration judge to release, and that was 

stayed by the Board of Immigration Appeals. Then when they ordered the immigrant released, that was stayed automatically by 

your authority as Attorney General. 

36

So it is simply not sufficient to have multi-layered review processes within the Department of Justice unless you at least articulate a standard for somebody being a security risk. 

Now, as you know by this time, being totally familiar with the 

process from your years of experience, there are two parts to my 

question. No. 1 is how do we communicate with you and are you 

really too busy to respond? As I already said, I will accept that as 

an answer if you are getting lots of letters. I don’t think you are 

getting too many from the guy who sat next to you in the committee. 

So I wrote to you again on May 23 and referenced Bryant’s response and noted that I don’t write to you very often. In fact, this 

was the first letter that I have written to you since you were sworn 

in. I had a good chance to talk to you and perhaps even help you 

a little in the confirmation hearings. 

So the two questions are, Mr. Attorney General, how do we communicate with you—let’s take that one up first and then I will ask 

the second one. 

Attorney General ASHCROFT. Well, first of all, I commend the 

communication in which you are now engaging. It has my attention 

completely and I want to respond to you. I think I detect that you 

have a slight tongue in cheek. I am not too busy to communicate 

and I will do a better job. I will instruct my staff to make sure I 

do a better job. 

If you want to ask a second part to your question——

Senator SPECTER. Well, the second part, Attorney General 

Ashcroft, is we need a standard because detention is a very important matter and there are many who are raising questions about 

whether the Attorney General ought to have the authority to detain after the immigration judge has said release them and after 

the Board of Immigration Appeals has said release them. 

We are living in very, very difficult times and I am aware of the 

tremendous responsibility which the President and you have on the 

issue of terrorism. But there has to be a standard on what goes 

through the minds of your subordinates on this multi-layered appeal as to why a person is being detained. It is not enough to say 

there is unfettered discretion in the office of Attorney General. 

Attorney General ASHCROFT. Let me just address this automatic 

stay situation and explain it to the extent that I can with my 

knowledge that I have now, and I may need to get back to you further on this. 

The regulation preserves the status quo pending appeal in instances where the INS seeks to detain an alien but the immigration judge orders him released. That is what the controversy is 

about. The INS on a few occasions has used this authority, but 

never has one of these cases come up to me during my time as Attorney General yet. So we haven’t had that situation arise. 

A case would reach the Attorney General under the system only 

if the Board of Immigration Appeals ordered that the alien be released and then the INS said, no, we are not going to release him, 

we are going to appeal this to the Attorney General. That has not 

yet happened. 

Now, you made a suggestion——

37

Senator SPECTER. That has never happened, Attorney General 

Ashcroft. 

Attorney General ASHCROFT. Not since this regulation has been 

passed. 

Senator SPECTER. And when was the regulation passed? 

Attorney General ASHCROFT. In September or October of last 

year. 

Senator SPECTER. Well, I find that very surprising, in light of the 

reports about the detention of so many immigrants and so many 

reports about detention generally that this kind of a situation 

would never have occurred. 

Attorney General ASHCROFT. We have complied with the orders 

or the appeal has not reached me in every instance and we have 

not had a case in which I have been asked—a case certified to me 

for my decision to restrain a person that has been ordered released 

by the Board of Immigration Appeals. 

Senator SPECTER. And when you say to you, you mean to your 

office? 

Attorney General ASHCROFT. To the Attorney General, because 

that authority resides in the Attorney General. 

Senator SPECTER. Is that a non-delegable responsibility? 

Attorney General ASHCROFT. I believe it is non-delegable. 

Now, in terms of a standard, as we have been wrestling with 

these issues that you have raised, but you have raised in the absence of a case that has actually come to me, but it is important 

to have a standard in advance, one of the problems is that if the 

only standard is national security, I think that is an inadequate 

standard. 

I think you might want to include, for instance, the potential of 

violent crime also being a standard that would be included there, 

and expressing a standard might have—there may be reasons 

when you are talking about an alien who is being detained during 

this process of final adjudication. 

Senator SPECTER. Beyond, though, the issue of national security 

or criminal conduct, there needs to be some articulable reason why 

that person is a threat to national security. Or if you are going to 

categorize it as criminal conduct, I think that is a tougher line, 

candidly, to sustain. 

National security gives greater leeway, especially in this era. But 

even with national security, I believe you have to have, if not probable cause—a reasonably articulable suspicion is a standard lower 

than probable cause, but at least a standard. Maybe that is not the 

only standard, but, Mr. Attorney General, I think we need a standard. Do you agree? You are nodding yes. I just hope you agree. You 

are nodding. Maybe it is not ‘‘yes.’’

Attorney General ASHCROFT. I certainly wouldn’t make the decision absent some reference to what I believe to be important standards regarding national security and the security of the American 

people. 

One of the standards that is used in cases, though, in which you 

maintain custody of an individual pending the outcome of an adjudication is the flight risk. That is also a standard that is used. You 

know, we have 300,000-plus people that were released by immigration authorities pending the adjudication of their cases and they 

38

have just dissolved into the American community. Risk of flight is 

also an important thing. 

I think these matters can be complex. They can relate not just 

to national security, but whether the ultimate adjudicated decision 

will be honored or not. So it is not just a national security issue 

or a violent crime issue. It has to do with the circumstances of the 

individual who is the subject of the adjudication. 

Senator SPECTER. Well, I would agree with you. 

My time is up and I will be very brief, Mr. Chairman. 

I would agree with you that risk of flight is a reason for detention, but there are standards. That is essentially no bail, ties to the 

community, a job, responsibility generally, factors which have been 

delineated very, very carefully over a long period of time. 

But when you talk about national security, it is different. There, 

we are in an era where we are very much at risk, but I wish you 

would take a look at it and respond to me at least before the next 

oversight hearing. 

Attorney General ASHCROFT. Thank you. 

Senator SPECTER. One other brief comment. The committee is 

considering the standards for issuance of warrants under the Foreign Intelligence Surveillance Act, and I have taken that up in detail with FBI Director Mueller and am awaiting a response. 

