Background: Taking Liberties

KWAME HOLMAN:

John Ashcroft served one term as Republican Senator from Missouri before being defeated for reelection last year. He's testified before his former colleagues only once since being confirmed as Attorney General, with just eight votes from Senate democrats.

SEN. ARLEN SPECTER:

Hello, John.

JOHN ASHCROFT:

Hello, Arlen.

KWAME HOLMAN:

Today he was welcomed back by several of those who worried his staunch conservatism would be incompatible with leading the Department of Justice.

JOHN ASHCROFT:

Hi, Russ.

KWAME HOLMAN:

After September 11, Congress worked with the administration to enact broad new surveillance powers for the Justice Department. However, many of the good feelings from that experience dissolved when the administration announced last month that it plans to monitor terror suspects' conversations with their lawyers, and try foreign suspects in military tribunals. Vermont Democrat Patrick Leahy chairs the Judiciary Committee, which summoned Ashcroft to explain those and other actions today.

SEN. PATRICK LEAHY:

To many, the constitutional requirement that military tribunals be authorized by Congress is clear. To others, it's not. To everyone, it should be beyond argument that such an authorization, carefully drawn by both branches of government, would be helpful in resolving this doubt. It would give credibility to the use of military tribunals.

KWAME HOLMAN:

The Attorney General did not respond immediately to the military tribunals issue. He began by laying out the task he faces.

JOHN ASHCROFT:

My day begins with a review of the threats to Americans and to American interests that have been received in the previous 24 hours. If ever there were proof of the existence of evil in the world, it is in the pages of these reports. They are a chilling daily chronicle of the hatred of Americans by fanatics who seek to extinguish freedom, enslave women, corrupt education, and to kill Americans wherever and whenever they can.

KWAME HOLMAN:

Ashcroft said since September 11, law enforcement has rounded up an estimated 1,200 people. About half later were released. He said criminal charges now have been brought against 110 individuals. 54 of them are in custody; the Immigration and Naturalization Service has detained 563 others on immigration violations; an undisclosed number of people are being held as material witnesses to the September attacks. Ashcroft defended his Department's actions.

JOHN ASHCROFT:

The Department of Justice has sought to prevent terrorism with reason, careful balance, and excruciating attention to detail. Some of our critics, I regret to say, have shown less affection for details. Their bold declaration of so-called facts have quickly dissolved upon inspection into vague conjecture. Charges of kangaroo courts and shredding the Constitution give new meaning to the term "fog of war." I will continue to consult with Congress so that you may fulfill your constitutional responsibilities. In some areas, however, I cannot and will not consult with you. The advice I give to the President, whether in his role as commander in chief when at war or in any other capacity, is privileged and confidential. I cannot and will not divulge the contents, the context, or even the existence of such advice to anyone, including Congress, unless the president instructs me so to do.

KWAME HOLMAN:

Chuck Grassley is a Republican from Iowa.

SEN. CHARLES GRASSLEY:

Could you provide us with more details on the constitutional statutory authority supporting the Department of Justice's decision to monitor attorney-client communications?

JOHN ASHCROFT:

The Department's first rule would be that you first give notice to the individual and to his lawyer. Secondly, this is done by individuals who are forbidden to have association with or communication with any prosecutors. Thirdly, no information can be used at all that flows from the understanding or the auditing of these conversations without first being approved by a federal judge, unless, fourthly, it is information which could help avert a terrorist attack.

KWAME HOLMAN:

Massachusetts Democrat Edward Kennedy.

SEN. EDWARD KENNEDY:

Constitutional experts have told us that we can implement fair military trials that ensure fundamental civil liberties. We know it can be done, we know it should be done, but we have not heard that it will be done.

JOHN ASHCROFT:

There are obviously some hints in the President's order that indicate a level of fairness that I think is clearly understood. He has indicated that the hearing should be closed when it's in the national interests to close them, and when… And I think the administration has made clear its desire not to close hearings when they are not in the national interests. I believe that the Department of Defense, which has over 3,000 active full-time working lawyers, and which conducts a wide variety of military operations that relate to the adjudication of charges, has the capacity to develop a plan and framework that will work effectively. We'll stand ready to assist them in doing so.

KWAME HOLMAN:

North Carolina Democrat John Edwards asked if conviction by a military tribunal could be appealed.

SEN. JOHN EDWARDS:

Do you believe that there needs to be a process that allows some appeal that looks at the fundamental question of how the trial was conducted — whether evidence was properly considered by the court, and whether, in fact, there's evidence that was not considered by the court that would have shown this person, in fact, did not do it, did not commit this crime?

JOHN ASHCROFT:

I believe there is adequate latitude for the Secretary of Defense to develop a potential and a framework for appeals.

SEN. JOHN EDWARDS:

But isn't that something you believe should be done?

JOHN ASHCROFT:

I believe that the president and the secretary of defense both, according to the order, constitute appellate authorities.

SEN. JOHN EDWARDS:

But the President and the Secretary of Defense are the people who decided the prosecution should be brought in the first case. Do you believe there needs to be an objective third party that looks at the trial, looks at the conviction, looks at the imposition of the death penalty,

JOHN ASHCROFT:

The Secretary of Defense would have the authority to develop appellate procedures under the order, military order, for the development of war commissions issued by the president. And I believe that that authority is available to him. And if he chooses to confer with me about that, I'll provide advice to him regarding appellate procedures.

SEN. PATRICK LEAHY:

And with that, we thank you, and we stand adjourned.

KWAME HOLMAN:

After nearly three hours, Chairman Leahy also thanked the Attorney General for his patience and what Leahy called his seeming eagerness to submit to Congressional oversight.