Attorney General John Ashcroft was called to testify before the Senate Judiciary Committee today, only his third visit. Senator Kennedy and others on the Committee are seeking Justice Department memoranda linked to an ongoing debate within the Bush administration regarding the use of extreme stress and torture as interrogation methods. The Wall Street Journal and the Associated Press report the administration determined torture was legal and that the memoranda now sought represent the passing of this determination from one agency to another, and advising the President himself of their findings.

Ashcroft today refused to submit the memoranda in question to the Senate Judiciary Committe for review in conjunction with Senate investigations into the incidents of torture uncovered in Iraq, through photographs linked to Abu Ghraib prison and various other detention facilities, with evidence of similar abuses in Afghanistan and Guantánamo Bay. Serious questions are also being asked about a report in which Chief White House Counsel Alberto Gonzáles allegedly asserted that torture was not in fact banned under US or International Law and that the Geneva Conventions need not apply, advising the President to use this information in plotting his policy for interrogations.

Senators believe that, as reported in various broadsheets this week, at least 3 memoranda being withheld contemplate the unconstitutionality of anti-torture treaties, and may assert that torture should be used in certain circumstances. The Attorney General explained that due to his function as a top executive law-enforcement official, he cannot turn over memoranda related to executive advice to a legislative body. The language of his claim appears to fall within the policy known as 'Executive Privilege', but Sen. Joseph Biden reminded the AG that he does not have authority under the Constitution to claim Executive Privilege in this case, and Mr. Ashcroft admitted that only the President can legally invoke Executive Privilege.

Sen. Biden went on to remind Mr. Ashcroft that he may be in Contempt of Congress, under the Constitution, for refusing to provide requested testimony to Congress, since no privilege applies. The memo reportedly suggests the President has authority as Commander-in-Chief to use "any means necessary" to secure the nation. The contention, if true, raises the most disturbing question of all: whether some officials in the current administration have come to believe that the President can assume virtually absolute power through a wartime "presidential directive". Clearly members of Congress take issue with the notion that all wartime situations exclude the Legislature from any oversight authority under the Constitution.

Sen. Kennedy raised a critique based precisely in that point of conflict: suggesting that in overstepping legal bounds, the contested memoranda created a climate in which executive officials came to believe they would be shielded from prosecution, even if their actions were illegal, and that with or without a direct order, the result was torture at Abu Ghraib. AG Ashcroft repeatedly contended that the administration has never issued any directive that would violate any US laws or any of the treaties signed by presidents and ratified by Congress.

The obvious sticking point was the growing suspicion that some top Executive officials had adopted the policy that torture was in fact permissible, due to their assertion of sweeping new presidential security powers, a line of reasoning referred to in the Washington Post report on the undisclosed memoranda. When asked if President George W. Bush had issued any directive shielding top officials from prosecution for involvement in a scheme to violate torture bans, the AG responded that the President had issued no such order. He had also previously cited a number of different investigations, under distinct authorities, which may lead to prosecutions.

Sen. Feinstein suggested that the obscured memoranda clearly seek to redefine torture in order to "carve out" a special niche within existing laws, overturning decades' worth of consistent anti-torture policy. In response to Sen. Feinstein's critique, Mr. Ashcroft read from the "Torture Act" definitions of torture, which he seemed to suggest justified the administration's policy of arranging a special regime of extreme stress interrogations. Though the question put to him had asked if he would release the memoranda under classified status, he entered into a prolonged rumination on why torture is permissible and the Geneva Conventions do not apply.

He then paradoxically noted that the Uniform Code of Military Justice "is everywhere". The loophole purported by the AG's testimony apparently emerges where Sen. Feinstein noted it might, in the alleged DoJ memorandum advising that the President can use military authority to shield himself and others from responsibility to existing laws.

