[Senate Hearing 107-704]
[From the U.S. Government Printing Office]



                                                        S. Hrg. 107-704
 
    DEPARTMENT OF JUSTICE OVERSIGHT: PRESERVING OUR FREEDOMS WHILE 
                      DEFENDING AGAINST TERRORISM
=======================================================================


                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

             NOVEMBER 28, DECEMBER 4, AND DECEMBER 6, 2001

                               __________

                          Serial No. J-107-50

                               __________

         Printed for the use of the Committee on the Judiciary







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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director
















                            C O N T E N T S


                              ----------                              

                      WEDNESDAY, NOVEMBER 28, 2001
                    STATEMENTS OF COMMITTEE MEMBERS

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    37
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    29
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................    44
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.    58
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     4
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................    20
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........    41
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    34
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................    25
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................    59

                               WITNESSES

Barr, William P., former Attorney General of the United States...    60
Bell, Griffin B., Senior Partner, King and Spalding, and former 
  Attorney General of the United States, Washington, D.C.........    74
Chertoff, Michael, Assistant Attorney General, Criminal Division, 
  Department of Justice, Washington, D.C.........................     8
Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law 
  School, and former Attorney General of the United States.......    68
Katyal, Neal, Visiting Professor, Yale Law School, and Professor 
  of Law, Georgetown University, Washington, D.C.................    93
Martin, Kate, Director, Center for National Security Studies, 
  Washington, D.C................................................    85
Silliman, Scott L., Executive Director, Center on Law, Ethics and 
  National Security, Duke University School of Law, Durham, North 
  Carolina.......................................................    79

              TUESDAY, DECEMBER 4, 2001 (MORNING SESSION)
                    STATEMENTS OF COMMITTEE MEMBERS

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................   133
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................   134
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   123
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   154
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................   121
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   127
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................   154

                               WITNESSES

Lynch, Timothy, Director, Project on Criminal Justice, Cato 
  Institute, Washington, D.C.....................................   184
Nardotti, Michael J., Jr., Major General (Retired), former Army 
  Judge Advocate General, and Partner, Patton Boggs LLP, 
  Washington, D.C................................................   172
Prosper, Hon. Pierre-Richard, Ambassador-at-Large for War Crimes 
  Issues, Department of State, Washington, D.C...................   135
Sunstein, Cass R., Karl N. Llewellyn Distinguished Service 
  Professor of Jurisprudence, Law School and Department of 
  Political Science, University of Chicago, Chicago, Illinois....   178
Terwilliger, George J., III, former Deputy Attorney General, and 
  Partner, White and Case, Washington, D.C.......................   156
Tribe, Laurence H., Tyler Professor of Constitutional Law, 
  Harvard Law School, Cambridge, Massachusetts...................   159

             TUESDAY, DECEMBER 4, 2001 (AFTERNOON SESSION)
                    STATEMENTS OF COMMITTEE MEMBERS

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................   199
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   208
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................   295
Sessions, Jeff, a U.S. Senator from the State of Alabama.........   279
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................   294

                               WITNESSES

Al-Maqtari, Ali, New Haven, Connecticut..........................   212
Boyle, Michael J., Attorney, New Haven, Connecticut, on behalf of 
  the American Immigration Lawyers Association...................   218
Dinh, Viet D., Assistant Attorney General, Office of Legal 
  Policy, Department of Justice, Washington, D.C.................   203
Emerson, Steven, Executive Director, Investigative Project, 
  Washington, D.C................................................   241
Goldstein, Gerald H., Esq., Goldstein, Goldstein, and Hilley, San 
  Antonio, Texas on behalf of the National Association of 
  Criminal Defense Lawyers.......................................   229
Strossen, Nadine, President, American Civil Liberties Union, New 
  York, New York.................................................   262
Toensing, Victoria, diGenova and Toensing, LLP, and former Deputy 
  Assistant Attorney General, Criminal Division, Department of 
  Justice, Washington, D.C.......................................   225

                       THURSDAY, DECEMBER 6, 2001
                    STATEMENTS OF COMMITTEE MEMBERS

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio.........   345
Edwards, Hon. John, a U.S. Senator from the State of North 
  Carolina.......................................................   360
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................   334
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.   329
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   302
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................   325
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........   338
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   297
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky.   355
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................   347
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................   317

                                WITNESS

Ashcroft, Hon. John, Attorney General of the United States, 
  Washington, D.C................................................   309
                                 ------                                

                       SUBMISSIONS FOR THE RECORD

Addicott, Jeffrey F., Visiting Professor of Law, St. Mary's 
  University School of Law, San Antonio, Texas, letter...........   365
American Civil Liberties Union, Washington, D.C.:
    November 28, 2001, statement.................................   365
    Timothy H. Edgar, Legislative Counsel, December 4, 2001, 
      statement..................................................   370
American College of Trial Lawyers, Irvine, California, letter and 
  statement......................................................   380
American Council of Chief Defenders, Washington, D.C., statement 
  and attachment.................................................   381
American Federation of Labor and Congress of Industrial 
  Organizations, Washington, D.C., Executive Council, article....   383
American Immigration Lawyers Association, Washington, D.C., 
  statement......................................................   384
Amnesty International USA, New York, New York:
    November 28, 2001, news release..............................   385
    December 4, 2001, statement..................................   386
    William F. Schulz, Executive Director, statement.............   399
    September 11 detainees, sample information...................   400
Angel, Cecil, Detroit Free Press, December 3, 2001, article......   402
Arab American Institute Foundation, Washington, D.C., report.....   402
Ayub, Ali, Arlington, Virginia, December 3, 2001, letter.........   421
Bar Association of San Francisco, San Francisco, California, 
  letter.........................................................   422
Baxley, Bill, Attorney, Baxley, Dillard, Dauphin & McKnight, 
  Birmingham, Alabama, letter....................................   423
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas and 
  Hon. Ron Wyden, a U.S. Senator from the State of Oregon, 
  November 2, 2001, ``Dear Colleague'' letter....................   424
Clark, Kathleen, Professor of Law, Washington University, St. 
  Louis, Missouri, statement.....................................   424
Federalist Society, Washington, D.C., paper......................   427
Feiertag, Terry Yale, Attorney, Mandel, Lipton and Stevenson 
  Limited, Chicago, Illinois, letter.............................   441
Gittins, Charles W., Lieutenant Colonel, U.S. Marine Corps 
  Reserve, statement.............................................   443
Glaberson, William, New York Times, December 2, 2001, article....   445
Hamud, Randall B., Attorney, San Diego, California, November 29, 
  2001, letter and attachment....................................   446
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, USA 
  Today, December 6, 2001, article...............................   450
Heritage Foundation, Washington, D.C., November 5, 2001, 
  memorandum.....................................................   451
Human Rights Committee, Charles D. Siegal, Chair, Los Angeles, 
  California, December 3, 2001, letter...........................   460
Human Rights Watch, Washington, D.C.:
    statement....................................................   466
    Kenneth Roth, Executive Director, November 15, 2001, letter..   468
Kmiec, Douglas W., Dean and St. Thomas More Professor of Law, The 
  Catholic University of America School of Law, Washington, D.C., 
  letter.........................................................   470
Koh, Harold Hongju, New York Times, November 23, 2001, article...   475
Law professors and lawyers, joint letter.........................   476
Lewis, Anthony, New York Times:
    November 30, 2001, article...................................   545
    December 4, 2001, article....................................   546
McGee, Jim, Washington Post, November 28, 2001, article..........   547
Miller, Hon. Zell, a U.S. Senator from the State of Georgia, 
  December 5, 2001, press release................................   549
National District Attorneys Association, Kevin P. Meenan, 
  President, Alexandria, Virginia, letter........................   549
Newsday, November 25, 2001, editorial............................   550
New York Times:
    November 10, 2001, editorial.................................   552
    November 16, 2001, editorial.................................   553
    December 2, 2001, editorial..................................   554
Orenstein, James, New York Times, December 6, 2001, article......   556
Parkway Christian Fellowship, Allan M. Spencer, Jr., Birmingham, 
  Alabama, letter................................................   557
People For the American Way, Ralph G. Neas, President, 
  Washington, D.C., statement....................................   557
Safire, William, New York Times:
    November 15, 2001, article...................................   559
    December 6, 2001, article....................................   560
St. Louis Post-Dispatch:
    November 12, 2001, editorial.................................   561
    November 27, 2001, editorial.................................   562
Scheffer, David J., Senior Fellow, U.S. Institute of Peace, 
  Washington, D.C., statement and report.........................   563
Schulz, William F., Amnesty International USA; Kenneth Roth, 
  Human Rights Watch; Gay McDougall, International Human Rights 
  Law Group; Catherine Fitzpatrick, International League for 
  Human Rights; Michael Posner, Lawyers Committee for Human 
  Rights; Lynn Thomas, Minnesota Advocates for Human Rights; Len 
  Rubenstein, Physicians for Human Rights; and Todd Howland, 
  Robert F. Kennedy Memorial Center for Human Rights, joint 
  letter.........................................................   581
Schwartz, Herman, Professor of Law, American University, 
  Washington, D.C., statement....................................   582
Slaughter, Anne-Marie, Professor of Law, Harvard Law School, 
  Cambridge, Massachusetts:
    New York Times, November 17, 2001, article...................   584
    and William Burke-White, December 3, 2001, statement.........   585
Wall Street Journal, December 4, 2001, editorial.................   586
Washington Post, November 16, 2001, editorial....................   587
Wedgwood, Ruth, Wall Street Journal, December 3, 2001, article...   588
Wilgoren, Jodi, New York Times, December 4, 2001, article........   590
York, Byron, National Review, December 3, 2001, article..........   591
                                 ------                                

                     ALPHABETICAL LIST OF WITNESSES

Al-Maqtari, Ali, New Haven, Connecticut..........................   212
Ashcroft, Hon. John, Attorney General of the United States.......   309
Barr, William P., former Attorney General of the United States...    60
Bell, Griffin B., Senior Partner, King and Spalding, and former 
  Attorney General of the United States, Washington, D.C.........    74
Boyle, Michael J., Attorney, New Haven, Connecticut, on behalf of 
  the American Immigration Lawyers Association...................   218
Chertoff, Michael, Assistant Attorney General, Criminal Division, 
  Department of Justice, Washington, D.C.........................     8
Dinh, Viet D., Assistant Attorney General, Office of Legal 
  Policy, Department of Justice, Washington, D.C.................   203
Emerson, Steven, Executive Director, Investigative Project, 
  Washington, D.C................................................   241
Goldstein, Gerald H., Esq., Goldstein, Goldstein, and Hilley, San 
  Antonio, Texas on behalf of the National Association of 
  Criminal Defense Lawyers.......................................   229
Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law 
  School, and former Attorney General of the United States.......    68
Katyal, Neal, Visiting Professor, Yale Law School, and Professor 
  of Law, Georgetown University, Washington, D.C.................    93
Lynch, Timothy, Director, Project on Criminal Justice, Cato 
  Institute, Washington, D.C.....................................   184
Martin, Kate, Director, Center for National Security Studies, 
  Washington, D.C................................................    85
Nardotti, Michael J., Jr., Major General (Retired), former Army 
  Judge Advocate General, and Partner, Patton Boggs LLP, 
  Washington, D.C................................................   172
Prosper, Hon. Pierre-Richard, Ambassador-at-Large for War Crimes 
  Issues, Department of State, Washington, D.C...................   135
Silliman, Scott L., Executive Director, Center on Law, Ethics and 
  National Security, Duke University School of Law, Durham, North 
  Carolina.......................................................    79
Strossen, Nadine, President, American Civil Liberties Union, New 
  York, New York.................................................   262
Sunstein, Cass R., Karl N. Llewellyn Distinguished Service 
  Professor of Jurisprudence, Law School and Department of 
  Political Science, University of Chicago, Chicago, Illinois....   178
Terwilliger, George J., III, former Deputy Attorney General, and 
  Partner, White and Case, Washington, D.C.......................   156
Toensing, Victoria, diGenova and Toensing, LLP, and former Deputy 
  Assistant Attorney General, Criminal Division, Department of 
  Justice, Washington, D.C.......................................   225
Tribe, Laurence H., Tyler Professor of Constitutional Law, 
  Harvard Law School, Cambridge, Massachusetts...................   159



















    DEPARTMENT OF JUSTICE OVERSIGHT: PRESERVING OUR FREEDOMS WHILE 
                      DEFENDING AGAINST TERRORISM

                              ----------                              


                      WEDNESDAY, NOVEMBER 28, 2001

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:05 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kennedy, Kohl, Feinstein, 
Feingold, Schumer, Durbin, Hatch, Grassley, Specter, Kyl, 
DeWine, Sessions, and McConnell.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. This is one of a series of 
hearings this Committee is holding on the Department of 
Justice's response to the September 11th attacks and on 
implementation of the anti-terrorism legislation, the USA 
PATRIOT Act.
    I know I speak for those on both sides of the aisle in 
beginning this hearing by commending the hardworking men and 
women of the agencies of the Department of Justice and also our 
State and local officers for their dedicated law enforcement 
efforts. We have seen it across this country, and, of course, 
we have seen it especially in the affected areas of the 
terrorist attacks.
    Now, at the time Congress worked on the anti-terrorism 
bill, many observed how important congressional oversight would 
be in the aftermath. And to fulfill our constitutional 
oversight obligation, Senator Hatch and I invited Attorney 
General Ashcroft to appear before the Committee today, but he 
asked to have his appearance put off until next week so that he 
could spend time with the U.S. Attorneys who are in town today 
and tomorrow. And on Monday, I learned that the Department was 
asking that Mr. Chertoff appear as our first witness at this 
hearing.
    I have accommodated both requests by the Attorney General. 
I look forward to his appearance before the Committee next week 
on December 6th. In the meantime, our oversight hearing today 
and additional hearings next Tuesday should help build a useful 
record on several significant issues.
    We are all committed to bringing to justice those involved 
in the September 11 attacks and to preventing future acts of 
terrorism. As we showed in our passage of anti-terrorism 
legislation, Congress can act promptly to equip the executive 
branch with the appropriate tools to achieve these goals. The 
administration requested many new powers, and after adding 
important civil liberty protections, we empowered the Justice 
Department with new and more advanced ways to track terrorists.
    We passed the bill in record time and with an 
extraordinarily level of cooperation between Democrats and 
Republicans, the House and the Senate, and the White House and 
Congress. The separate but complementary roles of these 
branches of Government, working together and sharing a unity of 
purpose, made that bill a better law than either could have 
made through a unilateral initiative.
    In the wake of that achievement, the administration has 
departed from that example to launch a lengthening list of 
unilateral actions, and that is disappointing because we had 
worked together to get the original legislation. Rather than 
respect the checks and balances that make up our constitutional 
framework, the executive branch has chosen to cut out judicial 
review in monitoring attorney-client communications and to cut 
out Congress in determining the appropriate tribunal and 
procedures to try terrorists.
    The three institutional pillars of our democratic 
Government are stronger guarantees of our freedoms than any one 
branch standing alone. America benefits when we trust our 
system of Government--our system of checks and balances--to 
work as it should. And most Americans trust that it would. And 
today we may get some insights into why the administration has 
chosen this new approach.
    Today and in the days ahead we will have an opportunity to 
explore the Executive action to charter military tribunals that 
bypass our civilian justice system, to permit eavesdropping on 
attorney-client communications without court orders, and the 
circumstances under which hundreds are being detained without 
public explanation. Whether any or all of these ideas are 
popular or unpopular at the moment, as an oversight Committee 
we accept our duty to examine them.
    The President's Military Order of November 13 paves an 
overly broad path to the use of military commissions to try 
those suspected of a variety of activities. It is a marked 
departure from existing practices and raises a wide range of 
legal and constitutional questions and international 
implications.
    As with several of the unilateral steps announced by the 
administration over the last month, a question that puzzles 
many about the order on military tribunals is this: What does 
it really gain us in the fight against terrorism? Would 
military commissions, however expedient, genuinely serve our 
national interests in the long term?
    As we examine the wisdom of the military order as written, 
we should consider the risk whether this could become a 
template for use by foreign governments against Americans 
overseas. As written, the military order does not incorporate 
basic notions of fairness and due process, those notions that 
are the hallmark of American justice. It does not specify a 
standard of guilt for convicting suspected terrorists.
    It decrees that convictions will not be subject to judicial 
review, a determination that appears to directly conflict with 
our international commitments. It allows the Government to 
tailor rules to fit its proof against individual suspects.
    In short, the military order describes a type of military 
tribunal that has often been criticized by the United States 
when other nations have used them. William Safire, in a column 
in the New York Times on Monday, described it as a ``fiat 
(that) turns back the clock on all advances in military 
justice, through three wars, in the past half-century.''
    And what would this mean for Americans abroad, for the 
traveling public, or, in another instance, for the many U.S. 
humanitarian aid workers who often serve in areas subject to 
autocratic and unstable regimes? I don't think any of us want, 
inadvertently, by our example, to encourage a type of rough 
justice those regimes could mete out under military order.
    Moreover, these military tribunals may greatly inhibit 
cooperation from our partners in the fight against terrorism. 
Spain recently captured several suspects it believes are 
complicit in the September 11 attacks.
    Last week Spain announced that it would not extradite 
suspects to the United States if they would be tried by 
military commissions instead of civilian courts, and now we 
hear a number of European allies share Spain's concerns.
    We are the most powerful Nation on earth, the most powerful 
Nation history has ever known. And sometimes we indulge in the 
luxury of going it alone. But in the struggle against 
terrorism, we don't have the option of going it alone. We need 
the support of the international community to prevail in a 
battle that all of us know could last several years. Would 
these military tribunals be worth jeopardizing the cooperation 
we expect and need from our allies? That is a question we must 
ask ourselves.
    Apart from these practical issues, questions remain about 
the executive branch's authority to establish military 
commissions on its own and without specific congressional 
authorization. The Constitution entrusts the Congress with the 
power to ``define and punish...Offenses against the law of 
Nations.'' On those rare occasions when military commissions 
have been used in the past, Congress played a role in 
authorizing them.
    This administration has preferred to go it alone, with no 
authorization or prior consultation with the legislative 
branch. Now, this is no mere technicality. It fundamentally 
jeopardizes the separation of powers that undergirds our 
constitutional system. It may undercut the legality of any 
military tribunal proceeding.
    Finally, there is the danger that if we rush to convict 
suspects in a military commission--relying on circumstantial or 
hearsay evidence tailored to serve the Government's case--we 
deepen the risk of convicting the wrong people, which would 
leave the real terrorists at large. The administration has 
cited the landmark case against German saboteurs during World 
War II. Let's look a little bit more closely at that.
    Two of the eight Germans who landed in New York immediately 
informed the Department of Justice about their colleagues' 
plans. Immediately. The actions of these men were covered up by 
J. Edgar Hoover, the FBI Director at the time. It now appears, 
historians believe, that Mr. Hoover was more interested in 
claiming credit for the arrests than in ensuring fair treatment 
of the two informants, who were then tried with the others, in 
secret, and sentenced to death before their sentences were 
commuted to a long time at hard labor.
    The lesson is that secret trials and lack of judicial 
oversight can breed injustice and taint the legitimacy of 
verdicts. Our procedural protections are not simply 
inconvenient impediments to convicting and punishing guilty 
people. They also promote accurate and just verdicts.
    So it sends a terrible message to the world that, when 
confronted with a serious challenge, we lack confidence in the 
very institutions we are fighting for, beginning with a justice 
system in the United States that is the envy of the world. Let 
us have some confidence in those things that make us strong and 
great as a Nation.
    The Justice Department's actions since September 11 have 
raised many serious questions and concerns, and I hope that 
today we can seek answers.
    Earlier generations of Americans have stared evil in the 
face. We are not the first Americans to face evil. Trial by 
fire can refine us, or it can coarsen us. It can corrode our 
ideals and erode our freedom. But if we are guided by our 
ideals, we can be both tough and smart in fighting terrorism.
    Our parents and our parents' parents faced just as great 
evils during their lifetime. This country survived and it will 
again.
    The Constitution was not written primarily for our 
convenience. It was written for our liberty by people who knew 
in their actions just preceding that could have let them be 
hanged had they failed. Instead, they wrote into the 
Constitution and our Bill of Rights those things that would 
protect them and anybody else who might raise questions.
    Many of the choices that we will face after September 11 
will test both our ideals and our resolve to defend them. As 
these choices emerge, let us first pause long enough to ask: 
What does it gain us?
    I look forward to hearing from our witnesses today and to 
hearing from the Attorney General next week, and I yield to my 
good friend and colleague, the senior Senator from Utah.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman. I want to 
thank you for convening this timely hearing. The issues we will 
address today have generated a great deal of attention, and I 
hope that this hearing will allay the concerns about the steps 
our Government is taking to protect our Nation from terrorists.
    I must say, however, that with only a few notable 
exceptions, much of the public criticism appears confined to 
those who make their living carping about the Government--
especially Republican administrations. I am reminded of a 
recent line from the journalist Christopher Hitchens, a self-
described man of the left. Criticizing the reaction of many on 
the left to the war on terrorism, Hitchens charged that ``all 
the learned and conscientious objections, as well as all the 
silly or sinister ones, boil down to this: Nothing will make us 
fight against an evil if that fight forces us to go to the same 
corner as our own government.''
    The American people have quite different feelings. In my 
travels over the holidays last week and before, I was struck by 
the almost universal praise and gratitude Americans feel toward 
the President and his administration for the steps they are 
taking to defeat terrorists abroad and to protect us here at 
home. To their credit, the American people instinctively know 
that our country's leaders are acting out of a sincere concern 
for both our security and our liberty. And unlike some, most 
Americans also realize that, as Harvard Professor Laurence 
Tribe--whom no one would accuse of being a member of the ``vast 
right-wing conspiracy''--acknowledged, ``Civil liberties is not 
only about protecting us from our government. It is also about 
protecting our lives from terrorism.'' Indeed, most Americans 
worry that we are not doing enough to thwart potential 
terrorist attacks, not that we are doing too much. We might be 
better served if next week's hearing with the Attorney General 
focused on whether we have done all we can to address the 
threat of terrorism and to help our President obtain all the 
tools he needs to fight Osama bin Laden and the Al Qaeda 
organization.
    Still, oversight hearings such as this one today provide a 
valuable service to us as Members of Congress and to the public 
at large. We will learn from Assistant Attorney General Michael 
Chertoff the legal and policy justifications underlying the 
administration's decision to monitor lawyer-client 
communications, detain aliens, and employ military commissions 
for non-citizens accused of terrorism. The six other 
witnesses--four of whom were called by the chairman--will, one 
hopes, provide their own dispassionate analysis of the legal 
and policy issues raised by these powers. One only regrets 
that, given the importance of this hearing and the need for 
Congress to act in a bipartisan manner in such times, we were 
not able to agree to an equal number of experts to present a 
balanced view and analysis of the issues. Nonetheless, it is my 
hope that the testimony we do have here will dispel many of the 
needlessly alarmist misconceptions one hears in the media and 
from the media.
    Mr. Chairman, before I go further, I want to clear up one 
small misconception concerning the letter you and I recently 
sent to the Attorney General. It was widely reported that we 
demanded that he appear and that I shared in your apparent 
displeasure with his alleged refusal to cooperate with this 
Committee. I should note that I did join you in asking that the 
Attorney General come before this Committee, but I strongly 
disagree with those who charge that the Attorney General has 
been less than completely responsive to the Congress. And while 
I do agree with you that we have a legitimate oversight 
responsibility, I also want to point out that each time we have 
asked the administration to appear, they have been more than 
willing to comply.
    Since September 11, the Attorney General has, in effect, 
been the commanding general of our domestic defense, a job that 
requires around-the-clock attention on his part. He has borne 
the awesome responsibility of ensuring that our military 
efforts overseas are not met with more terrorist attacks at 
home. I for one want to thank the President, the Attorney 
General, and the rest of our law enforcement and intelligence 
communities for performing a tough job well in a very difficult 
time.
    Now, Mr. Chairman, I also want to clarify some of the 
misconceptions about lawyer-client monitoring, detention of 
aliens, and military commissions, which are the issues that we 
intend to address today.
    First, some have charged that lawyer-client monitoring is a 
flagrant violation of the Fourth and Sixth Amendments to the 
Constitution. While I agree that we should examine this power 
closely to determine whether it is a wise policy, the 
administration's regulation has been carefully crafted to avoid 
infringing on constitutional rights. It is well-established 
that inmates and detainees have greatly diminished Fourth 
Amendment rights while in custody, and the Supreme Court, in 
Weatherford v. Bursey, upheld the Government's authority to 
monitor detainee-attorney conversations where there is a 
legitimate law enforcement interest in doing so. The 
communications are protected from disclosure, and no 
information obtained through the monitoring is used by the 
Government in a way that deprives the defendant of a fair 
trial. The regulation recently promulgated by the Department of 
Justice appears to satisfy all of these conditions.
    With respect to the detention of aliens, some have accused 
the Government of unlawfully holding detainees incognito and 
preventing them from obtaining legal counsel. As the Attorney 
General made clear at a news conference yesterday, these 
charges are, at best, irresponsible exaggerations. Those being 
held are in custody on criminal charges, immigration 
violations, or pursuant to material witness complaints under 
longstanding statutory authority. In other words, those people 
have committed crimes, violated our Nation's immigration laws, 
or have information critical to the terrorism investigation. 
And to the extent that they are not released on bond, it is 
because a judge has determined that they are likely to flee, 
will likely pose a danger to the community, or, in the case of 
immigration detainees, are alleged to be deportable from the 
United States on the basis of criminal--including terrorist--
activity.
    What is more, the detainees also have access to counsel who 
can assist them in challenging the legality of the detention. 
Any alien charged with a criminal offense or held as a material 
witness has the right to court-appointed counsel. Under 
longstanding immigration law, any alien charged with an 
immigration violation is unequivocally afforded a minimum of 10 
days to secure counsel and may request a continuance for 
additional time if necessary. Many public interest groups have 
stepped in to provide counsel to those immigration detainees 
who cannot otherwise afford a lawyer.
    As for the charge that these people are being held 
incognito, the Attorney General has, at least in my view, 
rightly refused to provide a public list of the names of the 
detainees. I personally agree, as an advocate of personal 
privacy rights, that such a list would not only alert our 
enemies to the status of our investigation, it would also 
violate the privacy of those being held. I find it richly 
ironic that the same civil liberties groups that adamantly 
oppose the publication of the names of sexual predators now wax 
indignant when the Department of Justice refuses to provide the 
New York Times, the Washington Post, any other newspaper or any 
other media source a list of those detained in connection with 
this terrorism investigation.
    Finally, there have been many alarmist and misleading 
statements about the potential use of military commissions. 
Most glaring is the claim by some of my colleagues this past 
weekend that military tribunals are ``unconstitutional.'' The 
Supreme Court has repeatedly upheld the constitutionality of 
using military commissions to prosecute individuals charged 
with crimes under the law of war. Specifically, the Court 
unanimously upheld the constitutionality of President 
Roosevelt's use of a military commission to try eight Nazi 
saboteurs who entered the United States via submarine during 
World War II in Ex Parte Quirin. The Court also upheld the use 
of a military commission at the end of the war to try the 
Japanese commander in the Philippines for violations of the 
laws of war, In re Yamashita. As the Supreme Court has 
explained, ``[s]ince our Nation's earliest days, such 
commissions have been constitutionally recognized agencies for 
meeting many urgent governmental responsibilities related to 
war.'' That is in Madsen v. Kinsella.
    Furthermore, contrary to recent suggestion, military 
tribunals can be--and have been--established without further 
congressional authorization. Because the President's power to 
establish military commissions arises out of his constitutional 
authority as Commander-in-Chief, an act of Congress is 
unnecessary. Presidents have used this authority to establish 
military commissions throughout our Nation's history, from 
George Washington during the Revolutionary War to President 
Roosevelt during World War II. Congress, for its part, has 
repeatedly and explicitly affirmed and ratified the use of 
military commissions. Article 21 of our Code of Military 
Justice, codified at Section 821 of Title 10 of the United 
States Code, expressly acknowledges that military commissions 
have jurisdiction over offenses under the law of war.
    Now, Mr. Chairman, the oversight we conduct today can be a 
useful exercise only if we steer clear of distortion and focus 
on the policy choices we face. That these tools--military 
tribunals, detainee-attorney monitoring, and detention of 
aliens--are constitutional is largely beyond dispute. On the 
other hand, whether, how, and when they should be employed, and 
against whom, and with what oversight and accountability are 
questions we have a right to ask. And the administration is 
wise to answer.
    As we confront these policy issues, I would ask my 
colleagues to heed the strong sentiment of the majority of the 
American people, both liberal and conservative, to do more than 
just criticize. It is easy to criticize from where we sit; it 
is much harder to go to work every day knowing that you are the 
person in charge of protecting Americans from terrorists. Yes, 
the administration has been aggressive in using all the 
constitutional powers at its disposal to protect Americans 
under these situations. But given what happened on September 
11, wouldn't they be unforgivably derelict if they did not do 
everything in their power? After all, our enemies in this war 
are not, as many on the extreme left are fond of saying, simply 
trying to change our way of life. They are trying to kill 
Americans--as many as they possibly can. And though we may 
never know for certain, I for one believe that the steps taken 
by our law enforcement and intelligence communities have saved 
us from even more harm.
    I think this is a legitimate hearing. It is an important 
hearing. It is legitimate to ask tough questions. These are 
important questions. And it is legitimate for us to find out 
just why the administration has taken the positions that it has 
in some of these areas. But let nobody be deceived. The 
administration can take these positions. They have to justify 
them, but they can take them, and I think there is more than 
enough information here to justify the positions they have 
taken.
    I myself am very concerned when these type of broad powers 
are used, but under these circumstances I am less concerned, 
hoping that we can prevent future terrorist acts. But I want to 
thank you, Mr. Chairman, for calling this hearing. I think it 
is the right thing to do. I think you have led us in the proper 
direction in calling it and in asking the appropriate people 
the tough questions that need to be asked. And I look forward 
to hearing from our witnesses.
    Chairman Leahy. Thank you.
    Mr. Chertoff, 2 days ago, we received a request that you 
wanted to testify, and I am happy to concede to your request, 
with the understanding, of course, that the Attorney General 
will be here next week. I want to wish you a happy birthday on 
behalf of the Committee. I am sure this is the thing that you 
have looked forward to the most as a way to spend your 
birthday.
    [Laughter.]
    Chairman Leahy. So consider it our gift to you. Please go 
ahead.

