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Transcript: John Ashcroft on Fox News Sunday

The following is a transcribed excerpt from "Fox News Sunday," Aug. 3, 2003.

HUME: I'm Brit Hume in for Tony Snow, and this is "Fox News Sunday."

Al Qaeda in America: Are terrorist sleeper cells preparing new attacks? We'll ask Attorney General John Ashcroft (search).

Same sex marriage: President Bush speaks out on who can say "I do."

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: I believe a marriage is between a man and a woman.

(END VIDEO CLIP)

HUME: Should marriage between men and women only be the law of the land? We'll talk with Senator Rick Santorum. And from the Human Rights Campaign Elizabeth Birch.

Plus, our power panel: Fred Barnes, Mara Liasson, Charles Krauthammer and Juan Williams.

This is the August 3rd edition of "Fox News Sunday."

Good morning from Fox News in Washington. We'll talk with our guests after a look at the headlines.

A new audio tape, purportedly from Usama bin Laden (search)'s top deputy, warns the United States not to harm terror detainees at Guantanamo Bay. Ayman al-Zawahiri (search) says on the tape that America will pay dearly if the prisoners are hurt and that the U.S. should expect more attacks.

Meanwhile, the State Department announced it is closing two loopholes that would have allowed terrorists to elude checkpoints and to gain access to flights in the United States. The just-suspended program gave foreign travelers without visas the option to change planes in American airports.

And President Charles Taylor of Liberia announced he will step down one week from tomorrow. Taylor, however, made a point of not saying when he will depart the country. Participation by the U.S. military in a peacekeeping force has been contingent on Taylor leaving Liberia.

On Wednesday, President Bush cited fresh intelligence that indicated Al Qaeda operatives may be planning new terror attacks. The president, though, expressed confidence that any attempts would be thwarted.

In our latest Fox News/Opinion Dynamics poll, an overwhelming majority believed Al Qaeda operatives are in the U.S. Meanwhile, 57 percent think the government is not doing enough to secure the country's borders.

On a second front, the Patriot Act, although permitting the government wider authority to use wiretaps and other means of surveillance, is thought to be a good thing by a clear majority surveyed in our poll, though it has come under bipartisan attacks in Congress.

Here to cover these topics and more is Attorney General John Ashcroft.

Good morning, welcome to you, sir.

ASHCROFT: Glad to be with you.

HUME: First of all, let's deal with these Al Qaeda threats that have been cited this week. I guess there's a continuing issue of sleeper cells and then the threat that the president was talking to had to do with, again, the use of jetliners. What do you know about the state of those threats?

ASHCROFT: Well, first of all, we believe that Al Qaeda continues to exist; that it continues to aspire to do great injury ...

HUME: Exist in this country?

ASHCROFT: We believe that Al Qaeda associates are involved in America. I think the American people understand that we're always conscious of the potential presence and activity of individuals who would hurt us from within the country. It's not just individuals who might transit the country, although we believe that that is also a threat.

HUME: What about the transiting threat? I assume that's what the president was being asked about and was talking about. What is that? What has been done about it? Where does it stand?

ASHCROFT: Well, it -- for a long time, individuals who were on through-flights -- a flight that would land in the United States -- say, it would come from Western Europe, land in the United States, then take off again, perhaps for a South American destination -- now, that person, in many respects, wasn't required to have a visa for the United States ...

HUME: Right.

ASHCROFT: ... because he was just on the ground while the plane landed, carried from one gate to another, under some kind of supervision, and then leaving the country.

It's understood that that could be a threatening circumstance. For instance, if an individual, upon the takeoff of the plane from the United States to the destination in another setting, would command the plane and divert it, it could have the same kind of impact as you had in the disastrous 9/11 circumstance.

So, additional steps have been taken to curtail the potential that something like that would take place.

HUME: And that's what the State Department, I presume, did with the visa issue.

ASHCROFT: It was called transit without visa. You could go through the United States, a limited time frame, under certain guarded and restricted circumstances, and then go on.

