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Senate Judiciary Hearing of Attorney General Ashcroft

Aired December 6, 2001 - 10:26   ET


LEON HARRIS, CNN ANCHOR: We'll be going to those Ashcroft hearings underway right now in the Senate Judiciary Committee. As a matter of fact, let's go there right now. Mr. Ashcroft is just now beginning his remarks.


JOHN ASHCROFT, ATTORNEY GENERAL: -- before you today, it's a pleasure to be back in the United States Senate, and I'm grateful. On the morning of September 11th, as the United States came under attack, I was in an airplane with several members of the Justice Department en route to Milwaukee, in the skies over the Great Lakes. By the time we could return to Washington, thousands of people had been murdered at the World Trade Center. 189 more were dead at the Pentagon. 44 had died in the crash to the ground in Pennsylvania.

From that moment, at the command of the president of the United States, I began to mobilize the resources of the Department of Justice toward one single overarching and overriding objective: to save innocent lives from further acts of terrorism. America's campaign to save innocent lives from terrorists is now 87 days old. It has brought me back to this committee to report to you in accordance with Congress's oversight role. I welcome this opportunity to clarify for you, and for the American people, how the Justice Department is working to protect American lives while preserving American liberty.

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

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

The terrorist enemy that threatens civilization today is unlike any we have ever known. It slaughters thousands of innocents, a crime of war and a crime against humanity. It seeks weapons of mass destruction and threatens their use against America. No one should doubt the intent nor the depth of its continuing destructive hatred. Terrorist operatives infiltrate our communities, plotting, planning, waiting to kill again. They enjoy the benefits of our free society, even as they commit themselves to our destruction. They exploit our openness. Not randomly or haphazardly, but by deliberate premeditated design.

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

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

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

Mr. Chairman and members of this committee, we are at war with an enemy that abuses individual rights as it abuses jetliners. It abuses those rights to make weapons of them with which to kill Americans. We have responded by redefining the mission of the Department of Justice. Defending our nation and its citizens against terrorist attacks is now our first and overriding priority.

We have launched the largest, most comprehensive criminal investigation in world history to identify the killers of the September 11th tragedy, and to prevent further terrorist attacks. 4,000 FBI agents are engaged with other international counterparts in an unprecedented worldwide effort to detect, disrupt, and dismantle terrorist organizations. We've created a national task force at the FBI to centralize control and information sharing in our investigation. This task force has investigated hundreds of thousands of leads, conducted over 500 searches, interviewed thousands of witnesses, and obtained numerous court authorized surveillance orders.

Our prosecutors and agents have collected information and evidence from countries throughout the Middle East and through Europe. Immediately following the September 11th attacks, the Bureau of Prisons acted swiftly to intensify security precautions in connection with al Qaeda and other terrorist inmates, increasing perimeter security at a number of key facilities.

We have sought and we received additional tools from Congress for which we are grateful. You have cited them, and they are important. Already we have begun to utilize many of these tools. Within hours of the passage of the U.S.A. Patriot act, we made use of its provisions to begin enhanced information sharing between the law enforcement and the intelligence communities. We have used the provisions allowing nationwide search warrants for e-mail and subpoenas for payment information. We have used the act to place those who access the Internet through cable companies on the same footing as other individuals.

Just yesterday, at my request, the State Department designated 39 entities as terrorist organizations pursuant to the U.S.A. Patriot act. We have waged a deliberate campaign of arrest and detention. To remove suspected terrorists who violate the law from our streets. Currently, we have brought criminal charges against about -- well, against, pardon me -- 110 individuals of whom 60 in federal custody. The INS has detained 563 individuals on immigration violations -- has in detention today. We have investigated more than 250 incidents of retaliatory violence and threats against Arab-Americans, Muslim- Americans, Sikh-Americans, and South Asian-Americans.

Since September the 11th, the Customs Service and Border Patrol have been at their highest state of alert. All vehicles and persons entering this country are subjected to the highest level of scrutiny. Working with the State Department, we have imposed new screening requirements on certain applicants for non-immigrant visas.

