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June 15, 2004

Compassionate contempt for Congress

From the Post on June 8th:

Attorney General John D. Ashcroft told Congress yesterday that he would not release a 2002 policy memo on the degree of pain and suffering legally permitted during enemy interrogations, but said he knows of no presidential order that would allow al Qaeda suspects to be tortured by U.S. personnel.

Angry Democrats on the Senate Judiciary Committee called on Ashcroft to provide the document. They said portions that have appeared in news reports suggest the Bush administration is reinterpreting U.S. law and the Geneva Conventions prohibiting torture.

Sen. Dianne Feinstein (D-Calif.) said the memo on interrogation techniques permissible for the CIA to use on suspected al Qaeda operatives "appears to be an effort to redefine torture and narrow prohibitions against it." The document was prepared by the Justice Department's office of legal counsel for the CIA and addressed to White House counsel Alberto R. Gonzales.

The 50-page Justice Department memo said inflicting physical or psychological pain might be justified in the war on terrorism "to prevent further attacks on the United States by the al Qaeda terrorist network." It added that "necessity and self defense could provide justifications that would eliminate any criminal liability."

Here is the clip from Biden's questioning of Ashcroft.

Here is what Biden is referring to when he brings up Pristina:

Peacekeeping troops in Kosovo say they have uncovered evidence that people were tortured at a Serb police headquarters in the capital, Pristina.

The building has been sealed off and officials from the International Criminal Tribunal for Former Yugoslavia in the Hague have made a preliminary investigation. They say they believe that ethnic cleansing in Kosovo was co-ordinated from the building.

The discovery came as the UK Foreign Office said at least 10,000 people were thought to have been killed in more than 100 separate massacres in Kosovo.

British paratroops found an array of knives and clubs, knuckledusters, mines, pornography and drugs in the police station.

A resident of the predominately-Albanian neighbourhood surrounding the police headquarters said he was beaten and questioned in the concrete-block building, and had seen men and women beaten unconscious in its cells.

Anyway, The Post has the Ashcroft transcript available, too:

CORNYN: It's been said that the United States Constitution is not a suicide pact, so I assume that you believe -- I trust you believe that it's within the authority, under international treaties, under the...

HATCH: Senator, your time is up.

CORNYN: Well, I'll send you any other questions I may have in writing.

Thank you.

ASHCROFT: Thank you.

HATCH: Thank you.

Senator Biden?

BIDEN: Thank you very much.

On my six minutes, can I yield 20 seconds to my colleague to follow up on a question?

KENNEDY: Just, General, has the president authorized you to invoke the executive privilege today on these documents?

ASHCROFT: I am not going to reveal discussions, whether I've had them or not had them, with the president. He asked me to deal with him as a matter of confidence.

I have not invoked executive privilege today. I have explained to you why I'm not turning over the documents.

KENNEDY: Well, what are you invoking?

ASHCROFT: I have not invoked anything. I have just explained to you why I'm not turning over the documents.

BIDEN: Thank you very much.

Well, General, that means you may be in contempt of Congress then. You got to have a reason not to answer our questions, as you know from you sitting up here. There may be a rationale for executive privilege that misses the point, but, you know, you have to have a reason. You are not allowed, under our Constitution, not to answer our questions, and that ain't constitutional.

But that's a different question. I don't want to get off on it, because I have to talk about other things. But you all better come up with a good rationale, because otherwise it's contempt of Congress.

One of the things that I'm a little confused about here is I don't know anybody in America who's argued we shouldn't attempt to preempt terrorist attacks. The question is, what are we allowed under our Constitution to do to preempt terrorist attacks? And that's really the issue here -- not whether we should preempt, or want to preempt, but what we're allowed to do to preempt.

BIDEN: Now, one of the questions I have -- and if you don't have an answer, I understand. If you could just let me know. So seldom we get to see it. You know, I mean, when you were on the committee, Janet Reno was up 12, 13 times, 22 times in her tenure. You've been up three times. We miss you, John. We'd like to see you more.

But at any rate, is there, to the best of your knowledge, a presidential order, not a secret -- a presidential order anywhere that immunizes interrogators of Al Qaida suspects? Is there any order that the president has issued that lets it be known that they're immunized, based on the tactics they use, from prosecution? Is there such an order, if you know?

ASHCROFT: The president has issued no such order.

BIDEN: OK, good. I just want to get the record straight.