The news has gone around the world by now, many times, that the White House was specifically advised that torture was no longer prohibited. The Washington Post today reports on at least one of the memoranda, which it cites, saying: "international laws against torture 'may be unconstitutional if applied to interrogations' conducted in President Bush's war on terrorism". Attorney General Ashcroft today refused to take a position on whether anti-torture treaties were unconstitutional, but said about torture "I don't believe it's productive" and that the US government does not condone torture.

This raises questions of a conflict in principles and of clear confusion among and between various agencies in the Executive branch. Why would the Justice Department advise the White House that torture was permissible, if the head of that agency believes it to be not only wrong but "not productive"? According to the Post report, the logic of this advice became the basis of a Pentagon report from March 2003 which contemplates the use of torture and seems to lead to policies later implemented whereby Sec. of Defense Rumsfeld would be consulted in cases of extreme stress interrogation.

Sen. Dick Durbin iterated that international treaties barring torture "apply to all men in all places at all times" and that there was no circumstance imaginable under which the basic foundations of human rights could be discarded in the interests of military expediency. He also challenged Mr. Ashcroft to cite a specific legal provision that permits him to refuse documents requested by Congress. The AG was unable to cite any specific statute, and stated that his own personal belief was that he should not disclose the documents. Sen. Durbin quipped that "with all due respect, your personal belief is not a law" and explained that the very posture Mr. Ashcroft had taken was the definition of Contempt of Congress.

Sen. Chuck Grassley asked Mr. Ashcroft why the Justice Department chose to classify information given to members of Congress, after it had already been released. He implied that such an action was highly irregular and questioned its legality. Mr. Ashcroft said the decision was his, and that he would be responsible, and even went on to cite as one cause for the late secrecy that the documents were related to a lawsuit. Sen. Grassley went on to criticize various departments for competing with one another and engaging in counterproductive "one-upsmanship".

The issue of Oregon lawyer Brandon Mayfield was raised, amid concerns that the FBI had acted beyond the scope of its authority, and that it had detained a likely innocent citizen in spite of evidence against their professed position. Mr. Mayfield was detained as a material witness, allegedly tied to Al Qaeda linked terrorists, due to the FBI's claim that his fingerprint had been found on evidence in Madrid, related to the 11 March bombings. Today the Judiciary Committee asked The AG to explain why the FBI detained Mr. Mayfield, though they had known 2 to 3 weeks before that of the objections of Spanish authorities, who were already seeking an Algerian suspect.

Mayfield was released once the FBI accepted the Spanish analysis and admitted that they had no evidence suggesting guilt or terror links of any sort. Ashcroft called the Mayfield case "regrettable" and explained that Mayfield was brought to FBI attention only after fingerprint analysis on a photograph of a partial print from Madrid. The AG sought to explain that the Department of Justice does not target individuals for their religious practices, though the cause for suspecting Mr. Mayfield was reportedly linked to his distribution of the Qur'an in connection with his Muslim faith, a piece of circumstantial evidence which at least one senator also challenged, as such.

Sen. Leahy, Judiciary Committee Ranking Member, asked Mr. Ashcroft whether any order or directive had been issued by the President regarding the treatment of detainees, to which the AG reponded that an order had been given to treat detainees "humanely and in a manner consistent with the Geneva Conventions". Sen. Leahy asked if any other directives had been given, to which the Attorney General said he did not have an answer.

The Committee's Chairman, Sen. Orrin Hatch, asserted at the end of the hearing that he understands that in a time of war, and "in these unprecedented circumstances", there is a need to conceal certain information from public view, though he did not specify that the memoranda in question would in any way fit that vague categorization. Hatch also directed the AG that he would be expected to disclose all that he could in response to any question from both "sides" of the Committee.

Sen. Leahy added that he saw higher concerns than the sole worthy aspiration of eliminating terrorism, saying "I would hope the Constitution will survive long after every one of us are gone." The fact that the consensus seemed to be that in this case the rule of law is what is at stake, along with the system of checks and balances so fundamental to maintaining it, suggests that Mr. Ashcroft will be pressed in coming weeks to redefine his position on disclosure and to answer more serious questions regarding interrogation and torture policy. [For more: Washington Post]