-------------------------------------------------------------------------------- ---------------------- DEPARTMENT OF JUSTICE STATEMENTS ------------------------ -------------------------------------------------------------------------------- December 6, 2001 US SENATE COMMITTEE ON THE JUDICIARY TESTIMONY OF US ATTORNEY GENERAL JOHN ASHCROFT (NOTE: THE ATTORNEY GENERAL OFTEN DEVIATES FROM PREPARED REMARKS) Mr. Chairman, Senator Hatch, members of the Judiciary Committee, thank you for this opportunity to testify today. It is a pleasure to be back in the United States Senate. On the morning of September 11, as the United States came under attack, I was in an airplane with several members of the Justice Department en route to Milwaukee, in the skies over the Great Lakes. By the time we could return to Washington, thousands of people had been murdered at the World Trade Center. 189 were dead at the Pentagon. Forty-four had crashed to the ground in Pennsylvania. From that moment, at the command of the President of the United States, I began to mobilize the resources of the Department of Justice toward one single, over- arching and over-riding objective: to save innocent lives from further acts of terrorism. America's campaign to save innocent lives from terrorists is now 87 days old. It has brought me back to this committee to report to you in accordance with Congress's oversight role. I welcome this opportunity to clarify for you and the American people how the Justice Department is working to protect American lives while preserving American liberties. Since those first terrible hours of September 11, America has faced a choice that is as stark as the images that linger of that morning. One option is to call September 11 a fluke, to believe it could never happen again, and to live in a dream world that requires us to do nothing differently. The other option is to fight back, to summon all our strength and all our resources and devote ourselves to better ways to identify, disrupt and dismantle terrorist networks. Under the leadership of President Bush, America has made the choice to fight terrorism -- not just for ourselves but for all civilized people. Since September 11, through dozens of warnings to law enforcement, a deliberate campaign of terrorist disruption, tighter security around potential targets, and a preventative campaign of arrest and detention of lawbreakers, America has grown stronger -- and safer -- in the face of terrorism. Thanks to the vigilance of law enforcement and the patience of the American people, we have not suffered another major terrorist attack. Still, we cannot -- we must not -- allow ourselves to grow complacent. The reasons are apparent to me each morning. My day begins with a review of the threats to Americans and American interests that were received in the previous 24 hours. If ever there were proof of the existence of evil in the world, it is in the pages of these reports. They are a chilling daily chronicle of hatred of America by fanatics who seek to extinguish freedom, enslave women, corrupt education and to kill Americans wherever and whenever they can. The terrorist enemy that threatens civilization today is unlike any we have ever known. It slaughters thousands of innocents - a crime of war and a crime against humanity. It seeks weapons of mass destruction and threatens their use against America. No one should doubt the intent, nor the depth, of its consuming, destructive hatred. Terrorist operatives infiltrate our communities -- plotting, planning and waiting to kill again. They enjoy the benefits of our free society even as they commit themselves to our destruction. They exploit our openness - not randomly or haphazardly - but by deliberate, premeditated design. This is a seized al Qaeda training manual - a "how-to" guide for terrorists - that instructs enemy operatives in the art of killing in a free society. Prosecutors first made this manual public in the trial of the al Qaeda terrorists who bombed U.S. embassies in Africa. We are posting several al Qaeda lessons from this manual on our website today so Americans can know our enemy. In this manual, al Qaeda terrorists are told how to use America's freedom as a weapon against us. They are instructed to use the benefits of a free press - newspapers, magazines and broadcasts - to stalk and kill their victims. They are instructed to exploit our judicial process for the success of their operations. Captured terrorists are taught to anticipate a series of questions from authorities and, in each response, to lie - to lie about who they are, to lie about what they are doing and to lie about who they know in order for the operation to achieve its objective. Imprisoned terrorists are instructed to concoct stories of torture and mistreatment at the hands of our officials. They are directed to take advantage of any contact with the outside world to, quote, "communicate with brothers outside prison and exchange information that may be helpful to them in their work. The importance of mastering the art of hiding messages is self-evident here." Mr. Chairman and members of the committee, we are at war with an enemy who abuses individual rights as it abuses jet airliners: as weapons with which to kill Americans. We have responded by redefining the mission of the Department of Justice. Defending our nation and its citizens against terrorist attacks is now our first and overriding priority. We have launched the largest, most comprehensive criminal investigation in world history to identify the killers of September 11 and to prevent further terrorist attacks. Four thousand FBI agents are engaged with their international counterparts in an unprecedented worldwide effort to detect, disrupt and dismantle terrorist organizations. We have created a national task force at the FBI to centralize control and information sharing in our investigation. This task force has investigated hundreds of thousands of leads, conducted over 500 searches, interviewed thousands of witnesses and obtained numerous court- authorized surveillance orders. Our prosecutors and agents have collected information and evidence from countries throughout Europe and the Middle East. Immediately following the September 11 attacks, the Bureau of Prisons acted swiftly to intensify security precautions in connection with all al Qaeda and other terrorist inmates, increasing perimeter security at a number of key facilities. We have sought and received additional tools from Congress. Already, we have begun to utilize many of these tools. Within hours of passage of the USA PATRIOT Act, we made use of its provisions to begin enhanced information sharing between the law-enforcement and intelligence communities. We have used the provisions allowing nationwide search warrants for e-mail and subpoenas for payment information. And we have used the Act to place those who access the Internet through cable companies on the same footing as everyone else. Just yesterday, at my request, the State Department designated 39 entities as terrorist organizations pursuant to the USA PATRIOT Act. We have waged a deliberate campaign of arrest and detention to remove suspected terrorists who violate the law from our streets. Currently, we have brought criminal charges against 110 individuals, of whom 60 are in federal custody. The INS has detained 563 individuals on immigration violations. We have investigated more than 250 incidents of retaliatory violence and threats against Arab Americans, Muslim Americans, Sikh Americans and South Asian Americans. Since September 11, the Customs Service and Border Patrol have been at their highest state of alert. All vehicles and persons entering the country are subjected to the highest level of scrutiny. Working with the State Department, we have imposed new screening requirements on certain applicants for non- immigrant visas. At the direction of the President, we have created a Foreign Terrorist Tracking Task Force to ensure that we do everything we can to prevent terrorists from entering the country, and to locate and remove those who already have. We have prosecuted to the fullest extent of the law individuals who waste precious law enforcement resources through anthrax hoaxes. We have offered non-citizens willing to come forward with valuable information a chance to live in this country and one day become citizens. We have forged new cooperative agreements with Canada to protect our common borders and the economic prosperity they sustain. We have embarked on a wartime reorganization of the Department of Justice. We are transferring resources and personnel to the field offices where citizens are served and protected. The INS is being restructured to better perform its service and border security responsibilities. Under Director Bob Mueller, the FBI is undergoing an historic reorganization to put the prevention of terrorism at the center of its law enforcement and national security efforts. Outside Washington, we are forging new relationships of cooperation with state and local law enforcement. We have created 93 Anti-Terrorism Task Forces - one in each U.S. Attorney's district - to integrate the communications and activities of local, state and federal law enforcement. In all these ways and more, the Department of Justice has sought to prevent terrorism with reason, careful balance and excruciating attention to detail. Some of our critics, I regret to say, have shown less affection for detail. Their bold declarations of so-called fact have quickly dissolved, upon inspection, into vague conjecture. Charges of "kangaroo courts" and "shredding the Constitution" give new meaning to the term, "the fog of war." Since lives and liberties depend upon clarity, not obfuscation, and reason, not hyperbole, let me take this opportunity today to be clear: Each action taken by the Department of Justice, as well as the war crimes commissions considered by the President and the Department of Defense, is carefully drawn to target a narrow class of individuals -- terrorists. Our legal powers are targeted at terrorists. Our investigation is focused on terrorists. Our prevention strategy targets the terrorist threat. Since 1983, the United States government has defined terrorists as those who perpetrate premeditated, politically motivated violence against noncombatant targets. My message to America this morning, then, is this: If you fit this definition of a terrorist, fear the United States, for you will lose your liberty. We need honest, reasoned debate; not fearmongering. To those who pit Americans against immigrants, and citizens against non- citizens; to those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists - for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of good will to remain silent in the face of evil. Our efforts have been carefully crafted to avoid infringing on constitutional rights while saving American lives. We have engaged in a deliberate campaign of arrest and detention of law breakers. All persons being detained have the right to contact their lawyers and their families. Out of respect for their privacy, and concern for saving lives, we will not publicize the names of those detained. We have the authority to monitor the conversations of 16 of the 158,000 federal inmates and their attorneys because we suspect that these communications are facilitating acts of terrorism. Each prisoner has been told in advance his conversations will be monitored. None of the information that is protected by attorney-client privilege may be used for prosecution. Information will only be used to stop impending terrorist acts and save American lives. We have asked a very limited number of individuals - visitors to our country holding passports from countries with active Al Qaeda operations - to speak voluntarily to law enforcement. We are forcing them to do nothing. We are merely asking them to do the right thing: to willingly disclose information they may have of terrorist threats to the lives and safety of all people in the United States. Throughout all our activities since September 11, we have kept Congress informed of our continuing efforts to protect the American people. Beginning with a classified briefing by Director Mueller and me on the very evening of September 11, the Justice Department has briefed members of the House, the Senate and their staffs on more than 100 occasions. We have worked with Congress in the belief and recognition that no single branch of government alone can stop terrorism. We have consulted with members out of respect for the separation of powers that is the basis of our system of government. However, Congress' power of oversight is not without limits. The Constitution specifically delegates to the President the authority to "take care that the laws are faithfully executed." And perhaps most importantly, the Constitution vests the President with the extraordinary and sole authority as Commander-in-Chief to lead our nation in times of war. Mr. Chairman and members of the committee, not long ago I had the privilege of sitting where you now sit. I have the greatest reverence and respect for the constitutional responsibilities you shoulder. I will continue to consult with Congress so that you may fulfill your constitutional responsibilities. In some areas, however, I cannot and will not consult you. The advice I give to the President, whether in his role as Commander-in-Chief or in any other capacity, is privileged and confidential. I cannot and will not divulge the contents, the context, or even the existence of such