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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

REP. SHEILA JACKSON LEE (D-TX): Mr. Chairman, thank you so very much, as well to the ranking member, to General Ashcroft. It is certainly good to see you, as it is to see the other witnesses.

I believe one of the witnesses -- and forgive me for being delayed; we were in a hearing dealing with homeland security with Secretary Chertoff, and I thank you for your indulgence. But I understand one of the witnesses said that we should -- and it seems that you might have said that yourself -- that we should be looking at going forward. I think you said that we should -- or that you would be willing to correct what was done and go forward.

And you raise a good premise. And I think it is also important to acknowledge the Constitution, which details the Founding Fathers' wisdom, probably assisted by founding women, who were giving them some of the answers, that we have three branches of government and there was a checks and balance and there was an oversight.

So I frankly believe it is crucial to be able to go forward to be reminded of one's past. We have been consistently troubled by some of the issues that have occurred, some after your tenure. So let me start with some pointed, probably narrow questions, and maybe yes-or- no answers.

Should an independent prosecutor be appointed to evaluate the missteps of the administration as relates to the Iraq war?


REP. JACKSON LEE: What powers should Congress exercise in the future to ensure that the president does not overstep the authority?

MR. ASHCROFT: I think the Congress has a responsibility to frame laws that define conduct by the United States and its citizens. The Congress obviously has some limits on what it should do --

REP. JACKSON LEE: So General, if I might -- finish your sentence.

MR. ASHCROFT: For example, if the Congress sought to pass a law saying the president is not the commander in chief, which the Constitution says the president is the commander in chief and shall be, it would be an unconstitutional enactment, even if the president signed it, because --

REP. JACKSON LEE: And I agree with you. If I might --

MR. ASHCROFT: There are limits. There are limits on the Congress. There are limits on --

REP. JACKSON LEE: The good news is that no Congress has ever passed that kind of law. I think Congresses have questioned the abuse of power.

Mr. Dellinger, that's the point that I'm getting at. I'm not a fan of the special prosecutor; not necessarily an independent prosecutor. But does Congress have an obligation to assess missteps that have occurred? For example, many of us characterize the Iraq war as a misstep, in spite of the alleged statutory authority.

I have legislation that says that having met all of the standards that was in that 2002 resolution, in fact, the president's powers have expired. Obviously he's the commander in chief. But do we have that responsibility to oversee missteps and to hold back the abuse of power?

MR. DELLINGER: Certainly.

REP. JACKSON LEE: And so how would you give us the road map to do so?

MR. DELLINGER: Well, I think that the series of hearings that this committee has had afford that (ventilation ?), insofar as possible, of what has happened.

REP. JACKSON LEE: Could we use a vehicle such as an independent prosecutor?

MR. DELLINGER: I have long shared the view of the dissenting opinion in the act upholding the special prosecutor. I think they are generally unwise. In very special circumstances, for example, to bring actions perhaps involving contempt of Congress if an administration would not bring those to the court is something that might well be worth considering.

REP. JACKSON LEE: (Inaudible.)

MR. DELLINGER: But generally I'm hesitant to have --

REP. JACKSON LEE: Many scholars are. In general, then, any punitive measures -- you consider holding hearings and, of course, potential of processes that are allowed by the Constitution. I'm not suggesting you're supporting impeachment, but processes allowed by the Constitution. Is that what you would adhere to?

MR. DELLINGER: Sure. Sure.

REP. JACKSON LEE: Let me go quickly to the general and just try to go back to this troubled hospital room. And I know the limitations, but would you share with us what you remember of now this widely known visit to the hospital room in March 2004 -- I'm delighted for your recovery -- with then-White House Counsel Gonzales and Andrew Card? Can you describe your condition at the time?

There is a recounting by Deputy Attorney General Jim Comey that mentions that when they came to you -- and, by the way, it's on the record that there is some relation to the torture memo (or source ?) -- but when they came to you, that you looked at whatever the document was and you rose from the pillow and said something very direct and seemingly harsh. Maybe you rejected the idea of torture or whatever dastardly memo was there. Can you recall the facts, or to the best of your ability, General?

MR. ASHCROFT: I can recall the facts.

REP. JACKSON LEE: All right, General.

MR. ASHCROFT: My health records I consider to be private.


MR. ASHCROFT: And my communications to the members of the administration regarding legal matters and deliberations I consider to be private. And for that reason, while I don't want to argue with people who have made representations of what happened, I'm not going to try and recount what happened. I was in a rather -- I had been in intensive care for about a week. And the way they treated me was -- my condition -- was not to give me food or drink. (Laughter.) So I was both thirsty and hungry. So I might have been grouchy, you know. (Laughter.)

REP. JACKSON LEE: Mr. Chairman, let me just conclude by saying we have had hearings before that have documented the fact that Mr. Gonzales and Mr. Card was in the room, and we've had hearings that have alluded very carefully that they were carrying a memo dealing with the torture issue and that this might have been one living example of a man who was both dehydrated and without food, of excessive abuse of power. And I think that we are warranted in this hearing and as well warranted in going further on determining the abuse of power that may have occurred on actions by the individuals in this administration.

Mr. Chairman, I yield back.

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