But it's been abandoned, in some measure, because we believe that the security threat, obviously, is one which merits taking that potential out of the equation.

HUME: Well, do you now believe that that particular threat, then, has been, if not eliminated, greatly diminished?

ASHCROFT: Well, we believe it's been diminished. We wouldn't take the step if we didn't think it diminishes the threat.

I believe air travel is safe. My family and I are going to be traveling during the month of August on commercial aviation. We expect to be safe in doing so.

But the fact that the president raised this and the potential of a focus by Al Qaeda on air travel indicates that we're going to take special care to make sure that it's as safe as it can possibly be.

HUME: Let me take you back to Al Qaeda. How extensive is the Al Qaeda penetration in this country and -- with sleeper cells or whatever other assets you believe they may have?

ASHCROFT: Well, we continue to find individuals who have associations to Al Qaeda and Al Qaeda leadership. And one individual, Iman Faris (ph), who was discovered in Ohio just this spring, was an example, that he has pled in regard to certain activities here.

HUME: What did you find out from him?

ASHCROFT: Well, we just found out that he had agreed to surveil follow-on targets, and to be involved in other potential attacks, or at least to do preliminary work that would relate to the potential of follow-on attacks. Other individuals in that same category of circumstances have been detained or disrupted, and we're going to continue to do that.

And the alleged statement -- we haven't authenticated it -- by Zawahiri, this morning signals that at least of that's a ...

HUME: What's new in that?

ASHCROFT: Well, there's an irony in this statement. He says, "If you would harm anybody in Al Qaeda, we will do great damage to the United States." Well, it's a little bit ironic to say that they would wait until we did something to one of them before they would do damage to the United States.

They did great damage to the United States on 9/11: 3,000 people destroyed, lives destroyed all across the United States as a result of the attacks on New York and on Washington and, of course, the plane attack in -- the plane that went down in Pennsylvania.

The point is, there was a more or less veiled threat here that if the adjudication of prisoner and war crimes as a result of the detainees were not in some way modified, that they would strike us.

I believe Al Qaeda wants to strike us. I believe they want to strike us whenever and wherever they can. I believe we've disrupted dozens and dozens and dozens -- over 100 terrorist-related attacks around the world since 9/11.

And so perhaps there's not a whole lot that's new. It reveals the hypocrisy of an organization that says if, you know, "that military tribunal may not be a good enough adjudicative measure, and therefore if you have ..."

HUME: "We're going to do to you what we're going to do to you anyway."

ASHCROFT: Yes, more or less.

HUME: Nonetheless, despite all the efforts you've made, should the American people expect and believe, and do you believe, that we're going to get hit again?

ASHCROFT: Well, I believe that the potential for us to be hit again is a very real potential. And the kinds of efforts that we're making, the kinds of information we're sharing with the American people, signal that we believe that there is such a potential, but that we minimize the potential whenever we're alert.

The reason for giving an alert is that you're saying to people, "If we are alert, and if we take the right steps, we drive down the risk." And acting as if there is no risk elevates the risk.

HUME: Well, there's been a lot of talk this week: sleeper cells, Al Qaeda, the president mentioning it. Is there any contemplation being given now to raising the terrorist threat level?

ASHCROFT: Well, there really is an elevated awareness on the part of the American people.

HUME: Well, that's the name of it right now, elevated, right? But, I mean, he's thinking about notching it up one more time?

ASHCROFT: Those -- what I want to say is that because the nature of the intelligence seemed to be focused, rather than have an increased risk level generally, information was shared with the American people related to the specificity of the risks that appeared to be more redundant, more repetitive in the intelligence community, and more corroborated.

And it's with that in mind that this is not a generally higher risk category, but as it related to a specific area, primarily international air travel, the transit-without-visa-type stops in the United States, et cetera, we thought we'd better do what we could to minimize that risk by elevating the level of alert in that ...

HUME: Narrow area?

ASHCROFT: ... narrow area.

HUME: All right, now, let's talk a little bit about the Patriot Act, which, while as our poll -- we said it earlier -- indicates, enjoys considerable public support, you had the ACLU filing a lawsuit, as the ACLU will do.