advice to anyone - including Congress - unless the President instructs me to do so. I cannot and will not divulge information, nor do I believe that anyone here would wish me to divulge information, that will damage the national security of the United States, the safety of its citizens or our efforts to ensure the same in an ongoing investigation. As Attorney General, it is my responsibility - at the direction of the President - to exercise those core executive powers the Constitution so designates. The law enforcement initiatives undertaken by the Department of Justice, those individuals we arrest, detain or seek to interview, fall under these core executive powers. In addition, the President's authority to establish war-crimes commissions arises out of his power as Commander in Chief. For centuries, Congress has recognized this authority and the Supreme Court has never held that any Congress may limit it. In accordance with over two hundred years of historical and legal precedent, the executive branch is now exercising its core Constitutional powers in the interest of saving the lives of Americans. I trust that Congress will respect the proper limits of Executive Branch consultation that I am duty-bound to uphold. I trust, as well, that Congress will respect this President's authority to wage war on terrorism and defend our nation and its citizens with all the power vested in him by the Constitution and entrusted to him by the American people. Thank you. * * * 06/10/02 (Moscow) Transcript of the Attorney General John Ashcroft Regarding the transfer of Abdullah Al Muhajir (Born Jose Padilla) To the Department of Defense as an Enemy Combatant I am pleased to announce today a significant step forward in the War on Terrorism. We have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or "dirty bomb," in the United States. I commend the FBI, the CIA, the Defense Department, and the other federal agencies whose cooperation made this possible. Yesterday, after consultation with the Acting Secretary of Defense and other senior officials, both the Acting Secretary of Defense and I recommended that the President of the United States, in his capacity as commander in chief, determine that Abdullah Al Muhajir, born Jose Padilla, is an enemy combatant who poses a serious and continuing threat to the American people and our national security. After the determination, Abdullah Al Muhajir was transferred from the custody of the Justice Department to the custody of the Defense Department. Following serving in prison in the United States in the early 1990s, Jose Padilla referred to himself as Abdullah Al Muhajir. Subsequent to his release from prison, he traveled to Afghanistan and Pakistan. On several occasions in 2001, he met with senior Al Qaeda officials. While in Afghanistan and Pakistan, Al Muhajir trained with the enemy, including studying how to wire explosive devices and researching radiological dispersion devices. Al Qaeda officials knew that as a citizen of the United States, as a citizen of the United States holding a valid U.S. passport, Al Muhajir would be able to travel freely in the U.S. without drawing attention to himself. The United States government was tracking Abdullah Al Muhajir when, on May the 8th, 2002, this year, he flew from Pakistan into Chicago O'Hare International Airport, where he was placed in the custody of federal law enforcement authorities. In apprehending Al Muhajir as he sought entry into the United States, we have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive "dirty bomb." Now, a radioactive "dirty bomb" involves exploding a conventional bomb that not only kills victims in the immediate vicinity, but also spreads radioactive material that is highly toxic to humans and can cause mass death and injury. From information available to the United States government, we know that Abdullah Al Muhajir is an Al Qaeda operative and was exploring a plan to build and explode a radioactive "dirty bomb." Let me be clear: We know from multiple independent and corroborating sources that Abdullah Al Muhajir was closely associated with Al Qaeda and that as an Al Qaeda operative he was involved in planning future terrorist attacks on innocent American civilians in the United States. The safety of all Americans and the national security interests of the United States require that Abdullah Al Muhajir be detained by the Defense Department as an enemy combatant. In determining that Al Muhajir is an enemy combatant who legally can be detained by the United States military, we have acted with legal authority both under the laws of war and clear Supreme Court precedent, which establish that the military may detain a United States citizen who has joined the enemy and has entered our country to carry out hostile acts. Once again, I commend the FBI, the CIA and other agencies involved in capturing Abdullah Al Muhajir before he could act on his deadly plan. Because of the close cooperation among the FBI, the CIA, Defense Department and other federal agencies, we were able to thwart this terrorist. To our enemies, I say we will continue to be vigilant against all threats, whether they come from overseas or at home in America. To our citizens, I say we will continue to respect the rule of law while doing everything in our power to prevent terrorist attacks. END * * * October 18, 2002 REMARKS BY ROBERT S. MUELLER, III DIRECTOR, FEDERAL BUREAU OF INVESTIGATION AT THE STANFORD LAW SCHOOL http://www.fbi.gov/pressrel/speeches/speech101802.htm Thank you, Dean Sullivan. Good evening everyone. It is good to be back in the Bay area and at Stanford. I am honored to be with all of you tonight. Many of our nation's most prominent leaders and jurists have strolled the grounds of this magnificent law school. Chief Justice William Rehnquist and Justice Sandra O'Connor, both members of the Stanford law school class of 1952, for instance, are joining you to celebrate this Alumni Weekend. All of you know, of course, that the President Emeritus of Stanford University is a gentleman named Donald Kennedy. Let me tell you about another Donald Kennedy -- the first FBI Special Agent to graduate from Stanford and its law school. Special Agent Kennedy earned his Bachelor's Degree in 1932 and his Law Degree in 1936. In 1937, showing eminent good judgment, he joined the Bureau. Agent Kennedy's annual salary back then? $3,200 - about what a newly minted Stanford lawyer can earn in a week. While I am not here on a recruiting mission, and I clearly can't promise you great wealth, let me assure you that we have raised the salary of new Agents significantly. Perhaps I can entice some of you to consider a career with the FBI. Dean Sullivan -- I want to thank you for the honor of receiving the Jackson H. Ralston Prize. Mr. Ralston was a noted international lawyer, and I am honored not just by the distinction, but by the company I apparently now keep. Previous Ralston Prize winners include great statesmen like Warren Christopher, who I understand is here this weekend, and even the latest winner of the Nobel Peace Prize -- Jimmy Carter. I feel a little like the late Jack Benny. When he was being honored some years ago, he said, I am not sure if I deserve this award. On the other hand, I have arthritis, and I don't really deserve that either." Permit me to spend a few minutes with you today speaking about a topic very much on my mind -- terrorism. As you may know, I became Director of the FBI just one week before the horrific attacks of September 11. Global terrorism, and the FBI's response to it, is something I think about for the better part of every day. Let me use this forum to continue what I believe is a critical discourse in our country. As part of this discourse, I would like to reflect with you on three issues. They are: First, the difficult challenges we face as a nation in our war on terrorism; Second, the FBI's response to these challenges, and Third, the delicate balance we must strike as a society to protect both our homeland and our civil liberties. The challenges: Though the tragedy of September 11 unfolded before our eyes, it is still difficult for many of us to comprehend the magnitude of the destruction and terror of that awful day. But terrorism -- and the war against it - did not start on 9/11. Nor will it end anytime soon. And the issues we discuss today, when we contemplate this war, are issues that many of you will grapple with as lawyers, educators and leaders. Our recent history reflects growing threats from a variety of groups and individuals. Religious extremists associated with Al Qaeda have attacked American targets for nearly a decade, including the 1993 bombing of the World Trade Center. But Al Qaeda has not been the only threat. Prior to September 11, Hizballah had killed more Americans than any other terrorist group. Other terrorist organizations have launched strikes like the one on Khobar Towers in Saudi Arabia in 1996. And we cannot forget the domestic terrorist groups in our own country. Espousing racial supremacy principles and anti-government rhetoric, these groups and their advocates are a serious menace, underscored by the April 1995 bombing in Oklahoma City. We should also not overlook the fact that many attacks have been prevented. They have largely been forgotten -- successful strikes get more attention than prevention. But how many thousands of Americans would have died if antigovernment extremists had blown up two large propane fuel tanks in Sacramento three years ago as they had planned? Or if international terrorists had not been stopped from blowing up a series of New York landmarks in 1993? Or if Ahmed Ressam has succeeded in bombing Los Angeles International Airport on New Year's Eve in 1999? These attacks -- those prevented and those not -- when looked at together are testimony to the difficult challenge facing our country. Let me turn next to the FBI's response to this challenge in the wake of the events of 9/ 11: The FBI's extensive post-9/11 investigation demonstrated that those participating in that attack operated, paradoxically, while hidden in plain view. Those who commandeered the four planes that day were nineteen in number; 15 were from Saudi Arabia, two from the United Arab Emirates, and one each from Lebanon and Egypt. Their plans were conceived, developed and approved by Al Qaeda leadership in Germany, Malaysia and Afghanistan. In the months that preceded 9/11, each of the 19 hijackers entered our country with lawful visas, and used our schools, motels, restaurants, and transportation systems to hatch and launch their assault. In many ways, they turned the liberties we most cherish in this nation against us. The 9/11 hijackers and the other terrorists we are currently confronting present a new challenge to us. Unlike enemies of the past, these terrorists do not wear uniforms and do not operate within defined borders. They will stop at nothing to further their goals, whether that means sacrificing innocent lives or even their own. To meet this challenge, the FBI has had to dramatically reorient its mission and its resources. Shortly after the planes hit on 9/11, more than half of our 11,500 agents suddenly found themselves investigating terrorism matters. Today, we have twice the number of Agents permanently assigned to the war on terrorism as we did prior to 9/11. Of course the FBI still investigates traditional criminal cases, and we are proud of our work in violent crime and financial fraud cases, but our priority, plain and simple, is counter-terrorism. This massive redeployment of Agents is at the heart of our efforts in the war on terrorism. Another part of that battle is being waged on the intelligence side of the house. Each morning since 9/11, CIA Director George Tenet and I brief President Bush, updating him on various terrorism investigations and our response to the myriad threats we receive each day from around the world. Critical to this response is our ability to share essential information throughout the FBI and the rest of the government. The thought of regularly sharing Bureau information is something that J. Edgar Hoover (admittedly, in a very different age) would likely have resisted. Today, an Office of Intelligence within the FBI works to ensure that information is shared throughout the Bureau and the rest of the Government. We now have a number of employees assigned to the CIA's Counterterrorism Center, and the CIA has eight managers and dozens of analysts assigned to the FBI's Counterterrorism Division. Each has unfettered access to the computer databases and communications systems of the other agency. Every day, a CIA official detailed to the FBI joins other FBI executives in my office for two briefing sessions. The FBI is also sharing information with local law enforcement officers who belong to one of 56 Joint Terrorism Task Forces throughout the country. Partnering FBI personnel with local investigators on these task forces encourages the timely sharing of intelligence so critical to our counter- terrorism mission. As part of this same effort, we have established an FBI Intelligence Bulletin, which is disseminated weekly to more than 17,000 law enforcement agencies and to 60 federal agencies. The bulletin provides information about terrorism issues and threats to patrol officers and other local law enforcement personnel who have direct daily contact with the general public. These contacts, as you can well imagine, often lead to intelligence about terrorist threats. Indeed, it was initial information from local officers in Buffalo, New