[Senate Hearing 108-782]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-782

               DOJ OVERSIGHT: TERRORISM AND OTHER TOPICS

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                              JUNE 8, 2004

                               __________

                          Serial No. J-108-79

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
    prepared statement...........................................   182
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     4
    prepared statement...........................................   186
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York, prepared statement and attachment........................   195

                                WITNESS

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

                         QUESTIONS AND ANSWERS

Responses of John Ashcroft to questions submitted by Senator 
  Leahy..........................................................    54
Responses of John Ashcroft to questions submitted by Senators 
  Leahy, Wyden, Grassley, Biden, Edwards, Kennedy, Kohl, Durbin, 
  and Feingold...................................................    63

                       SUBMISSIONS FOR THE RECORD

Allegheny Technologies, Jon D. Walton, Executive Vice President, 
  Human Resources, Chief Legal and Compliance Officer, 
  Pittsburgh, Pennsylvania, prepared statement...................   161
Ashcroft, Hon. John, Attorney General, Department of Justice, 
  Washington, D.C., prepared statement...........................   163
New York Times, June 8, 2004, article............................   192
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania, letter and attachment............................   200
Wall Street Journal, Jess Bravin, article........................   203
Washington Post, June 8, 2004, article...........................   209

 
               DOJ OVERSIGHT: TERRORISM AND OTHER TOPICS

                              ----------                              


                         TUESDAY, JUNE 8, 2004

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Grassley, Specter, Kyl, DeWine, 
Sessions, Craig, Cornyn, Leahy, Kennedy, Biden, Kohl, 
Feinstein, Feingold, Schumer, Durbin, and Edwards.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Chairman Hatch. If we could have order. I apologize for my 
laryngitis. We welcome you, Mr. Attorney General.
    Before I make my introductory remarks concerning this 
hearing, I want to say a few words about former President 
Ronald Reagan. He took office during a difficult time in 
America's history and helped usher in an era of both peace and 
prosperity. And you really cannot do much better than that.
    As we face new challenges from terrorists both at home and 
abroad, we would do well to emulate President Reagan's 
unfailing qualities of dignity and courtesy as well as his 
reliance on traditional American values, including his 
remarkable ability to communicate a sense of confidence and 
optimism about the future of our country.
    As we work to thwart the new threat posed by terrorists, we 
must not forget the fact that our Nation has a history of 
defeating determined adversaries through the leadership of men 
like President Reagan and the perseverance of many citizens in 
many nations over a sustained period of time. We prevailed 
against fascism and communism and have made old enemies into 
new allies, and it took that type of leadership to do it. He 
was one of my closest friends. I think I am the only person he 
ever pre-primary endorsed, or at least up to that time, and we 
were very close. And so I wish Nancy and the children the very 
best, and I certainly send all of the sympathy, I am sure, of 
all of us to them.
    Now, as we work here today, today's oversight hearing will 
mark the seventh hearing at which our Committee will have an 
opportunity to explore the effectiveness and the preparedness 
of the Federal Government to prevent and respond to terrorism 
on American soil.
    Let me welcome our distinguished witness, the 79th Attorney 
General of the United States and our former colleague on this 
Committee, John Ashcroft.
    The Attorney General and his colleagues in the law 
enforcement and intelligence communities face challenging times 
in defending our country from terrorists.
    Prosecuting terrorists after they have attacked our 
civilians does not bring back lost lives to grieving families, 
and it is certainly an imperfect deterrent as these extremists 
are often bent on taking their own lives in these suicide 
missions.
    Instead, as has been widely acknowledged over the last 3 
years, the key is to prevent terrorism before it occurs and, 
when possible, interdict the terrorists on their homelands 
before they come to America to carry out their attacks.
    And that is exactly what the Department of Justice is 
doing--taking the battle to the terrorists by using every 
available tool. Let me commend you, Mr. Attorney General, for 
your Department's efforts to protect this great Nation.
    Unfortunately, no one can guarantee 100-percent success in 
warding off all future terrorist attacks, but we have to do our 
best to try and do so. The American public appreciates the 
commitment and energy that the Department of Justice brings to 
this task each and every day.
    In recent weeks, we have been reminded about the dangerous 
nature of the situation we currently face. The Attorney General 
and the Director of the FBI publicly stated that credible 
intelligence, from multiple sources, indicates that al Qaeda 
plans to attempt an attack on the United States in the next few 
months.
    Another very troubling development involves the terrorist 
conspiracy revealed by the Department's recent response to my 
April 22, 2004, letter requesting information on the detention 
of enemy combatant and American citizen Jose Padilla.
    According to the Department of Defense, we know that Jose 
Padilla received training in a terrorist camp in Afghanistan, 
including with an al Qaeda explosives expert. We are told that 
he served as an armed guard of what we understood to be a 
Taliban outpost in Kabul.
    There is also reason to believe that Mr. Padilla discussed 
plans to detonate a dirty bomb or, alternatively, to blow up 
multiple apartment buildings using natural gas lines in New 
York, Washington, D.C., or Florida with high-level al Qaeda 
operatives, including Khalid Sheikh Mohammed.
    As my colleagues may recall, last year U.S. law enforcement 
and intelligence agents, working together with Pakistani 
intelligence agents, captured Khalid Sheikh Mohammed, who was 
al Qaeda's leading operational planner and organizer. He is 
believed to be the mastermind behind the September 11th 
attacks.
    Given our democratic society's strong tradition of 
protecting civil liberties, all of us--especially Members of 
this Committee--have an interest in the general procedures and 
policies, as well as the specific facts and circumstances, 
under which any American citizen may be designated and detained 
as an enemy combatant.
    Our system of checks and balances is designed to place 
limits on the powers of each branch of Government. But he 
unabashed and self-proclaimed goal of terrorists to obtain and 
use weapons of mass destruction against American civilians 
compels us to rethink the adequacy of our legal structure to 
prevent further terrorist attacks. We live in a dangerous 
world, and our Commander-in-Chief must have the proper amount 
of authority to act decisively to protect the public.
    I think the information released last week about Mr. 
Padilla provided useful information to the Congress and the 
public about the nature of these new terrorist threats. Having 
said that, I am also mindful that some have raised legitimate 
questions about a system that, to date at least, limits the 
ability of the designated enemy combatants and their legal 
representatives to develop a defense and get their side of the 
story out.
    Nevertheless, I am also concerned that these new 
terrorists, who do not wear conventional military uniforms and 
are unaffiliated with specific nation states, and whose 
ultimate goal is nothing less than to destroy our way of life, 
would like nothing more than the opportunity to use all of our 
traditional due process protections to drag out the 
proceedings, tie the Government prosecutors in knots, and make 
publicized political speeches.
    Frankly, questions can be raised about the decision to try 
Zacarias Moussaoui in a criminal proceedings in an Article III 
court. A strong argument can be made that Mr. Moussaoui is the 
quintessential enemy combatant and deserves to be tried by a 
military commission.
    We need more debate and discussion on the question of 
whether those designated as enemy combatants should be tried, 
and afforded attorneys, only after they are determined to be of 
no intelligence value or have exhausted their intelligence 
value.
    As well, we need more discussion about where and by whom 
the line should be drawn between permissible aggressive 
interrogation techniques, and when interrogation becomes 
torture and whether torture is ever justified. We have all read 
the recent press accounts on these issues with great interest.
    While I hope that 1 day al Qaeda will be defeated and 
formally surrender, it is possible that the day will never come 
when many of those detained at Guantanamo will agree to lay 
down their arms against the American people. This poses 
perplexing problems for a democratic country whose history 
suggests that wars end with finality for all combatants.
    Now, let me take a moment to speak about the PATRIOT Act. 
This legislation was a measured attempt to help protect 
Americans from terrorist attacks and is consistent with our 
traditional civil liberties. Despite the negative predictions 
of some, the PATRIOT Act has not eroded the civil liberties 
that we Americans hold dear.
    As I understand it, the Department's Inspector General has 
consistently reported in three semi-annual reports that it has 
received no complaints alleging misconduct by Department of 
Justice employees in their use of substantive provisions of the 
PATRIOT Act. Let me repeat--absolutely no complaints. 
Nevertheless, if we can improve and fine-tune the PATRIOT Act, 
we ought to do so.
    Despite the enormous task of defending against terrorist 
attacks, the Department remains committed to ensuring that its 
traditional law enforcement responsibilities are met. Recently, 
the Department reported that violent crime has fallen 3.2 
percent nationwide.
    The Department continues its vigorous enforcement of civil 
rights violations. And in fiscal year 2003, the Department 
provided almost $7 billion to State and local governments for 
various law enforcement initiatives, including almost $3 
billion for training emergency first responders and purchasing 
equipment, as well as research and development of 
counterterrorism technology.
    Finally, let me say that on the Committee's markup agenda 
is S. 1700, the DNA legislation. I believe that the Committee 
will report and the Senate should adopt this important 
bipartisan bill, which has already passed the House by a wide 
bipartisan vote.
    This bill will help bring justice to thousands of victims 
of crimes, including many rape victims that have fallen through 
the cracks in the system due to the substantial 20-year backlog 
of rape test kits. In addition to using DNA technology to help 
bring about convictions, DNA tests can also be appropriately 
used to help exonerate those wrongfully charged or wrongfully 
convicted of crimes. I will work to bring this bill to the 
President's desk for his signature.
    Mr. Attorney General, I look forward to your testimony here 
today. I hope to continue our bipartisan commitment to enacting 
measures that may be needed to win the war against terrorism 
and to work together on a wide range of programs that the 
Department implements. I appreciate the service that you have 
given to our country. I know how exhausting and demanding that 
service is.
    [The prepared statement of Chairman Hatch appears as a 
submission for the record.]
    With that, we will turn to our Ranking Member, Senator 
Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Well, thank you, Mr. Chairman, and like you, 
we all join sending out our condolences to Mrs. Reagan. She has 
been a model of caring during the long, long years of her 
husband's illness, an illness they knew was there, an illness 
they knew incurable, at least today, and would lead to the 
eventual end. I think all Americans of whatever political 
stripe commend her for her conscience and her support of her 
husband.
    Mr. Attorney General, welcome. It has been, I believe, 
about 15 months that have passed since your last very brief 
appearance in March last year. Your testimony here comes today 
about a thousand days after the September 11th attacks and the 
subsequent launch of your efforts against terrorism. As 
National Security Adviser Condoleezza Rice acknowledged in her 
testimony before the 9/11 Commission, the terrorist threats to 
our Nation did not begin in September 2001. But the preliminary 
findings of the 9/11 Commission suggested that counterterrorism 
simply was not a priority of your Justice Department prior to 
September 11th. Problems ranged in your Department from an 
understaffed foreign translation program, to woefully 
inadequate information systems, to cultural attitudes that 
frustrated information sharing across agencies.
    Just one day before the attacks, on September 10th, you 
rejected the FBI's request to include more money for 
counterterrorism in your budget proposal. And while you have 
recently been critical of the so-called wall between criminal 
investigators and intelligence agencies, you did nothing to 
lower it during your first 7 full months in office. In fact, 
you put up exactly the same wall in your administration.
    The President is fond of saying that September 11th changed 
everything, as if to wipe out all missteps and misplaced 
priorities of the first year of this administration. After the 
attacks, you promised a stunned Nation that this Government 
would expend every effort and devote all necessary resources to 
bring the people responsible for these crimes to justice. 
Certainly the American people would expect no less. So a 
thousand days later, it is time to ask for the fulfillment of 
the promise you made.
    Mr. Attorney General, your statement lists accomplishments 
of the Department of Justice since 9/11, but you leave out a 
number of things. For example, of course, the obvious, Osama 
bin Laden remains at large. At least three senior al Qaeda 
operatives who helped plan the 9/11 attacks are in U.S. 
custody, but there has been no attempt to bring them to 
justice. The Moussaoui prosecution has bogged down before any 
trial. A German court acquitted two 9/11 co-conspirators, in 
part because the U.S. Government, the Justice Department, and 
others refused to provide evidence to them.
    Three defendants who you said had knowledge of the 9/11 
attacks did not have such knowledge. The Department retracted 
your statement, and then you had to apologize to the court 
because you violated a gag order in the case.
    The man you claimed was about to explode a dirty bomb in 
the U.S. had no such intention or capability, and because he 
has been held for 2 years without access to counsel, any crimes 
he did commit might never be prosecuted.
    Terrorist attacks on Capitol Hill and elsewhere involving 
the deadly bioterror agents anthrax and ricin have yet to be 
solved. And the Department is defending itself in a civil 
rights action brought by a man who you publicly identified as a 
``person of interest'' in the anthrax investigation.
    U.S. citizens with no connection to terrorism have been 
imprisoned as material witnesses for chunks of time--with an 
``Oops, I'm sorry'' when what the Justice Department announced 
was a ``100 percent positive'' fingerprint match turned out to 
be 100 percent wrong.
    Non-citizens with no connection to terrorism have been 
rounded up seemingly on the basis of their religion or 
ethnicity, held for months without charges, and, in some cases, 
physically abused.
    Interrogation techniques approved by the Department of 
Justice have led to abuses that have tarnished our Nation's 
reputation and driven hundreds, if not thousands, of new 
recruits to our enemies, the terrorists.
    Your Department turned a Canadian citizen over to Syria to 
be tortured. And then your Department deported another 
individual to Syria over the objection of experienced 
prosecutors and agents who thought he was a terrorist and 
wanted to prosecute him.
    And one of the most amazing things, your Department under 
your direction has worked to deny compensation to American 
victims of terrorism, including former POWs tortured by Saddam 
Hussein's regime. You have tried to stop former POWs tortured 
by Saddam Hussein--Americans. You have tried to stop them from 
getting compensation.
    Documents have been classified, unclassified, and 
reclassified to score political points rather than for 
legitimate national security reasons.
    Statistics have been manipulated to exaggerate the 
Department's success in fighting terrorism.
    The threat of another attack on U.S. soil remains high, 
although how high depends apparently on who within the 
administration is talking.
    Mr. Attorney General, you spent much of the past 2 years 
increasing secrecy, lessening accountability, and touting the 
Government's intelligence-gathering powers. The threshold 
issue, of course--and I believe you would agree with me on 
this--is: What good is having intelligence if we can't use it 
intelligently? Identifying suspected terrorists is only a first 
step. To be safer, we have to follow through. Instead of 
declining tough prosecutions, we need to bring the people who 
are seeking to harm us to justice. That is how our system 
works. Instead, your practices seem to be built on secret 
detentions and overblown press releases. Our country is made no 
safer through self-congratulatory press conferences when we are 
facing serious security threats.
    The Government agency that bears the name of Justice has 
yet to deliver the justice for the victims of the worst mass 
murder in this Nation's history. The 9/11 Commission is working 
hard to answer important questions about the attacks and how 
the vulnerabilities in our system that allowed them to occur, 
but it cannot mete out justice to those involved. Neither the 
9/11 Commission nor this Committee can do the work of your 
Department of Justice.
    Mr. Attorney General, since September 11th, you have blamed 
former administration officials for intelligence failures that 
happened on your watch. You have used a tar brush to attack the 
patriotism of Americans who dare to express legitimate concerns 
about constitutional freedoms. You have refused to acknowledge 
serious problems, even after the Justice Department's own 
Inspector General exposed widespread violations of the civil 
liberties of immigrants caught up in your post-September 11 
dragnets.
    Secretary Rumsfeld recently went before the Armed Services 
Committee to say that he, Secretary Rumsfeld, should be held 
responsible for the abuses of Iraqi prisoners on his watch. 
Director Tenet is resigning from the Central Intelligence 
Agency. Richard Clarke went before the 9/11 Commission and 
began with his admission of the failure that this 
administration bears for the tragedy that consumed us on 9/11. 
And I am reminded this week, as we mourn the passing of 
President Reagan, that one of the acts for which he will be 
remembered is that he conceded that while his heart told him 
that the weapons-for-hostages and unlawful funding of insurgent 
forces in Nicaragua should not have been acts of his 
administration, his head convinced him that they were and he 
took personal responsibility.
    We need checks and balances. There is much that has gone 
wrong that you stubbornly refuse to admit. For this democratic 
republic to work, we need openness and accountability.
    Mr. Attorney General, your style is often to come to 
attack. You came before this Committee shortly after 9/11 to 
question our patriotism when we sought to conduct Congressional 
oversight and ask questions. You went before the 9/11 
Commission to attack a Commissioner by brandishing a 
conveniently declassified memo in a so unfairly slanted 
presentation that President Bush himself disavowed your 
actions.
    So I challenge you today to abandon any such plans for this 
session and begin it instead by doing that which you have yet 
to do. Talk plainly with us and with the American people about 
not only what is going right in the war on terrorism--and there 
are those things that are going right--but also about the 
growing list of things that are going wrong so that we can work 
together to fix them. Let's get about the business of working 
together to do a better job protecting the American people and 
making sure that the wrongdoers are brought to justice, are 
brought to trial, and are given the justice that this country 
can mete out.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Senator.
    General Ashcroft, we will take your statement at this time 
if you would care to make one.

 STATEMENT OF HON. JOHN ASHCROFT, ATTORNEY GENERAL, DEPARTMENT 
                  OF JUSTICE, WASHINGTON, D.C.

