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.

This report was prepared by Friends Committee on National Legislation Civil Liberties and Human Rights Program staff in attendance at the hearing.

The full analysis is available at www.fcnl.org