York, and Portland, Oregon, that ultimately resulted in the indictments and arrests in those communities in cases involving alleged terrorist cells on U.S. soil. Finally, as part of our response, we have embarked on a comprehensive overhaul and revitalization of our information technology infrastructure. Our technological problems are deep-seated and complex, and will be fixed only through careful planning and implementation. We are currently undertaking a massive overhaul and restructuring of our information technology infrastructure that will facilitate the intelligence analysis that is the key to identifying, predicting and preventing terrorist activities. I mentioned earlier that I wanted to discuss the challenges we face, our response to those challenges and, most importantly, the balance we must strike to protect our national security and our civil liberties. Jackson Ralston, later in his life, served as the Chairman of the ACLU in Northern California. He might be surprised to learn that an award bearing his name is being given to the Director of the FBI, particularly at a time in our nation's history when the tension between our civil liberties and national security has been thrust to the forefront. I think, however, that Mr. Ralston would be rather pleased. Pleased by the fact that we are here today talking about this issue, and pleased by the fact that civil liberties and national security are not mutually exclusive. As you know, our nation does not have an unblemished record protecting constitutional freedoms during times of crisis: In 1919, in the midst of a "Red Scare," and following the detonation of bombs in eight American cities, President Wilson's Attorney General, Alexander Palmer, arrested thousands of "leftists" and "radicals." Hundreds of those arrested were deported, without any due process, during the so-called "Palmer Raids." During World War II, thousands of Japanese Americans, based solely on their ancestry, were confined in relocation camps. In 1944, the Supreme Court in the Korematsu case, ruled that all members of a single ethnic group could be confined, even without individualized evidence, because some members of that group might be disloyal, and pose a threat to the nation. As recently as the 1960's and 70's, the FBI ran a counterintelligence program, infamously known as COINTELPRO, that targeted persons involved in dissent and civil disobedience with investigative measures that clearly crossed the line. We live in perilous times. But, as these examples illustrate, we are not the first generation of Americans to face threats to our security. And like those before us, we will be judged by future generations on how we react to this crisis. And by that I mean not just whether we win the war on terrorism -- and we will -- but also whether, as we fight that war, we safeguard for our citizens those liberties for which we are fighting. We are a nation of laws, and every Special Agent of the FBI is sworn to uphold and protect those laws. The men and women who serve under me do just that, every working day of their lives. But we are aggressive, and I do not shy from using every arrow that Congress has put in our quiver. In the wake of the 9/11 attacks, Congress has granted us new and enhanced authority to investigate terrorism. The USA Patriot Act, passed in October 2001, tore down many of the walls that formerly inhibited information sharing between law enforcement and the intelligence community. I welcomed these changes. We use the Patriot Act to our fullest advantage, but not at the expense of the constitutional rights of our citizens. Still, questions abound. At the heart of the questions is this: How do you prevent, deter, or disrupt terrorist attacks before they have been initiated? How aggressively should the FBI investigate suspicious activity that might be related to terrorism? When is surveillance or a wiretap necessary or warranted? Not always easy questions -- particularly not when the prevailing terrorist threat originates from, and therefore our primary investigate focus is directed at, a group of terrorists who generally share a common ethnic and religious background. In that regard, let me start with a premise that I believe firmly. The overwhelming majority of Muslims in this country and around the world are peaceful, law-abiding citizens. A small number of Muslims, however, are members of radical fundamentalist sects sworn to the destruction of the United States. This presents a dilemma for those charged with protecting against the next attack, raising difficult investigative issues for which there often is no clear answer. For instance, upon hearing that a number of middle eastern men from a US city are militant in their religious beliefs and are traveling to Pakistan to further their religious training, is it appropriate to use an informant to infiltrate that group? When, if ever, would it be appropriate to put leaders of Muslim mosques under surveillance? Are calls to kill Americans in strident sermons a lawful exercise of free speech, or something more, warranting not only investigation, but also court-approved electronic surveillance? The answer to these and many similar questions, I believe, is to assure there is adequate predication for each step of the investigation. We do not target individuals or groups by reason of their country of origin or nationality. Rather, we take investigative steps when there is a factual basis justifying that step. Can we be too aggressive? Or, in the post 9/11 world, is there such a thing as "too aggressive?" Yes, I believe there is. But, by assuring that there is adequate predication for each step on an investigation, we protect against over- aggressiveness and avoid the excesses of the past. These are issues we wrestle with every day. We are not the policy makers, and some of the questions and debates are beyond our purview. What we in the FBI must concentrate upon is obtaining the facts, and then presenting them in an objective, unbiased manner to other decision makers, whether they be the prosecutors at the Justice Department or the policy makers in the National Security Council, or even the President. I do believe, however, that in seeking those facts, the FBI must use the tools Congress has given us -- all of the tools -- consonant with our obligation to protect the citizens of the United States and the Constitution. Either, without the other, is of little value. But by the same token we must not shy from investigating aggressively any real threat. Because there are no perfect answers to any of the difficult questions posed in the course of these counter-terrorism investigations, there is only one option -- to investigate vigorously any threat to the citizens and interests of this nation, whether at home or abroad, while carefully observing the constitutional rights of all. For the FBI, and for the United States, the war on terrorism is as complex and perplexing as any threat this nation has ever faced. And whether the threat comes in the form of anthrax-laced letters, or in the form of a devastating bomb blast in faraway Bali, it is imperative that we use the full weight of the law -- every arrow in our quiver -- to bring these terrorists to justice. I know we will be judged by history not just on how we disrupt and deter terrorism, but also on how we protect the civil liberties and constitutional rights of all Americans, including those Americans who wish us ill. We must do both of these things, and we must do them exceptionally well. Thank you for kind and thoughtful consideration, and for the honor you have bestowed upon me. And thank you for being a part of this important and ongoing debate. Thank you and God bless. * * * December 17, 2002 http://www.cnn.com/TRANSCRIPTS/0212/17/lkl.00.html INTERVIEW WITH JOHN ASHCROFT AND TED OLSON CNN Larry King Live Aired December 17, 2002 - 21:00 ET THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. LARRY KING, CNN HOST: Tonight, exclusive, Attorney General John Ashcroft, Solicitor General Ted Olson. How safe are we from the kind of terrorism that killed Ted's wife, Barbara Olson? John Ashcroft, Ted Olson, their first joint interview, next on LARRY KING LIVE. I haven't been able to check all of the history, but I don't know if an attorney general and a solicitor general have ever appeared on television show together. Maybe it's happened, we're not sure. But it's a great pleasure to welcome return visits for both, the attorney general of the United States, John Ashcroft, the solicitor general of the United States, Ted Olson. By the way, in the 2001 Supreme Court term, Olson won eight out eight cases he argued. His office won 83 percent of the 65 cases they argued. His wife, of course, the attorney, best-selling author and frequent guest on this show, Barbara Olson, died in the terrorist plane attack on the Pentagon on September 11. First things first. Any comments, General Ashcroft -- may I call you John? JOHN ASHCROFT, ATTORNEY GENERAL: Yes, have at it. (CROSSTALK) KING: He was one of your Singing Senators. Any thoughts on the Trent Lott controversy? ASHCROFT: Well, the president spoke very eloquently about the position of this administration, and it was simply that every day America lived under segregation was a day that we betrayed the principles of this country. And he's made it clear that that's the position of this administration. He stated the position very eloquently. For me to add or detract from it simply wouldn't be appropriate. KING: But you know the senator well. You served with him in the Senate. Did it surprise you that he said, though, what he said? ASHCROFT: Well, Trent Lott has been my friend for a long time and served him very well -- I served with him and enjoyed my service with him. The president has really spoken clearly for this administration on this issue, and I think I'll leave the situation there. KING: Missouri was a border state. Did you grow up in that kind of atmosphere too? ASHCROFT: Well, Missouri was a state that had varying conditions, and when I was a young person, there were segregated schools prior to the decision of the United States Supreme Court. And when the order of the court came through, the schools integrated in our community very happily, as they did in the community of Larry Thompson, who's the deputy attorney general from Hannibal, Missouri. And Larry went to segregated schools for the first half of his schooling, and by the end of his senior year, he was the student body president in Hannibal, Missouri of the high school there. So, those kinds of integration stories are success stories and are part of the... KING: Mississippi -- Missouri was easier than Mississippi. ASHCROFT: Well, I wasn't in Mississippi, so I don't know. KING: Ted, do you have any thoughts? TED OLSON, SOLICITOR GENERAL: No, I don't have anything to add. KING: Do you support what John said? OLSON: Well, of course, I agree with what John said, and I do think that the president has spoken for the administration. And I think that's probably all that needs to be said. KING: OK. Every time you hear about security in the war on terror, about which we'll spend some time, do you think about Barbara? OLSON: Well, I think about Barbara on those occasions and a lot of other occasions, too. It's really the sort of thing that you can -- one never forgets. As you know, because Barbara was so close to you and enjoyed herself so much on this show, she was so much full of life. And so many of your (UNINTELLIGIBLE) must say this now, so many of the people that view your program have written to me over the last year-and-a- quarter, and I'm grateful for those sentiments that they've expressed to me. KING: Do you drive by the Pentagon at all? Do you have to occasionally go by? OLSON: I don't usually have occasion to do that. I guess I couldn't drive by the Pentagon or see other reminders of Barbara. But I also have to emphasize that there were thousands of other victims that day, and other people in America feel the same kind of grief and the same kind of memories come back to them. KING: What's the state of the war, assessing the effectiveness? Last week, the FBI chief, Robert Mueller, told the AP that nearly 100 terrorist attacks, some intended to take place on U.S. soil, had been averted since September 11. Do you want to elaborate? ASHCROFT: Well, we've been doing a lot, and adopting new processes and procedures to try and be disruptive of any terrorist organizations or attacks. I mean, the first thing we did was start to arrest people and prosecute people that we believe were associated with the pent (ph) bomb situation. And we've had almost 130 of those as prosecutions. I think there are 99 individuals that have been convicted, who were people who were very closely associated with the terrorists, or we felt had kind of the terrorism linkage. And they were involved in crimes of either document fraud or some other kind of criminal activity. KING: Prosecuted and successfully then. ASHCROFT: Well, the 99 are convictions. We have some others that haven't yet been... KING: Well, there are some who are saying there's been no convictions in the war... ASHCROFT: Well, obviously, you have convictions of people like Richard Reid as well, the shoe bomber. You had John Walker Lindh that's a conviction of an individual who was fighting against the United States with the Taliban forces. And so, we've had dozens and dozens and dozens and dozens of convictions. We believe that there are other individuals that require our attention. We've followed about 205 leads that come from