Exclusive: Ashcroft Defends Patriot Act

U.S. Attorney General John Ashcroft has been on a nationwide tour to promote the Patriot Act, a controversial counterterrorism law. Ashcroft sat down with ABCNEWS' Peter Jennings for an exclusive interview to discuss, in part, whether the Bush administration is sacrificing liberty for greater security.

The following is a transcript of the interview.

PETER JENNINGS: You've been in a number of places deeply associated with American history, and Federal Hall in New York today, deeply associated with the Bill of Rights. Does it make you think more deeply about this trip?

JOHN ASHCROFT: It's sobering to be where the individuals who crafted this framework of freedom did some of their very best work. And I'm one of those believers that it was a unique set of circumstances, providential in history that great minds of individuals who understood the balances that were necessarily for a society assembled the Bill of Rights, the Constitution. So, it's humbling. And obviously it causes you to think carefully about our responsibilities to both defend and sustain the, the framework of freedom.

JENNINGS: In every place that you have been on this trip you've been talking about the Patriot Act. I wonder if you felt a need to go on the road to defend it.

ASHCROFT: Well, I think there were misconceptions about it. And people need to understand what it does, and how important it is for the survival of our society. That we are taking these tools that have been available against organized crime and drugs, enterprises for a long time, we were, in the Patriot Act, making them available to the fight against terror. And so far I think it's helped for people to understand that a roving wiretap which was authorized for use against drug dealers in 1986 hadn't been available for use in the same robust way against terror, and the Patriot Act makes that ability to follow a terrorist in surveillance, even when he throw away phones and gets new ones, we're going to have to back to court to get a new order because he switches from one cell phone to another.

JENNINGS: I'd like to talk about the Patriot Act in some detail in a minute. But, in terms of your trip, you appear on many of these stops to have been talking to audiences which were already in your camp. They have been closed to the public. There has not been any real opportunity for you to interact with your critics. Do you think that's a good thing? Do you miss that opportunity?

ASHCROFT: Well, we provided a broad range of opportunities to discuss the Patriot Act. Each of our U.S. attorneys has a plan for things like town hall meetings and the like. My role was to be a part of thanking the anchor team of preventing terror, law enforcement communities. And I've been appearing with the law enforcement communities, and providing the thanks to them, and the motivation to them, and the explanation of the Patriot Act to that community.

JENNINGS: You apparently do not believe the Patriot Act has gone far enough. What do you mean?

ASHCROFT: Well, I think there are some things that we will have to consider as time goes on to improve our performance and to elevate our chance of disrupting terror. For example, there are about 330 areas in American law where you can get information from people, from the enforcement, by the enforcement agency issuing an administrative subpoena. Especially when time is critical they can get information from third parties or things like that by issuing this administrative subpoena. Three hundred and thirty categories. But not for terrorism. Now, I think, some Americans would think, of my 330 priorities for a government being able to act, preventing terrorism somehow gets up into the top 330. And I think that one of the jobs of Congress is always to look at the circumstances and say, how can we improve. Otherwise, the founders would have, a couple hundred years ago, said, these are the laws, that's all that's necessary, and that will be it. But as the terrorist evolves and changes the track of terrorism toward tragedy, inflicting tragedy on the culture, my own sense is that we'll have to look carefully about ways, on a continuing basis, of interrupting, disrupting, preventing terrorism from injuring America like it did on Sept. 11, 2001.

JENNINGS: An unlikely combination, an alliance, almost, of your best allies, and some of your most profound critics think the Patriot Act has gone too far already. How do you react with, when you see this groundswell, in many cases, of opposition to it?

ASHCROFT: Well, first of all, I don't react to it as a groundswell. If you look at the American people, 76 percent of them think we're doing it just right, or we haven't gone far enough. Pardon me, I think it's 74 percent, I don't want to exaggerate.