At the direction of the president, we have created a foreign terrorist tracking task force to ensure that we do everything we can to prevent terrorists from entering the country and to locate and remove those who are already here. We have prosecuted to the fullest extent of the law individuals whose waste precious law enforcement resources through anthrax hoaxes. We have offered noncitizens willing to come forward with a valuable info -- pardon me, with -- willing to come forward with valuable information, a chance to live in this country and one day to become citizens. We have forged new cooperative agreements with Canada to protect our borders, and the economic prosperity that our borders and the appropriate maintenance of the flow of commerce across the borders sustains. We have embarked on a wartime reorganization of the Department of Justice. We are transferring resources and personnel to field offices where citizens are served and protected.

The INS is being restructured to better perform its service and border security responsibilities. Under Director Bob Mueller, the FBI is undergoing an historic reorganization to put the prevention of terrorism at the center of its law enforcement and national security effort. Outside Washington, we are forging new relationships of cooperation with state and local law enforcement. We've created 93 anti-terrorism task forces across the country in each U.S. Attorney's district to integrate the communications and activities of state, local, and federal law enforcement. In all of the ways and more, the Department of Justice has sought to prevent terrorism with reason, careful balance, and excruciating attention to detail.

Some of our critics, I regret to say, have shown less affection for detail. Their bold declaration of so-called facts have quickly dissolved upon inspection into vague conjecture. Charges of kangaroo courts and shredding the Constitution give new meaning to the term "fog of war."

Since lives and liberties depend on clarity, not obfuscation, and upon reason, not hyperbole, let me take this opportunity to be clear. Each action taken by the Department of Justice as well as the war crimes commissions, considered by the President and the Department of Defense, is carefully drawn to target a narrow class of individuals. Terrorists. Our legal powers are targeted at terrorists. Our investigation is focused on terrorists. Our prevention strategy targets the terrorist threat. Since 1983, the United States government has defined terrorists as those who perpetrate premeditated politically motivated violence against noncombatant targets.

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

Our efforts have been crafted carefully to avoid infringing on constitutional rights while saving American lives. We have engaged in a deliberate campaign of arrest and detention of law breakers. All persons being detained have the right to contact their lawyers, and their families. Our respect for their privacy and concern for saving lives motivates us not to publicize the names of those detained.

We have the authority to monitor the conversations of 16 of 158,000 federal inmates and their attorneys because we suspect these communications could facilitate acts of terrorism. Each such prisoner has been told in advance his conversations will be monitored. None of the information that is protected by a attorney client privilege may be used for prosecution. Information will only be used to stop impending terrorist acts and to save American lives. We have asked a very limited number of individuals, visitors to our country, holding passports from countries with active al Qaeda operations to speak voluntarily with law enforcement. We are forcing them to do nothing. We are merely asking them to do the right thing, to willingly disclose information they may have of terrorist threats to the lives and safety of all people in the United States.

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

However, Congress has powers of oversight -- Congress's power of oversight is not without limits. The Constitution specifically delegates to the president the authority to -- and I quote -- "take care that the laws are faithfully executed." -- close quote. And, perhaps most importantly, the Constitution vests the president with the extraordinary and sole authority as commander in chief to lead our nation in times of war.

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

In some areas, however, I cannot and will not consult with you. The advice I give to the president, whether in his role as commander in chief when at war or in any other capacity, is privileged and confidential. I cannot and will not divulge the contents, the context, or even the existence of such advice to anyone, including Congress, unless the president instructs me so to do. I cannot and will not divulge information, nor do I believe that anyone here would wish me to divulge information that would damage the national security of the United States, the safety of its citizens, or our efforts to ensure the same in an ongoing investigation.

As attorney general, it is my responsibility, at the direction of the president, to exercise those core executive powers the Constitution so designates. The law enforcement initiatives undertaken by the Department of Justice, those individuals we arrest, detain, or seek to interview, fall under those -- these core executive powers. In addition, the president's authority to establish war crimes commissions arises out of his power as commander in chief.