the Foreign Terrorist Tracking Task Force that the president set up immediately after the event. Some individuals that we haven't apprehended, we haven't apprehended them because we think surveillance is more valuable to us than their apprehension. KING: So, you're still looking at people now... ASHCROFT: Indeed we are. KING: ... who might connect you to other people. ASHCROFT: Indeed we are. KING: And you stay on top of this every day. ASHCROFT: Well, we stay as on top of it as we possibly can, and... KING: Would you say, would you use the words "successful so far?" ASHCROFT: Well, I think you have to say that it's been successful in preventing another serious major attack in the United States. I thank God for that. I thank the people of the United States for adjusting and accepting the adjustments that are necessary here. We've had a major reformat of the way the FBI operates. We've had a significant improvement in the way the FBI, for instance, relates to the CIA the intelligence operations, including other intelligence operations. We had the Congress to thank for passing the USA Patriot Act. There used to be literally legislative or legal walls, barriers that kept one agency, an intelligence agency, from talking to a law enforcement agency. And the rules were so strict that sometimes you had two agents in the same office, like an FBI office, one working on an intelligence matter, one working on a law enforcement matter, and there were rules that kept them from talking to each other. KING: Rules? ASHCROFT: Rules and literally laws. KING: And that's been changed. ASHCROFT: Those have been changed, and beneficially so, and that's just part of the story. KING: Does any of this concern you, Solicitor General, as a prominent attorney, that we may overstep our bounds in the area of civil protections, civil liberties? OLSON: I've been watching this very, very carefully, and of course, I'm not directly involved in law enforcement, but I'm close to what General Ashcroft is doing every day. KING: And you may have to defend some of those (ph). OLSON: And in fact, we have. The president and the attorney general have asked my office to supervise some of the defense of the terrorism cases. But I have heard the attorney general and the president speak often about the importance of doing this the proper constitutional American way and to be careful that we don't sacrifice our citizens' liberties and the constitutional rights that we all stand for, that we don't put any of that in jeopardy... KING: You fear it. OLSON: Well, I don't fear it. We're all concerned about it, and we're all sensitive to it. And I wanted to say that I've heard the attorney general inside meetings in the Justice Department emphasize repeatedly that we must do these things by the numbers, according to the Constitution. We protect people's rights. We do what we can to protect people's lives, but we protect their liberties at the same time. KING: Why do you think you get a bad rap, that people think that that's not in your interests, civil liberties, that enforcement is more important than rights? ASHCROFT: Well, I think it's in some respects, some people fail to understand that security is designed to secure something, and what we are securing are the rights of individuals. So, rather than security being something that challenges rights and that diminishes rights, security makes those rights safe and strong. KING: So, you don't take away a right to secure... ASHCROFT: We secure the right. That's what we're doing. We're securing the rights of individuals to be free from the kind of assault... KING: But (UNINTELLIGIBLE). ASHCROFT: Oh, you know, I think there's debate, there's give- and-take in American politics. It's the stuff of which freedom itself is made, and it's the job of the Justice Department to make sure that people are free to challenge and criticize and wonder and ask. And the more they ask and challenge, I think more likely all of the people are, in our operation, to have the sensitivity to know that we're in the business of securing freedom, not sacrificing freedom. KING: We'll pick up on that and a lot more with the attorney general, John Ashcroft, the solicitor general, Ted Olson. Tomorrow night, the secretary of defense, Donald Rumsfeld. Mariah Carey on Thursday, a variety show. Don't go away. (COMMERCIAL BREAK) KING: We're back. General Ashcroft, the recommendation in some quarters of the formation of a domestic intelligence agency, an oversight agency. Favor it? ASHCROFT: Well, I favored the Department of Homeland Security, which is designed to integrate the activities and to bring together the activities of a variety of agencies to secure the homeland, you know, in a way the president of the United States has undertaken this issue himself for the last 15 months. Every day, he starts the day by making sure that these agencies talk to each other and confer with each other, and brief him. And we need this kind of integration, and that's been the theme... KING: In one? ASHCROFT: My own view is to start separating agencies and to have another separate agency to try and develop intelligence and to separate it from law enforcement when we just got the barriers down so it could work -- our intelligence could work closely together with law enforcement. KING: Homeland security would cover all these agencies? ASHCROFT: Well, it's going to integrate the activities. There's q sort of an umbrella effect and a coordination function for homeland security. There's an analysis part of homeland security that's going to take the intelligence from each agency as necessary, and it's going to make sure that agencies talk appropriately to each other. But this effort to bring things together to make sure that if one agency has a fact and another agency has another fact, and we harmonize those and make sure that if they're related, we link that up, creating more separated agencies that operate outside of this framework or differently, it's got some real questions that I think need to be answered before you'd want to do that. KING: You're comfortable with that, Ted? OLSON: Well, yes. And I think that's it's important we don't -- they are decisions that aren't in my jurisdiction at all. KING: I know, but you've got an opinion. OLSON: But I think it is important that... (CROSSTALK) OLSON: But I'm not so much an expert on the structure of government, but it is important. What we've found here is that the more walls that you create between different agencies and the more different bureaucratic structures, the more you tend to create barriers to the cooperation. One of the things that General Ashcroft and the president have done is to bring down the barriers that have separated people from doing their job by coordinating together. And a big part of the effort since September 11 has been to produce more cooperation and more coordination, so that people can work in harmony as a team. ASHCROFT: You know, Ted probably wouldn't tell you about it, but the Foreign Intelligence Surveillance Court originally denied our capacity under the Patriot Act to operate with this greater flow of information, and he argued the case in September, which was handed down, I guess it was in late November, where the Corps of Review, the appellate section of the FISA, Foreign Intelligence Surveillance Court, operated. And they said, Indeed, these walls are down, these barriers are down, we need this kind of ability to cross-fertilize and to link up. So, he's had a good deal to do with improving the structure, so making sure we don't have separation, but that we've got cooperation and integration in intelligence and law enforcement. KING: The object, of course, is to prevent a 9/11. OLSON: Absolutely, and to allow people that are gathering intelligence to talk to the people in the law enforcement field, so that the right hand can talk to the left hand. We had a situation where people were in little boxes, and you couldn't communicate. They couldn't exchange information. No one knows what might have prevented September 11, but everybody is working hard to prevent the next September 11. And in order to do that in the best way we possibly can, we have to have people working in harmony as a team and exchanging information. KING: Can you say, General, that we might have prevented an attack of some sort this morning that we don't even -- that you may know about that we don't know about? ASHCROFT: Well, that's what our job is, and that's what we're working to do. And when we... KING: But you can't tell us that. ASHCROFT: When we have the new provisions at the borders, the national security entry and exit registration system -- it's called NSEERS. We've implanted that this fall. There have been 200 and some people arrested at the borders or turned back because of our ability to know things that we didn't know before. So that over and over again, we're doing things that should have the impact of disrupting. We now, for example, have in place what's called the Student Exchange Visitors Information Service -- I think that's what it is -- SEVIS, it's called. And instead of having each college maintain the records independently of what foreign students are in the country and what they're doing, it's maintained centrally, so we can know. And the college has to report if a student drops out or doesn't register. All of these things together are security for the United States of America. KING: But as a nation of immigrants, does it concern you, Ted, that we may go sometimes too far, and that people who should get in, you know, if it's a borderline question, they don't get in? OLSON: We have laws that have been enacted by the representatives of all of us that set forth certain rules, and what we learned in September 11 and the aftermath is that many of those laws had not been enforced. People weren't doing the jobs that our elected representatives... (CROSSTALK) OLSON: ... or it was too easy to get in. Certain people that were -- once they were inside the United States may have committed crimes and things weren't done to move them back out of the United States, and they should have put people on alert. All of those things are -- that are being done are consistent with laws established by our Congress and regulations established by our courts. When we do these things in many instances that the attorney general is talking about, we have to have approval from the courts to do certain deportations and do certain other things. So, it is not the executive branch acting unilaterally. We're doing this very, very carefully. KING: Saudi Arabia and Pakistan were just added, I'm told, to the alien registration order. Some question why Saudi and Pakistan weren't on the list before. ASHCROFT: Well, this is a process, which the Congress has mandated be comprehensive by the year 2005. So, this business of the NSEERS program, the Exit, Entry, Registration System program, the national program, that will cover every nation -- 24 months from now, it's going to cover every one. We started out based on the state sponsors of terrorism. They were the first ones to go into the system. And then other nations are being added as we ramp up, and it's a matter of a short period of time that the United States is going to be more careful about its borders. We want to know who's here, and we want to know who leaves. KING: Are we correct in criticizing the FBI for not focusing sufficiently on Saudi Arabia? ASHCROFT: Well, I don't -- I certainly can't make that judgment. I believe that we need to focus on terrorism. We need to identify the kinds of individuals that are threats to us. With the Foreign Terrorist Tracking Task Force, we're doing that. With a variety of other mechanisms, we're doing it. KING: You're satisfied with the job being done? ASHCROFT: Well... KING: Or not. ASHCROFT: ... we're never satisfied. You know, people ask me what kind of job you want to do. I say, better. We don't ever want to be satisfied with anything. I just noticed Bob Mueller, who started at the FBI a week before 9/11, has been making changes on a moment-by-moment basis to upgrade the FBI. I changed a lot of things in the FBI rules. It was against the rules of the FBI for someone to surf the Internet, not to look at anybody's e-mail, but just to be on the Internet to find out where the bomb-making sites were, where the sites were that described how to make anthrax -- those kinds of things. I think that FBI ought to be able to go where the public can go, and we changed those rules. But structurally, the FBI is a brand-new organization and major changes, and it's being upgraded and improved every single day. KING: We'll be right back with Ted Olson, the solicitor general, and John Ashcroft, the attorney general. Don't go away. (COMMERCIAL BREAK) KING: Ted Olson, are you concerned about the Jose Padilla case? In early December, a federal judge in New York ruled that he must be granted access to an attorney. Why would anyone, anyone -- foreign, domestic -- anyone be denied the right to an attorney? OLSON: Well, there's some limits on what I can say, because that case is still pending. And the judge -- first of all, let me say that the judge recognized, as other courts have recognized, the status of enemy combatant, an individual who is doing war against the United States. But think back to World War II. Would you give a right to an attorney to prisoners captured on the battlefield? No. When -- he courts have recognized even citizens and even people that may be in the United States, if they're engaged in acts of war against the United