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.