Senate Judiciary Committee Hearing on the Inspector General's Report on September 11th Detainees

Senate Judiciary Committee Hearing on the Inspector General's Report on September 11th Detainees
(This is a Partial Transcript)
June 25, 2003
SECTION: CAPITOL HILL HEARING
HEADLINE: HEARING OF THE SENATE JUDICIARY COMMITTEE
SUBJECT: INSPECTOR GENERAL'S REPORT ON SEPT. 11TH DETAINEES
CHAIRED BY: SENATOR ORRIN HATCH (R-UT)
WITNESSES:GLENN A. FINE, INSPECTOR GENERAL, DEPARTMENT OF JUSTICE
HARLEY G. LAPPIN, DIRECTOR, FEDERAL BUREAU OF PRISONS, DEPARTMENT OF JUSTICE
MICHAEL E. ROLINCE, ASSISTANT DIRECTOR IN CHARGE, WASHINGTON FIELD OFFICE, FEDERAL BUREAU OF INVESTIGATION
DAVID NAHMIAS, COUNSEL TO THE ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE
FEINGOLD:
There's no question that the investigation of the September 11 attacks presented one of the greatest challenges to federal law enforcement in American history. And I think we can all agree that in countless ways the men and women of the Department of Justice performed admirably in the weeks and months after the horrific attacks on our nation. And for that, I and the American people will be forever grateful.
That gratitude is not diminished by concern over abuses of power that occurred, but it should also not diminish our determination to understand what occurred, demand that the department address those abuses and assure that they never occur again.
I'd like to commend and thank the inspector general for his fair and candid review of the department's conduct in the aftermath of September 11. He has performed an invaluable service.
The inspector general's report is a powerful reminder to Congress and the American people of the importance of independent internal watchdogs in federal agencies.
Mr. Chairman, a year and a half ago, when this committee held oversight hearings on the department's post-September 11 conduct, including a hearing I chaired, this committee asked questions about many of the issues raised by the inspector general's report. I must say that I certainly did not imagine that I would one day be sitting here and hearing from one of the department's own officials criticizing the department's conduct.
I cannot emphasize enough the significance of the inspector general's report, and I again commend him for his work.
Before I get to my questions, Mr. Chairman, I also want to say, in agreement with the ranking member, I find it very troubling that neither the attorney general or the deputy attorney general are here to testify today. I know that Senator Leahy requested that one of them appear. The absence of a high-level official from main Justice frustrates legitimate and meaningful oversight of the department.
This is unfortunate. I mean, imagine the attorney general or the deputy attorney general are not here to respond to an inspector general's report about serious abuses within the Justice Department.
There are inconsistencies between the abuses identified by the inspector general and the department's explanation of its conduct, including statements by the attorney general and other high-level officials to this committee in 2001 and by the attorney general at a House Judiciary Committee hearing earlier this month. It obviously would have been useful to have the attorney general or the deputy attorney general before this committee so that we could seek clarification of these issues from the department's leaders.
My chairman, in view of the attorney general's absence today, I have sent him a letter asking him to respond to the questions I would have asked him had he appeared before us today. Mr. Chairman, I ask unanimous consent that this letter be made part of the record, and I ask the attorney general to respond to these questions promptly.
HATCH:
Without objection.
FEINGOLD:
Thank you, Mr. Chairman. With that, I'll turn to my first question.
Mr. Fine, in response to your report the department stated in a press release, quote, "that the law was scrupulously followed," unquote. Now, just so we're clear, that's still an unresolved question, at least as far as your office is concerned, because your review did not include -- did not include an analysis of the legality of the department's conduct. Isn't that correct?
FINE:
We did not take a position on certain aspects of the department's conduct. We did not state, we did not find that things were illegal, but there are certain issues that are involved with the courts and that we did not take a position on.
FEINGOLD:
Your report did not conclude that the department's conduct was legal, correct?
FINE:
We did not state that in our report.
FEINGOLD:
According to the department's press release and the attorney general's testimony before the House Judiciary Committee earlier this month, the department cites an Office of Legal Counsel opinion purportedly providing a legal basis for its continued detention of individuals who had been issued a final order of removal. Yet that OLC opinion was issued just this year in February, it had not been issued at the time the department was making these detention decisions during the fall of 2001 and 2002.