States, don't have a right to an attorney... KING: But what is your concern if they had an attorney? So, they have an attorney. OLSON: Well, it's a very delicate situation. One of the things that the Defense Department is doing and the people that are engaged in conducting this war is interrogating people who are part of the enemy combatant operations, so that they can find out the things that are threats to our citizens. The courts have generally... (CROSSTALK) KING: ... they don't speak. OLSON: Pardon me? KING: A good attorney would say, don't speak. OLSON: Not only would an attorney say not to speak, but would interfere with the process of the -- the delicate process that takes place between an interrogator and someone being interrogated, someone who has been detained or captured as an enemy combatant. The judge said he wanted to review the process. This is still unfolding with respect to that particular case. KING: And you may have to try this. OLSON: And the judge -- well, there may be proceedings in the court of appeals. We're watching it very carefully, and I'm participating in how that matter is presented. But the judge did recognize, in that particular case, as another judge did in an earlier case, that enemy combatants who may be citizens, even if they're in the United States, may be treated as enemy combatants. KING: Does it bother you as an attorney, as a governor, senator, attorney general, to deny anyone the right to be protected by law? ASHCROFT: Well, frankly... KING: I mean, isn't that what this country is all about? ASHCROFT: Yes. And frankly, for people who are a part of a legal proceeding that's in accordance with the court system of the United States, they all get attorneys. We haven't detained anybody in the immigration setting as a material witness, as a person charged in our -- without attorneys. The category of individuals that are detained without attorneys are people who are enemy combatants. They're not held by the Justice Department. They're not a part of the judicial system. They're held as a -- they're being detained because they have been combatants against the United States in a wartime situation. To say to an enemy that if we capture 10,000 of your people on the battlefield, we'll provide attorneys for all of them, or allow attorneys... KING: Is there a battlefield? Is there a... ASHCROFT: Well, I think if you talk to the people in New York, if you talk to the people who were at the Pentagon, they'd call those battlefields. And we know that they're not described as battlefields have been historically, but the United States felt the sting of battle in a way that it hasn't for a long time. KING: This is a new game. ASHCROFT: It is a new game, and it's different. But I wanted you to know that there is a difference between people who are being apprehended in the justice system who are provided with the rights that normally attend that, and the people who are being apprehended as unlawful combatants in the war, and they are being provided all of the kinds of rights that you would expect in that setting. OLSON: Well, I want to add that the people that are conducting this war against the United States and the citizens of the United States wear no uniforms, swearing allegiance to no country, obey no treaties and have sworn and acknowledged that what they want to do is do the most amount of damage to the most amount of individuals without regard to any rules. The rules that we are following with respect to dealing with enemy combatants have been approved on a couple of occasions by the United States Supreme Court in connection with comparable circumstances. There isn't any war that we've ever been involved in quite like this one, where people are infiltrating the United States in order to -- without wearing uniforms in order to do damage to our citizens. We're following the rules with respect to how those people... KING: If they are a citizen -- now, this is weird -- but on a battlefield, if you caught 10,000 Germans in World War II, supposing one of them was a citizen. OLSON: That's right. He would not... KING: And he said, Wait a minute, I'm a citizen of the United States. I came over here, I enlisted in this army, I got caught up in this war, I want an attorney. OLSON: Well, let me tell you something like that and very close to that happened during World War II. Some people were landed from Germany, soldiers were landed from Germany, one of which -- one or two of which were citizens that came here to bomb... ASHCROFT: American citizens. OLSON: ... American citizens or American installations. They were captured. The case went all the way to the United States Supreme Court, and the United States Supreme Court upheld a military trial and the execution of those individuals because they were engaged in war against the United States. And that included the citizens... (CROSSTALK) KING: So, you have no qualms then about dealing with an enemy combatant in this manner? ASHCROFT: We believe that enemy combatants deserve certain conditions of humanity, and we've been careful to provide that this administration has -- the president has been insistent on it. But we don't believe that an enemy combatant is -- qualifies for all of the safeguards that are included for people who are charged with crimes in our criminal justice system. And so, we've been very careful to provide those... (CROSSTALK) KING: You might think conservatives and liberals would divide on this, but the arch-conservative, Bob Barr, who was defeated in Congress, he has been a vocal critic of overreaching by the Justice Department. He said that that's not American. How do you react to his... (CROSSTALK) ASHCROFT: Well, you know, first of all, one of the jobs of the Justice Department is to defend his right to do that and to say that, and we think that it's entirely appropriate for him to voice his concerns. As a matter of fact, we think it's appropriate for people who don't believe that rights are being properly respected to take those cases to court. And when those cases had been taken to court time after time, and under the careful, complete and thorough review of the judicial system, the overwhelming majority, almost unanimous situation is that the conclusion of the courts has been that the cases are being properly handled. OLSON: We've been very careful about that, Larry. And former Congressman Barr's criticism notwithstanding, all of these cases and all of these situations have been looked at and are being looked at by the courts, so that review process is taking place. And as the attorney general said, so far, the courts have approved the things that the administration has been carefully doing. KING: We'll be right back with the solicitor general and the attorney general. Tomorrow night, the secretary of defense. Don't go away. (COMMERCIAL BREAK) KING: Now, I want to get this right. I'm told -- we're back with the solicitor general and the attorney general --- that the Patriot Act, which you had a big part in getting through, right? OLSON: Well, no, I had a very small part in getting it through. KING: You... (CROSSTALK) OLSON: There were many people who worked on it. KING: It makes it easier for the FBI to obtain search warrants for library records and such a search warrant comes with the judicial order that the record keeper cannot tell anyone about providing the information to authorities under penalty of possible prosecution. And that means that a librarian has to tell you if someone checked out a book and they can't tell that someone that they told you. OLSON: Well, the Patriot Act is fairly explicit with respect to judicial approval of warrants under appropriate circumstances, and the circumstances -- and General Ashcroft knows more about this part of it, because he was more involved than I was in the development of the statute. But these are judicially approved circumstances, where evidence is gathered. KING: Why would you care about what book a person checks out? ASHCROFT: Well, let me just go back to what the solicitor general has said. Ted reiterates that this is supervised by a special court of judges, who grant the right to conduct these investigations. And this is done pursuant to the law. And in some cases, we seek to make investigations where it's not helpful if all of the information about the investigation is known in a public way. That's taken into account. This frame of investigation has been carefully scrubbed (ph), not only by the judges who supervise it, but by the court of review that supervises the supervising judges. And this is a safeguarded area. The main effect of the Patriot Act didn't have to do with things like that. It had to do with the fact that we needed to be able to upgrade technology and surveillance from what had been analog technology from the old kind of telephones to the digital technology of the new ones, and to be able to follow a person, to monitor the conversations of a person and not just of a specific phone. In the old days when an individual used a specific phone in his house, that's the only phone he used. If you wanted to monitor that person, you could get an order for that phone. But now, we find people buying cell phones and throw- away phones, and we needed an order that covered the person rather than having to go back to court every time we get a new phone. And that's basically -- that was the No. 1 advantage of the Patriot Act. KING: It's not big brother. OLSON: It's far from it. Every step of the process, every step that we've taken with the Patriot Act involved the Congress of the United States, the careful development of hearings and careful steps, and steps -- the warrants that we obtained under many of these circumstances require approval by the attorney general or someone (UNINTELLIGIBLE) you can go to a judge. So, we have all three branches of government involved in the process. KING: Sometimes in times of peril -- we put Japanese citizens into camps in World War II. Congress passed that. The Supreme Court signed off on it. That was wrong. OLSON: Well, yes, there is no question that that was wrong. But nothing like that has remotely happened under these circumstances, and what we are doing here has been very, very careful. No one has been put away under circumstances like that. As Attorney General Ashcroft indicates that legal proceedings are being brought. There's a right to counsel. There's a right to review... ASHCROFT: I just want to reiterate that we have people held -- some people with the material witness warrants means that a federal judge has said this person knows things that could be very important to a case. And the judge supervises their detention. We've charged individuals of immigration violations that are violations of the law. We've charged people with violations of the United States code. And those are the kinds of people that we've detained, and they are subject to the scrutiny and supervision of the court system. KING: Gentlemen, what you're saying tonight is, this is a war, right? Maybe a lot of the public is not convinced of that yet, and it's not a conventional war. There's no country raiding and invading another country. It's difficult to comprehend then, that we have to maybe give up some things... ASHCROFT: Well... KING: ... to get over things. But you're saying... ASHCROFT: I'll give you a B plus on that essay, and that is, we are in a war. KING: That's right. ASHCROFT: And we have to do things -- we have to do things differently than we did before. You know, the saying is, if you don't want to get the same result, you've got to change your behavior. My grandfather said, "I sawed this board off three times, and it's still too short." Well, of course it's too short, you keep sawing it off. We had to change some things. Things we did differently were not things that we offended the Constitution in doing. We, for instance, are beginning to ask people who have been ordered deported to leave the country. And we basically found 1,000 people who had deportation orders before that they were ignoring that we ware throwing them out. Well, they just went back into the country and ignored the order. Now, this is not an injustice to say to someone who's been through the entire system, who's been adjudicated as a person who should be deported, who's been ordered to be deported, and then decides to walk out into the streets of the country and get lost. When we find them to deport them, that's not an injustice. It's an injustice if we fail to carry out the adjudicated order that comes from the justice system. KING: What current state are we under? ASHCROFT: Well, we're under an elevated state of alert. That's sort of a mid- point that we need to be alert. We are not... KING: What do we do with that? ASHCROFT: Well, we ask for people to have the kind of alertness that would help them detect and be alert to a shoe bomber... (CROSSTALK) KING: ... people you see? ASHCROFT: Well, be alert. If someone is doing something illegal, if you see someone, for instance, photographing and casing the entrance to a nuclear power generation station that looks like they might be planning to penetrate that and disrupt that activity, yes, call the FBI. KING: So, we are all citizen soldiers. OLSON: Well, we're all citizens, and we're all interested in protecting not only ourselves, but our fellow citizens and our country. We are aware of the fact, notwithstanding that everything that everyone is doing that we are under a threat, and that there are people out there. They have committed bombings all over the world now, we know, the same group of people generally