But from the testimony of Agent Rowley and from what we have 

heard in our inquiry, this is something which I think you ought to 

look at, Attorney General Ashcroft, because I believe that the FBI, 

and in turn the Department of Justice, are not imposing the appropriate standard. They have got too high a standard. The standard 

that Chief Justice Rehnquist articulated in Gates, going back to an 

1813 decision by Chief Justice Marshall, turns on suspicion. 

I know the frustration you had with me on the Wen Ho Lee matter, on the FISA. We are going to be continuing our inquiry there, 

but I think that is something, as soon as you give me a standard 

on the issues I raised today, that you might want to take a look 

at. 

Chairman LEAHY. And note the fact that both Senator Specter 

and I have signed letters on this and we have not gotten answers. 

I share the Senator from Pennsylvania’s concern that unnecessary 

hurdles are being put up by the Department of Justice in seeking 

FISA warrants. I think a better job could be done. 

The Senator from Pennsylvania has spent more time on this than 

any other member on this committee and I hope those questions 

will be answered. 

We will go to Senator Schumer. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Attorney General ASHCROFT. Mr. Chairman, may I? 

Chairman LEAHY. Yes. 

Attorney General ASHCROFT. We would like to work with you on 

this. The Constitution provides that no warrant shall issue absent 

probable cause, I believe is the language, and I know the concern 

this committee has for observing the Constitution. There is where 

the difficulty comes in reducing the standard for the issuance of 

warrants. 

Now, maybe there is a way to categorize things as not a warrant, 

and I don’t know all this case law thoroughly, but that has been 

39

our sticking point. We will be happy to work with you because we 

want to make sure we are doing what we can to make available 

every investigational tool to curtail terrorism. 

Chairman LEAHY. General, the first thing you might do, though, 

is look very carefully at the questions that Senator Specter and I 

have sent you that we have not gotten answers to. 

Attorney General ASHCROFT. We will look at it carefully. 

Senator SPECTER. Just one final comment. I agree with you on 

the necessity for constitutional precision, but the Supreme Court 

has spoken on it. In Cranch, in 1813, Chief Justice Marshall, and 

then repeated in Illinois v. Gates, picked up on the opinion of thenJustice Rehnquist, that probable cause does not require a preponderance of the evidence more likely than not. 

The opinions talk about suspicion and that would pass constitutional muster, and when you deal with a warrant under the Foreign Intelligence Surveillance Act, as we know without getting into 

the specific cases, we are just talking about the most deadly perils. 

Chairman LEAHY. Eventually, we are going to have to have a 

hearing specifically part of it. It will have to be in a classified session, but we will have it. Again, that is the reason why we want 

you to answer the questions we have sent you. 

Senator Schumer? 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. Thank you, Mr. 

Attorney General. It is sort of interesting. There seems to be a 

theme that runs throughout today’s hearing in different ramifications, and that is the boundaries on privacy, particularly in a post9/11 world, whether we are dealing with the TIPS program or guns 

or Padilla—well, Padilla is a little different—or the things Senator 

Specter asked about. 

I think the change is sort of an interesting one. Since, post-9/11, 

we are all sort of on the front line, since we feel there might be 

domestic harm coming to us—we are not just fighting an overseas 

war but a harm here at home—I think it is natural that we reexamine these boundaries, and it is nothing new in our Constitution. 

I suppose one of the great debates that the Founding Fathers had 

was the age-old discussion about how much security versus how 

much freedom, privacy being a form of freedom. 

I guess the comment I would make before I get to my questions 

is I think where the Justice Department goes awry, when they do—

and they have done it, in my judgment, at least frequently—is not 

in the values they come up with. We can argue those, but there is 

virtually no discussion when the boundaries of privacy change. 

A program, a new foray is issued, with very few guidelines, with 

very little elaboration, and then everybody sort of gets their hackles up, whether it was military tribunals or Guantanamo or with 

Padilla, when somebody is a foreign combatant, particularly when 

they are a citizen. And there are no guidelines, absolutely none, 

and everyone scratches their head and says ‘‘how far are they going 

to go?’’

I think if there were ever a place where the Constitution wanted 

discussion between the executive branch, which tends to favor secuVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
40

rity, and the legislative branch, which tends to favor freedom or 

privacy, it would be in this area. 

My humble suggestion to you is that we have more discussion on 

this, that you present the problem to us and we have a back-andforth. The few times that has happened when you require legislation, such as in the USA PATRIOT Act, I think you will find that 

the committee has not been unreasonable and we have come up, as 

you said in your testimony, with a very good product. 

I was proud to vote for the PATRIOT Act. I thought it was balanced, but I thought it dealt with the new realities. I realize that 

there are some in the civil liberties community who say don’t 

change anything. That is unrealistic, in my judgment, but it is not 

unrealistic to say let’s vet it, let’s have discussion, let’s air it, and 

we will probably come up with a pretty good view. 

I have to say—I wasn’t intending to do this—I find a lack of that 

in just about every area we discuss, and it leads to problems for 

the Attorney General and for the Justice Department. So I am 

going to ask my first question to give you a chance on this maybe 

to do it. 

To me, the TIPS program is not the big issue. You know, if someone sees a howitzer in someone’s backyard, they should report it, 

they should let somebody know. 

Maybe you and the Attorney General would disagree with me on 

that. 

Attorney General ASHCROFT. I won’t disagree with you, but 

maybe the Senator from Vermont would. 

Chairman LEAHY. I don’t have one in my backyard. 

Senator SCHUMER. We don’t want somebody who is looking at the 

electric meter to look at the books on a shelf in someone’s basement 

and report it in. I think you could easily come to rational distinctions on that. Again, we have no guidelines. 

But to me there is a more troubling privacy issue, and that is 

the posting of cameras in public places to monitor activity. This is 

something we are not accustomed to in the United States. The 

Statute of Liberty, the national Mall, or the intersection at First 

and Elm Street in a small town—people are worried about being 

watched. 

