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Background: Taking Liberties

November 28, 2001 at 12:00 AM EDT


KWAME HOLMAN: Vermont Democrat Patrick Leahy wanted Attorney General John Ashcroft sitting before his Judiciary panel this morning. Ashcroft however asked to be excused until next week. In his place was Assistant Attorney General Michael Chertoff. Leahy said he was disappointed by new legal strategies against terrorism recently instituted by the Bush administration without consulting Congress.

SEN. PATRICK LEAHY, Chairman, Judiciary Committee: The administration requested many new powers, and after adding important civil liberties protections, we empowered the Justice Department with new and more advanced ways to attack terrorism. We passed a bill in record time and with extraordinary level of cooperation between Democrats and Republicans, the House and the Senate, the White House, and Congress. In the wake of that achievement, the administration has departed from that example to launch a lengthening list of unilateral actions.

KWAME HOLMAN: In recent weeks, the administration announced several new policies designed to corral terrorists. Today, the Judiciary Committee focused on two: Monitoring terror suspects’ conversations with their lawyers and the possible trials by military tribunal outside the United States for foreign terror suspects.

SEN. PATRICK LEAHY: The President’s military order of November 13 paves an overly broad path to the use of military commissions to try those suspected of a variety of activities. It’s a marked departure from existing practices. It raises a wide range of legal and constitutional questions and international implications. It would send a terrible message to the world that when confronted with a serious challenge, we lack confidence in the very institutions we’re fighting for, beginning with a justice system in the United States that is the envy of the world. Let us have some confidence in those things that make us strong and great as a nation.

KWAME HOLMAN: Assistant Attorney General Chertoff tried to answer.

MICHAEL CHERTOFF, Assistant Attorney General: I share with you, Mr. Chairman, an absolute confidence in the ability of our criminal justice system to deal with any kind of criminal act. But I also recognize that the criminal justice system is not the only tool the President must have in exercising his responsibilities not only as chief executive but as commander in chief in a time of war. The fact is that military commissions are a traditional way of bringing justice to persons charged with offenses under the laws of armed conflict. The Supreme Court has repeatedly upheld the use of such commissions. And there may be sound policy reasons to employ them in individual cases, including urgent concerns about physical security and protection of classified information.

Let me then turn briefly to the issue of attorney-client monitoring. What we have done, Senator, taking account of the law in this area, is to put in steps that afford the maximum amount of protection to the effective attorney-client relationship while allowing us in these rare instances to monitor in case there is information that relates to threats. Nothing that comes through this monitoring process that is privileged is going to be retained under the regulation. Nothing that is privileged is going to be transmitted to anybody outside of the monitoring team, and it cannot be used by the prosecutors in the case.

Let me finally turn to the issue of the interviews of detainees. This is not rousting people, this is not detaining people, this is not arresting people. This is approaching people and asking them if they will respond to questions. So there is a minimal intrusion involved here. We have emphatically rejected ethnic profiling. What we have looked to are characteristics like country of issuance of passport, where someone has traveled, the manner in which they’ve entered, the kind of visa they’ve come in on. And based upon our experience gathered over the last several years, in dealing with terrorists.

KWAME HOLMAN: California’s Dianne Feinstein asked why officials announced plans for military tribunals before deciding how they would work.

SEN. DIANNE FEINSTEIN, (D) California: Why did the administration not wait until the standard of proof has been worked out, the details have been worked out, the military campaign was more advanced, and then announce this?

MICHAEL CHERTOFF: I suppose that the President could have issued the order secretly and had the procedures developed, and perhaps some might think that would have been a better approach. Some might think this was actually a better approach in that it put on the table the fact that this process was going to begin.

KWAME HOLMAN: Attorney General Ashcroft promised to provide his own answers at a hearing next week.