ASHCROFT: So, three out of four people. Over nine out of 10 people say that there has been no infringement of their liberties at all. And they are people that are decided about it. There are some undecideds among the rest of the individuals. So, there are people, though, that question whether or not the Patriot Act has gone in a way that would interfere with liberties, or be in some way abusive of personal liberties. I don't resent at all people asking those questions. As a matter of fact, a good robust debate about freedom should be part of the ongoing character of American life. I want to provide the answers. I believe that the fact are not only stubborn things, they're our friends in this case. And some of the things that have been elevated as very scary things by those who oppose the Patriot Act are things that have been in the law for decades. The ability, for example, for, in a criminal matter, for a search to be conducted, and under court supervision, the person not told about his facility being searched, for some period of reasonable delay, that was upheld by the United States Supreme Court back in the '70s. And it only happens under careful judicial supervision. So it's safeguarded substantially. And really what happened in the Patriot Act was not that this was created, additional safeguards were place around this kind of conduct in the Patriot Act so that judicially supervised delayed notification could be used as part of the framework for law enforcement in the country.

JENNINGS: But when you, were you, sir, at all surprised to find that so many conservatives, both in the Congress, and in other parts of the country, may not have been a ground swell, I grant you, given the polls, were opposed to the Patriot Act? People you might otherwise have considered very much your allies in this regard?

ASHCROFT: I think there are some individuals who, when they learn the truth about the Patriot Act and the way that it operates, and the redundant supervision it has, I'm talking about the checks against abuse, that uh, they would change their view. Let me say this, that the things that happened under the Patriot Act have case specific judicial supervision by a federal judge. Now, an ordinary subpoena in criminal matters comes out of grand jury in the hands of a prosecutor. A judge, most of the time, never sees it. But, under the Patriot Act, every subpoena comes after a federal judge has ruled on the sufficiency of the information provided to support the subpoena, and also that it's within the appropriate, uh, guidelines relating to liberties.

JENNINGS: Does the federal judge in that case hear any opposition to the subpoena? Or only the government's point of view?

ASHCROFT:The government, the federal judge acts as an evaluator of the case made by the government there.

JENNINGS: Is anybody allowed to argue against it in front of a judge?

ASHCROFT:No, no, this is not a situation where it's an adversarial proceeding. But this is far superior to the safeguards, for instance, that would exist in normal criminal law. But in addition to the fact that you have case specific oversight by a federal judge in every one of those circumstances, Congress provided, in the Patriot Act, that twice a year there would be comprehensive reports by the Justice Department on the Patriot Act activities so that Congress could evaluate whether or not there were abuses. And interestingly enough, the last pronouncement I heard out of the Congress was, after the House Judiciary Committee looked at the, the record of things, they said they could find no evidence of any abuse. That's a pretty clean bill of health. [LAUGHS]

JENNINGS: Do you think that it is patriotic to question the Patriot Act?

ASHCROFT: I think it is. I think it's patriotic to raise questions, to be involved in active debate. I don't question the patriotism of people who ask questions, or who engage in the debate. As I said, I think it's healthy that, especially issues about liberty and freedom, which are the, I think, the foundational components of the American culture, those are good debates to have.

JENNINGS: Do you think there is any potential for abuse?

ASHCROFT: You know, the safeguarding that is provided by the Congress in the Patriot Act is so superior to the safeguarding against abuse in prior enactments that I think it's a very strong situation in favor of protecting civil liberties. The fact that we have to report twice a year on a comprehensive basis to the Congress, I know the Congress is very willing, ready, and able to criticize if we do things inappropriately. The fact that we are overseeing, on a case-specific basis by federal judges whose training and responsibility it is to be sensitive to civil liberties, those are safeguards, one in the judicial branch, one in the legislative branch, to make sure that what we do in our implementation of tools which are regularly used in organized crime and against drugs, when we use them in the terrorist field, that we use them fairly and without abuse.