    Attorney General Ashcroft. Good morning, and I thank you 
for the opportunity to make this statement. Obviously, I would 
be disappointed to think that I might spend my time responding 
to all of the charges that have just been leveled toward me. I 
have an agenda of things that I think are important for us to 
discuss with the Committee, and with that in mind, I would like 
to proceed with my statement rather than seek to be responsive 
to these items.
    I was reminded as I came to the Senate this morning of the 
passing of a great giant in American Government. The caisson 
was in the street, apparently in a rehearsal for the events 
that will later follow this week, and President Ronald Reagan, 
who stood as a leader, certainly is a person whose leadership 
does indeed dwarf mine. And if I could agree with the Senator 
from Vermont, he is a man of much greater stature than I could 
ever hope to be who rallied the Nation to fight for very, very 
great ideals and to dare to do great things. And we remember 
his words as we fight once again for freedom against tyranny.
    At the height of the Cold War, he put it this way: ``The 
ultimate determinate in the struggle now going on for the world 
will not be bombs and rockets but a est of wills,'' he said, 
``a test of wills and ideas--a trial of spiritual resolve; the 
values we hold, the beliefs we cherish and the ideas to which 
we are dedicated.''
    And today we do meet at a time of war that does test our 
resolve, and we face dire threats.
    Around the world we hear reports daily of this war, the war 
against al Qaeda: bombings in Spain, murder sprees in Saudi 
Arabia, and improvised explosive devices in Iraq--terrorist 
attacks that kill innocent men, women, and children.
    At times, the war on terror might seem distant and 
September 11th may seem a faint memory, but it is not. It is 
not distant. It is not faint.
    Credible intelligence indicates that al Qaeda wants to hit 
the United States and wants to hit it hard. We are locked in a 
mortal struggle between two visions for human life in a way 
that can know only one victor. And we choose to be the victor.
    Our vision is a vision of freedom; it is a vision of human 
dignity and tolerance for every citizen.
    Let me give you an example of how this Nation's dedication 
to that vision is played out. Nashala Hearn is a brave 12-year-
old Muslim girl who goes to school in Muskogee, Oklahoma. Her 
favorite subject is world cultures. Someday she wants to write 
children's books. On September 11, 2003, school officials 
forbad her to wear the hijab, or headscarf, that is the 
expression of her religious faith.
    Nashala's father filed suit. He believed that his 
daughter's constitutional rights were being violated.
    The United States Justice Department agreed. The Civil 
Rights Division intervened to protect the constitutional rights 
of this quite sixth-grader who likes reading. We won a consent 
decree to protect her rights of religious expression. She may 
now wear her hijab at her school. And later this afternoon, 
Nashala will wear her hijab when she appears in the United 
States Senate.
    The war we are fighting is a war for Nashala and for 
freedom-loving people everywhere. We continue to strive, after 
two centuries, to build that city upon a hill--a nation that 
values the religious liberty of a single young girl and the 
constitutional liberties of all of its citizens.
    Now, contrast these ideals with the dark ambition of our 
enemies. In the nightmare vision of the Taliban and al Qaeda, 
little girls like Nashala are denied their rights. As a woman, 
she could not go to school. She could not appear in public 
without a man from her family to speak for her. She would never 
be allowed to vote, but she could be whipped. To our enemies, a 
12-year-old American girl is just another target for their 
attacks.
    But in the United States of America, under our 
Constitution, Nashala's life is so precious that her cause 
commands the attention of the Government. Her right to 
religious freedom is so secure that it gained the full weight 
of the United States Department of Justice.
    Every day, the men and women of the Department of Justice 
prove their commitment to protect the lives and liberties of 
the American people.
    For more than 32 months, the Justice Department has been 
using every tool and every tactic in the arsenal of the justice 
community to stop terrorism--from aggressive enforcement of the 
criminal code to the deployment of the new and critical tools 
of the USA PATRIOT Act.
    We have disrupted the al Qaeda network and the terrorist 
presence using immigration violations, minor criminal 
infractions, and tougher visa and border controls. And we have 
been criticized for these tough tactics. But we will continue 
to use every means within the Department in its reach and 
within the Constitution and the statutes to deter, disrupt, and 
destroy terrorist threats.
    These are not just words. We are proving in deeds our 
commitment to win the war against the networks of terror. We 
have leveled criminal charges against 310 individuals. To date, 
we have won 179 convictions. We have broken up terrorist plots 
all across America, from Virginia to Oregon, Florida to New 
York, in the heartland, on the coasts. We have targeted the 
lifeblood of the transnational terrorism financing stream, 
launching 70 investigations into terrorist financing.
    But the most tangible measure of our success is found in a 
fact for which we are grateful to God and the citizens of this 
country and law enforcement officials: We have not experienced 
a major terrorist attack on U.S. soil.
    Our clear strategy of prevention combined with aggressive 
tactics has prevented major terrorist attacks.
    America has caught numerous known al Qaeda operatives 
seeking to strike America, including: Ali Saleh Kahleh al-
Marri, Jose Padilla, Iyman Faris, Zacarias Moussaoui, and 
Richard Reid, to name a few.
    Al-Marri was sent by al Qaeda to facilitate a second wave 
of terrorist attacks on Americans. He arrived on U.S. soil on 
September 11, 2001. Further investigation revealed that al-
Marri was an al Qaeda sleeper operative who was sent to provide 
support to newly arriving al Qaeda operatives.
    Jose Padilla dreamed of detonating a dirty bomb in the 
United States and was sent here by al Qaeda to blow up 
apartment buildings. After he was arrested, we learned that 
Khalid Sheikh Mohammed had personally given him full authority 
to conduct operations for al Qaeda in the United States of 
America.
    Iyman Faris, an Ohio truck driver, scouted sites in America 
to help al Qaeda blow up a bridge in New York and to look for 
ways to attack America's rail system.
    We all know about Richard Reid, who, on December 22, 2001, 
sought to ignite a bomb on a commercial airliner traveling from 
Paris to Miami, Florida. Reid pled guilty, calling himself a 
disciple of Osama bin Laden and an enemy of the United States.
    These individuals are not alone. Al Qaeda has a fanatical 
desire to wage war on Americans in America. Al Qaeda will send 
terrorist-soldier after terrorist-soldier to infiltrate our 
borders and to melt into our communities. And they do not wear 
uniforms. They do not respect human rights. They target 
civilians.
    Our successes preventing al Qaeda attacks are the direct 
result of information sharing, coordination, and cooperation of 
the men and women in U.S. law enforcement and intelligence. 
This teamwork would have been utterly impossible without the 
passage of the PATRIOT Act, for which I thank and commend the 
Congress.
    The Act did four things:
    It tore down the bureaucratic wall that had been imposed 
between law enforcement and intelligence, allowing cooperation 
and information sharing that has been very valuable.
    The PATRIOT Act, secondly, strengthened criminal laws 
against terrorism.
    Third, it helped speed the investigation of terrorist 
threats, putting agents on the street, instead of behind desks 
doing paperwork, to pursue terrorists, untrapped in their 
offices.
    And, finally, the PATRIOT Act updated our antiterrorism 
laws to reflect new technologies and to give us the same tools 
used to fight against drug dealers and organized crime so that 
we could fight against terrorists.
    We know that the terrorists plan to escalate their 
operations in America. Credible intelligence, as mentioned by 
the Chairman, from multiple sources indicates that al Qaeda 
plans to attempt an attack on the United States during this 
summer or fall. As this Committee knows, we are entering a 
season of events of great symbolism and great consequence for 
our Nation--events that would be attractive targets for 
terrorism.
    It is a sad commentary when the observation of a memorial 
service for a former President of the United States must be 
labeled a national security special event. Such is the fact of 
modern life in Washington, and such is the nature of the war 
against al Qaeda.
    We know from Spain's bitter experience that Osama bin Laden 
and al Qaeda believe they advanced their extremist cause with 
the Madrid train bombings that brought the death of nearly 200 
people and the injury of about 1,600 more.
    We have alerted the public and State and local law 
enforcement to these threats because we believe the face of al 
Qaeda is changing and their tactics are evolving.
    Al Qaeda continues to attract fanatical extremists from 
many nationalities and ethnicities, including North Africans 
and South Asians, in particular. Al Qaeda and other extremist 
groups have also shown an interest in recruiting young converts 
inside target countries as operatives who can portray 
themselves as traditionally European.
    Al Qaeda's ideal operatives may be older than those we have 
seen before--men in their late 20's to early 30's. In addition, 
they may be traveling with families to lower their profile.
    In the face of this new threat--a threat that we have seen 
with a new face--we have shown the terrorists that America is 
not the same America we were on September 11. We have learned 
lessons. We are continuing to learn.
    Credible intelligence tells us that the coming months are 
months of vulnerability. The justice community has taken the 
following steps to ensure our safety:
    First, the FBI has established a special Threat Task Force 
that is focusing on the developing threat. The task force is 
coordinating all our intelligence, analysis, and field 
operations. All field offices and LEGATs have been tasked to 
review all counterterrorism case files and threat reporting for 
intelligence relevant to our intelligence requirements, that 
is, the defense of the Nation this year. Our 84 Joint Terrorism 
Task Forces are collecting specific information, developing 
additional intelligence sources, and reporting new information 
as well as reviewing old files to ensure that the 2004 Threat 
Task Force has all available intelligence.
    Second, we have informed State and local law enforcement 
and sought their help in uncovering specific, actionable 
intelligence.
    The FBI has developed a series of critical intelligence 
priorities to guide State and local law enforcement so they can 
investigate and collect information that fills gaps in our 
Nation's intelligence needs.
    We have directed our 93 U.S. Attorneys to convene their 
Anti-Terrorism Advisory Councils to enlist State and local 
support, and there are about 670,000 State and local law 
enforcement officials who ares o important to the defense of 
America.
    Specific intelligence is the foundation for effective 
counterterrorism strategies including hardening targets, 
disrupting cells, and elevating threat levels to engage our 
level of preparedness.
    Third, we have alerted the public. It is the essence of 
freedom and the core strength of free societies to trust the 
citizenry to participate in the defense of their lives and 
liberties. We have asked the public to join in the hunt for 
seven suspected al Qaeda operatives and to be alert for 
suspicious activity.
    These suspects are Amer El-Maati, Aafia Siddiqui, Adnan G. 
El Shukrijumah, Fazul Abdullah Mohammed, Adam Gadahn, Abderaoud 
Jdey, and Ahmed Khalfan Ghailani. They are all sought in 
connection with possible terrorist threats in the United 
States. They pose a clear and present danger. They should be 
considered as armed and dangerous.
    The public has responded, providing over 2,000 tips in the 
first 24 hours alone regarding this request for assistance.
    In this Nation, we learned on the morning of September 11, 
2001, that blue skies and quiet mornings should not be mistaken 
for peace--however earnestly we desire that peace. Our 
terrorist enemies have declared war on America, and they have 
brought the war onto our soil.
    Over the last 2 years, we have made progress. But the war 
is far from over. The networks of terror continue their search 
for any opportunity to turn quiet and calm mornings into scenes 
of carnage and death.
    In this war--in this time of heightened threat--we must 
remember the ideals we fight for. We must remember the precious 
liberties, even those of 12-year-olds such as Nashala Hearn.
    When we remember these blessings of freedom, when we 
reflect on the vision we defend, our path, even amidst the 
challenges of war, is clear.
    I thank you for this opportunity to make my remarks.
    [The prepared statement of General Ashcroft appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you, Mr. Attorney General. Let 
me just ask a couple of questions.
    You and FBI Director Mueller recently warned us about an 
increased risk of terrorist attacks within the next few months. 
Can you tell us whether you believe and, if so, why you believe 
our Nation is better prepared to stop these acts of terrorism 
today than we were on September 11, 2001, and whether or not 
you think the Department needs additional legal tools to better 
protect or help protect the American public from acts of 
terrorism on U.S. soil? I noticed from your statement earlier, 
the one that we have, that you oppose, as do I, allowing 
certain provisions of the PATRIOT Act to sunset next year. But 
there are additional provisions such as the terrorist hoax 
legislation that Senators Schumer, Corny, and I are 
cosponsoring that you may think are advisable for Congress to 
adopt. So if you could answer that, I would appreciate it.
    Attorney General Ashcroft. Mr. Chairman, I do believe that 
we are better prepared than we were before. The tools of the 
United States PATRIOT Act, which were tools enacted by this 
Congress, have taken down the wall between the intelligence 
community and the law enforcement community, and that is an 
important amalgamation of information. And the best friend of 
prevention is information. If you have the right information, 
you can prevent. Without that information, you cannot.
    In addition, the efficiencies provided in the Act, which 
provides, say, for the use of so-called multi-point or roving 
wiretaps in matters relating to terrorism, really make 
efficient our ability to monitor or surveil terrorists in a way 
that we have long had the authority against drug dealers and 
organized crime figures, since 1986 when that was accorded the 
Department in its fight against those individuals. And, 
obviously, those kinds of things are just illustrative of the 
kinds of structural changes that have upgraded our capacity to 
be effective in the war on terror.
    And there are other aspects which are equally important. 
The FBI has changed its method of operating so that it is much 
more focused on intelligence. It is working to establish a 
Directorate of Intelligence within the FBI. But the resources 
devoted to intelligence, the kind of communication internal to 
the FBI, the--Senator Leahy pointed out that the kind of 
communication system in the FBI was deficient. I believe that 
was part of the thrust of his remarks. And the improvement of 
the communication inside the FBI, with the right kind of 
computers that can now talk from the field to headquarters, 
where we can have a central understanding of intelligence 
rather than a fragmented understanding of intelligence, which 
had previously characterized the case system where information 
was held exclusively at localities rather than being 
centralized, the creation of the Terrorist Threat Integration 
Center, where intelligence which comes from domestic sources is 
pooled with intelligence that comes from international sources, 
so that we have a basin that receives intelligence, and that 
Terrorist Threat Integration Center can provide an 
understanding of how we can connect dots between things that 
are happening within the United States and things happening 
outside the United States to help us deter or disrupt or 
otherwise displace threatening terrorist activities. All of 
these things are improved circumstances, and these are 
exemplary.
    For me to go and try and be exhaustive in the list of 
changes that have been undertaken would stress our time frame 
this morning. But those are the things that I think are very 
important that we have now.
    As it relates to the ways that we could improve, every time 
someone requires the Department to respond to a hoax, it takes 
valuable resources. There have been thousands of hoaxes, for 
instance, on anthrax alone, and there should be significant 
penalties for individuals who divert the resources that can 
fight terror away from the fight against terror and are just 
responding to hoaxes.
    Similarly, the seriousness of, I believe, the threat of 
terror requires that we should have available in circumstances 
where people are killed and significant killing of individual 
in terrorist activities should result in the death penalty. 
There are circumstances where we do not believe that that 
exists now, and that would be an improvement.
    In the law for major crimes of violence and drug offenses, 
there is a presumption that a person charged would be detained. 
There is no such presumption for a person charged with 
terrorist activity. I think it would be prudent to say that 
those kinds of presumptions which inure to drug dealers of 
significant scale and violent criminals, if there is a reason 
for a presumption there, that would be appropriate.
    There are about, I think, 335 different areas of the 
Federal Government in which enforcement officials have the 
right to request on an official basis documents from 
businesses, business records. Those are called administrative 
subpoenas. I believe that if those are requestable on the basis 
of health care fraud and other things, for terrorism cases we 
would be well served to have that same kind of authority.
    This does not mean that there is an automatic ability to 
get them. If a person resists that, then the courts would, 
again, step in to decide whether or not it was merited. But 
that kind of administrative subpoena authority exists for well 
over 300 other kinds of circumstances.
    Another item which I believe Senator Kyl and Senator 
Schumer and you have joined to work on is what is called the 
lone wolf amendment to FISA which would provide the ability to 
surveil someone known to be involved in terrorism, but not 
being involved in terrorism with someone else, but doing it 
exclusively on his own or her own motion. It seems to me that 
our ability to surveil that kind of person should be 
commensurate with our ability in other settings. So that is 
another one of the proposals you have been involved with, in 
addition to the hoax statute.
    But these are the kinds of things that are important. The 
sunsetted provisions, of course, must not expire unless we want 
simply to let down the guard of the United States against 
terror. And if we were to expose the United States to in some 
way reset the balance in favor of terror, we could do so by 
deciding that we would not re-enact those provisions of the 
PATRIOT Act. I think it would be a tragedy.
    Chairman Hatch. My time is up. I would like to ask you to 
help us to work on the Radiation Exposure Compensation Act 
funding with the appropriators. It is very important that we 
keep that funding going and live up to those promises.
    With that, we will turn to Senator Leahy.
    Senator Leahy. Thank you, Mr. Chairman.
    Mr. Attorney General, yesterday in the Wall Street Journal, 
they had a Department of Defense memo that argues that the 
President has the authority as Commander-in-Chief to approve 
almost any physical or psychological actions during 
interrogation, up to and including torture. Today, the 
Washington Post quotes from a memo from your Department that 
purportedly argues that torturing a terrorism suspect may be 
justified.
    Now, I have been asking for copies of post-September 11th 
policy memos for over a year, but your Department has 
repeatedly said such documents are classified or that it simply 
won't release them. I asked you for the specific memo that is 
now reported in the press 10 days ago and received no response. 
I can read it in the press, but I have not received a response 
from you. You selectively declassify memoranda to suit your 