Now, the other -- I have a couple more questions along these lines, if I may. Is it your position that in time of war, which we're in now, that Congress has no authority to question the legal judgments of the executive branch even if we think the administration may have violated a treaty or a law or the Constitution? If we think you violated a treaty, a law, a statute or the Constitution, is it your position that at a time of war that we, the Congress, don't have the authority to question you and get answers to those questions?

ASHCROFT: First of all, I think the Congress has the right to ask any question it wants. And has a responsibility -- its oversight responsibility, and to debate and to criticize where it chooses to, and commend where it chooses to and not say anything if it chooses to do that.

ASHCROFT: There are certain things, that in the interest of the executive branch operating effectively, that I believe it is inappropriate for the attorney general to say.

Some of those relate to things that he has said, perhaps in advice he has given, and some relate to hypotheticals that he might say or might not give. I think in terms of drawing that issue sharply, I thought Attorney General Murphy, who subsequently became a justice of the Supreme Court, said it very clearly.

BIDEN: But what he said was generic; he didn't say anything specific. I know what he said. He didn't say anything specific. He was generic.

ASHCROFT: No, sir. And I'm going to try and do the same.

BIDEN: Oh no, you're being very generic. I acknowledge that. You are as generic as they come.

(CROSSTALK)

BIDEN: No, I got it. This is generic. We're trying to get specific.

And you said that there's been no -- you're not going to give us the memoranda that were referenced here.

But let me ask you as a lawyer, as a lawyer with an advanced degree beyond law school, I'd like your legal opinion as attorney general: If in fact there was a memo that said that torture might be justified and would be constitutional if applied to interrogations, if such a memo existed, would that -- is that good law? Do you believe that to be the law?

You, the attorney general of the United States, two degrees from prestigious law schools and institutions...

ASHCROFT: I have two degrees. The third degree I get when I visit the Senate.

(LAUGHTER)

So I don't have a degree beyond law school, other than the ones that I'm accorded here.

BIDEN: I thought you had a master's as well in law.

ASHCROFT: Oh, I don't. But I am wishing I did at this time.

(LAUGHTER)

BIDEN: OK. All right. Where did you go to law school?

ASHCROFT: It wasn't under your tutelage. But maybe it should have been, because I know you teach.

BIDEN: No, I understand.

But do you think -- do you think that torture might be justified?

A question to you; not memorandum, just you, John Ashcroft, attorney general of the United States, highest-ranking law enforcement officer in the United States of America, and lawyer. Do you believe in this time of war, torture might be justified and be viewed as constitutional?

ASHCROFT: Well, first of all, this administration has not ordered or approved...

BIDEN: I'm not asking that, John. Excuse me, all due respect...

ASHCROFT: I am not going to issue...

BIDEN: I just want to know your opinion.

ASHCROFT: ... or otherwise discuss hypotheticals. I'll leave that to the academics. Just ask them the subject.

BIDEN: Do you think this is justified? It's not hypothetical.

ASHCROFT: That's not hypothetical. That's a circumstance. And that's the kind of circumstance that when it is referred to the Justice Department, we investigate. And if there is a basis for prosecution, we would prosecute. And we have...

BIDEN: John, you sound like you're in the State Department. Remember the old days when you were here looking for answers, remember on this side?

ASHCROFT: I have a recollection of that.

BIDEN: Well, my time's up, I can see.

ASHCROFT: You know, I condemn torture. I think it...

BIDEN: So it's not justified, then?

ASHCROFT: I don't think it's productive, let alone justified.

BIDEN: Well, I don't either.

And by the way, there's a reason -- I'll conclude by saying -- there's a reason why we sign these treaties: to protect my son in the military. That's why we have these treaties. So when Americans are captured, they are not tortured. That's the reason, in case anybody forgets it. That's the reason.

ASHCROFT: Well, as a person whose son is in the military now on active duty and has been in the Gulf within the last several months, I'm aware of those considerations. And I care about your son. I care about...

BIDEN: He's not there. He's in JAG and he's back here. But that's the reason.

ASHCROFT: He may not be there, but my son has been. And he happens to be stateside right now for more training, but he is scheduled to go back within the month.

BIDEN: (inaudible) Pristina. We're working for you guys. And the same thing occurred.

ASHCROFT: I just want you to know...

HATCH: Senator Sessions?

Posted by Mike at June 15, 2004 05:52 PM

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