JENNINGS: If you are so confident that people's civil liberties in the country are being protected, why is it that a majority in the House and a 150-plus cities have all taken exception to elements of the Patriot Act, and in many cases tried to act against it?

ASHCROFT: Well, I think the majority in the House, you must be referring to the Otter Amendment.


ASHCROFT: And that has to do with delayed notification of search warrant. The only thing the Patriot Act did with that was to provide additional safeguards. Most members didn't know anything about that measure when it came up on the floor of the House, hadn't been to committee, some said on the floor, we don't know what we're voting on here, what is this? And frankly, I think that was a mistake on their part, I think they voted in that respect not knowing exactly what was going on, and I don't think that amendment will have any chance of prevailing. It relates to a practice which the Supreme Court has ruled on clearly, and said that the arguments against this practice are frivolous arguments, called them that in the Supreme Court opinion.

JENNINGS: The Patriot Act was passed 45 days after 9/11. Do you think an act that strong would pass today?

ASHCROFT: Well, I believe it would. I believe that the truth be known about this act is that not only would it pass, I think it would perhaps be strengthened in certain ways. There are certain presumptions, for instance, in the law regularly relating to other crimes. For instance, if you have a very serious drug offender, or a person of violent crime, there is a presumption of detention after you charge them awaiting trial. There is no presumption that you detain a terrorist, that's not in the law like it is for drug dealers or other violent criminals. I think the Congress, looking at that carefully, might say, you know, it makes sense, especially when the risk of flight is so great. Now, I have to say, in commendation of the judiciary, they have bound most of these people over. They haven't sent most people out on bail who might be dangerous. But, the law does provide a presumption in the area of violent criminals and drug traffickers frequently, and it doesn't in terrorist. So that, as we progress in our fight against terror, I think there'll be things that come to our attention that we can do to improve our position in fighting against terror. And I think the Congress would be willing to say we ought to take those steps.

JENNINGS: The government has detained excess of five thousand people since 9/11, and only a handful were ultimately charged with terrorism. And not one, if my figures are right, of the 762 cases reviewed by your own inspector general resulted in charges connected to terrorism. There must be something amiss here.

ASHCROFT: No. People who were detained were detained because they violated the law. People who violated the immigration laws can expect to be detained, and they can expect to be deported. There is no agreement in America that people who come to this country as, and immigrate here, come legally or illegally, have a right to violate the rules.

JENNINGS: You think those people have made America a more dangerous place because they violated immigration law?

ASHCROFT: Well, anytime we violate the law, it's the job of those who enforce the law to enforce it. One of the problems is that when individuals violate the immigration law, and they're ordered deported, if they're not detained, they don't leave. The inspector general, in a report a year or so ago said that 87 percent of the people who hadn't been detained pending the adjudication of the claim vanished into the culture when they were ordered deported, and they never could be found. Interesting enough, that those of that group that were related to the state sponsors of terrorism, those individuals had a 93 percent rate of absconding, not leaving the country, but just melding into the culture. Now, I think it's fair for the United States to say that it needs to get its act in order in terms of who's in the country, who's coming, and who's leaving. But it's fair to say to people, if you're going to come to the United States, we need you to abide by the rules. And if you don't abide by the rules, we're going to ask you to be responsible for your behavior, and we may ask you to be detained pending the adjudication of your claim.

JENNINGS: Your inspector general, talking about your inspector general, has said only this week that hundreds of illegal immigrants with no clear ties to terrorism were allowed to languish in custody — his words — because the government did little to establish whether they had any connection to terrorism. Surely you can do better.

ASHCROFT: Well, you know, people were in custody not because of their connection to terrorism necessarily, they had violated the immigration laws. People who violate the laws are subject to being detained, and individuals who aren't detained in that setting, the inspector general has said they just merge back into the culture and get lost. Now, we believe that it's important for us to enforce the law regarding immigration violations and that individuals who are adjudicated to have violated that law and are told to be deported, they need to be available so that we can actually deport them. [LAUGHS]

JENNINGS: Can you do better?