political purposes, such as the Gorelick memo you offered in 
the midst of a 9/11 Commission hearing. But you have denied 
information to Members of this Committee on both sides of the 
aisle, and so we conduct our oversight via what we learn in the 
press. I have four questions.
    First, when will you provide a copy of this and all other 
requested memos to each Member of this Committee, Republican 
and Democrat?
    Second, all Americans want to know whether anyone followed 
through on the advice of your Justice Department. Has torture 
or anything approaching torture been committed by U.S. 
personnel or in the presence of U.S. personnel anywhere in the 
world?
    Third, has there been any order or directive from the 
President with respect to interrogation of detainees, 
prisoners, or combatants?
    And, fourth, can you assure this Committee, can you assure 
this Committee today, that your Justice Department will 
aggressively prosecute any person for whom there is probable 
cause of committing torture, regardless of whether the 
individual was acting under a direct order of the President and 
regardless of whether the person being tortured was in U.S. 
custody?
    Attorney General Ashcroft. I want to be sure to answer 
these. My note taking--
    Senator Leahy. If you miss a couple--
    Attorney General Ashcroft. You will remind me.
    Senator Leahy. I will want to help you out by reminding 
you.
    [Laughter.]
    Attorney General Ashcroft. Thank you. Congress has enacted 
an extensive framework of laws relevant to the way individuals 
who are apprehended, detained, or captured during wartime are 
interrogated during wartime. The laws are numerous. They relate 
to everything from the Uniform Code of Military Justice to the 
torture statute, to the War Crimes Act, to the Military 
Extraterritorial Jurisdiction Act, to the special maritime and 
territorial jurisdiction statute.
    In addition to these statutory enactments that have been 
passed by the Congress and signed by the President and are part 
of our laws, the Senate, in conjunction with the President, has 
committed the United States to the following of various 
treaties, and related to these issues would be treaties like 
the Geneva Conventions and--
    Senator Leahy. Mr. Attorney General, without--and I know 
you have no intention of filibustering the answer, but could we 
go to my specific question? Did your Department issue a 
memorandum that would suggest that torture is allowed under 
certain circumstances, as the press has reported? That is a 
simple enough question. It could take a yes or no answer.
    Attorney General Ashcroft. Well, first of all, I am not 
going to comment on the memos and advice that I give to 
executive departments of Government, but I will say this: that 
while the job is to explain the meaning of these statutes and 
to explain in memos the law, I want to confirm that the 
President has not directed or ordered any conduct that would 
violate the Constitution of the United States, that would 
violate any one of these enactments of the U.S. Congress, or 
that would violate the provisions of any of the treaties as 
they have been entered into by the United States, the 
President, the administration, and this Government. It is--
    Senator Leahy. Does that mean that your Department would 
aggressively prosecute anybody who might come under your 
jurisdiction under any of these laws any person for whom there 
is probable cause of committing torture, regardless of whether 
that person was acting under a direct order of the President or 
anybody else?
    Attorney General Ashcroft. The Department of Justice will 
both investigate and prosecute individuals who violate the law. 
The Torture Act is a law that we include in that violation. The 
laws relating to various other aspects of conduct are. We have 
before us at this time a number of investigations underway. We 
have established a special team for prosecuting such violations 
in the Eastern District of Virginia. It is a U.S. Attorney's 
office that is accustomed to international items because it is 
the home of both the CIA and the Pentagon.
    There is one case outside that framework that is being 
prosecuted and was being prosecuted earlier, before we became 
aware that we might have a broader responsibility here. But we 
are investigating items both on referral from the Department of 
Defense and from the Intelligence Agency, and those matters 
taken into account our responsibility to enforce the laws 
enacted by this Congress.
    Senator Leahy. I would assume that you would carry out your 
responsibilities. You have sworn a solemn oath to do so. But 
does your answer mean that there has or has not been an order 
or directive from the President within respect to interrogation 
of detainees, prisoners, or combatants?
    Attorney General Ashcroft. The President of the United 
States has not ordered any activity which would contradict the 
laws enacted by this Congress or previous Congresses--
    Senator Leahy. Not quite my--
    Attorney General Ashcroft. --or the Constitution of the 
United States, or any of--
    Senator Leahy. Mr. Attorney General, that was not my 
question--
    Attorney General Ashcroft. --the treaties--
    Senator Leahy. That was not my question. Has there been any 
order or directive from the President with respect to 
interrogation of detainees, prisoners, or combatants? Yes or 
no.
    Attorney General Ashcroft. I am not in a position to answer 
that question.
    Senator Leahy. Does that mean you don't know or you don't 
want to answer? I don't understand.
    Attorney General Ashcroft. The answer to that question is 
yes.
    Senator Leahy. You don't know whether he has issued such an 
order?
    Attorney General Ashcroft. For me to comment on what the 
President--what I advised the President--
    Senator Leahy. I am not asking--
    Attorney General Ashcroft. --or what the President's 
activity is, is inappropriate. I will just say this: that he 
has made no order that would require or direct the violation of 
any law of the United States enacted by the Congress or any 
treaty to which the United States is a party as ratified by the 
Congress or the Constitution of the United States.
    Senator Leahy. That doesn't answer my question, but I think 
my time is up. We will come back to this later.
    Chairman Hatch. Senator Grassley?
    Senator Grassley. Yes, I would like to cover a 
classification issue, a terrorist financing matter, and 
information sharing.
    On the classification issue, I would like to ask about the 
FBI and Justice Department going back in time and classifying 
information that Congress was given in briefings 2 years ago. 
This information involves a whistle-blower by the name of 
Edmonds, a translator who was fired from the FBI because of 
problems pointed out. Three issues. I would like to raise all 
three and then have you address them.
    First, what was your involvement in the decision to 
retroactively classify information already given to Congress, 
if you had an involvement?
    Second, who made this decision, Civil Division lawyers or 
operational people at the FBI?
    And, third, laws and executive orders have requirements for 
how information is classified. So since we do have those laws 
and executive orders, could you explain how the FBI and the 
Justice Department followed those requirements in this case?
    Attorney General Ashcroft. If I am not mistaken, in the 
matter to which you make reference, the national interests of 
the United States would be seriously impaired if information 
provided in one briefing to the Congress were to be generally 
available. And in order to protect the national interest, a 
decision was made to classify the information.
    I take responsibility for that decision, and I have 
reviewed the matter within the last couple months, I think at 
your request or a request of a letter on your part. I am not 
sure if we have talked about this personally, and that is the 
reason for which the decision was made.
    Senator Grassley. So you made the decision, so Civil 
Division lawyers or operational people at the FBI would not 
have been involved in that?
    Attorney General Ashcroft. I don't know that they would 
have been uninvolved. It may be that my decision was shaped 
based on recommendations of theirs and the participation that 
they would have had in some measure. But it relates to both a 
lawsuit which is underway and the national security interests 
of the United States.
    Senator Grassley. Isn't a little ludicrous, though, saying 
that you classify this information now, though, because it 
could, if it was exposed to the public at large? If I were 
briefed on it and I were not told that it was security or 
anything, I could have been talking about it for the last 10 
months and it could have been out to the public.
    Attorney General Ashcroft. That is exactly right, Senator.
    Senator Grassley. I mean I could have been, because it was 
just recently reclassified, so I could have done that. So isn't 
it ludicrous to classify it now?
    Attorney General Ashcroft. Well, let me just put it this 
way: If there is spilt milk and there is no damage done, if you 
can re-collect it and put it back in the jar, you are better 
off than saying, well, it is spilt, no damage has been done, we 
might as well wait until damage is done.
    Our responsibility is, if information is made available 
which is against the national interest to be in the public 
sphere, to say we should do what we can to curtail the 
availability of the information. It is on that basis that I 
made the decision.
    Senator Grassley. Okay. Now, on terrorist financing, a 
number of departments and agencies have jurisdiction over 
different aspects of terrorist financing, and officials within 
the departments have repeatedly assured me that everyone is 
cooperating smoothly on this issue. But what I see instead of a 
lot of in-fighting and one-upsmanship--what I do see is a lot 
of in-fighting and one-upsmanship that is splintering our 
efforts instead of unifying them. The departments participate 
in working groups and in coordinating committees that are 
supposed to alleviate much of this in-fighting. But what we 
really need is effective leadership and strategic thinking.
    Does the Department of Justice have primary responsibility 
for determining terrorist financing and money-laundering 
methods and in coordinating our Government's response to these 
vulnerabilities? And how is this responsibility, if you have 
it, being executed?
    Attorney General Ashcroft. I believe that the Department 
does have the primary responsibility in money-laundering cases 
to first determine whether or not those cases are terrorism-
related, and if they are, they remain the responsibility of the 
Justice Department.
    There are money-laundering cases which have also been a 
part of the traditional Treasury and now I believe in the 
Homeland Security arena as well. But the first cut on such 
cases is a terrorism appraisal, which belongs with the 
Department of Justice, and we seek to coordinate any secondary 
activities after that appraisal has been made.
    Senator Grassley. I have a bill, S. 1837, that extends the 
national money-laundering strategy for 3 years. The Department 
of Homeland Security has significant expertise in money-
laundering investigations. But the Department didn't exist when 
we first passed this legislation. What should the Department of 
Homeland Security's role be in developing the national strategy 
in combating terrorist financing from the standpoint of your 
having primary responsibility in this area?
    Attorney General Ashcroft. Well, we believe that the 
Department of Justice in terms of its--obviously, its role will 
always be to prosecute the violations. So let me just first 
make it clear that when we talk about other agencies that are 
involved in curtailing money laundering, they are involved in 
the development of the case or the detection of a scheme or the 
understanding that there is a problem. But when it comes to 
actually bringing the charges, the prosecutions are carried 
forward by the Justice Department.
    Our responsibility has been obviously to make an assessment 
about whether or not the money-laundering scheme was more than 
simply money laundering, but whether it was a funding effort 
that related to terrorism. And for that reason, the Department 
has the first responsibility in the arena. But if other 
agencies are involved, whether it is in conjunction with 
Customs Enforcement or in conjunction with matters related to 
immigration or things that are covered by other departments, 
those are areas where we try to coordinate our efforts, but we 
do not seek to control the effort. And we will have to work to 
get that done.
    For me to go further would require me to do additional 
study.
    Chairman Hatch. Senator, your time is up. Do you want to 
make a--
    Senator Grassley. My third question has to be submitted in 
writing because time has run out, but it deals with information 
sharing on law enforcement between Government agencies as well 
as be the Federal, State, and local level. So it is something 
that comes up all the time back home, and I hope you would give 
serious consideration to my third question and answer it in 
writing.
    Attorney General Ashcroft. It is a matter of serious 
importance to us, and I will.
    Senator Grassley. Thank you.
    Chairman Hatch. Thank you, Senator.
    Senator Kennedy?
    Senator Kennedy. Thank you, and welcome, General.
    Attorney General Ashcroft. Thank you.
    Senator Kennedy. On the front page of the Times, it has 
this quote: ``A team of administration lawyers concluded in a 
March 2003 legal memorandum that President Bush was not bound 
by either an international treaty prohibiting torture or by a 
Federal antitorture law because he had the authority as 
Commander-in-Chief to approve any technique needed to protect 
the Nation's security.''
    Do you agree with that conclusion?
    Attorney General Ashcroft. Senator Kennedy, I am not going 
to try and issue a hypothetical--
    Senator Kennedy. I am not asking hypothetical. This is a 
memorandum that, again, was referred to today in the Post: ``In 
August 2002, the Justice Department advised the White House 
that torturing al Qaeda terrorists in captivity abroad `may be 
justified,' and that international laws against torture `may be 
unconstitutional if applied to interrogations...''' Do you 
agree with that?
    Attorney General Ashcroft. I am not--first of all, this 
administration rejects torture. It does not engage in torture.
    Senator Kennedy. I am asking you whether this is--there are 
three memoranda: January 9, 2002, signed by John Yoo; the 
August 2002 Justice Department memo; and the March 2003, the 
interagency working group. Those are the three memoranda. Will 
you provide those to the Committee?
    Attorney General Ashcroft. No, I will not. The--
    Senator Kennedy. On what basis? Under what basis?
    Attorney General Ashcroft. On the basis that the 
longstanding established reasons for providing opinions 
provided to the executive branch--
    Senator Kennedy. General, the executive privilege is not a 
legitimate basis for withholding memoranda from this Committee. 
This Congress is investigating the prisoner abuses that have 
occurred. Immense importance. We have a specific need of the 
documents that have allowed these abuses to occur. The 
memoranda at issue did not involve confidential communications 
between the Justice Department and the President, but instead 
legal advice that was widely distributed throughout the 
executive branch. There are many examples of executive 
privilege that have been waived or overridden. President 
Clinton waived the privilege. President Nixon claimed absolute 
executive privilege in Watergate. And interesting, as we--and I 
will speak about President Reagan later this afternoon or 
tomorrow about my own personal feelings and commendation of his 
life. President Reagan, on November 4, 1982, issued guidelines 
on executive privilege. Ronald Reagan issued executive 
privilege memoranda to heads of the executive to comply with 
Congressional requests for information to the fullest extent 
consistent with the constitutional and statutory obligations of 
the executive branch, and added that executive privilege would 
be used only in the most compelling circumstances and only 
after careful review demonstrated that assertions of the 
privilege was necessary.
    Now, are you invoking executive privilege here in denying 
us those memoranda? You have had 72 hours to think about this, 
General. This has been in the newspapers. You had information 
about it. You have had 72 hours to think about it. You knew you 
were going to be asked about this. I am a member of the Armed 
Services Committee. We have been investigating and looking into 
this, the courageous act of the Chairman, John Warner. And we 
are entitled to know whether that information is going to be 
available to the committees.
    Attorney General Ashcroft. Well, the confidential memoranda 
provided--any confidential memoranda provided to members of the 
executive branch--
    Senator Kennedy. This was generally circulated. This was--
    Chairman Hatch. Let him answer the question.
    Attorney General Ashcroft. Is considered by the Department 
to be important that we maintain it, that we not provide it 
outside the executive branch. And let me just say that we are 
at war, and to talk about the--
    Senator Kennedy. So is this--do I understand--
    Attorney General Ashcroft. --powers of the President--
    Senator Kennedy. This is executive privilege that you are--
and I just have a couple of final questions. My time is running 
out.
    What is the reason, what is the justification not providing 
it?
    Attorney General Ashcroft. We believe that to provide this 
kind of information would impair the ability of advice-giving 
in the executive branch to be candid, forthright, thorough, and 
accurate at all times, and so the disclosure of such advice and 
the threatened disclosure that all memos would be in some way 
provided would impair our ability to conduct ourselves in the 
executive branch. And let me just, if I may, this is not 
something new. The Attorney--
    Senator Kennedy. All right. Okay. Well, we have your answer 
on this, and I will just have another minute. But in these 
memoranda, the memoranda claim that existing laws and 
international treaties prohibiting torture do not apply with 
the President or other officials or acting commander-in-chief. 
It says the Justice Department cannot bring criminal 
prosecutions against officials who commit torture while acting 
``pursuant to an exercise of the President's constitutional 
power,'' and it claims that the President can immunize 
subordinates from criminal liability by issuing a Presidential 
directive or other writing authorizing the use of torture. And 
you claim that the authority to set the laws aside is inherent 
in the President of the United States.
    In other words, the President of the United States has the 
responsibility. The President of the United States. We have 
been looking about where the President--because we know when we 
have these kinds of orders what happens. We get the stress 
test. We get the use of dogs. We get the forced nakedness that 
we have all seen on these. And we get the hooding. This is what 
directly results when you have that kind of memoranda out 
there. And it says that it is all because of executive 
authority and executive power. And it seems--how can anyone 
else conclude that it is the President of the United States 
then that has the ultimate authority and responsibility in the 
issuing of these orders or the failure to stop this kind of 
activities?
    Chairman Hatch. Senator, your time is up, but if you would 
care to answer?
    Attorney General Ashcroft. I do care to answer because the 
Senator raises very serious issues, and I think they deserve an 
answer.
    First of all, let me completely reject the notion that 
anything that the President has done or the Justice Department 
has done has directly resulted in the kinds of atrocities which 
were cited. That is false. It is an inappropriate conclusion. 
The kind of atrocities which the Senator has recited and which 
he has displayed in the photograph that he raised are being 
prosecuted by this administration. They are being investigated 
by this administration. They are rejected by this 
administration. They are not pursuant to any order, directive, 
or policy of this administration. They contravene the law and 
they are going to be rejected as having contravened the law. So 
the suggestion that somehow this administration is engaged in 
conduct that provided a basis for that activity is simply 
false.
    Second, we are at war, and for us to begin to discuss all 
the legal ramifications of the war is not in our best interest, 
and it has never been in times of war. This is a long-
understood and long-established practice. Frank Murphy, for 
example, who during the World War II time, in the Roosevelt 
administration, let me just read to you what he said about the 
