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Clash over unconstitutional memo { June 9 2004 } Original Source Link: (May no longer be active)
http://www.thehill.com/news/060904/memo.aspxhttp://www.thehill.com/news/060904/memo.aspx
June 9, 2004
Clash over torture memo
Citing Constitution, Ashcroft refuses Judiciary demand
By Alexander Bolton
Attorney General John Ashcroft is refusing to turn over to senators a 50-page document containing advice from Justice Department lawyers to the CIA asserting that torturing suspected terrorists may be justified.
patrick g. ryan
Attorney General John Ashcroft
Democratic Sens. Patrick Leahy (Vt.), Edward Kennedy (Mass.), Joseph Biden (Del.), Dianne Feinstein (Calif.), Charles Schumer (N.Y.) and Dick Durbin (Ill.) all pressed Ashcroft to release the controversial document at a bad-tempered Justice Department oversight hearing conducted by the Senate Judiciary Committee yesterday.
Biden and Durbin said failure to turn over the document would amount to contempt of Congress, but the attorney general cited the Constitution’s separation of powers, saying advice to the president was private.
Other lawmakers pressed Ashcroft on his legal rationale for withholding the memo. Democrats are outraged and incredulous over Ashcroft’s stance because the memo was leaked to The Washington Post and The New York Times and its contents were widely reported.
They said that as members of the congressional committee with oversight of the Justice Department they should be given access to the document, and they are refusing to attempt to obtain it from the press.
“They shouldn’t have to get it from a reporter,” an exasperated aide to one of the committee Democrats said. “That’s not the right question to ask. These are duly elected senators who think they have the right to ask for the memoranda.”
Ashcroft told the panel: “The president has a right to receive advice from his attorney general in confidence and from other executive agencies, and this doesn’t mean that there can’t be debate on such topics. It just means that the private advice that the president receives from his attorney general doesn’t have to be part of the debate.
“When the persons involved in the actual conduct of a war signal to the parties in the war the entirety of the strategy and the way the war is being conducted, there are times when that’s not in the best interest.”
Exchanges between the attorney general and the panel’s Democrats grew heated, with Ashcroft’s voice rising in response to questioning from Schumer.
Ashcroft said that he was not exerting executive privilege to withhold the information, noting that only the president can take that action.
The memo from Justice Department lawyers said that international law proscribing torture could be unconstitutional if applied to interrogations conducted by U.S. intelligence officers. The lawyers also said the doctrine of national self-defense and necessity might also eliminate a U.S. torturer’s legal liability.
Ashcroft said, however, that he and, more important, the president opposed the use of torture and that the White House had issued a directive that prisoners be treated humanely.
But the Democrats want the memo, and several said a sworn witness could be held in contempt of Congress for withholding information unless there was an invocation of executive privilege or citation of a law that prohibited the sharing of such information with Congress.
“The law is very clear,” said Durbin. “You have two options when you [ignore] this committee. Either the executive claims privilege and refuses to disclose or you site a statutory provision whereby Congress has limited its constitutional right to information.”
Democrats said Ashcroft’s advice to President Bush and other administration officials was not given at a personal meeting but in an extensive legal memo — one so comprehensive that it was more akin to a policy than to advice.
A Democratic Senate aide said that a U.S. attorney could file a contempt-of-Congress complaint against Ashcroft. But that would be extremely unlikely, as all federal attorneys general answer to Ashcroft.
The aide said Democrats would exhaust all options to extract the information from the Department of Justice, including voting to subpoena Ashcroft, before attempting to hold him in contempt.
“That’s a very serious step, to hold a Cabinet official in contempt,” said the aide. “There would be an attempt to subpoena [first].”
Republicans on the committee such as Sens. Orrin Hatch (Utah), the chairman, Jeff Sessions (Ala.) and Jon Kyl (Ariz.) rallied behind Ashcroft, arguing that releasing the document to the public would subject it to being misconstrued by the media.
“One piece of it gets out in the public and it is assumed or portrayed as the totality of the advice or your conclusion or the decision that the president made,” Kyl said.
“It does seem to me that the question here is not the issue of what a particular memo may or may not have said … but what the president’s policy is. My understanding is that the president’s decisions and directions are in accordance with law and accordance with Constitution, and for me that’s the ultimate answer here.”
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