  STATEMENT OF MICHAEL CHERTOFF, ASSISTANT ATTORNEY GENERAL, 
            CRIMINAL DIVISION, DEPARTMENT OF JUSTICE

    Mr. Chertoff. Thank you, Mr. Chairman. Good morning, Mr. 
Chairman, Senator Hatch, members of the Committee. I do welcome 
the opportunity and appreciate the invitation to appear today 
to talk about the Department of Justice's response to the 
attacks of September 11th.
    Mr. Chairman, I agree that we have taken steps here which 
represent a departure from some of the things we have done in 
recent times. But then, again, we are not in recent times. We 
face an extraordinary threat to our national security and 
physical safety of the American people of a character that, at 
least in my lifetime, we have never faced before.
    The President and the Attorney General have directed the 
Justice Department to make prevention of future terrorist 
attacks our number one and overriding priority. And to that 
end, we are aggressively and systematically conducting an 
investigation that is national and international in scope. But 
I believe we are doing so within carefully established 
constitutional limits.
    In fact, in conducting this investigation, I should point 
out we are already making use of the tools which the Congress 
passed in the recently enacted USA PATRIOT Act for which we 
commend the Congress in acting so swiftly.
    Members of this Committee have raised important questions 
about some of the investigatory steps that we have taken in 
recent weeks, and I look forward during the course of this 
hearing to learning more about the Committee's specific 
concerns, but also to having the opportunity to assure the 
Committee that what we are doing is both sound policy and well 
within constitutional limits.
    All of us understand and appreciate the importance of 
honoring the Constitution's enduring values, even in a time of 
national crisis. And we believe the Constitution gives us the 
tools to respond to the threat while remaining faithful to our 
basic values.
    I don't need to restate for the Committee the images we all 
bear of September 11th: planes crashing into the Twin Towers 
and the Pentagon, grieving and devastated faces of survivors, 
the firefighters, the image of firefighters ad police heroes, 
and even the passengers on United Flight 93 who were forcibly 
enlisted as combatants against terrorists. All of us have these 
images burned into our national consciousness.
    But as a Nation, the overwhelming, brute fact of Senator is 
this: This country was wantonly and deceitfully assaulted by an 
enemy intent on destroying as many innocent lives as possible. 
Before September 11th, Osama bin Laden and his henchmen wanted 
to kill thousands of innocent Americans. On September 11th, 
they succeeded. And since September 11th, bin Laden and his co-
conspirators have brazenly announced that they will kill more 
of us.
    In a February 1998 directive, bin Laden ordered his 
followers ``to kill Americans and plunder their money whenever 
and wherever they find it.'' Just last month, bin Laden made a 
video, declaring to his supporters, ``The battle has moved 
inside America, and we shall continue until we win this battle, 
or die in the cause and meet our maker.''
    So for those who question whether we are at war, my answer 
is Mr. bin Laden has declared war on us.
    Unlike enemies we have faced in past wars, however, this is 
an enemy that comes not openly but cravenly and in disguise. 
The terrorists in the Al Qaeda network plan their terrors years 
in advance. They are sophisticated, meticulous, and patient.
    Of particular concern is their use of so-called sleepers. A 
sleeper is a committed terrorist sent sometimes years in 
advance into a possible target location, where he may assume a 
new identity and lead an outwardly normal life, all the while 
waiting to launch a terrorist attack. I will give you a example 
from the 1998 embassy bombing in Nairobi, Kenya.
    Mohamed Odeh, who was convicted early this year for 
participating in that bombing, spent 5 years undercover in 
Kenya while actively assisting Al Qaeda. During that time he 
started a fishing business. He got married. He lived an 
outwardly modest and quiet life. But when called upon, he 
played a critical role in unleashing the terror that killed 
hundreds of innocent people.
    Now, how are we going to combat the terrorists' use of 
sleepers? In many ways it is more difficult than looking for 
the proverbial needle in a haystack because in this instance 
the needle comes in disguise, disguised as a stalk of hay. We 
could continue as before and hope for the best, or we can do 
what we are currently doing: pursuing a comprehensive and 
systematic investigative approach that uses every available 
lawful technique to identify, disrupt, and, if possible, 
incarcerate or deport persons who pose threats to our national 
security.
    Are we being aggressive and hard-nosed? You bet. But let me 
emphasize that every step that we have taken satisfies the 
Constitution and Federal law as it existed both before and 
after September 11th.
    Let me now turn very briefly to four areas that I know are 
of particular concern to the Committee.
    First, the number of persons who have been arrested or 
detained arising out of the investigation into the events of 
September 11th and the conditions of their detention. There are 
currently 548 individuals who are in custody on INS charges and 
55 individuals in custody on Federal criminal charges. Every 
person detained has been charged with a violation of either 
immigration law or criminal law or is being lawfully detained 
on a material witness warrant issued in connection with a grand 
jury investigation.
    Every one of these individuals has the right to counsel. 
Every person detained has the right to make phone calls to 
family and attorneys. Nobody is being held incommunicado.
    The identity of every person who has been arrested on a 
criminal charge is public. We have not released the names of 
persons being held on material witness warrants because those 
warrants are issued under seal as related to grand jury 
proceedings.
    Finally, we have not compiled a public list of the persons 
detained on immigration charges, both to protect their privacy 
and for legitimate law enforcement purposes. But I emphasize 
there is nothing to prevent any of these individuals from 
identifying themselves publicly or communicating with the 
public.
    Second, law enforcement is seeking to interview just over 
5,000 persons on a voluntary basis. This list was assembled 
using common-sense criteria that take into account the manner 
in which Al Qaeda has traditionally and historically operated. 
So, for example, persons have been identified for interview 
because they entered the United States with a passport from one 
of about two dozen countries where Al Qaeda typically recruits 
or trains its members. Or people have been identified for 
interviews because they entered the country on particular types 
of visas that experience shows tend to be favored by 
terrorists.
    Third, the monitoring of attorney-client communications. 
This monitor is taking place under a Bureau of Prisons 
regulation issued on October 31. It arises out of a 1996 
Department regulation that permits monitoring of communications 
of inmates in Federal prisons where there is a substantial risk 
that if those people communicate with the outside, they may 
cause death or serious injury to others. The regulation applies 
only to 16 out of approximately 158,000 inmates in the Federal 
system.
    The regulation or the regulatory amendment that was issued 
on October 31 extends the pre-existing special regulation to 
allow the monitoring of attorney-client communications for this 
very small group of people only if the Attorney General makes 
an additional finding that reasonable suspicion exists that a 
detainee may exploit his attorneys to communicate with others 
to facilitate acts of terrorism. And we have set up substantial 
safeguards to protect against the misuse of this information, 
which I will be happy to discuss.
    Finally, I would like to turn briefly to the subject of 
military commissions. Unmistakably, we are at war. Our homeland 
was suddenly and deliberately attacked from abroad on September 
11th. I share with you, Mr. Chairman, an absolute confidence in 
the ability of our criminal justice system to deal with any 
kind of criminal act. But I also recognize that the criminal 
justice system is not the only tool the President must have in 
exercising his responsibilities not only as Chief Executive but 
as Commander-in-Chief in a time of war.
    The fact is that military commissions are a traditional way 
of bringing justice to persons charged with offenses under the 
laws of armed conflict. The Supreme Court has repeatedly upheld 
the use of such commissions, and there may be sound policy 
reasons to employ them in individual cases, including urgent 
concerns about physical security and protection of classified 
information.
    What the President's order of November 13th did was to 
initiate the process of invoking this traditional 
constitutional power. The order assigns to the Department of 
Defense primary responsibility for developing the specific 
procedures to be used. That process is ongoing, and, therefore, 
it is simply too early to talk about what the specific details 
will be about how--
    Chairman Leahy. Excuse me. Somebody must have an urgent 
phone call. Why don't we let them step out of the room so they 
can answer it?
    Go ahead, Mr. Chertoff.
    Mr. Chertoff. Thank you, Mr. Chairman. That process of 
writing these regulations is ongoing, and, therefore, it is 
simply too early to discuss the specific details of how any 
such commission would operate. But certain protections are 
already built into the President's initial order, which, of 
course, can be expanded upon by rules that are issued by the 
Department of Defense.
    Under the President's order, every person will have the 
right to an attorney. Under the President's order, there will 
be a full and fair trial of the charges. And, notably, as an 
indication of the seriousness with which the President views 
the exercise of this power, he has taken the responsibility to 
determine whether trial by commission is appropriate in an 
individual case.
    In this respect, therefore, Mr. Chairman, as in all others, 
the President has exercised his established constitutional 
powers to defend against the extraordinary threat which this 
Nation now faces. And I would be happy to respond to questions 
the Committee has.
    [The prepared statement of Mr. Chertoff follows.]

    Statement of Hon. Michael Chertoff, Assistant Attorney General, 
                Criminal Division, Department of Justice

    Good morning, Mr. Chairman, members of the Committee. I welcome the 
opportunity to appear before you today to discuss the Department of 
Justice's response to the terrorist attacks of September 
11th.
    The country faces a truly extraordinary threat to our national 
security and the physical safety of the American people, one that has 
necessitated an extraordinary redefinition of our mission. The 
President and the Attorney General have directed the Justice Department 
to make prevention of future terrorist attacks our top and overriding 
priority. We are pursuing that priority aggressively and systematically 
with a national and international investigation of unprecedented scope, 
but we are carefully doing so within established constitutional and 
legal limits. We are also taking advantage of the new tools and 
authorities provided by the USA PATRIOT Act to enhance our 
investigation. For example, we have, on a number of occasions, already 
made use of the new authorities relating to nationwide search warrants, 
and amendments to 18 U.S.C. Sec. 2703 which allow us to more 
efficiently obtain e-mail and other information from internet service 
providers. We have also relied on the Act to begin expanding our 
sharing of information with the Intelligence Community. I know from the 
correspondence that the Department has received from members of this 
Committee that a number of you have in good faith raised important 
questions about some of the investigatory steps we have taken apart 
from the new legislation. I look forward during the course of this 
hearing to learning more about your specific concerns and to 
explaining--to the extent I can without compromising the on-going 
investigation--the reasons for the investigative approaches we have 
taken.
    In my opening remarks, I would like to briefly outline the nature 
of the threat we are facing and explain why we believe the threat 
necessitates the type of investigative response we have been pursuing.
    The images of September 11th--the planes crashing into 
the twin towers; the grieving and devastated faces of survivors, the 
heroism of the police, the firefighters and those passengers who were 
forced into the role of combatants against terrorists--these images and 
many others have been permanently seared into our collective national 
consciousness. Each of us has personal recollections of that day--where 
we were when we first heard, what our first thoughts were, what we did 
to see if our loved ones were safe. It is a day that each of us will 
always remember in his or her own way.
    But as a nation, the overwhelming, brute fact of September 
11th is this: This country was wantonly and deceitfully 
assaulted by an enemy intent on destroying as many innocent lives as 
possible. Before September 11th, Usama Bin Laden and his 
henchmen wanted to kill thousands of innocent American civilians. As we 
sit her, he and his co-conspirators brazenly announced that they will 
kill more of us. He and his followers actually believe they have a duty 
to kill Americans. Those are not my words; those are his words.
    In a February 1998 directive, Bin Laden ordered his followers ``to 
kill Americans and plunder their money whenever and wherever they find 
it.'' And just last month, Bin Laden gave an inflammatory interview 
which has been circulating, in the form of a video, among supporters in 
the al Qaida network. He said: ``Bush and Blair. . . don't understand 
any language but the language of force. Every time they kill us, we 
will kill them, so the balance of terror can be achieved.'' He went on: 
``The battle has been moved inside America, and we shall continue until 
we win this battle, or die in the cause and meet our maker.''
    So we have a terrorist organization with thousands of members and 
followers worldwide, which is fanatically committed to killing 
Americans on our own soil, through suicide attacks if necessary. And 
unlike the enemies we have faced in past wars, this is an enemy that 
comes not openly, but deceitfully, in disguise. We know from what we 
have learned about the 19 hijackers from September 11thth 
and what we know about those responsible for earlier attacks against 
America that the terrorists in the al Qaida network plan their terror 
years in advance. They are sophisticated, meticulous, and very patient.
    Of particular concern is their use of so-called ``sleepers.'' A 
sleeper is a committed terrorist sent sometimes years in advance into a 
possible target location, where he may assume a new identity and lead 
an outwardly normal lifestyle, while waiting to spring into action to 
conduct or assist in a terrorist attack. Although it would be 
inappropriate for me to get into details of the pending investigations, 
I can give you an illustrative example of a sleeper from one of the 
1998 embassy bombing cases.
    Mohamed Sadeek Odeh was convicted early this year for participating 
in the August 1998 bombing of the U.S. embassy in Nairobi, Kenya. He 
was sentenced to life imprisonment in October. The evidence at trial 
established that Odeh was the technical advisor to those who carried 
out the bombing, having received explosives training at some of al 
Qaida's terrorist camps in Afghanistan. One of the key pieces of 
evidence against Odeh was a memo book that had sketches of the vicinity 
of the embassy and what appeared to be a suggested location for the 
bomb truck.
    The evidence in the case revealed that Odeh became a sworn member 
of al Qaida in 1992 in Afghanistan and was subsequently sent to Somalia 
to train Islamic militants. In 1994, Odeh moved to Mombasa, a coastal 
town in southeast Kenya. Once in Mombasa, Odeh set up a fishing 
business with the help of Muhammad Atef, the apparently late military 
commander of al Qaida. As part of this business, Odeh was given a large 
boat, which was to be used to transport fish along the Kenyan coast. 
According to at least one of the co-defendants, this boat was used to 
transport al Qaida members from Kenya to Somalia in 1997 and was 
otherwise used for jihad.
    Odeh got married in Mombasa in November 1994. Several individuals 
who later carried out the bombings of our embassies in Nairobi and Dar 
es Salaam attended the wedding. Between 1994 and 1997, Odeh maintained 
regular contact with various al Qaida leaders, including Wadih el Hage 
and Mustafa Fadhil, two of the leaders of the East African cell of al 
Qaida. In 1997, he was sent to Somalia once again to train Islamic 
militants.
    After living in Mombasa for a few years, Odeh moved to Malindi, 
another coastal town in Kenya, and then later to a small village known 
as Witu, where he lived until August 1998. At all times, Odeh lived 
modestly and quietly. For example, in Witu, Odeh lived in a hut, where 
he had no telephone or other means of communication.
    But when the time came to participate in plotting the embassy 
bombings, Odeh sprang into action. In the Spring and Summer of 1998, he 
met other al Qaida members in Kenya and discussed ways to attack the 
United States. In the days immediately preceding the August 7, 1998 
embassy bombings, Odeh met repeatedly with al Qaida members who 
participated in the bombing in Mombasa and Nairobi. Hours before the 
bombing, Odeh suddenly left Kenya, flying to Pakistan during the night 
of August 6 and through to the early morning of August 7. Odeh was 
detained at the Karachi airport (due to a bad false passport), and 
eventually returned to Kenya.
    Odeh is just one example of how an al Qaida member was able over 
time to integrate himself into the local environment in a way that made 
his terrorist activities much more difficult to detect. Examples of 
other sleepers can be found in the Millennium bombing case, which 
involved planned attacks against various U.S. facilities during the 
millennium, and in the 1993 World Trade Center bombing.
    How can we combat the terrorists' use of sleepers? In many ways it 
is more difficult than trying to find a needle in a haystack because 
here the needle is masquerading as a stalk of hay. We could do nothing, 
and hope we get lucky as we did in the Ressam case. Or, as we are 
currently doing, we can pursue a comprehensive and systematic 
investigative approach, informed by all-source intelligence, that 
aggressively uses every available legally permissible investigative 
technique to try to identify, disrupt and, if possible incarcerate or 
deport sleepers and other persons who pose possible threats to our 
national security.
    Without understanding the challenge we face, one cannot understand 
the need for the measures we have employed. Are we being aggressive and 
hard-nosed? You bet. In the aftermath of September 11th, how 
could we not be? Our fundamental duty to protect America and its people 
requires no less.
    Yet it is important to emphasize that the detentions, the targeted 
interviews, and the other aggressive investigative techniques we are 
currently employing would all have been legal under the Constitution 
and applicable federal law on September 10th--Nobody is 
being held incommunicado; nobody is being denied their right to an 
attorney; nobody is being denied due process. As federal prosecutors, 
we have great discretion under the Constitution and well-established 
federal law to decide how aggressively to investigate and charge cases. 
In light of the extraordinary threat facing our country, we have made a 
decision to exercise our lawful prosecutorial discretion in a way that 
we believe maximizes our chances of preventing future attacks against 
America.
    Before responding to your questions, let me now turn briefly to 
four areas that I know are of interest to some of you: First, the 
number of persons who have been arrested or detained arising out of the 
investigation into the events of September 11th and the 
conditions of their detention. As the Attorney General indicated 
yesterday, there are currently 548 individuals who are in custody on 
INS charges and 55 individuals in custody on federal criminal charges. 
The Department has charged 104 individuals on federal criminal charges 
(which includes the 55 in custody), but some of the indictments or 
complaints are under seal by order of court. Every detention is fully 
consistent with established constitutional and statutory authority. 
Every person detained has been charged with a violation of either 
immigration law or criminal law, or is being lawfully detained on a 
material witness warrant.
    Every one of these individuals has a right to access to counsel. In 
the criminal cases, and the case of material witnesses, the person is 
provided a lawyer at government expense if the person cannot afford 
one. While persons detained on immigration charges do not have a right 
to lawyers at public expense, INS policy is to provide each person with 
information about available pro bono representation. Every one of the 
persons detained, whether on criminal or immigration charges or as a 
material witness, has the right to make phone calls to family and 
attorneys. None is being held incommunicado.
    The identity of every person who has been arrested on a criminal 
charge is public. We have not compiled a public list of the persons 
detained on immigration charges for two reasons: to protect the privacy 
of those detained and for legitimate law-enforcement purposes. If the 
government publicly released the identities of all those being 
detained, they could be labeled as being connected to September 11, 
even if the investigation ultimately concludes there is no link. In 
addition, there is no reason to advertise to al Qaida which of its 
members we may have in custody and where they are located, or to give 
them information that may help them gain insights about the course of 
our investigation. We have not released the names of persons being held 
on material witness warrants because they are issued under seal as 
related to grand jury proceedings in different districts. They cannot 
be disclosed.
    Second, law enforcement is seeking to interview just over 5,000 
persons voluntarily. These are people who we believe may have 
information that is helpful to the investigation or to disrupting 
ongoing terrorist activity. The list of persons we wish to interview is 
simply a common-sense effort to identify persons who might conceivably 
have some information that might be helpful to the investigation-
indeed, some of these persons might not be aware that information they 
have is helpful. The list was assembled by using common-sense criteria 
that take into account the manner in which al Qaida has operated-for 
example, that particular countries have been a focus of recuiting. 
These persons have been identified for interview because they entered 
the United States with a passport from one of about two dozen 
countries, which intelligence information indicates al Qaida recruits 
from. They use particular types of Visas that al Qaida appears to 
favor. They entered the United States after January 1, 2000. The 
persons are not suspects, but simply people who we want to talk to 
because they may have helpful information.
    Third, I would like to discuss the monitoring of attorney-client 
communications under a Bureau of Prisons regulation promulgated on 
October 31. The Justice Department has amended a 1996 regulation that 
permits the monitoring of certain communications of inmates who are 
subject to special administrative measures. This regulation currently 
applies to only 16 of the 158,000 inmates in the federal system. Under 
this pre-existing regulation, a very small group of the most dangerous 
inmates are subject to special administrative measures if the attorney 
general determines that unrestricted communication with these inmates 
could result in death or serious bodily harm to others. When that 
determination has been made, restrictions are put on those inmates' 
ability to communicate with and contact others. The amendment 
promulgated on October 31 extends the regulation to permit the 
monitoring of attorney-client communications for this very small and 
discrete group of inmates only if the Attorney General makes an 
additional finding that reasonable suspicion exists that a particular 
detainee may use communications with attorneys to further or facilitate 
acts of terrorism.
    The regulation provides for important safeguards to protect the 
attorney-client privilege. First, the attorney and his client will be 
notified if their communication will be monitored. Second, the team 
monitoring the communications will have no connection with any ongoing 
prosecution that involves the client. Third, no privileged information 
will be retained by the persons monitoring the conversations; the only 
information retained will be unprivileged threat information. Fourth, 
absent an imminent emergency, the government will have to seek court 
approval before any information is used for any purpose from those 
conversations. And fifth, no information that is protected by the 
attorney-client privilege may be used for prosecution.This regulation 
accords with established constitutional and legal authority. Courts 
have long recognized that a client's communications are not privileged 
if they are in furtherance of criminal activity. And the Supreme Court 
has expressly recognized that the government may, consistent with the 
right to counsel, monitor attorney-client communications if there is a 
legitimate law-enforcement reason for doing so and if privileged 
communications are not used against the defendant. Both those 
conditions are met here.
    Finally, I'd like to briefly mention military commissions. We are 
at war: Our homeland was suddenly and deliberately attacked from abroad 
on September 11, resulting in the intentional murder of thousands of 
unarmed civilians. Usama Bin Laden has candidly said he intends to 
continue his attacks as long as he and his organization are able. In 
view of such circumstances, military commissions are a traditional way 
of bringing justice to persons charged with offenses under the laws of 
armed conflict. The Supreme Court has repeatedly upheld the use of such 
commissions.
    The use of such commissions is not only legally proper; it also 
represents sound policy. Military commissions are best equipped to deal 
with the significant security concerns that will necessarily arise from 
a trial of the necessarily arise from a trial of the perpetrators of 
the September 11th terrorist attacks. Use of civilian courts 
could place judges and juries-and, indeed, entire cities where the 
courts are located-at great risk. Proceedings before military 
commissions can better safeguard classified information that may be 
used at the trial of members of al Qaida. Commissions will be able to 
consider a wider range of relevant evidence, including intelligence 
information, helping to render just verdicts. Furthermore, the attacks 
on September 11 were attacks launched by a foreign power that killed 
thousands of innocent people, which is not just another matter on the 
criminal docket. The procedures developed for trials in civil courts 
are simply inappropriate for the trial of ware crimes. And the use of 
military commissions will be limited to the trial of war crimes.
    The President's order represents just the first step in invoking 
this traditional power to prosecute those who violate the well-settled 
law of war. The order assigns the Department of Defense primary 
responsibility for developing the specific procedures to be used, and 
because that process is still ongoing, it is simply too early to 
discuss the specific details of how any such commissions would operate. 
However, certain minimal protections are already built into the order, 
which can be expanded upon by regulations promulgated by the Defense 
Department. The order specifies that all persons will have the right to 
an attorney. The order specifies that the proceedings must allow a full 
and fair trial of the charges. In addition, the order requires humane 
conditions of pretrial detention, including the right to free exercise 
of religion during detention.
    And the President will himself make the determination whether trial 
by commission will be appropriate in an individual case. I would now be 
happy to respond to any questions the Committee may have.
    Since September 11th, hundreds of federal prosecutors 
from the Department's Criminal Division and from U.S. Attorney's 
Offices across the country, along with thousands of federal, state, and 
local law-enforcement personnel, have been working tirelessly, above 
and beyond the call of duty, to carry out the investigation.

    Chairman Leahy. A couple of housekeeping things before we 
begin. Mr. Chertoff, obviously, you can see by the red light 
you went considerably over the amount of time we had agreed 
upon, and I had no objection to that because I think, as far as 
you are speaking for the administration, you should have that 
opportunity. But because a number of Senators have other 
hearings and meetings they have to go to, we are going to have 
to keep to the schedule after that.
    Also, as we have asked the Attorney General a number of 
questions in letters, I hope that we will have those answers 
before he testifies next week, but also that all members, if 
they have follow-up questions for Mr. Chertoff, get them to him 
by close of business today so he can have the answers back to 
us by the end of this week.
    So, starting with that, Mr. Chertoff, I worked closely with 
the White House Counsel's Office and the Attorney General and 
actually with you in crafting the new anti-terrorism law. In 
fact, from September 19, when the Attorney General and I 
exchanged our legislative proposals, until October 26th, when 
the President signed the new law, I think I talked with the 
Attorney General sometimes two and three times a day about the 
tools needed by our law enforcement and intelligence agencies 
to prevent terrorist acts and how we are going to bring those 
people to justice, those who are still alive, who may have been 
involved in planning this or planning future attacks.
    I took those responsibilities very seriously, like all 
Americans, whether Republican or Democrat, all Americans. We 
share an abhorrence of the attacks. We wanted the people 
brought to justice.
    But at no time during those discussions--and there were a 
lot of them, with you, with the President, with the Attorney 
General. At no time was the question of military commissions 
brought up. In fact, to the contrary, at the Attorney General's 
request, the Congress expanded the reach of several criminal 
provisions so that the authorities in this country are clearly 
authorized to exercise extra-territorial jurisdiction in 
bringing foreign violators to justice in our courts. But less 
than a month after the ink was dry, the President issues this 
military order directing the Secretary of Defense to move 
forward.
    My question is this: When did the administration begin 
considering the use of military commissions rather than our 
civilian court system to adjudicate charges against the 
terrorists responsible for the September 11 attacks? When did 
that start?
    Mr. Chertoff. Mr. Chairman, I don't know that I can give 
you a precise date about when it started, nor can I--
    Chairman Leahy. Well, when did you first hear about it?
    Mr. Chertoff. I certainly have heard discussion about this 
or heard discussion about this going back some weeks. I think 
what is important to bear in mind--
    Chairman Leahy. Did you hear discussions about it prior to 
our discussions here in the Committee, in both our formal and 
informal discussions with you, as we put together the anti-
terrorism--
    Mr. Chertoff. I would assume--it is probably fair to assume 
that some people were discussing these matters at various 
points in time while we were undergoing the process of working 
out--
    Chairman Leahy. But you didn't feel it at all necessary to 
tell any of us that you were discussing that as you were asking 
for these extraordinary powers that we were giving you in the 
USA PATRIOT Act?
    Mr. Chertoff. I think, Mr. Chairman, the reason for that is 
as follows: We are talking about two totally different 
functions. We came before Congress, and I think rightly so, and 
with gratitude for Congress' willingness to move swiftly, to 
enhance the law enforcement powers which we are currently using 
as we speak in fighting terrorism, and that includes the full 
panoply of powers we can use to enforce the Federal criminal 
laws.
    At the same time, everybody recognized--and I don't think 
this is a secret--that the President has responsibilities apart 
from those as chief of law enforcement.
    Chairman Leahy. But, Mr. Chertoff, with all due respect, 
you are not answering my question. The administration, as you 
have testified, is obviously confident that the executive 
branch has the authority to establish these military 
commissions, even though there are a number of experts, legal 
experts, who feel otherwise, who feel that we have to authorize 
the setting up of the commission and the President has the 
authority to go forward with it.
    But stepping back for a moment from who is right or who is 
wrong, which legal experts are right and which are wrong, you 
are a former prosecutor. Like all prosecutors, you know that if 
you get a conviction, you want it to be upheld. Wouldn't it 
have made more sense--we are giving you all this extra 
authority, anyway--at the time when you were asking us for all 
these things, but apparently not telling us that you were 
thinking about military commissions, would it not have made 
some wisdom to come here and say, look, why don't you put in 
another section authorizing under--as has been done in the 
past, giving us specific authorization for the President as 
Commander-in-Chief to set up military commissions, thus 
removing the legal debate now going on in this country about 
whether you have the authorization to do so or not?
    Mr. Chertoff. I think, Mr. Chairman, what I can say is that 
from the administration's perspective, the issue of military 
tribunals is a matter that comes under the jurisdiction of the 
Department of Defense as an extension of the President's power 
as Commander-in-Chief. I think to the extent the issue arose 
about how to develop this proposal, it arose on the Defense 
side of the house, so to speak. It is not normally something, I 
think, that we would consider raising as part of a law 
enforcement discussion relating to law enforcement powers.
    Chairman Leahy. So it is those guys' fault, not yours.
    Mr. Chertoff. I don't think that is what I am saying, Mr. 
Chairman. I think what I am saying, these are separate and 
distinct functions, and we want to have both of these functions 
available to the President, recognizing that we intend to use 
both and that both have to be available.
    But I don't think it was ever our sense that we ought to 
confuse the two or ought to try to bring the President's power 
as Commander-in-Chief into the realm of his power as chief 
executor of the domestic criminal laws.
    Chairman Leahy. But, Mr. Chertoff, don't you feel that most 
people see a big difference from--I mean, if you capture a 
number of Al Qaeda members or Taliban or others are captured, 
as have been by both the U.S. forces and those we have allied 
ourselves with in Afghanistan, nobody thinks that our special 
forces have to come in and before they grab somebody say I want 
to read you your rights. I mean, that is not the situation. We 
all understand that. We all understand that on the ground, in 
the battlefields, there are particular standards that are 
allowed by international law, by convention, and by just plain 
good sense on the part of the commanders there. But when you 
talk about bringing them back here and having these trials, 
then you raise an entirely different question.
    For example, were you surprised at what Spain said, having 
grabbed a number of suspects that I think you and I would agree 
we would like to see, we would like to talk with, people that 
you and I would both agree are high on our list of suspects, 
but now they say they would not extradite these suspects if 
they are going to be tried before a military commission and 
they would insist on a civilian proceeding? Did that reaction 
surprise you at all?
    Mr. Chertoff. Mr. Chairman, I think we all understand that 
when we deal with the issue of extradition from foreign 
countries, other countries sometimes lay down conditions which 
we have to satisfy before we extradite people. We have had that 
issue, for example, with respect to the death penalty, and it 
sometimes, frankly, caused a certain amount of discomfort on 
our side. So I think we are all well aware of that.
    But I think, Mr. Chairman, I agree with your initial point. 
What this order does is it gives the President the flexibility 
to use all of his constitutional options when he is faced with 
the issue of a terrorist. If we were in the battlefield, if 
there is somebody caught in Afghanistan, the President should 
have the option not to bring that terrorist back in the United 
States and put them in a Federal court in New York or in 
Washington and subject those cities to the danger of having 
that trial. He should have the option to have those people 
tried in the field for violations of the law of war.
    At the same time, the order leaves it perfectly free for 
the President to decide that, in order to accommodate 
extradition requirements of other countries, that we will try 
suspects in third-party countries in domestic Article III 
courts.
    So nothing that has happened forecloses our options in 
terms of dealing with foreign governments or forecloses our 
options in terms of dealing with terrorists in the field. To 
the contrary, what the President has said is: I want to have 
the full menu, constitutional menu in front of me so that I can 
make a judgment based on all of these considerations, safety, 
relations with other countries, about the appropriate way to 
handle each individual case.
    Chairman Leahy. My time is up.
    Senator Hatch?
    Senator Hatch. Well, thank you, Mr. Chairman.
    Mr. Chairman, I am a little bit surprised at your surprise 
regarding the President's issuance of the military tribunal 
order because you asked the very pertinent question of the 
Attorney General immediately after the September 25th hearing, 
which dealt specifically with the issue of military tribunals. 
In your question, which was fairly lengthy, you stated, ``Some 
have suggested that those responsible for the attacks be 
treated as war criminals and tried by military tribunals.''
    In response to the question, the Attorney General pointed 
to the Quirin case, reminding you that in that case, the 
Supreme Court upheld the legality and constitutionality of 
military tribunals. And although the Attorney General did not 
commit at that time to creation of such tribunals, his answer 
plainly indicated that such tribunals were under consideration. 
And the Attorney General's responses are dated October 18.
    Now, Mr. Chertoff, as you know, many of us on Capitol Hill, 
including a number of Senators in this room, spent an 
inordinate amount of time, a considerable amount of time and 
effort last month to pass the USA PATRIOT anti-terrorism 
legislation in an attempt to provide law enforcement with the 
tools it needs to effectively fight terrorism. Now, one 
criticism of the Department of Justice that I have read since 
the passage of that bill is that the USA PATRIOT Act has been 
of little help to the Department in the war against terrorism 
and, thus, that we should be skeptical when the Department 
again comes before us seeking additional powers.
    Now, in your opening remarks, you briefly indicated that 
the USA PATRIOT Act had, in fact, been helpful in the war 
against terrorism. Could you give us a little better idea as to 
how the USA PATRIOT Act has been of use to the Department in 
the war against terrorism?
    Mr. Chertoff. I would be delighted to do so, Senator, 
because we, in fact, moved literally within hours after the 
passage of the Act to start to implement it as part of our 
attack on terrorism.
    First and foremost, of course, we have used it to start the 
process of sharing information between the intelligence side 
and the law enforcement side, which has been indispensable to 
satisfying our direction to protect the American people against 
future acts of terrorism.
    We have used, for example, new Section 2703 of Title 18 to 
obtain information from a cable company that also provides 
Internet services which we would not have been able to do under 
prior law without a specific court order.
    We have used it more efficiently to obtain certain 
information via subpoena from Internet service providers. We 
have obtained court orders directed to out-of-district Internet 
service providers for logging information, which, again, has 
provided us with enhanced efficiency in terms of pursuing this 
investigation.
    We have used the nationwide search warrant provision to 
obtain relevant information. We have used the emergency 
disclosure provisions to support our use of information that 
was provided to us by an Internet service provider.
    So these are some examples of the specific ways we have 
actually deployed the new powers in the Act. In fact, I can 
tell you personally, not more than a few days ago a request 
came to me about whether we could get some information about 
addresses on the Internet, and it was information that was 
important that we might not have been able to get under the 
prior law. But because of the new law, I was able to direct 
people to go out and get an order and make sure we can get that 
information.
    So we have absolutely made use of these tools and intend to 
continue to do so.
    Senator Hatch. Thank you. I was particularly interested in 
the portion of your remarks in which you addressed the topic of 
those individuals who have been deterred in connection with the 
investigation into the events of September 11th. You mentioned 
an important fact that I think has gone unnoticed and 
underreported in our country, and that is this: All individuals 
being detained in connection with this investigation are 
alleged to have violated either the immigration laws of the 
United States, the criminal laws of the United States, or they 
are being held pursuant to the order of a Federal judge as a 
material witness to a crime.
    Now, is that accurate?
    Mr. Chertoff. That is accurate.
    Senator Hatch. Could you speak at a little more length 
about these detainees, the basis upon which they are being 
held, and the procedural checks that are involved in the 
process? Because some of the criticisms I think have been 
unfounded, very unfair and have almost been hysterical. But the 
questions are important, and your answers are even more 
important.
    Mr. Chertoff. Again, Senator, that is why I welcome the 
opportunity to testify here and try to set the record straight 
on some of these things.
    First of all, we have the category of people--and they 
number 55 at this point--who are in custody under Federal 
criminal charges. They are treated like any other person 
charged under the Federal criminal laws. They are presumed 
innocent. They have a lawyer. They appear in open court. They 
know the charges against them. In due course, they will come to 
trial and, if convicted, they will be sentenced in accordance 
with the law.
    Then we have a number of people who are held pursuant to 
material witness warrants for grand jury investigations. Again, 
the law provides for that. They have the right to a lawyer. 
They have the right to appear before a judge to have bond set 
and to argue about whether they ought to be detained. So, 
again, that is part of the ordinary process of the law.
    Finally, with respect to the immigration side of the house, 
there are people who are in custody, being detained pursuant to 
immigration violations. And let's be clear. Those are people 
who have essentially overstayed their welcome in this country. 
They don't belong here. They are charged with either having 
gotten here under false pretenses or having overstayed their 
visa or in some other fashion violated the immigration laws, 
which results in them being deportable.
    And pursuant to the process that we have in INS, they go 
before an immigration judge. That judges makes a determination 
whether to keep them detained or not, and then it is reviewed, 
again, in the normal course.
    So nothing that we are doing differs from what we do in the 
ordinary case or what we did before September 11th. And, 
importantly, nobody is held incommunicado. We don't hold people 
in secret, you know, cut off from lawyers, cut off from the 
public, cut off from their family and friends. They have the 
right to communicate with the outside world. We don't stop them 
from doing it.
    And I hope that by putting this in perspective I can dispel 
some of the mystery that apparently has risen up in the press 
about what is actually going on.
    Senator Hatch. Well, thank you. My time is up.
    Chairman Leahy. Thank you. Also, from just a housekeeping 
way, we are going to follow the early-bird rule, going from 
side to side. And on this side, the order of arrival, Senators 
Kennedy, Feingold, Durbin, and Feinstein; Senator Hatch on your 
side, Senators Specter, Sessions, Kyl, McConnell, and DeWine, 
in that order.
    Senator Kennedy?