way these things--he explained in part, refusing to give his 
opinion to the Senate, citing what was already long-established 
practices of Attorneys General, in 1939 he put it this way, and 
I am quoting: Well, the constitutional powers of the President 
in time of war--now the quote starts--``have never been 
specifically defined and, in fact, cannot be since their extent 
and limitations are largely dependent on conditions and 
circumstances. The right to take specific action might not 
exist under one state of facts, while under another it might be 
the absolute duty of the Executive to take such action.''
    I am not doing anything other than to say that there is a 
long-established policy reason, grounded in national security, 
that indicates that the development and debate of hypotheses 
and practice of what can and cannot be done by a President in 
time of war is not good government. And this isn't something 
that comes from this administration. It comes from another 
administration that faced a very serious threat, and it comes 
from an Attorney General whose respect for and familiarity with 
the law was so profoundly understood that he became a member of 
the United States Supreme Court. And it is with that in mind 
that this Justice Department seeks to preserve the capacity of 
the Department to serve the executive branch and to serve it 
well and to not respond to hypotheticals about what the powers 
of a President may or may not be.
    I will say that this administration rejects terror--pardon 
me, torture. It rejects terror as well. It has operated with 
respect to all of the laws enacted by the Congress, all of the 
treaties embraced by the President and the Congress together, 
and the Constitution of the United States. And no direction or 
order has been given to violate any of those laws. And last, 
again, when any of those laws is violated, an investigation is 
pursued, and the pursuit of that investigation, where 
appropriate, results in the prosecution of offenses.
    Chairman Hatch. Senator Cornyn, we will turn to you. It is 
your turn.
    Senator Cornyn. Thank you, General Ashcroft. You have 
stated on multiple occasions here today and before, of course, 
that we are at war. And, indeed, it was the 107th Congress who 
voted 98-0 in the Senate and 420-1 in the House to authorize 
the use of military force. And, indeed, that is what we are 
doing in fighting this war on terror.
    But I am very much impressed with the challenge that that 
presents in the minds of many Americans to understand how this 
war on terror comports with our historical experience with what 
war entailed, where we fought against--our armies fought 
against other uniformed armies, with all of the equipment and 
armament that goes along with war. And, indeed, there have been 
high elected officials serving here in Washington and elsewhere 
who have questioned whether, in fact, this is a war. But isn't 
it the case, General Ashcroft, that the resolution of this very 
Congress that authorized the use of force and the President as 
Commander-in-Chief, his execution of his powers under the 
Constitution and pursuant to that resolution, that provides the 
authority that is necessary for us to not only investigate but 
to preempt much of the terrorist activity that has made this 
country safe or prevented a terrorist attack since 9/11?
    Attorney General Ashcroft. Senator, this war is different, 
your first point. But there are similarities to previous 
conflicts, and the basis upon which this administration has 
acted to secure the United States in the war against al Qaeda 
is found in the precedents from previous settings.
    In the Second World War, much discussion of which has taken 
place as we have celebrated the heroism of the greatest 
generation, un-uniformed saboteurs came into the United States 
from our enemy and sought to--with a view to disrupting and 
destroying and killing Americans. They were treated as enemy 
combatants, and the basis for the apprehension by the executive 
branch of individuals as enemy combatants comes from the 
Supreme Court cases that followed that apprehension of 
unconventional, un-uniformed individuals who, against the laws 
of war, threatened the United States.
    Senator Cornyn. Indeed, isn't it that precedent, that 
Supreme Court precedent that you are referring to, that 
provides the basis of the Government's position in the Padilla 
and Hamdi cases currently pending before the United States 
Supreme Court?
    Attorney General Ashcroft. Among the precedents cited in 
those cases is that case. Of course, the courts also have 
considered the Acts of the Congress taken in this particular 
situation, which you cited earlier in your remarks, providing a 
basis for understanding that the President needed to take 
action to defend the American people in this war against al 
Qaeda and that the authority to take such action had been 
granted by the U.S. Congress.
    Senator Cornyn. Let me just ask you, in your opinion, what 
would be the consequences of a decision that prevented us from 
acting to preempt terrorist attacks that merely treated 
terrorism as some species of a crime that could not be 
investigated and punished until after it occurred? What would 
be the consequences on the national security of the United 
States?
    Attorney General Ashcroft. Well, I can give you one 
example, and I believe I can cite the Deputy Attorney General 
of the United States who was an active prosecutor of terrorists 
in New York before he became the U.S. Attorney in New York and 
before he became the Deputy U.S. Attorney General. In 
commenting on the Padilla case, he indicated that we would be 
incapable of restraining an individual whose expressed intent 
was to, in acts of war, destroy innocent people in America by 
detonating explosions which would destroy things like apartment 
houses and the like.
    Of course, we know also that Padilla had also spent time 
studying the potentials of a dirty bomb so as to detonate a 
device which would disperse radioactive or other very dangerous 
contamination materials.
    The ability to intercept and to interdict the activities of 
an enemy combatant, one who is a part of the enemy, has trained 
with the enemy, has developed a skill which could be very 
injurious to the public, is a longstanding ability in the 
United States. As I say, it was employed by President Roosevelt 
in the Second World War, and obviously it is a responsibility 
of the President in the war against al Qaeda to be willing to 
defend the American people and to take such steps to do so in 
this war as well.
    Senator Cornyn. It has been said that the United States 
Constitution is not a suicide pact, so I assume that you 
believe--I trust you believe that it is within the authority 
under international treaties, under the--
    Chairman Hatch. Senator, your time is up.
    Senator Cornyn. Well, I will send you any other questions I 
may have in writing. Thank you.
    Attorney General Ashcroft. Thank you.
    Chairman Hatch. Thank you.
    Senator Biden?
    Senator Biden. Thank you very much.
    On my 6 minutes, can I yield 20 seconds to my colleague to 
follow up on a question?
    Senator Kennedy. General, has the President authorized you 
to invoke the executive privilege today on these documents?
    Attorney General Ashcroft. I am not going to reveal 
discussions, whether I have had them or not had them, with the 
President. He asked me to deal with him as a matter of 
confidence. I have not invoked executive privilege today. I 
have explained to you why I am not turning over the documents.
    Senator Kennedy. Well, what are you invoking then?
    Attorney General Ashcroft. I have not invoked anything. I 
have just explained to you why I am not turning over the 
documents as a matter of policy.
    Senator Biden. Thank you very much, General. That means you 
may be in contempt of Congress then. You have got to have a 
reason not to answer our questions, as you know from sitting up 
here. There may be a rationale for executive privilege that 
misses the point, but, you know, you have to have a reason. You 
are not allowed, under our Constitution, not to answer our 
questions. And that ain't constitutional. But that is a 
different question. I don't want to get off on it because I 
have got to talk to you about other things. But you all better 
come up with a good rationale because otherwise it is contempt 
of Congress.
    One of the things that I am a little confused about here is 
I don't know anybody in America who has argued we shouldn't 
attempt to preempt terrorist attacks. The question is: What are 
we allowed under our Constitution to do to preempt terrorist 
attacks? And that is really the issue here, not whether we 
should preempt or want to preempt but what we are allowed to do 
to preempt.
    Now, one of the questions I have--and if you don't have an 
answer, I understand, if you could just let me know. It is so 
seldom we get to see you. When you were on the Committee, Janet 
Reno was up 12, 13 times, 22 times in her tenure. You have been 
up three times. We miss you, John. We would like to see you 
more.
    But, at any rate, is there, to the best of your knowledge, 
a Presidential order--not a secret, a Presidential order 
anywhere--that immunizes interrogators of al Qaeda suspects? Is 
there any order that the President has issued that lets it be 
known that they are immunized based on the tactics they use 
from prosecution? Is there such an order? If you know.
    Attorney General Ashcroft. The President has issued no such 
order.
    Senator Biden. Okay, good. I just wanted to get the record 
straight. Now, I have a couple more questions along these 
lines, if I may.
    Is it your position that in time of war, which we are in 
now, that Congress has no authority to question the legal 
judgments of the executive branch, even if we think the 
administration may have violated a treaty or a law or the 
Constitution? If we think you violated a treaty, a law, a 
statute, or the Constitution, is it your position that in a 
time of war we, the Congress, do not have the authority to 
question you and get answers to those questions?
    Attorney General Ashcroft. First of all, I think that 
Congress has the right to ask any question it wants and to 
question and to--it has a responsibility, its oversight 
responsibility, and to debate and to criticize where it chooses 
to and commend where it chooses to and not say anything if it 
chooses to do that.
    There are certain things, in the interests of the executive 
branch operating effectively, that I believe it is 
inappropriate for the Attorney General to say. Some of those 
relate to things that he has said, perhaps in advice he has 
given, and some relate to hypotheticals that he might say or 
might not give.
    I think in terms of drawing that issue sharply, I thought 
Attorney General Murphy, who subsequently became the Justice of 
the Supreme Court, said it very clearly.
    Senator Biden. What he said was generic. He didn't say 
anything specific. I know what he said. He didn't say anything 
specific. He was generic.
    Attorney General Ashcroft. Yes, sir, and I am trying to do 
the same.
    Senator Biden. You are being very generic, that is true. I 
acknowledge that. You are as generic as they come. I got it. 
This is generic. We are trying to get specific. And, you know, 
you said that there has been no--you are not going to give us 
the memoranda that were referenced here. But let me ask you, as 
a lawyer, as a lawyer with an advanced degree beyond law 
school, I would like your legal opinion as Attorney General. 
If, in fact, there was a memo that said that torture might be 
justified and would be constitutional if applied to 
interrogations, if such a memo existed, is that good law? Do 
you believe that to be the law? You, the Attorney General of 
the United States, two degrees from prestigious law schools and 
institutions--
    Attorney General Ashcroft. I have two degrees. The third 
degree I get when I visit the Senate.
    [Laughter.]
    Attorney General Ashcroft. So I don't have a degree beyond 
law school other than the ones that I--
    Senator Biden. I thought you had a master's as well in law.
    Attorney General Ashcroft. No, I don't.
    Senator Biden. Oh, okay.
    Attorney General Ashcroft. But I am wishing I did at this 
time.
    [Laughter.]
    Senator Biden. Where did you go to law school?
    Attorney General Ashcroft. It wasn't under your tutelage, 
but maybe--
    Senator Biden. No, I understand.
    Attorney General Ashcroft. I know you teach.
    Senator Biden. But do you think that torture might be 
justified? That is a question to you. Not memorandum. Just you, 
John Ashcroft, Attorney General of the United States, highest-
ranking law enforcement officer in the United States of 
America, and lawyer. Do you believe in this time of war torture 
might be justified and be viewed as constitutional?
    Attorney General Ashcroft. Well, first of all, this 
administration has not ordered or approved it.
    Senator Biden. I am not asking you that, John, with all due 
respect.
    Attorney General Ashcroft. And I am not going to--
    Senator Biden. I just want to know your opinion.
    Attorney General Ashcroft. --issue or otherwise discuss 
hypotheticals. I will leave that to the academics. This has 
been the subject--
    Senator Biden. Okay. Do you think this is justified? It is 
not hypothetical.
    Attorney General Ashcroft. That is not a hypothetical. That 
is a circumstance, and that is the kind of circumstance that, 
when it is referred to the Justice Department, we investigate. 
And if there is a basis for prosecution, we would prosecute. 
And we have investigations--
    Senator Biden. John, you sound like you are in the State 
Department. Remember the old days when you were here looking 
for answers? Remember being on this side?
    Attorney General Ashcroft. I have a recollection of that.
    Senator Biden. Well, my time is up, I can see.
    Attorney General Ashcroft. You know, I condemn torture. I 
think it--
    Senator Biden. So it is not justified then?
    Attorney General Ashcroft. I don't think it is productive, 
let alone justified.
    Senator Biden. Well, I don't either, and, by the way, there 
is a reason--I will conclude by saying there is a reason why we 
sign these treaties: to protect my son in the military. That is 
why we have these treaties, so when Americans are captured, 
they are not tortured. That is the reason, in case anybody 
forgets it. That is the reason.
    Attorney General Ashcroft. Well, as a person whose son is 
in the military now on active duty and has been in the Gulf 
within the last several months, I am aware of those 
considerations. And I care about your son. I care about--
    Senator Biden. He is not there. He is in JAG, and he is 
back here. But that is the reason.
    Attorney General Ashcroft. He may not be there, but my son 
has been. He happens to be stateside right now for more 
training, but is scheduled to go back within the month.
    Senator Biden. My son was in Pristina working for you guys, 
and the same thing occurred.
    Attorney General Ashcroft. I just want you to know--
    Chairman Hatch. Senator, your time is up.
    Senator Sessions?
    Senator Sessions. Thank you, Attorney General Ashcroft, for 
your service. I believe the Department of Justice has achieved 
great things since September 11th. It has completely re-
evaluated how you do business. You have made sure that our 
investigative agencies know that prevention of attacks against 
the United States are just as important as investigating and 
prosecuting them afterwards, even more important. And that was 
really not the psychology of the American Government before. 
Our agents were just taught--as a former prosecutor who worked 
with them so often, they were taught to investigate crimes 
after they occurred. And you have broken down the wall between 
the CIA and FBI and done a lot of other things that have made 
us a lot more effective in defending this country and defending 
American citizens from attacks by a group of people who desire 
nothing more than to kill innocent people to further their 
twisted aims. And I want to thank you for it.
    I know in this body, we know, the Ranking Member knows that 
he can talk and make one allegation after another after another 
after another, and you would like to respond to them, but you 
will not have time to do that, and neither do I. But I believe 
there is an answer to every one of those charges. And I 
appreciate the dedication of you and your staff, the long hours 
they have worked, long weeks and months and months beyond any 
normal work to make sure this country is safe and protected. I 
hope you use every legal power given you. You should do that. I 
believe that is your obligation--do you not?--to protect this 
country.
    Attorney General Ashcroft. Well, I have said over and over 
again that we will use all the assets at our disposal to 
protect the American people from terror. And I believe that is 
what they expect of their Government and they have a right to 
expect it.
    Senator Sessions. And I understand these leaked memos, some 
of them apparently were in draft form. I am not sure who has 
seen those memos or whether they were final drafts or not on 
torture. But I think you are wise not to express an ultimate 
decision on the absolute ultimate power of a President of the 
United States to protect the people of this country. But I know 
this because I was on the Senate Armed Services Committee when 
we had extensive hearings on these prisons. Every memorandum, 
every policy directive from the Department of Defense directed 
that they should comply with the Geneva Conventions, comply 
with the laws of the United States, and, frankly, it does not 
enhance the safety of American soldiers and, in fact, I think 
could endanger them when we have Senators suggesting that we 
have changed Saddam Hussein's prisons to American prisons and 
there is no difference. So I feel strongly about that, and I 
thank you for your service.
    I have offered legislation dealing with mass 
transportation, and after the attack in Spain, we have seen 
that our country has some gaps in our laws with regard to mass 
transportation. Have you had a chance to review S. 2289 that 
would close some of the gaps and enhance our ability to 
prosecute those who might conduct attacks on our mass transit 
system in America?
    Attorney General Ashcroft. My staff has spent some time 
considering these issues and seeking to close gaps in statutes 
that might relate to the protection of mass transportation 
systems. I think in particular to extend to railroads the same 
protection against terrorist attacks that are currently 
provided to mass transportation systems under the Federal law 
now is something that should be very actively considered. And I 
think while frequently railroad trains in much of the country 
are not perhaps mass transportation in the same way of moving 
people that other mass transportation systems are, they 
certainly are a part of our critical infrastructure that 
deserves our attention and protection.
    Senator Sessions. Mr. Attorney General, I believe the 
PATRIOT Act, as I have read it, in essence corrected a number 
of basic weaknesses that existed in our current legal system or 
legal system at that time, and that we fixed a lot of those. I 
do not believe the PATRIOT Act represents any major expansion 
of Government power. It simply made sure you could utilize that 
power that had been approved constitutionally against drug 
dealers and others against terrorists. Isn't that true?
    Attorney General Ashcroft. I think that is a fair 
characterization of the Act. It does expand the power to take 
it to the area of terrorism, but it doesn't invade or raise new 
constitutional questions or issues. The so-called roving 
wiretap provisions where you could tap more than one phone of a 
single person, or if they threw one phone away, you could tap 
the next one, that has been in place since 1986 for drug 
traffickers. So similar other expansions had already been made 
available in the pursuit of other kind of criminal activity. So 
the Department supports the PATRIOT Act re-enactment because to 
forfeit that would be terrible, just like the Department 
supports the Railroad Carriers and Mass Transportation Act 
about which you asked earlier.
    Senator Sessions. Well, I believe that the proposed changes 
that some have offered weaken the Act substantially. I think we 
should not do that. And I think we ought to take some time and 
go over every word of the Act, and we can do that. But in the 
end, I believe we should not make that change.
    And I would just note about these memorandums, you know, we 
have had people here complain about the memorandums from their 
staff to them being leaked, and rightly so. And I do believe a 
President has a right to obtain legal advice from his Attorney 
General on matters and not have to have that revealed to the 
whole world.
    Chairman Hatch. Senator, your time is up.
    We will now turn to Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman. Welcome, 
