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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 KING (R-IA): Thank you, Mr. Chairman. I want to thank the witnesses all for their testimony and I'd like to turn initially to -- I'm not sure whether to address Mr. Ashcroft as Governor or Senator or Attorney General.

MR. ASHCROFT: For you and me it can be John, Steve.

REP. KING: Let's get to that socially at a subsequent time. I'd very much appreciate that. But I wanted to make that point. The long continuum of your service to service to this country has stepped along on some of the highest standards and some of the most responsible positions that any individual could be called upon to serve this country. And I do regret some of the tone that you have been faced with here that does not reflect their understanding of your contribution to this country.

So first I'd ask if you could quickly and briefly just bring this committee and the folks that are watching on C-SPAN and in this room up to speed on this situation of the moving target of the law. What, during your tenure, changed specifically on how one interpreted the statute on torture?

MR. ASHCROFT: Well, the statute on torture has never -- there's never been a prosecution under the statute on torture, so when this administration sought advice as to exactly how it could operate within the law and not violate it, there was not a lot of guidance out there for how it had previously been implemented. So an attempt was made by John Yoo and others in the OLC -- Office of Legal Counsel at the Department of Justice. And that statute -- pardon me, that opinion included an evaluation and was done in conjunction with an evaluation of techniques that all were ruled to be acceptable to the extent they did not violate, for al Qaeda detainees maintained in and detained outside the United States, the provisions of the U.S. statute regarding torture and the International Convention Against Torture. That was what they were designed to do.

REP. KING: If I could just summarize. It is pretty much encapsulated in the analogy that you gave of the 85-mile-an-hour speed limit versus a 65-mile-an-hour car.


REP. KING: And I appreciate that. And then you said something earlier that I'd like to reiterate: Guessing where the Supreme Court might go is a lot harder than determining where the Supreme Court has been. And, yeah, you're caught in this crossfire here today; the blur of the effort between what did you know at the time versus what did the second-guessers have their staff do last night. And that's what I hear happening in this committee, and so I'm going to take you to a question that I think is actually a hard one. And it's one that may well illuminate this situation. And it comes from my analysis of this -- not this, but nearly everything that I deal with. I'll just make this statement: In the end -- I went back to 1802 and I read the Congressional Record on the debates on whether they could eliminate a couple of federal judicial districts -- a profound constitutional debate that took place in 1802 in this Congress. And I read that carefully -- very thick -- word for word, notes and highlights and all of that, and I got through that and I concluded that everything was political in 1802. (Laughter.) This was 2002 and now it's 2008 and I'll submit to you that everything is political 206 years later.

And with that being the framework for this question, when you analyze the legal implications of the statute and the controlling -- the limited amount of case file that was there and the memoranda were produced, the two that matter to the subject here -- did you do an analysis of the political implications at the time, and did you really game this out to the scenario where we are today and anticipate that there might be a different majority in the House with a different chairman of the Judiciary Committee and a different chairman of the Constitution Subcommittee, a different majority in the Senate, a different political scenario whereby maybe this war wouldn't work as easy as some folks thought it would, and now there would be people that were seeking to beat up on the Bush administration as a political tool and try to set the scenario for November elections.

Did that all come into mind, or were you just simply looking at this cleansed and sanitized from the political implications?

MR. ASHCROFT: I think, by and large, OLC has a tradition, which is to be respected, of looking at questions to try and figure out what the law is. And obviously when you have a moving target that comes with a Supreme Court that characterizes the law as organic and growing, and meaning it's subject to their adjustment, there are challenges in doing that.

So -- but I think when Mr. Dellinger was at OLC, which is earlier -- and I don't think administrations really change that much in terms of the good-faith effort on the people of OLC. It's almost quasi- judicial. In some respects, I think it's less political than the courts from time to time appear to be. It's the desire to find out what does the law say and what can we ascertain from the previous rulings in this arena, which would inform our judgment?

One of the problems that's related to the law regarding torture is there hadn't been previous rulings, and there's (no evidence ?). And it's one of the reasons it's been in the interest of this country to have the Congress be more active in this area and to enact things subsequent to this time. But I believe that the conclusions to which those opinions came are both worthy of respect.

REP. KING: I thank you for your answer. And I just have, if the chair could indulge, a brief follow-up question on this. If you had had the political looking glass that would allow you to look into the future to where we are today, how might you then go back and make some different decisions along the way?

MR. ASHCROFT: Well, I think the opinion would have been written so that I didn't have the responsibility of asking that it be adjusted. But I just -- I never thought I entered the office thinking I could be perfect and we wouldn't have to make any corrections. My intention is, when you need a correction, make it. That's the best I can do.

The second thing is, I don't think (it ?) would make any basic fundamental difference. This opinion has been discussed and there have been numerous allegations that it is wrong. I don't believe it to be wrong, and I believe that careful analysis that persists on a recurrent basis sustains it. I differ with Mr. Dellinger on whether these things constitute torture. He could be right. I could be wrong. That's not a threat to me. I've been wrong enough times to understand that it can happen. And I don't know whether he has or not. So we'll have those differences.

REP. KING: I thank the general and I thank the chairman, and I yield back.

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