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Attorney General John Ashcroft Testifies Before Senate Judiciary Committee

Aired December 6, 2001 - 12:31   ET


JUDY WOODRUFF, CNN ANCHOR: CNN has been covering, looking in on that hearing, the Judiciary Committee hearing, the Senate side of the Capitol. Attorney General John Ashcroft testifying right now. Wisconsin Democratic Senator Russ Feingold is questioning the attorney general.


SEN. RUSS FEINGOLD (D), WISCONSIN: ... a week for almost the entire two months he was held in detention, so I would like to specifically and you about the right of the people being detained to consult with an attorney. Mr. Chernoff (ph) testified before this committee last week that every one of these individuals has a right it counsel, every one of these individuals detained has rights to phone calls and attorneys, but the right to an attorney is meaningless if in practice it is impossible for an individual in custody to contact his attorney. And we heard testimony in the committee Tuesday of at least two instances where individuals were unable to speak with their lawyers for days, and even weeks after they were detained. And we know that these are the only such instances.

Furthermore, and it became clear that the roadblocks to individuals consulting with counsel not only caused great hardship to their clients and violated their rights, but it also hinders the investigation and waste the resources of law enforcement and people who it turns out have no connection to terrorism. So I'd like you to answer two questions in this regard.

Will you commit to this committee today that the Department of Justice will take immediate steps to assure that every detainee is made aware of his right to be represented by counsel, and made aware of organizations or groups that will represent him without charge if can't afford a lawyer, that counsel are able to locate and consult with their clients without difficulty, that detainees are permitted to contact their attorneys as often as they need to and receive or return all calls from their attorneys without interference? And second, until the full disclosure requested in my October 31st letter is made, I would request that the Department of Justice determine if any of the people currently held in detention are not now represented by counsel? Will you do that?

JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES: I think I can promise to do virtually everything you'd said. You made a pretty particular and detailed proposal. You said that they will be able to return every phone call, and there are reasonable limits that I think have to be imposed, even on those individuals that have violated the law and want to confer with their attorneys.

I believe it is the right, and we'll take steps to ensure, again, that every detainee understands that we believe it to be his or her right they have counsel. For those for whom government counsel is not provided, in other words, that there is not a government-funded counsel, we have a practice of providing a list of pro bono counsels, and we have been bringing people of those pro bono counsels into the detention facilities regularly so individuals being detained can have an opportunity to see an attorney if they haven't called them or chosen to. They still have a chance to confer. I want to do that, and I do not intend to hold individuals without access to counsel, and we will take steps to make sure we don't. I don't believe that we are, and I will make available to individuals an understanding of pro bono counsel, or free counsel, in the he development they are not classified as individuals entitled to the attorney at government expense.

I would -- let me clarify a couple of things if I might, and I will try not to take too much time.

When Mr. Chernoff was answering the question, he said, I don't know that there was a specific law that bars the disclosure of the names. That was his testimony.

And let me just tell you what the frame of reference is when I talk about the law regarding detainees. The law varies in relation to the nature of the detainee. If a detainee is a permanent resident but an alien to the United States, the law prohibits the disclosure of his name, or her name. If the person is not a permanent residence but is here on another kind of visa or authority, the law recognizes that duty of the attorney general or the authorities to protect prosecutions and investigations by not providing lists of the names. These laws are basically summed up in the FOIL legislation, which talks of freedom of information.

And one of the considerations I have is that the privacy rights of individuals in this setting should be respected, that people should not be labeled as terrorists as we are still investigating any connections they have to terrorism. With that in mind, I have in addition to protecting from disclosing information about who we have in custody or don't have in custody as a coordinated list, I have refrained from developing a list, and frankly, don't intend to develop such a list.

You mentioned that each of these individuals has had the right to self-disclose their incarceration. Each of these individuals, obviously, has had the right to contact a lawyer. You've cited some who said that there contact has not been with enough -- free enough access, and I will look carefully into that. I know that one of the individuals that I believe you had at your hearing was an individual that I had immediately when I heard that there may have been an irregularity regarding his detention, sent FBI members to his home the minute when I heard about that upon his release, and our report that was that he did not allege a problem at that time. But I am eager, was then, remain eager, to observe these rights.

It is with that in mind I would say we have detained -- we have in detention about 563 individuals who are being detained on Immigration and Naturalization Service items, related to the events of 9/11. We have a total of about 20,000 people detained in the Immigration and Naturalization detention program. We have about 54 people detained on criminal charges, and those individuals, obviously, unless the court has sealed the nature of the charge, there is a public record of their detention, although it's not a coordinated list. We have detained some other individuals, and I am not at liberty to discuss their detentions, because they are the subject of material witness warrants.

FEINGOLD: Sorry, Mr. Chairman, I know my time is up, but let me just say quickly in response that there still has been no law cited for us that suggests that the law prohibits the disclosure. We have no citation to that effect, and we are still wondering what that is. And, Mr. Chairman, I appreciate the attorney general describing the practice with regard to the right to counsel, but I want your commitment, Mr. Attorney General, that everyone in detention will get a lawyer and will be able to consult with them.

Can you give me that commitment?

ASHCROFT: No, I can't. I can not force lawyers on individuals who refuse lawyers. I can make a lawyer available to every person in detention, in terms of the availability to lawyers for calling them. I am not authorized to provide lawyers to those in the INS detention at public expense, but I will promise...

FEINGOLD: Will you commit to making a lawyer available to every person in detention?

ASHCROFT: If lawyers are willing to provide service to those individuals, and we are helping generate those lawyers, we will do that.

FEINGOLD: Thank you very much.

ASHCROFT: Thank you.

If I might, I would cite privacy act 5 U.S. Code 552A at (a)(2) as -- and the FOYA (ph) 5 U.S. 552 (b)(6), especially as the prohibition regarding naming legal permanent residents.

PAT LEAHY (D), VERMONT: You are citing this as a prohibition on disclosing any of the names of those in detention.

ASHCROFT: Not any of the names of those in detention. As I indicated earlier, Senator, there is a varying legal standard, depending on the status of the individual. The prevention is on a narrow group of individuals that are permanent residences. The authority not to disclose relates to those who are not permanent residents, but disclosure of which, in the judgment of law enforcement authorities, would be ill-advised as it relates to aiding the enemy or interfering with the prosecution. FEINGOLD: Mr. Chairman, I would simply add that this would confirm that there is no blanket prohibition in the law of disclosure, I would just like that on the record.

ASHCROFT: I can agree with the senator and would stipulate to the fact that there is no blanket prohibition.

FEINGOLD: Thank you Mr. Chairman.

LEAHY: Thank you both.

WOODRUFF: A little bit of verbal wrestling going on there before the Senate Judiciary Committee, between Democratic Senator Russell Feingold of Wisconsin and the attorney general over whose names may or may not be released. Clearly, there is some disagreement between some members of the United States Senate and others outside of the Congress with the administration and the attorney general over their decision to keep the identities of many of these detainees secret, and also some disagreement, strong disagreement, over whether they have been -- all of the detainees have had adequate access to counsel, and they've been told that there is some counsel available, pro bono, in other words, free.

We are going to continue to monitor this hearing taking place now on Capitol Hill. Our coverage continues in a moment.




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