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REPORT:
Attorney General John Ashcroft testimony
before the House Judiciary Committee
June 5, 2003
Attorney General
John Ashcroft foreshadowed introduction of portions of the Justice
Department's "Patriot II" legislation in last week's testimony
before the House Judiciary Committee. Stating that the nation
overwhelmingly supports the USA PATRIOT Act and the Justice
Department's efforts in the "war on terrorism," the Attorney
General brushed aside concerns about post-September 11, 2001
erosion of constitutional liberties.
Overview
For the first time
in over 18 months, the Attorney General appeared before the
House Judiciary Committee for an oversight hearing. His testimony
came amid growing calls from both Republicans and Democrats
in Congress for more active congressional oversight of the Justice
Department. The leadership of the House Judiciary Committee
and the Justice Department have reached a tentative agreement
for greater department oversight, and the Attorney General's
testimony grew from those discussions.
The Attorney General's
remarks acknowledging congressional requests for increased oversight
were conciliatory, but the general tenor of his testimony was
that of an unapologetic advocate. He emphasized the law enforcement
mission of the Justice Department, with no mention of the department's
broad national policy-making responsibilities. He emphatically
stated many times that the Justice Department's actions were
all within the law and the U.S. Constitution.
Observation: The Attorney General did not acknowledge
that Justice Department actions were taken under Justice Department
interpretation of federal law. He spoke as if the Administration
were in charge of determining federal law, which, of course,
has been the duty of the federal courts since the early 1800's.
The Attorney General
repeatedly stated that criticism of Justice Department actions
was based on misinformation or misunderstanding, and that the
actions are absolutely necessary to control terrorism. He stated
that the "war on terrorism" would have been impossible to conduct
without enactment of the USA PATRIOT Act.
Observation: The Attorney General did not mention
the widely published analysis, arising from the testimony of
senior FBI staff, that the FBI had the information and tools
that it needed to fight terrorism before September 11, 2001,
but failed to analyze, interpret, and communicate the information
and utilize the tools it had. Instead of seeking more power,
the alternative would have been to revamp the FBI to better
use the powers that it already had.
Concern about Justice
Department policies cut across party lines. The House Judiciary
Chair, Rep. Sensenbrenner (WI), stated that "The purpose of
the PATRIOT Act is to secure our liberties and not undermine
them. . . . My support for [the USA PATRIOT Act] is neither
perpetual or unconditional." One committee member lamented the
loss of civil liberties as unnecessarily extensive "collateral
damage" in the war on terrorism. Another committee member introduced
his comments by saying, "It appears that the American people
feel that the government is intent on prying into every nook
and cranny of people's private lives, while at the same time
doing all it can to block access to government information that
would inform the American people about what is being done in
their name."
The committee's questions
covered a wide range of topics, covered in full below. However,
of utmost importance were the Attorney General's responses about
two topics:
Expansion
of USA PATRIOT Act powers
Although the Attorney
General shrugged off the leaked draft legislation dubbed "Patriot
II," he named three of its provisions that he asserted are necessary
to fight terrorism: (1) expanded powers to hold suspected terrorists
indefinitely before trials; (2) ability to impose the death
penalty or life imprisonment for any terrorist act; and (3)
expansion of criminal charges for those acting in "material
support" of terrorist groups.
Observations: The Attorney General did not
mention that the definition of "domestic terrorism" in the USA
PATRIOT Act is so broad that the Administration has wide latitude
in what it determines counts as "terrorism." The additional
powers that the Attorney General wants are, therefore, even
broader than they appear. In addition, he did not elaborate
on the Justice Department's lack of coordination with Congress
in the development of the terrorism-fighting provisions in the
USA PATRIOT Act or in development of "Patriot II."
Denial
of national concern about erosion of civil liberties in the
post-9/11 era
The Attorney General
brushed off numerous questions about widespread concern over
erosion of civil liberties since the Administration declared
"war on terror." On the contrary, he stated that there was "overwhelming
support" for the USA PATRIOT Act across the country.
Observation: The Attorney General provided
no basis for this statement.
Twice in his remarks,
the Attorney General disparaged the Bill of Rights Defense Committee
(BORDC) movement, claiming that it is based on misinformation
and arguing that the country must discuss and dispel the "myths"
being spread.