ASHCROFT: Oh, I'm sure we can always do better. And one of the things the inspector general said, that out of the 1,100 complaints about alleged abuses, something less than three dozen he recommended that we look at closely. And we welcomed his report, and we're going to look closely at those. You know, we run a prison system as well, not just for immigration violations, but for other individuals. And ours is not the intention of abusing people. That's not what America is about. And if in our detention of illegal immigrants who have violated the law, or our detention of individuals who have violated the criminal law, if we have been abusive, we're going to take steps to correct it.

JENNINGS: Do you sort of think the country is safer today or is the threat simply more knowable?

ASHCROFT: I think the country is safer, we've inflicted a level of disability on the threat, and part of the disability is that we know more about it. But when you have taken almost two-thirds of the top al Qaeda leadership in the world and disabled them or detained them, you have, uh, reduced the threat. But when you have, uh, passed the Patriot Act to give the authority to have the intelligence community speak with the law enforcement community and assemble information, you have provided information that can help you disrupt the threat. Very frankly, there were times shortly after September the 11th when I would not have bet any sum of money that we could avoid, for two years, another serious attack, and one with some high level of success, launched by our opponents. But, the new Department of Homeland Security, the steps taken to improve our security around the airport, the marginal steps, and some substantial steps, we've taken in regard to immigration and our borders our ability to use our intelligence more effectively, uh, all those tools in the Patriot Act, they have helped us be much safer.

JENNINGS: There are so many reports all the time about weaknesses in the system from shoulder fired missiles, we were talking about earlier today, to the port system, cargo planes, and overextended local law enforcement which you have surely discovered on your trip. What do you think still needs to be done?

ASHCROFT: No, the list of to-be-dones is substantial. We need to make sure that our borders are sufficiently under control so that we know who's coming and who's leaving. And the Congress mandated that in the '90s when I had the privilege of serving in the Senate. And by the year 2005 we have a law that says we shall have a comprehensive entry and exit system which will help us know who's coming and who's stayed, and who's left. That'll be important to us. A number of things about port security, obviously, and these are things that are largely in the domain of Tom Ridge, the secretary of homeland security, but he can talk about the fact that we have a lot of containers coming in to the country, we need to be careful about what comes into the country not only in terms of the human beings that come into the country, but the substances and, uh, devices that might come into the country.

JENNINGS: Are, are Americans right to be afraid? They say in recent polls that they are.

ASHCROFT: Americans are right to respect the potential of terrorist activity. There is no question in my mind there are additional individuals operating within this culture who want to hurt American, and we are working to root out those individuals, and to disrupt their capacity to injure the United States of America. I take that very seriously. I don't choose to live in fear. But I choose to live alertly, and I choose to live with an understanding that we ought to do everything we can to disrupt potential terrorist attacks.

JENNINGS: A personal question. My sense of you is that no matter what you say publicly, that John Ashcroft from Missouri is uncomfortable with being regarded as one of the most divisive public figures in America today.

ASHCROFT: I take no pleasure in anything that I would do ever to divide America. Now, I don't think it divides America to be a part of a debate. But I think great leadership unites people and doesn't divide people. And that's why I'm very pleased to be a part of providing what I consider to be facts and information about a fight that I think should unite us, and that's the fight against terror.

JENNINGS: Based on, on the criteria which you just mentioned, you are not regarded, therefor, as a great leader at the moment. Is that painful to you?

ASHCROFT: Well, I think, I'm delighted that 74 percent of the people in this country say that we're doing just about right, or we're not doing enough, and so they're encouraging us in our operation. Now I don't think takes 100 percent unanimity, I don't think we'll ever find that in America, it's too free a culture, and we want it to be that kind of a free culture. But, we want to help people understand very clearly what the facts are. You know, democracies are a little bit like computers. You put in the wrong facts, you'll get out the wrong answers. Garbage in, garbage out. We need for the people to be aware of what the facts are, what the circumstances are, what the character of this law is, and then let people debate it, and we'll be a part of that debate, and a part of that national discussion, which is something I have the pleasure of doing now. And but we think these facts are very friendly to the future of America by helping us thwart terrorism. And they're friendly to freedom by securing the liberty that that we have in a respectful way.