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you very much. Thank you very much 
for being here responding to these questions.
    I think at the start of these oversight hearings, we are 
very mindful, all of us are, of the challenge that we are 
facing with terrorism. There is no monopoly of concern in 
trying to be effective in dealing with the problems of 
terrorism. And many of us believe in a comment about the 
effectiveness of the President in galvanizing not only a 
coalition but looking at a multidimensional approach in trying 
to deal with the terrorism. But we need, in this Committee that 
has special responsibilities, to have the steps that are being 
taken by our National Government, as you outlined, to be both 
constitutional and effective. And that is why we want to work 
with you and the administration to try and do that, not all 
powers are here, but at least these are matters that we have 
considerable interest in and have worked on.
    I think it is against a background where we have seen this 
country pass an alien and sedition law, and John Adams now who 
was recently more acclaimed by David McCullough is the one that 
signed the alien and sedition laws. We were facing challenges 
at that time.
    We see Abraham Lincoln, who is our most revered President, 
move ahead and abolish habeas corpus at the time of the Civil 
War. We saw the Palmer Raids after World War II, and we have 
just gone through in more recent times the internment--the 
review of the internment of the Japanese in World War II.
    So we have seen many times when the Congress has had 
hearings, saying we are facing this terror and we are taking 
steps, and then we have looked back in terms of American 
history about what this was about, and then we say we should 
have taken some time and really thought these steps through.
    Now we have seen in more recent times where, under our 
chairman and Senator Hatch, we did the anti-terrorism bill, 
which was worked out in a bipartisan way. And we have the 
airport security after a period of time included in the anti-
terrorism legislation, with money laundering, which is 
important, changes in the intelligence worked out in sort of a 
bipartisan way, which the American people really had a sense 
that they are participating in. And we are making, I think, 
important progress in bioterrorism and also in trying to deal 
with national security on the immigration. And we are working 
that out with the Congress, and we want to work with you. It is 
in that framework that I think many of these questions have 
come and have to be raised.
    Now, on the issues of the military courts, I am a member of 
the Armed Services Committee and they gave us absolutely no 
indication. We are going to hear in about this Armed Services, 
so I don't want to put words in your mouth, but they had 
indicated that they stated unequivocally that Defense 
Department didn't request the authority. They didn't even 
appear to have been consulted. That was my impression. 
Secretary Rumsfeld will have a chance to answer. Maybe you 
would want to make a comment in just a minute on this.
    There are concerns that many of us have about the military 
tribunals. Many of us, including bipartisans have been critical 
of these military tribunals. We have been most particularly 
critical when it has involved Americans in Peru. There we found 
an American being tried, and the State Department, Republicans 
and Democrats all talked about the failure of the military 
courts in Peru intentionally for not meeting internationally 
accepted standards of openness, fairness, and due process. We 
have stated that military courts in Egypt do not even ensure 
civilian defendants due process for an independent tribunal. We 
have stated that military tribunals in the Sudan do not provide 
procedural safeguards. We have criticized Burma, China, 
Colombia, Malaysia, Nigeria, Russia, and Turkey on similar 
grounds.
    Yet now we are calling for the use of military tribunals. 
The concern is: Aren't we doing exactly what we have criticized 
other nations for doing? That would be one question. Let me 
mention just three items.
    The second is with regard to the monitoring of the 
attorney-client communications. We have a process that is 
already available for those that are being imprisoned that is 
being utilized by the Justice Department and taking on the 
tough issues, for example, in the Mafia and drug kingpins. And 
we haven't had testimony that hasn't been effective, and we 
have a process and procedure. And you have outlined a 
completely new kind of way of dealing with it. And we are 
asking ourselves, well, why don't you use the one that has been 
tried and tested and has been effective? We didn't know that 
that wasn't effective and wouldn't be just as effective in 
dealing with the kinds of challenges that you are facing today. 
It would have been interesting to know why you need the extra 
kind of dimension when many of us feel and continue to feel 
that the problems of the Mafia and drug kingpins enormously 
important.
    The final point I just want to mention deals with the 
questioning of the Middle Eastern detainees and the massive 
questions whether it is racial profiling or not racial 
profiling. We have seen where our profiling technique failed us 
abysmally with regard to the airlines. We were profiling the 
wrong people. And that is--I won't take the time to do it.
    And now we have the criticism of the former leaders in the 
FBI that have had solid records of achievement and 
accomplishment in dealing with the problems of terrorism, men 
and women of distinguished careers and who are tough on these 
issues who make the comments that they think are not only guts 
the values of our society but is also extremely ineffective.
    Could you--
    Mr. Chertoff. Let me try, Senator.
    Senator Kennedy. Fine. Thank you. I know I have given you a 
lot, but--
    Mr. Chertoff. I have taken notes, and I will try to deal 
with each of these in turn. Let me not venture into the field 
of what the Department of Defense will tell the Armed Services 
Committee. I think that really falls within their jurisdiction.
    On the issue of military commissions, I think we are aware 
of the fact that there has been criticism of some tribunals 
overseas. The fact of the matter is, whether you have a 
civilian tribunal or military tribunal, it is possible to have 
a fair one and it is possible to have an unfair one. It is not 
how you characterize it. It is how you implement it.
    This country does have a long tradition of using military 
commissions, and using them fairly. I was surprised to learn, 
as I did reading in this area, that the Nuremberg tribunal in 
the post-war period in 1945 was actually a military commission 
that was constituted under the laws of war. And I don't think 
anybody doubts that that was a fair tribunal.
    So the fact that you have a military commission does not 
betoken any unfairness. To the contrary, I think the President 
has made it abundantly clear he expects that the procedures 
that will be written will require a full and fair hearing that 
comports with reasonable standards of what fairness are. And I 
think the Department of Defense is going to produce a set of 
rules that comports with those standards the President has laid 
down.
    So I don't think that we need to be concerned that we are 
doing something here that we are criticizing others for doing 
merely because we are using the well-accepted constitutional 
power to have a military commission. I think we have to have 
confidence that the process of developing the rules will, in 
fact, meet the President's directive.
    Let me then turn briefly to the issue of attorney-client 
monitoring, and, again, it is not a matter which I think we 
undertake lightly, as indicated by the fact that there are only 
16 inmates in the country who are even eligible for this. And 
to my knowledge, nobody has at this point been subjected to 
this new rule.
    But we are dealing with individuals who are sworn enemies 
of the United States, and I can tell you from my personal 
experience doing organized crime cases, I know that we had 
problems in the past with organized crime figures conducting 
business from jail and even using lawyers to do that.
    But in those instances, to be honest, the worst that 
happened was they continued to conduct criminal activity, but 
they didn't pose an actual threat to large numbers of 
Americans. As bad as the Mafia is--and I take a back seat to no 
one in that respect--they weren't about the business of 
massacring hundreds of American citizens. So when we face that 
threat, the question is: Can we take steps as part of our 
management of the Federal prison system to make sure that 
people are not abusing their power and their right with respect 
to attorneys to communicate with the outside world, to initiate 
or encourage terrorist attacks that can cause massive damage to 
the United States?
    What we have done, though, Senator, taking account of the 
law in this area, is to put in steps that afford the maximum 
amount of protection to the effective attorney-client 
relationship while allowing us in these rare instances to 
monitor in case there is information that relates to threats.
    Nothing that comes through this monitoring process that is 
privileged is going to be retained under the regulation. 
Nothing that is privileged is going to be transmitted to 
anybody outside of the monitor and team, and it cannot be used 
by the prosecutors in the case. And we have experience using 
these kinds of devices in other situations, so I think we are 
confident we can make them work. And of course at the end of 
the day, if someone is prosecuted, a judge is going to have the 
opportunity to review whether in fact we have mishandled the 
information.
    Let me finally turn to the issue of the interviews of 
detainees. Let me begin by saying, Senator, this is the least 
intrusive type of investigative technique that one can imagine. 
This is not rousting people. This is not detaining people. This 
is not arresting people. This is approaching people and asking 
them if they will respond to questions. So there is a minimal 
intrusion involved here.
    We have emphatically rejected ethnic profiling. What we 
have looked to are characteristics like country of issuance of 
passport, where someone has traveled, the manner in which they 
have entered, the kind of visa they have come in on, and we 
have refined it based upon our experience gathered over the 
last several years in dealing with terrorists. And one measure 
of how precisely we have wielded the scalpel is the fact that 
we are talking about 5,000 people out of millions of people who 
come in and out of the country every year. So we have been 
careful in using this technique, and we have also been careful 
to make this a voluntary process.
    Finally, I did read the article in the ``Washington Post'', 
and let me address it by saying this. I do not know where the 
people who were interviewed, how they get an understanding of 
what we are doing. But I can make it clear that we are 
continuing to use the traditional techniques of investigation 
including long-term undercover operations, wiretapping, 
everything that we have been able to use in the past that has 
produced results. But we have also decided to use additional 
techniques, and one of the things we have done is we have 
imposed upon ourselves the discipline of asking: Is this 
investigation yielding fruit, or do we need to take the case 
down and now try to bring charges against somebody?
    Again, my experience in the past is that sometimes these 
undercover operations or long-term wiretaps languish as the 
investigators wait for manna to drop from heaven that is going 
to be the smoking gun. We have to be disciplined enough to 
recognize there is a cost involved in protracting 
investigations, and we have to be disciplined enough to pull 
the trigger when the time has come to bring the case down. So 
that is what we are doing, we are using the old techniques, but 
we are using new techniques too. And we are not foreclosing 
things that have worked, but we are, again, creating the 
broadest range of options in being effective in fighting 
terrorism.
    Senator Kennedy. My time is up. Thank you.
    [The prepared statement of Senator Kennedy follows:]

 Statement of Hon. Edward M. Kennedy, A U.S. Senator from the State of 
                             Massachusetts

    Two months ago, the United States was attacked by terrorists who 
sought to disrupt our government and our way of life. They have failed. 
Americans today are more united than ever in our commitment to win the 
war on terrorism and protect the country for the future. An essential 
part of meeting this challenge is protecting the ideals that America 
stands for here at home and around the world.
    Soon after the vicious attacks of September 11, Congress approved 
strong bipartisan legislation authorizing the use of force against the 
terrorists and those who harbor them. Congress also quickly enacted 
legislation to provide aid to victims and their families, and to 
rebuild Lower Manhattan. We enacted airport security legislation, and 
an antiterrorism bill that gives law enforcement and intelligence 
officials enhanced powers to investigate and prevent terrorism. I'm 
optimistic that Congress will soon approve bipartisan legislation to 
improve border security and to strengthen our defenses against 
bioterrorism.
    As these examples demonstrate, our system of constitutional 
government has served us well in this time of crisis. Now is the time 
to defend our Constitution--not to undermine it.
    At today's hearing, and at the hearings that will follow, the 
Committee will consider the policies and actions by the Administration 
since September 11 that have raised serious questions about basic 
liberties protected by the Constitution. Some of these policies may be 
justified, but they are difficult to evaluate, because of the Justice 
Department's failure to provide information requested by members of the 
Committee.
    Many of us have serious doubts about both the constitutionality and 
the wisdom of the President's plan to establish military tribunals to 
try foreign suspects apprehended within the United States or overseas. 
The Constitution gives Congress the power to define and punish 
``offences against the law of nations,'' and to create courts inferior 
to the Supreme Court. Yet Congress has not expressly authorized the 
kind of military commissions contemplated in the President's order.
    Advocates of military tribunals have argued that foreign terrorist 
suspects do not deserve the same constitutional safeguards--such as the 
right to counsel, proof beyond a reasonable doubt, and appellate 
review--that are given to U.S. citizens in normal criminal cases. These 
safeguards, however, exist to identify the guilty and protect the 
innocent. They are not luxuries to be dispensed with in times of 
crisis. Just this year, the Supreme Court re-affirmed the principle 
that non-citizens within our borders--whether lawful, unlawful, 
temporary, or permanent--are entitled to the same fundamental 
constitutional rights as U.S. citizens.
    For many years, the United States has strongly criticized the use 
of military tribunals in other countries. If we engage in such 
practices now, it could undermine our position of authority in the 
world, and limit our ability to extradite terrorist suspects 
apprehended by our allies.
    In recent years, Congress has expanded the jurisdiction of federal 
courts to cover a wide range of terrorist offenses, and has implemented 
innovative court procedures to protect government secrets. 
International tribunals have been used effectively to try suspected 
terrorists, in the tradition of Nuremberg, Yugoslavia, Rwanda, and the 
Pan Am 103 bombing. The Administration has not adequately explained why 
secret, ad hoc military tribunals should be used, instead of 
established legal forums, either domestic or international, to bring 
the perpetrators of the September 11th attacks to justice.
    I am also deeply concerned about the decision of the Department of 
Justice to monitor attorney-client communications. Detainees have long 
had a constitutional right to speak with their attorneys on a 
confidential basis. The Department's new policy allows monitoring to 
take place without judicial supervision and without even a showing of 
misconduct by the attorney involved. The Department bears a heavy 
burden to explain why existing procedures for investigating crimes and 
fraud by attorneys are inadequate, and why this unprecedented 
obstruction of the right to counsel is constitutional.
    Similarly, many questions have been raised about the 1200 people or 
more who have been detained-since September 11. Few of these detainees 
have been linked to terrorist activities. Last month, I joined other 
members of the House and Senate Judiciary Committees in asking Attorney 
General Ashcroft about the status of these detainees. We also asked for 
a briefing. We have still not received a full accounting of everyone 
who has been detained and why.
    Finally, many of us are also concerned about the Administration's 
decision to question 5,000 immigrants, almost all of whom are Middle 
Eastern, who recently entered the country legally.
    Unfortunately, the Department has failed to provide Congress with 
sufficient information to perform its essential oversight role on each 
of these significant issues. I hope that Administration officials will 
be more forthcoming at these Committee hearings.
    In a speech in 1987, Justice William Brennan observed that the 
United States had repeatedly failed to preserve civil liberties during 
times of national crisis--from the Alien and Sedition Acts of 1798, to 
the internment of Japanese Americans during World War Il--only to later 
realize ``remorsefully. . .that the abrogation of civil liberties was 
unnecessary.'' As we face another crisis today, I am hopeful that we 
can avoid the errors of the past. To do this, the Administration and 
Congress must share information and work together, as we did in the 
weeks immediately following the September 11th attacks, to 
bring the terrorists to justice, to enhance our security, and to 
preserve and protect our Constitution.

    Chairman Leahy. Thank you. I would also note I will put in 
the record--because Senator Hatch had mentioned my question to 
the Attorney General on military commissions--actually in the 
hearing record I ask specifically and directly whether the 
President was considering this option, and the Attorney General 
answers, it would be inappropriate and premature basically to 
answer that. I will put that in the record, and of course, 
everybody can draw whatever conclusion they want.
    Chairman Leahy. Senator Specter.

STATEMENT HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF 
                          PENNSYLVANIA