The problem here is that there are no standards, once again. Can 

you zoom in and read lips? How long are the tapes kept? Are we 

using biometric evidence? I know there are some in your Department such as Viet Dinh—he is the head of the Office of Legal Policy, an important office, and he has said there is no right to privacy 

in these public places. 

I happen to believe that while you lose some rights when you are 

in a public place—obviously, it is not the same as when you are in 

your home—there probably should be some limits and Americans, 

regardless of ideology, would feel comfortable. These are complicated issues. I don’t think we can just sort of do them on the 

back of an envelope, but I am putting in a bill that would set up 

a little commission to recommend guidelines for these types of cameras. 

Whether you agree with me or not about some right to privacy 

in public places, or agree with Dinh’s view that there is not, what 

do you think of the idea of such a commission to start studying this 

41

and having a little dialog on it, again mindful of the post-9/11 

changes and the different world in which we live, but we still treasure our privacy and our freedom? 

Attorney General ASHCROFT. Well, first of all, I think all of us 

have an insecurity about the fact that we might be on film all the 

time. I think you have touched something that all of us feel because virtually everything that happens somebody seems to have 

recorded on videotape. Very frequently, it is beneficial. We just deployed people to Inglewood, California, because someone was 

videotaping. The institutionalized videotape there at the service 

station may not have been as good as the privately undertaken one. 

This is the kind of issue which I think a number of us feel might 

be worth discussing, and so I would be happy to do that with you. 

I think whether or not there is, in fact, such a right—maybe it 

shouldn’t dispose of the issue. Maybe there needs to be a protection 

if there isn’t one, and that is obviously what the policy opportunity 

that you enjoy as a Senator is. And if one is created, then it would 

be my job to defend it. 

Senator SCHUMER. I would love to have a discussion. I would ask 

you to entertain seriously supporting the kind of legislation that I 

have mentioned, and I will show it to you before we introduce it. 

A second question: As you know, Miguel Estrada is a nominee to 

the D.C. Circuit Court of Appeals, and several weeks ago the committee asked you to produce memos Mr. Estrada wrote when he 

was a lawyer in the Solicitor General’s office at DOJ. You have refused to produce those memos, claiming privilege. 

I understand that former Solicitors General, including some 

Democrats, backed your position. But as you know, that has not always been the policy. I have here in my hand a whole pile of 

memos of people in similar positions. During the consideration of 

Justice Rehnquist to become Chief Justice, the committee was 

given internal memos that he wrote when he was a clerk to Justice 

Jackson. During the consideration of Robert Bork’s nomination to 

the Supreme Court, the committee was given internal memoranda, 

non-public-related material related to Bork’s work in the Solicitor 

General’s office. 

I, for one, don’t want to vote on Mr. Estrada unless I really know 

his positions. You know what happens when they come before us. 

We get a lot of bobbing and weaving—‘‘I will follow the law, I will 

follow the law, I will follow the law’’—and we really don’t know 

what someone thinks. And you know my views are quite strong on 

believing that before I vote for a judge, I want to know their judicial philosophy or ideology. 

So my question to you is the following. Given there has been 

precedent, what is the harm in us getting these memos? We can 

have a much fuller idea of how Mr. Estrada thinks in a legal way. 

He is not a judge, so we don’t have a record, and we should know 

quite a bit about someone being appointed to the second most important court. 

A former supervisor of Estrada said he advocated extreme positions aligned with his own interests rather than the Government’s. 

That is a pretty strong argument not to support Estrada, unless we 

could see that the memos disprove that. 

42

What is the harm in giving us those memos and increasing our 

knowledge of what this gentleman, who is obviously a very intelligent man, but that doesn’t answer the whole question of whether 

he should be on the D.C. Circuit—what is the harm in giving those 

memos to us? 

Attorney General ASHCROFT. I think this relates to the principle 

of deliberative work product, where individuals should be writing 

for their best service to the individuals for whom they are writing 

to give them the best information. They shouldn’t be writing in anticipation of what will be someday subpoenaed and looked at, and 

what will be held against me if I articulate things that are going 

to be important to the person making judgment in this setting. 

If I were to say to this individual, these are the important considerations that you have got to understand here, are these somehow going to be used against me later, so should I tone down my 

response? Should I adjust what I am saying because someday a 

Senate committee or someone else is going to want to look at it, 

and should I do things that are more consistent with my aspiration 

to be a judge someday instead of my responsibility to serve on a 

particular case? I think that is really what we are talking about. 

Senator SCHUMER. With all due respect, sir, he was not just a 

lawyer serving a client. He was an employee of the Government 

serving the Constitution, and it is our job to figure out how he interprets the Constitution. Without these memos, it is much harder 

to do. We have done it before. It hasn’t crippled the Government. 

I mean, there is ample precedent. I didn’t go through all of them. 

This is filled with different people’s internal memos that habitually 

used to be given. 

Attorney General ASHCROFT. I could give you an example. For example, I have said to people I want your best judgment about this 

argument and how it can be most effectively made. They write me 

a memo about that because I want to be able to guard against that 

particular line of argument. I want to be able to anticipate it, use 

it, and I think that is not necessarily their position. 

I think that is the reason former Solicitors General, as you noted, 

have said this would impair the ability of such individuals to serve 

in those responsibilities. And to chill the excellence which is required is to deny the national purpose that you make reference to. 

You want them to give their best judgment. 

I can’t tell you how many times I have made that kind of an assignment: Give me the best argument from this perspective. It was 

my anticipation of a perspective, not someone else’s anticipation of 

what job they wanted. So many former Justice officials—and they 

are both Republican and Democrat—both support his nomination 

and I think would also have reservations about this kind of work 

product being compelled by the committee. 