Observation: He did not attempt to name any
specific inaccuracies or distortions.
Specific
issues addressed by the House Judiciary Committee's questions:
1. Investigative
powers: Electronic surveillance
Four different committee
members raised the issue of surveillance of library and bookstore
records. The Attorney General stated that the national uproar
about library surveillance is based on misinformation, citing
a newspaper article published in Connecticut that was subsequently
withdrawn for inaccuracy. He said that libraries are "encased
in protections." He compared the procedure for obtaining a grand
jury warrant for library surveillance with that of obtaining
a Foreign Intelligence Surveillance Act (FISA) warrant under
the USA PATRIOT Act and opined that the latter was more difficult
to obtain.
Observation: He did not follow-up with comparisons
that would have defeated his premise: whether information outside
the scope of the original warrant could be gleaned using a FISA
warrant but not with a grand jury warrant, whether non-targeted
individuals could be spied on under a FISA warrant but not under
a grand jury warrant, or how the information from each could
be used by federal authorities.
In response to a
question about electronic data-mining, the Attorney General
admitted that faulty data may be a problem to a broad-based
system. He recognized the need for operational safeguards and
security systems against unauthorized access. He advocated a
policy of "minimization," i.e. having the FBI only obtain information
"required for investigations." He flatly stated that the Justice
Department would not be conducting data-mining on non-criminal
suspects.
Observations: The Attorney General did not
acknowledge that he was using terms defined so broadly by the
USA PATRIOT Act and Justice Department policies that the terms
would fit nearly any investigative situation. In addition, his
remarks ignore the fact that data-mining by definition will
reap information about law-abiding individuals and not just
criminals or terrorists. It is generally understood that the
federal authorities will determine the data profiles for criminals
and terrorists after they have information about everyone.
2. Investigative
powers: Change in FBI guidelines
The Attorney General
acknowledged that he did not consult Congress before revision
to the previous FBI operating guidelines (called the "Levy Guidelines,"
last revised in the mid-1970's during the Ford Administration
after the Church Commission exposure of FBI abuses). The Attorney
General stated that he had felt empowered to modify the guidelines
without consultation because of the overwhelming congressional
support for the USA PATRIOT Act. He explained that under the
new guidelines, FBI agents may attend any public meeting, including
religious services, political gatherings, and other constitutionally
protected activities. The agents may not make surveillance records
and must destroy all notes taken unless they uncover evidence
of crime or criminal planning. Committee members expressed their
discomfort with law enforcement investigation instituted without
any evidence or even suspicion of criminal activity. However,
the Attorney General repeatedly asserted that the Justice Department
has taken a proactive position against crime, rather than waiting
for crime to occur.
Observations: The Attorney General responded to these
questions as though prior to September 11, 2001, the Justice
Department had not engaged in extensive, systematic crime-prevention
efforts. Moreover, he did not justify his underlying premise:
that in order to prevent crime, the Justice Department must
abridge the civil liberties of the people. This premise can
be refuted factually (civil liberties do not have to be sacrificed
for safety), as well as foundationally (security without freedom
is not worth the trade-off).]
3. Other
investigative powers
The Attorney General
praised and supported enhancement of a national neighborhood
watch program concerning "unfamiliar, suspicious, or not normal"
people.
Observation: He did not mention the Homeland
Security Act provision prohibiting implementation of the Terrorist
Information and Prevention System (TIPS), and did not explain
how this new federally supported "neighborhood watch" program
is different enough from the TIPS program to survive the previous
clear expression of congressional disapproval of citizen-on-citizen
snooping and snitching.
The Attorney General
defended the use of "sneak and peek" searches, the clandestine
physical and virtual searches permitted under the USA PATRIOT
Act. He insisted that in every case, notification had or would
eventually be given to the target that a search had been conducted.
Observation: The Attorney General did not mention
that the USA PATRIOT Act does not limit the number of notification
extensions for "sneak and peek" searches. Even if the Justice
Department planned to eventually notify all targets that they
have been spied on, the Act gives Justice Department authorities
discretion for indefinite delay of notification, a procedure
that many argue is a violation of Constitutional due process.
