DEPARTMENT OF JUSTICE OVERSIGHT: PRESERVING OUR FREEDOMS WHILE DEFENDING AGAINST TERRORISM

THURSDAY, DECEMBER 6, 2001

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C.

The committee met, pursuant to notice, at 10:02 a.m., in Room SD-106, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding.

Present: Senators Leahy, Kennedy, Kohl, Feinstein, Feingold, Schumer, Durbin, Cantwell, Edwards, Hatch, Thurmond, Grassley, Specter, Kyl, DeWine, Sessions, and McConnell.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT

Chairman LEAHY. I don't want to cut off the press in any way here, but I would ask you to step back now, if we could.

Just a couple of housekeeping things before we start. I am advised there will be roll call votes this morning. Attorney General Ashcroft is familiar with that, and first off, I thank the Attorney General for being, as he told me earlier, unsenatorial and arriving early, and I do appreciate that.

What I think we would do, with Senator Hatch's agreement, if we might, if a roll call starts, we will continue on with the questioning. And at some point, as the time goes down that first roll call, as one Senator finishes we will break and the Senators will go over so we can do that roll call, plus the next one, come back, and begin again with whoever is next in line. So hopefully we will be gone for only about 10 minutes, 12 minutes or so, and then just see what happens with the third roll call. I am trying to accommodate as many of you as I might.

To the Attorney General, I would say I welcome you here. When you and I chatted on the phone yesterday, as you know, I called to thank you for coming and I appreciate it. And, of course, you served with almost everybody on this Committee, so you should feel at home. I appreciate the comments you made yesterday, as you were telling me just earlier, when asked about whether there should be some kind of a bipartisan panel to look at all these things, and you said, well, there is at least one, the one right here, on which you served with distinction for years.

In the 12 weeks since the September 11th attacks, Americans in law enforcement have been working tirelessly to protect the public,

to capture and thwart terrorists, and to bring them to justice. And for its part, Congress too has moved promptly on several fronts, including our expedited consideration and enactment of the anti-terrorism bill 2 months ago.

Now, in the 2 months since your last appearance before this Committee, General, terrorism has also reached Congress' doorstep. That is why we are meeting in this room today and not in the Hart Building, which remains closed. One of the two anthrax letters that came to the Hill went to, as you know, the Hart Building, and it was of such a powerful nature, that building is still closed.

Last week, the Justice Department witness appearing before this Committee described Congress as a "full partner" in our Nation's anti-terrorism efforts. That is the way the Founders and the Constitution intended it, and I appreciate Mr. Chertoff in saying that. The partnership of our two branches of Government working together produced an anti-terrorism bill that was actually better than either the executive branch or the legislative branch would have produced had they acted on their own. Also, because we acted together, we had greater confidence of the public in the result. America works best when all parts of our Government work together.

As we continue our discussion of important and difficult questions about the means to be used in the fight against terrorism, let no one, friend or foe, make any mistake about what this discussion is. It is a principled discussion of policy approaches. It is a constructive assessment of the effectiveness of those approaches. It is undertaken by partners in our country's effort against a common and terrible enemy.

Tomorrow is the 60th anniversary of the attack on Pearl Harbor. Many have compared the galvanizing effect of that attack to that of the atrocities committed on September 11th. Well, today, just as 60 years ago, Government at every level is under great pressure to act. Our system is intended to help make sure that what we do keeps us on a heading that achieves our goals while holding true to our constitutional principles. The Constitution does not need protection when its guarantees are popular, but it very much needs our protection when events tempt us to just this once go beyond the Constitution.

The need for congressional oversight and vigilance is not, as some mistakenly describe it, "to protect terrorists." It is to protect ourselves as Americans and protect our American freedoms that you and I and everybody in this room cherish so much. And every single American has a stake in protecting our freedoms. It is to make sure that we keep in sight at all times the line that separates tremendous Government power on the one hand and the rights and liberties of all Americans on the other hand. It is to make sure that our Government has good reason before snooping into our bank records, our tax returns, our e-mails, or before the Government listens in as we talk with our attorneys. It is to make sure that no one official, however well intentioned, decides when that line is to be crossed without good reason for that decision.

Now, whether the administration's recent actions are popular or unpopular at the moment, that is not the issue. As the oversight

Committee for the Department of Justice, we accept our responsibility to examine them. That is our role under the Constitution. That is our duty. We are sworn to do that. We will not shrink from that duty.