For centuries, Congress has recognized this authority, and the Supreme Court has never held that any Congress may limit it. In accordance with over 200 years of historical and legal precedent, the executive branch is now exercising its core constitutional powers in the interest of saving the lives of Americans. I trust that Congress will respect the proper limits of executive branch consultation that I am duty bound to uphold. I trust, as well, that Congress will respect this president's authority to wage war on terrorism, and to defend our nation and its citizens with all the power vested in him by the Constitution and entrusted to him by the American people. I thank you for your willingness to allow me to complete this statement.

SEN. PATRICK LEAHY (D-VT), SENATE JUDICIARY CHAIRMAN: No. I think it's important that you do, and I, again, appreciate you doing that. Senator Thurmond has asked to make a short statement in support, and with no objection from the other members, a senior member of this committee, I would yield to Senator Thurmond.

SEN. STROM THURMOND (R), SOUTH CAROLINA: Mr. Chairman, I'm pleased that you're holding this hearing (UNINTELLIGIBLE) on the president's law enforcement initiatives in the war against terrorism. This committee has the important oversight role, and we must ensure its actions in the government are in accordance with the Constitution. The attorney general, Mr. Attorney General, thank you for taking your time from your busy schedule to be here today.

You have done an excellent job of leading the Department of Justice during these difficult times, and I thank you for your faithful and -- service to our nation. I believe, as the criticism directed towards the administration is unfounded, and you (ph) to prevent future attacks is your greatest responsibility. The president has responded with action that will protect American lives while preserving civil liberties. Mr. Chairman, I believe that the policy of the administration, our regular (ph) law enforcement tools, and our Constitution. Equal efforts of the president and the attorney general will pull (ph) the war against terror -- against terrorism. I look forward to hearing your testimony on the changes of today (ph). Thank you very much.

ASHCROFT: Thank you.

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

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

Now, there is interest in the Congress in defining what a military tribunal could be. The president -- what would be his authority. The administration officials have stated the plan, scope of military tribunals was far narrower than had been suggested by the original order. More recent assurances that it would be applied sparingly have been helpful. So I wanted to see how the -- how the administration would use the military order. Where it's written in (ph) the military order applies to non-citizens of the United States. That would cover about 20 million people here in the United States, legally, today.

But the president's counsel, now, says military commissions would not be held in the United States, but rather, close to where our forces may be fighting, and then anonymous administration officials said there's no plan to use military commissions in this country, but only for those caught in battlefield operations. Secondly, while the military order is essentially silent on the procedural safeguards that would be provided in military commission trials, the White House counsel is now explaining the military commissions would be conducted like courts marshal. Third, nothing in the military order prevents commission trials from being conducted in secret, as done, for example, the eight Nazi saboteurs after World War II, most often cited by the administration.

But now, Mr. Gonzalez says the trials before military commissions would be op -- as open as possible. Mr. Chertoff said something similar. Now, this is in sharp contrast to statements before our hearings that -- quote from the administration -- "proceedings promised to be swift and largely secret," as one military officer saying that the release of information might be limited in the various facts like the defendant's name. Finally, the order expressly states that the accused at military commissions shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, in any court.

But now, the administration says this is not an effort to suspend habeas corpus. So now, with the explanations that have come out subsequently, I understand, first, that the administration does not intend to use military commissions to try people arrested in the United States. Secondly, the military commissions will follow the rules of procedural fairness used for trying U.S. military personnel. And thirdly, the judgments of the military commissions will be subject to judicial review. Is that your understanding, also?

ASHCROFT: Well, you've given me a lot of think about.