Attorney General.
    I am really concerned by the answers that I have heard 
today because we have passed laws against torture. The Uniform 
Code of Military Justice has laws. The Geneva Conventions have 
laws to which we subscribe by treaty. And it seems to me what 
you are doing this morning--and please correct me if I am 
wrong--is essentially reserving this for the executive domain 
and not being willing to share the public policy that results 
in the ratification of treaties and the passage of laws as it 
respects torture.
    These memos clearly do exist, and if you read the 
newspapers, they appear to be an effort to redefine torture and 
narrow the prohibition against it by carving out a class of 
something called ``exceptional interrogation.'' So these memos 
actually either reverse or substantially alter 30 years of 
interpretation by our body, as well as the executive, of the 
Geneva Conventions.
    I would like to ask you this: Will you share access of 
these memos on a classified basis?
    Attorney General Ashcroft. It is a longstanding position of 
administrations going back decades that a variety of high-level 
memoranda and advice are presumptively protected as a function 
of a separation of powers, that the President has the right to 
get advice from his attorney without having the advice provided 
outside that stream of counsel. Only the President asserts 
privilege, which I have not done. But I believe that is the 
basis for my refusal, and I think it is a valid basis.
    Now, let me just say that it is not the job of the Justice 
Department or this administration to define torture. Torture 
has been defined by the Congress. It is defined in the Torture 
Act. And Congress was very careful in defining it. And in 
Section 2340 of the Torture Act, torture means an act committed 
by a person acting under color of law--it is narrowly defined 
by the Congress. You have to be doing something pursuant to a 
governmental authority specifically intended--that is a term of 
art. The Congress knows that well. When you have specific 
intent, it is a higher level of intent than it is in other 
settings--to inflict severe physical or mental pain or 
suffering. And the Congress goes to a sub-point to define 
severe mental pain or suffering in its own--this is part of the 
statute. ``Severe mental pain or suffering means the prolonged 
mental harm caused by or resulting from the intentional 
infliction or threatened infliction of severe physical pain or 
suffering.'' And it goes on for three more paragraphs in just 
defining that.
    Now, I just want to make clear that I don't view my job as 
a job of defining torture. The Congress of the United States 
defined torture, and it defines torture based on the way the 
Senate of the United States agreed to international conventions 
relating to torture and to the Geneva Conventions. And the 
reservations expressed by the Senate in ratifying or providing 
advice and consent in terms of those conventions was then drawn 
down into this statute. And this is something that is not the 
product of the Justice Department. This is the product of the 
action of the U.S. Congress.
    So I want to resist the notion that the Justice Department 
defines torture. The Justice Department doesn't define torture. 
It is defined, and painstakingly defined--I don't mean any 
special double entendre with the word ``pain'' in relation to 
torture. But it is painstakingly defined by the U.S. Congress 
in this, and the definition is the same as it occurs in the 
treaties as it is in the statute because the statute on torture 
is designed to be an enforcement mechanism for the treaty. But 
it is something done by the Congress.
    Senator Feinstein. But, Mr. Attorney General, I take it 
then that your answer to my question is no, that you will not 
make it available on a classified basis?
    Attorney General Ashcroft. That is correct.
    Senator Feinstein. I think Article 17 and Article 31 of the 
Fourth Geneva Convention is rather clear. I don't think it 
needs definition. Article 17 says, ``No physical or mental 
torture, nor any other form of coercion may be inflicted on 
prisoners of war to secure from them information of any kind 
whatsoever. Prisoners of war who refuse to answer may not be 
threatened, insulted, or exposed to unpleasant or 
disadvantageous treatment of any kind.''
    On its face, it seems to me that is crystal clear. So the 
only reason, in my view, for memos was to be able to find some 
basis to protect people who do not follow the Geneva 
Conventions from prosecution. You know, I really think--
    Attorney General Ashcroft. I really need to have a chance--
Mr. Chairman, I hope you will allow me to answer this.
    Senator Feinstein. If I may have time--
    Attorney General Ashcroft. I am sorry. I didn't mean to 
interrupt.
    Senator Feinstein. You go ahead, please. I want to hear the 
answer.
    Attorney General Ashcroft. Well, first of all, you are 
making reference to the Geneva Conventions.
    Senator Feinstein. Correct.
    Attorney General Ashcroft. And the Geneva Conventions apply 
in certain circumstances and don't apply in other 
circumstances. Article 3 of the Geneva Conventions applies to 
prisoners of war.
    Senator Feinstein. But you have been saying we are in war 
all morning, Mr. Attorney General.
    Attorney General Ashcroft. I have been saying that, and I 
believe it. We are in a war with al Qaeda. But the only people 
who are accorded the protections of the Geneva Convention are, 
number one, according to the Convention itself, those nations 
that are high-contracting parties to the Convention. Al Qaeda 
is not a high-contracting party to the Geneva Convention. It 
repudiates the rules of war. It operates against civilians. It 
doesn't wear uniforms, and it has never sought to be a high-
contracting party. The Geneva Conventions do not apply as it 
relates to al Qaeda, and they are not intended to apply as it 
relates to al Qaeda.
    Now, the law against torture applies because it was 
intended to apply. But if you cite the Geneva Conventions, 
Section 3 applies to high-contracting parties, and so you don't 
have the--now, the President, he said we are going to follow 
principles--I am not sure I can quote his exact language, but 
he said we will follow and accord principles of respect similar 
to those in the Geneva Convention in dealing with al Qaeda 
warriors that we apprehend. But the idea that somehow the 
Geneva Convention covers every conflict is simply not the law.
    Senator Feinstein. So let me, because my time--
    Attorney General Ashcroft. And if it were intended to be 
the law, the Senate hasn't said so.
    Chairman Hatch. Senator, your time is up.
    Senator Feinstein. So if I understand you correctly, you 
are saying in the war against terror, which is non-state, 
asymmetric warfare, as far as the administration is concerned, 
the Geneva Conventions do not apply.
    Attorney General Ashcroft. Well, I am saying that there are 
a variety of laws that govern whether or not--the conduct of 
the United States as it relates to individuals we detain in 
time of war. Some of those laws are--some of those 
relationships are governed by Geneva, but the Uniform Code of 
Military Justice, it is everywhere. And the torture statutes 
apply to a variety of circumstances.
    When the Congress enacted the torture statute, it enacted a 
law that said it applied everywhere outside the United States. 
But when the Congress defined the United States, it is not 
simple, because when the Congress defined the United States in 
the torture statute, it said the United States shall include 
special maritime and territorial jurisdictions, which means 
that the United States just doesn't include our 50 States. It 
will sometimes include military bases. It will sometimes 
include consular offices. It will sometimes include the 
residences or embassy offices. And when the Congress of the 
United States makes these definitions, that is what I have to 
live by.
    It seems a little bit of an anomaly to me that, on the one 
hand, there would be those who would accuse me of defining the 
law, and, on the other hand, individuals who would protest the 
fact that I had lived by the Congressional definition of the 
law. When I provide to the President of the United States or 
members of the executive branch an assessment of what the law 
is, I have to go and read the law. And when there are technical 
definitions placed in the law by the U.S. Congress, I am sworn 
on my oath to represent the law as to what it is, not as a 
person whether in my view this would be one way or another.
    It is a complex arena, with the Military Extraterritorial--
I cannot even pronounce it--Military Extraterritorial 
Jurisdiction Act, with the special maritime and territorial 
jurisdiction responsibilities, with the Uniform Code of 
Military Justice, with the various conventions, both Geneva 
Conventions and the antitorture conventions. And they both have 
these carve-outs. We haven't gotten to the technical part of 
defining the United States, which includes territory outside 
the United States for these purposes, because then the Congress 
has come in and said that if you look at Part 9 that defines 
the special maritime and territorial jurisdiction, it takes 
some people out. So for some people, the United States is 
defined by one set of limits; for other people, it is defined 
by another.
    All I am saying is that when I render advice to the 
executive branch, which I seek to do, and the professionals of 
my Department who know this much better than I do, they have to 
live by those definitions. And we cannot re-create them in what 
would--you know, just to say it is common sense to read this 
provision, that means it is everywhere. Well, the Geneva 
Convention doesn't apply everywhere by its own terms and by the 
terms embraced by the Congress in ratification, and I have to 
reflect that in my advice. I simply do.
    Chairman Hatch. Senator, your time is up.
    Senator Craig?
    Senator Craig. Thank you very much, Mr. Chairman.
    John, it is great to see you again. You look healthier, not 
generic--healthier--and I appreciate that. We wish you could 
have been with us more often. After today, I can understand--
    Attorney General Ashcroft. I had intended to be with you on 
a continuing basis at one time in my life.
    [Laughter.]
    Senator Craig. For those who haven't been home recently--
    Attorney General Ashcroft. I lost the election.
    Senator Leahy. I thought you meant you intended to be up 
here to testify.
    Attorney General Ashcroft. There is a difference between 
being here to testify and sitting on your side.
    Senator Craig. For those of us who have not been home most 
recently, if we had--and I have, and I have been on the main 
streets of Boise, Idaho, in the last 48 hours, there is no 
appearance of war. Our economy is--
    Attorney General Ashcroft. We want to keep it that way.
    Senator Craig. Our economy is growing and thriving, and it 
is robust, and Idaho citizens are trafficking in their most 
normal ways, except for 2,000 families in Idaho at this moment 
whose sons and daughters and husbands or wives have just been 
called up out of the Reserves and the National Guard to go on 
special training to be deployed to Iraq in October. Two 
thousand young men and women out of Idaho out of a total 
population of 1.2 million, that is a heavy impact on Idaho. 
Idaho is very much at war.
    Last Thursday evening, I spent time at Walter Reed with 
young men and women who were pinned and taped and stitched back 
together. They had been brought home from Iraq. They were the 
victims of war. They were not the victims of traffic accidents 
on Pennsylvania Avenue.
    I know it is very difficult to walk out on the main streets 
of America and to even sense we are at war. But we are. I 
believe there was a young man or a woman in our uniform killed 
in Iraq in the last 24 hours. We are very much at war, and we 
must not forget that. And war does afford the executive branch 
of Government some extraordinary powers.
    But, having said that, what happened at Abu Ghraib prison 
is not acceptable, and we know that, and that is why it is 
being investigated fully today. And if those who are being 
investigated are found guilty, I trust they will be prosecuted. 
And the greatest transparency of this Government will be 
necessary and appropriate in that process. And so thank you for 
being vigorous in that area.
    But, John, you said something a couple of moments ago that 
frustrates me a bit when you said defining versus interpreting, 
and that is in relation to the PATRIOT Act. You and I have some 
disagreements there as friends, and we have disagreements on 
policy. I strongly believe in the PATRIOT Act, and I voted for 
it. And the Congress of the United States did extend powers in 
areas where it should exist and hadn't existed. And hopefully 
that will be improved.
    It is also true that you have had your attorneys before us 
proposing change in the PATRIOT Act. I find it fascinating, 
therefore, that when some of us propose them, we become victims 
of high levels of criticism. I am proposing changes in the 
PATRIOT Act, known as the SAFE Act. I am a primary sponsor of 
that, along with some of my colleagues. And we will look at 
those issues. Senator Sessions just said we will look at it in 
great detail, and we must. You see, I trust you, but I don't 
know about the next Attorney General or the next Attorney 
General or the next Attorney General. And, therefore, we will 
not build law based on trust. What have you just said? You 
cannot redefine the law. You can only interpret it as Congress 
meant it, and we gave you extraordinary powers in an area--or I 
should say we extended them out of drugs into terrorism.
    But I do believe in safeguards, and I do believe that there 
is an importance in asking for the right to proceed at certain 
times along the way, and that is all that the SAFE Act largely 
does. And we will pursue that with you. We will debate it 
thoroughly in a most collegial manner. It is important. Civil 
liberties in this country are a basis of our great country. And 
while I respect you and trust you, I don't trust Government. 
And I don't expect our citizens to unless the law is in place 
to make Government perform in the appropriate fashion. And so 
that is what we are about here, and I thank you very much for 
your diligence and your effort to be tough and strong 
throughout these most difficult times for our country.
    What I hope, though, in the end is that Saddam Hussein will 
not have taken away from us something that our Constitution in 
large part granted us and that we have it taken away in the 
name of safety and security. That is the intent of the SAFE 
Act. That will be the intent as we debate it and as we 
reauthorize the PATRIOT Act. I will vote for a reauthorized 
PATRIOT Act. But I will vote for it with some slight changes in 
its that are going to be necessary and important, now and in 
the future. And that is what we are about.
    But I thank you for your presence here today and for your 
forthrightness. That is what we expect of you. You are a 
candid, bright, and capable person, and that is highly 
respected by this individual. Thank you.
    Chairman Hatch. Thank you, Senator Craig.
    Senator Kohl?
    Senator Kohl. Mr. Attorney General, Jose Padilla was 
arrested on May 2nd, way back in 2002, at O'Hare and declared 
an enemy combatant a month later. In February of 2003, the FBI 
announced that al Qaeda might be seeking to attack soft targets 
like apartment buildings.
    Then 2 weeks ago, Deputy Attorney General Comey held a 
press conference to fill us in on details of the Padilla case, 
that he has admitted to plotting to blow up apartment buildings 
inside the U.S. He was allegedly trained to prepare and seal an 
apartment building in order to obtain the highest explosive 
yield. So we have a man in custody that we knew had met with 
the highest members of al Qaeda. We believed that he was 
trained to blow up apartment buildings, and we had information 
about how he was going to do that.
    I believe it would have been beneficial to share this 
information with the American public at that time, millions of 
whom live in apartment buildings. Putting the American public 
on notice that al Qaeda was planning this sort of attack would 
have added another layer of protection. Instead of relying 
exclusively on law enforcement, we could have had immediately 
millions of Americans assisting us in preventing such an 
attack. Why wasn't that information made public back then, Mr. 
Attorney General?
    Attorney General Ashcroft. The information of which you 
speak was shared with a variety of individuals who we felt 
could be helpful to us in making sure that the plots never 
transpired. We shared that very extensively with State and 
local government law enforcement officials. As you know, we 
have an alert list of 18,000 law enforcement agencies around 
the country, and that covers almost 700,000 law enforcement 
officials.
    We also went to the apartment owners groups of individuals 
to talk to them about security and to make sure that they would 
taken whatever actions they could to be alert and to alert 
individuals in their various settings in their operations to 
make sure that we did what we could to protect the American 
people.
    Our awarenesses of Mr. Padilla's circumstances and 
intentions was a progressive awareness, and I am not at this 
time capable of re-creating exactly when we learned each of 
these things. But I know that we early went into the apartment 
owners and operators community with information about the 
vulnerability that apartment buildings have, particularly those 
where the parking is associated with the building. But, 
obviously, if someone were to carry small amounts of explosives 
into a building one day at a time and then go on vacation, it 
would be a very--you could have a very serious circumstance, 
even absent parking associated with the building.
    Senator Kohl. Mr. Attorney General, last month, FBI 
Director Mueller testified here. I questioned him about 
security at the upcoming Summer Olympic games. His answer was 
not entirely satisfying. He acknowledged that there were gaps 
in Greek security, but that it was too early to assess how well 
the Greek authorities were doing to fill these gaps. Can you 
give us some further information, some further sense of 
assurance?
    Attorney General Ashcroft. Well, the United States of 
America is not responsible for security at the Greek games. We 
are interested in assisting and providing assistance, but the 
responsibility for the security is the responsibility of the 
Greek nation. It is on their territory. It is in their 
sovereign jurisdiction.
    The FBI and our Department were involved in preparations. 
Shortly after 9/11, you will remember we had the Winter 
Olympics under the jurisdiction of the Chairman of this 
Committee, and we spent a lot of time and energy considering 
security. We have sent a team of individuals that were involved 
in that endeavor to make sure that those involved with the 
games in Greece have a capacity to understand what the 
challenges are. We have provided input for a Europol threat 
assessment for the Greek games. Our Ambassador has coordinated 
with a working group regarding security.
    We will do what we can to be of assistance. I know that 
there are other parts of this administration other than the 
Justice Department that are aggressively involved, and during 
the operational period of the games, the FBI will be deploying 
a team of personnel to Athens. But, very frankly, much of 
security is determined before the games begin, in the structure 
and the way things are set up and the way things are done.
    The support that we have been involved in developing has 
been a matter of our volunteering to assist. The FBI has not 
been given any specific operational tasking in support of the 
Olympic games, nor has the FBI been given any specific 
operational mandate in the event of an incident during the 
games. But we are providing the help that is being requested 
and trying to provide input that will elevate the level of 
security and reduce the risk to both athletes and spectators in 
Athens.
    Senator Kohl. In March, Chairman Hatch and I urged Justice 
to complete a rulemaking that would require all imported 
explosive materials to be marked in the same way domestic 
explosives are marked. This would allow investigators to 
determine the origin of explosives and aid them in tracking 
down criminals. Four years to finalize that rulemaking, it 
seems to me, is too long for a very straightforward issue. Now 
I hear the target release date of June 2004 will not be met. We 
are concerned that the threat of imported explosives is not 
being taken seriously enough, so I am going to introduce 
legislation next week that will require markings to be placed 
on all imported explosives. Can I count on your support, your 
Department's support, for that legislation?
    Attorney General Ashcroft. Well, let me just say that we 
