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Hearing of the Senate Judiciary Committee - Federal Government Counterterrorism Efforts

Location: Washington, DC

Federal News Service






SEN. KENNEDY: Thank you and welcome, General.


SEN. KENNEDY: In the front page of the "Times," it has this quote-"A team of administration lawyers concluded in a March 2000 late legal memorandum, President Bush was not bound either by international treaty prohibiting torture or by federal anti-torture law because he has the authority, as commander-in-chief, to approve any techniques needed to protect the nation's security." Do you agree with that conclusion?

ATTY GEN. ASHCROFT: Sen. Kennedy, I'm not going to try and issue hypothetical --

SEN. KENNEDY: -- I'm not asking hypothetical. This is a memoranda that, again, was referred today in the "Post"-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?

ATTY GEN. ASHCROFT: I am not-first of all, this administration rejects torture.

SEN. KENNEDY: I'm asking you whether this is-there are three memoranda-January 9, 2002, signed by John Yoo; the August 2002 Justice Department, the Bibey (sp) amendment-memo-and the March 2000 -- the inter-agency working group. Those are three memoranda. Will you provide those to the committee?

ATTY GEN. ASHCROFT: No, I will not.

SEN. KENNEDY: Under what basis?

ATTY GEN. ASHCROFT: On the basis that the long-standing, established reasons for providing opinions provided to the Executive Branch --

SEN. KENNEDY: General, the executive privilege is not a legitimate basis of withholding memoranda from this committee. This Congress is investigating the prisoners' abuse that have occurred-immense importance-we have specific need of the documents that have allowed these abuses to occur. The memoranda issued 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 claim of absolute executive on the Watergate-and, interesting-interesting-as we-and I will speak about President Reagan later this afternoon or tomorrow about my own personal feelings of 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 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 evoking executive privilege here in denying us those memoranda? You've had 72 hours to think about this, General. This has been in the newspapers; you had information about it. You've had 72 hours to think about that you were going to be asked about this. I'm a member of the Armed Services Committee. We've 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.

ATTY GEN. ASHCROFT: Well, the confidential memoranda provided-any confidential memoranda provided to members of the Executive Branch --

SEN. KENNEDY: This was generally circulated.

SEN. HATCH: Let him answer the question.

ATTY GEN. 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 war and to talk about the --

SEN. KENNEDY: -- so is this-do I understand this is executive privilege that you're-and I just have a couple of final questions, my time is running out. What is the reason-what's the justification not providing it?

ATTY GEN. 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 that 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.


ATTY GEN. ASHCROFT: -- let me just, if I may, and this is not something new.

SEN. KENNEDY: All right, but okay, we have the answer on this, and I'll just have another minute, but in these memoranda, the memoranda claim that existing laws and international treaties prohibiting torture do not apply when the president or other officials or acting commander-in-chief. It says the Justice Department cannot bring criminal prosecutions against official who commits torture while acting, "pursuant to an exercise of presidential 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 loss 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've been looking to 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've 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 it's all because of executive authority and executive power, and it seems-how can any one other conclude-how can anyone else conclude that it's 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?

SEN. HATCH: Senator, your time is up, but if you'd care to answer.

ATTY GEN. ASHCROFT: Well, 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 this 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 photographs 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, let me-we are at war, and for us to being to discuss all the legal ramifications of the war is not in our best interests, 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 time-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, citing, refusing to give his opinion to the Senate, citing what was already long-established practice of attorneys general in 1939, he put it this way, and I'm 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."

Now, I'm 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 can't 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's 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 the 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.


SEN. KENNEDY: Just-General, has the president authorized you to invoke the executive privilege today on these documents?

ATTY GEN. ASHCROFT: I am not going to reveal discussions-whether I've 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 the executive privilege today. I have explained to you why I'm not turning over the documents.

SEN. KENNEDY: Well, what are you invoking then?

ATTY GEN. ASHCROFT: I have not invoked anything. I have just explained to you why I am not turning over the documents.

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