Senator SCHUMER. Thank you. My time is expired, Mr. Chairman. I have a question I would like to submit in writing. We are 

having real trouble on the Canadian border in the sense that the 

searches of people as they go through and the scrutiny has greatly 

increased. It probably should, but the backup is enormous, causing 

real trouble in Buffalo and other areas in terms of commerce. I 

have some questions in writing about getting more people to that 

border, figuring out what the process is for you and for Customs, 

43

and I would just ask that I get an answer back quickly because we 

have real problems. It is not an ideological question, but it is a serious problem we face. I am not going to ask you to answer that 

now because my time is up. 

Chairman LEAHY. And as one who is married to somebody of 

French Canadian dissent, and I hasten to add was born in the 

United States, first generation—she still has a lot of family up 

there—I have mixed emotions about how easy we should make it 

for someone to come through. 

[Laughter.] 

Chairman LEAHY. But as the Senator from New York has stated, 

it is a major issue. I think the Senators from Michigan would tell 

you the same, and so on. 

I would invite you to come up and see the border sometime. We 

all share the same interest. Most countries would give anything to 

have a border that long with such a friendly ally, and we should 

work more and more to do what we have to do to facilitate going 

through. And I would invite you up to the border any time you 

would like to come and join me. 

Attorney General ASHCROFT. Well, I was in Canada working with 

Canadian authorities this last week, or earlier this week I should 

say. They have raised this issue with me. It is an important issue. 

The security of our borders is very important. That is one of the 

things that I hope can be most successfully addressed in the new 

Department of Homeland Security. Pending action by the Congress, 

it could well be that by virtually this time next month there would 

be an integrated capacity to have Customs and INS working out of 

the same portfolio, so to speak. 

We desperately need to have the kind of security that protects 

the border, but the kind of facility that provides support for the 

joint enterprise that Canada and the United States very frequently 

have. It is very important. I agree with you wholeheartedly. 

Chairman LEAHY. The Senator from Alabama has been waiting 

patiently. Please go ahead, and then we will go to the Senator from 

Washington State. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman. It has been a very 

interesting hearing and it is a pleasure to have the Attorney General back before this committee, the one he served so ably on. 

It is not an easy task keeping everybody in this Senate and in 

the country perfectly happy, Mr. Attorney General. They complain 

on both sides that we didn’t have enough computer systems, we 

didn’t have enough data to identify terrorists. And then when you 

create a system that can put more in it, we get complaints that 

civil liberties are at risk. I think that comes from both left and 

right. We have some paranoid people on the right, also. 

I would just say that I know the basic law. It is applied in courts 

probably 10,000 times a week in America, everyday, and if you are 

at a place where you have a right to be, whether you have been 

invited into somebody’s house or out on the street, and you observe 

a criminal act, you should report it. That is basic. 

44

Now, there is a danger. If you deputize people and they are, in 

fact, quasi-law officers and then they go in under certain circumstances, you could be subject to a motion to suppress and it 

would be improper. But the Constitution protects us from unreasonable searches and seizures and requires probable cause. I don’t 

think that is an absolutely in-concrete standard and one person can 

perfectly interpret that under all circumstances. 

I do believe Senator Specter is correct. I have heard him and 

been through the matters that he has discussed in the past, and 

I do believe, in the Department of Justice, you have people too 

timid in some of these areas with regard to searches and seizures. 

You know, as we look at this historical perspective for these 

kinds of investigations and monitoring of people who may be a 

threat to our country, I think we know there is a constant tension 

there. Chief Justice Rehnquist, in his book a number of years before the attack of September 11—All the Laws But One is the title 

of it—notes that the balance in war time tends to shift toward 

order. And sometimes in the past, as he documents, we have gone 

beyond what the Constitution would sustain. We have violated 

State statutory laws, also. 

He recounts that at different times during the Civil War, World 

War I or II, the Federal Government suspended the writ of habeas 

corpus, tried civilians in military commissions without a jury, interned people based on race without individualized determinations 

that they were threats to national security, and suppressed antiwar speech and press articles. I would add during the Korean War 

the Federal Government seized privately owned, lawful, legitimate 

steel mills that were not connected to criminal activity. 

Placed in context, it is clear that the constitutional implications 

of the Bush administration’s anti-terrorism efforts are modest. 

They are modest in their impact on our legal system and any constitutional rights that we have. The administration has not suspended the writ of habeas corpus. It has not required persons to 

be tried to this date in a commission without a jury, a citizen. It 

has not authorized the internment of citizens based on race or 

without individualized determinations that they are a threat to national security. 

The administration has not attempted to suppress anti-war 

speech or press articles, and the administration has not seized privately owned, lawful businesses. Indeed, none of these great constitutional issues of American history concerning civil liberties are 

raised by your policy, and I think that is important. 

In fact, I would say I am not aware of any member of this Senate 

or any court that has held that any of the policies contained in the 

PATRIOT Act we passed or the actions you have taken are in violation of the Constitution or statutory law. What we have done and 

what I hope you have done, and I believe you have, is attempted 

to focus on gaps and holes in that law and tighten it up and make 

it more realistic in the face of this threat. 

Would you agree that that is your view, Mr. Attorney General? 

Attorney General ASHCROFT. We certainly have tried to focus on 

the gaps. We had a gap in communication between the intelligence 

community and the law enforcement community. The USA PAVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
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TRIOT Act removed some of the barriers that sort of made those 

gaps possible and we have attempted to eliminate those. 

We had a gap in investigative authority when we told FBI agents 

that they weren’t eligible to look on the Internet, in public places 

on the Internet, for websites that would have bomb-making or anthrax development procedures and lessons on them. We had gaps 

because we required too much to be done in Washington and didn’t 

give enough authority to our agents in the field, so we have tried 

to adjust those things. 

Yes, we are trying to change and the debate is good. We get people on both sides of the debate providing that tension which you 

mention, and in the tension of that debate we can arrive at a balance that is good for America and I believe we have done that. 

Senator SESSIONS. I hope so. I don’t believe it is necessary that 

we violate any of our statutory or constitutional laws, and I would 

oppose that. I think that is just important for us to note. 

