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December 7, 2001
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Atomic
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America's
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Questions
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Liberals
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The
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December 4, 2001
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Ashcroft
and the Patriot Act
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The Afghan
King and the Nazis
November 30, 2001
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Green
Disappeared
in the Southland
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Rebuilding
Afghanistan?
November 29, 2001
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Defining
Terrorism
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We Are the
War Criminals Now
November 28, 2001
Tom Turnipseed
A
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Tribal
Council:
Don't Blame It All on Taliban
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At
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The Bill of
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Suffer
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November 27, 2001
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Kafka and
the Patriot Act
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Tigris
and Euprhates
November 26, 2001
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December
7, 2001
Military Tribunals
Sen. John Edwards
v. Ashcroft
[What follows is a transcript of
the questioning of Attorney General John Ashcroft by Senator
John Edwards, the Democrat from North Carolina (a former trial
lawyer), during the Senate Judiciary Committee's oversight hearing
on December 6, 2001]
SEN. LEAHY: The senator from North Carolina.
SEN. EDWARDS: Thank you, Mr. Chairman.
Good afternoon, Mr. Attorney General.
ATTY GEN. ASHCROFT: Good afternoon.
SEN. EDWARDS: Appreciate your patience.
I know this has been a long hearing. We want very badly to make
sure that you have the tools you need to protect the American
people, including new laws and new measures. But while we are
protecting American lives we also need to be certain that we
protect American values and American principles. And it seems
to me that these times of crisis and times of war are times when
those principles and values are most at risk, when people get
caught up in the passion of doing what's necessary under the
circumstances. We have seen in the past during World War II the
internment of over 100,000 Japanese Americans by a great president.
And I am sure at that time that was a very popular move. But
it is not something I don't think that we are very proud of today.
And I am not suggesting that these military tribunals are equivalent
to that, but whatever we do I want to make sure that your children
and mine and our grandchildren will be proud of what we have
done.
And my concern about the whole issue
of military tribunals is not the notion of using them. I can
easily see that there would be circumstances in which it would
make sense to use them. My concern is that this directive, this
order, is extraordinarily broad. And I want to ask you about
three or four areas, if I can, to see if we can make sure that
some of the things that the order would appear to allow in fact
are not something that you intended or intend to do.
Number one, the order says that a person
who is subject to the order shall be detained. And then goes
on to say if that individual is tried. So subject to the order,
you shall be detained if you are tried. So on the face of the
order, it would appear to allow unlimited detention without trial.
First, can you tell us today that that is not something that
will happen under this order?
ATTY GEN. ASHCROFT: Senator, I believe
-- and I am trying to recreate some of this order in my mind
-- but I believe that when you get to the trial part it talks
about "when tried." And I think that's the intent of
the order.
SEN. EDWARDS: Well, I'm looking -- excuse
me for interrupting you -- I'm looking at the language right
now. "If the individual is tried" is the language of
the order, at least the language that I have in front of me.
ATTY GEN. ASHCROFT: I, I think there's
another part of the order.
SEN. EDWARDS: Without getting caught
up on the semantics stuff, it is not -- you do not intend to
use this order to detain people and detain them for an unlimited
period of time without trial. Is that true?
ATTY GEN. ASHCROFT: I believe it's completely
fair to say that.
SEN. EDWARDS: Okay. Second, there's a
provision in the order that says, "The president or the
secretary of defense makes the final decision." I believe
you're familiar with that provision.
On the face of the order, that would
allow the president or the secretary of the defense to in fact
overturn an acquittal by a tribunal. In other words, to come
in after the case has been tried, there has been an acquittal,
and the secretary of defense decides, "We don't agree with
that, we're going to overturn it," and in fact on the face
of the order, it would allow the secretary of defense alone to
impose the death penalty.
What I want to know is, is that the intent
of the order, or can you tell us today that if in fact there
is an acquittal at the tribunal level, that that would not be
overturned by the secretary of defense?
ATTY GEN. ASHCROFT: I believe it's a
settled practice of war crime commissions that you can't overturn
a committal. I can -- I feel confident in telling you that's
not the intention
SEN. EDWARDS: And that will not -- that
will not occur?
ATTY GEN. ASHCROFT: I do not believe
that to be intended by the order.
SEN. EDWARDS: Third, burden of proof.
There's nothing in -- nothing in the order that deals with the
issue of burden of proof. That, on its face, would allow someone
to be convicted and in fact receive the death penalty on a greater
weight of the evidence standard, or a preponderance of the evidence
standard, 51 percent verses 49 percent. Can you tell us that
in order for someone to be convicted under this order, and for
the death penalty to be imposed against them, that you will require
a significantly higher burden of proof than preponderance of
the evidence or greater weight of the evidence, which is only
used in civil cases in this country?
ATTY GEN. ASHCROFT: I think it's pretty
clear that the president has asked the secretary of defense to
develop a set of regulations and procedures governing the war
crimes commissions that are full and fair. Admission of such
evidence would have -- would be evidence of probative value.
There is a provision for the accused to be represented by counsel.
The conviction and sentence would be upon two-third majority
vote.
SEN. EDWARDS: Mr. Attorney General, excuse
me for interrupting you, but the only thing I'm asking you about
-- I'm not asking you about any of those thing, I'm only asking
you about the burden of proof -- are will you require, in order
for somebody to be convicted and the death penalty be imposed
against them, that the burden of proof be more than just a preponderance
of the evidence?