recognize this as a serious issue. It is something I would much 
appreciate the opportunity to review before I made comment on 
it. ATF has submitted a final draft rule to the Department for 
review. The Department has also recently met with 
representatives of the explosives industry that are concerned 
about this and the fact that there ought to be a level playing 
field between both domestic and foreign manufacturers and 
producers of explosives.
    So I thank you for your interest in this. Your prodding is 
appropriate. I think you are right. Four years is too long. And 
we will work to issue the rule, but I could understand if you 
want to go forward with the legislation because you have been 
patient, and this is an important matter which you don't want 
to be damaged as a result of your patience.
    Chairman Hatch. Senator, your time is up.
    Senator DeWine?
    Senator DeWine. Mr. Attorney General, good to have you with 
us today.
    Attorney General Ashcroft. Thank you.
    Senator DeWine. The FISA statute is one of the most 
important weapons we have in the fight against terrorism. In 
fact, really I am not sure that there is anything that the 
Justice Department does that is more important than 
administering the FISA statute.
    Unfortunately, it appears that we are still having problems 
with the FISA process. On the plus side, it seems as though the 
Justice Department has been more aggressive in filing FISA 
applications with the result that last year we saw a record 
number of applications, over 1,700, according to your 
testimony. Unfortunately, however, many applications are still 
sitting and waiting to be processed. The staff of the 
independent 9/11 Commission tells us, and I quote, ``The 
application process, nonetheless, continues to be long and 
slow.'' And that process is still subject to, and again I 
quote, ``bottlenecks.''
    Similarly, Mr. Attorney General, on May 20th, at the last 
FBI oversight hearing held by this Committee, I asked FBI 
Director Mueller how well he thought the FISA statute was being 
utilized. Frankly, he seemed a little uncomfortable with the 
question, and he didn't want to go into much detail because 
some of the information understandably might be classified. But 
what he said was this--and I must tell you, Mr. Attorney 
General, I was very concerned with what he did say, and let me 
quote, and this is a direct quote. ``We still have concerns. 
There is still frustration out there in the field in certain 
areas where, because we have had to prioritize, we cannot get 
to certain requests for FISA as fast as perhaps we might have 
in the past.''
    So you have got the independent 9/11 Commission saying 
that. You have got the FBI Director with his very candid 
comment to our Committee. Other information that I received 
indicates there is a bottleneck. You know, I understand that 
you are doing a better job, you are putting more resources into 
this, but governance is priorities. And I don't know anything 
that is more important that you all are doing than getting 
these FISA applications through. And if I was somebody out in 
the field and I had worked up a FISA application and I thought 
it was the most important thing in the world and I had worked 
it up, and I had everything lined up, and it was sitting there 
and sitting in Washington and I couldn't get it through, I 
would be very discouraged. I think it has to have had a 
demoralizing effect on the people out in the field.
    There is still a problem there. I mean, there is still a 
problem. And I guess my question is what can we do, what can 
you do to put more resources on this?
    I just think, Mr. Attorney General, you have got a while to 
go on this, and I just do not think there is anything more 
important that you are doing, and I just think you need to put 
more resources on it and prioritize this.
    Attorney General Ashcroft. Let me thank you for raising 
this issue. It is a matter of great concern to me.
    The first or second thing that happened to me after I got 
into office was a call from the FISA Court saying that we 
needed to renovate the FISA operation. We did, and that was 
early in the year 2001. And then when September 11th hit, the 
demand for FISA coverage skyrocketed. It has increased, well, 
the numbers really are not very helpful because we can say, by 
the number of petitions, by 85 percent, but some of these are 
very substantial multiple surveillance petitions, so that it 
does not really reflect the true numbers total.
    I think there are a couple of things that we wanted to do, 
and we want to restructure the operation so that we do not have 
a duplicative effort--one on the FBI side and then have it done 
all over again when it comes to Justice and redone. And we want 
to be able to work promptly by avoiding those kinds of 
bottlenecks.
    In April of this year, in response to these issues, and 
part of them I think you had written about or conferred with me 
about, as I recall.
    Senator DeWine. That is correct.
    Attorney General Ashcroft. We created a special group of 
attorneys to look at this out of the Office of Intelligence, 
Policy and Review to cut down on the costs of moving across the 
street, back and forth, to the FBI and moving from the field to 
Washington, and we are making progress. The problem is 
remediating. We have fewer pipeline FISAs now than before, but 
we are not home yet, and so we will continue to work in that 
respect.
    I have asked, in each of the past 3 weeks, the Chairman of 
this task force for reports, and the reports are encouraging. I 
would just say this, that we are prioritizing among FISA 
applications--
    Senator DeWine. I understand you are.
    Attorney General Ashcroft. --so that at least the most 
promising of those applications are the ones that would be 
first attended to, but, frankly, it is not easy always to know 
where you are going to get the best intelligence, and it is not 
a situation where I am confident in saying, ``Oh, well, we do 
not have to worry about that one. That might not be as 
productive as a--''
    Senator DeWine. Mr. Attorney General, my time is up, but I 
think that is just the point. I think you are prioritizing, and 
you have to, but I think it is dangerous when you have to 
prioritize. I think you are doing a better job, but all of the 
information I can get indicates that we have still got a while 
to go. I think you all can do a better job, and I just think 
that you need to put more resources on this, and I would just 
encourage you to put more resources on this.
    I do not know that there is anything more important that 
you are doing in the war on terrorism, and I do not know how to 
say it any stronger. You have got to put more resources on 
this. You have got to do a better job, and I thank you, sir.
    Chairman Hatch. Thank you, Senator.
    Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman.
    Mr. Attorney General, welcome. I must tell you I am deeply 
troubled by this administration's repeated efforts to 
misrepresent to the American people the true substance of the 
debate over the PATRIOT Act. As you are well aware, no one in 
the Senate is suggesting that the PATRIOT Act be repealed. 
Furthermore, this is not, nor has it ever been, about the wall 
coming down between intelligence and criminal investigators. We 
all enthusiastically supported that needed change.
    But we do deserve to have an honest discussion about the 
use of the PATRIOT Act so the Congress can decide if it has 
been abused, if it needs to be fixed or if every word of the 
PATRIOT Act should be extended without change beyond the sunset 
date for some provisions almost 18 months from now.
    It has been almost 3 years since the USA PATRIOT Act was 
signed into law, and still the American people do not know how 
some of the most controversial provisions, dealing with roving 
wiretaps, access to library and book-seller records and sneak-
and-peek warrants are being used. Three months ago, I wrote to 
you and asked specifically how Section 215, dealing with 
library records, was being used, and I still have not been 
provided a satisfactory response.
    In the meantime, you, the President and others in the 
administration have been calling on Congress to simply renew 
the PATRIOT Act, while allowing the deafening silence on how it 
is being used to grow louder every day. We, in the Congress and 
the American people, deserve better.
    Mr. Attorney General, when can I and others in Congress 
expect to hear the specifics about how the PATRIOT Act is being 
used, either in an open forum or in a classified briefing?
    Attorney General Ashcroft. The information is provided to 
the Intelligence Committees and is available to members of the 
Congress through the Intelligence Committees. We have reported, 
on a regular basis, to the Intelligence Committees about the 
operation of the PATRIOT Act, and we are required to do so in 
the PATRIOT Act. Part of the safeguards of the PATRIOT Act, in 
addition to every activity of the FISA community basically 
being preauthorized by a Federal judge and the fact that we 
have that kind of screening by the Federal Courts in advance, 
we are required, twice a year, to report to the Congress and 
the Intelligence Committees--
    Senator Feingold. General, are you saying that this is not 
something you will be providing directly to members of this 
Committee?
    Attorney General Ashcroft. We do not provide those kind of 
classified reports directly to the Judiciary Committee. We do 
provide them to the Intelligence Committees. That has been the 
format for providing and the procedure for providing classified 
information to the Congress.
    Senator Feingold. General, I am confused. I have been 
provided in the past with some information that I wanted 
updated of this very kind, and I do not understand why I would 
not get an update, for example, on the number of sneak-and-peek 
searches and the use of that. It seems to me that, instead of 
broader information that should be provided at a time when we 
need the information to decide what to do with the Act, the 
scope of the information that I am going to be allowed to look 
at is narrowing.
    Attorney General Ashcroft. I am told that that is being 
assembled for you and that you will be provided with 
information about the implementation of the Delayed 
Notification Search Warrant provision of the act, which I would 
hope to be able to clarify is not a part of the specific 
antiterror parts of the act, but is simply part of the generic 
criminal law which was added to the act in the passage of it.
    Senator Feingold. Which has surely been cited repeatedly as 
an important tool in the fight against terrorism.
    Attorney General Ashcroft. It certainly has, but not 
exclusively.
    Senator Feingold. Mr. Chairman, I hope that we can figure 
out, as a Committee, how this information can be obtained, and 
whether classified or not, in the context of the Judiciary 
Committee. Otherwise I do not know how we are going to be able 
to evaluate with the PATRIOT Act as these sunset provisions 
come up.
    Mr. Attorney General, I also want to make a clarification 
for the record. In discussing the PATRIOT Act with Senator 
Sessions, you stated that roving wiretap authority has been 
available since 1986 in the criminal law, and that is true. But 
the PATRIOT Act gave the FBI authority under FISA that is 
broader than that available under the criminal law. The SAFE 
Act, which I co-sponsor with Senator Craig, does not seek to 
eliminate roving wiretap authority, as the administration 
officials have repeatedly tried to tell people it does. It just 
seeks to put in place protections for innocent people that are 
already present in the criminal law.
    So let me, respectfully, challenge you and your staff to 
engage in good-faith discussion with us about this issue, 
rather than continuing to assert incorrectly both what the 
PATRIOT Act does and also what the SAFE Act does.
    General Brandon Mayfield is an innocent American citizen 
who was falsely implicated and detained for the May 11th 
terrorist bombing in Spain. But for the fact that he had access 
to counsel and judicial review, Mr. Mayfield might still be in 
jail today. If held as an enemy combatant, Mr. Mayfield would 
be in a military jail without the right to an attorney, and his 
truthful statements of innocence would be taken simply as 
failures of his interrogators.
    In the Mayfield case, I am very trouble by what appears to 
have been a rush to judgment by the U.S. attorney. At least 3 
weeks before the Government sought to detain Mayfield as a 
material witness, DOG was already aware that the Spanish police 
disputed the FBI's conclusion. As you are aware, in the 
Government's filings in the Mayfield case, one of the explicit 
reasons cited for detaining Mr. Mayfield as a material witness 
was that the FBI learned from an informant that the informant 
had distributed copies of the Koran throughout U.S. prisons and 
that this version contained an appendix called, ``The Call to 
Jihad in the Koran: Holy Fighting for Allah's Cause.''
    The Material Witness Affidavit does not state that Mr. 
Mayfield ever read this Koran, endorsed this version of the 
Koran, possessed this Koran or had ever seen this Koran. Yet, 
after describing this apparently irrelevant reference to the 
Koran in the affidavit, the very next paragraph of the Material 
Witness Affidavit states that surveillant agents ``have 
observed Mayfield drive to the Bilal Mosque, located at 4115 
160th Avenue, Beaverton, Oregon, on several different 
occasions.''
    Mr. Mayfield appears to have been singled out for 
heightened scrutiny based on a number of legitimate factors, 
but also because of his religious beliefs. And I do have to say 
I appreciate, General, what you said in your statement about 
Nashala Hearn, who will testify this afternoon in the 
Constitution Subcommittee. I agree with you, that she has a 
right to wear a head scarf to school, but I hope you and the 
Department would extend the same respect for free exercise of 
religion to those who attend mosques or other houses of 
worship. I would hate to see our Nation become a place where 
simply exercising one's religious beliefs is a basis for 
investigation and criminal prosecution.
    So, General, I do not know if you personally reviewed the 
affidavit before it was filed, but in light of what happened in 
the Mayfield case, what steps have you taken that will assure 
the millions of law-abiding Muslims in this country that their 
religion will not cause them to be targeted for criminal 
investigation or prosecution.
    Chairman Hatch. Senator, your time is up, but if the 
General cares to answer.
    Attorney General Ashcroft. Well, very frankly, I want to 
thank the Senator. I think these remarks are well-taken, 
especially as it relates to Brandon Mayfield. Although I am 
very happy to discuss the SAFE Act and what I consider would be 
the impairment of our ability, for instance, in roving wiretaps 
for the SAFE Act would require, I believe, that we have an 
identity for a person before we could get a wiretap. And 
frequently these terrorists are very good at concealing their 
identity and disguising themselves, and there are things that 
perhaps need to be discussed, and you may be willing to do 
that.
    Let me move to the Mayfield situation. That is an 
unfortunate situation which I regret. Any time any American is 
detained and we later find out that the detention was not 
necessary for the maintenance of public safety and that 
someone's liberties were offended, I think that is something to 
regret. There are inevitably times when people are charged and 
then found innocent. If you have a system, you will have 
circumstances like that. As a matter of fact, the pride of our 
system is that people are found innocent because we adjudicate 
these things.
    I would want to assure you that, when the fingerprint came 
from--when we gained access to the fingerprint, we had no 
identifying characteristics, whether it was male, female, who 
it belonged to. It was only identified to a specific person 
after the analysis, which brought the reason for the 
identification and the match. So that this was not a 
circumstance where someone colored his or her judgment about 
the analysis.
    I would point out, as well, something that was, frankly, 
shocking to me. It was that the independent fingerprint expert 
appointed by the Court reached the same conclusion. The 
fingerprint had been a photograph from a partial print, and 
obviously when the real print became available and additional 
analysis was engaged in, it was determined, and early in that 
process, before we actually--when we learned that the 
reservations of the Spanish were so substantial, we went to the 
Court, asked for the release of Mr. Mayfield. I understand, 
though, that he had already been detained, and that is a matter 
to regret.
    In terms of what are we doing to avoid that, first of all, 
the Director of the FBI has convened a group to try and look 
and review.
    And, secondly, you asked about what are we doing to assure 
Muslim Americans that their rights are respected. And we have a 
pretty significant history of that. Today's action, which I 
mentioned regarding Nashala, is not usual. We have investigated 
over 400 cases of discrimination that followed the 9/11 plots. 
We have been to mosques. We have helped prosecute cases. We 
have provided assistance in State and local investigations that 
have resulted in over 100 convictions, I believe, and there 
have been Federal cases that have involved convictions of 
between I would say close to 15 to 20 cases where 
discrimination against Muslim Americans. So that we have worked 
together with State and local authorities. There have been 
heinous acts of discrimination, including shootings and things 
like that, arson, and we will continue to do everything we can 
to signal that we believe the religious liberties of 
individuals of all faiths merit our respect and protection, 
aggressively.
    And to the extent we can continue to communicate that, we 
will, and I would be open to suggestions about how we might do 
it more effectively.
    Senator Feingold. Let me thank you, General, and just say--
because I know my time is up--that we are going to be spending 
the entire afternoon here in the Subcommittee on the issue of 
alleged concerns about freedom of exercise of religion in our 
country.
    This kind of situation that you, of course, apologized for, 
raises a very serious concern about the freedom of exercise of 
religion on the part of many millions of Americans who could 
easily feel intimidated if we get this wrong, and I am deeply 
concerned that that not happen. But I do appreciate your 
answer, and I thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator.
    Senator Specter?
    Senator Specter. Thank you, Mr. Chairman.
    Attorney General Ashcroft, I believe that there are many 
important provisions of the PATRIOT Act; for example, the 
provision which tore down the law between warrants under the 
Foreign Intelligence Surveillance Act, so that when evidence 
was uncovered which was relevant on the trial of a criminal 
case, that there would not be that artificial barrier. There 
are other aspects of the PATRIOT Act where I have some concerns 
with respect to the issue of showing reasons for exercising the 
authority which is enumerated in the act.
    There has been a good deal of questioning on the provisions 
of the act, which relate to library books, relate to records, 
relate to other documents. There is an analogous situation as 
to provisions on the detention of aliens, analogous from the 
point of view of exercising authority where there is probable 
cause or, articulated in another fashion, very good reason for 
doing so.
    I raised a question with you back on July 25th at 2002 
about the detention issue, where there had been a ruling by the 
immigration judge and the Board of Immigration Appeals and that 
you had the authority to overrule both of those boards. And at 
that time you responded that you had never exercised that 
authority.
    On April 17th of last year, an issue came before you where 
there was a young Haitian refugee, where there had not been any 
showing of a problem with respect to terrorism, and you 
overruled both the Immigration judge and the Board of 
Immigration Appeals. And then the Inspector General of the 
Department of Justice criticized the Department for the failure 
to distinguish between immigration detainees who are connected 
to terrorism and those who do not have any reason for 
detention.
    I would ask you to reconsider the policy so that there is 
an individualization of what you do. If there is an indication 
of terrorism, probable cause or an articulatable standard for 
concern, I can see that. But it seems to me that the essence of 
American justice to evaluate everybody on an individual basis 
ought to lead you to a different policy than that which you had 
the blanket articulation back on April 17th of last year.
    Attorney General Ashcroft. If you care for me to make 
remarks about that, I would be pleased to be responsive.