are taking responsibility for bringing terrible devastation to people everywhere, and they would like to do it in this country. So, we ask the citizens to be sensitive, to be concerned, to participate with us, and we've been very -- we're very proud of the fact that American citizens have pitched in and helped out and have been concerned. KING: We'll be back with more -- don't go away. (COMMERCIAL BREAK) KING: We're back with the attorney general of the United States, John Ashcroft, the solicitor general, Ted Olson. We don't know if this -- your records show before where these two officers were on together? OLSON: Well, we were in Congress together when the Patriot Act was... KING: No, I mean on television. OLSON: No, I don't -- I don't know. KING: OK. OLSON: I don't know. ASHCROFT: I think this is a first. KING: All right, I think it is. Let's cover some other bases. Would you consider going on to the Supreme Court? You've been in the hat room where... OLSON: No, no, no. I don't even think of such things. I have... KING: Would you take it? OLSON: I don't even think about it, Larry. (CROSSTALK) OLSON: All I think about is the job that I'm doing now, which is to represent the United States in the Supreme Court. I think that's a very, very important job. I'm very lucky to have it. It's a job that I enjoy doing, and I think it's an important job. And that's a strong opinion of mine. ASHCROFT: I'll tell you what, there's no question in my mind that he's one of the finest judicial minds. And not just his administration, but generally the solicitor general of the United States is so influential on the court that sometimes... KING: There's been some pretty good ones. ASHCROFT: ... sometimes people call him the 10th Justice. It's important that we have this kind of quality, and you read his record... KING: Thurgood Marshall was a solicitor general. OLSON: Thurgood Marshall, but General Ashcroft is true, sometimes refer to the solicitor general as the 10th Justice, but none of the nine Justices have said that. ASHCROFT: Yes. That's an important distinction to make, too. KING: Concerning the anthrax investigation, I want to get this right. There is a search going on even as we speak in a pond in Frederick, Maryland, where a source has told the FBI that Steven Hatfill, who John Ashcroft has called "a person of interest," may have dumped something. Is this going to clear him? What can you tell us about the latest on Mr. Hatfill? What's going on in Maryland? ASHCROFT: Well, I can tell you that the FBI and federal authorities continue to be very concerned about the anthrax investigation to the extent that it is still a matter of high priority. And that we will not rest until we have this matter completely solved. KING: Is Hatfill still a person of interest? ASHCROFT: I'm not going to make anymore comments about the investigation in particular, except to say that it is not something the intensity of which has waned. It's something we're still after, still working hard to pursue. KING: Do you expect arrests in the anthrax investigation? People will be charged with having done this act? ASHCROFT: That is our intent. We want to continue this investigation to a point at which we have assembled the kind of evidence that we believe provides the basis for prosecution. KING: Any reason to think why it stopped? ASHCROFT: Well, the investigation has never stopped. KING: No, the anthrax letters have stopped. ASHCROFT: Oh, I think there are thousands of reasons that one could think about in that respect. But for me to go to those reasons in specific would probably compromise what I don't want to compromise and say. KING: You knew President Bush fairly well, did you not, before he became president? But you aren't intimate. ASHCROFT: That's correct. KING: What about him as president has surprised you? ASHCROFT: Well... KING: I mean, or couldn't have been expected. ASHCROFT: He has risen to this responsibility with a kind of certainty and confidence and determination and persistence. I've seen a thousand leaders. I've been around lots of them. I spent eight years as a governor, and eight years before as state attorney general. I spent time in the United States Senate. And it's not uncommon for people to be what I would call "crisis-focused." At the time of the most difficult time of the crisis, they're focused, but for them to lose focus. President Bush said we were in a war, and that it would be a long war, and that we would stay with it and that we would not relent and that we would not give up and we would pursue these individuals until they were brought to justice or we brought justice to them. I have the privilege of watching this president on a daily basis. And he has never indicated one iota's slowdown. He is totally focused. KING: Never distracted? ASHCROFT: I have -- you know, I've come to a new understanding of what I believe leadership is. There's a real element of genius in leadership, and he certainly has that. But there's an element of clarity in leadership. When you make clear what you're doing, and you stay with it, it's unwavering. It's not something that says on Tuesday, oh, I wonder if we should reverse field. It has -- pardon the athletic analogy -- but it runs north and south. It doesn't run for the sideline; it runs for the goal line. And perhaps one of the most... KING: And has that -- the degree of it surprised you? ASHCROFT: Well, perhaps one of the most inspiring things that I've ever seen in my life in public leadership has been the way in which this president has the ability to do identify noble objectives and goals and never run for the sideline. A lot of people want to be on the sideline cheering. It's the real leadership that goes for the goal line. And I have to say, I'm enthusiastic about this, because it's an inspiration to me. KING: We'll be back with our remaining moments with John Ashcroft and Ted Olson to cover some other bases -- don't go away. (COMMERCIAL BREAK) KING: We're back with our remaining moments with the attorney general and the solicitor general. We haven't looked up the records, but we think this is a first appearing together. John Ashcroft recently appeared somewhere else. We want to show you a little bit of that appearance -- watch. (BEGIN VIDEO CLIP) ASHCROFT: Yes, McCartney's 60 this year. I'm 60 this year. "Can't Buy Me Love." (END VIDEO CLIP) KING: Whoa! On "Letterman" yet. That's where you'll go if you blow this whole job. ASHCROFT: Oh, yes, yes. Don't -- people have told me over and over, don't quit your day job, John. KING: No, but you have fun doing that. ASHCROFT: Oh, it's so much fun. Shaffer is a great guy. And you know, I said to him, now, you're going to have to cover my back side on this. He said, "John, you start playing, we'll cover your back side, your front side, your right side and your left side." They're good. That's a great band. KING: A couple of other things. Last week, a Prince William County judge denied a motion to allow cameras for the trial of John Allen Muhammad. What do you think of cameras in the court, Ted Olson? OLSON: Well, I think that under certain circumstances, they're a good idea, and under some circumstances, they are not a good idea. KING: What do you think about the (UNINTELLIGIBLE)? OLSON: I'm not going to comment on that. KING: He's going to defend himself. OLSON: I think it's not wise to talk about that. KING: Do you have any opinions? ASHCROFT: No, I think... KING: You're going to... (CROSSTALK) ASHCROFT: That is right. Yes. The judge had to make a decision, and the judge had the facts before him about how the decision was to be -- how the situation would unfold. And I'm not going to -- from 1,000 miles away, I'll second guess a referee from the top row of the coliseum, but I won't second guess a judge from counties away. KING: Iraq, I know it's not directly in your bailiwick. ASHCROFT: Well, every American is concerned about... KING: So I'm asking you as an American. ASHCROFT: A nation that maintains and not only the aspiration but the capacity to develop and perhaps -- and has developed and has implemented weapons of mass destruction. There are hundreds of instances where Iraq has actually used evil chemicals on its own citizens. And the development not only of weaponry, which obviously can and has been turned on its own citizens, but a delivery capacity. You know, it's important -- if you have a weapon system, that's one thing. But if you have the ability to deliver it to be a threat to the world community, that's another thing. Let me just add one more thing about this. The world community understands this. The United Nations has acted over and over and over again, and very recently dramatically acted at the request of President Bush so that the world community understands this threat and doesn't want this threat to persist. KING: Governor Ann Richards was on the program Monday night. She's, as you know, a frequent critic of the administration. But she said before they go to war, they're going to have to show -- we're going to have to show -- we, the United States -- proof; not just statements, proof. Do you agree with that? ASHCROFT: Well, I believe the president has the requisite understanding and the requisite authority. You know, the Clinton administration, in 1998, said that if there weren't things done in Iraq in the next couple of years and specified the kind of activity, that they had to be dealt with, whether we did it basically by ourselves or could mobilize the world to do it. This isn't an issue that, once fully understood, divides very many people. This is an issue that sees this president simply having the courage to state that we will do what we ought to do and what the world community has agreed needs to be done. KING: Can you comment on the Zacarias Moussaoui trial, next year? OLSON: No. I think... KING: Probably the solicitor general might be involved in that. OLSON: We would not be involved in that at all. Experienced prosecutors are handing that case. And we would be involved only if there was something that went to an appellate court, or if we were asked what our view would be if certain rulings were made, and whether we'd be interested in taking an appeal. Otherwise we let the experienced people handle that level of case. KING: You're going to have to argue for the campaign finance law which you have argued -- which you disagree with. OLSON: No, I've never said a thing about it. (LAUGHTER) KING: The presumption is that, as a good Republican, you have disagreed. Well, put it this way: Lawyers have to do this. Are you just as strong when you are arguing a matter you may not personally agree with? OLSON: I am a lawyer. I represent the administration. And our responsibility is faithfully to execute the laws of the United States. That means to go into the United States Supreme Court and put on the best case we possibly can. KING: And you have to defend any laws you disagree with. ASHCROFT: Absolutely. KING: You can't agree with every law in the book. ASHCROFT: And people who say that they agree with every part of every enactment, first of all, couldn't possibly have read them and, secondly, are probably lying too much. But the job and responsibility of those of us that believe in the rule of law is that when something has the weight of law, passed by the Congress, signed by the president, it's our duty to defend it. And that's the clear understanding of the Justice Department. And it is clearly what we will do, have done and will continue to do. KING: What surprised you most about your job? OLSON: The quality of the people that work in the Justice Department. I knew that they were good, but I had a.. KING: Under any administration? OLSON: Under any administration, the career people. I knew they were good, but I had no idea how committed and dedicated and outstanding they were. I watched -- our office handled 65 arguments in the Supreme Court last year. I went and watched every argument that the lawyers from the Justice Department made, and I could not have been more proud or thrilled to be a part of them. They are so good. KING: I know you invited Janet Reno to the Justice Department after you came in, right, to spend a... ASHCROFT: I did. KING: ... part of the day with you, but you been in touch with her at all? ASHCROFT: I haven't been in regular touch with her. But I felt that there were things she might be able to tell me that would help me do a better job. KING: Did she help you? ASHCROFT: Sure, she did. And she got involved in a political campaign sometime after that. But she signaled to me in good faith things that she thought would be a good place for me to focus some attention. And I was grateful to her for that. KING: We only have less than a minute. Are you worried about a terrorist attack? ASHCROFT: Absolutely. This is a matter of great concern to me. It's something that motivates me every day. I want the Justice Department to be motivated. Prevention is the most important responsibility we have. KING: Thank you, Ted. It's always great seeing you. ASHCROFT: Larry, it's good to be with you. KING: The attorney general of the United States, John Ashcroft. The solicitor general, Ted Olson. Next is "NEWSNIGHT" with Aaron Brown. We'll see you tomorrow night with Donald Rumsfeld, the secretary of defense. Thanks for joining us. From Washington, good night. * * * December 30, 2003 Department Of Justice Press Conference, Washington, D.C. Deputy Attorney General James Comey Assistant Attorney General Christopher Ray APPOINTMENT OF SPECIAL PROSECUTOR TO OVERSEE INVESTIGATION INTO ALLEGED LEAK