    Senator Specter. Thank you.
    There is no doubt that the atrocious, barbaric conduct of 
the terrorists on September 11th require very, very strenuous 
response by the United States, and there is a very heavy burden 
on the Government today to do everything in its power to 
prevent a recurrence and to protect this country and its 
citizens from bioterrorism, and that is a very heavy 
responsibility which I believe the Congress is facing up to 
squarely with the very prompt enactment of the Resolution for 
the Use of Force two days after September 11th, the 
appropriation three days after September 11th of $40 billion, 
and subsequent action in providing an antiterrorist bill.
    The question arises as to the scope of what our response 
will be and that is a matter which the Constitution gives to 
the Congress, the exclusive authority to establish military 
tribunals. Now, Congress has delegated some authority to the 
President and it is cited in the President's Executive order, 
and it provides that there shall be, this is the statutory 
language, ``procedures to be prescribed by the President, which 
shall so far as he considers practicable, apply the principles 
of law and the rules of evidence generally recognized in the 
trial of criminal cases in United States District Courts.''
    So that is the President's authority to follow the regular 
rules of evidence unless it is impracticable to do so. And that 
is the issue which requires some analysis. It was surprising to 
me that the Attorney General did not consult with any member of 
this Committee. A year ago he sat on this side of the bar of 
this Committee. We have your statement that it is necessary to 
be aggressive and hard-nosed. I agree with you completely about 
that. On this dias you have quite a number of former 
prosecutors who have been charged with or perhaps complimented 
as being aggressive and hard-nosed.
    Where you have the Executive order providing skeletal 
outline which authorizes conviction by a two-thirds vote of a 
quorum, in military court martial if you have a sentence of 10 
years or more, requires a three-quarters vote. If you have the 
death penalty, it requires a unanimous verdict. And I do 
believe that the kind of conduct we are calling for here calls 
for the death penalty. There is no provision in the Executive 
order for a judicial review. The traditional lines of going 
into Federal Court have been eliminated with only review 
provided by the President or by the Secretary of Defense. The 
rules of evidence have been abrogated so that evidence may be 
admitted and if it is considered to have probative value by a 
reasonable person.
    The sequence of proceedings under the detention line 
provided that a rule was signed into effect on October 26th. It 
went into effect on October 29th without any customary comment 
period, and then it was published in the ``Federal Register'' 
on October 31st. And here again a question arises as to 
consultation or at least notification of the Committee.
    There is in the public media very substantial critical 
comment by former FBI Director Bill Webster and other FBI 
officials about the procedures which are being utilized, all of 
which leads to the thought that these really are vital matters. 
We want to be sure that no stone is left unturned, and that the 
Department of Justice or the Department of Defense have every 
tool available.
    What I would like you to comment on is the sequence for the 
detention order, as to whether the rules were followed as to a 
comment period, and also as to the specifics on the Executive 
order as to certain key points. In your statement you say that 
the right to counsel is preserved. I would be interested to 
have you show me that in the Executive order.
    The Executive order has a provision that the regulation 
shall provide as to the ``qualifications of attorneys.'' I 
would be interested to see where in the Executive order there 
is a right to counsel, and what you consider to be the area of 
need, because if you can show it, I am going to back you up all 
the way, but I would like to see what you consider to be the 
area of need for the two-thirds vote; for the absence of 
traditional judicial review; for the absence of proof beyond a 
reasonable doubt, the customary standard which is omitted; and 
the modification of the rules of evidence, as I have earlier 
noted, in the context that the statutory delegation by the 
Congress requires the customary rules of law and evidence as 
are used in the District Court unless there is a showing that 
it is impracticable, and that is what I would like to hear you 
describe.
    Mr. Chertoff. I would be happy to, Senator, and again, I 
hope I will respond to all the issues you have raised, and of 
course, if I miss something and you remind me, I will address 
it.
    First of all, let me say there is nothing about what the 
President has done or the Attorney General has done that is in 
any way, shape or form meant to suggest that Congress has been 
in any way remiss in being a full partner in this war on 
terrorism. Everybody is very mindful and appreciative of the 
diligent and speedy work--
    Senator Specter. How can you talk about full partnership 
when nobody let us know that this Executive order was coming 
down?
    Mr. Chertoff. At the same time, Senator, there are 
responsibilities which the President has as Commander-in-Chief, 
which if I can address briefly, may help put this in context. I 
think that the source of the President's power, as I understand 
it, to authorize military commissions comes from Article II of 
the Constitution. Interestingly, Congress itself recognized 
this preexisting source of power when it passed Title 10 U.S.C. 
Section 821, which embodies the Uniform Code of Military 
Justice. That provision says in relevant part, because it 
establishes courts martial, quote: ``The provisions of this 
chapter conferring jurisdiction upon courts martial do not 
deprive military commissions of concurrent jurisdiction with 
respect to offenders or offenses that by statute or by the law 
of war may be tried by military commissions.'' And when the 
Supreme Court address that provision in the Madsen case at 343 
U.S., the Court determined that the effect of this language was 
to preserve for commissions the existing jurisdiction which 
they had over such offenders and offenses based on the 
preexisting practice under the laws of war.
    So I think that Congress itself, when it passed what is now 
codified in Section 821, recognized this inherent power of the 
Commander-in-Chief, and it has been recognized not only in 
international law but in our own practice literally since the 
days of George Washington, who authorized a military commission 
I think in the latter part of the 18th century to try Major 
Andre for espionage.
    So in terms of the source of this authority, I think it is 
a constitutional source of authority.
    Now, as far as the particular rules are concerned, I think 
there I have to point out that we are, that the Department of 
Defense is currently in the process of putting those rules 
together, and I have no doubt that in drafting those rules, the 
Department of Defense is going to be mindful of what Congress 
has prescribed, of what their own practices have been, of what 
the history has been with respect to the rules and--
    Senator Specter. Is the Department of Justice involved with 
the drafting of those rules?
    Mr. Chertoff. The President has committed the 
responsibility for drafting these rules in the first instance 
to the Department of Defense.
    Senator Specter. So the answer is no.
    Mr. Chertoff. At this point the answer is the Department of 
Defense is--
    Senator Specter. It seems to me the Department of Justice 
ought to be involved. Yours is the department which has the 
traditional longstanding experience here.
    Mr. Chertoff. Well, Senator, I can assure you that at any 
point in time that the Secretary of Defense requests the 
assistance of the Department of Justice, which he is of course 
entitled to do under the President's order, the Department of 
Justice will be more than happy to render any assistance that 
we can.
    But let me also point out the President's order sets forth 
a minimum that has to be met, not a maximum. It is envisioned 
that the skeleton which the President set forth in this initial 
order is going to be fleshed out by the Department of Defense, 
that they are going to address issues such as what the burden 
of proof is going to be, precisely how the evidential rules 
will be implemented. In fact, even the provision that talks 
about conviction upon the concurrence of two-thirds of members 
of the commission sets a minimum requirement. Nothing in this 
precludes the Secretary of Defense from looking to traditional 
practice including traditional practices in courts martial, and 
determining that for certain types of punishment there should 
be a higher level of unanimity.
    So none of this is foreclosed. And I think, frankly, 
Senator, one of the virtues of this hearing, and I envision 
other hearings, is that it will provide a further fund of 
information from which the people who are preparing the 
regulations can draw as they finalize what they are going to 
do. So this is merely a point of departure. This merely starts 
the process, and I think in so doing, it is consistent with the 
practice that Franklin Roosevelt used when he triggered the 
similar power in the mid 1940s in the Quirin case. He merely 
initiated the process with a bare-bones order, and then, as was 
customary practice, the military officers fleshed out the 
details and the actual procedures. So we are beginning the 
process. The process is under way. It is not concluded, at 
least as far as I understand it. And I think all of these 
matters, I am confident, will be considered by the people who 
are putting these rules together.
    Senator Specter. Does that mean you are going to come back 
and consult with us before anything is implemented?
    Mr. Chertoff. Well, I am hesitant to speak for the 
Department of Defense. I think they have the responsibility to 
carry forward with this, and I think for me to speculate about 
how they are going to do it or who they are going to consult 
really takes me out of my area of jurisdiction.
    Chairman Leahy. But the Senator from Pennsylvania raises a 
valid point, that you are and you represent the chief law 
enforcement agency of our Government and the one that has to 
eventually determine whether things are done legally.
    Mr. Chertoff. There is no doubt about that, and as the 
President's order makes clear, the Secretary of Defense is 
authorized to draw upon our expertise or anybody else's.
    Senator Specter. Mr. Chertoff, I would hope you would not 
wait for an invitation.
    Mr. Chertoff. I think we are capable of making our voice 
heard when necessary.
    Senator Specter. Well, this Committee did not wait for an 
invitation. We called for the hearings. We called you. Use your 
telephones. Call them up. Tell them you need to be involved. 
Tell them you have had a lot of experience as a tough hard-
nosed prosecutor. We know your background. We also know your 
record for protecting constitutional rights.
    Chairman Leahy. You do not have to mail us. I am having a 
little difficult with my mail these days, but--
    [Laughter.]
    Mr. Chertoff. We can fax and e-mail as well.
    Chairman Leahy. Yes. In fact, I am urging the terrorists to 
fax their anthrax letters to me from now on. But you can assure 
the Attorney General that this question will be asked, if not 
by Senator Specter, but by others when he gets here.
    Senator Feingold.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you very much, Mr. Chairman. I want 
to thank you very much for scheduling this series of hearings. 
It is obviously an extremely important function of the 
Committee to engage in oversight of the Department of Justice, 
and it is particularly crucial now given the enormous effort 
that the Department is making to investigate the horrific 
attacks of September 11th, and also to prevent future acts of 
terrorism in this country, and I do want to thank the ranking 
member, Senator Hatch, for joining in the Chairman's request 
that the Attorney General appear before this Committee.
    I do thank you, Mr. Chertoff for being here, and appreciate 
you coming. But I do think that the kinds of questions that are 
being raised about the Department's conduct are best answered 
by the person in charge, the Attorney General. I look forward 
to his appearance before this Committee next week, and I urge 
that that appearance be one where all members get a chance this 
time to ask questions for a reasonable period of time, which is 
not what happened when we considered, however briefly, the USA 
PATRIOT Act.
    As many of my colleagues have suggested in their questions 
so far, there really are serious questions as to the 
legitimacy, the effectiveness, and even the constitutionality 
of several of the steps that the administration is carrying out 
with regard to this investigation. The one thing that is clear 
so far today is that this is a bipartisan feeling, that 
consultation with Congress on some of the more controversial 
matters has been woefully inadequate. This is particularly true 
in the wake of the lightning speed with which we passed, over 
my objection, the USA PATRIOT Act. I hope this hearing, and 
those to follow, will, as others have said, encourage more 
consultation, more discussion, and more cooperation with 
Congress, and I also hope that these sessions will help us 
educate the American people, and members of Congress, about 
what is being done in their name and under the authority that 
they have granted their Government. Only by working together 
can we ensure the effective administration of justice and also 
the protection of our most sacred civil liberties.
    I would like to follow, Mr. Chertoff, with something that 
Senator Hatch brought up. As you know, I and others have been 
seeking information concerning the individuals who have been 
detained during the investigation of the September 11th 
attacks. I want to be clear. I do not necessarily object to 
detentions, per se. I simply believe that the identities of the 
detainees should be made public. Otherwise I do not how to 
answer a couple of questions. How can we know whether they have 
access to attorneys or have, in fact, been held incommunicado? 
How do we assess whether the Government is acting appropriately 
in detaining these individuals if we do not have any idea who 
they are?
    Thus far the Justice Department has refused to provide most 
of the information I have requested, and I have not found the 
justifications for not providing the information terribly 
convincing. I continue to be deeply troubled by your refusal to 
provide a full accounting of everyone who has been detained and 
why. Yesterday, the Attorney General cited concerns for not 
wanting to provide the Al Qaeda network with a list of their 
members that we have in custody as a reason for not disclosing 
the names of the detainees. But then he freely disclosed a 
sampling of the names who have been charged with Federal 
offenses. And I would add to that, that in fact the identities 
of 104 people have now been released, who are charged with 
Federal crimes. We requested this information in a letter dated 
October 31, and we can now determine, in those cases, the 
conditions of their confinement and whether they are being 
represented by counsel. So I am pleased that you have released 
this information. It is long overdue. But it does not seem 
consistent with the other statements that the Attorney General 
has made. We still do not know who is in custody for 
immigration charges.
    And although you say that no one is being held 
incommunicado, we do know that Dr. Al-Hazmi from San Antonio 
was held incommunicado for a week and a half. We are also aware 
of a lawyer in New York who states it took over a month to 
locate her client. He had been picked up and sent to New York 
for questioning.
    And so it is difficult for me to understand exactly where 
the administration is coming from with these inconsistent 
statements. I simply disagree with the Attorney General's 
assertion that disclosing the identities of detainees will 
bring them into disrepute. I think that just the opposite is 
true. By failing to articulate who is being held and why, the 
families, friends, co-workers, and neighbors of those detained 
are simply left to believe the worst, that the detainee is 
somehow linked to the September 11th attacks. By failing to say 
who is believed to be a suspected terrorist and who is not, the 
Justice Department tarnishes the reputation of all, including 
those who have already been or later will be found innocent.
    It is my understanding that the identities of people who 
are in deportation proceedings are regularly made public. And 
so what I would like to do in the remaining time is ask a 
question about that and two other questions in the Kennedy 
tradition, and then have you respond to all of them.
    [Laughter.]
    Senator Feingold. The first is with regard to the 
detainees. The Attorney General has somehow suggested 
repeatedly that the immigration laws prevent him from 
disclosing the identities of the detainees. I would like to 
know precisely the authority for this claim.
    Second, I would like some clarification of the summary 
numbers that the Attorney General provided yesterday. He 
announced that 55 individuals are in custody on Federal charges 
and 548 are being held on immigration charges, so that is a 
total of 600. But there are reports in recent weeks of more 
than 1,100 total detainees. We do know that some people have 
been released, but are we to conclude that nearly 500 people 
have been released recently, or are there people being held on 
state and local charges that the Justice Department is not 
taking responsibility for in these counts?
    And finally, you have said that the questioning of 5,000 
Arab and Muslim men is not an intrusive process, and the 
Attorney General said yesterday that people should just 
cooperate and not resist these questions. But I think you are 
aware, especially given your own background, regardless of what 
the Department says, that the communities involved perceive 
this program as very intrusive and very frightening. I 
understand that in fact you were involved with the New Jersey 
State Legislature's efforts to address racial profiling 
practices by New Jersey State Troopers, so you are well aware 
of the importance and significance of this kind of a concern. 
So two points there. What steps has the Justice Department 
undertaken since September 11th to reach out to the Arab and 
Muslim community in a way that would be less offensive and more 
constructive, and confidence building for both parties? And 
regardless of how justified and appropriate you believe this 
program of interviews to be, are you concerned at all about 
alienating the Arab-American and Muslim communities? Don't you 
want to do whatever you can to cultivate good relations with 
these communities in order to enhance the investigation and 
help uncover and prevent future terrorist acts?
    Thank you very much.
    Mr. Chertoff. Senator, I would be happy to answer those 
questions. Let me try to take them in turn.
    With respect to the issue of disclosure of the names of the 
detainees, I think to be clear--and I do not remember the exact 
statement; I was not present when the Attorney General made his 
statement to the press--but I think to be clear, I do not know 
that there is a specific law that bars the disclosure of the 
names. There are laws that allow us, in response to FOIA 
requests, to voluntarily withhold the names, but I do think 
there are two considerations which are pertinent here. One is 
we really do not want to put out a list of people that we 
categorize as people who we think might be terrorists as a 
subset of people who are being held in INS detention.
    And actually I think Senator Hatch reminded me that when we 
deal with the issue of what we call Megan's Law in my own 
state, which is people who have been convicted of sex offenses, 
there is a great deal of sensitivity about keeping those 
Megan's Law hearings closed precisely for the reason that if 
someone has not been convicted of a crime we do not want to 
publicly stigmatize them. So I think there is a legitimate 
concern here not to label people against their will.
    And in that regard, I think there is an important point 
that has been missed by a lot of critics. Everybody who is in 
detention as part of this 548 is absolutely free to publicize 
their name through their family or through their lawyers. There 
is nothing that stops them from saying, ``Hey, I am being held 
in detention as part of this investigation.'' But they have the 
right to make that decision, rather than us make that for them.
    Second, as I think the Attorney General points out, 
although it is true that people charged with Federal criminal 
offenses do have their names by public, and that is required 
not only by law but I think by the Constitution. Where we are 
dealing with the area of immigration, putting out a list of 
everybody that we have could be of aid and assistance to 
terrorists who want to know what the progress of our 
investigation is, where we are looking, have we picked someone 
up, have we not picked someone up. I can tell you from 
reviewing some of the materials that were seized when we did 
searches of Al Qaeda members overseas some years back, they are 
very sophisticated about our legal system. They actually have a 
manual with lessons, and the lessons include saying, ``You 
should keep track of where your brothers are in the criminal 
justice system. You should be mindful of how the criminal 
justice system works.''
    So we are, I think, well advised, to the extent we can do 
so consistent with the law, not to assist them in tracking what 
the flow of our investigation is.
    Let me now deal with the numbers. I think the numbers I 
think are pretty straightforward. There are 548 people that are 
in detention on immigration charges. There are 55 people who 
are in detention on Federal criminal charges. Now there is 
another number, 104, which relates to the total number of 
criminal charges that have been filed as a consequence of this 
investigation. The reason there is a difference is because 55 
reflects those situations where we have apprehended the person, 
so we unsealed the charge. If we have not actually taken the 
person into custody on a criminal charge, the charge may be 
sealed, and that is why there is a difference between the 104 
and the 55.
    Finally, there is a number of people that reflects people 
being held on material witness warrants pursuant to a grand 
jury investigation. We cannot publicize that number. That is 
grand jury material that is covered by Rule 6(e).
    The 1,100 number, which you made reference to, I think 
reflects a running tally that was kept in the early weeks of 
the investigation. It includes, in addition to INS detainees, 
people under Federal criminal charge and material witnesses. It 
also includes people who are held on state and local charges, 
and it includes a great many people who were briefly detained, 
questioned, released, and have now gone on their merry way 
without any further interaction with law enforcement. So that 
number does include a significant group of people that are no 
longer being detained or held as part of the--
    Senator Feingold. What is the breakdown of the different 
categories?
    Mr. Chertoff. Well, the problem I have is this: I cannot 
give you the number relating to material witnesses on grand 
jury because I am forbidden by law. I do not know the number of 
people being held in state and local custody, because, frankly, 
we do not track that. And so without those two numbers, I 
cannot do the mathematics necessary to subtract from the 1,100.
    Senator Feingold. Is it your assumption, though, that the 
lion's share of that further category would be the state and 
local detainees, or not?
    Mr. Chertoff. I would hesitate, Senator, to speculate about 
what the proportions are. I am sure there are some state and 
local people who are being detained on those charges. I cannot 
give you a number to that. I know there are some held on 
material witness warrants. I know there are a significant 
number of people who have been released. I think you made 
reference to one individual in San Antonio who was held on a 
material witness warrant and then ultimately released and went 
public. So clearly there are people in that category.
    I should also make clear, and I think the Attorney General 
has said this on a number of occasions publicly, the 1,100 
included pretty much anybody who was detained even for a brief 
period of time. As you know, for constitutional purposes even a 
15 or 20-minute detention constitutes a detention under the 
Fourth Amendment. There are people who were stopped and may 
have been questioned for an hour or two. They may have been let 
go, and that was originally folded into that number. I think it 
turns out at this point that is no longer a useful number, and 
I think we have tried to furnish more precise numbers about 
people who are really being held.
    Finally, let me turn to the third point. As you noted, 
Senator, I do have some personal experience with the issue of 
racial profiling, and I think everybody was exquisitely 
sensitive to the need not to do ethnic profiling, not to 
communicate or to suggest that people of a particular religion 
or people of a particular ethnic group are more prone to be 
terrorists than others. That would not only be wrong but it 
would be foolish because we would be deluding ourselves if we 
thought that we can limit ourselves by looking at a particular 
religious denomination.
    On the other hand, we do know certain things about what the 
terrorists themselves have chosen to do. We know that, for 
example, bin Laden has chosen to recruit people from certain 
countries or to train people in certain countries, or to 
instruct people as to how to conduct themselves in terms of 
what kinds of visas to get or how to make their way into the 
countries which they have targeted. And we would be foolish not 
to look at those criteria as a way of culling through the pool 
of people who have come from overseas and deciding who might 
have useful information. I want to be quite clear, we are not 
in any way suggesting the people we are talking to are 
suspected terrorists. They may be people who may have 
encountered terrorists. They may know that. They may not know 
that. They may not even be aware that they have useful 
information. So we are trying to make it very clear that we are 
not targeting people in a particular community.
    I know that U.S. Attorneys have both on their own 
initiative and under instruction reached out to members of the 
Muslim community and other ethnic communities to make the point 
that we are seeking their coordination, that we are not 
profiling, that we are not questioning the loyalty of all of 
the communities that make up America, that we understand they 
also lost people in what happened in the World Trade Center, 
and we are going to continue to do that, because I completely 
agree we cannot win this fight if we do not enlist everybody, 
all Americans, of whatever ethnic background, whatever race, 
whatever religion in the struggle, and we are going to continue 
to do that.
    Senator Feingold. Mr. Chairman, thank you for all the time. 
I would just add that one of the few advantages I can see in 
all these changes being directed by the Executive, without 
adequate consultation, is it may make the terrorist handbook 
about how our system works obsolete.
    Mr. Chertoff. I hope so.
    Senator Feingold. Well, but that concerns me. That concerns 
me. And I say that, obviously, with a concern that if we are 
going to change our system in all these different ways without 
adequate consultation or oversight by Congress, that the very 
foundations of our system are threatened. People who are 
detained have a right to be able to believe that they get to 
operate based on the rules that we have traditionally followed 
and not on a whole new set of rules. And I do have serious 
concerns about the way this is being done, but I look forward 
to a continuing process of trying to elicit the information and 
work with you on this.
    Mr. Chertoff. Thank you, Senator.
    Chairman Leahy. In fact, I would agree that if the handbook 
is being changed, it should be at our initiative and not at the 
terrorists' initiative.
    Again, for housekeeping, the next Senator in the order, 
being Senator Sessions of Alabama, I would also note for 
members and for the witness, when Senator Sessions finishes his 
questioning and the witness finishes his answers, we will take 
a 5-minute break so that Mr. Chertoff can stretch his legs and 
everybody else can.
    But, Senator Sessions, please go ahead, sir.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman. I think it is 
appropriate that the Department of Justice come before this 
Committee and explain what you are doing and why you are doing 
it, and what legal basis you believe you have for the actions 
that you have taken. There has been, as Senator Hatch noted, a 
bit of hysteria I think in some of the criticism of the 
Department, a real suggestion that things are going on that are 
not going on, a suggestion that laws are being violated that I 
do not think are being violated.
    So I first would like to express to you, Mr. Chertoff, my 
appreciation for your candid and very effective testimony that 
I believe has rebutted already many of those charges that I 
think are incorrect. This is a great country. We have great 
affection and commitment to civil liberties, but we also are a 
country that provides for realistic efforts against crime and 
realistic efforts in a wartime situation.
    Let me just ask you once more, and I would ask the other 
members of the panel to think on this: in your view, Mr. 
Chertoff, all the actions that have been taken by the 
Department of Justice are within the Constitution and laws of 
the United States and the laws of war recognized throughout the 
world?
    Mr. Chertoff. Absolutely, and I think they are consistent 
with past practice when we have faced situations of comparable 
emergency.
    Senator Sessions. I think that is an important thing for 
us. If somebody believes that we are violating the law, let us 
say specifically what law is being violated and how it is that 
it is being violated.
    With regard to the military tribunals, that is a function 
of the President's war powers; is that correct?
    Mr. Chertoff. That is correct.
    Senator Sessions. So it is really not a Department of 
Justice, it is a military act primarily?
    Mr. Chertoff. That is correct, Senator.
    Senator Sessions. The question then is, I suppose, should 
we provide the terrorists who are attacking the United States 
more rights than the laws of the United States and the world 
provide them? And that is a question of policy. I suspect we 
will provide them, as we go forward through this process, more 
rights than they would get in other nations throughout the 
world, probably more rights than any other nation in the world 
would give them under the same circumstances. So the question 
really is: how much beyond what the legal requirements this 
country puts on the Department of Justice should be applied?
    I know Senator Specter is such a fine lawyer and asked you 
some questions about the President's order, which I note is 
denominated a military order with regard to the trial by 
military tribunals, and on page 4, subsection (5), it says that 
it provides for modes of proof, issuance of process, 
qualifications of attorneys, which at a minimum should provide 
for, paragraph 5, conduct of the prosecution by one or more 
attorneys designated by the Secretary of Defense and conduct of 
the defense by attorneys for the individual subject to this 
order.
    So it would appear to me, would it not, that the 
President's order pretty clearly did provide for appointment of 
counsel for the defense?
    Mr. Chertoff. That is clear to me, Senator.
    Senator Sessions. With regard to the attorney/client 
communications, now as a Federal prosecutor myself for 15 
years, I am aware that drug dealers and Mafia people have 
utilized the freedom that we provide and the rights we provide 
to actually conduct criminal operations from jail. You have 
been a long-time Federal prosecutor. Is that not true?
    Mr. Chertoff. Well, I actually convicted people of crimes 
committed when they spent--during a period of time they were 
mostly in jail, so it is certainly done all the time, 
unfortunately.
    Senator Sessions. Hypothetically, if you did not have the 
kind of rule that the President has put here that provides at 
least the potential to monitor communication between attorneys 
and clients, if bin Laden were in jail and he had a friendly 
attorney, he could actually conduct terrorist operations from a 
Federal jail; is that not correct?
    Mr. Chertoff. That is correct, Senator, and I point out 
that it is not only in the case of an attorney who is willingly 
helping, but even an attorney unwittingly could be used as a 
tool for communicating.
    Let me, if I can just take a moment to read from again the 
manual. This is from Lesson 18. They actually have these things 
in lessons. That instructs that if an indictment is issued and 
the trial begins, the member has to pay attention to the 
following rules. And it talks about taking advantage of visits 
to communicate with brothers outside prison and exchange 
information that may be helpful to them in their work outside 
prison.
    Senator Sessions. Wait a minute. This is bin Laden's 
manual?
    Mr. Chertoff. This is bin Laden's manual. This is what they 
instruct their terrorists. This is a kind of teaching tool for 
terrorism.
    He says the importance of mastering the art of hiding 
messages is self evident here. So they are trained specifically 
in how to use the ability to communicate when they are in 
prison in order to further the goals of the terrorist 
organization, and woe until us if we do not learn the lessons 
from what they are teaching.
    Senator Sessions. Well, now you have said that you have 
identified, what was it, how many thousand people in prison?
    Mr. Chertoff. 158,000 approximately, I think.
    Senator Sessions. And 16 individuals that might be subject 
to this kind of supervision or monitoring; is that correct?
    Mr. Chertoff. That is correct. And I should make it clear 
that of the 16, 12 are terrorists and 4 are under these special 
administrative measures for espionage.
    Senator Sessions. And so I think--and to your knowledge, 
none of that has occurred as of this date?
    Mr. Chertoff. We have not, as of this date, actually 
initiated any monitoring pursuant to this order.
    Senator Sessions. Well, I would just say this. I think you 
should be very careful not to overuse that privilege, but I 
think it would be a colossal error of monumental proportions if 
we were to allow a terrorist prisoner to be able to plan and 
conduct and order and direct additional terrorist attacks 
against people of the United States, when we have I think a 
legitimate basis for monitoring that. So I think you should do 
that. I hope it should not be abused, and I am glad to see that 
you have so few of defendants being looked at in that regard.
    Mr. Chairman, my time has expired. I thank the Chair. I 
believe Mr. Chertoff's testimony has gone a great way to allay 
the concerns that many have expressed.
    I thank you for it. I thank you for what the Department of 
Justice has done, the tireless effort, the many hours long days 
that you have put in, and Attorney General Ashcroft has, and we 
have not had an additional terrorist attack in this country to 
our knowledge, and I am confident had you not moved 
aggressively, that we may well have had additional Americans 
dead, maimed and wounded in this country as a result of further 
terrorist acts. I salute you and thank you for your efforts.
    Mr. Chertoff. Thank you, Senator. And I would be remiss if 
I did not make it clear this is really based on the fine work 
of all the men and women of the Department of Justice, 
including the FBI as well as state and local law enforcement 
and the other agencies of the Federal Government who are 
working tirelessly to defend this country.
    Chairman Leahy. Thank you, Mr. Chertoff. When you do go 
back to the Justice Department, you can assure them that while 
it might have been doubtful before, you do have Senator 
Sessions on your side in this regard.
    [Laughter.]
    Chairman Leahy. We will take a 5-minute recess, and then we 
will go to Senator Durbin and Senator Kyl.
    [Recess.]
    Chairman Leahy. Mr. Chertoff, your birthday celebration 
just never stops. [Laughter.]
    I appreciate the one musician among us in not leading a 
resounding chorus of happy birthday.
    Senator Durbin, just so everybody knows, it will be Senator 
Durbin, then Senator Kyl, Senator Feinstein, Senator McConnell, 
and then Senator DeWine, Senator Grassley.
    So, Senator Durbin, please go ahead.

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thanks, Mr. Chairman.
    Mr. Chertoff, thank you again for being here.
    I think it is fairly well known across this country that 
this Congress, since September 11th, has really made an 
extraordinary effort to cooperate with the President and the 
administration in this war on terrorism in so many different 
ways, providing the President with the resources and the 
authority with strong bipartisan votes.
    I can tell you that the modestly titled USA PATRIOT Act was 
a struggle for some, including myself, to try to find the right 
balance between our constitutional responsibilities and our 
responsibility to protect and defend this nation. And I thought 
that after lengthy deliberation and refinement that we struck 
that balance, that we found an appropriate way to give new 
authority, appropriate authority to the Department of Justice 
and the President to deal with terrorism. I voted for it. 
Virtually all of my colleagues, but Senator Feingold, whom I 
respect very much for his own views on the subject, felt the 
same way. But it was a struggle. It was not easy.
    And I think that is why you perhaps heard some frustration 
and disappointment from the Judiciary Committee today about the 
announcement concerning military commissions or military 
tribunals, because it seems to us that this is a rather 
significant departure from what we considered to be the opening 
statement here of our cooperation between the Legislative and 
Executive branch in dealing with terrorism. We felt that we had 
been asked for and had given to the administration the tools 
they needed to fight terrorism. And then, to the surprise of 
many of us, came this new request for--perhaps not a request, 
but an announcement about military tribunals and commissions.
    Let me tell you three specific areas of concern that I have 
on this issue. Number one. After the painstaking process which 
we went through for the antiterrorism legislation, we arrived 
at some very carefully worded definitions. The President's 
order relative to military tribunals virtually starts anew when 
it comes to many of these same terms. You have addressed your 
testimony, as you should, to the whole question of terrorism. 
The antiterrorism bill defines terrorism, goes through and 
catalogs the Federal laws that will be characterized as 
terrorism, an exhaustive list. And yet when we look at the 
President's order, it is a much different approach as to what 
will be considered terrorism when we are engaged in military 
tribunals.
    We also have a standard that is in the President's order. 
It refers to a quote, ``reason to believe standard'', close 
quote, and that is not defined and it is not a common term of 
law so that you might be able to find precedent to explain what 
it means. So for those of us who felt that the process resulted 
in a good piece of legislation which we could support even with 
some reluctance, but realizing we need it to protect America, 
this new approach breaks new ground in definition on critical 
areas. What is terrorism? What is the standard for the 
President to convene a commission or tribunal?
    Secondly, I had the good fortune to meet with now the U.S. 
Attorney for the Northern District of Illinois, Patrick 
Fitzgerald, who was a prosecutor in the Southern District of 
New York against the Al Qaeda terrorists, and a very well 
versed prosecutor on the subject. He talked to me about his 
successful experience about prosecuting terrorists for the 
embassy bombings and his involvement in the World Trade Center 
bombing in 1993.
    The reason I think back on that is that at that point in 
time, facing the loss of American life from terrorism, we felt, 
as a Government, that our courts and our laws were adequate to 
the need to prosecute even those overseas who had been 
extradited to the United States. And now we have a new 
approach. Now, I will concede in a second that what happened on 
September 11th was a much different magnitude. But if you could 
please draw a distinction for me between what was clearly 
adequate and successful in the past in prosecution that the 
administration now believes is inadequate, even with the new 
antiterrorism law.
    The third point raised by Senator Leahy, and one that 
troubles me is this. As a member of the Intelligence Committee 
I know that probably the greatest successes we have had since 
September 11th have not been reported. We have an exceptional 
cooperation now from countries around the world in gathering 
intelligence on terrorism. For the Spanish Government to 
announce to us that they will not extradite terrorists who 
could be of value to us in solving any of the mysteries or 
disarming the cells or finding the sleepers in the United 
States because of military tribunals and the death penalty, 
raises serious questions in my mind as to whether or not we are 
helping ourselves by adding a military tribunal into this mix.
    I know that my time is coming to an end. As I mentioned to 
you at the break, I am going to use the Kennedy approach here, 
and just perhaps raise one other issue on detention. You have 
said in your testimony, and I quote, ``Nobody is being denied 
the right to an attorney.'' Now, Senator Feingold made the 
point about the Saudi-born radiologist from San Antonio, Texas, 
Dr. Albida Al-Hazmi--I hope I have not mispronounced his name--
who was arrested and detained after purchasing airline tickets. 
I read the story about this doctor in the newspaper, and the 
thing that struck me was not only what he went through but what 
he said afterwards. Afterwards he said, ``I don't have any 
anger towards the United States. I understand. This is a very 
tough time, and I was ultimately released, and I think that 
says something good about the United States and the fact that I 
was able to return to my family and my community.'' And I think 
it does too. He seemed to be a man with no chip on his 
shoulder, no grudge, who went through a very harrowing 
experience but came out of it in a positive way.
    But to the specific issue of his right to an attorney, he 
was held, according to the ``Washington Post'', incommunicado 
for two weeks, was transferred to more than one detention 
facility, each a significant distance from his home in San 
Antonio, and it took his attorney six days to find him and to 
have access to him. In your statement that no one is being 
denied the right to an attorney, do you concede the fact that 
even if Dr. Al-Hazmi had the right to an attorney, that the 
circumstances under which he was held and detained and denied 
access to an attorney, would raise serious doubts in the minds 
of many in the legal community as to whether he truly had 
access to an attorney when he needed it?
    Mr. Chertoff. Let me try to deal with these questions in 
turn. And first of all let me reiterate again nothing about 
what the President has done with respect to invoking his power 
regarding military commissions is in any sense a reflection of 
anything less than great satisfaction with the steps Congress 
has taken to enhance the law enforcement element of our 
approach to terrorism.
    But at the same time we have to recognize that there are--
our domestic law enforcement can only prosecute domestic 
crimes. There is a separate category of crimes known as war 
crimes. There is some overlap. We can do certain things. We can 
prosecute certain types of acts both as domestic crimes and as 
war crimes, but traditionally and under the Constitution, the 
President has the choice as to which of those he wants to elect 
under the circumstances.
    And so let me address your first question in terms of what 
is the standard that will be applied under the order in 
determining whether someone will be prosecuted under a military 
tribunal. The order lays out a series of elements which the 
President would consider in making a decision, but certainly 
one of those elements is that the person be triable by a 
military commission for the type of offense that is 
traditionally triable by a military commission. And that means 
we are talking about people who can be tried for committing 
crimes against the laws of war, meaning that the are enemy 
belligerants who have engaged in or supported hostilities 
against the United States through unlawful means, such as, for 
example, the deliberate targeting of civilians or undefended 
buildings, or by hiding in civilian populations and declining 
to bear arms openly.
    So there is in the law, over a long period of time, a 
fairly well-accepted definition of what a violation of the law 
of wars is.
    Senator Durbin. I just ask this question. In the two 
instances I mentioned, the 1993 World Trade Center bombing and 
the embassy bombings in Africa, would both of those qualify 
under that definition for trial by military tribunal?
    Mr. Chertoff. I do not know whether the 1993 World Trade 
Center would have done so, because I do not know whether one 
could reasonably have said at that point that we were in a 
state of armed conflict. It might very well be that the 1998 
bombing would have put us in that state of armed conflict. 
There is no doubt that now, as we sit here, we are certainly in 
a state of armed conflict. And I do not mean to suggest that we 
cannot prosecute these cases domestically under domestic laws 
that we have had for some period of time and that have been 
recently enacted, but there may be policy reasons in some 
instances to choose the alternative approach of a military 
commission.
    And without in any sense suggesting the President is 
limited, let me give you one example. If it were to turn out 
that we apprehended 50 Al Qaeda terrorists in the field in 
Afghanistan, the President might well wonder whether it made 
sense from the standpoint of our national security to bring 
those people back to the United States, put them in a courtroom 
in New York or in Washington or in Alexandria and try them. I 
think as we sit here now there is still a conflict going on in 
a prisoner-of-war camp in Afghanistan, where some of the people 
who have been apprehended apparently seized the camp and are 
now trying to fight with the Northern Alliance. So plainly that 
is an instance in which the President could well determine that 
while we have jurisdiction to bring these people back and try 
them domestically, it makes no sense to do so when we can also 
try them for violation of the laws of war under the well-
accepted principle of military commissions.
    So I am the last person to say that we cannot adequately 
prosecute terrorists under our laws, but I am also quite ready 
to say that while our legal system is terrific and can handle 
these cases, it may not be the appropriate tool in every case, 
and the Constitution gives the President the ability to use 
other tools, and I think what he has done here is simply taken 
all of those tools out of the constitutional cupboard, so to 
speak, and now laid them on the table so that he has them all 
available.
    Let me deal with the issue of international cooperation. I 
read the newspaper articles. I do not think there is anything 
about what the President has announced that in any way, shape 
or form interferes with our ability to have international 
cooperation. Again, plainly, the President can consider, in 
deciding whether he wants to invoke a military commission in an 
individual case or the traditional Federal courts, whether that 
is going to have an impact on our ability to extradite someone 
from overseas, in much the same way as we often have to 
consider whether we will forego the death penalty as a 
condition of getting an extradition. So there is nothing about 
this that in any way, shape or form interferes with our ability 
to cooperate with our allies, and I must say, my understanding 
is that the Spanish authorities have been quite cooperative 
with us in this investigation. So I do not think, again, this 
option forecloses international cooperation.
    Let me finally deal with the issue of detention. I 
completely agree that it is not acceptable to have a situation 
where someone gets lost in the system for a few days and their 
attorney cannot get in touch with them. I have to say prior to 
September 11th we all know of instances where, through 
accident, people wind up not being in contact with their 
lawyers and a period of time may go by in which they really do 
not have access to counsel. We try to correct those things. 
Certainly it is not the policy, as I understand it, of the 
Government to try to interfere with that communication. It may 
very well be that in the time compression of the early parts of 
this investigation, as people were moved around, there was some 
slippage. But it is certainly not the policy to try to 
interfere with that kind of communication. We want everybody to 
have access to their lawyers and we want to play by the rules.
    Senator Durbin. Thank you. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Kyl.