Mr. Attorney General, I know you know Michael Spann, a native 

of Alabama, Winfield, Alabama, one of the great towns in the 

State, one of the best high schools—beats other high schools academically consistently in test scores—he went to Auburn University, the Marines—was killed in an uprising at Mazar-i-Sharif, the 

first victim in this war on terrorism of our military. 

Let me ask you this. His father is unhappy with the plea bargain, the 20-year sentence. He questions other things about the 

plea and desires to appear in court and express his views on this 

subject to the judge. Under the Victim Witness Act that has been 

in effect for some time, I believe he would be covered under that. 

And let me just ask you, will you support his right to appear in 

court and express his views on the appropriateness of the sentence 

that would be imposed? 

Attorney General ASHCROFT. Senator, I will look into that. My 

heart goes out to the Spann family. The service of their son was 

valuable to the United States of America and it ended tragically. 

The court case, I believe, that you are talking about is the John 

Walker Lindh case. 

Senator SESSIONS. That is correct. 

Attorney General ASHCROFT. I believe that the plea there was a 

substantial plea. Twenty years is about the equivalent of the 

amount of time that Lindh has been alive. It is a substantial sentence, and as part of the plea agreement Lindh is required to cooperate with the Government, including testifying and providing 

intelligence information in future proceedings, if appropriate. The 

resolution of the case also, of course, frees up resources to be devoted to other cases. 

My heart goes out to the Spann family. I will confer with Justice 

Department attorneys about the best course to undertake in the 

court proceedings. 

Senator SESSIONS. Well, let me just say this. I believe it is within 

the spirit of the Victim Witness Act that he should be allowed 

there, and his widow, also, if she chose to appear. I see no reason 

why he should be denied the right to appear in court and express 

his views. 

In fact, the whole Victim Witness Act was designed to ensure 

that prosecutors don’t enter into secret plea agreements and vicVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
46

tims not have a chance to have their say. I would like for you to 

make sure that he has that opportunity if he asks for it, even if 

he disagrees with your view of the appropriateness of the settlement. 

Attorney General ASHCROFT. Thank you, Senator. As I have indicated, I will confer with our trial team about that. 

Senator SESSIONS. And as I have looked at the matter, I think 

the case on Lindh was strong. I understand that good people can 

differ on the sentence, but I think the facts on the question of treason—and I suspect I will submit, since my time is up, as to why 

he was not charged with treason. It seems to me that you should 

charge the most serious offense provable, and the evidence, I would 

think, comes pretty strong to support that. But I would like to hear 

your view of it and would submit some questions in writing on 

that. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Mr. Attorney General, without going into the question of the sentence, I agree with the Senator from Alabama that under the victims legislation the widow does have a right to be heard, and appropriate family members. I understand the plea bargain is the 

plea bargain, and that is something that you have to make a decision on. 

Apparently, according to press accounts, President Bush personally agreed to the plea bargain. I am not here to debate whether 

that was right or wrong, but I am saying I feel that the law does 

allow—I believe the Senator from Alabama is correct and, if you 

would, when you get back to him, if somebody could get back to me, 

too, if you agree with that interpretation. 

The Senator from Washington State has been waiting here patiently all day, an extremely valuable member of this committee, 

and I would yield to her. 

STATEMENT OF HON. MARIA CANTWELL, A U.S. SENATOR 

FROM THE STATE OF WASHINGTON 

Senator CANTWELL. Thank you, Mr. Chairman, and thank you, 

Attorney General Ashcroft, for being here today and giving the 

committee your time. 

Obviously, Seattle and the Northwest have been in the news a 

lot lately on the issue of terrorism. We have had previous incidents 

of the Ressam case, laptops being found in caves in Afghanistan 

with photographs of Seattle on them, and a variety of things. 

Do you think, from the information you have, that Seattle is 

home to a sleeper cell of terrorist activity? 

Attorney General ASHCROFT. I would decline to comment on specific cities as being involved in any specific way. Let me just say 

this, that I believe there are substantial numbers of individuals in 

this country who endorse the Al Qaeda agenda—some individuals 

have specifically sworn participation in the agenda—and that the 

threat is one that should be taken seriously across the entire 

United States of America. So I would exempt no city. 

As I observed the events of September 11 and as we reconstructed, we found that there was a presence across America of individuals, whether it be from San Diego or Phoenix or Oklahoma 

47

City or Minneapolis or any number of locations, that might not appear to those of us who would say, now, where would you find a 

terrorist? 

But the truth of the matter is that I think we have to have an 

alertness, and I would not devalue any of the items that you have 

mentioned in terms of an indication of whether people should be 

alert in one part of the country or another. 

Senator CANTWELL. Do you have any specific information that 

has not been made public? I understand there may be reasons why 

it hasn’t, but do you have any information that would suggest that 

Seattle is a target for terrorist activities? 

Attorney General ASHCROFT. Well, I think the entire United 

States of America is a target for terrorist activities. Let me say, 

Senator, that in the event that you would like to speak with greater specificity than I can speak in this setting, I would be glad to 

share with you in a secure setting—I don’t want to intimate in any 

respect by this offer that I have specific information regarding any 

city either in your jurisdiction or others, but overall I would be 

happy to find a way to be more forthcoming in a setting that would 

be more appropriate and more consistent with the national interest. 

Senator CANTWELL. Well, as I have read the newspapers and 

watched the television, Seattle has once again come up as a target. 

I have looked at the various information about the U.S. citizen and 

for new Seattle resident James Ujaama, who is now being held. In 

looking at some of the numbers it became strikingly clear that we 

have about 60 agents in the Washington State area. For the surrounding States, we have about twice as many as that. 

So I am going to be asking that you and the FBI look specifically 

at increasing the number of Federal agents and Federal prosecutors in that area. I’m also going to ask that you look at ways that 

the COPS program might be able to enhance the local law enforcement capability in my area. If, in fact, Seattle is going to process 

terrorism information quickly and process it through the system, 

we are going to need more help. 

I don’t know if you have any comments on that. I don’t know if 

that has been made clear to you the deficit in FBI resources in the 

State that probably has developed over a number of years. 

