Squabbling returns

Ashcroft seethes over Senate Democrats and the holdup over anti-terrorism legislation.

Published October 3, 2001 11:22PM (EDT)

Perhaps a return of public debates and partisan snipes can be seen as a good thing, a sign that we're returning to normal. If so, take comfort.

Attorney General John Ashcroft returned to his old stomping grounds in the U.S. Senate Tuesday where, standing with Republican Senate leaders, he complained about "the rather slow pace" Senate Democrats are displaying in dealing with his anti-terrorism bill.

In the closed-door confines of the Republican Senate policy lunch, the former Missouri senator was even harsher. According to a Senate GOP source, Ashcroft expressed serious frustration with the progress of the anti-terrorism bill. "He said he's had three weeks of meetings with [Vermont Sen. Pat] Leahy" -- the Democratic chairman of the Judiciary Committee -- "and the time for discussions is running out," the source said.

After the lunch, standing with Senate Minority Leader Trent Lott, R-Miss., and Sens. Orrin Hatch, R-Utah, and Dick Shelby, R-Ala., the ranking Republicans on the judiciary and intelligence committees, respectively, Ashcroft made pointed comments that were a noted departure from the displays of patience and bipartisan cooperation that have marked congressional reaction to the Sept. 11 attacks.

"Talk won't prevent terrorism; tools can help prevent terrorism," Ashcroft said. "I'm deeply concerned about the rather slow pace at which we seem to be making this come true for America." Ashcroft said he visited the Congress to talk with senators and "to describe to them the kind of urgency that I feel that is necessary."

The remarks, taken with other comments the attorney general has made in the last few weeks, seem to reveal a law enforcement executive growing increasingly frustrated with Congress and its failure to act with the urgency and immediacy that have characterized the actions of the Justice Department and its agencies, such as the Federal Bureau of Investigation, in the wake of the Sept. 11 attacks.

Even with the new cooperative spirit in Washington, however, Ashcroft has been urging quick action on his proposed laws. In the last few weeks, he has been describing a "clear and present danger to Americans" that necessitates Congress to grant expanded powers to law enforcement to combat terrorism as soon as possible. On Tuesday he complained of an "urgency" that the Senate was not heeding, while House Democrats and Republicans came to an agreement on a similar bill earlier this week.

Ashcroft had met on Tuesday at 11 a.m. with Hatch, Leahy and White House counsel Al Gonzales. He must not have liked what he heard. Ashcroft had previously said that he hoped his anti-terrorism bill could pass by the end of the week, but according to a Democratic Senate leadership aide, there was only a "hope" that Ashcroft's bill could be scheduled for a vote by the end of the week.

According to Leahy spokesman David Carle, however, an agreement was within reach until Tuesday's 11 a.m. meeting. On Sunday night, Carle said, staffers representing all four negotiators -- Leahy, Hatch, Ashcroft and Gonzales -- finally came to an agreement on a sticking point, the matter of whether wiretapping and grand jury evidence about terrorism could be shared with other federal agencies, such as the intelligence agencies. The Bush administration wanted free and unfettered information sharing, whereas Leahy wanted more protections. A compromise had finally been reached, Carle said, where information about terrorism could be shared on an immediate basis as long as prosecutors provided notice to a judge after the fact. The information could be shared on a non-emergency basis by obtaining a court order.

When Leahy spoke to reporters after Ashcroft's comments, he at least suggested that Senate Democrats and the White House had reached some sort of understanding on the anti-terrorism bill earlier in the week, and he didn't understand the current problem. "Just now, I asked Vice President Cheney to please go back and find a way to solve this problem," Leahy said.

According to Carle, the Tuesday morning meeting was going to be a time for all four principals to sign off on the compromise, after which the bill would be sent to Lott and Senate Majority Leader Tom Daschle, D-S.D., for decisions as to how the bill would best be introduced. But the meeting "started with Gonzales backing away from the crucial agreement Sunday night without explanation," Carle said. "And that was it for the meeting."

Leahy is "puzzled as to why he [Ashcroft] handled it this way," Carle said. "We clearly lost a day we didn't need to lose."

According to the GOP source, at the Republican Senate Policy lunch, after his meeting with Hatch, Leahy and Gonzales, Ashcroft described a conversation with Leahy where Leahy seemed to be trying to scale back existing Justice Department powers, rather than providing the department with more ways to root out terrorism. The Justice Department currently has the ability to seek a warrant to monitor an individual by going to a judge and certifying that the individual is a suspect or a possible threat. Monitoring these individuals does not include the content of their phone calls and e-mails, but rather trapping and tracing them.

At his meeting with Leahy, Ashcroft said, the Vermont Democrat was trying to actually weaken that law, requiring the Justice Department to prove that a suspect is a threat, rather than to merely certify it. A Senate Democratic source said that plenty of Republicans -- including most on the House Judiciary Committee as well as Ashcroft himself when he was a senator -- recognized that many of these devices were coming perilously close to monitoring the content of Internet communications, and favored the higher burden. All Leahy wants to do is to change the law to allow judges the discretion to require more evidence if the judge saw fit to do so. It was a vote he anticipated he would lose 3-1 in his meeting with Ashcroft, Hatch, and Gonzales, and he was prepared for that, the Democratic source said.

Senate Democratic aides expressed confusion at Ashcroft's exasperation, arguing that others in the administration seemed to understand congressional pleas that everyone was working as fast and hard as they could. In a Tuesday morning meeting with House and Senate leaders, President Bush seemed to get that, one Senate Democratic leadership aide said.

Though the original hope was to have the Judiciary Committee find consensus and unanimity on the anti-terrorism bill, ranking Republican Hatch on Tuesday seemed to be coming up with an alternative plan. "I suggested to Senator Leahy if we don't get it done by tonight, then let's call the bill up on Thursday in a markup" in public during a Judiciary Committee meeting, Hatch said. "We'll just battle it out and we'll -- whoever wins, wins."