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you, Mr. Chairman.
    First of all, let me say that some of the questions that 
have been asked today I think really have elucidated the 
situation, and hopefully will answer a lot of the questions 
that I have seen asked on various talk shows and so on. I think 
every one of the questions, for example, that Senator Durbin 
just asked were appropriate. I was curious about some of the 
same things, and I think the information you have provided to 
us is very useful to be able to answer legitimate questions 
that have been asked.
    But having said that, it also seems to me that we have to 
put into context what the President has done here. We have 
charged the President with the conduct of a war. The Congress 
helped to give him certain tools that he asked for some of the 
warriors in that fight, our intelligence officers, our law 
enforcement officers and so on, just as we have tried to 
provide the military support that our men and women in the 
service have. But it seems to me that in some cases we should 
provide the benefit of the doubt to the President here when he 
tells us that he is going to act in a certain way with respect 
to our enemies. We do not question his operational plans. We do 
not know all of the facts and circumstances. I think healthy 
skepticism is good. This Committee's tradition of healthy 
skepticism has certainly helped to ensure that the United 
States maintain its preeminent position in the world I applying 
the rule of law.
    But in view of the demonstrated evil of those who carried 
out the attacks on Americans, and their absolute disregard for 
any semblance of civilized behavior, and in view of the long 
record of the United States in advancing the rule of law, not 
just adhering to it in this country, but certainly being the 
most liberal country in the world I think in ensuring every 
conceivable right for the accused. And in view of the type of 
situations that I think we are likely to find, especially 
abroad where our military is going to be confronted with 
situations and military tribunals would most likely be used, it 
seems to me that the benefit of the doubt should go to the 
President here.
    And I am a little bit disturbed by the criticism implied by 
some of the questions, not seeking information, as some of the 
questions have, but almost implicitly a criticism that 
regardless of the answer, there is going to continue to be 
skepticism and doubt. And as a Senator concerned about the 
safety of my citizen constituents, as well as upholding the 
laws and the Constitution of the United States, as they protect 
United States citizens, I am going to listen very carefully to 
the answers of the questions, and I think will give the benefit 
of the doubt to the President rather than inferring criticism 
of the President's order even after the questions have been 
answered.
    Mr. Chertoff has very forthrightly answered all of the 
questions he can. And he said there is certain grand jury 
information he cannot provide, and there are some things he 
does not know because it is a matter of local law enforcement. 
But I think no one would question his forthrightness and the 
completeness of his questions.
    And so I think we have an obligation as Senators, not just 
to question, not just to be devil's advocate--and by the way, 
this gives devil's advocate I think a whole new meaning, 
because we are questioning on behalf of people who, as I say, 
have not followed civilized behavior themselves. But after we 
have done that, I think we also have another obligation, and 
that obligation is to do everything we can to support the 
President, the Attorney General, the Secretary of Defense and 
others, who are attempting to ensure the safety and security of 
our citizen constituents.
    And while I am on that, Mr. Chairman, if anyone here doubts 
that terrorists use their ability to communicate through 
counsel about future plans while they are in jail, I invite you 
to conduct closed hearings on that subject. There is subject 
matter which could be discussed in that regard.
    And this raises another point. There are a lot of things 
that, you know, a lot of folks really are not aware of unless 
they serve on the Intelligence Committee or have had special 
briefings about threats that have been invoked against 
citizens, and that is another reason to give the President the 
benefit of the doubt here. You know, he has access to a lot of 
information that some of us are aware of, some of us are not, 
but we should not infer that he has some kind of evil intent. 
We should infer that his is an intention to protect the 
citizens of this country. So I think that should be our 
underlying assumption.
    Finally, with regard to the death penalty, remember that 
one of the--and there are a lot of European countries that will 
not extradite because they have a rule against applying the 
death penalty. We have the death penalty. It has been 
enormously helpful, especially in the spy cases, where in order 
to plea bargain for life, spies, ``A'', tell us a lot of 
things, and ``B'' preclude the necessity of a trial which could 
give a lot of information about sources and methods that we do 
not want to give. So there are a lot of reasons for a lot of 
these things that I think need to be discussed.
    Just one question, Mr. Chertoff. There has been a 
suggestion that there has to be a declaration, a formal 
congressional declaration of war for the President to have the 
authority that you have noted in here the Executive branch has, 
to invoke military commissions. Is there any legal authority to 
back up that proposition?
    Mr. Chertoff. Senator, I think the law is actually clear 
there does not need to be a formal declaration of war. Going 
back to the so-called Prize cases, which were decided in 1862, 
which dealt with President Lincoln's power to impose certain 
restrictions and blockades at the beginning of the Civil War, 
the Supreme Court noted that a conflict, quote, ``becomes a war 
by its accidents, the number, power and organization of the 
persons who originate and carry it on.'' And the Court has also 
noted on other occasions that the President has the power to 
take account of those factors and make a determination that we 
are in a state of armed conflict.
    In this instance, this is not a close call. I mean, we have 
been the subject of an unprovoked wanton attack which was 
designed to inflict maximum harm on American citizens. Unless 
there be a doubt about whether it is an isolated instance or 
whether those who are within our country who are terrorists 
believe they are at war, let me again quote from the manual 
here. This is the fourth less, where they define military bases 
for the terrorists, for Al Qaeda. And the definition of a 
military base to the terrorists is: these are apartments, 
hiding places, command centers, in which secret operations are 
executed against the enemy. These bases may be in cities, and 
are then called homes or apartments. So, again, this is not my 
language. This is the language of bin Laden and bin Laden's 
henchmen.
    They perceive their apartments as military bases. They call 
us the enemy. Under these circumstances, we have not sought 
war, but it has been thrust upon us, and it is for us to finish 
it.
    Senator Kyl. I thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. I would note, Mr. Chertoff, I just want to 
make sure I understand, that terrorist manual you speak about 
is the one that was discovered in 1998, 3 years ago--
    Mr. Chertoff. That is correct.
    Chairman Leahy. --in the American Embassy bombings in Kenya 
and Tanzania. Well before September 11th, it was entered 
publicly into the record in trials, and I would just note, 
having already had that a matter of public knowledge, a matter 
of knowledge of the Justice Department for years, something 
that has been looked at to successfully stop a number terrorist 
actions before they happen, you can understand my concern, 
having had that all the way through, why you never asked for 
these extra powers at the time when you were asking for 
extraordinary powers in the Terrorism Act that this Committee 
and the Senate gave you. That is why I am concerned.
    You had this for 3 years. We have all seen it, everybody on 
this Committee, it has been in the newspapers well before 
September 11th. Every quote you made from it is accurate, but 
it has all been in the papers. It has all been public. Our 
concern is, having known all that, having known that before 
September 11th, when your Department was charged with helping 
for our security, having been known at times when, without 
going into classified matters, when we have stopped terrorist 
acts over the last several years, that is why we are a little 
bit concerned. Nobody asked us during the time we were 
negotiating the Terrorist Act.
    Mr. Chertoff. Well, Mr. Chairman, I wish I could rewrite 
history. We cannot, and I certainly do not want to engage in 
any finger-pointing about things that might have been done. We 
face what we face now. We certainly had about as brutal a wake-
up call as you can have, and I think it behooves us now to look 
at everything, things that we recently discovered and things we 
have had in hand for a long time, in reflecting on what we can 
do to protect Americans within the Constitution.
    Chairman Leahy. I am not taking from Senator Feinstein's 
time. She has probably spent as much time and effort on this 
whole subject as anybody on this Committee, and I yield to her.

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Thanks very much, Mr. Chairman.
    Mr. Chertoff, I would just like to add my view that I would 
hope that in the future the administration would consult on 
these matters, particularly with the chairman and the ranking 
member. I think that is really important. I think one of the 
problems that we have is not the military commission, because 
most people understand why, if and when Osama bin Laden is 
caught, that it might not be to the Nation's security interests 
to have him tried in this country under our normal procedures. 
I think people understand that, and I think they are supportive 
of it.
    I think one of the problems with this and that I want to 
ask you about is its timing because Osama bin Laden is not 
caught, major perpetrators are not caught. Those 19, of course, 
are gone from the scene, but anyone else, in terms of a major 
planner, is not caught. Yet the administration came forward 
with this order, which by my reading is a very broad order, and 
therefore causes a lot of concern as to who is this going to be 
applied to.
    Why did the administration not wait until the standard of 
proof has been worked out, the details have been worked out, 
the military campaign was more advanced and then announce this? 
You must have some reason for announcing it at this point in 
time, and I would like to ask what that reason is.
    Mr. Chertoff. Let me see, Senator, if I can allay your 
concern. As I understand the process, in order to invoke the 
President's power under military commissions, at least as it 
has been done based on the precedent in 1942, I guess it was, 
the President had to issue an order setting this in motion and 
delegating to the Department of Defense or, as was the case in 
the past, to actually generals in the field the order to then 
develop the appropriate procedures.
    I suppose that the President could have issued the order 
secretly and had the procedures developed. Perhaps some might 
think that would have been a better approach, some might think 
this was actually a better approach in that it put on the table 
the fact that this process was going to begin. As to why it had 
to happen now, though, I think that, frankly, we do not know 
the course the war will take. I remember several weeks ago 
there were predictions in the press this was going to be a very 
arduous campaign, we were going to get bogged down in 
Afghanistan. It has seemed more recently that things proceeded 
perhaps more quickly than we anticipated. That may yet change.
    I think it is understandable, again, that one would want, 
at the earliest possible time, to begin the process of 
developing the full set of options that you might need to 
invoke should we encounter somebody that is a terrorist who has 
both violated domestic law and violated the laws of war. By 
publishing the order, what the President has, in fact, done is 
surfaced it and put it out in public so that there can be 
public debate about it, and of course this is while there is a 
process underway of having the Department of Defense develop 
the specific rules and procedures that will be implemented.
    Let me finally say, in case I had not made it clear 
earlier, we should not look at the fact that the Department of 
Defense's involvement in this is somehow treating this as kind 
of an inferior form of justice. There are very capable and 
honorable lawyers at the Department of Defense who are working 
on this, who are well versed in the laws of war, who we have 
every reason to believe are going to be as dedicated to the 
Constitution as lawyers in any other department and are going 
to be attentive to the views of scholars and the views of 
members of this Committee as anybody else.
    So I think the process is going forward.
    Senator Feinstein. If I understand you then, you are saying 
the rationale for the timing of this was simply to give the 
Defense Department the time it needs to work out the standards 
of proof and other criteria under which the order would be 
carried out; is that correct?
    Mr. Chertoff. I do not know, Senator, that I want to 
presume to articulate what the President was thinking. What I 
was trying to express was I think what was achieved initially 
in the order now. You needed to get the order out in order to 
start this process.
    Senator Feinstein. All right. Because let us say you have 
500 to 600 people now being detained, of course, no one knows 
who or how many or if any of those people will be subject to 
this order, and in Section 2, where it defines individuals 
subject to the order, it mentions the usual ``engaged in, aided 
or abetted, harbored, et cetera, planned carried out,'' and 
then the next section it says, ``It is in the interest of the 
United States that such individual be subject to this order.''
    What exactly does that mean and how many people under 
detention at the present time do you have reason to believe 
would be subject to this order?
    Mr. Chertoff. Let me, Senator, direct your attention as 
well to Section 4 because I think it is important to read the 
order in its entirety.
    As I understand the order, the order applies to people who 
could be prosecuted in a military commission for a war crime. 
That means, for example, that people who can be indicted for 
immigration violations or false documentation are simply not 
eligible under this order. They are not people who committed 
war crimes, and therefore they will be dealt with if they have 
committed domestic crimes in the ordinary way that people under 
Article III are.
    In order to be full within the scope of this order, you 
would have to be someone who could be tried for committing 
crimes against the laws of war; meaning being an enemy 
belligerent who has engaged in or supported hostilities against 
the United States. So that is a fairly high standard, I would 
think, and it does not apply to people who are in custody for 
garden-variety criminal offenses.
    In terms of asking how many people are currently in custody 
who could conceivably eligible for this order, I think I am 
limited because I do not think I am in a position at this point 
to identify the state of our investigation with respect to 
particular individuals or to disclose whether there is anybody 
we have identified that we have in custody that is someone that 
we would consider to be an active terrorist who has violated 
both domestic terrorism laws and the laws of war.
    So I do not know that I can give you that, but I can tell 
you that people who are found in the commission of garden-
variety crimes are not people who violated the laws of war, and 
therefore by its terms would not fall under this order.
    Senator Feinstein. Just one quick follow-up. Is it fair to 
say that there are some now in detention that would be subject 
to this order?
    Mr. Chertoff. Senator, I do not feel that I can, at this 
point in time, make a statement as to the status of anybody in 
terms of whether we have a level of proof about their 
activities that would rise to what you would need in order to 
prosecute them for a war crime.
    Senator Feinstein. Thank you.
    Thanks, The Chairman.
    Chairman Leahy. Perhaps the time to do this would be after 
the Attorney General's testimony, but if there are issues that 
should be addressed only in a closed session, and if the 
Senator from California wants one, I am sure that the Senator 
from Utah and I requested under the normal procedures this 
Committee does.
    Senator McConnell?
    Senator McConnell. Thank you, Mr. Chairman. This has been a 
very interesting hearing. I want to congratulate Mr. Chertoff 
on an excellent presentation.
    We have been talking about what kind of due process rights 
we are going to provide to a universe of people who I believe, 
am I not correct, are 100-percent noncitizens?
    Mr. Chertoff. That is correct.
    Senator McConnell. So this whole discussion is about a 
universe of people who are not citizens of the United States, 
and I think it is important to remember that.
    Let us then confront a potentially perverse result that 
could occur. An American serving in the United States Army in 
this country could conceivably end up with fewer safeguards 
because he would be subject to a military trial; would he not, 
Mr. Chertoff?
    Mr. Chertoff. My understanding is, yes, under the Uniform 
Code of Military Justice.
    Senator McConnell. Right. So you could have the perverse 
result in which an American citizen who happened to be a member 
of the U.S. military being tried in a military court, not a 
military commission, such as we are talking about here, but a 
military court having fewer sort of generally recognized due 
process safeguards than a foreign terrorist captured either 
here or overseas and brought here and tried, such as the 
terrorists were tried after the 1993 World Trade Center 
bombing; is that not correct?
    Mr. Chertoff. Well, Senator, I am not an expert in military 
justice. It is my understanding, although the system of rights 
under the Uniform Code is different, it actually does afford 
servicemen a considerable degree of protection in terms of 
their rights. There are some differences. I would not want to, 
though, suggest that it is an inferior form of justice. It is a 
different form of justice.
    Senator McConnell. But many would suggest that the reason 
for having a military tribunal in the first place is that the 
procedures are somewhat more efficient, shall we say, and 
maybe--
    Mr. Chertoff. There are protections, for example, for 
handling classified evidence I think that are somewhat 
different than--
    Senator McConnell. Let me try again. Would it be correct to 
assume that it is possible, under the scenario that seems to 
have been suggested here this morning, that you could have a 
foreign terrorist tried in a civilian trial in the United 
States with a lesser standard of what is generally believed to 
be due process than an American citizen serving in the U.S. 
military here? For example, they do not get a jury trial.
    Mr. Chertoff. Well, again, and I do not want to venture 
into talking about the Uniform Code because I really do not 
know very much about it, my understanding is in some 
circumstances you do get a jury.
    Senator McConnell. Let us assume that you do not get a jury 
trial in the military--
    Mr. Chertoff. Then that would be a--
    Senator McConnell. Just assume that for the sake of 
discussion. Would it not be safe then to conclude that an 
American citizen in the military who has to go to trial without 
a jury would have less sort of generally recognized due process 
rights than a foreign terrorist brought to the United States 
and tried in a regular civilian court?
    Mr. Chertoff. I think, if one were to assume that is true, 
then it would be the case that the terrorist would have an 
additional--
    Senator McConnell. Which is totally, let me suggest, is a 
totally perverse potential result of what we are discussing 
here this morning, completely absurd. It would be further 
incentive to foreign agents to be sure they got caught here, 
would it not?
    Mr. Chertoff. Yes. I think there is no doubt that one thing 
that this order operates to do is remove the assurance that a 
terrorist might have that there is a safe haven. The last thing 
we want to do is create the perverse incentive for terrorists 
to feel they ought to come into this country, because then they 
are home free, and get a higher measure of protection than they 
would get if they are caught in the field.
    Senator McConnell. Which leads me to my next question. In 
effect, we would have the potential of a repeat of the O.J. 
Simpson trial, complete with grandstanding by defense lawyers, 
in a trial of Osama bin Laden or his henchmen, with the 
potential to be set free. Because, let us just take a 
hypothetical, let us assume that the case was about an anthrax 
attack, that there was not a pristine, perfectly established 
chain of custody for anthrax, you could have these people being 
set free.
    In fact, what I would like you to do is just sort of give 
us a litany of things that could go wrong that would compromise 
our effort to fight terrorism if such trials were held in a 
U.S. civilian court, if you could just sort of give us a litany 
of all of the things you can think of that could go wrong that 
would compromise sources, methods, that allow us to conduct a 
war on terrorism, hopefully, in an effective way.
    Mr. Chertoff. Well, let me begin, Senator, by saying this. 
I do not want to be taken as suggesting that I have any lack of 
faith in the ability of our domestic criminal courts to trial 
terrorist cases. I have to say that the history of this 
Government in prosecuting terrorists in domestic courts has 
been one of unmitigated success and one in which the judges 
have done a superb job of managing the courtroom and not 
compromising our concerns about security and our concerns about 
classified information.
    That being said, we are in a different situation, both as 
to the scope of the challenge we face and as to the nature of 
the challenge we face. There are certain considerations that in 
the individual case could wisely counsel for the President not 
to pursue the domestic criminal route. Certainly, for example, 
we would not want to bring people into this country in 
significant numbers to be present in American cities where they 
pose a danger to the populace. It is a fact that in past cases 
involving terrorists tried in this country, the judges have had 
to be under guard, and some of that requirement for security--
    Senator McConnell. And what about the jurors? What about 
the threat to jurors?
    Mr. Chertoff. Jurors as well, and that has persisted for a 
period of time, even after the trials are over. It may not be 
fair--
    Senator McConnell. What about the reporters covering the 
trial?
    Mr. Chertoff. Well, I probably would not venture there with 
the reporters.
    Senator McConnell. And the judge.
    Mr. Chertoff. But the judges, there are judges who are 
still under protection as a consequence of that. So, plainly, 
the President could consider those factors.
    It is the case that up to now we have been successful in 
dealing with classified information, but clearly in the current 
environment, we may have some situations where there are 
individuals that we need to prosecute, where a large bulk of 
the information is classified, and we would not want to be in 
the position that we are in the domestic courts of having to 
drop the case because we cannot sacrifice confidentiality.
    And there may be technical problems, in some instances, 
given the far-flung nature of the investigation and the fact 
that we are accumulating evidence on the ground, presumably, in 
Afghanistan, where the need to have somewhat more streamlined 
procedures would commend itself to the President.
    I also want to be careful not to suggest that our domestic 
courts are incapable of doing these cases.
    Senator McConnell. I am not suggesting that you are 
suggesting that, but it is a practical result of this, would it 
not be the case, that jurors who were called could possibly 
look forward to having to have security for the rest of their 
lives.
    Mr. Chertoff. I do not know that we have had a case where 
the jurors have had to have security for the rest of their 
lives.
    Senator McConnell. But they might desire it as a condition 
for even participating.
    Mr. Chertoff. I think there can be concerns in some 
instances about juror security, judge security, security of 
witnesses, and that is certainly an important consideration.
    Senator McConnell. Obviously, some of these things are on 
the mind of the President or he would not have suggested that 
we wanted to have this option in the first place.
    Mr. Chertoff. I think that is quite true.
    Senator McConnell. Thank you, Mr. Chertoff.
    Chairman Leahy. Thank you.
    Senator Kohl?
    Senator Kohl. Thank you, Mr. Chairman.
    Mr. Chertoff, since the events of September 11th, the 
President and the Justice Department have commanded the trust 
and the support of the American people and the Congress more 
than ever as they prosecute the war on terrorism, and we are 
proud to provide that support. However, with that trust comes, 
as you know, responsibility. The fabric of our society is built 
upon the rule of law, and the expectation that our civil 
liberties will be protected as much as possible, even in 
extreme situations.
    When changes are made to our laws in the name of security 
or terrorism or war, in an effort to safeguard Americans, we 
are understanding, and yet we deserve to be told how these 
changes are being made and why. This does not indicate a lack 
of trust or patriotism; rather, it demonstrates the strength 
and the vitality of our democracy.
    With regard to the use of military tribunals, the curbs 
placed on the attorney-client privilege, and the detention of 
hundreds of people, we are suggesting to the administration to 
do the rule of law a great favor and prevent a clearer picture 
of what this all about; explain to us why all of these hundreds 
of people need to be detained and who they are; tell us your 
reasoning for the changes to the attorney-client privilege and 
what you hope to get from it; and detail for us who will likely 
be prosecuted in military tribunals and what the rules 
governing these trials are going to be.
    We trust the administration when they tell us that these 
measures will be used only infrequently. Nevertheless, it is 
our responsibility to verify that when they are used, it is for 
good cause and as fairly as possible.
    It causes a great deal of consternation in our country when 
we hear that Americans abroad will be subject to foreign 
military courts. We worry whether the Americans on trial will 
be afforded an attorney, an impartial jury and a fair chance to 
defend themselves. Just, for example, take the case of American 
Laurie Berenson, accused of treason in Peru back in 1996.
    We were justifiably angry when she was secretly convicted 
before hidden judges in Peru's supreme military justice 
commission, without any explanation of the verdict. Americans 
were upset that she did not receive a public trial, and 
therefore questioned the legitimacy of the verdict. When Peru 
relented in the year 2000 and agreed to hold a public trial, 
our State Department was vocal in support of the open and the 
fair proceeding, even though she was convicted a second time.
    So the same holds true when are the ones holding the secret 
trials. It demonstrates uncertainty about the strength of our 
democracy to try suspected terrorists without the same 
protections we want for our own citizens abroad. William Safire 
wrote in the New York Times this week that, in its present 
form, the military tribunal ``cedes to other nations overseas 
the high moral and legal ground long held by U.S. justice, and 
on what leg,'' he says, ``the U.S. does now stand when China 
sentences an American to death after a military trial, devoid 
of counsel chosen by the defendant.''
    These, I believe, are fair concerns and ones that need to 
be addressed, and we are suggesting to the administration that 
it is not too late to provide these answers.
    Mr. Chertoff, would you please respond to the idea that the 
perception, both at home and abroad, with regard to our 
dedication to the rule of law and our judicial system, is 
tarnished. How would you suggest we correct that without ceding 
the moral high ground held by our justice system?
    Mr. Chertoff. Well, Senator, I reject the notion that our 
moral high ground has been tarnished. I think, again, I begin 
with the fact that what the President has done is, as I said 
earlier, opened the constitutional cupboard and taken out his 
traditional constitutional power to authorize military 
commissions, and he has taken the first step in that direction, 
and he has directed the Secretary of Defense now to devise 
principles and rules that will, in the words of his order, 
provide for a full and fair trial.
    Now we have not seen those yet. They are in the works. To 
presume, somehow, that the Department of Defense and the 
lawyers there are going to come up with a kangaroo court 
procedure I think is to do them an injustice, and still less 
would I presume the President would countenance that. He has 
made it very clear he wants to have a full and fair trial.
    The presumption that we are going to hold secret, hidden 
commissions I think is an unfounded assumption. The order 
specifies that the rules are to be developed, paying due regard 
to the need to protect classified information, but I do not 
read in the order some mandate that everything has to be done 
in secret. I think, in fact, the President's counsel indicated 
publicly, shortly after the order was issued, that there was a 
general desire to be open, consistent with the needs of 
security and classified information.
    So that I think to presume the worst, and to assume that 
the procedures that will be written will be unfair or create a 
drumhead court martial is to do a disservice, frankly, to the 
men and women of the Department of Defense who are in the 
process of writing rules. If, when the rules are written there 
are matters to be criticized, I am sure there will be ample 
time to criticize them, but I think that the President has made 
it clear that what he wants is a full and fair trial. He has 
made a specific indication that he wants there to be defense 
counsel present.
    And we have a history of dealing with military commissions, 
under Article II, that is faithful to the Constitution and 
faithful to our values. Absent evidence to the contrary, I see 
no reason for anybody in any part of the world to assume we are 
going to depart from that.
    Senator Kohl. Well, I would like to hope that what you say 
is, in fact, going to pass, and I will assume it is. I believe 
that in hearings such as this, and the things that have been 
written in the press, the concerns that people have expressed 
about what these military tribunals will, in fact, be and how 
they will occur, has an effect on you.
    So that as you go forward and implement this, you will take 
into consideration, I am assuming, and I believe, the full 
concerns of people in this country, whether they be from the 
left or the right, about our civil liberties and how precious 
they are to us.
    Mr. Chertoff. Senator, let me say I am sure everybody's 
concerns will be taken into account. As Thomas Jefferson said 
in his inaugural, ``In this, you know, we are neither of one 
party nor another, we are all Americans,'' and I think that is 
our spirit.
    Senator Kohl. I thank you.
    I thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Kohl.
    Senator DeWine has been waiting very, very patiently.
    Senator DeWine. Well, and Mr. Chertoff has been very 
patient. We thank you, sir, very much for your good testimony 
this morning. I am going to say you have given us a lot to 
think about, and I am going to think about it.
    Let me ask, you have gone through and cited some historical 
precedent for the President's order in regard to the military 
tribunals. What is the best historical precedent? What is the 
closest?
    Mr. Chertoff. Well, I think the closest in time is probably 
the Quirin case, which is the trial of the saboteurs in I think 
1942, which was initiated by the President, pursuant to his 
residual power to create military commissions.
    But I was also interested to learn, when I was reading in 
this area that, for example, the Nuremberg tribunal was a 
military commission that was initiated by the four powers who 
were the principal combatants in the war on the victorious 
side. Likewise, there were military commissions that followed 
the main trial in Nuremberg that everybody knows about that 
tried hundreds of other Nazis for war crimes, and there were 
acquittals in that case and all kinds of different verdicts.
    So those are the most recent in time. They go back through 
the Civil War, even onto the trial of Major Andre at George 
Washington's direction.
    Senator DeWine. President Roosevelt's proclamation, though, 
was certainly more limited than this; is that--
    Mr. Chertoff. Actually, I believe the proclamation, in many 
respects, is virtually identical to this. This obviously is 
broader in the sense that it is not directed just at a single 
group of saboteurs, but it is directed more generally at a 
potentially larger class of people.
    One thing I should point out, Senator--
    Senator DeWine. Say that again.
    Mr. Chertoff. I say, unlike the Quirin order, which was 
directed at a particular set of saboteurs, this does not have a 
specific identifiable set of defendants. This defines a class 
of defendants.
    Senator DeWine. So it is broad.
    Mr. Chertoff. It is broader in application.
    I should point out, Senator, though, and I think it may be 
unclear, that it is consistent with the language that President 
Roosevelt used in Quirin to the effect that, as interpreted by 
the Supreme Court in that case, any application of this in the 
United States would be subject to habeas review by the Federal 
courts.
    Senator DeWine. Do you want to tell us how your local task 
forces are working out. These are the task force, the idea of 
putting obviously local law enforcement, and I am familiar with 
this by talking to U.S. attorneys in Ohio, but--
    Mr. Chertoff. We have had a history, Senator, as you know, 
going back some years in the creation of what we call joint 
terrorism task forces, and I think there were approximately 20 
prior to September 11th, and they were efforts to really bring 
together Federal, State and local law enforcement in a task 
force concept to deal with terrorism.
    After September 11th, shortly thereafter, the Attorney 
General directed that every U.S. Attorney's Office create a 
task force, if there was not one in existence already, which 
would bring together State and local officials with the U.S. 
attorney and the FBI to work together on formulating a plan to 
combat terrorism, and that is useful in a number of respects. 
It is useful in terms of communication of information from us 
to people in the various States; it is useful in terms of 
developing information from the field that can be sent back up 
to our terrorism prosecutors and investigators in Washington; 
and it is useful in coordinating an antiterrorism program in 
each district.
    These are comparatively new. I think they are working very 
well. Part of what we are trying to do, and the Attorney 
General has been very emphatic about that, is to open the doors 
to State and local law enforcement. We realize this is a team 
effort. Some of our most productive cases in the terrorism area 
have been generated because of leads and tips generated by 
local law enforcement. So this effort is designed to encourage 
that, to make our cooperation more seamless, and to make our 
protection of the public more efficient.
    Senator DeWine. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Schumer?
    Senator Schumer. Thank you, Mr. Chairman. Thank you for 
holding these hearings and letting us air some of these issues 
which are really important.
    I want to thank you, Mr. Chertoff, for being here and for 
serving your Government as well as you have for many, many 
years.
    I would like to ask a couple of questions about the 
tribunals. As you know, they have brought up a lot of concern. 
I have not made up my mind where to go on these. I think there 
is a need for secrecy. I think those who say we should just 
have a regular trial, as if was someone who held up a candy 
store, that does not make much sense. On the other hand, I do 
think that when you are dealing with issues like this, in terms 
of due process and everything, secrecy, right to counsel, there 
ought to be discussion. It ought not just to come down after--
there may have been elaborate discussion within the 
administration about this. I do not know, but we do not have 
the benefit of that discussion. It just sort of comes down, and 
I am getting lots of questions on it. I think lots of us are.
    So I guess my first question really is this: Most of this, 
as you said earlier, I saw a little bit of it, came out of DOD. 
Has DOJ been involved in any discussions with DOD or were you 
involved in any discussions with the Department of Defense 
before Attorney General Ashcroft talked about this and made it 
public?
    Mr. Chertoff. I think, actually, Senator, the President 
issued it, and I think when he issued the order, he directed 
the Department of Defense to put together the rules that would 
actually be used to implement the order, and that process, as I 
understand it, is underway in the Department of Defense now.
    My understanding is that, prior to the issuance of the 
Order, the President did consult with senior officials from a 
number of departments, including the Department of Justice, so 
there was some consultation.
    Senator Schumer. Was it extensive? I mean, did DOJ have 
different views than DOD on this?
    Mr. Chertoff. I am not in a position to characterize the 
discussions as being extensive or not, and I do not think it is 
appropriate for me to communicate what the particular advice 
might have been from senior officials to the President on a 
matter of presidential decision-making.
    Senator Schumer. Then let me ask you now, now that the 
rules are being formulated, have there been discussions with 
the Department of Justice? I mean, you folks are the experts on 
trials. I understand there has been a system of military 
justice for a long time, but these are sort of hybrid. That is 
the whole reason we are not just saying court martial or some 
other form that way. Has there been any discussion at all, to 
your knowledge? Has DOD or people in the White House who were 
involved in this reached out to DOJ and asked for your input?
    Mr. Chertoff. Again, I am limited by own knowledge. My 
understanding is that the President directed the Department of 
Defense to put these together, but also the order makes clear 
that the Department of Defense has the ability to call upon 
other departments, including obviously the Department of 
Justice, for assistance and advice in terms of this process. To 
my knowledge, that has not happened yet. Obviously, at such 
time as there is a request made for us to participate or to 
assist the Department of Justice, like any other department, we 
will be more than happy to participate.
    Senator Schumer. That has not happened yet.
    Mr. Chertoff. To my knowledge, that is correct.
    Senator Schumer. Do you think you would be helpful?
    Mr. Chertoff. I think that everybody in the Government will 
do everything they can to help with this process.
    Senator Schumer. How about on this, do you know if there 
was any consultation, when the President issued the tribunal 
executive order, was there consultation with your Department on 
whether there was a need for an express authorization by 
Congress to do this?
    Mr. Chertoff. Again, I am not in a position, both because 
of lack of knowledge and also because I do not want to get into 
confidential advice given to the President by his principal 
officers.
    There was consultation with the Department of Justice, but 
I think the details are something I am not in a position to get 
into.
    Senator Schumer. Let me then ask you a judgment question 
from your many years in various places in the Justice 
Department. I thought that the outcome of the antiterrorism 
debate on the antiterrorism bill was a good one. I thought 
there was give-and-take. There was public vetting. There was no 
attempt by those who did not completely agree with the initial 
proposal by the administration to be dilatory, but rather to 
make some changes, and I was sort of in the middle. There were 
some places where I was closer to the Attorney General and the 
Justice Department, there were some places where I was closer 
to our chairman and others.
    But one thing I am convinced of, that having a debate, 
having a discussion produced not only a better product, but 
something that was regarded as more legitimate, something that 
created greater consensus, something that not only people in 
this country, although that is first and foremost, but even 
people around the world could say this worked out pretty well, 
and the ultimate product to me was a good one. I did not vote 
for it reluctantly. I thought it was a good product.
    Why would that not be a better process, in terms of some of 
the things we are discussing here, particularly the tribunals? 
Would it not be better for the administration to bring a 
proposal before Congress, to not have Senators Leahy and Hatch 
have to make the request, make the request, for this to happen? 
We are going to have other needs and other changes. We, 
certainly, if I had to pick a word, it would be 
``recalibration,'' we do have to recalibrate, in every aspect 
of American life and in this one, too, where you balance 
liberty and security.
    Why is it not better to vet these things through a 
discussion process that we usually have through the Congress, 
rather than just issue fiats for the sake of a better product, 
for the sake of legitimacy, for the sake of the constitutional 
checks and balances which have seemed to serve us so well for 
these 200-some-odd years?
    Mr. Chertoff. Senator, I think all I can say is, again, the 
President's order is the process by which he initiates the use 
of this time-tested constitutional power. It, by its very 
terms, it is not the end of the process; it is the beginning of 
the process, and it directs the Department of Defense to take 
the responsibility to now flesh it out.
    I am confident that the people who are doing this are going 
to be receptive and interested in all of the relevant 
information, all of the relevant considerations in putting this 
together. Of course, the Department of Defense also appears 
before Congress and has interaction with Congress as well. So I 
do not want to presume to predict exactly the way in which the 
Department of Defense is going to go about doing its business, 
but I think that, again, we have seen what the President has 
done has been to initiate this process, to authorize it to be 
taken underway, but it is not a completed process yet.
    Senator Schumer. So you believe there will be more 
consultation than say there was up to now?
    Mr. Chertoff. I do not know that I am in a position to 
speak for the Department of Defense. I can tell you where the 
situation is now. The Department of Defense obviously interacts 
with Congress as well, but it is a matter that has properly 
been committed to their discretion because, after all, we are 
dealing with a power that the President is exercising that 
comes from his status as Command-in-Chief and not his status as 
head of the law-enforcement function.
    Senator Schumer. Although I would say some of these areas 
do shade into both. I mean, you have talked with some others, 
not just on the tribunal issue, but on others, where they are 
law-enforcement functions, and there seems to have been the 
same sort of ``We will figure it out quietly behind the 
current, and then we will issue something.''
    I would just urge greater consultation with us for the good 
of the country and for the good of the product.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Schumer.
    In fact, I could not help but note, Mr. Chertoff, when you 
say that there is nothing in the President's order that the 
military commission be held in secret, I would disagree. It 
gives the Secretary of Defense the authority to keep the 
proceedings secret if he wants. The Justice Department is 
briefed by saying the proceedings may be completely secret, 
even with no notification to Congress. I believe it was in the 
New York Times, where a military official as quoted as saying, 
``The proceedings may be kept from the public view for years, 
even decades.''
    I mean, it is the kind of things, your own Department's 
briefings to us, the way it is worded, these are the reasons 
why there has been concern about the secrecy aspect. Whether 
the secrecy is a good idea tactically or not, the fact is that 
most people here feel that that is a plan that they may be kept 
secret and may be kept secret, as they have said, even for 
decades.
    Mr. Chertoff. Mr. Chairman, again, I can only rely upon the 
text of the order. The order plainly directs the Secretary to 
consider the conduct, closure of an access to proceedings in a 
manner consistent with the protection of classified 
information. But as I observed earlier, I think the President's 
counsel has indicated a general preference to be as open as one 
can, given the exigencies of the circumstances.
    Chairman Leahy. You should talk to those who speak about it 
being decades and also talk to those in your own Department who 
say it could be kept in secret for a long, long, long time.
    Senator Hatch, did you have anything further or should we 
go to the next panel?
    Senator Hatch. I think we should go to the next panel 
because we have got a number of very important witnesses. I 
just want to compliment you, Mr. Chertoff. I do not think 
anybody could have been any more straightforward and articulate 
about these issues than you. I believe that we are very 
fortunate to have you in the position that you are in. I just 
want to compliment you for all of the hard, difficult and good 
work that you have done. It has meant alot to me, and I think 
it means a lot to our country. Thank you so much.
    Mr. Chertoff. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. You can go have your birthday lunch now.
    Mr. Chertoff. I will. Thank you very much.
    Chairman Leahy. Thank you for coming.
    Just so we understand, all members understand, please, give 
to either Senator Hatch or myself, any follow-up questions 
which will be delivered to Mr. Chertoff by the end of business 
today, and we would ask you to respond to those by the end of 
the week, so that we can have them in hand and prepared prior 
to Attorney General Ashcroft next week.
    Mr. Chertoff. I will do that.
    Chairman Leahy. I thank you.
    Mr. Chertoff. Thank you, Mr. Chairman.
    Senator Specter. Mr. Chairman?
    Chairman Leahy. Yes.
    Senator Specter. I was asked if I wanted to have a second 
round, and I said yes.
    Chairman Leahy. Oh, I had asked the ranking member if he 
wanted further.
    Senator Hatch. If I could, I really believe that we need to 
get to that next panel. I know that they are pressured on their 
time. That is one reason why, you know, I do not make the 
determination, but I suggested that we should move to the 
second panel.
    Senator Specter. Well, the second round is 5 minutes.
    Chairman Leahy. If the Senator from Pennsylvania wants 5 
minutes, it is fine with the chairman.
    Senator Specter. Yes.
    Chairman Leahy. Go ahead, but let us see if we can keep it 
5 minutes.
    Senator Specter. Mr. Chertoff, as a follow-up to the 
questions that I had posed earlier, you have said that the 
President is relying on his Article II powers in the 
promulgation of the executive order, and he does refer to the 
authority, as Commander-in-Chief, which obviously is a very 
generalized authority.
    The Congressional Research Service, which has done 
extensive research on this question, comes down flatly with the 
statement that the Constitution empowers the Congress to 
establish courts with exclusive jurisdiction over military 
offenses, and cites as the authority Clause 14 of Section 8 of 
Article I, which says that ``the Congress has the power to 
declare war, grant letters of marque and reprisal and make 
rules concerning captures on land and water.''
    And there is the express grant of authority for Congress to 
make the rules concerning captures on land and water, which 
would certainly encompass everybody in the military tribunal.
    In the President's executive order, he then cites specific 
statutory authority, which I quoted earlier, saying that unless 
impractical, the rules in the United States District Courts, as 
to evidence and law shall apply.
    Now, as a matter of constitutional interpretation, you say 
that the generalized authority as Commander-in-Chief gives the 
President the authority over the Congress on this issue in the 
light of the specific authorization of Article I, 8, 14?
    Mr. Chertoff. Actually, Senator, what I think I am saying 
is that we do not need to get there. Because, as I understand 
Section 8-21 of Title 10, Congress chose not to occupy the 
field, so to speak, and create exclusive jurisdiction, whether 
it could do so or not is a matter I understand has been debated 
by various people.
    Senator Specter. Where do you derive the conclusion that 
Congress chose not to occupy the field?
    Mr. Chertoff. Section 8-21 is entitled, ``Jurisdiction of 
Court Martial Not Exclusive,'' and says, ``The provisions of 
this chapter conferring jurisdiction upon court martial do not 
deprive military commissions, ellipsis, of concurrent 
jurisdiction with respect to offenders or offenses that by 
statute or by the law of war may be tried by military 
commissions.''
    Now that provision was addressed by the Madsen case by the 
Supreme Court at 343 US, at Page 352, where the Court indicated 
that that language preserved for such commissions the existing 
jurisdiction which they had over such offenders and offenses.
    Senator Specter. But, Mr. Chertoff, that case does not 
involve the constitutional authority of Congress. When you talk 
about occupying the field, you are talking about legislative 
intent to have exclusive control over a subject or whether the 
States may legislate or whether there may be other authority, 
but occupying the field does not go to constitutional 
authority. The Constitution is fundamental and is not a matter 
of legislative interpretation as to what is occupying the 
field.
    Mr. Chertoff. I think, to try to be a little more clear, 
Senator, what I am saying is that, regardless of how one weighs 
the debate over whether the President could authorize these 
tribunals, even in the face of an explicit grant of exclusive 
jurisdiction to the Federal courts, and I understand there is a 
debate about that both ways, and I do not portray myself as an 
expert in that, the Courts have interpreted this section as 
indicating that Congress has not reserved exclusive 
jurisdiction over military--
    Senator Specter. But you are talking about a section of a 
statute--
    Mr. Chertoff. Correct.
    Senator Specter. You are not talking about a constitutional 
provision and the application of occupying the field.
    Mr. Chertoff. I think what I am suggesting--
    Senator Specter. Let me just--I think, really, the answer 
may be in a little comity back and forth to try to work it out. 
We want you to have the authorities you need, but where 
Congress has said that the regular rules apply unless it is 
deemed impracticable, I think that is what we need to get to.
    In your statement where you talk about the need for 
secrecy, if there were will be a disclosure of matters, that is 
a cogent reason if it comes up in a specific case.
    Let me come back to a question which I have broached, but 
there was not time, on the Attorney General's rule establishing 
detention. Did the Attorney General meet the statutory 
requirements for an opportunity to comment on his rule? He put 
it into effect before it was even published in the Federal 
Register. Was there compliance with the provisions that there 
had to be an opportunity, a notice and an opportunity for 
comment?
    Mr. Chertoff. Is this the rule with respect to the 
monitoring of attorney-client communications?
    Senator Specter. No, it is the rule with respect to 
detainees, which was put into effect, which was written on the 
26th, put into effect on the 29th, and not even published in 
the Federal Register until the 31st, without any opportunity 
for comment. I just want to know if the Attorney General 
complied with the applicable law on that subject.
    Mr. Chertoff. I have to say, Senator, not being familiar 
with the promulgation and the process by which the rule was 
promulgated, I would certainly be happy to get back to you with 
an answer to that question.
    Senator Specter. I would appreciate it if you would. The 
red light is on, and I know we have to move on. So, if you 
would provide that in writing to the Committee, we would 
appreciate it.
    Mr. Chertoff. Sure. I would be happy to.
    Senator Specter. Thank you very much.
    Mr. Chertoff. Thank you.
    Chairman Leahy. Thank you. Thank you, Senator Specter.
    Thank you, Mr. Chertoff.
    Mr. Chertoff. Thank you, Mr. Chairman.
    Chairman Leahy. If we could bring the next panel up, 
please. They have been waiting very, very patiently. We have 
tried to accommodate the administration and my colleague, 
Senator Hatch, by having Mr. Chertoff first, and it was 
worthwhile.
    We will put in the record a number of press accounts and 
also leave the record open for any statements of any Senators.
    [The prepared statements of Senator Grassley and Senator 
Thurmond follow:]