4. Use of
USA PATRIOT Act provisions for non-terrorist crimes
The Attorney General
reported that the Justice Department has negotiated criminal
plea bargains from more than 15 individuals who are cooperating
with the government about terrorism investigations in exchange
for the imposition of lesser sentences than those for terrorism
charges. He stated that prosecutors bring charges they are confident
can sustain conviction, even if the charges are non-terrorism
charges. He considers a guilty plea for a non-terrorist charge
under such circumstances to be evidence of success in the "war
on terrorism," even if the charge is not terrorism-related.
Observations: Individuals who are threatened
with a range of crimes look to the sanctions for those crimes
when contemplating plea bargains. If the defendant is facing
life imprisonment on one hand or a sentence of a few years on
the other, he or she can avoid the risk of conviction of the
more serious charge by pleading guilty to the lesser charge.
Because each criminal offense has a different list of elements
and the prosecutor must prove each element beyond a reasonable
doubt, conviction of a charge not related to terrorism is emphatically
NOT evidence of guilt of terrorist activity. Moreover, the Attorney
General did not provide a definition of the "war on terrorism,"
much less criteria for winning that "war."
5. Immigrant
relations: Detention of immigrants during the fall and winter
2001-2002
[Background:
The Attorney General's testimony followed the June 2, 2003,
release of an internal Justice Department report about significant
problems with the treatment of 762 illegal immigrants detained
during the September 11, 2001, investigation. The report was
issued by Justice Department Inspector General Glenn A. Fine.
The office of the Inspector General is an independent, internal
investigatory unit within the Justice Department. The report
found that federal authorities made little effort to distinguish
real terrorist suspects from those who became ensnared by chance
in the investigation. The report found that the detainees were
jailed for extended periods of time, many for months, often
without formal charge or access to lawyers, and that some were
subjected to verbal and physical abuse, before they were cleared
of terrorist ties and deported or released.
The Attorney General
acknowledged that, in the end, none of the 762 detainees included
in the Inspector General's report were charged with terrorism.
All detainees were charged with violation of INS regulations.
The Attorney General gave anecdotal evidence of a handful of
detainees who had ties to other terrorism suspects. He stated
that the "inconvenience of a few individuals is outweighed by
safety concerns." He repeatedly referred to the general statistic
that 85% of those facing deportation who are released from custody
on bond do not report for deportation, and he stated that the
Justice Department would not take that risk during the investigation
of the September 11, 2001 attacks. The Attorney General said
that it is Justice Department policy "for which we do not apologize"
to detain those illegally in this country for as long as it
takes to clear them of terrorism links before deportation (called
the "no bond" policy).
Observation: The Attorney General offered no
explanation of the continuing use of the "no bond" policy after
the emergency situation had subsided, nor did he offer any link
between common immigration procedural violations and terrorism.
He did not address the implication that the crackdown on immigrants
following the attacks of September 11, 2001, was unrelated to
those attacks or the "war on terrorism," but was, rather, in
furtherance of Justice Department immigration philosophy and
policy.
In response to a
specific question, the Attorney General stated that he did not
have current plans to appoint an independent investigator to
look into possible criminal conduct in association with the
allegations of abuse of immigrant detainees. He testified that
of 18 civil rights complaints that had been brought,
Justice Department investigation had found that 14 of the cases
had insufficient evidence to press criminal charges. He stated
several times, "We do not stand for abuse." Observation:
In this testimony, the Attorney General stated Justice
Department policy. However, he did not mention that the Justice
Department turned a deaf ear on repeated calls for investigation
and pleas for assistance from detainees' families, friends and
attorneys while this abuse was occurring. Nor did he offer assurance
that the abuse described in the Inspector General's report has,
in fact, ceased.
The Attorney General
noted Administration efforts to curb discrimination against
Muslims.
Observation: He did not address the inconsistency between
the Administration's public profiling of Muslims and
immigrants from the Middle East and South Asia in immigration
and investigation policies, while at the same time giving speeches
against private acts of racial or religious discrimination
between individuals.
6. Use of
local law enforcement officers for enforcement of federal law
The Attorney General
spoke enthusiastically about the use of local law enforcement
officers for enforcement of federal law, particularly immigration
law.
