"I am refusing to disclose these memos"

Transcript: Ashcroft Comments on Anti-Terror Policy Memos
8 June 2004, Washington Post

At a recent Senate Judiciary Committee hearing... Ashcroft said he would not discuss the contents of the Justice and Pentagon memos or turn them over to the committees


DURBIN: ... Mr. Attorney General, you've said you won't disclose these memos -- and I'll get to the point in a moment -- but I can tell you, frankly, contents of the memos have already been disclosed for the world to see.

And the contents of the memos call into question your statement that it's not your job or the job of this administration to define torture.

Here is a memo by your assistant attorney general, Jay Bybee, quoted in this morning's paper, which defines torture as, quote, "must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function or even death."

Another memo which you will not disclose, but has been leaked, and is quoted this morning, talks about seven techniques that the courts have considered torture.

The memo goes on to say, "While we cannot say with certainty that the acts falling short of these seven would not constitute torture, we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law."

Mr. Attorney General, if that isn't a definition of torture, coming straight out of your department, by the people who answer to you, what is it?

And here's the problem we have. You have said that you're not claiming executive privilege; that's for the president to claim. But the law's very clear: you have two options when you say no to this committee: Either the executive claims privilege and refuses to disclose, or you cite a statutory provision whereby Congress has limited its constitutional right to information.

So which is it, Mr. Attorney General? Is it executive privilege, or which statute are you claiming is going to shield you from making this disclosure of these memos at this point?

ASHCROFT: Thank you for your remarks.

First of all, let me agree with you as it relates to the value of the Constitution both at war and at peace. I couldn't agree more heartedly with you that the Constitution is controlling. And I would never suggest that we absent ourselves from a consideration of and adherence to and complete compliance to the Constitution of the United States.

And if there is any way in which I have suggested in my remarks today that we wouldn't do that, I want to take this opportunity to make it very clear that the Constitution of the United States is controlling in every circumstance and is never to be disregarded.


DURBIN: I respect that.

But under which standard are you denying this committee the memos, either executive privilege or a specific statutory authority created by Congress exempting your constitutional responsibility to disclose? Under which are you refusing to disclose these memos?

ASHCROFT: I am refusing to disclose these memos because I believe it is essential to the operation of the executive branch that the president have the opportunity to get information from his attorney general that is confidential and that the responsibility to do that is a function of the executive branch and a necessity that is protected by the doctrine of the separation of powers in the Constitution.

And for that reason -- and that is the reason for which I have not delivered to the Congress or the members of the Senate these memos, any memos.

DURBIN: Sir, Attorney General, with all due respect, your personal belief is not a law, and you are not citing a law and you are not claiming executive privilege. And, frankly, that is what contempt of Congress is all about.

You have to give us a specific legal authority which gives you the right to say no or the president has to claim privilege. And you've done neither.

I think this committee has a responsibility to move forward on this.

HATCH: Are these memos classified?

Is this a sidebar conference on something the attorney general has so authoritatively stated his position on?

ASHCROFT: I'll tell you: This is me getting advice which will remain confidential.

HATCH: Well, I know. But the attorney general has been speaking about these memos so authoritatively that you ought to be able to at least say whether they are classified or not.

ASHCROFT: I have answered your questions. The committee has not made a decision to ask for these memos.

DURBIN: No, but the chairman asked you a specific question. Are these memos classified?

ASHCROFT: Some of these memos may be classified in some ways for some purposes.

ASHCROFT: I don't know. I don't...

DURBIN: Mr. Attorney General, with all due respect, that is a complete evasion. What you have done is refuse to cite a statutory basis for disclosing these memos, refused to claim executive privilege, and now suggest that some parts of these may be classified.

Mr. Chairman, I hope we take this up very seriously because I think it gets to the heart of our relationship. The attorney general is an occasional guest here, and we're glad to have him.

But I think to come here and basically tell us that we cannot see documents from your department on the basis of which you've said this morning is not fair and not consistent with our Constitution.

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