Statement of Hon. Charles E. Grassley, a U.S. Senator from the State of 
                                  Iowa

    Thank you Mr. Chairman for holding this timely hearing.
    The past two and half months since September 11th have 
been trying times for all Americans. At the same time, we are a nation 
united against the terrorist threat-both at home and abroad-with 
greater strength and resolve than at any time in our history. I had a 
chance to see this first hand during the past Thanksgiving break in 
meetings with first responders back home in Iowa. In these meetings 
with firefighters, police, emergency and HAZMAT officials, and public 
health officers, there was a broad consensus that the battle against 
terrorism be waged aggressively, but that we do so without sacrificing 
those principles that make our nation unique.
    That's why we made every effort to ensure that the antiterrorism 
proposal submitted by the Administration and the Department of Justice 
fit well within the bounds of the Constitution. After all, these are 
the values that we hold dear and what defines us as a nation. 
Throughout this process, the Attorney General and the Department of 
Justice worked with both sides of the aisle to produce a consensus 
package that would give our law enforcement community the tools they 
need to keep this nation safe against terrorists. That bipartisan 
package, the USA/PATRIOT Act, passed overwhelmingly by a vote of 98-1.
    Since then, the Administration and the Attorney General have sought 
to further strengthen their battle against terrorism with additional 
law enforcement tools. Many, including the Chairman, have questioned 
these initiatives.
    I understand and appreciate those concerns. It's the job of 
Congress, and this Committee, in particular, to ask the questions about 
the appropriateness of these policies. So, I'm pleased that we are 
having this hearing today to make sure that we appropriately balance 
the real and pressing need for enhanced national security after the 
September 11th attacks with the protection of our civil 
liberties.
    I look forward to today's testimony.

                                

  Statement of Hon. Strom Thurmond, a U.S. Senator from the State of 
                             South Carolina

    Mr. Chairman:
    I appreciate your concern for the protection of civil liberties 
while our Nation fights a war against terrorism. We must not violate 
our Constitution in the name of extinguishing terror, or we will 
endanger the very freedoms that make our country great. We must not 
sacrifice our liberties in attempting to bring our enemies to justice. 
In our struggle against terrorism, it is important that we protect 
America by enacting reasonable and measured law enforcement initiatives 
that also respect individual liberties.
    The Bush Administration is employing a variety of tools in the 
fight against terrorism, such as the use of military tribunals and the 
current detention of suspected terrorists. Some groups claim that these 
tools are unconstitutional. However, I believe that the Bush 
Administration is pursuing initiatives that are consistent with the 
Constitution and do not endanger American freedoms. When exploring the 
constitutionality of any law enforcement initiative, it is important to 
ask whether the proposal is reasonable. I think that these hearings 
will bring to light the reasonableness of the Administration's actions.
    President Bush's military order provides for the trial of foreign 
terrorists by military commissions. Not only is the President's order 
historically based, but it was made pursuant to current law. Military 
commissions are rooted in American history, from the trial of deserters 
in the Mexican-American War to the trial of President Lincoln's 
assassins. Moreover, in Ex Parte Quirin, 317 U.S. 1 (1942), the Supreme 
Court unanimously upheld President Roosevelt's use of a military 
commission to try Nazi saboteurs during World War II. In addition to 
historical precedent, Congress has approved the use of military 
commissions under the law of war (10 U.S.C. Sec. 821).
    It has been suggested that the President does not have authority 
under 10 U.S.C. Sec. 821 because we are not officially in a state of 
war. However, the murderers who flew commercial airliners into the 
World Trade Center towers and the Pentagon perpetrated nothing less 
than acts of war. The unimaginable destruction in New York and the 
damage done to the symbol of American military power are sobering 
reminders of the acts of war committed by terrorists.
    At this moment, American forces are engaged in a war against 
terrorism. It is a unique war because al Qaida is a loosely organized 
group spread throughout many different countries. In these unique 
circumstances, it is unreasonable to insist that an official 
declaration of war be made because the enemy is a shadowy network of 
international terrorists.
    Military commissions are also good ideas as a matter of policy. 
These commissions would allow for the use of classified information. If 
such information were easily disclosed in a civilian court, 
intelligence operations could be seriously endangered. Military 
tribunals would also better protect witnesses and other trial 
participants. Additionally, more flexible rules would allow for the use 
of evidence collected during war. Rules governing the gathering of 
evidence for use in trial courts in the United States do not 
necessarily translate to evidence gathered on the battlefield.
    Another action taken by the Bush Administration is the current 
detention of alien suspects. While it is important that we release 
individuals in a timely manner, we must also take national security 
concerns into account. In Zadvvdas v. Davis, 121 S. Ct. 2491 (2001), 
the Supreme Court held that aliens under a final order of removal from 
the United States may be held for up to six months, and that longer 
periods may be justified in certain circumstances. The Court also noted 
that there may be special circumstances justifying the detention of 
especially dangerous individuals in cases presenting national security 
implications. In my view, deference should be given to the executive 
branch in situations involving national security. While we should 
continue. to practice oversight, we should not jump to hasty 
conclusions. It is important to note that because the terrorist attacks 
occurred in September, no person has been held for the presumptively 
reasonable time period of six months.
    Mr. Chairman, I am pleased that we are carefully considering the 
President's efforts to fight terrorism. While I think that much of the 
criticism directed towards the Administration is inaccurate, it is 
important that we fully discuss these issues. I think that the 
Administration has done a good job of developing ways to bring 
terrorists to justice, and I find them to be reasonable tools in the 
fight against international terrorism. I hope that my colleagues will 
join me in supporting the Administration's efforts to combat terror.

    Chairman Leahy. We have on the panel former Attorney 
General William Barr. Mr. Barr it was, as always, good to be 
with you last week. I enjoyed our conversations and a chance to 
get caught up on a lot of subjects; and Professor Heymann, who 
is the former Deputy Attorney General of the United States and 
one who has spent a lot of time in this room before the 
Committees; former Attorney General Bell from Duke University; 
Scott Silliman, who is no stranger to the members of this 
Committee. He is the executive director of the Center on Law, 
Ethics and National Security, Duke University; Kate Martin, who 
is the director of the Center for National Security Studies; 
and Neal Katyal, a visiting professor, Yale School, who is now 
a professor of law at my old alma mater, Georgetown.
    Attorney General Barr, if you would like to--first off, I 
want to thank all of you for staying. This has been a long 
morning. Those of you who have been in the administration know 
that when we accommodate the requests of the administration and 
the senior member of the President's party to have an 
administration witness come, that they get a chance to go a 
little longer than we thought.
    General Barr, good to have you here.

 STATEMENT OF WILLIAM P. BARR, FORMER ATTORNEY GENERAL OF THE 
                         UNITED STATES

    Mr. Barr. Thank you, Mr. Chairman, Senator Hatch.
    I would like to briefly touch on the legality or the 
constitutionality of the military tribunal order of the 
President, and then recognize that there are really two issues 
beyond that, and that is whether it is prudent and advisable in 
a particular circumstance to use those procedures or whether 
greater rights and procedures should be given, in a particular 
case, given to a foreign national who is at war against the 
United States.
    And then, finally, the so-called civil rights concerns, and 
the understandable concerns that may emerge if these things 
were to be applied to people within the United States.
    I think there is no doubt that the President was well 
within his constitutional authority to promulgate this order, 
as his predecessors took similar steps. It is important to 
recognize we are talking here about two distinct realms.
    There is a fundamental difference between the Government, 
when it is acting in a law-enforcement capacity, that is, when 
it is acting within the framework of civil society, regulating 
civil society, setting up procedures, processes, rights, levels 
of appeal, and so forth, the rules of the game within society, 
and the realm, when the Government is acting in national 
defense, that is, when that society comes under attack by 
foreign adversaries.
    They are wholly different, and the relationship between the 
Government and the individual changes radically once there is a 
state of armed conflict from a foreign or armed adversary. In 
that case, where there is a state of armed conflict, as the 
Supreme Court has recognized, we are now dealing with the 
national defense power of the United States, the law of war 
applies and tribunals are part of the war power.
    Whether or not a combatant is engaged in military 
operations or has been captured, the relationship between the 
sovereign Government and that individual is the relationship of 
us exercising national defense power against that individual. 
That is what military tribunals involve, the exercise of 
military or, that is, the war power as to those individuals. It 
is not the judicial power of the United States.
    Now no war need be declared for this power to come into 
being. It is an adjunct of any lawful use of force by the 
Government. And the Supreme Court and Congress have recognized 
repeatedly that the country can exercise its powers of national 
defense and engage in armed conflict without a formal 
declaration of war. And, indeed, from the very foundation of 
the Republic, it was recognized, particularly where the United 
States is attacked and the President is responding to attacks, 
there is no requirement for a declaration of war for there to 
be the lawful use of the war power.
    The question has been raised whether Congress has to 
authorize the use of military tribunals. The answer is obvious. 
Congress does not have to authorize it because it is an 
incident of the war power. As the Supreme Court has repeatedly 
said, it is just like the President moving a division from 
Point A to Point B. It is incident to the war power just like 
hearings and subpoenas are incident to the legislative power, 
and therefore it does not require any specific authorization.
    So, even if there was nothing in the U.S. Code or in the 
laws, the Commander-in-Chief could constitute military 
tribunals to try cases that arise under the laws of war. But, 
of course, the fact is that Congress has sanctioned them and 
specifically recognized their jurisdiction in 10 U.S.C. 1821.
    Now one of the problems arises because people naturally 
feel concerned when these tribunals would be used against 
people in the United States. I think there seems to be a 
visceral understanding that overseas, where we apprehend people 
on the battlefield, it does not make much sense to bring them 
back and try them in our civil courts for violations of the 
laws of war, but there seems to be a concern that, gee, what 
happens when someone comes into the United States?
    From a legal standpoint, there is no geographical limit to 
the principle that when the Government is defending the country 
and exercising its war powers against armed foreign nationals 
who are waging war against the United States, it does not 
matter whether those nationals are overseas or where they have 
successfully entered the United States.
    The last time that an armed adversary came into the United 
States abiding by the rules of war was, I think, in 1814, when 
the British came in their red coats openly bearing arms. They 
were not entitled to our constitutional protections. They are 
not entitled to due process. Their rights as combatants come 
from the laws of war, not our Constitution.
    The fact that a foreign adversary enters the United States 
successfully does not mean that all of a sudden he becomes 
invested with constitutional rights. If he robs a bank, he 
breaks the civil order and we proceed against him, he gets the 
same rights as a citizen. If he is bearing arms against the 
United States and waging war against the United States, he gets 
no right under the Constitution. His rights arise under the 
laws of war.
    Now here we have a different kind of entry, surreptitious 
entry by an enemy, which is itself a violation of the laws of 
war. They did not come in uniform, they did not come openly 
bearing arms, and they came with the intent of destroying 
civilian targets. For the same reason that a uniformed 
adversary who sets foot in this country is not entitled to 
constitutional protections, the same is true, if not more so, 
for someone who violates the laws of war by entering 
surreptitiously, which the Supreme Court has repeatedly held 
and has averted to numerous times.
    Nevertheless, that does raise the issue, when you start 
using military tribunals against people who are present in the 
United States, there may be an understandable concern that, in 
theory, this is a device that could be abused and taken too 
far. The question really is, is it being taken too far here, 
and there is no evidence at all that it is. In fact, we have a 
very clear objective, events that establish that this is not 
being used as a pretext.
    We are in a very dangerous situation of unprecedented and 
kind of war we are waging. It has to be predicated on the 
President's determination that this is triable, these 
individuals have committed violations of the law of war that 
are traditionally triable in military tribunals, it applies 
only to noncitizens, and notwithstanding some of the hysterical 
commentary, the Supreme Court has not been stripped of habeas 
corpus jurisdiction over individuals who are in the United 
States. This language was in President Roosevelt's executive 
order. It follows President Roosevelt's executive order and 
Quirin shows that the Supreme Court could exercise habeas 
corpus to ensure that there was no abuse.
    Thank you.
    [The prepared statement of Mr. Barr follows:]

   Statement of Hon. William P. Barr, Former Attorney General of the 
                             United States

    Mr. Chairman, Senator Hatch and the Members of the Committee, I am 
pleased to provide my views on the important issues surrounding our 
response as a Nation to attacks against our homeland and the continuing 
national security threat posed by al Qaeda. By way of background, I 
have previously served as the Assistant Attorney General, the Deputy 
Attorney General, and the Attorney General of the United States. I have 
also served on the White House staff and at the Central Intelligence 
Agency. The views I express today are my own.
    President Bush's decision to authorize the use of military 
tribunals against members of al Qaeda is not only well within his 
constitutional authority, but is supported by ample historical 
precedent and practical common sense. Al Qaeda is an armed foreign 
force that is waging war against the United States. In confronting such 
an enemy, the President is acting as Commander-in-Chief of our armed 
forces--he is exercising the war powers of the United States. Our 
national goal in this instance is not the correction, deterrence and 
rehabilitation of an errant member of the body politic; rather, it is 
the destruction of foreign force that poses a risk to our national 
security. It is anomalous to maintain that the President has 
constitutional authority to order deadly bombing strikes or commando 
raids against such an enemy, while at the same time maintaining that, 
if the enemy surrenders or is captured, the President is suddenly 
constrained to follow all the constitutional protections applicable to 
domestic law enforcement. Foreign nationals who are in a state of armed 
conflict with the United States do not enjoy the same constitutional 
rights as American citizens. Since before the Revolutionary War, it was 
recognized that those who violate the laws of war during an armed 
conflict have the status of ``unlawful belligerents'' and are subject 
to military trial for their offenses. Whether they pursue their deadly 
purpose in a training camp in Afghanistan or a flight school in 
Florida, al Qaeda members are unlawful belligerents and, under clear 
Supreme Court precedent, are entitled only to treatment consistent with 
the laws of war. Having cast their lot by waging war against the United 
States, they are properly judged by the laws of war.
1. The President Has Constitutional Authority to Order the Trial of al 
                  Qaeda Members by Military Tribunal.
    On September 11, 2001 this Nation was attacked by a highly-
organized foreign armed force known as ``al Qaeda.'' The attack cost 
more American lives and caused more property damage than the Japanese 
sneak attack on Pearl Harbor. This same organization has declared 
itself at war with the United States and has stated its intention to 
use any weapons at its disposal--including weapons of mass 
destruction--against both civilian and military targets. Prior to 
September11, 2001, al Qaeda acknowledged perpetrating armed attacks on 
our military personnel, our naval ships, and our embassies. al Qaeda 
operatives and their supporters are presently engaged in the field 
against our own military forces in Afghanistan. They have personnel in 
over 60 countries, where they are undoubtedly poised to attack United 
States interests. There can be little doubt that ``cells'' of this 
organization remain in the United States, ready to carry out further 
attacks.
    It is clear that a state of war exists between the United States 
and al Qaeda. Al Qaeda has openly proclaimed a war against the United 
States and has repeatedly carried out attacks against us. The 
President, as Commander-in-Chief, is empowered to take whatever steps 
he deems necessary to destroy this adversary and to defend the Nation 
from further attack. As the Supreme Court recognized in The Prize 
Cases, 67 U.S. 635, 668 (1862):

        If a war be made by the invasion of a foreign nation, the 
        President is not only authorized but bound to resist force by 
        force. He does not initiate the war, but is bound to accept the 
        challenge without waiting for any special legislative 
        authority. And whether the hostile party be a foreign invader, 
        or States organized in rebellion, it is none the less a war, 
        although the declaration of it be ``unilateral.''

