Ashcroft: Most Courts Don't Operate that Way

This is a partial transcript from "Hannity & Colmes", April 19, 2004, that has been edited for clarity.

SEAN HANNITY, CO-HOST: Mr. Attorney General, welcome back to the program. Good to see you again.

JOHN ASHCROFT, ATTORNEY GENERAL: It's great to be with you, Sean. Glad to be back with you.

HANNITY: Now how are you feeling? You've had some health problems, but as I understand you're feeling much better?

ASHCROFT: Getting stronger. Getting stronger, and I'm going to make it all the way back.

HANNITY: Before we get into the specifics of Jamie Gorelick's response to you and some of the incredible things you said when testifying before the 9/11 commission, I want to ask you specifically about some of the comments that Condoleezza Rice made yesterday when talking about the opportunity for terrorists to try and influence our elections.

She said it would be too good for them to pass up. And we have to take very seriously the thought that the terrorists might have learned the wrong lesson from Spain.

Do we really need to be concerned about this?

ASHCROFT: Well, I think we need to be concerned about terrorists all the time.

If you look around the world, terrorists are striking wherever and whenever they can. They are proliferating their attacks. They tend to use homegrown operations.

The kinds of operations that appear to have been successful for terrorists in Madrid are the kind that we've been working to curtail. And I believe that they want to strike whenever and wherever they can.

Now, they may have seen a relationship between their attacks and what they perceive to be an impact on the election in Madrid, but there are elections, frankly, in a variety of countries around the world.

We simply have to be focused always against this terrorist threat, and it could be that they have special intensity that's related to elections. But my view is that they want to hit us wherever and whenever they can.

HANNITY: Do you think specifically they might have learned from the elections in Spain, thinking that they could influence the American electoral process?

ASHCROFT: Well, if they did, I think they'd have made a mistake. I don't think the American people would respond in any way to be demoralized by an attack.

The American people's will was galvanized on 9/11. It remains galvanized. And it would be galvanized by an additional attack. Americans are not about to weaken in the face of an attack from terrorists.

They call us the Great Satan. It's not because they think that's a term of endearment. They'd rather attack us and be successful here than anywhere. And that's why we need to continue to be persistent.

That's why the Patriot Act, it's so important that it be -- that it be -- that the sunset for the Patriot Act be the subject of legislation which makes the Patriot Act permanent. And that's why the president is talking about that today in Hershey, Pennsylvania.

HANNITY: You had some incredible words before the 9/11 commission. I'll remind you of what you said. You said, "We did not know an attack was coming because for nearly a decade our government had blinded itself to its enemies. Our agents were isolated by government-imposed walls, handcuffed by government-imposed restrictions, and starved for basic information technology. The old national intelligence system in place on September 11 was destined to fail."

ASHCROFT: Well, obviously, there are a number of things. The rules for communication between intelligence officials and law enforcement officials built, basically, a wall between the two.

So you had these Almihdnar and Alhazmi, two of the ultimate hijackers who rode those planes into the disaster on 9/11. They were in the United States. They were known to be in the United States. But certain of the individuals were forbidden to be a part of the search for them, because they were on the wrong side of this wall between intelligence and law enforcement.

One of those agents wrote a memorandum saying someday someone will die because of this wall. I think it's pretty clear that that wall was a counterproductive wall. It was one that the FISA court when the court of appeals for foreign intelligence surveillance finally acted several years later, the FISA court recognized the existence of the wall, said it was really unnecessary and it is unnecessary.

It's one of the things that the Patriot Act did was to take that wall down. We need the Patriot Act to be reauthorized without sunsets, so that we have the full range of capacity to thwart terrorism in the United States.

HANNITY: As it relates to this testimony, as you now know, Jamie, writing in the "Washington Post," has responded in part to your testimony. Let me read part of it to you.

She said that you had asserted that the single greatest structural cause for September 11,was the wall that separated criminal investigations and intelligence agencies and agents, and that that 'I built that wall through a March 1995 memo.' She said that simply is not true.

HANNITY: Would you like to respond to her?

ASHCROFT: Well, the FISA or the Foreign Intelligence Surveillance court of Appeals focuses on the guidelines promulgated while she was Deputy Attorney general in 1995.

Those guidelines came out about several months after her memorandum, which specifically set up this procedure for communications or for the absence of communications between the law enforcement community and the intelligence community.

Now, her memo referred to a specific case. And it was the case of the largest terrorist -- international terrorist attack in the history of the United States up until that date. Of course, it was before September 11.

ASHCROFT: Her memo said the kind of restraint between law enforcement and intelligence officials in terms of communication -- her memo said it was a restraint that even the law didn't impose, but she wanted a greater restraint for appearance's sake.

It's pretty hard for me to believe that there wasn't a wall there. The foreign intelligence surveillance court of appeals recognized that time frame in 1995 and the Justice Department as the time frame in which the wall was really crystallized and formalized.

And it's the kind of thing that affected the behavior of law enforcement and intelligence officials. Not just in the FBI but in the CIA, is well.

In testimony before the 9/11 commission. It's pretty substantial, included in the reports, the preliminary reports issued by the 9/11 commission, testimony of individuals, saying that the wall simply precluded. She kept them from speaking to each other.

HANNITY: She basically goes back. So she accuses your own deputy journal of reaffirming the guidelines on August 6, 2001 and concludes.

But your own department had endorsed those old guidelines at this pivotal time. Rather than get, you know, into a discussion about tit for tat, which I think a big part of this commission has become, does the fact that Jamie Gorelick is going to be sitting on the wrong side of the table, that she clearly ought to be answering questions, not asking them?

ASHCROFT: Well, you know, the commission has to decide for itself what its standards are going to be and whether it's going to have individuals sitting in judgment on conduct which they themselves -- of which they themselves were a part. And that's for the commission to decide.

My own view is that when commissioners get involved in the debate, that they are a part of a witness structure. They're just not sworn in the same way that others are.

When I went before the commission, I had to raise my hand as swear to tell the truth, the whole truth and nothing but the truth. But when the debate then gets carried on by commissioners in the newspaper and on television shows like your show and other shows.

It's almost as if a judge during some kind of an adjudicated proceeding decides to leave the courtroom and become a part of the discussion about the case, evaluating the evidence, even contributing the evidence into the public discussion and debate about the case and then to resume their position on the bench.

Most courts don't operate that way, but whether or not this commission wants to operate that way or not, that's up to this commission to make its own decisions.

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