Hatch expressed confidence that the public would stand with Ashcroft and not the Democrats on this matter. "I think the American people would be shocked to find that we cannot get wiretap authority ... to go after terrorists," Hatch said.

Some Democratic officials have expressed the view that Ashcroft is merely capitalizing on the Sept. 11 tragedy to scare the nation into giving law enforcement expanded powers, many of which were sought before the terrorist attacks. Senate Democratic staffers have cautioned that they don't want to overreact as previous U.S. governments have done, with the Alien and Sedition Acts in the aftermath of the Revolutionary War, the suspension of the writ of habeas corpus during the Civil War, and the internment of Japanese-Americans during World War II.

But Senate Republicans say that law enforcement is hamstrung, and that the American people want and need the kind of security Ashcroft's anti-terrorism bill would afford the nation. The threats are real, they say.

On CBS's "Face the Nation" Sunday Ashcroft stressed that "we think that there is a very serious threat of additional problems now." On CNN's "Late Edition," Ashcroft warned that "the threat of more violence still exists." Which ones? What threats? "Individuals -- not only those involved in the hijackings, but related individuals -- making inquiries about crop dusting, and being observant of literature on how to disperse things in an aerosol way." There are "threats of explosives," Ashcroft added, seeming to provide a list of threats and then cutting himself off, simply stating "there are all kinds of threats."

Whether the threats are specific or vague, Ashcroft has been erring on the side of caution, warning the governor of Massachusetts and the mayor of Boston a few weeks ago about a possible terrorist plan to wreak bio-terrorism on the city on the weekend of Sept. 22.

Regardless, the threats seem to be motivating Ashcroft quite a bit. In a Senate Judiciary Committee hearing Sept. 25, Ashcroft pledged to work with those from both parties who expressed civil liberties concerns with some of the expanded law enforcement powers Ashcroft was requesting. But beneath the surface, one could maybe discern a slight edge, some irritability, with the concerns of the Senate.

Sen. Arlen Specter, R-Penn., asked about the possible need for the Senate to pass "hate crime" legislation that would add additional penalties for those crimes motivated by prejudice and bigotry.

"This was perhaps the most massive hate crime ever perpetrated," Ashcroft replied to Specter, referring to the Sept. 11 terrorist attacks. (Ashcroft had earlier condemned "acts of violence or discrimination against people in this country based on their race, national origin or religion.")

The reason for the delay in House and Senate passage of Ashcroft's proposals revolves around civil liberties concerns held by many members of both parties in both bodies of Congress. Some address whether the government can detain non-citizens in this country on an indefinite basis if they are suspected of terrorism -- a request that Ashcroft seemed to be backing off in last week's hearing. In the House Judiciary Committee on Monday night, the chairman and ranking Democrat, Reps. James Sensenbrenner, R-Wis., and John Conyers, D-Mich., reached a compromise measure wherein immigrants suspected of terrorism could be detained for seven days before law enforcement would either need to bring charges or release them.

The House bill will be "marked up" in committee Wednesday and could come to the House floor for a vote as early as Thursday, said John Feehery, spokesman for House Speaker Dennis Hastert, R-Ill. "It's a done deal," Feehery said.

But such is clearly not the situation in the Senate. And while a Senate GOP leadership source says that while Ashcroft, his bill, and his demand for immediate passage of the bill all seem to enjoy the unanimous support of the GOP caucus, during last Tuesday's Senate Judiciary Committee hearing that did not necessarily appear to be the case. There, at least one Senate Republican seemed to agree with Leahy's concern that the trap and trace technology -- which provides simple information about a phone call but not its content -- cannot be considered "technology neutral" as Ashcroft seemed to be requesting, since trap and trace monitoring of the Internet provides more information that it does for phone calls.

"The fact is, they're not the same," Sen. Chuck Grassley, R-Iowa, said to Ashcroft. "E-mail routers contain some information about what is contained within," the senator said, which means that Ashcroft's proposal might "go farther than we want to go."

In these and other matters, Ashcroft expressed the belief that compromise was possible. But he continued to reiterate that as of right now, "terrorists have the competitive advantage." Law enforcement personnel were like soldiers being sent "into a modern field of battle with antique weapons," he said. Federal wiretap laws were established back in the day of rotary telephones, he noted.

But, at least as Democrats were concerned, one hearing didn't seem to be enough. Ashcroft was available for questions for only an hour in that hearing, prompting Sen. Chuck Schumer, D-N.Y. -- one of the many senators not afforded the opportunity to ask him questions -- to say "this is such an important issue; we'd like to have him back."

Leahy, for his part, remarked upon the "scores of items" in Ashcroft's bill about which there was agreement. These included reviewing penalties for terrorism and authorizing "roving" or "multi-point" wiretaps for intelligence investigations, so wiretaps could be pinpointed to the suspected terrorist in question and any phone he or she might use, instead of applying only to one phone.

But on Tuesday Hatch said that this was still a sticking point. "Under current law, we can't follow the terrorists, we have to follow the phone," Hatch said. "They'll have 10 phones and throw them out the windows so that there's no way we can do it without getting a warrant in every jurisdiction where they show up. We should have roving wiretap authority."

Last week, Leahy said that they would draft a bill including the "consensus" items and "to the extent other complex proposals are in disagreement, we can continue working on them in the weeks and months ahead."

"Developing a comprehensive response may take a little time, but needs to be done right," Leahy said. Ashcroft seems to be publicly wondering if the nation has the luxury of "a little time."

By Jake Tapper

Jake Tapper is the senior White House correspondent for ABC News.

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