JENNINGS: One of the members of your staff said you're more concerned about the judgment of history than opportunists on either side of this great debate about the Patriot Act and civil liberties. What do you mean by opportunists?

ASHCROFT: Well, I don't know what he would mean by that. The truth of the matter is, I'm more concerned about the judgement of eternity. When I look in the mirror, I want to be able to think that in the presence and in the sight of God I will have done my utmost to serve this country with honesty and integrity. That, that's the most important thing.

JENNINGS: When things get rough for you in this job, does your faith make a great deal of difference to you?

JOHN ASHCROFT: My faith does make a great deal of difference to me, and I, I literally ask for God's help and blessing upon myself and upon America every day.

JENNINGS: Speaking of differences, I'd like to talk a little bit about Jose Padilla. He's an American citizen, born in the Bronx, picked up in Chicago, held in an American prison, and now he is neither charged, nor allowed to see a lawyer. Why not? It seems the most basic of American instincts.

ASHCROFT: Well, he's not a person detained under the article three judicial process of the country. He is detained as an enemy combatant. And at time of war, individuals have been subject to detention as enemy combatants in virtually every war in history. This is a rarely used situation, because this administration is so respectful of the liberties of Americans. But, in the second world war when there were American citizens who were captures on the battlefield, they were held as detained individuals, as enemy combatants, and we don't allow prisoners of war to have lawyers or otherwise. And when the circumstance of the, of the combat is over, then it's time to resolve those situations. But for persons who are part of a war against the United States, we don't treat them as we do individuals who are part of the criminal justice system in the United States, never have. Second World War when Americans were participants with the Germans who came into the United States to blow up some of our infrastructure, they were detained as enemy combatants, and literally they were then tried in tribunals, and were executed.

JENNINGS: They had lawyers.

ASHCROFT: They did.

JENNINGS: Isn't that the most, is there anything more American than having access to a lawyer?

ASHCROFT: Let me just say this, I think when charged, and when a person is going to be adjudicated, his innocence or guilt, he has a right to a lawyer. But, individuals taken in combat are not individuals who have charges made against them, pending the outcome of the combat they are held as detainees of the combat. This is a prisoner of war type situation. We've had in virtually all of our wars, think of the chaos that would be provided in war if every person that was taken in the war was provided with a lawyer and given some opportunity to argue.

JENNINGS: Well, speaking of the law, sir, there is no declared act of war against terrorism. The Congress has not decided the country is at war against terrorism. I agree we all call it that. Other people call it a struggle, a challenge —

ASHCROFT: Congress did authorize the president to use whatever force was necessary, including the military, in his effort to respond, to defend America here. And I think all of us can see that we are at war with the terrorists.

JENNINGS: I would agree with you, but I bring it up because you compare it to World War II, which, in legal terms, was, was considerably different. But doesn't the Bill of Rights, for a man like Padilla apply really in two ways? First of all, it protects the individual. But doesn't it also give you a chance to make sure we have the right person? Without legal contests, or a legal challenge, or a legal opportunity, how do you do that?

ASHCROFT: Well, we have been very careful in what we do, and in advising the president on his authority as the person who defends the country in time of war. And I believe he's made good decisions in that respect. The courts have upheld the power of presidents to act to defend the country in time of war in settings like this, and in circumstances like this. And you know that in the Second World War, and I go back to that example, the Supreme Court reviewed a habeas, petitions in that respect. And there have been challenges in this respect during this situation, and the courts have upheld this president's authority, understanding that it's necessary in time of conflict and war for the president to be able to act in defense of the nation.