ASHCROFT: What?

HUME: You had a measure in Congress pass the House by a considerable margin, 309 to 118, to cut off the funding for an element of the Patriot Act.

ASHCROFT: Let me clarify that just a minute. The so-called Otter amendment cuts off funding for an ability to conduct a search and delay notifying the parties searched.

HUME: This is the so-called sneak-and-peek provision, correct?

ASHCROFT: It's called a delayed notification.

See, this has been available in the law prior to the Patriot Act. It's really not a part of just Patriot, this is a part of our law enforcement, been there for long years. It's been something we use frequently in narcotics investigations.

HUME: So why did they need it in the Patriot Act?

ASHCROFT: Well, for the same reason.

I'll give you an example in narcotics. Last week we -- the Zambada Garcia (ph) case, we had 230 arrests in a major drug bust.

HUME: Right.

ASHCROFT: Well, we couldn't have arrested all 230 if there was a lot of publicity about the first item that we did. We needed to stage the arrests and stage the operations so that we could make all of the arrests.

Sometimes it's necessary to do that in the area of terrorism.

It's important to note that a delayed notification is always done under the supervision of a federal judge. And what the Patriot Act did was not to invent this as a technique, or not even to make it available for the first time in cases that might relate to terror. It simply said that there are little differences in the rules around the country, and they should be made uniform.

HUME: Because of the differing opinions from circuit judges, circuit courts and put on appeals ...

ASHCROFT: Absolutely. You're right on target. The different circuit courts of appeals.

And oddly enough, the codification of the delayed notification that was included in the Patriot Act comes from the 9th Circuit, which is perhaps the most liberal circuit in the United States.

So there is misinformation, misunderstanding about the Patriot Act. The American people get it pretty well. They know that you can't tell the entire conspiracy about the fact that you're going to do one little thing here without missing a chance to wrap up a bigger picture.

HUME: But that was a pretty overwhelming vote in the House to cut off funding for the use of that. Are you concerned that it might sail through the Senate? Will the president veto? Are you recommending a veto or what?

ASHCROFT: I certainly don't believe it will sail through the Senate. I think the Senate understands it very well.

You know the Patriot Act was passed 98 to 1 in the Senate. It was passed about a 5-to-1 margin -- 5.4-to-1 my people tell me -- in the House. Senator Edwards has indicated that it was the kind of thing that needed to get the barriers down. Joe Biden said it was crazy to have authorities that you could use against organized crime and drug dealers that you couldn't use against terrorists.

And when it all comes down, I believe not only will they want to sustain the Patriot Act, but we'll probably need to add some more tools in our tool kit against terror, which already exists against drugs and health care fraud.

HUME: Which tools would they be in follow-on legislation, the Patriot Act II, as it might be called? What do you ...

ASHCROFT: Well, I wouldn't call it Patriot Act II, but I would just say this: There are, for example, 330 areas, like health care fraud or things like that, nursing home fraud, where you can demand records on the basis of an administrative subpoena from administrative agencies in the United States.

HUME: No judge?

ASHCROFT: You don't have to go before a judge to do it. These are not necessarily -- these are business records.

HUME: These are regulated areas, though.

ASHCROFT: Yes.

HUME: You're talking about doing this under regulatory power, correct?

ASHCROFT: In some of those areas. In others, circumstances vary.

It seems to me that anti-terrorism is not below the 330th priority in our culture, that some -- let me give you an example.

Shortly after -- in the hours after 9/11 we wanted to get some business records from a hotel to find out whether people had stayed there. This is not something protected by the privacy laws or it's not going into someone's home, it's a business record; the Supreme Court has said there's no expectation of privacy.

HUME: And?

ASHCROFT: And we weren't able to do it without convening a grand jury and getting a grand jury subpoena. Whereas an administrative subpoena would provide a basis for getting that done.

HUME: So what else would you be thinking about including?

ASHCROFT: Well, there are a wide variety of things.

HUME: Well ...