LEAHY: Well let me -- I --

ASHCROFT: You've spoken a number of things that I'd like to comment on. First of all, about the authority of the president of the United States to wage war, under the Constitution, and to address war crimes in the process of waging war, I believe that's clearly the power of the president and his power to undertake that unilaterally. The Supreme Court did address in the Kweran (ph) case 60 years ago the issue of war crimes commissions. And in that case, it cited the -- it cited the authority of the Congressional declaration of war as language recognizing the president's power to create war crimes commissions. But I don't believe the court indicates that -- or predicates its assumption and accordance of the president that power upon -- upon that particular authority. Nevertheless, the identical authority found in the article of declaration of war in the second World War is now the authority which is listed in the Uniform Code of Military Justice at 10 USC section 821. And it is my position that the president has an inherent authority and power to conduct war and to prosecute war crimes absent that indication in the Code of Military Justice, but for those who would disagree with that, the identical provision authority that was existent and was present in the Kweran (ph) situation is now present in the U.S. Code of Military Justice--

LEAHY: Mr. General, if I might, just for a moment -- the Kweran (ph) case did not address the question of whether the president could set up a military tribunal absent Congressional authority. It did not question -- they did not raise -- they did not address that question. And the previous Ex parte Milligan apparently did. But my question still goes to this: aside -- and understand there are members on both sides of the aisle who are willing to work with you to try to establish a -- an authority -- a Congressional authority for military tribunals within a certain framework.

But with all the changes and switchbacks and everything else in the statements that have come from different parts of the administration, my question is still, basically, is it -- does the administration, no matter whether these are legal or not, is it my understanding, correct, that the administration: One, does not intend to use military commissions to try people arrested in the United States; two, the military commissioners that follow the rules of procedural fairness used for trying U.S. military personnel; and three, the judgments of the military commissions will be subject to judicial review. Are those three points -- is that understanding correct? Is that your understanding?

ASHCROFT: I cannot say that I have that understanding in the way that you have it.

LEAHY: Okay.

ASHCROFT: I do not know that the United States would forfeit the right to try in a military commission an alien terrorist who is apprehended on his way into the United States from a submarine, or from a ship carrying explosives or otherwise seeking to commandeer an American asset to explode or otherwise commit acts of terror against the United States.

LEAHY: -- not my question.

ASHCROFT: Your question asked about people arrested in the United States, would it be possible for that person to be so arrested, I think -- I don't want -- let me just indicate this. Two points: One, I want to mention that Ex parte Millikan -- Milligan was limited in -- in the Kweran (ph) case. Limited to its facts, and the Kweran (ph) case upheld the use of commissions in the United States against enemy belligerents; and number two, the president's order, which I believe to be constitutional, assigns to the Department of Defense the development of a framework that would answer many of the questions, and it's premature to try and anticipate exactly what that framework would be, in my judgment.

I stand ready, as provided in the president's military order establishing commissions, to try war crimes to assist the -- the Department of Defense, and, frankly, I would stand ready to convey, if you -- wanted me to be the conduit to convey suggestions from the Congress to the Department of Defense, although you all have complete access to the Department of Defense for the achievement of those purposes.

LEAHY: Well, just so -- so members of the committee will understand, originally -- and I'm advised that we're going to have three votes beginning at eleven on three federal judges, one being a courts of appeal judge, the other two being district judges. I've asked -- I've went to floor and asked that they might do it by voice vote, the two district judges, because they're both ones that we voted unanimously to pass, out of the Judiciary Committee. Court of Appeals judge would be then done by -- by roll call, and if that procedure is followed, which I understand they will, we would not have that first vote until 10:40? 11:00? 11:40. So with that, I yield to Senator Hatch.

SEN. ORRIN HATCH (R-UT), RANKING MEMBER, SENATE JUDICIARY COMMITTEE: Well, thank you, Mr. Chairman. General Ashcroft, some have questioned the continuing validity of Ex parte Kweran (ph), of that case, as authority for further presidential orders establishing military commissions. On the other hand, that case was unanimously decided by the eight justices who heard it.