But so, too, is congressional oversight important in helping to maintain public confidence in our system of laws. In our society, unlike in so many other nations, when a judge issues an order, it is respected and carried out because the public has faith in our system and its laws. The division of power and the checks and balances built into our system help sustain and earn the public's confidence in the actions taken by the Government. The consent of the governed that is at the heart of our democracy makes our laws effective and sustains our society.

I commend Senator Schumer, the Chair of the Administrative Oversight and Courts Subcommittee, and Senator Feingold, the Chair of our Constitution Subcommittee, for holding their hearings earlier this week, for the very constructive contributions to those hearings by Senator Hatch and Senator Sessions and Senator Durbin and Senator Feinstein and others. That is in the finest tradition of our Senate and our country.

During the past week of hearings and public debate, this oversight process already has contributed to clarifying the President's Order to establish military tribunals. It now seems following these hearings that the President's language that ostensibly suspends the writ of habeas corpus and the language providing for secret trials and the expansive sweep of the President's November 13 Order were not intended; instead the administration's intention is to use procedural rules more like those in our courts and our courts martial.

Over the last week it has become clear that, as written, the President's Order outlines a process that is far different than our military system of justice. American military justice is the best in the world. It includes open trials and right to counsel and judicial review. The public can see what is happening. It also appears that the risks of pursuing "victor's justice" are beginning to be understood more fully as the initial conception of that Order is clarified. And I commend the members of this Committee for their contribution to that process.

Last week, Senator Specter wrote an article expressing his concern that the administration had not demonstrated the need for the President's extraordinarily broad Order on military commissions. Others, Democrats, Republicans, moderates, conservatives, liberals, have expressed concern about the broad powers asserted by the administration and about the manner in which it asserted them-bypassing Congress and the court. But last Wednesday's hearing allowed the Committee to hear firsthand from legal experts across the spectrum on these questions.

Now, let me be very clear. There are circumstances where military tribunals are appropriate, and I agree with the constitutional experts and others who have testified before the Committee that military tribunals can have a role in the prosecution of the campaign against terrorism. But many issues remain how to proceed with such tribunals in the best interest of our national security, and ultimately the question is not only whether our Government

has the right or the power to take certain actions and in certain ways, but whether the means we choose really protect our security. Defining those circumstances where military tribunals serve our national security interest is no easy task. Congress has contributions to make to this discussion, as we already have. To many, the constitutional requirement that military tribunals be authorized by Congress is clear. To others, it is not. To everyone, it should be beyond argument that such an authorization, carefully drawn by both branches of Government, would be helpful in resolving this doubt. It would give credibility to the use of military tribunals. Several members of the Committee of both parties have been crafting ideas for such an authorizing resolution to clarify these issues.

Mr. Attorney General, when I have called you in the past on issues to work with us, you have. And so I invite you to work with members of the Committee in creating a consensus charter for tribunals. And I suspect the Armed Services Committee, several members of which are on this Committee, would want the same. It is never easy to raise questions about the conduct of the executive branch when our military forces are engaged in combat, even when those questions do not concern our military operations. The matters we are examining concern homeland security and our constitutional rights and preserving the limits on governmental authority that form the foundation of our constitutional democracy.

These are questions that go to the heart of what America stands for, to its people and to the world, especially to show them what we are and what we do when we are put to the test, a test that we have been put to far more than most of us can remember.

These are questions that we need to debate openly and thoughtfully. This Committee hopes to cast a light of reasoned public inquiry on the administration's actions, especially on sweeping unilateral actions that might affect fundamental rights. Ultimately, taking a close look at the assertions of Government power is one of the best ways to preserve our freedom and our security.

None of us in elective or appointive positions in Government has a monopoly of wisdom or of patriotism, and under our system, none of us has a monopoly on authority.

The Framers of our Constitution had great confidence in George Washington. They didn't expect him to abuse his power. But they did not entrust their liberty to his or to any Government's good intentions. Instead they provided a system of checks and balances, including congressional oversight and judicial review and public scrutiny. This Committee will be vigilant in seeking to preserve those fundamentals of our American constitutional system. We can be both tough on terrorists and true to the Constitution. It is not an either/or choice.

So I look forward to hearing from the Attorney General. He is a friend of each and every one of us on this Committee. I thank him for making this appearance.

[The prepared statement of Chairman Leahy follows:]

STATEMENT OF PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Attorney General Ashcroft, welcome.

In the 12 weeks since the September 11 attacks, Americans in law enforcement have been working tirelessly to protect the public, to capture and thwart terrorists, and to bring them to justice. For its part, Congress too has moved promptly on sev