ASHCROFT: Let me give you an example. A serious drug criminal is presumed to be detained while his trial is going on or pending trial. A terrorist, there is no presumption of detention.

Now very frankly, it's a bad thing if there are more drug dealers on the street. And I think they should be detained if they're involved in serious drug trafficking. If those are the charges, they ought to be detained pending adjudication.

But I think it's very serious to think that we don't presume the detention of individuals whose intent it is to kill as many Americans as is possible or is to destroy the culture.

HUME: Let me ask you about a particular case that I think has troubled some people: Jose Padilla. An American citizen, captured on American soil, held now for however many months it's been, unable to talk to lawyers. And a lot of people look at that and say, "If I'm an American citizen, that shouldn't happen to me."

What do you say to that?

ASHCROFT: Well, first of all, he's not held in the judicial system. He's held as an enemy combatant. And he was ...

HUME: I understand that, but, I mean, someone could -- presumably someone less scrupulous than I'm sure you feel this administration is being could pick me up and hold me as an enemy combatant, could he not?

ASHCROFT: Well, I don't think there's any basis for doing that. I ...

HUME: Well, I understand that, but, I mean, who would decide? There would be no judge involved, there's no review here. It seems like a very -- a power that would be subject to abuse. Wouldn't you agree?

ASHCROFT: Well, the law on enemy combatants includes a petition for habeas corpus, but the -- and the court in the Kerran (ph) case indicated that it would entertain habeas corpus jurisdiction to determine if there was any basis upon which the claim could be made for enemy combatant status.

This has happened in less than a handful of people. I think there are three individuals who have been detained in the United States as enemy combatants, and they weren't necessarily apprehended in the United States.

This is really the business of deciding, if someone is fighting against you, do you have the right to detain them as part of the military operation to resist the fight?

When a person is detained as an enemy combatant, that's similar to being detained as a prisoner of war. And if you happen to be fighting on the United States' soil against the United States, you shouldn't have any more significant rights than if you're fighting against the United States in Afghanistan or somewhere else.

HUME: When will we -- when may we see the introduction or request in Congress for amendments to strengthen, in your view, the Patriot Act?

ASHCROFT: Well, I think there are already, in the Congress, people who are filing measures.

HUME: Will you be presenting something from the department? I mean, from the administration?

ASHCROFT: We are considering a variety of measures. And those measures, I think, obviously, to be helpful to us, would have to be available to the Congress in the near term.

HUME: Let me ask you just -- last question here -- your views on gay marriage. The question of a constitutional amendment has been raised. You got two state courts -- supreme courts potentially ruling that gay marriage would be a constitutional right within their jurisdictions.

What is your view of the proper response to that? And what do you -- I know that the president has his lawyers working on it. I assume you're one of them.

ASHCROFT: Well, first of all, what I do for the president as his lawyer, I communicate to him.

I agree with the president on this issue. I think he stated his position clearly. We are exploring a variety of alternatives. They might be ...

HUME: Does what you do depend on what those courts do?

ASHCROFT: I think it doesn't automatically depend, but what the courts do might have a significant influence on what is thought to be, perhaps, necessary.

Don't forget that in 1996, President Clinton signed into law the Defense of Marriage Act, which said that marriage is a union between a man and a woman, and defined the way in which states would respect each other's marriages.

HUME: Short of gay marriage, would you recommend, or do you believe the administration should oppose or support the concept of civil unions?

ASHCROFT: Well, that's a very complex question that I'm not going to make a recommendation on. We're doing research on that now. Whether or not it affects the legal standing of such unions federally, or whether or not it would affect it in state settings and the like, provides a variety of jurisdictions with those cross-currents.

We're studying the issue to be prepared to respond, so that if there are either court decisions or other eventualities, we would be prepared to provide advice to the president and the administration.

HUME: Attorney General John Ashcroft, a pleasure to have you, sir. Thank you for coming.

ASHCROFT: Thank you.

HUME: Next stop, as you've just heard, is discussing the question: Is traditional marriage under attack? We'll be right back.