    In this case, the President's judgment that a state of armed 
conflict existed is confirmed by the actions both of the Congress and 
our allies. By its Joint Resolution of September 18, 2001, Congress 
recognized that the attacks of September 11th ``render it 
both necessary and appropriate that the United States exercise its 
rights to self-defense. ``Authorization for the Use of Military Force, 
Pub. L. No. 107-40, 115 Stat. 224, (2001). Congress authorized the 
President to ``use all necessary and appropriate force against those 
nations, organizations, or persons he determines planned, authorized, 
committed, or aided the terrorist attacks that occurred on September 
11, 2001, or harbored such organizations or persons, in order to 
prevent any future acts of international terrorism against the United 
States by such nations, organizations or persons. ``Id. Sec. 2(a). The 
Joint Resolution expressly recites that it constitutes a specific 
statutory authorization for the use of military force within the 
meaning of the War Powers Resolution. Id. Sec. 2(b). Obviously, the 
President does not need a joint resolution of Congress to enforce our 
domestic criminal laws, and those laws are not generally for the 
``self-defense'' of the Nation. Similarly, our NATO allies have 
recognized that the attacks of September 11th constitute 
acts of war by invoking the mutual self-defense provisions of Article 5 
of the North Atlantic Treaty.\1\
---------------------------------------------------------------------------
    \1\ Article 5 of the North Atlantic Treaty can only be invoked in 
the case of an ``armed attack'' against a NATO member.
---------------------------------------------------------------------------
    When the United States is engaged in an armed conflict and 
exercising its powers of national defense against a foreign enemy, it 
is acting in an entirely different realm than the domestic law 
enforcement context. The Nation, and all those who owe her allegiance, 
are at war with those foreign enemies. That is not an analogy or a 
figure of speech--it describes a real legal relationship and one that 
is fundamentally different from the government's posture when it seeks 
to enforce domestic law against an errant member of society. When we 
wage war, the Constitution does not give foreign enemies rights to 
invoke against us; rather, it provides us with the means to defeat and 
destroy our enemies. As President Lincoln understood, and repeatedly 
said, maintaining the security of our Union is the sine qua non of all 
civil liberties. It is the basis upon which the exercise of all other 
civil rights depends.
    Much of the criticism of the President's Executive Order 
authorizing the use of military tribunals stems from a fundamental 
confusion between the realm of domestic law enforcement and the realm 
of military defense of the Nation. This is not a confusion that has 
been shared by past Presidents, past Attorneys General, or the United 
States Supreme Court. Since the Revolutionary War, this country has 
used military tribunals to punish violations of the laws of war by our 
enemies during armed conflicts. Congress has consistently confirmed the 
jurisdiction of these tribunals by statute and the Supreme Court has 
recognized that military tribunals lie outside the judicial power and 
the constitutional norms that must attend a civilian trial. Military 
tribunals constitute part of the executive function of the actual 
prosecution of war--they are an instrument at the President's disposal 
as part of the overall war effort. The President's decision to use them 
in our war against al Qaeda is supported by historical precedent, 
Supreme Court decisions, and common sense.
    American history is replete with examples of the use of military 
tribunals to try foreign combatants for violations of the laws of war. 
The legitimacy of their use does not depend upon the nature of the 
armed conflict, whether a formal declaration of war has been made, or 
whether the unlawful belligerent committed the violation here or 
abroad. Thus, in 1780, George Washington appointed a ``Board of 
Commissioned Officers'' to try Major John Andre, a British spy who was 
accused of receiving strategic information from Benedict Arnold. In 
1818, then-General Andrew Jackson ordered two British citizens tried by 
a military tribunal for inciting Seminole Indian attacks against 
American civilians in Georgia. Military tribunals were used extensively 
during the Civil War to try confederate soldiers and spies who acted 
out of uniform to attack Union ships or industrial plants. See Ex Parte 
Quirin, 317 U.S. 1, 31 n. 9 (1942) (listing examples). Indeed, a 
military tribunal, known as the Hunter Commission, was empanelled to 
try those responsible for the assassination of President Lincoln. In 
opining on the constitutionality of such a commission, Attorney General 
Speed wrote: ``The commander of an army in time of war has the same 
power to organize military tribunals and execute their judgments that 
he has to set his squadrons in the field and fight battles. His 
authority in each case is from the law and usage of war. ``11 U.S. Op. 
Atty. Gen. 297, 305 (1865). He further opined that the laws of war 
provided for military trials for ``secret participants in hostilities, 
such as banditti, guerillas, spies, etc. ``Id. at 307.\2\ Attorney 
General opinions have also recognized that military tribunals could be 
used to try Indians for crimes against civilians where a state of open 
hostility between an Indian tribe and the United States existed. See, 
e.g., 14 U.S. Op. Atty. Gen. 249 (1873) (Modoc Indian prisoners accused 
of crimes against civilians during hostilities with the United States 
could be tried by military tribunal). See also 13 U.S. Op. Atty. Gen. 
470, 471 (1871) (noting that war need not be ``formally proclaimed'' 
for the laws of war to apply to military engagements with Indian 
tribes).
---------------------------------------------------------------------------
    \2\ Attorney General Speed's opinion has stood the test of time. 
Recently, a federal district court rejected a challenge to the 
jurisdiction of the Hunter Commission in reviewing the denial of a 
request to correct military records pertaining to Dr. Samuel Mudd, the 
medical doctor who aided John Wilkes Booth and David Herold after the 
assassination. See Mudd v. Caldera, 134 F. Supp. 2d 138 (D.D.C. 2001). 
Relying upon the Supreme Court's Quirin decision, the district court 
found that ``persons such as spies or combatants not wearing uniforms 
or in disguise, who may come secretly across enemy lines for the 
purpose of robbing, killing or destroying bridges, roads, canals, 
etc.,'' are ``unlawful belligerents'' subject to military trial for 
violations of the laws of war. Id. at 145.
---------------------------------------------------------------------------
    The most recent and most apt example of the use of military 
tribunals is the trial of the eight Nazi saboteurs that took place 
before seven military officers here in Washington, D. C. in July of 
1942. These foreign operatives were trained in what the Supreme Court 
referred to as a ``sabotage school'' near Berlin. Ex Parte Quirin, 317 
U.S. at 21. They entered the United States surreptitiously, moved about 
in civilian dress, and were trained and equipped to attack civilian 
targets such as roads, bridges and industrial plants. They were 
initially arrested and detained by civilian authorities. President 
Roosevelt determined that they should be tried for violations of the 
laws of war before a special military commission, composed of seven 
United States army officers.
    In Ex Parte Quirin, a unanimous Supreme Court upheld the 
jurisdiction of the military commission to try these individuals for 
violations of the laws of war. Echoing Attorney General Speed, the 
Supreme Court found that the military tribunal was ``an important 
incident to the conduct of war,'' that allowed the President ``to seize 
and subject to disciplinary measures those enemies who in their attempt 
to thwart or impede our military effort have violated the law of war.'' 
317 U.S. at 28-29. Thus, these tribunals were part and parcel of the 
Commander-in-Chief's prosecution of the war effort. The Supreme Court 
held that military tribunals were not an exercise of the judicial power 
conferred by Article III of the Constitution, and therefore were not 
subject to constraints imposed upon civilian criminal process by the 
Fifth and Sixth Amendments. Id. at 38-39. The Court noted that unlawful 
belligerents had been subject to military trial since before the 
framing of the Constitution, and that Congress had authorized the trial 
of alien spies by military tribunal shortly after the adoption of the 
Constitution. Id. at 41. The Supreme Court also noted that anomaly that 
would be created by a contrary ruling--our own soldiers would be 
subject to military trial for violations of the laws of war while enemy 
aliens charged with such violations would receive all the 
constitutional protections of a civilian trial. Id. at 44.\3\
---------------------------------------------------------------------------
    \3\ In Quirin, the Supreme Court reserved the constitutional issues 
of whether the President needed any legislative authorization to 
empanel military tribunals, see 317 U.S. at 29, and whether Congress 
could ``restrict the power of the Commander in Chief to deal with enemy 
belligerents,'' id. at 47, because it found that Congress had approved 
the use of military tribuanals in the Articles of War.
---------------------------------------------------------------------------
    The Supreme Court's ruling in Quirin makes clear that unlawful 
belligerents cannot invoke the constitutional guarantees applicable to 
a civilian trial and are not entitled to judicial review of the results 
of a military tribunal. Indeed, Quirin reserved the issue whether 
unlawful belligerents were entitled to a trial at all before the 
President could subject them to ``disciplinary measures. ``Id. at 47. 
Qurin's holding does not turn on location within or outside the United 
States, the potential applicability of civilian crimes, the 
availability of civilian courts, or even the citizenship of the 
individuals involved. Rather, Quirin turns entirely on status as 
``unlawful combatants'' under the laws of war. It is this status that 
entitles the President to exercise military power against such 
persons--including the use of military tribunals.
    Nor need we examine the issue reserved in Quirin of the Executive's 
authority to establish military tribunals absent legislative mandate. 
Congress has authorized the use of military tribunals consistent with 
the laws of war in the Uniform Code of Military Justice. Title 10, 
United States Code, Section 821, provides that: ``The provisions of 
this chapter conferring jurisdiction upon courts-martial do not deprive 
military commissions, provost courts, or other military tribunals of 
concurrent jurisdiction with respect to offenders or offenses that by 
statute or by the law of war may be tried by military commissions, 
provost courts, or other military tribunals.'' The President is also 
given authority to prescribe the rules for all military tribunals, 
including ``pretrial, trial, and post-trial procedures'' and ``modes of 
proof.'' See 10 U.S. C. Sec. 836. In Application of Yamashita, 327 U.S. 
1, 7-8 (1946), the Supreme Court held that, by enacting the precursors 
to these provisions in the Articles of War, Congress had ``sanction[ed] 
trial of enemy combatants for violations of the laws of war by military 
commission,'' and had ``adopted the system of military common law 
applied by military tribunals.''
    The President's judgment that members of al Qaeda and those who 
knowingly give them aid and comfort are subject to military justice is 
clearly supported by the facts and the law in this case. The very 
raison d'etre of al Qaeda is to violate the laws of war by targeting 
innocent civilians in order to create a state of terror. As the Supreme 
Court noted in Quirin, never in the history of our Nation have foreign 
enemies who infiltrated our territory been accorded the status of 
civilian defendants with all the rights enjoyed by citizens of the 
United States. See 317 U.S. at 42 (``It has not hitherto been 
challenged, and, so far as we are advised, it has never been suggested 
in the very extensive literature of the subject that an alien spy, in 
time of war, could not be tried by military tribunal without a jury.'') 
(footnote omitted). If armed al Qaeda members had made a military 
landing on Manhattan Island and began attacking civilians, few would 
argue that they were not combatants subject to the laws of war. How 
does the fact that they instead infiltrated the United States 
surreptitiously with the same evil purpose somehow give them greater 
constitutional rights? By such logic, Nazi war criminals could have 
avoided military justice simply by sneaking into the United States and 
invoking their ``right'' to a jury trial in civilian court.
   2. Domestic Criminal Justice Procedures Will Frustrate Our Fight 
                           Against al Qaeda.
    In addition to its sound constitutional and statutory basis, the 
President's Executive Order establishing the option of military 
tribunals makes good sense. It will allow for a more effective response 
to the al Qaeda threat, while at the same time not insisting upon the 
application of constitutional and statutory rights in a context where 
they are inapposite and where their wooden application could lead to 
their erosion.
    The constitutional protections applicable to a domestic criminal 
trial, such as trial by jury in the district where the crime occurred, 
the right a grand jury indictment, and the right to confront and cross 
examine witnesses are designed to protect our citizenry from the power 
of government. They have no logical application to the exercise of 
military power to protect our citizenry and our government from an 
external foe. Indeed, these rights can be exploited by a foreign enemy 
to learn about our defenses and intelligence methods and make future 
attacks more likely to succeed.
    Civilian criminal defendants have the right to obtain any 
statements they have made that are recorded by the government 
(including electronic surveillance tapes), see Fed. R. Crim. P. 16, 
prior written statements of government witnesses who testify at trial, 
see 18 U.S.C. Sec. 3500, and any material that might impeach the 
credibility of government witnesses. See Giglio v. United States, 405 
U.S. 150 (1972). These rights are inimical to the successful 
confrontation of a foreign foe. Indeed, one of the key factors in the 
success of the attacks of September 11th was the operational 
security practiced by the al Qaeda members in the United States. 
Information disclosed during civilian trials regarding our law 
enforcement techniques and capabilities could assist al Qaeda in 
evading detection in future attacks. Moreover, a public trial can be 
used by civilian criminal defendants to practice what is known as 
``graymail. ``The defense claims the necessity of revealing national 
security information during the trial, thus gaining significant 
leverage over the prosecution. We should not even allow the possibility 
for such an occurrence in our pursuit of al Qaeda.
    Civilian criminal defendants have the right to challenge the 
seizure of evidence under the Fourth Amendment. They can also challenge 
the authenticity of physical evidence by demanding that a chain of 
custody be established. These rules cannot logically be applied to 
``evidence'' uncovered in a military theater such as Afghanistan. Our 
military forces are rightly concerned with winning the war--not 
securing crime scenes and careful documentation of chains of custody.
    Finally, civilian trials in this context are not safe for grand 
jurors, judge, petit jurors or civilian witnesses. In the aftermath of 
these attacks and our military response, a prolonged civil trial would 
make the federal courthouse itself and all trial participants clear 
targets for al Qaeda reprisals. Military trials held on military 
installations--whether here or abroad--will be safer for all concerned.
    In closing on this issue, let me say that all power is subject to 
abuse. But neither our constitutional law nor our policy toward 
terrorism should be made by parade of horribles. The President has 
limited the application of his order to foreign nationals who: 1) are 
al Qaeda members; 2) commit acts of international terrorism against the 
United States; or 3) knowingly aid and abet acts of international 
terrorism against the United States. As cases like Quirin and Yamashita 
make clear, the writ of habeas corpus is always available to test the 
jurisdiction of military tribunals in Article III courts. Moreover, our 
courts martial and military tribunals have a long history of rendering 
impartial justice. Many Nazi and Japanese combatants were acquitted of 
war crimes by military tribunals. The President's Executive Order 
promises ``full and fair trials'' under procedures to be promulgated by 
the Secretary of Defense. I have no doubt those procedures will, 
consistent with 10 U.S.C. Sec. 836, incorporate as many aspects of 
civilian procedure are practicable under the circumstances. We should 
not pass judgment on these military tribunals until they themselves are 
allowed to operate and pass judgment. We insult our military by 
comparing these tribunals to those established by foreign dictators or 
by slighting them as ``Kangaroo courts'' before they have even been 
convened.
  3. The Attorney General May Lawfully Withhold Operational and Other 
          Details Regarding an Ongoing Criminal Investigation.
    The Committee has also expressed some concern over the fact that 
the Department of Justice has declined to release statistical data 
regarding its continuing investigation into al Qaeda activities and 
operatives here at home. In my view, this criticism is unfounded. The 
Sixth Amendment guarantees a criminal defendant ``a speedy and public 
trial. ``In addition, the Supreme Court has found that the public has a 
common law and First Amendment right to access to proceedings central 
to the criminal process, such as pretrial hearings. See generally 
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980). These rights have 
never been interpreted to extend to operation details of the 
investigative stage of criminal law enforcement. Our laws provide for 
strict secrecy of grand jury proceedings, both for the protection of 
individuals called before the grand jury and the integrity of the 
government's investigation. See Fed. R. Crim. P. 6(e). Affidavits in 
support of arrest and material witness warrants as well as indictments 
are often filed with the court under seal in cases where they may 
contain information that could compromise ongoing criminal 
investigations. In its Exemption 7, the Freedom of Information Act 
expressly recognizes that information that ``could reasonably be 
expected to interfere with enforcement proceedings,'' including 
compromising confidential sources or law enforcement ``techniques or 
procedures'' is exempt from public disclosure. See 5 U.S.C. 
Sec. 552(b)(7).
    That is undoubtedly the case here. Information about who is 
presently detained by the government, when and where they were 
arrested, their citizenship and like information could be of great 
value to criminal associates who remain free. First, it would provide 
al Qaeda with information regarding what ``cells'' or operations have 
been compromised and which ``cells'' or operations are still intact. 
Equally dangerous, it could allow al Qaeda to extrapolate the kind of 
criteria and sources of information law enforcement was employing in 
attempting to locate al Qaeda operatives and thereby tailor their 
activities to avoid further detection. These are exactly the kinds of 
harms that FOIA Exemption 7 is designed to protect against.
    Finally, as Attorney General Ashcroft has noted, there may be 
significant privacy and even due process concerns with the wholesale 
release of the names of those detained in this investigation. A 
government ``blacklist'' naming individuals suspected of connections 
with al Qaeda could seriously affect the reputation, employment 
prospects, and even physical safety of the individuals involved. 
Moreover, such a list would be compiled based upon mere suspicion, 
without an opportunity for those named to marshal evidence of their 
innocence of the charge. Cf. Joint Anti-Fascist Refugee Comm. v. 
McGrath, 341 U.S. 123 (1951). For these reasons, I believe the 
Department of Justice has acted properly in refusing to release 
operational and statistical information that could compromise ongoing 
law enforcement operations and violate the rights of the individuals 
involved.
 4. The Attorney General's Interim Rule Authorizing the Monitoring of 
      Attorney Client Communications in Limited Circumstances is 
                            Constitutional.
    In my view, the Attorney General's rule regarding the monitoring of 
attorney-client communications, given the limited and unique 
circumstances to which it applies, is constitutional under the analysis 
set out by the Supreme Court in Weatherford v. Bursey, 429 U.S. 545 
(1977). Three factors lead me to this conclusion. First, the monitoring 
is undertaken for the lawful purpose of frustrating further criminal 
activity that threatens innocent human life. The Supreme Court has 
recognized that this is a legitimate law enforcement interest that must 
be balanced against Fifth and Sixth Amendment rights. See New York v. 
Quarles, 467 U.S. 649 (1984) (recognizing ``public safety'' exception 
to Fifth Amendment requirement of Miranda warnings). Second, as in 
Bursey itself, the prosecution team will not learn of any conversation 
regarding legal strategy that might prejudice the defendant or benefit 
the government. See Bursey, 429 U.S. at 557-58 (holding that unless 
there was ``a realistic possibility of injury to Bursey or benefit to 
the State, their can be no Sixth Amendment violation''). Third, the 
requirement that both the detainee and his attorney receive notice of 
the monitoring eliminates the need for prior judicial intervention 
under the doctrine of ``implied consent. ``See, e.g., McMorris v. 
Alioto, 567 F. 2d 897, 900-01 (9th Cir. 1978 (Kennedy, J.) (applying 
doctrine of implied consent to searches of persons entering a federal 
courthouse).
    The Attorney General has carefully limited his rule to prisoners 
who are already under Special Administrative Measures, see 28 C.F.R. 
Sec. 501. 3(a), and for whom he further finds there is ``reasonable 
suspicion exists to believe'' that attorney client communications may 
be used to ``facilitate acts of terrorism. ``Id. Sec. 501. 3(d). The 
Attorney General has indicated that he will interpret the term 
``reasonable suspicion,'' as the Supreme Court has in the case of 
police stops, see Terry v. Ohio, 392 U.S. 1, 27-28 (1968), to require 
objective facts from which a reasonable person could draw an inference 
that criminal activity was afoot.
    This rule is a necessary prophylactic measure designed to allow the 
Attorney General to take appropriate action in the face of the kind of 
massive danger to innocent human life posed by attacks such as those 
perpetrated on September 11th. Faced with this kind of 
threat, we cannot require the Attorney General to prove to a court that 
the attorney client privilege has already been abused to further 
criminal activity. By the time the Attorney General has marshaled such 
facts and presented them to a court, it could well be too late. In 
these unique circumstances, where law enforcement acts not to gather 
evidence but to prevent an imminent and potentially devastating public 
harm, it is appropriate that the Attorney General make the initial 
determination without judicial intervention. Because both the detainee 
and his attorney are given notice of the monitoring, they may challenge 
the Attorney General's actions in federal court after the fact.
                               CONCLUSION
    The actions of the President and the Attorney General have, in my 
view, been measured and prudent in light of the threat to American 
lives and liberty posed by al Qaeda. Our Constitutional scheme 
contemplates that the powers and duties of the Executive Branch of 
government will expand in a time of national crisis or armed conflict. 
The swiftness and unity of purpose with which the Executive can act to 
defeat foreign threats to our liberty has proven an indispensable 
bulwark in securing our freedoms throughout our history. In perilous 
times, as the Framers envisioned, it has been both the energy and 
wisdom of a strong Chief Executive (uniquely accountable to all the 
people) that has ultimately protected our liberty, not undermined it. 
We owe our freedoms today in no small measure to the decisive actions 
of Abraham Lincoln and Franklin Roosevelt, taken in the face exigent 
danger. In the current circumstances, the real threat to domestic 
liberties is the artificial restriction of our powers of national 
defense by gratuitously expanding constitutional guarantees beyond 
their intended office. I have every confidence that the President and 
the Attorney General will protect our Nation and the liberties we hold 
dear. I welcome the Committee's questions.

    Chairman Leahy. I have always enjoyed having your 
testimony. I hate to be a bit of a bear on the light. 
Unfortunately, we have other constraints that require that.
    Mr. Heymann?

STATEMENT PHILIP B. HEYMANN, JAMES BARR AMES PROFESSOR OF LAW, 
                       HARVARD LAW SCHOOL

    Mr. Heymann. How long would you like me to restrict myself 
to, Senator Leahy? Seriously.
    Chairman Leahy. I thought the panel had been told 5 
minutes.
    Mr. Heymann. Five minutes is just fine.
    I would like to explain that I think of myself here and I 
would like to speak today as a terrorism expert whose book is 
doing surprisingly well since September 11th. I don't want to 
focus on the constitutional issues because you have lots of 
other people to focus on them. I don't agree with Mr. Barr. And 
I would like to say as to that only that when asked what was 
the nearest precedent, Mike Chertoff said Ex Parte Quirin. Ex 
Parte Quirin is a case about eight identified people, 
indisputably Nazis, indisputably from Germany, sent to a 
military trial, a single military trial, on the charges of 
espionage, being behind enemy lines without uniform, which had 
been traditional since the Revolutionary War. Very traditional.
    It is a long way to go from that to an order that covers 20 
million people in the United States, lasts forever, covers any 
act of terrorism, whether connected to Al Qaeda or not, covers 
any aiding, abetting, or conspiracy towards any act of 
terrorism, covers harboring anybody who aided or abetted ever 
in the past somebody who ever in the past was a terrorist, and 
forever henceforth. That is a long way from Ex Parte Quirin, so 
I don't share Mr. Barr's confidence that the Supreme Court will 
sustain that order.
    Let me go to the policies of counterterrorism. The first 
lesson there that everybody who has studied terrorism learns is 
a military lesson, and that is, after you get your gun, try 
very hard not to shoot yourself in the foot. Or if you are 
going to bomb the enemy, try not to bomb friendly forces at the 
same time.
    The President's order on military detention, the military 
order which authorizes both detention and military tribunals, 
shoots us in the foot in a major way for no good reason.
    I have to step back for one second. I feel a little bit 
like there are two totally different orders being discussed. 
Most of the hearing before the Committee was a discussion with 
Mr. Chertoff of the handling--nobody limited it this way, but 
in the back of our minds was--the handling of Al Qaeda 
terrorists seized in Afghanistan, where there are no courts, 
and subject to military trial there, and, indeed, as Mr. 
Chertoff said he hoped, subject to very fair trials under 
regulations that we have not yet seen by the Department of 
Defense. The trials, he suggested, may very well be public, 
although keeping them private is probably the primary purpose 
of having military tribunals in this case.
    The order I am talking about doesn't have to do with a 
handful of people or 20 people or 40 people in Afghanistan. It 
covers 20 million people living in the United States, most of 
whom--15 million of whom--are legal residents, and their 
children. It says that there can be indefinte detention or a 
military tribural whenever the President suspects that one of 
this multitude is or may have been a terrorist in the past or 
has aided or harbored a past or present terrorist. And it makes 
those consequencies possible whether the terrorism involved was 
a large terrorist event or a trivial terrorist event--and there 
are terrorist events as trivial as the September 11th occasion 
was massive and horrible.
    Whenever that takes place, the President has the 
extraordinary power have described. Mr. Chertoff assures us the 
President won't exercise the power wrongly. I believe he will 
do his best. But I don't think the Constitution gave the 
President there powers--and I don't think the President can 
take it and I don't think Congress should give them to 
President when their reach is to any of 20 million people in 
the United States, plus anyone else outside the United States, 
whom he reasonably suspects falls in those categories. A secret 
trial before three colonels sounds to much like Paraguay in the 
1970's. We don't know whether there is to be proof beyond a 
reasonable doubt. We don't know whether all the evidence that 
the colonels see will be made available to the defense. You 
don't do that if you are interested in effective 
counterterroris unless there is a real necessity. There is lots 
of evidence that it is not necessary.
    Now, number one, Britain hasn't found it necessary to do 
without judges. Germany didn't find it necessary to do without 
judges. Italy had a terrorist group, the Red Brigades, that 
numbered fully as many as Al Qaeda, and it was all in Italy. It 
didn't find it necessary to do without judges. We are the first 
ones to find it necessary to do without judges.
    What I think the Congress must do, what I think is the only 
intelligent thing to be done, is to look at both the benefits 
and the costs of what is being proposed. There are two powers 
the President wants over every non-citizen he suspects aiding, 
other having aided, any form of terrorism. The first is 
indefinite detention. Senator Hatch made the point earlier 
today that everybody who is now detained is detained either as 
a violator of immigration laws or as somebody arrested for a 
crime. It is a reassuring point until you realize that the 
President's order gives the Secretary of Defense power to 
detain anybody, without any of those protections. Second, also 
gives the military the power to try anyone in this cateory 
before military tribunals without well-specified law because 
there is no law of war at the moment on terrorism.
    Well, what is the case for it? Now, my successor as head of 
the Criminal Division, Michael Chertoff, in remarkably honest 
and straightforward testimony, insisted that these matters 
could be tried properly before civilian courts. The United 
States has succeeded in every terrorist case, that it had to. 
We have extra-territorial statutes. We have the Classified 
Information Protection Act. We have the Foreign Intelligence 
Surveillance Act. We have ways of protecting witnesses. It is 
very hard to imagine why we wouldn't be able to try in our 
federal courts any of those 20 million people now living in the 
United States.
    Michael Chertoff was arguing, well, maybe you should, maybe 
you shouldn't, the President should decide. The costs are 
immense: the foreign policy costs, the sense of insecurity of 
people who aren't citizens of the United States, the sense of 
insecurity of citizens who know that Ex Parte Quirin allows 
exactly the same thing to be done--by a Presidential order for 
citizens. Being unnecessary in light of the proven capacities 
of our prosecutors, courts, and law, the proposal has no 
compensating benefits.
    I have 12 other points. Please get them out of my paper.
    [The prepared statement of Mr. Heymann follows:]

 Statement of Dr. Philip B. Heymann, James Barr Ames Professor of Law, 
                           Harvard Law School

