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Hearing of the Constitution, Civil Rights and Civil Liberties Subcommitee of the House Judiciary Committee - From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part V


Location: Washington, DC

REPRESENTATIVE ZOE LOFGREN (D-CA): Thank you, Mr. Chairman. I'm appreciative of this hearing.

This is a very troubling subject. And you know, I think, as I think about where we are in this country today and the various challenges that we as a nation have faced, certainly we should be concerned about international terrorism. We need to be vigilant. There are enemies of our country who wish to do us harm.

But surely that challenge isn't greater than the harm posed to us by the Soviet Union during the entire Cold War. Surely that challenge is not more serious than that posed by the Nazis in World War II.

I mean, we have always been able to face off, with those who would do harm to our country, by living within our Constitution and our rule of law. And whenever we decide that our safety is more important than our freedom, then we've lost. We've lost it.

And I think that we are coming -- we're pretty close to that spot right now which is why, I think, we need to sort through this and make sure that our system of government is preserved, as we continue to preserve the safety of this nation. I think that's the serious of what we are doing here today.

So I just have a couple of questions. Mr. Ashcroft, I appreciate your willingness to be here and the light that you are shedding on these important issues.

On the withdrawal of the interrogation memos, both the August 1st, 2002 memo and the March 14th, 2003 memo on interrogations were withdrawn by the Department of Justice, while you were the attorney general.

In accordance with your testimony, Jack Goldsmith wrote that you were fully supportive of his judgment that these memos needed to be withdrawn and corrected. Can you describe your decision to support Mr. Goldsmith on this?

MR. ASHCROFT: You know, when I said I approved the initial issuance of the memos, I relied on the experts in the department.

And let me just say for a moment that John Yoo is a noted expert in national security, and he is a person of incredible intelligence and is an outstanding person who wants to serve America and, I thought, served America in good faith. And we accepted the judgment of the department reviews and all.

But it became apparent, when further examination of those opinion was made by others, in another time frame and in the subsequent time, that there were matters of concern that they brought to my attention. And it was -- it's not a hard decision for me. My philosophy is that if we've done something that we can improve, you know, why would we not want to improve it? Why would we not want to adjust it?

Why -- so when -- and let me just say that when it was brought to me that there were matters of concern that related to the appropriateness of the analysis and secondly that it related to the scope of the opinion itself, my own -- and I'm kind of conjecturing here a little bit -- my recollection would be that I would -- and my way of looking at it would be just to make sure this wasn't one attorney picking at another attorney's -- as you well know, attorneys can pick at each other pretty well --

REP. LOFGREN: We've seen that.

MR. ASHCROFT: We've restrained ourselves so far here. But once I satisfied myself that these were concerns that were not just isolated and were not part of oneupsmanship by attorneys, I said any time this department has the ability to improve what it is doing by way of giving advice or counsel to the executive branch, we owe it to the president, we owe it to America, we owe it to ourselves to make sure we do the best job possible.

With that in mind, it wasn't a hard decision for me when they came to me and I came to the conclusion that these were genuine concerns -- get about the business of correcting it.

REP. LOFGREN: Right. Let me just mention -- I certainly don't question Mr. Yoo's patriotism or his love of country.

I do question his legal analysis. I mean, there seems to be, you know, the Constitution and the Constitution as Mr. Yoo thinks it should be, and the two are remarkably different.

But I want to get to the FBI's role on this. As you know, the DOJ inspector general recently released a report, and to summarize, I mean, the FBI was very concerned about what was going on at Gitmo and in fact would not participate. And I'm wondering -- I mean, these are people who know interrogation, and -- whether their lack of participation because of their concern has really led to a situation where we're less safe because we're missing their expertise.

MR. ASHCROFT: First of all, I don't think that's the case. The FBI --

REP. LOFGREN: The inspector general's wrong?

MR. ASHCROFT: No, no, I think that it's fair to say that the report can be -- I don't -- have no reason to quarrel with the report. Different cultures in different bureaucracies of the American government handle things in different ways. And I think it's already been alluded to on the panel that everybody seems to think his way is the best way.

I think the Congress of the United States, for example, has been reluctant to extend to the CIA the ability to operate domestically because we know that they're -- they operate worldwide, and they are accustomed to a different set of rules, sort of when in Rome, do as the Romans do.

I don't mean to say anything about the Italians, but just that they operate in a variety of forums.

Now, the point that I would make -- the FBI has assessed -- has a tradition and a culture of being involved in Article III court proceedings, where what it does is done in a way that's consistent with what's expected for use in prosecutions and the like. And so their approach to interrogations reflects that culture.

REP. LOFGREN: But if I may -- and I know that my time is running out. I don't mean to be rude and interrupt, but that really gets to the gist of it, whether this process has led to a situation where we're not going to be able to convict these people because of the process that was used.

MR. ASHCROFT: Well, you know, very frankly, people that we intercept on the battlefield are not people frequently that we expect to convict. They were out there fighting. What we want to interrogate them for is not so that we can try them someday. We expect to detain them for the pendency of the battle, and then to release them when the war is over.

The value of the interrogation is to provide the basis for prevention. And especially in the modern world, where lethality of weaponry is so robust, so that if you -- if you wait and try to penalize someone after the -- an event, you have really taken a super- risk, especially when al Qaeda has an expressed desire to gain nuclear and chemical and other weapons. So the CIA may tend more toward a culture which is prevention-oriented.

And one of the things we hoped to do at the FBI was to bring prevention to the top of our list of priorities. That's what I hope to do. Not that we would abandon our commitment to the Article III process, but the -- our exclusive effort and intelligence is not designed to bring evidence to Article III courts. It's designed to prevent damage to the country.

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