OF CIA AGENT IDENTITY AND RECUSAL OF ATTORNEY GENERAL ASHCROFT FROM THE INVESTIGATION MR. COMEY: Good afternoon, folks. I'm joined behind the podium by Assistant Attorney General Christopher Ray. We are here to announce a couple of procedural developments in the investigation into allegations that the identity of a CIA employee was improperly disclosed to the media last July. The first development is that effective today, the attorney general has recused himself and his office staff from further involvement in this matter. By that act, I automatically become the acting attorney general for purposes of this case with authority to determine how the case is investigated, and if warranted by the evidence, prosecuted. The attorney general, in an abundance of caution, believed that his recusal was appropriate based on the totality of the circumstances and the facts and evidence developed at this stage of the investigation. I agree with that judgment. And I also agree that he made it at the appropriate time, the appropriate point in this investigation. The second development is that prior to his recusal, the attorney general and I agreed that it was appropriate to appoint a special counsel [read: special prosecutor] from outside our normal chain of command to oversee this investigation. By his recusal, of course, the attorney general left to me the decision about how to choose a counsel, who that person should be and what that person's mandate should be. In anticipation of this development, I have given a great deal of thought to this in recent days and have decided that, effective immediately, the United States attorney for the Northern District of Illinois, Patrick J. Fitzgerald, will serve as special counsel in charge of this matter. I chose Mr. Fitzgerald, my friend and former colleague, based on his sterling reputation for integrity and impartiality. He is an absolutely apolitical career prosecutor. He is a man with extensive experience in national security and intelligence matters, extensive experience conducting sensitive investigations, and in particular, experience in conducting investigations of alleged government misconduct. I have today delegated to Mr. Fitzgerald all the approval authorities that will be necessary to ensure that he has the tools to conduct a completely independent investigation; that is, that he has the power and authority to make whatever prosecutive judgments he believes are appropriate, without having to come back to me or anybody else at the Justice Department for approvals. Mr. Fitzgerald alone will decide how to staff this matter, how to continue the investigation and what prosecutive decisions to make. I expect that he will only consult with me or with Assistant Attorney General Ray, should he need additional resources or support You should know that as I thought about this matter in recent days, I considered other alternatives. I first considered having the matter handled by Assistant Attorney General Ray and myself acting as ultimate supervisors and decision- makers. You will not be surprised to learn that I have great confidence in my own ability to be fair and impartial. I also have complete confidence in Chris Ray's ability to be fair and impartial. He is -- those of you who don't know him, he is a total pro and one of the people who makes this department great. But as I said, both the attorney general and I thought it prudent -- and maybe we are being overly cautious, but we thought it prudent to have the matter handled by someone who is not in regular contact with the agencies and entities affected by this investigation. As part of our counterterrorism responsibilities, Assistant Attorney General Ray and I work every single day with the national security intelligence community here in Washington. Mr. Fitzgerald, in Chicago, does not. At a time when fighting terrorism is the department's top priority, as it should be, it is imperative that Mr. Ray and I be able to focus on that responsibility without the complication that would come from also having to make decisions about this investigation. Let me add that my decision to assign this matter to the United States attorney from Chicago is not a reflection on the people who have conducted this investigation to date or the way they have done it. We have a fabulous team of FBI agents working this case, coordinating with some of our very best career lawyers. I now know in great detail the work that they have done very quickly in this investigation, and it is impressive. I should add that Mr. Fitzgerald may well decide to keep some or all of the career team that has been working this case, but that's entirely his call. I also considered naming a special counsel from outside the government. The regulations promulgated in 1999 by Attorney General Reno say that an outside special counsel should -- and I'm going to read you the quote -- "be a lawyer with a reputation for integrity and impartial decision-making, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies." When I read that, I realized that it describes Pat Fitzgerald perfectly. I once told a Chicago newspaper that Pat Fitzgerald was Eliot Ness with a Harvard law degree and a sense of humor. Anyone who knows him, who knows his work, who knows his background, knows that he is the perfect man for this job. The attorney general and I agree that all leak investigations must be conducted with energy and urgency. That is all the more true when the investigation centers on allegations that there has been a disclosure of national security information. To date this investigation has been conducted professionally and expeditiously, and I believe it would not be in the public interest for anything I do to cause this investigation to be put on hold for any period of time. My choice of Pat Fitzgerald, a sitting United States attorney, permits this investigation to move forward immediately and to avoid the delay that would come from selecting, clearing and staffing an outside special counsel operation. In addition, in many ways the mandate that I am giving to Mr. Fitzgerald is significantly broader than that that would go to an outside special counsel. In short, I have concluded that it is not in the public interest to remove this matter entirely from the Department of Justice, but that certain steps are appropriate to ensure that the matter is handled properly and that the public has confidence in the way in which it is handled. I believe the assignment to Mr. Fitzgerald achieves both of those important objectives. Now I'd be happy to take any questions you might have. Yes, sir? Q: What happened? I mean, you guys were defending the professional staff here at the Justice Department to handle it, and now all the sudden you're appointing Mr. Fitzgerald. What happened to tip it? MR. COMEY: Well, I think what the Department of Justice has said to date is that all options were open; that it was being handled professionally by the career lawyers and FBI agents on the matter. And that's absolutely true. I know the details of this investigation. I've been down in the weeds and looked at the work they've done, and it's exactly what you were told it was: career prosecutors working very, very hard on it. It's just that we reached a point in the investigation where the attorney general and I thought it was appropriate to make the judgment that's been made. Q: Well what's different? Why did you decide now to send it to Fitzgerald if everything was going so well? MR. COMEY: Well, I can't tell you that, and the reason for that is obvious; I can't tell you about the details of any criminal investigation because our goal is to make sure that anyone we're pursuing doesn't know what we're doing, and also, anyone who might not be charged with a crime is not unfairly smeared. What happened is that the attorney general and I have periodically looked at these facts that have been developed and made a judgment, based on the totality of the circumstances, as to whether he should remain involved in it, and if he's to be out of it, what I should do with it. And so I just decided that based on what I knew about it, it was appropriate, for the reasons I said, for the attorney general to step aside -- a conclusion he reached on his own -- and for me to assign it to an independent United States Attorney. Yes, sir? Q: Even without names, was there some conflict, particular conflict that arose? MR. COMEY: Well, the issue surrounding the attorney general's recusal is not one of actual conflict of interest that arises normally when someone has a financial interest or something. The issue that he was concerned about was one of appearance. And I can't go beyond that. That's the reason he decided, really in an abundance of caution, that he ought to step aside and leave me as acting attorney general for those matters. Yes, sir? Q: You mentioned the facts and the evidence that's been developed and how that played a role in this decision. Should this be seen as a sign that the evidence has taken you closer to people that Mr. Ashcroft has a connection with and that could create at least the appearance of a conflict? Has the evidence led you in that direction? MR. COMEY: I can't answer that, Eric. And I know it's inevitable that you're going to speculate. I really hope you don't do that because as I said, the attorney general made this judgment based on the totality picture, looking at all the circumstances and facts and evidence in the case. If you were to speculate in print or in media about particular people, I think that would be unfair to them. The reason, as you know, that we work so hard -- I've done this for a long time -- to keep these investigations secret is so that we don't do that to people. What I can tell you is that the investigation has been moving along very, very quickly; has been worked very, very hard and very, very well, and it reached a point where we simply thought these judgments were appropriate. Yes, sir? Q: Jim, but you did say, when you were asked why now, that you can't tell us that, you can't talk about the details of any criminal investigation. Is it at least safe to say that it's the details at this point that tipped the balance? Is that accurate? MR. COMEY: It's fair to say that an accumulation of facts throughout the course of the investigation over the last several months has led us to this point. What those facts are and where they tell us we're going is stuff I can't get into and that I would hope you would not speculate about. Yes, sir? Q: Without getting in the details of people, can you describe sort of the scope of the investigation in terms of how many agents are working on it? I guess there's another prosecutor that's been added recently. How many agents, how many prosecutors, and how many people have been interviewed? MR. COMEY: That's the kind of detail -- exactly the kind of detail I can't get into. All I can tell you is that based on my inspection of it, it's been worked well, it's been worked appropriately, it's been staffed appropriately. But beyond that, I can't say. Yes, ma'am? Q: Do you have any sort of timeline about when you think this investigation will be over? MR. COMEY: I do not. That will be Mr. Fitzgerald's call. He'll be in charge of the matter and he'll make that judgment. Q: How will this work from a procedural standpoint? Mr. Fitzgerald clearly is in Chicago, over 500 miles away. How will he lead an investigation that (normally ?) takes place here in Washington? MR. COMEY: Well, there are -- I think hourly -- flights, maybe very half-hour, to Chicago. And he'll get to know those folks. Q: (Off mike) -- from Chicago? I mean, how will this work? MR. COMEY: That's his -- Q: How will he juggle it with his duties based in Illinois? MR. COMEY: Well, that's a call he'll have to make. He understands the priority here. I told him that my mandate to him was very simple: Follow the facts wherever they lead, and do the right thing at all times. And that's something, if you know this guy, is not something I even needed to tell him. Yes, ma'am? Q: Can you clarify the timeline a little bit? You said Ashcroft made the decision to recuse himself and informed you of it. Can you tell us when that decision was made, when he told you? You said you've been thinking for a couple days on how to proceed. Can you tell us about that timeline? MR. COMEY: Well, this has come together really in the last week. The attorney general entered -- I don't know whether it was entered an order, but a document was created this morning that memorialized the recusal. It has to be done kind of officially. Once that was done, I officially became assistant -- excuse me, acting attorney general for the purpose of this case, and then was in a position to do what I've described. But because we've been discussing this matter and had sort of reached this conclusion over the last week, I had plenty of time to think about what I wanted to do with it. Q: Is this a suggestion that you brought to him first? MR. COMEY: I don't want to talk about my discussions with the attorney general. What I can tell you is that it was always in his mind that it might be necessary at some point for him to step away from this, step aside from this, and that it might be necessary to change the way it was approached, to move it outside the normal chain of command. I can't -- and for that reason -- that was the reason -- much was made in the press, apparently, that he was learning about the facts of it. He was being briefed periodically on the facts, so that he could make the very judgment he made here. And I can tell