[Senate Hearing 107-1016]
[From the U.S. Government Publishing Office]


                                                       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








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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director





                            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


                 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.
    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 outdated 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 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 
anti-terrorism 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 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 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.

     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 intelligence-sharing 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 suspected 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 
information-gathering 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 expansion 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 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?
    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.
    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.
    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 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.
    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 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 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 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 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?
    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 
non-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 stated 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 protecting 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.
    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 institutional 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 aircraft, 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 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.
    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 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.
    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 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 front-line 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.]

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?
    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----
    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 address 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 
multi-layered 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.
    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----
    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 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 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 then-Justice 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 post-9/11 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 security, 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-
and-forth. 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 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.
    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, 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.
    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 anti-war 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 PATRIOT 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 victims 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 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 relationship 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 increasing 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-constructed 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----
    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 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.
    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 Leahy-McCain 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 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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