Attorney General ASHCROFT. The allocation of our law enforcement resources should always be the subject of review and our law 

enforcement resources need to be threat-related in terms of they 

ought to be deployed in accordance with threats. 

In terms of those cities that are located in certain ways on the 

borders, we know from your remark that the interception of 

Ressam was in that area. Those cities that are ports of entry have 

exposure in other ways, so that when we balance the deployment 

of our law enforcement authorities we have to measure the risks 

and make those assessments. And we would be very happy to confer with you in that respect about the deployment of resources 

made by the Department. 

Senator CANTWELL. Thank you. I appreciate that very much. 

In the James Ujaama case, which I think represents the third 

U.S. citizen of interest, he is currentyly being held on a Federal 

witness warrant. The Department is interested in Ujaama’s relaVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
48

tionship to London Mosque leader Hamza al-Masri, and in his possible activities in the Northwest in setting up a terrorist training 

camp in Bly, Oregon. 

Do you know how long you intend to hold Mr. Ujaama under that 

material witness warrant? 

Attorney General ASHCROFT. Well, the material witness warrant 

process is one supervised by the courts and it is a program, a criminal justice procedure that provides variable time for holding and 

various other things that relate to court-supervised determinations. 

For me to comment on a specific case is simply inappropriate. We 

will pursue the national interest in respect to cases related to material witness warrants as well as others. 

Senator CANTWELL. So would he be prosecuted in the Federal 

court system or not, or you haven’t made that determination? 

Attorney General ASHCROFT. Well, the material witness warrant 

is part of the grand jury system. It does not necessarily result in 

the prosecution of individuals. It is a program whereby individuals 

are held because they have information that could be important to 

the criminal justice proceedings. 

So the fact that a person is being held as a material witness does 

not indicate that they are the target of, or that that person is the 

target of a specific criminal charge or might ever be. It is the fact 

that we believe information that the person has could be valuable 

to criminal justice proceedings, and the courts make a determination that that person should be subject to detention in order to 

make sure that that information is available when the court or the 

judicial process makes a decision. 

Senator CANTWELL. So does that leave two paths available, then? 

I mean, he could be prosecuted under the Federal court system or 

as an armed combatent? 

Attorney General ASHCROFT. He could only be prosecuted if he 

were to be in some way indicted or charged. And to be detained on 

a material witness warrant is not an indictment or a charge. It is 

merely the determination by the court that a person may be in possession of certain kinds of information that would be valuable in 

criminal justice proceedings against other individuals. 

It does not mean that a person could never be charged, or could 

not in some way be charged either by other authorities such as 

State or local authorities that found other violations as a part of 

his or her behavior. But in and of itself, being detained as a material witness does not slate someone to be tried on any kind of criminal charge. 

Senator CANTWELL. Are the British cooperating with us on the 

Hamza al-Masri case in getting enough evidence to—

Attorney General ASHCROFT. I believe that is fair to say——

Senator CANTWELL. That is why Mr. Ujaama is being held, is 

that right, his relationship to Hamza Al-Masri? 

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

on specific cases. It would be inappropriate. I think it is fair to say 

that the British have been very cooperative with us. The international community has been cooperative, I think it is fair to say, 

beyond previous levels of cooperation in this entire event. 

I have spent quite a bit of time with my international counterparts from around the world and the level of cooperation is increasVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
49

ing and has been gratifying. Obviously, we have to respect the sovereignty and the laws of other nations when we ask them to cooperate. They can’t violate their laws in so doing, but they have 

gone as far as they can in most cases to be very helpful to us. 

Senator CANTWELL. I am going to add for the record some questions or comments about the northern border. Some of my colleagues have already talked about that, but obviously that is one 

of the reasons why I do think the Northwest may need or require 

more Federal agents and prosecutors. 

Also, you have answered a lot of questions today about privacy. 

I asked FBI Director Mueller when he was before the committee 

some time ago whether he thought that we should consider a privacy officer within the FBI, something that may end up saving you 

and he a lot of time before this committee if we had such a post 

in looking at some of our policies internally. 

I know that my time is expired. One thing that I did want to 

point out is the Osman case in Seattle. I know you can’t talk about 

specifics of the case, but I was surprised to find out that Mr. 

Osman also suspected of terrorist activity—and I am just curious 

whether you would be surprised by this as well—Mr. Osman had 

been a Navy reservist. I think he is a Lebanese citizen who maybe 

falsified some immigration information, but I was surprised to hear 

that he had succeeded in becoming a Navy reservist in the Northwest. 

Does that sound surprising or do you think that is something we 

should look into? 

Attorney General ASHCROFT. Well, I think a variety of people 

have found themselves in a variety of settings nationally and there 

have been times when we were far less concerned about those 

kinds of things than we are today. That is why in my remarks I 

think we are thinking anew and acting anew, and some of those 

things will require us to change the way in which we do things. 

Senator CANTWELL. Thank you, Mr. Attorney General. Thank 

you, Mr. Chairman. 

Chairman LEAHY. Thank you very much, Senator Cantwell. 

Senator Edwards? 

Senator EDWARDS. Thank you. 

Mr. Attorney General, I am going to read a quote from one of the 

recent legal briefs that you all filed. You said, ‘‘With respect to the 

military judgment to detain an individual as an enemy combatant 

in a time of war, a court’s inquiry should come to an end once the 

military has shown in the return that it has determined that the 

detainee is an enemy combatant.’’

Is it your position that once the military decides to detain a U.S. 

citizen as an enemy combatant that that citizen has no right to 

make a case, to offer evidence, that he or she is an innocent, loyal 

citizen, and to make that case before an independent judge? 

Attorney General ASHCROFT. My position is that the person has 

a right to a habeas corpus proceeding, but that the courts should 

give very high levels of deference to the President’s determination 

that an individual detained as an enemy combatant is, in fact, detained as an enemy combatant. 