Observation: He did not respond to a committee
member's question about whether this Justice Department policy
undermined local police department efforts for effective and
helpful relationships with local immigrant communities.
7. Use of
"enemy combatant" status
The Attorney General
asserted that conferring "enemy combatant" status on an individual
is within the power of the President as commander-in-chief under
Article II powers. As authority, he cited the U.S. Supreme Court's
Ex parte Quirin, a WWII saboteur case. The Attorney
General claimed that determination of "enemy combatant" status
is a military decision, not a civil or criminal decision, and
that if the President has a reasonable basis for the decision,
the status is not subject to review by the courts. One member
of the committee noted that "enemy combatant" status should
be given to an individual only under a public standard which
had been previously determined by Congress. The Attorney General
attempted to reassure the committee by saying that President
Bush would remove the classification as to any individual if
the President thought that the classification had been imposed
in error.
Observations: The Attorney General did not
discuss the disagreement among legal scholars about whether
the Quirin case applies to the current circumstances. He did
not respond to the assertion that a matter of this importance
should be a matter of public policy developed by the Administration
working with the Legislature, rather than developed in secret
and applied without judicial review or legislative oversight.
He did not acknowledge that the issue involved here is the constitutionality
of the Administration seizing unfettered discretion to designate
an individual as an "enemy combatant," with its consequent loss
of all due process protections for the individual so designated.
8. Monitoring
of attorney-client conversations
The Attorney General
unconditionally endorsed the procedure of monitoring designated
attorney-prisoner conversations so that attorneys do not become
the unwitting messengers of clients who are part of terrorist
groups. He stated that there were firewalls that would prevent
non-emergency use of the information gleaned by this monitoring,
noting that the monitoring team was separated from the prosecution
team.
Observation: The Attorney General did not delve
into the constraints on this procedure guaranteed by the Sixth
Amendment right to counsel.
Minutia:
The session lasted
for five hours, including a half-hour lunch break. Alternating
between political parties, each member of the committee was
allowed five minutes to voice concerns and pose questions to
the Attorney General, who responded to each inquiry in turn,
without time limit. The Attorney General was accompanied by
about a dozen staff, many with four-inch thick briefing notebooks
organized by topic, together with charts summarizing the anticipated
concerns of the various committee members. As the questions
were being asked, the aides ripped pages out of the briefing
notebooks and one aide set the relevant pages on the table next
to the Attorney General.
Observations: Legislators need more than five
minute increments to exercise responsible oversight of the numerous
Justice Department policies, actions and plans, and implementation
of the USA PATRIOT Act. This hearing should be just the beginning
of vigorous public congressional oversight of Justice Department
activities. Moreover, the Attorney General's repeated failure
to support his generalized, conclusory remarks cannot be attributed
to lack of preparation or to lack of assistance during the hearing.
House
Judiciary Committee:
Sensenbrenner (5th
- WI), Chair; Conyers (14th - MI), Ranking Member;
Hyde (6th - IL); Berman (28th - CA); Coble
(6th - NC); Boucher (9th - VA); Smith
(21th - TX); Nadler (8th - NY); Gallegly
(24th - CA); Scott (3rd - VA); Goodlatte
(6th - VA); Watt (12th - NC); Chabot (1st
- OH); Lofgren (16th - CA); Jenkins (1st
- TN); Jackson-Lee (18th - TX); Cannon (3rd
- UT); Waters (35th - CA); Bachus (6th
- AL); Meehan (5th - MA); Hostettler (8th
- IN); Delahunt (10th - MA); Green (8th
- WI) Wexler (19th - FL); Keller (8th
- FL); Baldwin (2nd - WI); Hart (4th -
PA); Weiner (9th - NY); Flake (6th - AZ);
Schiff (29th - CA); Pence (6th - IN);
Linda Sánchez (39th - CA); Forbes (4th
- VA); King (5th - IA); Carter (31st -
TX); Feeney (24th - FL); Blackburn (7th
- TN).
This report was
prepared by Friends Committee on National Legislation Civil
Liberties and Human Rights Program staff in attendance at the
hearing.
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