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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 DAN LUNGREN (R-CA): Actually, Congressman Udall would be very upset for you to say that but -- (laughter). That brings up a point. I would just like to say that the enhanced stature with which you are now observed by members of both sides of the aisle I think reflects on the fact that you performed well as attorney general. And just a comment: I happen to think it is a good idea to have someone as attorney general who is both a distinguished attorney and has submitted himself to the voters for different positions. I think that gives you a view of the Constitution that is, in some ways, enriched and in some ways helps guide you in your performance, and I want to thank you for your service.

MR. ASHCROFT: Thank you.

REP. LUNGREN: Mr. Bellinger, I'd like to ask you a question. You set up a scenario by which you think we ought to operate. That is, in certain circumstances, in dire circumstances, the president ought to break the law by directing people to do something that would save American lives. If that had been the case in World War II, should President Truman submitted himself to the law after he ordered the dropping of the atomic bomb on two occasions?

MR. BELLINGER: I don't know that that was unlawful, in violation of any statute.

REP. LUNGREN: Even though it ended up with the loss of a tremendous number of lives that were innocent -- men, women and children who were not at that time, in any way, described as belligerents or combatants.

MR. BELLINGER: I think that may well have been within the scope of his authority.

REP. LUNGREN: I was reading "Crusade in Europe" by Eisenhower, and President Eisenhower mentioned that we had a circumstance in which we had some of our ships in the Mediterranean loaded with mustard gas, which we were forced to carry with us because of the uncertainty of German intentions in the use of the weapon. There was damage to this ship. Luckily the wind was offshore and the escaping gases caused no casualties. He said, "Had the wind been in the opposite direction, great disaster could well have resulted. It would have been, indeed, difficult to explain even though we manufactured and carried this material only for reprisal purposes in case of surprise action on the part of the enemy." And the fact is, during the war against Germany we had things such as mustard gas, which as I understand were illegal under the conventions after World War I. We carried it because we used it as a deterrent to the Germans. Had we used it in those circumstances under the direction of President Roosevelt -- what I'm trying to say is is it practical to assume, under those circumstances, a president would order that action and then immediately turn himself over to the authorities?

MR. BELLINGER: No, because there are circumstances in which the president can constitutionally decline to comply with an act of Congress where it would impinge upon the core of his responsibility.

REP. LUNGREN: So the core of the responsibility of Franklin Delano Roosevelt meant circumstances to protect this nation against our enemy, Germany, correct?

MR. MR. BELLINGER: Yes, but --

REP. LUNGREN: And the core of the president of the United States at the present time, at least reflected in these actions, is to attempt to protect us against the terrorist threat that we have at the present time, correct?

MR. BELLINGER: That is correct.

But --

REP. LUNGREN: I'm not trying to -- objections are, I'm just trying to follow through with your recommendation. And what I'm trying to suggest is these are not easy questions with easy answers, and you have said that. And your prescription is to the president to direct those actions, not allowing criminal liability with respect to those who carry it out, but the president subjecting himself to that, because you said other people make greater sacrifices.

That is in contrast to what Alan Dershowitz has suggested when he said, in an article in the Wall Street Journal, this brings us to waterboarding. Michael Mukasey is absolutely correct as a matter of constitutional law that the issue of waterboarding cannot be decided in the abstract.

Under the prevailing precedence, the Court must examine the nature of the governmental interest at stake and the degree to which the government actions at issue shock the conscience, and then decide on a case-by-case basis. In several cases involving actions at least as severe as waterboarding, courts have found no violations of due process.

I take it you would disagree with that.

MR. ASHCROFT: I disagree with the proposition that we ought to engraft an exception for torture in certain circumstances into the law, and in the most extreme hypothetical of someone who had information about a weapon in the middle of Manhattan I thought the president should violate the law and take whatever consequences exist.

REP. LUNGREN: Okay. Let me ask you then very specifically, not dealing with thousands, but we have been told that of the three people that have been waterboarded, one was Khalid Sheikh Mohammed and that he, after being waterboarded for some period of time gave us information.

Now, one of the things he admitted to was personally murdering Wall Street Journal reporter Daniel Pearl. He said, I decapitated with the blessed right hand the head of the American Jew Daniel Pearl in the city of Karachi, Pakistan.

So let me just ask you this. Both morally and legally, if we knew beforehand that we could find out the location of Daniel Pearl by waterboarding Khalid Sheikh Mohammed, if we had been able to capture him, and thus stop Daniel Pearl from being beheaded, would that be morally justifiable and would that be legal under the law?

MR. ASHCROFT: Morally justifiable, probably yes. But it seems to me that --

One of the things we're in serious danger of missing as a point here, when we struggle to define what would be the morally correct thing to do about torture, is that the 2002 and 2003 memoranda which say whatever the Congress of the United States decided ought to be the law the president can simply disregard.

It's a breathtaking claim that the president can simply disregard whatever conclusion the Congress reached, enacted into law. And, moreover, the president could decide to keep that secret from the Congress and the American people. I don't want us to lose sight of that.

REP. LUNGREN: In this case, if he had ordered that and we'd saved Daniel Pearl but then he'd revealed that to the American people, would that have been justifiable and legal?

MR. ASHCROFT: There is much to be said for transparency because of the toxic combination of an assertion that anything the president could do when Congress has enacted -- which I think is a broad range of authority -- he can also do after Congress has chosen to make it a crime.

And then the fact that we don't know what laws the president is not complying with renders this Congress as if your laws are notes that you're putting in a bottle, never knowing whether anybody is going to find them or pay attention to them or not. And that is an issue that cuts across all of these areas of discussion.

REP. LUNGREN: Thank you very much.

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