My position is that the detention, not being a matter of the 

criminal justice system, that courts are ill-advised and ill-conVerDate 0ct 09 2002 16:06 Dec 03, 2003 Jkt 090356 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90356.TXT SJUD4 PsN: CMORC
50

structed to try and make judgments about prisoners of war as to 

whether prisoners of war are indeed—at what level or another, to 

second-guess, to try and ascertain is this prisoner of war a real 

prisoner of war, or that one, and to try and develop some basis. 

In the Fourth Circuit, which is a matter which is already on appeal, we have argued a variety of points. And I could cite our brief 

there, but I believe that the determination of the President should 

be given the highest level of deference under the War Powers Act, 

and those who act in his behalf should be accorded that kind of deference. 

Senator EDWARDS. Does that reasoning, Mr. Attorney General, 

apply—and I would point out that, of course, a habeas proceeding 

which you made reference to is about jurisdiction, not about evidence of innocence. Does that reasoning apply to U.S. citizens captured not only in a theater of combat in another country, but also 

folks who are captured here on U.S. soil? 

Attorney General ASHCROFT. We believe that the law relating to 

the detention of enemy combatants is not changed based on the nationality of the person detained as an enemy combatant. We rely, 

of course, on the cases of the Supreme Court, particularly the 

Quirin case, which indicates that the President has the right to detain enemy combatants who are citizens of the United States in the 

same way that he would have the right to detain enemy combatants who are non-citizens. 

Senator EDWARDS. I know that some concern has been expressed 

by you and others in the past about the danger to, for example, national security in having any kind of any open court proceeding. 

You know, of course, that there are procedures like the Classified 

Information Procedures Act, military courts, and other ways to deal 

with that. 

Under the reasoning that you have just talked about, would it be 

possible for the Government to pick up me or you or anybody else 

in this room, label them an enemy combatant, put them in jail, 

keep them there, and in that case for none of us to ever get an opportunity to make the case that we are innocent and that we are 

not, in fact, an enemy combatant before some independent body, 

some judge? 

Attorney General ASHCROFT. I think one of the most instructive 

cases in that respect would be Ex Parte Milligan, which was a case 

finalized in 1866. The Supreme Court held that non-belligerent citizens with no links to enemy forces may not be detained by the military, and I think that that is probably the best answer I can give 

you in that respect. 

Senator EDWARDS. Mr. Attorney General, let me ask you—I don’t 

mean to interrupt you. Were you finished? I am sorry. 

Attorney General ASHCROFT. I am close enough to being finished. 

I hope I am finished soon. 

[Laughter.] 

Senator EDWARDS. I think I am the last one. 

I am asking you whether you believe it is right, as the Attorney 

General of the United States, that anybody in this room could be 

picked up by——

51

Attorney General ASHCROFT. Absolutely not, no. I just don’t 

think that people arbitrarily can be picked up and labeled. The determination has to be made. 

Senator EDWARDS. OK, and do you believe that that person, whoever is picked up, should have an opportunity in some forum—you 

know, confidential, nobody else there, someplace—I mean, there 

are multiple choices of forums. I am not concerned about that, and 

I am certainly not concerned about it being done in an open court. 

But should any one of us who is picked up and labeled as an 

enemy combatant at least get a chance to make a case to somebody 

other than the people who picked us up that we are, in fact, innocent and we are not an enemy combatant? That is what I am asking you, not about cases. I am asking what you think. 

Attorney General ASHCROFT. Well, I can’t divorce myself completely from cases. It is my responsibility to represent the United 

States of America in this setting. We are doing so in a matter 

which is currently being litigated in the Fourth Circuit. 

While we concede that a habeas proceeding can be appropriate, 

we believe that very substantial deference needs to be given to the 

President of the United States in his exercise of the war powers 

and his Commander-in-Chief responsibility, and that that is an appropriate thing for the President to do when the Nation is at risk. 

Senator EDWARDS. Well, you mentioned cases and I think you 

specifically mentioned the Fourth Circuit. I believe that the Fourth 

Circuit recently declined to dismiss a case because they weren’t 

ready to accept, if I understand the case correctly, your view, and 

I am quoting now from the case, ‘‘with no meaningful judicial review any American citizen alleged to be an enemy combatant may 

be detained indefinitely without charges or counsel on the Government’s say-so.’’ So I think there is actually some law to the contrary about this. 

But since I don’t have much time, let me move on quickly to one 

last subject, the right to counsel. You have taken the position that 

there is no right under the laws and customs of war for an enemy 

combatant to meet with counsel concerning his detention. 

Is one of the concerns of allowing such a person—and I have 

asked you about whether they ought to be able to make their case 

that they are, in fact, innocent. Now, I am asking you whether they 

ought to at least be able to talk to a lawyer. 

Is one of the concerns about them being able to at least have a 

conversation with a lawyer that that might be a way for them to 

pass information to the outside world if, in fact, they are hostile to 

the United States? 

Attorney General ASHCROFT. There is no question about the fact 

that people who are enemies of the United States sometimes seek 

to use unconventional means to communicate regarding plots and 

other things. We have other cases that are directly on point to that 

that relate to people held in the criminal justice system. 

Now, what you are making reference to, I believe, are prisoners 

of war, not people in the criminal justice system. 

Senator EDWARDS. I am talking about enemy combatants specifically. 

Attorney General ASHCROFT. Frankly, even under the Third Geneva Convention, which does not afford protections to unlawful 

52

enemy combatants, no prisoners of war have the right of access to 

counsel to challenge their detention. The only time even the Geneva Conventions provide a right to counsel is for POWs that are 

charged with crimes, and people just held as enemy combatants are 

not in that category. 

Senator EDWARDS. Of course, besides international law, there is 

the issue of what we require and what we believe in here in this 

country. 

Let me ask you this. There are, of course, I think you would recognize, men and women in the military who are capable, competent 

lawyers, whose service to their country is beyond dispute. There 

are lawyers within the Government who have the highest level of 

clearance to keep, receive, and maintain classified secrets of the 

United States. 