Further, the Supreme Court reaffirmed Kweran just four years later, and Enray Yamashida (ph), and in both cases they followed historic practice given -- or practice since our country's founding. Now, given the case law, the historical practice and the Section 821 of Title 10 of the United States Code, which continues to expressly recognize the military commissions, passed by Congress, is it your view that the current United States Code is sufficient legal basis for the president's military order?

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

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

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

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

HATCH: Department of Defense, yeah.

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

HATCH: Thank you. Now the Executive Office of the United States Attorneys reports that for the Fiscal Year 2001, the conviction rate of civilians tried on the criminal charges in Article 3 courts around the country is 91 percent. The Southern District of New York, in that district, the conviction rate is 97.2 percent.

Given that the conviction rate of the military commissions used after World War II was approximately 85 percent, do you think there's any basis for prejudging military commissions as unfair to defendants? Or somehow that they lack the constitutional safeguards, or would lack the constitutional safeguards, although admittedly not all of the additional rights that some in the extreme -- that some of the extreme interpreters would wish to grant to criminals, even terrorist defendants?

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

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

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

This letter says "In regard to the article entitled 'Ex-FBI Officials Criticized Tactics on Terrorism' by Jim McGee, printed in your newspaper November 28th, 2001, he offers the following comments." And let me just read a few. And I'll put the letter in the record. "The article quotes me out of context" -- better get the name here. The name is Oliver B. Revell, Beck Revell (ph).

"The article quotes me out of context and therefore conveys an inaccurate betrayal of my views on the current FBI and Justice Department efforts in the aftermath of the September 11th terrorist attacks. First, I believe the that FBI-associated law enforcement agencies and the Justice Department are doing a very good job under difficult circumstances. Two, the terrorist attacks and subsequent anthrax incidents have presented our law enforcement agencies with the most difficult problem they have had to face in their entire history."

And he goes on through the rest of the -- the rest of this letter. So again, could you comment on this and whether or not your -- the FBI and the Justice Department are not using the appropriate investigatorial techniques that have been long used? And, or whether you have to use those, plus additional ones, to be able to get the job done in protecting the American people?

Well, I ask (UNINTELLIGIBLE) that letter go in the records.

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

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

HATCH: Thank you Mr. Attorney general.

LEAHY: Thank you. I have a number of other items, also for the record, and the objection they'll be submitted for the record. And Senator Kennedy.

SEN. TED KENNEDY (D-MA), SENATE JUDICIARY COMMITTEE: Thank you very much. Thank you, General. General, like Senator Leahy I'm profoundly concerned about the administration's broad plan on the military tribunals. And the plan raises extremely serious questions about fundamental civil liberties, questions that have not yet been satisfactorily answered by the administration's officials defending it.

History has shown that the military courts effective, but they've also shown that they've been abused. And this time we want to try to get it right. And it is of profound importance to the country that we defend our ideals and our security. President Bush's executive order is a broad proposal that has enormous potential for abuse. There are few, if any, due process right grant -- granted to defendants, and trials may occur in complete secrecy.

The constitutional experts have told us, however, that we can implement fair military trials that ensure fundamental civil liberties. We know it can be done. We know it should be done. But we have not heard that it -- that it will be done. So I'm interested in what steps are being taken to give the meaning to the principle -- which, you know, you referenced here, yourself this morning, of full and fair military tribunals. And how would the administration work with the Congress to protect the constitutional ideals? And when will we hear this? What can you tell us about the scope?

ASHCROFT: Well, I am pleased to say that the president's order requires that there be full and fair proceedings. Those are the kinds of descriptive terms that have governed the development of war crimes commissions and that govern the proceedings of war crime commissions that operate today. The president has ordered -- and it is a military order -- to the Department of Defense. It's out of his responsibility as commander in chief of a nation that -- in conflict, that he ordered that the Defense Department develop a framework that would provide full and fair proceedings.

There are, obviously, some hints in the president's order that indicate a level of fairness that I think is clearly understood. He's indicated that the hearings should be closed when it's in the national interest to close them. And when -- and I -- I think the -- the administration has made clear its desire not to close hearings when they're not in the national interest.

