Congressman Schiff: Mr. Attorney General, I want to thank you for being here. I'm a former Assistant U.S. Attorney, and I greatly value the work done by Justice Department people all over the country.
I'm an original co-sponsor of the House version of the Patriot bill.
In my view, the Patriot bill was a bargain. We would give the government greater ability to investigate and prosecute terrorism suspects, and in return, we would take upon ourselves greater responsibility for overseeing these more powerful tools.
In my view, we have not kept up our part of the bargain. We have not done adequate oversight of the Patriot bill in this House or in this committee.
For the Justice Department's part, I believe the department has not been forthcoming with the information that we would need also to do our job of oversight.
And in one area in particular, I've been most concerned -- this is an area both within, but largely outside the Patriot bill -- and that is the detention of Americans and lawful residents as enemy combatants.
For three years now, I've been raising this issue -- what the standards ought to be for the detention of an American, what due process should be afforded.
I introduced legislation three years ago to authorize the detention of enemy combatants but to ensure that there was access to judicial review and access to counsel.
We've had no hearing on any of this legislation. Indeed, requests to have a hearing just on the issue of the detention of Americans have not been successful. We have had no hearing on this subject.
That's been our problem. Our unwillingness to set any limit on the power of the executive to detain an American citizen, that's been our problem.
At the same time, I have made efforts to learn information from the Justice Department and the Defense Department about our government's own policies of when we treat someone as a defendant with all of the rights that attach to that, or when we treat them as an enemy combatant with none of the due process that attaches to that. Yet I have been unable to get really any meaningful information, even in classified form.
When you gave a speech to the ABA a year or two ago, it was the most information I had ever heard about how we were deciding when to treat someone as an enemy combatant.
More information than you gave publicly was denied me in classified form. That cannot persist.
And I find it odd that there aren't more voices in the Congress raising this issue, that aren't demanding that Congress act to set limits on the detention of Americans, to set due process for the detainees at Guantanamo.
Of course, all this not done for the terrorism suspects, but done for all the rest of us to protect our civil liberties and our due process. I find it very odd that there have been so few voices in the Congress on this issue, but I find I have a new and powerful ally on the Supreme Court of the United States.
As you know, the district courts have reached conflicting results about whether the executive has the power to detain enemy combatants and under what conditions.
Justice Scalia, in one of his dissenting opinions commented, "I frankly do not know whether the tools are sufficient to meet the government’s security needs, including the need to obtain intelligence through interrogation. It is far beyond my competence or the Court's competence to determine that, but it is not beyond Congress's."
We could not have, I think, a stronger admonition that we need to act in the Congress. And so I'm in the unusual position of asking you to help us to do our job.
Mr. Attorney General, do you believe, as I do, that the Justice Department's power to detain enemy combatants, which I believe the department has to have in the war on terrorism -- don't you believe that power is strengthened when the Congress acts to provide both the authority clearly, and the due process clearly? Isn't the power strengthened because it will now have the imprimatur of both the legislative and the executive branch and therefore, have the respect of the judicial branch?
Shouldn't we act so that we don't have piecemeal decision-making by the courts? Will you work with the Congress to propose legislation setting out the due process for the detention of Americans as enemy combatants, and the detainees in Guantanamo?
Attorney General Gonzales: Congressman, there is a lot there to respond to. Generally in the area of war, the framers of the Constitution gave both to the executive and to the legislative branch certain powers.
And I think in the exercise of the power, I for one, as someone who looks at these things, look at where you are on the spectrum.
For example, if America is attacked, I think this president as commander in chief can take actions to defend this country without action by Congress. I think he has the authority to do that.
But if we're talking about taking 100,000 troops into another country for, you know, an extended period of time, then it becomes, I think, more difficult whether or not -- can the commander in chief do that without any kind of congressional authorization?
I think the framers probably had it right. It probably works best, particularly when we talk about putting the lives of men and women at risk, to have both branches working together in most cases.
Whether or not legislation is appropriate, these are very, very difficult issues. I have really discovered how difficult these issues have been these past four years.
There is a reason why courts around this country reach conflicting decisions about these issues because they are so hard. Many of the issues have never been confronted in our courts before. It's a new kind of war and some of the old rules just don't apply. And so we try to deal with them.
And so to answer directly your question about whether or not legislation would be beneficial, you know, I'd have to look at the circumstances; I'd have to look at the legislation, quite frankly.
You're right. We waited too long, in my judgment, to explain to the American people what we're doing and why. And it was one of the things that I mentioned in that speech you referred to -- that we waited.
We waited a long time because of concerns that we didn't want to say anything that might help the enemy, might jeopardize something that we're doing, but we finally acknowledged that we were hurting ourselves, that the American people and the Congress really needed to know what we're doing and why.
So I'm delighted to know about your hearing the speech because I did, I think, talk a lot about the process that we use in designating someone as an enemy combatant or having them go through the criminal justice system.