Would you be willing to let those lawyers, about whom there is 

absolutely no question about both their loyalty to the United States 

and that they would protect any information, because they have a 

long, clearly established record of having done it—would you be 

willing to let those lawyers talk to people who have been detained, 

imprisoned, as enemy combatants? 

Attorney General ASHCROFT. I don’t believe it is in the national 

interest of the United States to provide military lawyers from our 

army to confer with enemy combatants who have been detained as 

prisoners. 

Senator EDWARDS. And would you say the same thing about 

other lawyers who have been cleared, have had high-level, classified clearing, so that there is no question about their own integrity 

and their own willingness and history of maintaining classified information? 

Attorney General ASHCROFT. I do not view this as a matter of 

challenging the integrity of the lawyers. That is not our concern 

here. The establishment of a right for prisoners of war to be given 

access to counsel is fraught with a number of difficulties and I am 

not prepared to endorse that proposal at this time. 

Senator EDWARDS. Well, let me just say this because I know we 

need to finish this hearing. I don’t think any of us have any doubt 

that some of the people that are involved in this category of being 

classified as an enemy combatant are despicable, and based on 

what I know they belong in prison. But the fact that somebody is 

despicable, the fact that we believe—you, me, anybody in this room 

believes they belong in prison is not enough, under the tradition 

and history of this country, to imprison them forever without them 

ever having a hearing, without them ever being able to talk to a 

lawyer. 

So I think those kinds of issues go to the very values that we believe in as a Nation. And I don’t think it just protects them, and 

I can see why some people would believe they don’t deserve protection, but I think it protects all of us to make sure innocent people 

don’t go to jail. 

It also makes sure, by the way, that other countries take our 

legal system seriously and don’t believe that they can imprison 

U.S. citizens in their countries and then say, well, look, they are 

doing the same thing to their own citizens in the United States. 

53

So those are my concerns. I believe that based on everything I 

read that the people I am aware of being detained belong where 

they are. My concern is over the long term I think it is important 

for us as a Nation to send the right signals both to our own people 

on what our values and beliefs are and to other nations on what 

we stand for as a country. 

I appreciate your answering my questions. 

Attorney General ASHCROFT. Thank you. 

Chairman LEAHY. On that point, Mr. Attorney General, I know 

we have an American citizen by the name of Hamdi who is being 

held. Your Department has said in a legal brief that he has neither 

a right to counsel nor a right to habeas corpus, or even to see an 

attorney. 

I would ask when you are having some of this information if you 

could have somebody brief me on just what that is and the involvement, because I agree with what Senator Edwards has said. I am 

always concerned in our attempt to protect ourselves that we don’t 

protect ourselves if we trample too much on individual rights. All 

of us fear the idea that if we get arrested for something and we 

are totally innocent, we want at least a chance to get that word 

out. 

But, second, of course, we have to deal with a whole lot of other 

countries, and we have always been able to hold ourselves up to a 

very high level of the rule of law and we don’t want to give them 

an excuse, if they are holding American citizens, to say we are 

doing nothing different than you. 

We are about to pass the most important corporate reform legislation in decades this week. They had the committee of conference 

last night and the Sarbanes-Oxley accounting part and the LeahyMcCain criminal law part passed. 

I had written both the White House and the Department of Justice to see if they had any position one way or the other on the legislation, and they did not. I wanted to see if they had formally expressed support for the Sarbanes or the Leahy bill. They did not, 

so we went forward without administration involvement, although 

the President is now looking forward to signing the legislation as 

soon as we pass it. So that is going to pass without the input from 

the administration. 

But we do have one reform bill here, and Director Mueller has 

been working hard to reorganize the FBI and we have had hearings in this committee. Based on these hearings, this committee, 

Republicans and Democrats together, unanimously passed the 

Leahy-Grassley FBI Reform Act, strengthening FBI oversight, security, and management. It is on the floor of the Senate now. There 

is a Republican hold on this reform bill. 

I would ask again if the Department of Justice could let us know 

if you have a position on this bill that has passed unanimously 

from here and will you work with us to give Director Mueller the 

tools he needs? 

Attorney General ASHCROFT. We will be happy to consider the 

measure and to confer with you about it. 

Chairman LEAHY. Please do that because we have been trying to 

get input. I realize it is too late to get input from the administration and the Department of Justice on the legislation that Senator 

54

Sarbanes, Congressman Oxley, and I and others have passed, but 

I would like it on this. 

For example, should the FBI’s new analysts that they are getting 

be transferred over to the Homeland Security Department? Do you 

have any feeling on that? 

Attorney General ASHCROFT. I believe the FBI needs to have an 

analysis section in the FBI. It is very important that they have the 

ability to——

Chairman LEAHY. Well, we all agree with that, but should they 

be put over into Homeland Security? 

Attorney General ASHCROFT. I don’t think so. I believe that it is 

important to have the investigative and analytic responsibilities of 

the FBI in the Justice Department, where we also have a group of 

individuals, very talented and energetic, that are charged with respecting the rights of individuals. 

So I think it is healthy to have the defense of the civil rights of 

individuals in the same department as the investigative and intelligence arm, because I believe it provides a counter-weight and balance, much of which we have talked about today, that is healthy. 

When we talk about security and we say that there is a tradeoff 

between security and liberty, sometimes I think we misstate the 

issue. I believe what we are securing is liberty, and if what we are 

securing is liberty, there has to be that serious attention to the 

freedoms involved and I want to give that in every respect. 

Chairman LEAHY. I think Benjamin Franklin was the one who 

had it right when he said, in effect, if people give up their liberty 

for security, they deserve neither. I want us to have both. 

Senator Durbin was coming back, but he is managing a bill on 

the floor. So, without objection, his and the other Senators’ questions can be submitted for the record. 

Attorney General Ashcroft, it is always good to have you here. 

Thank you for coming by. 

[The prepared statement of Attorney General Ashcroft appears 

as a submission for the record.] 

Chairman LEAHY. We stand adjourned. 

[Whereupon, at 1:19 p.m., the committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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Æ


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