    Senator Specter. Okay. I would appreciate that.
    Attorney General Ashcroft. This was known as the ``Matter 
of D.J.'' It involved a group of 216 undocumented individuals 
from Haiti and the Dominican Republic, who arrived in Florida 
in October of 2002. The vessel was one that came into the 
waters in an unauthorized way, evaded Coast Guard attempts at 
interdiction, and many of the passengers attempted to flee from 
law-enforcement officers before they were apprehended. So here 
we had individuals whose intention was to come into the United 
States and remain here illegally.
    Section 236 of the Immigration and Naturalization Act 
provides broad discretion to me as to whether to detain or 
release such aliens pending a final decision on their removal.
    Now, individuals who are willing to come to the United 
States, and many of these people, I admire their initiative and 
their drive--
    Senator Specter. Attorney General Ashcroft, I just have 10 
minutes. Could you focus on the issue as to whether there is 
individual treatment for that behavior.
    Attorney General Ashcroft. Well, sometimes individual 
treatment is important. Sometimes it is important to make a 
statement about groups of people that come. If we make a 
statement that groups of people that can come, can just merge 
into society and will not be detained in the United States when 
they come illegally, one of the communications that takes place 
is back to the country of origin: All you have to do is come. 
Even if they stop you and catch you, you will be evaluated as 
just fine and set loose in the country, which is what you had 
hoped to have happen anyhow.
    And the triggering of mass migrations, which can be very 
disconcerting, can result from a signal that if you come to the 
United States, you will not be detained.
    I think national security interests have to be considered 
when we are encountering aliens who arrive in large numbers 
from overseas and do so illegally, and that is the basis for my 
decision.
    Senator Specter. Attorney General Ashcroft, a final 
question. There is only 6 minutes here. This is a matter that I 
wrote to you back on November 12th of 2003, and I got an answer 
from an assistant which was a nonanswer. I will ask that both 
these letters be made a part of the record.
    But it involves a constituent of mine, Allegheny 
Technologies, Incorporated, which you and I talked about last 
week. And this involves the clean-up of a site which has 
tungsten, which is a naturally radioactive material. And my 
constituent had paid $5 million voluntarily and was then asked 
to pay another $7 million, with the prospect of an additional 
$5 million on an allocation made by the Department of Justice 
which had a conflict of interest, where the Department was 
representing both sides--representing the Environmental 
Protection Agency and the U.S. Government, which was a 
responsible party.
    And it seems to me that it is fundamentally unfair to have 
the Department of Justice on both sides of the issue with a 
conflict of interest.
    I would ask unanimous consent, Mr. Chairman, that the 
letters that I referred to and a memorandum, dated June 7th, 
from Allegheny Technologies to me, be placed in the record, 
which will set forth in some greater detail the underlying 
factors, and I would appreciate a response from the Attorney 
General.
    Chairman Hatch. Without objection.
    Attorney General Ashcroft. Well, the case I believe to 
which you refer is the United States v. City of Glen Cove. I 
think you have characterized the case as a consent judgment was 
lodged with the Court to provide an opportunity for public 
comment. The TDY Holdings Company, which is owned by Allegheny 
Technologies, recently was granted the right to intervene in 
the case and will have the opportunity to participate directly 
in any Court review of the consent judgment.
    And I believe their being at the table allows them to get 
justice in the context of the supervision of the Federal Court. 
And they are represented by counsel, and represented well by 
counsel. So, for me to go beyond that, in this forum, would be, 
I believe, inappropriate.
    Senator Specter. Mr. Attorney General, they had to get 
leave to intervene, and there was an enormous hurdle that they 
had to overcome after the Department of Justice made a finding 
holding them for 49 percent of responsibility, only because 
they were a deep pocket. And where that eliminates obligations 
by others, including the U.S. Government, do you not think it 
is fundamentally unfair to represent both sides in a 
controversy?
    Chairman Hatch. Senator, your time is up.
    Attorney General Ashcroft. This case is before the Court at 
this time. For me to comment on fairness or unfairness of it 
would be imprudent, to say the least, in representing the 
United States.
    Senator Specter. Mr. Attorney General, that is not the 
point.
    A final comment, Mr. Chairman. This is what you did in the 
Department of Justice. The Court is going to consider the 
matter really reviewing your discretion. Apparently, they have 
a disagreement because they allowed Allegheny Technologies to 
intervene. But I am asking you a very separate question, not 
what is pending on litigation, but what the Department of 
Justice did in imposing these burdens on my constituent.
    Attorney General Ashcroft. I will be happy to review this 
matter.
    Senator Specter. I would appreciate it if you would.
    Chairman Hatch. Thank you.
    Senator Schumer?
    Senator Schumer. Mr. Chairman, thank you.
    And, Mr. Attorney General, I know this has not been an easy 
day for you, and we respect your being here. But in all due 
respect, I have to say sometimes you are your own worst enemy, 
and I would like to try to interject a note of balance here.
    There are times when we all get in high dudgeon. We ought 
to be reasonable about this. I think there are probably very 
few people in this room or in America who would say that 
torture should never ever be used, particularly if thousands of 
lives are at stake.
    Take the hypothetical. If we knew that there was a nuclear 
bomb hidden in an American city, and we believed that some kind 
of torture, fairly severe maybe, would give us a chance of 
finding that bomb before it went off, my guess is most 
Americans and most Senators, maybe all, would say do what you 
have to do.
    So it is easy to sit back in the armchair and say that 
torture can never be used, but when you are in the foxhole it 
is a very different deal. And I respect, I think we all respect 
the fact that the President is in the foxhole every day. So he 
can hardly be blamed for asking you or his White House counsel 
or the Department of Defense to figure out, when it comes to 
torture, what the law allows, and when the law allows it, and 
what there is permission to do.
    The problem is not in asking the question. The problem is 
not with the issues being explored. The problem is there has to 
be very careful guidance, and it should be made public. And 
most people are reasonable and would understand that. If it 
does not, it has no legitimacy. And the penchant for secrecy, 
the fact that JAG lawyers had to release this, is what I think 
ends up making this issue far more difficult or that is what is 
reported in the papers that JAG lawyers might have released 
this, JAG lawyers, makes it more difficult.
    To me, it is the same thing as what happened in the PATRIOT 
Act. The PATRIOT Act, as it emerged from the Congress, ended up 
being fairly balanced, but people wanted to scrutinize it, as 
they should, as they should with torture, as they should with 
any of these things. Whenever security and liberty are in 
balance, that is just the point where the Founding Fathers 
wanted open and wide debate.
    Well, you know, librarians all across this country thought 
that all of the books were being looked at, and it took a year. 
I wrote you letter after letter saying, ``Make it public.'' 
Finally, you made it public. No libraries had--the provision, I 
think it was 215, as I remember, was not used, but not before 
large numbers of people got into a whole panic.
    So secrecy is the issue here. There has to be open debate, 
and particularly on an issue like this one, which is a 
sensitive issue, which is a difficult issue, which, in our new 
world where everything is public, makes your job, the 
President's job in this difficult world, difficult, and I 
appreciate that difficulty. I really do. I do not agree with 
the ideologues on either side here--far left or far right.
    So I would renew the request that you make these memoranda 
public. If they are not tight enough, if they allow too many 
loopholes, we certainly do not want torture to be used willy-
nilly. We do not want, at the whim of a lieutenant, to say, 
``Hey, there is security at stake here. We should use it,'' but 
we also do not want the situation like I mentioned in Chicago 
to preclude it. But it has got to be done carefully. And if it 
is pubic, and if there is debate, you can be sure it will be 
careful. That is what the Founding Fathers in their wisdom 
said.
    You said two different things in response to the questions 
of Senators Kennedy, Leahy and Feinstein. You said you could 
not release them because they were privileged, but I tend to 
doubt that because they were evidently widely distributed. It 
is not the President hearing from the counsel.
    Then, you said they could not be released because they are 
classified. I tend to doubt that because you can redact 
whatever needs to be redacted in terms of classified. 
Certainly, the balancing tests would not be classified because 
they cannot be terribly specific.
    Why can you not release these documents? We can we not have 
a discussion, in this brave, new post-9/11 world? And Lord 
knows I live with it as much as anybody, coming from the city I 
do and knowing people that were lost. Why can we not start 
doing these things publicly, openly, understanding that there 
are many different views and coming to a consensus or as close 
to a consensus that we are going to?
    So I renew my plea and the plea of others. Why can you not 
release these memos? And let us have a debate. Maybe they are 
not 100 percent. They are probably not 100-percent right. Maybe 
they are 10 percent, maybe they are 90 percent. We do not know.
    Could you again reiterate to me the specific reasons why 
these memos cannot be made public, and we can take the debate 
from there.
    Attorney General Ashcroft. I think the reason--and if I did 
say that I was exerting executive privilege--I do not believe I 
said that, and I did not intend to say I was exerting the 
privilege. I think only the President exerts the privilege, and 
I have not done so.
    Senator Schumer. Right.
    Attorney General Ashcroft. I have stated a reason, and that 
is that the President has a right to receive advice from his 
Attorney General in confidence and so do other executive 
agencies of Government. And this does not mean that there 
cannot be debate on such topics, it just means that the private 
advice that the President gets from his Attorney General does 
not have to be a part of the debate.
    There is nothing in what I am saying here that would 
restrain debate either in the Congress or in the public about 
such issues. You have given I think a little dissertation on 
this, and I do not mean anything pejorative about that. It is 
the kind of thing you would get in law school. Some professor 
would toss out the deal, and set these things up, and it would 
be the occasion for the kind of give-and-take in a debate which 
might well be appropriate.
    And I think I commend that kind of debate except when the 
persons involved in the actual conduct of a war signal the 
parties to the war the entirety of the strategy and 
understanding of the way the war may be conducted. There are 
times when that is not in the best interests.
    And if I may just say this. I know this, that our armed 
forces train our own people to resist interrogation techniques. 
As soon as we know what the interrogation techniques are, we go 
to our own armed forces, and we say this is the way you resist 
these interrogation techniques.
    Now, for us to advertise by way of a variety of means, 
whether it includes one kind of disclosure or not, exactly the 
way in which we do things may not be the right way to conduct 
policy at the time of war. Senator Biden talked about the fact 
that there may be things that we would do in order to protect 
and secure the interests of our own citizens who are a part of 
these--our responsibility of war. That strikes home at my 
house.
    Senator Schumer. But, sir, you are saying there is no--
    Chairman Hatch. Senator, your time is up.
    Senator Schumer. Well, I just want to make this one point.
    Chairman Hatch. All right.
    Senator Schumer. And maybe I do not understand it fully. 
You are saying that you are not asserting privilege, but then 
you are saying, when I speak to the President directly, I want 
to do that privately. So you are sort of asserting privilege.
    Attorney General Ashcroft. I am asserting the need for the 
Executive Branch to be able to receive confidential advice 
regarding the state of the law as a function of the doctrine of 
separation of powers.
    Senator Schumer. But these memos were more pol--they had an 
effect on policy and what happened not just they were not just 
your private advice in a discussion with the President one 
evening. They are far more authoritative than that. Thousands 
rely on it. And I would be happy to--
    Attorney General Ashcroft. I am not going to comment on the 
documents that you allege provided the basis for a news story. 
I am simply not going to do that.
    Chairman Hatch. Senator Kyl?
    Senator Kyl. Thank you very much, Mr. Chairman.
    Welcome back, Mr. Attorney General. I appreciated very much 
not only your oral testimony, but reviewing your written 
statement as well. I regret that I was not here for all of the 
exchange that you had with colleagues. I do not want to dwell 
on that either, just to maybe make one quick point, and then 
get back to something I think that is very important.
    Most of us here are lawyers, and we understand the 
importance of getting good, confidential advice from staff, 
especially legal advice, and it is frequently conflicting. And 
if it is subject to being misunderstood, that is to say that 
maybe one piece of it gets out into the public and is then 
assumed or portrayed as the totality of advice or your 
conclusion or the decision that the President made, then lots 
of misinterpretations can result.
    And so it does seem to me that the question here is not 
what a particular memo may or may not have said, and I conclude 
that you are not in a position to confirm or deny that that is 
the whole story, but rather what the President's policy was, 
what the administration's policy is. And my understanding, from 
the very first response to Senator Leahy, was that the 
President's decisions and directives are in accord with the law 
and in accord with the Constitution. I mean, for me, that is 
the ultimate answer here. Am I incorrect in that conclusion?
    Attorney General Ashcroft. Well, the President has ordered 
the Department of Defense to treat al Qaeda and Taliban 
detainees humanely and, to the extent consistent with military 
necessity and in a manner consistent with the principles of the 
Geneva Conventions, in spite of the fact that they are not 
parties to Geneva, because we respect those principles.
    Obviously, in terms of the Iraq conflict, where Iraq is a 
high-contracting party to the Geneva Conventions, the United 
States is bound by those Conventions, both Article 3 relating 
to prisoners of war, and Article 4 relating to civilian 
population. And that is the basis for my indicating the 
President has issued no order or directive directing conduct 
that would violate the torture statute or any of these other 
laws which guide our behavior--should guide our behavior, and 
do guide and have guided our behavior.
    Senator Kyl. And I thank you for that.
    And then the second point you made, since Fort Huachuca, in 
Arizona, is a place where a lot of our military intelligence 
work is done, where people are trained to interrogate prisoners 
and so on, and a lot of the ideas about how to train our 
soldiers in resisting interrogation techniques is analyzed, I 
think it is worth mentioning that to provide a blueprint to 
potential enemies as to precisely how we might go about 
interrogating them is to give them exactly the information they 
need to know in determining how to resist it.
    There are a lot of stories, and stories in the sense of 
factual information that has come out of this war on terror 
relative to professional training that al Qaeda terrorists have 
gotten on how to resist interrogation techniques. Somebody is 
training them very well. Some of them are very, very good at 
it, and I take your point that it is not useful to give anybody 
a blueprint as to how we might go about interrogating them 
fully within American law and the Geneva Conventions.
    Can I change the subject, though, and ask you just to 
comment on something that you wanted to talk about here, I 
think is critical. You are perhaps aware that we have 
introduced a bipartisan bill to reinstate all of the provisions 
of the PATRIOT Act, that is to say, to eliminate the sunset 
provisions, on the theory that the terrorists are not going to 
be sunsetting any time soon and that we need to continue to 
pursue them in the same way that we pursue other kinds of 
criminals in our society.
    You detailed, in your written statement, a wonderful list 
of examples of cases that the PATRIOT Act has been useful for 
and some statistical information about that. I just wanted to 
conclude by asking you, for the American people, to succinctly 
state why it is important for us to retain these provisions of 
the law that we have used temporarily so far, but are permanent 
in the law with respect to bank robbers, and kidnappers, and 
other kinds of criminals, why it is important to keep these 
provisions of the law in the PATRIOT Act, the act that is now 
being very useful in going after terrorists.
    Attorney General Ashcroft. It is important because 
terrorists are sophisticated users of technology--the roving 
wiretap provision, which really does not mean you can rove 
around and tap wires. It means you can follow a person from the 
use of one phone to the use of another phone. If a guy gets on 
his car phone, and then his home phone, and then his vacation 
house phone, and his office phone, you do not have to go back 
to court each time to get a separate order.
    Terrorists have understood that switching phones is a way 
to avoid detection and avoid surveillance. The drug community 
understood this in the 1980's and began, and the Congress 
recognized that and gave authority to follow them. We need that 
same kind of robust authority to curtail terrorism that we have 
to curtail the drug traffic.
    Similarly, we need the ability to get business records that 
would tell us where terrorists are. Now, we have had 300-plus 
administrative subpoena authorities for Federal agencies to be 
able to ask businesses about their business records.
    Shortly after 9/11, we needed to try and find out the 
whereabouts of an individual. We went into a hotel to ask if 
such a person was there. They said, ``We need a subpoena before 
we can release that. It is a matter of corporate policy.'' 
Well, going to get a grand jury subpoena is a bigger deal than 
we have had the administrative subpoena capacity we have in 
areas like health care fraud that could provide quick 
information about the whereabouts of a terrorist.
    Those are the kinds of things that make it necessary for us 
to have a robust authority, within the framework of the 
Constitution, as a matter of fact, within the limits that have 
already been reached by other enforcement techniques for other 
crimes. And for us to walk away from those is for us to let 
down our guard against an enemy which is not getting less 
sophisticated, but is getting more sophisticated.
    Senator Kyl. Thank you, Mr. Attorney General. I appreciate 
your dedication to this effort and that of all of the people in 
the Department that work with you, and it is good to see you 
back in great health.
    Chairman Hatch. Thank you, Senator.
    Senator Durbin?
    Senator Durbin. Thank you very much, Mr. Chairman.
    Mr. Attorney General, thank you for being here.
    I do not believe what we have seen today is a routine 
Senate Judiciary Committee hearing. I think a lot of people are 
following this hearing around the world, and they are asking 
hard questions of us and our Government, particularly after Abu 
Ghraib.
    And I think the questions that are being asked is whether 
or not something has changed in America, whether some of our 
time-honored commitments have become a casualty of the war 
against terrorism. The President, and virtually every leader in 
Congress, has assured them that it does not, that we still 
