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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 STEVE COHEN (D-TN): Thank you, Mr. Chairman. I'd like to follow up, General, with what you were saying about our concerns about the ticking time bomb and what we might have perceived and what might happen. Senator Graham, in the 9/11 Commission Report, makes clear that we had information about a possible airplane attack on this country or in this world by terrorists. Are you familiar with that?

MR. ASHCROFT: I'm not sure what attack you're making reference to, but I am -- the president of the United States I think spoke openly about a proposed attack against the -- what is it, the Library Tower in Los Angeles I believe.

REP. COHEN: I believe what was quoted in the intelligence inquiry was that President Bush and his administration had inaccurately said that it was a surprise, a bolt from the blue, that no one could have imagined such attack, and that since no one could have envisioned a commercial aircraft as a weapon of mass destruction, no one could be held accountable. But the fact is the report showed that there was consideration by the FBI of a possible airplane attack -- a 747 being blown up over the Olympic Stadium or a 747 being flown into the Olympic Stadium, that Algerian terrorists in 1994 tried to fly an Air France plane into the Eiffel Tower, that there was another project to blow up 11 planes simultaneously and crash one into the Pentagon and one into the CIA.

So isn't the information clear that somebody should have been held responsible for 9/11 when that information was in the public knowledge?

MR. ASHCROFT: I don't think so.

REP. COHEN: You don't think that with this information out there, that the administration should have been held responsible?

MR. ASHCROFT: Well, I think the responsibility of the administration was to pursue and to prevent further terrorist attacks. There were a number of reasons why what we sought to do to prevent the 9/11 attack were unsuccessful, and thanks to the Congress and others we were able to remediate a number of the circumstances. For instance, the wall that existed that kept information from being passed from the intelligence community to the law enforcement community. We find out that --

REP. COHEN: Let me ask you another --

MR. ASHCROFT: -- that we knew about -- one of those communities knew about the existence of two of the terrorists in the country; the other community was looking for those terrorists but couldn't get the information because of the wall, which the Patriot Act took down. And I think our responsibility is not to try and find somebody to blame for 9/11; our responsibility is to try and prevent 9/11 from happening again.

REP. COHEN: Let me ask you this, General. There are torture laws that it's understood that the Bush administration has gone beyond. The memo that Jack Goldsmith gave you that you approved to change what Mr. Yoo and Bybee Proposal had that were contoured down. Do you know if the Bush administration has ever recommended that our torture laws be changed so that -- extended so they come within the parameters that they'd like to have them be, or do they think it's simply within the inherent power of the presidency to do what they want regardless of what this Congress declares the law to be?

MR. ASHCROFT: I hope you'll let me answer this question.

REP. COHEN: I hope you will.

MR. ASHCROFT: First of all, the Bush administration has not engaged in activities, to my knowledge, that constitute torture under either of the memos. The constant and consistent representations of the Justice Department that recount reconsideration on a recurring basis of the law has indicated that as the law stood prior to the amendments by the Congress, neither of the memos would have disallowed any of the activities in which the administration has engaged. I'm not in the position to talk about things that have been done with the law changed. So I just wanted to clarify that.

Now, the other part of your question has left my mind.

REP. COHEN: Then let me go to a new one. You suggested that when the president -- and let me read from your statement -- "At this Congress, the nation now turned to reevaluate that work with the altered perception of" -- no, we're starting here -- "It's difficult to imagine an area in which the imperative before the president, the benefit of genuine doubt, is greater than with respect to his judgments as commander in chief on how best to protect the lives and liberty" -- and I'll question that in a minute -- of the American people in the war on terror." When was there a benefit of the doubt given to the president?

MR. ASHCROFT: Well, it's the policy of the Justice Department --

REP. COHEN: Can you name any specific situations where you had to give him the benefit of the doubt?

MR. ASHCROFT: We always do. Whenever it's not --

REP. COHEN: Sometimes there's not a doubt, though, correct? Sometimes there is.

MR. ASHCROFT: Sometimes you just say no.

REP. COHEN: Well, Mr. Yoo -- let me ask you about Mr. Yoo. You called him "Mr. Yes," did you not?

MR. ASHCROFT: No, I did not. I don't remember doing that.

REP. COHEN: No? (Cross talk.) I think suggested that you did. Did Mr. Yoo -- how was he appointed? Was he a political appointment by you or did he precede your coming into the Justice Department?

MR. ASHCROFT: I think he came in after I came to the Justice Department.

REP. COHEN: And do you know if Vice President Cheney or Mr. Addington recommended him to you?

MR. ASHCROFT: I don't know.

REP. COHEN: You don't know. Let me ask you this: Mr. Wexler was asking some questions about a statement attributed to you where history will not judge us kindly and justice will not treat us kindly. You correctly refused to comment on things you said in hearings that were of a particular nature. I'm not asking you to say what you said in those hearings and who said it; I'm asking now, with the benefit of retrospect, how do you think history will judge you and the administration for what you did?

MR. ASHCROFT: I think history is already judging this administration as being successful in the deterring and preventing additional terrorist acts.

REP. COHEN: How about upholding the Constitution and abiding by the law of the nation?

MR. ASHCROFT: I am confident that the Constitution has been upheld and that it will continue to be upheld.

REP. COHEN: One last question. You said that you believed that we have disrupted plots to hurt our liberty and hurt our country. Was one of those plots when Mr. Gonzales and Mr. Card came to your hospital room? (Laughter.)

MR. ASHCROFT: You know, this isn't late-night television, so your wink may not appear to everyone else. No, I don't think that's -- let me make a comment on -- there should be robust debate. If you take -- and I'm not in a position to recant and wouldn't, but say you take the reports as being true. I certainly wouldn't call those people untruthful folks about what happened. You have a situation where people have differing legal opinions and eventually somebody has to decide whether they're going to side with the legal professionals or others, and the president comes down on the side of the Department of Justice, according to all the accounts, no matter which one you believe. The president comes down on the side of the Justice Department with the professionals there at the department, the career people there at the department, and what's wrong with that picture?

But eventually you get to the right decision being made. That's something that I would expect a free society to involve vigorous debate, especially when you've got as many lawyers as we do in this country. You get a lot of debate and you get controversy, you get the decision-maker finally to make the right decision. You know, I'm just right now next to standing up and singing the National Anthem. I think that's the way the system ought to work. (Laughter.) Ah, pardon me. Mr. Chairman, I apologize.

REP. COHEN: I know my time's expired now.

REP. CONYERS: Yes, it has.

REP. COHEN: So I'll yield back the remainder of my time.

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