On the issue of access to counsel, your report found that senior department officials actively sought to undermine detainees' communications with counsel and consular or diplomatic officers, as well as their families. And of course your report presents disturbing allegations of verbal and physical abuse of some detainees.
Given the abuses you chronicled in the report, do you agree with the department's assertion that, quote, "the law was scrupulously followed," unquote? If not, how would you describe the department's conduct?
FINE:
Well, I think the whole report has to be reviewed. And we laid out in significant detail the issues and some of the concerns that people had. I know even within the department there were some issues and concerns about some of the policies and the legality of the policies. We also pointed out, as you just mentioned, the Office of Legal Counsel opinion which did come well after the conduct at issue, and that was one of the criticisms that we had, that it should have been considered, the legality of it, in a more careful and timely way at the time that it was occurring. We also note that there is ongoing litigation and court suits about this.
So I do think it's important to review the entire report, and we tried to lay out the facts and let people make their own judgments about that.
FEINGOLD:
Thank you. Mr. Fine, as a follow-up to a question from Senator Hatch about whether DOJ officials intentionally physically or verbally abused detainees, did you find that DOJ officials or its components' employees were aware or had knowledge that some detainees were experiencing verbal or physical abuse?
FINE:
We did not find that. I think there was one instance in the report where we mentioned that there was an allegation of abuse that was brought to the department. The department asked to look at it -- to look into that.
What we state in the report is that the physical and verbal abuse, we do not have evidence that it was condoned or encouraged by anyone higher up than the correctional officers who engaged in it.
FEINGOLD:
And with regard to a question Senator Leahy asked, just to be sure, could you tell the committee how department officials reacted to the report once it was completed and forwarded to them? Was there any internal debate about its findings, conclusions or recommendations or the decision to make it public? And were you or your staff asked or encouraged to modify any sections of the report before it was finalized? I understood your testimony to be that nothing was changed, but I'm asking you about whether there were these kinds of conversations and concerned.
FINE:
When the report was provided to the initially for a factual accuracy review there were some comments made about the accuracy of certain things and there were some adjustments made. As to the conclusions, I'm sure there were some concerns about the conclusions, but it was our report and we wrote the report and we stuck with the report and we stick with the report.
FEINGOLD:
Were you asked or encouraged to modify any sections of the report before it was finalized?
FINE:
There were some concerns about the sensitivity of it and whether it would have an impact on ongoing litigation, and so there were concerns about the release of some of those sections. We included them in there; they're in there. And we did not drop those issues that could have an impact on ongoing litigation. We thought... (CROSSTALK)
HATCH:
The senator's time is up.
Let me just state for the record, I understand the desire to have the attorney general appear before the committee. You know, as I've said earlier, I will hold a general oversight hearing concerning the Department of Justice at which the attorney general will have to appear as a witness. But it is important to note that oversight does not require the attorney general at every hearing.
Today's hearing is a good example. We have knowledgeable witnesses who can provide excellent firsthand information for us, which is what we're really after. And I urge my colleagues to, you know, take advantage of this opportunity to ask these excellent witnesses...
FEINGOLD:
Mr. Chairman?
HATCH:
... any questions they feel like now about the inspector general's report and to find ways to improve the Department of Justice and the Department of Homeland Security.
FEINGOLD:
Mr. Chairman, if I could just make one brief comment?
HATCH:
Sure. Well, let me just finish my comment first. In my view, I think time spent complaining about who the witnesses are today is wasted time. Let's get on with the hearing and then we will have follow-up hearings. I've mentioned I'm going to have the FBI director in on July 23, and we're certainly going to have the attorney general. But we have excellent witnesses here today who will help us to understand this IG report, and they're firsthand witnesses.
Yes, Senator?
FEINGOLD:
Mr. Chairman, I appreciate your courtesy.
HATCH:
Sure.
FEINGOLD:
Just 10 seconds on this. I certainly understand that the attorney general should not appear at all the hearings, but the symbolic importance of an inspector general's report about abuses within the Justice Department I think requires the top person to be here to respond.
HATCH:
Well, he will be here. He will be here.
FEINGOLD:
But in a context...
HATCH:
So will the FBI director.
FEINGOLD:
But, Mr. Chairman, if I may finish, in a context where that is the focus on of the entire hearing, not one of these around the world hearings where we all bring up 8,000 different issues as we must at a general oversight hearing. This is unique, this is important, and this should be the exclusive focus of a hearing where the attorney general should respond.
I thank you, Mr. Chairman.

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