stand by the same values and principles that we always have.
    But today, Mr. Attorney General, you quote former Justice 
Murphy, and tell us ``a Nation at war is bound by different 
rules, rules that limit disclosure, rules that expand the 
powers of the Government and rules that change time-honored 
standards.''
    Notwithstanding the wisdom of Justice Murphy, I think the 
Supreme Court, in Ex Parte Milligan, should be our guide in 
commenting on the suspension of habeas corpus by President 
Abraham Lincoln during the Civil War, and this is what the 
Court said:
    ``The Constitution of the United States is a law for rulers 
and people equally in war and in peace, and covers, with the 
shield of its protection, all classes of men at all times under 
all circumstances. No doctrine involving more pernicious 
consequences was ever invented by the wit of man than that any 
of its provisions can be suspended during any of the great 
exigencies of Government. Such a doctrine leads directly to 
anarchy or despotism.''
    Mr. Attorney General, you have said you will not disclose 
these memos, and I will get to that point in a moment, but I 
can tell you, frankly, contents of the memos have already been 
disclosed for the world to see. And the contents of the memos 
call into question your statement that it is not your job or 
the job of this administration to define torture.
    Here is a memo by your Assistant Attorney General, Jay 
Bybee, quoted in this morning's paper, which defines torture as 
``must be equivalent in intensity to the pain accompanying 
serious physical injury such as organ failure, impairment of 
bodily function or even death.''
    Another memo, which you will not disclose, but which has 
been leaked and is quoted this morning, talks about seven 
techniques that the Courts have considered torture. And the 
memo goes on to say, ``While we cannot say with certainty that 
the acts falling short of these seven would not constitute 
torture, we believe that interrogation techniques would have to 
be similar to these in their extreme nature and in the type of 
harm caused to violate law.''
    Mr. Attorney General, if that is not a definition of 
torture coming straight out of your Department by the people 
who answer to you, what is it?
    And here is the problem we have. You have said that you are 
not claiming executive privilege. That is for the President to 
claim. But the law is very clear. You have two options when you 
say, no, to this Committee. Either the executive claims 
privilege and refuses to disclose or you cite a statutory 
provision, whereby Congress has limited its constitutional 
right to information.
    So which is it, Mr. Attorney General, is it executive 
privilege or which statute are you claiming is going to shield 
you from making this disclosure of these memos at this point?
    Attorney General Ashcroft. Thank you for your remarks.
    First of all, let me agree with you as it relates to the 
value of the Constitution, both at war and at peace. I could 
not agree more heartily with you that the Constitution is 
controlling, and I would never suggest that we absent ourselves 
from the consideration of, and adherence to, and complete 
compliance with the Constitution of the United States. And if 
there is any way in which I have suggested in my remarks today 
that we would not do that, I want to take this opportunity to 
make it very clear that the Constitution of the United States 
is controlling in every circumstance and is never to be 
disregarded. There is flatly no doubt.
    Senator Durbin. I respect that. But under which standard 
are you denying this Committee the memos, either executive 
privilege or a specific statutory authority created by 
Congress, exempting your constitutional responsibility to 
disclose? Under which are you refusing to disclose these memos?
    Attorney General Ashcroft. I am refusing to disclose these 
memos because I believe it is essential to the operation of the 
Executive Branch that the President have the opportunity to get 
information from his Attorney General that is confidential and 
that the responsibility to do that is a function of the 
Executive Branch and a necessity that is protected by the 
doctrine of the separation of powers in the Constitution.
    Senator Durbin. Mr. Attorney General--
    Attorney General Ashcroft. And for that reason, and that is 
the reason for which I have not delivered to the Congress or 
the members of the Senate these memos--any memos.
    Senator Durbin. Mr. Attorney General, with all due respect, 
your personal belief is not a law, and you are not citing a 
law, and you are not claiming executive privilege. And, 
frankly, that is what Contempt of Congress is all about. You 
have to give us a specific legal authority which gives you the 
right to say, no, or the President has to claim privilege, and 
you have done neither.
    I think this Committee has a responsibility to move forward 
on this.
    Chairman Hatch. Are these memos classified?
    Senator Leahy. Is this a side-bar conference on something 
the Attorney General has so authoritatively stated his position 
on?
    Attorney General Ashcroft. This is me getting advice which 
will remain confidential.
    Chairman Hatch. That is great.
    Senator Leahy. I know, but the Attorney General has been 
speaking about these memos so authoritatively, that you ought 
to at least be able to say whether they are classified or not.
    Attorney General Ashcroft. I have answered your questions. 
The Committee has not made a decision to ask for these memos.
    Senator Durbin. No, but the Chairman asked you a specific 
question. Are these memos classified?
    Attorney General Ashcroft. Some of these memos may be 
classified in some ways for some purposes. I do not know, I do 
not--
    Senator Durbin. Mr. Attorney General, with all due respect, 
that is a complete evasion. What you have done is refuse to 
cite a statutory basis for disclosing these memos, refused to 
claim executive privilege, and now suggest that some parts of 
these may be classified.
    Mr. Chairman, I hope we take this up very seriously because 
I think it gets to the heart of our relationship. The Attorney 
General is an occasional guest here, and we are glad to have 
him. But I think to come here and basically tell us that we 
cannot see documents from your Department on the basis of what 
you have said this morning is not fair and not consistent with 
our Constitution.
    Mr. Chairman, since you used a bit of my time, I ask one 
last question.
    Chairman Hatch. I would be glad to give you one.
    Senator Durbin. I would like to go to the SAFE Act for a 
moment. And I listened carefully, as you were discussing the 
SAFE Act with Senator Larry Craig, who is a cosponsor, and we 
discussed the PATRIOT Act. You discussed it with Senator 
Feingold.
    Attorney General Ashcroft. I did not discuss anything with 
Senator Craig. It is the one Senator with whom I made no 
response. He consumed his entire time, and they went to the 
next questioner. So you may have listened carefully, but if you 
heard me talking, you heard something that did not happen.
    Senator Durbin. Let me acknowledge what the Senator said. 
The Senator said that we were acknowledging what Senator 
Sessions had said earlier, we are going to go through the 
PATRIOT Act line-by-line, and then your conversation with 
Senator Feingold abut the roving wiretaps.
    Do I take it from what you have said that you are open to a 
discussion of the PATRIOT Act and whether there are provisions 
which should be revisited and changed?
    Attorney General Ashcroft. I am prepared to give reasons 
for the administration's position on the PATRIOT Act in the 
context of a discussion, and I expect the United States Senate 
to be involved in robust discussions about all of the kinds of 
things it undertakes. I cannot imagine that the United States 
Senate would not be interested in a robust discussion of those 
kinds of issues.
    Senator Durbin. Well, you served on this Committee, and in 
the Senate, and understand as I do that the only perfect laws 
written were the Ten Commandments, and occasionally the others 
need amendment.
    I would ask you if you believe those of us who are 
questioning some of the provisions of the PATRIOT Act, do you 
believe that we are playing politics with national security?
    Attorney General Ashcroft. I have never asserted that, and 
I have no reason to believe it. I have not even considered it. 
I simply have my own beliefs about the act, and I am a little 
bit stunned to hear a question about politics and the act.
    Senator Durbin. Well, let me say that when we introduced 
the SAFE Act, and I have been on Capitol Hill for over 20 
years, it is the first time I could ever remember the 
administration said they would veto it, as it was introduced, 
without a Committee hearing, without amendment, without even 
presenting the bill to the White House. And you have charged 
that the SAFE Act would unilaterally disarm America's defenses, 
risk American lives and eliminate some of the PATRIOT Act's 
most critical new tools.
    So, for me, to ask the question of you as to whether or not 
you believe Senator Craig, myself, Senator Sununu, Senator 
Kerry and others, are in some way playing politics with 
national security, I do not think is an unreasonable inquiry.
    Attorney General Ashcroft. I simply expressed my position 
that I believe that it would be to place the United States in 
serious jeopardy, to forfeit a number of the protections that 
are included in the PATRIOT Act. I stand by that statement. I 
believe it would be a very unwise course to chart, to retreat 
from the authorities which have made possible the interruption 
and displacement of terrorist activities and individuals 
involved in them in the United States.
    Senator Durbin. Thank you, Mr. Attorney General.
    Thank you, Mr. Chairman.
    Chairman Hatch. Senator Leahy has a question he would like 
to ask.
    Senator Leahy. Mr. Chairman, it is so extremely rare we get 
the Attorney General up here, I wish we actually had time to 
follow up on the questions.
    Chairman Hatch. We will keep the record open, and we will 
allow until Friday, at 5 o'clock, written questions to be 
submitted.
    Senator Leahy. And do we have a time for response? Because 
we still have questions out, and it took about 15 months the 
last time to get some answers, and we still have things out 
there that seem to have disappeared in the Justice Department. 
How long would you set for the time for the response to the 
questions, Mr. Chairman?
    Chairman Hatch. General, how much time do you think you 
might need.
    Attorney General Ashcroft. Well, that depends.
    Chairman Hatch. You do not know what the questions are.
    Attorney General Ashcroft. Mr. Chairman, it depends because 
the responsibility depends upon how many questions are asked. 
We have answered about, in the last 15 months, over 800 
questions, and they average three parts each. That is about 
close to 2,500 questions from this Committee. I know that we 
have answered about 80 letters from Senator Leahy, and we work 
hard to get, in addition to the questions that are proposed, 
the letters that are sent.
    We have had about 2,500 letters that we have answered so 
far in this. I believe we are in the 108th now Congress of the 
United States, and so we will do our best to answer with 
expedition, but it depends on how many questions are asked in 
terms of how much resource and capacity we have to answer them.
    Chairman Hatch. I cannot differ with that. Let me just say 
that assuming that there are a reasonable number of questions 
from the Committee, and I suspect most of them will come from 
the Democrat's side, we would like you to have your answers 
back within a couple of weeks. Now, if you need more time--
    Attorney General Ashcroft. Why do we not say this, that if 
you would let us have until the end of June, and if we need 
more time, we will come and explain to you why we need more 
time.
    Chairman Hatch. I think that is fair because I suspect you 
are going to get a lot of questions, and we will give you 
enough time.
    Senator Leahy. Mr. Chairman, there would probably be a lot 
less questions, and a lot less letters if these were more 
accountability and cooperation. I know that an awful lot of 
letters, both mine and--
    Attorney General Ashcroft. You are not the champion. There 
are Republicans who ask more than you.
    Senator Leahy. --members of the Republican side who do not 
get responses or, if they do, it is after 8 months, a year or 
sometimes longer. There would probably be a lot less, Mr. 
Attorney General, if you actually appeared before this 
Committee more often, and we could actually ask the questions.
    I wanted to compliment you not on not answering Senator 
Durbin's question, which you did not answer, but on answering 
Senator Biden's when you said there was no presidential order 
immunizing torture. I appreciate your straightforward answer to 
that question, and your follow-up with an answer to Senator 
Kyl.
    However, I would like the same kind of straightforward 
answer to my own ``yes or no'' question which I asked you 
earlier. Has there been any order or directive from the 
President with respect to interrogation of detainees, prisoners 
or combatants?
    I should think you could answer either yes or no on that.
    Attorney General Ashcroft. You know, the President--as a 
matter of fact, I have it here--the President ordered the 
Department of Defense to treat al Qaeda and Taliban detainees 
humanely and to the extent consistent with military necessity 
in a manner consistent with the principles of the Geneva 
Conventions.
    Senator Leahy. I appreciate that.
    Attorney General Ashcroft. That means the answer to your 
question at least is yes to that extent. I do not know if--
    Senator Leahy. Has there been any other order or directive 
from the President with respect to interrogation of detainees, 
prisoners or combatants?
    Attorney General Ashcroft. I am unable to tell you more 
than that at this time.
    Senator Leahy. I will submit that as one of the questions, 
so you have a good heads up as to one of the questions for the 
record. It is simply this: Has there been any other order or 
directive from the President with respect to interrogation of 
detainees, prisoners or combatants? It is a pretty easy 
question. It should have a pretty easy answer. I mean, there 
either is one or there is not.
    Attorney General Ashcroft. Mr. Chairman, a note just handed 
me indicates that I should correct something that I said to 
Senator Feingold, and I am sorry he is not here. They indicate 
that we provide, on a semi-annual basis, classified information 
on Section 215, relating to business records, to this Committee 
not just to the Intelligence Committees. I guess I was confused 
with the House.
    [Pause.]
    Attorney General Ashcroft. I guess we are doing it to both 
Committees now. It had been our practice earlier.
    So at least that circumstance is less sticky than we 
thought. Twice a year we provide classified information on 
Section 215, relating to business records and--
    Chairman Hatch. That was my understanding.
    Attorney General Ashcroft. Well, thank you. I am sorry to 
have misstated that earlier, and I at least am grateful for 
the--I can correct one of the errors I have made this morning.
    Chairman Hatch. General, I told you that I would try not to 
keep you beyond 12:30--2.5 hours. We have kept you three.
    Let me just say this to you. Naturally, members of this 
Committee are interested in these very important issues, and I 
think you handled yourself very well here today, but I also 
fully understand, when you are at war, that it is important to 
follow the advice of people like former Justice Murphy during 
the Franklin Delano Roosevelt administration.
    We want you to be as forthcoming as you can in response to 
written questions, but I do understand how difficult it is to 
answer some of these questions during the time of this very 
unique situation that we have never faced before--a war with 
terrorists all over the world and different groups of 
terrorists all over the world, in addition to Afghanistan and 
Iraq, and the difficulty of dealing with these hidden enemies 
who basically are trying to undermine the very principles of 
democratic Government around the world, and especially in our 
country, and following 9/11 and the potential of perhaps more 
terrorist activities and destructive activities not only around 
the world, but in our country.
    So I have a great deal of empathy for you in this position. 
It is a tough job, and people can distort what you say. They 
can fail to understand what you say. You have had to be very 
careful of what you have said here today, and I fully 
understand why, and I think any reasonable person who looks at 
it understands why, too.
    Having said that, our colleagues on the other side will 
submit, and maybe some on this side, written letters and 
written questions, and I hope that you will have your staff and 
others work with you to give us the responses as quickly as you 
can--hopefully, before the end of June.
    And I hope that both sides will be reasonable in their 
questions and not play political games, but really ask 
questions for the purpose of helping us to defend our country, 
and our laws, and our Constitution, rather than to try to score 
cheap political points, which occasionally happens on this 
Committee. I know nobody knows that, but me, but I sure know 
it.
    So we appreciate that you have give us 3 hours and 5 
minutes of your time today. We know that is a long time for any 
Cabinet-level official to testify, and we appreciate the way 
you have testified and those who work with you.
    I appreciate my colleagues. They are all very interesting. 
They are all very, very bright. This is a tough Committee, some 
say the toughest on Capitol Hill. I concur with that.
    I will turn for the last remarks from Senator Leahy.
    Senator Leahy. Mr. Chairman, first off, I want to 
compliment you on what is a rare appearance of the Attorney 
General, for giving time for this hearing. I think you have 
given a lot of time. Obviously, we would like to do follow-ups, 
but absence of that I would ask, one, that we put in the record 
some of the articles referenced here today. I would ask consent 
for that.
    Chairman Hatch. Without objection.
    Senator Leahy. And, secondly, on a parenthetical issue that 
has nothing to do with the Attorney General or anybody else, I 
would like to raise the issue of the comments that we have to 
take these extraordinary measures because we are at war. I was 
with President Bush and others at Normandy this weekend looking 
at the graves of the thousands of people who died there. That 
was a war, and that was a time when extraordinary steps, 
extraordinary sacrifice and extraordinary measures were taken 
to save this country, Europe and the rest of the world. That 
was a real war.
    We should understand--you, and I and the rest of us here--
we will face terrorist activities for as long as we live. Some 
will be effective, some will not be effective. Whoever is 
Attorney General, whoever is President will do their best to 
fight against terrorists.
    But that is not quite the same, because what I would hope 
is that even though these various terrorist groups, including 
some that may come up years from now that we have never even 
suspected, may come and go, this country will survive because 
of its Constitution. I would hope the Constitution will live 
long after all of us are gone, and that is a concern, also. 
Terrorists will strike at us. We will defeat them. Eventually, 
we will, I am sure of it. But we defeat ourselves if we do not 
protect our Constitution and allow it to remain alive and well 
long after every one of us have left office, and long after we 
have left this earth and gone on to whatever may be our eternal 
reward.
    Chairman Hatch. Well, thank you, Senator, and I want to 
thank you, General.
    I was in Guantanamo just a few weeks ago, went thoroughly 
through all of the procedures there, and I have to say that 
these are difficult times. These are difficult issues, 
difficult questions, but I was satisfied that they were working 
within the bounds of the Geneva Convention, even though they 
are terrorists down there or a significant number of the 
approximately 600 of them are brutal terrorists. And because of 
the way they are working with them, we are getting a lot of 
very important and useful information, and I know that could 
not occur without the help of the Justice Department.
    So I just want to thank you for all of the hard work you 
do. I know that you have had recent illness, and you have still 
been willing to come here today, and I want to just personally 
thank you for it and tell you that I think you have done a very 
good job.
    With that, we will recess until further notice.
    [Whereupon, at 1:35 p.m., the Committee was adjourned.]
    [Question and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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