ATTY GEN. ASHCROFT: I think that's an
issue which is still to be determined. And it would be beyond
my power to speculate on that. The secretary of defense is formulating
the procedures, and among those procedures may be items like
appeals procedures and other instructions to those conducting
the trials, but I cannot provide further information than to
say that at this time.
SEN. EDWARDS: Well, you are the attorney
general of the United States. You are an experienced lawyer.
I'm asking you whether you believe it is appropriate for somebody
to be convicted and receive the death penalty based on 51 percent
of the evidence? Do you or do you not? You, just you personally?
ATTY GEN. ASHCROFT: I'm not going to
try and -- to develop a set of rules or regulations on that evidentiary
standard or other standards at this time. That's the responsibility
of the secretary of defense in regard to this very serious matter.
And I would expect him to very carefully make judgments in this
arena. And I -- I personally am not -- have not given that the
kind of thought at this moment to say what exactly I would do
were I to have the responsibility, which I don't have.
SEN. EDWARDS: Now, you just mentioned
a provision in the order that says that the conviction can occur
on a two-thirds vote as opposed to a unanimous vote. Does that
mean that under this order, if there's a three person tribunal,
that somebody could be convicted, receive the death penalty,
and be executed based upon a 2-to-1 vote?
ATTY GEN. ASHCROFT: I would believe that
this states a minimum standard in its direction to the secretary
of defense. I means that two out of three of the triers of fact
have to come to a conclusion before a sentence could be imposed.
SEN. EDWARD: Which means that if the
tribunal is composed of three people, the case is presented,
two of the three say that the death penalty should be imposed,
one says it should not, it could be imposed and the person could
be executed. Is that what you're saying?
ATTY GEN. ASHCROFT: If this were to be
-- if you're talking about a two-thirds rule, and if that's the
rule that eventually is adopted by the secretary of defense,
two out of three is two-thirds. And I agree with that. (Laughter.)
SEN. EDWARDS: All right.
ATTY GEN. ASHCROFT: U.N.-sponsored tribunals
allow conviction on a simple majority, like the ones at The Hague
and the ones in -- that are litigating and adjudicating the atrocities
against those in Central Africa.
SEN. EDWARDS: Do those -- excuse me,
Mr. Attorney General -- do those allow the death penalty?
ATTY GEN. ASHCROFT: I don't know.
SEN. EDWARDS: I don't believe they do.
Let me ask you one last area -- the area and the whole question
of appeals. We've seen, in our court system, which most of believe
is one of the best if not the best in the world, over the last
two decades people who, based on later-found evidence, DNA evidence,
for example, have absolutely been found to -- it could not have
been possible that they committed the crime. The White House
counsel has said that a challenge can be made to the jurisdiction
of the court.
Now, you and I understand that the jurisdiction
is very different than whether, in fact, the person committed
the crime, whether they're guilty, whether evidence should have
been admitted that would have shown that the person couldn't
have committed the crime. All those issues that go to the basic
question, which I think most Americans are concerned about, about
these kinds of issues, is did this person do it? Did they in
fact do what they've been accused of doing. Do you believe that
there needs to be a process that allows some appeal that looks
at the fundamental question of how the trial was conducted, whether
evidence was properly considered by the court, and whether, in
fact, there's evidence that was not considered by the court that
would have shown this person, in fact, did not do it, did not
commit this crime?
ATTY GEN. ASHCROFT: In the president's
order to the secretary of defense to develop procedures here,
I believe there is adequate latitude for the secretary of defense
to develop a potential and a framework for appeals.
SEN. EDWARDS: But isn't that something
you believe should be done?
ATTY GEN. ASHCROFT: I believe that the
president and the secretary of defense both, according to the
order, constitute appellate authorities. And I think those appellate
authorities are consistent with systems that -- that provide
the kind of justice that is likely -- less likely to have error.
SEN. EDWARDS: But the president and the
secretary of defense are the people who decided the prosecution
should be brought in the first case. Do you believe there needs
to be an objective third party that looks at the trial, looks
at the conviction, looks at the imposition of the death penalty,
if that in fact has occurred, and looks at whether it should
have happened?
ATTY GEN. ASHCROFT: The secretary of
defense would have the authority to develop appellate procedures
under the order, military order for the development of war commissions
issued by the president. And I believe that that authority is
available to him. And if he chooses to confer with me about that,
I'll provide advice to him regarding appellate procedures.
SEN. EDWARDS: Do you believe in fact
there needs to be a review, an objective review by a third party?
That's what I'm asking you.
ATTY GEN. ASHCROFT: I'm going to reserve
my comments to provide advice to the president and the secretary
of defense regarding any questions they have for me regarding
what should be or should not be added in terms of procedures
for this order.
SEN. EDWARDS: Thank you, Mr. Attorney
General. Thank you, Mr. Chairman.
SEN. LEAHY. Thank you. Thank you, Senator
Edwards. I think by hearing this testimony, I think all the more
reason guidelines should be set by the Congress for military
tribunals, especially on the question of preponderance of the
evidence in the death penalty. But I think we can do that. But
I would suggest that Senator Hatch and I and others at least
have that discussion.
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