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

I believe that the Department of Defense, which has over 3,000 active, full-time working lawyers, and which conducts a wide variety of military operations that relate to the adjudication of charges, has the capacity to develop a plan and framework that will work effectively and I expect it to do so. We'll stand ready to assist them in doing so.

KENNEDY: Can you give us some idea when that'll be submit -- when that'll be announced? Or, and can you be any more precise in terms of the scope? Or is that the way you want to leave it?

ASHCROFT: Well, Senator. I cannot.


ASHCROFT: And I -- I just don't have specific information about the time line. I would mention that the time in this setting is one where the president has sought to create a tool to protect American lives through his conduct of the war and to create it in advance and make to it known to the Congress and to the people of this country, well in advance of any demand for its services.

In the Roosevelt administration 60 years ago didn't have luxury of that kind of commentary, and I'm sure contributions made by the Congress and those in the culture would be welcomed by the secretary of defense.

KENNEDY: Well, I'd like to have gotten into the questions on the automatic -- the administration's automatic stays of immigration judges' release orders and the attorney-client communications. But let me, in the time that I do have left, just get into one area. And that is in reference to the "New York Times" story this morning.

Last month, a manual entitled "How Can I Train Myself With Jihad?" It's a manual similar to the one that you mentioned here, was found in a terrorist safe house in Kabul, and it states "in other countries some states of the U.S., it's perfectly legal for members of the the public to own certain types of firearms. If you live in such a country, obtain an assault weapon legally, prefer AK-47 or variations. Learn how to use it properly and go and practice in the areas allowed for training."

In September, a federal court convicted a number of members of the terrorist group, Hezbollah, on 7 counts of weapon charges and conspiracy to ship weapons and ammunition to Lebanon. He had purchased many of the weapons at gun shows in Michigan. We've been trying to deal with this problem for many months. Potential terrorists can walk into a gun show, walk out a with gun, no questions asked.

The report in today's "New York Times," that officials at the Department of Justice refuse to let the FBI examine its background checklist to determine whether any of the 1200 people detained following the September 11th attacks recently bought guns. Why is the department handcuffing the FBI in its effort to investigate gun purchases by suspected terrorists?

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

KENNEDY: Do you think it ought to be changed?

ASHCROFT: When the -- when the -- when the request first came, obviously the instinct of the FBI was to use the information to see if -- when they were advised by those who monitor whether or not we're following the Congressional -- Congressional dir -- direction, we stopped. And I believe we did the right thing in observing what the law of the United States compels us to observe. That the -- that the list has...

KENNEDY: Do you think it ought to be changed in that provision?

ASHCROFT: I'd be happy -- KENNEDY: The FBI obviously wants that power in order to try and deal with the problems of terrorism. Would you support it?

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

KENNEDY: Well, would you submit legislation to do what the FBI wants to have done? Would you work with the FBI to -- and submit legislation to deal with this?

ASHCROFT: I'll be happy to consider any legislation that you would -- would -- would propose.

KENNEDY: Thank you.

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

SEN. CHARLES E. GRASSLEY (R-IA), SENATE JUDICIARY COMMITTEE: Thank you, Mr. Chairman, and welcome to our former colleague. In the Kieran case, the Supreme Court held that the Nazi spies were defined as unlawful beligerants. As such the Court held that they were such ...

LEON HARRIS, CNN ANCHOR: You've been listening to the first opening salvos, if you will, of this Senate judiciary hearing, where Attorney General John Ashcroft has been called to answer the questions of those on the committee about President Bush's plans for pursuing military tribunal and other such tactics in this war on terrorism.

And secretary, I'm sorry, the attorney general saying that he does not want to see the Congress tie the president's hands in his pursuit of this war against terrorism. But it does appear, though, that the administration may be making something of a change in some of their plans and easing back on some of the different -- different tactics that they were trying to pursue. We'll keep our eye on that hearing, and we'll give you the updates on that as it progresses.




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