JENNINGS: Again, I stay with Padilla for just a second. John Walker was able to have a trial in a civilian court, captured on the battlefield. Jose Padilla, also American, born in the Bronx, captured in the country, not allowed. I still don't get it, and I think a lot of people don't get it.

ASHCROFT: Well, you know, there are, these are not necessarily mutually exclusive. The mere fact that a person is an enemy combatant doesn't mean he hasn't committed a crime against the United States. So, there are times when it will be in the national interest to move forward under article three, which is the right of an American system to adjudicate the innocence or guilt of criminal charges, and we did that against John Walker Lindh, the so-called American Taliban. There will be times when the president of the United States has, under Article Two of the Constitution, in his responsibility to defend the country in times of war, he has the right and responsibility to do that. And a judgment has to be made as to the national interest, and those are serious judgments, I will concede. I think this president has done an excellent job in making those judgements, and all presidents have had to do that.

JENNINGS: Do you generally believe that we should all in the country then simply trust you and the president to make the right decisions, and that there should not necessarily be an opportunity to contest these under the constitutional umbrella?

ASHCROFT: Well, the framework, uh, has provided certain kinds of opportunities for contest. And these items have been litigated. The 4th Circuit Court of Appeals has most recently ruled on the enemy combatant standing of individuals, and has ruled that the president's authority was exercised within the framework of our Constitution. Now, whether there'll be an appeal of that most recent ruling, I don't know. I don't think one has been filed, filed at this time. But, so there are certain opportunities for a challenge of presidential exercise of authority here. And when the courts most recently have reviewed those exercises, it's pretty clear to me that they have, uh, said the president exercised his authority within the framework of freedom defined by the Constitution.

JENNINGS: Given the quality and the intensity of the debate about your role in protecting the country, what sort of shape do you think the country is in?

ASHCROFT: I think America is strong. I think the American people are committed and dedicated to the freedoms which we enjoy. They understand how valuable they are. And they expect us to defend those freedoms by being aggressive in the war against terror.

JENNINGS: Do you think that the system is fail-safe?

ASHCROFT: Uh, I think we probably have more safeguards to defend this country against abuses of freedom than we have had at any time in history. And that we have more than any other country has. And I think if we understand that it has risks, we'd do a better job than if we think it's fail safe. I don't believe we ever should say that, well, we've got this thing in perfect condition, so we don't have to listen to our critics, we don't have to be sensitive to people who have suggestions. I think we should always operate with an understanding that what we are doing is so vitally important, and it represents the unique situation in the world. America leads the world in liberty, that we should do so very tenderly. But I don't think we should turn our backs on our national security lightly. And we should be, I think, very aggressive in pursuing those who seek to destroy this sometimes fragile system of liberty in which we live.

JENNINGS: Do you think these portraits of you, uh, abusing power, seeking power, relentlessly exercising individual power, are caricatures?




JENNINGS: Precisely.

ASHCROFT: [LAUGHS] People are free to say and do about me anything they choose to.

JENNINGS: Of course they are, but do you think? Analyze them for us.

ASHCROFT: I think they miss the mark here. I am very concerned about freedoms. I always have been. My heritage has been one that has been focused on the liberties of individuals. And I will continue to have those concerns. And the reason I'm as ardent as I am about prosecuting the war on terror is that terror is the number one threat to our freedoms. And I believe that securing liberty through an aggressive fight against terror, within the limits of the Constitution, that's the best way for us to have and sustain freedom.

JENNINGS: Do you ever have, uh, do you ever have second thoughts?

ASHCROFT: I ask myself to doubt myself all the time. And I ask my staff, are we sure here? Let's go back over this. Let's rehearse this. Let's make sure we're doing everything we can to achieve all of our objectives. If we have an objective in addition to the objective of disrupting terror, we have the objective of sustaining freedom, and we want to make sure that when we conduct ourselves, we do so in a way that reaches both of those objectives. Because the main reason to disrupt terror is to secure liberty.