you none of that acted to delay this investigation in any way. The attorney general learned enough about the case that at a point where it was appropriate, he made the judgment to step aside. And I, at the same time, was making my own judgments, and that is agreeing with him that it was appropriate for him to step aside, but also reaching the conclusion that it was appropriate to change the way we were handling this, for the reasons I talked about in my statement. And as I said, I have great confidence in the two guys standing on this stage. And -- but my judgment was, simply because of the subject matter involved here and our duties -- which most people don't realize, but we spend part of every day working on national security intelligence stuff -- that it was better for us to be able to focus on that, which is our nation's number-one priority, and not, at the same time, be making judgments about who to interview and all the things that come with an investigation. Yes, sir? Q: Pat Fitzgerald works a lot with national security and intelligence issues as well, however, does he not? I mean, he's running one of the largest U.S. attorney's offices in the country. He's overseen some major prosecutions. Where's the line between the contact you two have versus the kind of contact that he -- he's also fairly well-known, I think, for his work in national security. MR. COMEY: He is, but his -- not to say what he's doing now is not real important, but his role is very, very different. I mean, every day Chris Ray and I are dealing with the key national security intelligence agencies. Mr. Fitzgerald is not. He may have a case that occasionally brings him into contact with that, but he's running a U.S. attorney's office, working on corruption cases, drug cases, gang cases. It's a very different sort of connection. And so that's why I thought this was appropriate. Yes, sir? Q: Will this office be an independent office that's set up someplace outside of Justice and the FBI, where most of the people may be drawn from? (Off mike) -- special prosecutor's office. MR. COMEY: I don't know where it'll be housed. Wherever Mr. Fitzgerald wants to house it, we'll make sure we get him the space that he wants. That's not a matter I've discussed with him. Q: You mentioned that the attorney general's office -- the staff in his office itself are also being recused. Why was that decision made? And who and how many people are included in that recusal? MR. COMEY: I don't know how many people. The entire -- "personal staff" is not what they call it, but the entire staff of the office of the attorney general would be recused. And that, I believe, is fairly standard fare, because they are -- just as my staff, whether they like it or not, is an extension of me, his staff is an extension of him, and they're of a piece. There was a question -- Q: Attorney General Reno said several years ago -- and I think many of us quoted this when all this came up -- that many of the investigations -- leak investigations are closed without a suspect ever being identified. Can you tell us if a suspect or suspects, in your term of art, has been identified in this case, or do you -- are you confident that that is likely to happen in this case? MR. COMEY: I can't do that. Just -- and it's not this particular investigation. I would never say that kind of details on any pending criminal investigation. I just can't do it, for the reasons I said. We don't want people that we might be interested in to know we're interested in them. We also don't want to smear somebody who might be innocent and might not be charged. That's why the secrecy of our process, I think, is what makes our process great. STAFF: A question here. Sir? Q: Does the attorney general still have the authority to fire the U.S. attorney? MR. COMEY: No. I don't think the attorney general ever has the authority to fire a U.S. attorney. It's one of the things I loved about being a U.S. attorney. I believe the president is the only person who has authority to remove a United States attorney. In this circumstance, because the attorney general is recused, I am the acting attorney general, for purposes of this matter. So to the -- Q: Could you fire Fitzgerald? MR. COMEY: That's a great question. (Laughter.) Now I believe that I could revoke the delegation of authority that I've given to him. I don't believe that I could -- Q: So how does that move it outside the traditional chain of command, as you put it? MR. COMEY: Well, because what I've done with Fitzgerald is -- the normal outside counsel, appointed outside, or the ordinary U.S. attorney, if he needs to issue a subpoena involving the media, for example, or if he wants to grant immunity to somebody or if he wants to take an appeal, has to come for approval to the Department of Justice. Pat Fitzgerald will not, for these purposes. He is a -- Q: If you don't like what he's doing, you can end it. MR. COMEY: Well, in theory, if I know what he's doing, in theory I could, yeah. And I'd better have a darn good reason for doing it, because you'd have your hands in the air. Yes, sir? Q: I wanted to ask you an unrelated question about the Code Orange and the terrorism alert. As we go into the New Year's Eve, can you discuss at all what the current status is, whether you think threats are diminishing or staying the same or getting more intense? And also if you can comment at all about the flights from Paris, the Air France flights, and what seems to be a disconnect between the French, saying that there doesn't appear to be that much of a problem, and people here saying that they do believe there was a threat on that flight? MR. COMEY: Okay. All of those questions really are best addressed to Homeland security. What I can tell you is I think what Secretary Ridge has already said, and that is that we are in a period of heightened concern, and as he said, I think, that extends into January. Folks shouldn't think that if the New Year's Eve passes, that we're out of the woods with regard to the heightened alert. So that remains. With respect to the Air France flight, that's really not something I could comment on. Yes, sir? Q: How was the White House informed about this decision? MR. COMEY: I contacted each of the general counsels of the agencies that had been affected in some way or contacted as part of this investigation. That is, I called Defense, State, CIA and White House Counsel's Office to simply inform them that there was going to be a change in the prosecutor in charge of this matter, I would announce it at 2:00. I did that in the last several hours. Q: But there was no separate consultation with the White House? MR. COMEY: No. No. All I did was just inform them, as I did, as I said, State, Defense, CIA: I just want to tell you, here's what I'm announcing at 2:00. Q: And the attorney general didn't consult with them or inform them personally of his decision? MR. COMEY: I can't speak to -- I don't believe so. I can't speak to that. I don't think there was any consultation of the attorney general with those agencies. Yes, sir? Q: You mentioned that the -- you felt that Fitzgerald will have a broader -- actually a broader mandate, broader abilities than an outside counsel. Can you expand on that a little bit? In what respect will he have a -- MR. COMEY: Yes. An outside counsel has a -- the regulations prescribe a number of ways in which they're very similar to a U.S. attorney. For example, they have to follow all Department of Justice policies regarding approvals. So that means if they want to subpoena a member of the media, if they want to grant immunity, if they want to subpoena a lawyer -- all the things that we as U.S. attorneys have to get approval for, an outside counsel has to come back to the Department of Justice. An outside counsel also only gets the jurisdiction that is assigned to him and no other. The regulations provide that if he or she wants to expand that jurisdiction, they have to come back to the attorney general and get permission. Fitzgerald has been told, as I said to you: Follow the facts; do the right thing. He can pursue it wherever he wants to pursue it. An outside counsel, according to the regulations, has to alert the attorney general to any significant event in the case; file what's called an "urgent report." And what that means is just as U.S. attorneys have to do that, he would have to tell the attorney general before he brought charges against anybody, before maybe a significant media event, things like that. Fitzgerald does not have to do that; he does not have to come back to me for anything. I mean, he can if he wants to, but I've told him, our instructions are: You have this authority; I've delegated to you all the approval authority that I as attorney general have. You can exercise it as you see fit. And a U.S. attorney or a normal outside counsel would have to go through the approval process to get permission to appeal something. Fitzgerald would not because of the broad grant of authority I've given him. So, in short, I have essentially given him -- not essentially -- I have given him all the approval authorities that rest -- that are inherent in the attorney general; something that does not happen with an outside special counsel. Q: I assume this is written down somewhere, and are we going to get a copy of it? MR. COMEY: I don't know whether you'll get a copy, but he will. Q: Getting back to orange alert for a second, what are DOJ's responsibilities in an orange alert situation? I mean, we know what TSA does, DHS. What does the Justice Department do? And also, do you plan to file any kind of response on the Padilla case? (Off mike) -- halfway through the 30 days. MR. COMEY: With respect to the orange alert, the Justice Department's role in general, obviously, is before the alert level is raised, the attorney general is part of any deliberations about raising that. More generally, I hope you know what we do, and that is the men and women of the FBI and all of our agencies are out there working like crazy to try and keep the homeland safe. I can't answer it other than -- as broadly as that. A lot of people's holidays have not been holidays because of the effort they've been putting forth, and I hope people remember that. With respect to Padilla, I can't comment. I know we still have time on the clock, but I don't know exactly where it stands. Eric? Q: President Bush said, soon after the leak story broke, that he wasn't sure that the leaker would ever be caught. I know you can't talk about specific suspects that you may be narrowing in on, but in general, are you confident that this case is going to result in a prosecution? MR. COMEY: That's not a characterization I can make. I wouldn't do it about any case, but I'm not going to do it about this case. All I can tell you is that I'm confident that the facts will be found professionally and that the judgments will be made by someone with impeccable judgment and impartiality, and that is Mr. Fitzgerald. Yes, ma'am? Q: Have you set a budget for Mr. Fitzgerald's office? And -- well, that's it. MR. COMEY: The answer is no. Mr. Fitzgerald's office has a budget, which he no doubt -- as U.S. attorney -- no doubt thinks is too small. And that's what I meant when I said resources. If he needs people or money or chairs or sticky pads, he can come back to me or to Assistant Attorney General Ray and we'll make sure that he gets it. I would expect that because he's already in the Department of Justice, we already have a team in place, he'll at least be able to draw on some, maybe all, of those resources and supplement them. He happens to run one of the best U.S. attorney's offices in the country, and he has senior people with great experience in a host of issues that might be relevant. So I would expect he'd draw on those troops. Q: So there won't be a separate budget for this independent investigation? MR. COMEY: No. Yes, ma'am? Q: He's just building on what Mr. Dionne (sp) has already completed; is that correct? And what happens to Mr. Dionne (sp)? Will he work for MR. Fitzgerald? Will he continue to play an important role in this investigation since he's conducted the majority of the investigation to this point? MR. COMEY: Well, that's a judgment for Mr. Fitzgerald to make as to what he builds on, what he does. I'm sure he knows of Mr. Dionne's (sp) reputation just as I do. But again, I don't want to prejudge that. It's entirely his call as to how he staffs it. Like I said, I wouldn't be surprised if he thought maybe he ought to keep some or all of the career folks involved. I know that one of the things that makes Mr. Fitzgerald a great prosecutor is that he works quickly. He understands that justice delayed is not a good thing. So I would expect -- and that's one of the things that made me prefer this over an outside option. Mr. Fitzgerald can be here -- (snaps his fingers) -- like that to pick up this ball and to run with it, which would not be possible with the alternative. Q: (Off mike) -- bring people from Chicago -- (off mike) -- to Washington? MR. COMEY: The answer to that is I don't know. And I really would not presume to tell him that. I'm giving him a broad mandate and saying this is your charge. Yes, sir? Q: A quick question. Eric asked if you were confident that you could -- that you might be able to prosecute the leaker. That's a pretty high standard of proof. Are you confident that you will be able to identify the leaker or leakers? MR. COMEY: Same answer I gave Eric, which I hope was vague and noncommittal. Thank you, folks. (end transcript) * * * * * * * * *