    Mr. Chairman, Members of the Committee:
    I am pleased to testify because the Committee is reviewing what I 
regard as one of the clearest mistakes and one of the most dangerous 
claims of executive power in the almost fifty years that I have been in 
and out of government. I do not say that as a civil libertarian; I have 
always considered public safety to be fully as relevant as democratic 
traditions when they really are in conflict. So my advice to members of 
your staff and the House Judiciary staff on the Administration's bill 
revised as the PATRIOT statute, was that, with some exceptions, the 
provisions were reasonable and often overdue. I do not have the same 
reaction to the President's order on military trials.\1\
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    \1\ Military Order of November 13, 2001--Detention, Treatment, and 
Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. 
Reg. 57,831 (November 16, 2001).
---------------------------------------------------------------------------
    At the same time I reject as ``knee-jerk'' the security reactions 
of columnists such as George Will or the law professors he quotes, 
including my good friend and admired colleague, Larry Tribe.\2\ They 
are at least as dangerous as the thoughtless objections of those on the 
opposite side. I have personally seen and studied the effects of 
military courts in Guatemala where I later worked, and in Argentina, 
Paraguay, and the People's Republic of China. I have seen the fear and 
hatred they engender in a population and compared that to the immense 
appreciation and respect both our military and our courts have long 
enjoyed. I have watched the strained identification with us that the 
leaders of Zimbabwe and Egypt have based on our ``shared'' recourse to 
military courts, a step rejected by Britain, France, Germany, and Italy 
when they were under sustained terrorist attacks. (See Appendix A.) 
Knee-jerk reactions are no safer on one side of these issues than on 
the other.
---------------------------------------------------------------------------
    \2\ George F. Will, Trials and Terrorists, WASHINGTON POST, Nov. 
22, 2001, at A47.
---------------------------------------------------------------------------
    We have a deep tradition--expressed powerfully in the Declaration 
of Independence--of confining military courts and secret proceedings to 
as small an area of necessity as possible.\3\ Only in the following 
circumstances have our courts allowed military tribunals to try 
citizens and aliens alike: where in a wartime situation there are no 
operable civilian courts; where, before peace is declared, there is to 
be a trial of wartime atrocities against the internationally recognized 
laws of war; where spies attached to a belligerent nation have been 
caught behind our lines. In all other situations they have refused, in 
inspired language, to depart from a legal tradition so old, so 
important, and so much a part of what we stand for.
---------------------------------------------------------------------------
    \3\ The Declaration of Independence notes: ``The history of the 
present King of Great Britain is a history of repeated injuries and 
usurpations, all having in direct object the establishment of an 
absolute tyranny over these states. To prove this, let facts be 
submitted to a candid world.'' THE DECLARATION OF INDEPENDENCE para. 2 
(U.S. 1776). ``[The King] has affected to render the military 
independent of, and superior to, the civil power.'' Id. at para 14. 
``He has made judges dependent on his will alone, for the tenure of 
their offices, and the amount of payment of their salaries.'' Id. at 
para. 11.
---------------------------------------------------------------------------
    There is, in short, a high Constitutional presumption of civilian 
trials, except in a few identified situations during quite traditional 
wars, recognized as such by the Congress, where we could lose our 
freedoms to another nation. I will not argue today whether a war on 
many forms of terrorism continuing until this century-long modern 
phenomenon is ended will, unlike a war on the murderous Colombian 
cartels or the Mafia, qualify as a war for the Supreme Court's 
jurisprudence on military trials. I doubt it. In any event, the 
detention provisions of the same Presidential order clearly do not 
satisfy the specified Constitution criteria for extra-judicial 
detention: ``invasion or rebellion'' leading Congress to suspend habeas 
corpus.
    I don't need the heavy presumption, captured by Jefferson in the 
Declaration of Independence, to make my case. Nor need I refer to the 
last six words of the pledge of allegiance. Like almost everyone else 
who has studied how nations have handled terrorism, I ask only that the 
government consider and specify openly what are the costs and benefits 
of any change in democratic traditions it proposes. If Attorney General 
Ashcroft or President Bush had done this with regard to the importance 
and scope of their prospective change from civilian courts to secret 
military tribunals, the public would not accept the change. Certainly 
the Congress would not agree to it.
    Let me review the benefits, costs, and inflammatory breadth of the 
President's order.
    The benefits. The proposal will help solve whatever problem remains 
after more than two decades of legislation and proud law enforcement 
experience in dealing with the difficulties of civilian trials of 
terrorists and spies. The Congress has passed ``extra-territorial'' 
criminal statutes that apply stern measures to terrorism committed 
abroad against Americans.\4\ It has passed statutes allowing special 
electronic and physical searches of spies and terrorists from other 
countries and has just extended, in a very sensible way, their 
scope.\5\ Two decades ago I helped author a statute to allow trials 
while protecting national secrets.\6\ The intelligence investigators 
and prosecutors have used it with immense success. We have decades of 
experience in protecting witnesses. There is precedent, from the United 
Kingdom, that allows the conviction, as a conspirator or accomplice, of 
someone who has aided terrorists without proof that he had to know of 
the specific crime.\7\ We have on several occasions flown back to the 
U.S. for trial terrorists arrested by U.S. intelligence or law 
enforcement half-way around the world.\8\ In our courts there is no 
available exclusionary rule or other defense for a non-American 
searched or captured abroad, even if the search or arrest did not 
comply with the requirements of the Fourth (or any other) Amendment for 
searches and seizures in the United States.\9\
---------------------------------------------------------------------------
    \4\ E.g., Hostage Taking Act, 18 U.S.C. Sec. 50 U.S.C. 
Sec. Sec. 2331-2332 (2001) (killing of U.S. citizens abroad).
    \5\ Foreign Intelligence Surveillance Act, 50 U.S.C. 
Sec. Sec. 1801-1811 (2001).
    \6\ Classified Information Procedures Act, 18 U.S.C. Sec. Sec. 1-16 
(2001).
    \7\ Director of Public Prosecutions for Northern Ireland v. 
Maxwell, [1978] 3 All E.R. 1140. See also Regina v. Bainbridge [1960] 1 
Q.B. 129.
    \8\ E.g., U.S. v. Yunis, 924F.2d 1086, 1089 (D.C. Cir. 1991); 
Christopher Drew, FBI Captures Lebanese Hijacking Suspect at Sea, 
CHICAGO TRIBUNE, Sept. 18, 1987, at 1.; Christopher John Farley et al., 
Going Without a Prayer: An Inside Look at How the FBI and CIA Nabbed an 
Infamous Suspect After a Global, Four-Year Manhunt, TIME, June 30, 
1997, at 34.
    \9\ U.S. v. Verdugo-Urguides, 494 U.S. 259 (1990); U.S.
---------------------------------------------------------------------------
    Using these well-developed capacities, we have had remarkable 
success in trying and convicting the terrorists responsible for the 
bombings of the World Trade Center in 1993 and our embassies in Kenya 
and Tanzania. I have a hard time thinking of the prosecutorial benefits 
of military tribunals over civilian tribunals so fully empowered as 
ours, except that the military tribunals could, by selection or message 
from higher authority, use their secrecy, their lesser burden of proof, 
and the possibility of conviction by a two/thirds vote to convict 
without even the evidence that a jury of angry, patriotic Americans 
would demand.
    The costs. What then are the costs of authorizing for all non-
citizens indefinite detention without trial or, alternatively, a secret 
military trial with secret or untested evidence before a military panel 
chosen and evaluated by their commander, without judicial review of the 
adequacy of the evidence. To these must be added a possible death 
sentence for any of about 18 million non-citizens living in the United 
States (about one-third of whom may have violated their terms of entry) 
\10\ whenever the executive decides they have engaged, or are engaged, 
in terrorism related or unrelated to al Qaeda. I will list only a dozen 
such costs.
---------------------------------------------------------------------------
    \10\ The 200 census counted 28.4 million foreign-born residents of 
whom 37.4% were citizens. We had 24 million vists from tourists in 1999 
plus 6.5 students, business, and worker visits.
---------------------------------------------------------------------------
    (1) The authorization claims the critical powers--executive 
detention unreviewable in any court and secret military trials--of a 
police state, at the unreviewed discretion of the executive, over 
millions of individuals lawfully living in the United States, based on 
an unreviewed suspicion of unidentified forms of support of undefined 
political violence with an unspecific international connection. In 
doing so it will undermine the support and loyalty of many millions 
here in the U.S. and their relatives abroad.\11\ At the same time it 
will stifle speech and legitimate dissent among those covered.
---------------------------------------------------------------------------
    \11\ Greg Winter, Some Mideast Immigrants, Shaken, Ponder Leaving 
U.S., N.Y. TIMES, Nov. 23, 2001, available at www.nytimes.com: Jodi 
Wilgoren, Swept Up in a Dragnet, Hundreds Sit in Custody and Ask, 
`Why?', N.Y. TIMES, Nov. 25, 2001, available at www.nytimes.com.
---------------------------------------------------------------------------
    (2) If sustained by Congress and the courts, it would create a 
precedent very likely to be applicable to citizens. The Supreme Court 
declined to draw any distinction between citizens and aliens in Ex 
Parte Quirin. The ``military order'' itself is careful to preserve the 
``lawful authority of the Secretary of Defense. . .to detain or try any 
person. . .not subject to this order.''
    (3) It relegates the Congress as well as the courts to a position 
of impotence in addressing one of the most fundamental questions about 
how much of our democratic tradition we will preserve. Nothing in the 
joint resolution of September 18, 2001, that authorized the use of 
``necessary and appropriate'' force, remotely considers (approves or 
rejects) military detention and secret trials in the United States.\12\
---------------------------------------------------------------------------
    \12\ Unlike the ``military order,'' the joint resolution is also 
limited to those thought to be involved with the attacks of September 
11th.
---------------------------------------------------------------------------
    (4) It deprives the U.S. of its historic claim of moral leadership 
among the world's nations in matters of fairness to individuals, 
leaving us in the position of encouraging the outrages of dictators 
like President Mugabe.\13\ It will make more difficult future efforts 
at military coalition-building.
---------------------------------------------------------------------------
    \13\ Fred Hiatt, Democracy: Our Best Defense, WASHINGTON POST, Nov. 
19, 2001, at A21.
---------------------------------------------------------------------------
    (5) It has denied us, and will deny us, the benefits of legal 
cooperation with our closest allies in the form of extradition and 
mutual legal assistance.\14\
---------------------------------------------------------------------------
    \14\ Sam Dillon & Donald G. McNeil, Jr., A Nation Challenged: The 
Legal Front; Spain Sets Hurdles for Extractions, N.Y. TIMES, Nov. 24, 
2001, at A1.; William Safire, Essay: Kangaroo Curts, N.Y. TIMES, Nov. 
26, 2001, at A17.
---------------------------------------------------------------------------
    (6) It will create resentment, fear, and suspicion of the military, 
our most respected profession, undoing much of the benefits of more 
than a century during which the Posse Comitatus Act has protected the 
military from public fear and resentment.\15\
---------------------------------------------------------------------------
    \15\ Posse Comitatus Act, 18 U.S.C. Sec. 1385 (2001).
---------------------------------------------------------------------------
    (7) It will end a twenty-year successful effort to win respect and 
trust for a long-ridiculed military justice system.
    (8) It undermines public confidence in the ability of our law 
enforcement to handle cases of international terrorism--confidence 
hard-earned with the patient, intelligent legislative help of the U.S. 
Congress.
    (9) It will leave lasting doubts about the honesty of convictions 
in the wake of secret trials with secret evidence.\16\
---------------------------------------------------------------------------
    \16\ C.f. Boris I. Bittker, The World War II German Saboteurs/Case 
and Writ of Certiorari before judgment by the Court of Appeals: A Tale 
of None Pro Tone Jurisdiction, 14 Const. Commentary 431, 451 nl. (1997) 
(citing Eugene Rachlis, They Came to Kill: The Story of Eight Nazi 
Saboteurs in America (Random House, 1961, 156-159)). In 1942, eight 
Nazi Saboteurs were arrested on U.S. soil and tried before a Military 
Commission. The FBI attributed the unmasking of the Saboteurs to the 
extraordinary sleuthing of its agents althought the proximate cause of 
the capture was the defection of one of the saboteurs.
---------------------------------------------------------------------------
    (10) It will teach American children, particularly the children of 
immigrants, that this is not a nation ``with liberty and justice for 
all.''
    (11) If we are at ``war,'' the President's order directly conflicts 
with our obligations under Article 102 of the Geneva Convention on 
Prisoners of War that requires trials of prisoners of war, even for war 
crimes, only under ``the same procedure'' as we use in Courts Martial 
of our own soldiers.\17\
---------------------------------------------------------------------------
    \17\ For a Court Martial, as well as for any other properly 
authorized military tribunal, he is directed--by the very statute on 
which the claimed authority for the ``military order'' of November 13, 
2001 is based--to ``apply the principles of law and the rules of 
evidence generally recognized in the trial of criminal cases in the 
United States district courts ``so far as he considers practicable.''
---------------------------------------------------------------------------
    (12) Unless a secret military tribunal whose personnel are chosen 
and later evaluated by the executive is an ``independent and impartial 
tribunal,'' it also violates Article 14 of another treaty we have 
signed and ratified (The International Covenant on Civil and Political 
Rights). A non-independent tribunal is legal only if the President 
determines and announces that we are in a situation ``which threatens 
the life of the nation.'' \18\
---------------------------------------------------------------------------
    \18\ Article 14, International Covenant of Civil and Political 
Rights, 999 U.N.T.S 171, entered into foce Mar. 23, 1976; United 
National General Assembly Resolution 2200A [XX1]. 16 December 1966.
---------------------------------------------------------------------------
    The drafting. Bypassing Congressional and judicial review, the 
order is drafted with an appalling carelessness as to its over-broad 
scope. Most citizens and commentators think that it applies only to 
military or terrorist leaders captured abroad who have violated the 
laws of war. At the President's discretion:
    1. It applies within the Unites States to 18 million non-citizens 
and it applies throughout the world to the citizens of every nation.
    2. It applies to acts committed decades ago and to persons only 
remotely connected to those acts.
    3. It allows indefinite discretionary detention without plans for 
any trial, even before a military tribunal.
    4. It attempts to suspend habeas corpus without Congressional 
action or compliance with the Constitutional requirements of ``invasion 
or rebellion.''
    5. It has many applications the Supreme Court will not permit under 
the Court's requirement, where civil courts can operate, of a violation 
of the law of war. For example, harboring an ex-terrorist is not a 
violation of the law of war (or else our officials who have hosted 
leaders of other nations who fall in this category are war criminals.)
    6. It allows the President to decide when a threatening form of 
group crime becomes a war justifying detention and military tribunals, 
and to exercise that authority, without Congressional sanction. Using 
language with the sweep of the commerce clause of our Constitution, he 
has exercised that judgement by applying the order to relatively minor 
acts of terrorism (any act that carried ``adverse effects on the U.S.. 
. .economy '') and not just to massive attacks such as those of 
September 11, 2001.
    My conclusion is simple. It should be a proud and patriotic 
responsibility of the Congress to protect the people of the United 
States against the unnecessarily dangerous path of recourse to military 
tribunals and detention without trial which the President has taken in 
response to public fears. President Bush has said that it is our 
traditional freedoms that al Qaeda, and its like, fear and envy. We 
must be prepared to fight for these traditions admired around the 
world. We must not surrender any fundamental liberty without manifest 
necessity and Congressional review. There is no such necessity and 
there has been no such review in the case of President Bush's 
``Military Order'' of November 13, 2001.
                               Appendix A
    Western European countries have taken cautious steps to eliminate 
the risks of intimidation. Germany centralized the prosecution and 
adjudication functions in the case of terrorism, providing special 
protection for those responsible. For terrorist trials, France 
eliminated the participation of a majority of lay individuals who act 
as fact-finders in felony trials, substituting a panel of judges all 
but one of whom is anonymous. More dramatically, trials of narco-
terrorists and other terrorists in Colombia take place before a single 
judge whose identity is carefully hidden.
    Closest to the U.S. common law tradition was the situation of Great 
Britain in Northern Ireland. The British ?Diplock Courts? are perhaps 
the most famous of the special anti-terrorism courts in operation. Lord 
Diplock headed a Commission to evaluate the operation of the Northern 
Ireland justice system when opposition to internment without judicial 
trial had led the government to seek alternative ways of processing 
court cases involving paramilitaries. He concluded that intimidation of 
jurors by the defendants and their colleagues and ?perverse? verdicts 
rendered by jurors sympathizing with the cause of the government?s 
opponents made jury trials impractical.
    The Diplock Commission recommended implementation of special 
``Diplock'' courts for the trial of specified offenses such as murder, 
weapons offenses, bombings, and the like. Such courts are presided over 
by a single judge but without the normal jury. The trials have been 
public; defendants have had legal representation and could cross-
examine witnesses against them. The standard for conviction has 
remained guilt beyond a reasonable doubt. Defendants have an unfettered 
right to appeal if found guilty. Judges are required to provide a 
written opinion regarding their views of the law and the facts of the 
case when rendering a verdict. Their reasoning can be challenged on 
appeal.
    Britain's attorney general is empowered to decide, at the request 
of defense counsel, if specific cases involving scheduled offenses 
should be ``certified out'' as not being political in nature. Cases 
that are ``certified out'' revert back to the regular jury trial 
courts. In 1995, the attorney general approved 932 of 1,234 
applications for removal from Diplock Court. In that year 418 people 
were tried for scheduled offenses in Diplock Court and 395 were 
convicted (360 of these pleaded guilty). Of the 58 defendants who 
pleaded not guilty, 23 (40%) were found not guilty at trial.
    These uses of special courts have been careful and their purpose, 
avoiding intimidation of fact finders, is important. But special courts 
always create special fears because the motivation for special courts 
has not always been merely to deal with intimidation. Secret courts, 
instituted by the military to further its purposes have been used in 
Guatemala, Argentina, Chile, and elsewhere. The purpose was less to 
deal with threats than to assure that the fact finders would be 
sympathetic to the views of the government.

    Chairman Leahy. We are going to ask some questions and give 
you a chance to give us more.
    Mr. Bell?

STATEMENT OF GRIFFIN B. BELL, SENIOR PARTNER, KING & SPALDING, 
        AND FORMER ATTORNEY GENERAL OF THE UNITED STATES

    Mr. Bell. I have filed a statement, so I am just going to 
be very short. I am posing it by trying to answer questions 
that have been raised in the public arena.
    Did the President have power to issue this order setting up 
military tribunals? I don't think there is any doubt that he 
had power. I don't think there is anything irregular about it. 
I don't think there is anything illegitimate about it.
    I picked out three cases. First, in the Revolution, Major 
John Andre was tried by a military tribunal. He was the 
negotiator with the traitor Benedict Arnold. After the Civil 
War, the commander of the Andersonville Prison camp, Captain 
Wirtz, was tried by a military tribunal in Washington, although 
he lived in Georgia, and was executed. We tried the German 
spies that everyone has been talking about, but we also tried 
General Yamashita after World War II ended in a military 
tribunal convened by General MacArthur, not by the President 
but by General MacArthur. So military tribunals are not 
uncommon in time of war.
    Now, is the focus of the President's order too broad? I 
think not. First, it has to be--what he does, if he puts 
someone under this order, it has to be in the interest of the 
United States. He has to have reason to believe that the person 
is a member of Al Qaeda or is engaged in international 
terrorism acts or has harbored someone who did.
    What procedures are to be followed by the military court, a 
tribunal? We don't know yet because they haven't been 
promulgated, but there are some things in the order that tell 
us some elements of due process. The order says that the 
defendant will be afforded counsel, there will be a record made 
of the trial, and that the evidence will be that which has 
probative value to a reasonable person. Incidentally, the same 
standard that was set out by General MacArthur when General 
Yamashita was tried.
    Will the trial be without a jury? Yes. This is true with 
our own soldiers who are prosecuted under the Code of Military 
Justice. There is no jury. It is hard for me to understand why 
we would want to give someone charged with international 
terrorism a jury when our own soldiers would not have a jury if 
they were being prosecuted.
    We can assume that military officers serving on the 
military court martial or tribunal would be no less fair than a 
civil jury. I read a comment by Secretary of War Stimson who 
said during World War II in a biography of General Marshall on 
that very subject, when he said, ``All the civilians wanted to 
shoot the Germans after the war, but the military wanted to 
have fair trials.'' So I think we shouldn't assume that juries 
somehow or another are fairer than military officers.
    Will the trial be secret? No, and I think it is nonsense to 
contend otherwise. The order does not say so. The order 
protects classified information. When I was Attorney General, 
we began to prosecute spies or espionage cases again after a 
long period of time, and we had to deal with courts on how to 
try cases where we had to protect sources and methods and 
foreign intelligence, and we were able to do that. And the idea 
was that lawyers every day tried trade secret cases, and you 
don't make the trade secrets public. So we found ways to do 
that. We tried people who, for example, had stolen plans from 
the CIA and sold them to the Russians for satellite plans, and 
we tried a jury trial without making the plans available to the 
public. So we know how to try cases of this kind. I think that 
is what it means, but the Secretary of Defense might very well 
spell out what that means.
    What of the conviction by a two-thirds vote? If we were 
trying one of our own servicemen, everything would be by two-
thirds vote, every crime, except life, which would be three-
fourths, and death, which would be unanimous. That is a 
debatable question, a fair question to debate, and the Code of 
Military Justice might very well be considered by the Secretary 
of Defense.
    What is the burden and quantum of proof? I would say it 
would be reasonable to follow what was used in General 
Yamashita's trial.
    Lastly, what of the right to appeal? In military tribunals, 
there is no general right of appeal, but this order does not 
preclude writs of habeas corpus, and it is beyond my 
imagination that you couldn't use a writ of habeas corpus if 
someone was tried in the United States. I think you cannot use 
a writ on a decision by Justice Jackson for non-resident aliens 
or a case tried in some other country. I think that is settled. 
But in this country, no.
    I would like to suggest one thing to the Committee. I have 
high regard for the Judiciary Committee. I have appeared here 
many times. I think it would be well to wait until the 
Secretary promulgates these orders, rules, and regulations 
before you finally conclude this matter. Some of these 
questions probably will be cleared up at that time, and I think 
we need to give the Secretary of Defense a chance to allay a 
lot of the worries that people have.
    Thank you.
    [The prepared statement of Mr. Bell follows:]

  Statement of Hon. Griffin Bell, Senior Partner, King & Spalding and 
              Former Attorney General of the United States

 I. Subjecting terrorists to trial by military tribunal is completely 
 consistent with the United States Constitution and with this nation's 
                         historical precedent.
    As I wrote in an editorial that appeared in the Wall Street Journal 
two weeks after the September 11th attacks, the President's 
responsibility to protect our citizens from foreign terrorists 
implicates very different concerns from those raised by our standard 
law enforcement process as administered by our civilian courts.
    There can be no doubt that the perpetrators of the September 
11th attacks are more than simple criminals. By their level 
of organization, their access to vast reservoirs of foreign resources, 
their professed dedication to the destruction of the United States, and 
their strategy of targeting and slaughtering our civilian population, 
it is plain that these terrorists, and those who support them, are 
nothing less than combatants engaged in an armed conflict with the 
United States.
    Congress has acknowledged the existence of this armed conflict, 
passing on September 18, a joint resolution authorizing the President 
to use armed force against the perpetrators of the September 
11th attacks, in light of the ``unusual and extraordinary 
threat to the national security and foreign policy of the United 
States.''
    In this context, when fulfilling his responsibility to protect our 
citizens from armed combatants against the United States, the 
President's authority flows, not from his role as the nation's chief 
law enforcement officer, but rather from his role as Commander-in-Chief 
of the nation's Armed Forces.
    In exercising his authority as Commander-in-Chief, the President is 
not bound to afford captured combatants the same protections afforded 
to criminal defendants by the Bill of Rights.
    It is absurd to suggest that the U.S. military must observe the 
same civil liberties in its interaction with foreign soldiers that our 
law enforcement agents must observe in their interactions with common 
criminal defendants. While a U.S. serviceman must abide by certain 
domestic and international rules of engagement when conducting a war, 
he is certainly not responsible for conforming his actions to the U.S. 
Constitution. A U.S. soldier need not obtain a search warrant prior to 
entering an enemy building, nor must he advise a captured soldier of 
his right to retain an attorney.If an enemy combatant is taken into 
custody, there remain domestic and international norms that must be 
observed in the treatment of that prisoner. However, trial by jury in a 
civilian court is not a right enjoyed by such a prisoner. Neither the 
United States Constitution, nor any international treaty, imposes the 
incongruous obligation that a captured combatant must receive a trial 
in a civilian court.
    Nor has it been our practice, at any time during the history of 
this country, to attempt to provide trials for captured combatants in 
our civilian courts.
    Military tribunals, such as those authorized by the President's 
recent Executive Order, are the traditional means by which foreign 
combatants, including terrorists, have, historically, been brought to 
justice.
    Military tribunals were used extensively by this country during and 
after World War II. Hundreds of German and Japanese prisoners were 
tried by military tribunals for violations of the law of war following 
the end of that war. In 1942, President Franklin Roosevelt convened a 
military tribunal in Washington, DC, to try eight Nazi saboteurs who 
were arrested in New York and Chicago after embarking on our East Coast 
from German submarines.
    During and after the Civil War, military commissions were used to 
try war criminals, including the individuals who participated in the 
assassination of President Lincoln.
    Military tribunals were used to try war criminals during the 
Mexican-American War, various wars against the American Indians, and 
the American Revolution.
    The Supreme Court has consistently approved of military tribunals, 
explaining in one case, ``Since our nation's earliest days, such 
commissions have been constitutionally recognized agencies for meeting 
many urgent governmental responsibilities related to war.'' [Madsen v. 
Kinsella, 343 U.S. 341, 346-47 (1952)]
    Congress has expressly authorized the use of such tribunals in 
Title 10 of the United States Code [10 U.S.C. Sec. 821], and has 
provided that the President shall have the power to prescribe the 
procedures to be used [10 U.S.C. Sec. 836].
    There are some critics who have argued that certain rights, such as 
the right to a trial by jury and the right to indictment by grand jury, 
are essential elements of the ``American Way,'' and must be provided in 
all contexts, even to enemy prisoners of war. To these critics, I say 
that our own servicemen are subject to the Uniform Code of Military 
Justice, which does not provide for such rights. It would indeed be 
peculiar to insist that captured enemy combatants are entitled to 
greater rights than those provided to our own soldiers.
    Other critics have predicted that the procedures established for 
these tribunals may amount to little more than a ``kangaroo court,'' 
with rules that are so slanted against a defendant that justice will 
not be served. To these critics, I say your criticism is, as of now, 
unfounded. The Secretary of Defense has yet to issue a code of 
procedures for these tribunals. This nation has, in the past, conducted 
trials by military tribunal that meet all reasonable standards of both 
substantive and procedural due process. Such tribunals have, in the 
past, resulted in both convictions and acquittals of the individuals 
charged with violations of the law of war. There is no reason to 
believe that our Secretary of Defense will establish patently unfair 
procedures for trials pursuant to the President's directive.
 II. Considerations of national security should properly be weighed as 
    the government determines whether to divulge the identities of 
individuals who have been detained in connection with the investigation 
              into the September 11th attacks.
    There have been allegations that the Justice Department has acted 
improperly in failing to divulge publicly to the press the identities 
of all persons being detained in connection with the investigation into 
the September 11th attacks.
    I have seen no evidence to suggest that the Justice Department has 
acted improperly in this respect.
    In his capacity as Commander-in-Chief of the armed forces, the 
President and his cabinet must retain the right to designate certain 
information as classified in order to protect our national security and 
to preserve the integrity of ongoing criminal investigations.
    The Freedom of Information Act, which is the primary vehicle for 
ensuring the openness of our democratic government, expressly 
recognizes the government's authority to withhold certain information 
to protect national security and to preserve the integrity of ongoing 
criminal investigations.
    It is perfectly reasonable to expect that releasing the names of 
those individuals being detained in connection with this investigation 
would have a negative impact on our efforts to track down other 
terrorists and to protect against further terrorist attacks. While I am 
not privy to the details of the current investigation, my experience as 
Attorney General leads me to believe that such information would be 
extremely useful to those terrorists who remain at large.
    The fact that the Justice Department has not provided this 
information to the press does not mean that the detainees are powerless 
to vindicate their rights. It is my understanding that each of the 
detainees in question is either believed to be here in violation of our 
immigration laws, or is being held on a material witness warrant. The 
Attorney General has represented that each of these detainees has had 
access to legal counsel should they wish to challenge the basis for 
their detention. Presumably, counsel for any one of the detainees could 
contact the press if it were in the interest of that detainee to do so. 
Moreover, as with any case in this country in which a person has 
suffered a deprivation of liberty, each of these detentions is subject 
to judicial review.
    Also, it would seem to me that our government would be committing a 
serious violation of the privacy of these detainees if, for example, 
the Justice Department published a list of the detainees in the 
Washington Post or the New York Times.
    In sum, I have no reason to believe that the Justice Department has 
acted improperly in declining to release to the press the identities of 
the detainees in connection with this investigation. The decision not 
to release such information appears to have a sound basis grounded in 
the operational necessities of conducting this war on terrorism.
                               summation
    1. The President has acted under the common law of war. Although we 
have not declared war since World War II, war has been authorized by 
the Congress through the authority to use armed forces as they are now 
being used in Afghanistan. Public Law 107-40. Congress authorized 
military tribunals in Sections 821 and 836 of Title 10 of the United 
States Code. Military tribunals have been used throughout the history 
of our nation. Major John Andre was executed after trial by a military 
commission during the Revolutionary War; Captain Wirtz, the Commander 
of Andersonville Prison, was tried by a military tribunal following the 
Civil War and was executed. Such tribunals were used in the Civil War 
and in World War II. President Roosevelt convened a military tribunal 
to try the German spies and General Yamashita was tried at the end of 
the war by a military tribunal constituted by General MacArthur. It is 
simply incorrect to say that there is anything irregular or 
illegitimate about President Bush constituting military tribunals in 
the current war on terrorism.
    2. Is the focus of the Order too broad? I think not. It applies 
only to non-citizens selected by the President. The President 
determines from time to time in writing that it is in the interest of 
the United States that an individual be subject to the Order if there 
is reason to believe that he or she is or was a member of the al Qaeda 
or has engaged in, aided or abetted or conspired to commit acts of 
international terrorism or acts in preparation therefor that have 
caused, threatened to cause or have as their aim to cause injury to or 
have adverse affects on the United States, its citizens, national 
security, foreign policy or economy or has knowingly harbored one or 
more individuals described in Paragraphs (i) or (ii) of Section 2(a)(i) 
of the President's order. This seems to me to be a narrow focus.
    3. What procedures are to be followed by the military court? These 
are yet to be promulgated by the Secretary of Defense. The terms of the 
order are such that we can be sure that any defendant will be afforded 
defense counsel, that a record will be made of the trial, that evidence 
will be limited to that which has probative value to a reasonable 
person.
    4. Will trials before the military tribunal be without a jury? Yes. 
That is true also when our own soldiers are tried under the Code of 
Military Justice. There is no jury. We can assume that military 
officers serving on a military court martial or tribunal would be no 
less fair than a civil jury. See Comment of Secretary Stimson, 
Paragraphs 467 and 468 in Pogue's George L. Marshall: Organizer of 
Victory.
    5. Will the trials be secret? No. It is nonsense to contend 
otherwise. What the Order provides is that classified information will 
be protected. We have been doing this for many years in espionage 
cases, which are tried in the federal courts. Classified material is 
protected without the denial of rights to defendants. It is in the 
interest of the nation to protect sources and methods in foreign 
intelligence. We await the procedures to be promulgated by the 
Secretary of Defense; it may well be that there will be procedures for 
protecting classified information as it is contemplated by the 
President's Order.
    6. What of the conviction by a two-thirds vote? In the Code of 
Military Justice, which applies to our own servicemen, a two-thirds 
vote of those constituting a general military court martial applies in 
any sentence less than life imprisonment or death. In the case of life 
imprisonment, the Code provides for a three-fourths vote for 
conviction, and for death there must be a unanimous vote. Has the 
President abused his authority as Commander in Chief by providing for a 
two-thirds vote in the case of life imprisonment or death? I think not, 
although it can fairly be argued that the Code of Military Justice 
standard is a precedent to be considered.
    7. What is the quantum of proof? In the trial of General Yamashita 
following World War II, the burden and quantum of proof for the 
tribunal constituted by General MacArthur was evidence proving or 
disproving the charge which, in the opinion of the tribunal, would have 
probative value in the mind of a reasonable person. Here, again, we 
should await the quantum and burden of proof that is set out in the 
procedures to be established by the Secretary of Defense.
    8. Lastly, what of the right of appeal to the courts? The Order 
provides an appeal to the President or, by his order, to the Secretary 
of Defense. The Order purports to take away the jurisdiction of all 
other courts, state or federal, for these convictions. The President's 
order contains no reference to the writ of habeas corpus, and I believe 
that there is no basis for construing the order as an attempt to 
suspend that right. The Constitution (Article I, Section 9) provides 
that not even Congress can suspend the Writ of Habeas Corpus unless, 
when in cases of rebellion or invasion, the public safety may require 
it.
    9. There have been a number of cases in the Supreme Court 
considering whether Writs of Habeas Corpus will lie from military 
tribunals to federal courts. In some cases, the order constituting the 
tribunal was silent as to the use of the writ, but Justice Jackson for 
the Court in Johnson v. Eisenstranger, 339 U.S. 763 (1950), dealt 
extensively with the question of whether non-resident enemy aliens 
could even use the writ. As to those cases which involve U.S. citizens, 
or aliens on U.S. soil, the case of In re Quirin, 317 U.S. 1 (1942), 
plainly established that habeas corpus review was an appropriate means 
for defendants to test the jurisdiction of military tribunals.
    With due deference to this important Committee carrying out your 
oversight function and your legislative function, I suggest that it 
would be well to adjourn this hearing pending receipt of such orders 
and regulations by the Secretary of Defense, as are contemplated by 
Section 4(b) and (c) of the President's Order as well as the meaning of 
the provision in Section 4(a) of punishment ``in accordance with the 
penalties provided under applicable law.''

    Chairman Leahy. Thank you, General Bell. I appreciate your 
being here, and you bring back memories of my early days in 
this Committee where I think my seat was probably so far back 
that you never even noticed me because I was probably behind 
you. I didn't care much for the seniority system back then. Now 
that I have studied it 25 years, I like it a lot better.
    Professor?

 STATEMENT OF SCOTT L. SILLIMAN, EXECUTIVE DIRECTOR, CENTER ON 
 LAW, ETHICS AND NATIONAL SECURITY, DUKE UNIVERSITY SCHOOL OF 
                              LAW

    Mr. Silliman. Mr. Chairman, Senator Hatch, Senator Specter, 
the President's order cites as one of its legal predicates 
Article 21 of the Uniform Code of Military Justice. That 
provision, I submit, creates no new authority in the President 
as to military commissions. It merely acknowledges that in 
establishing the jurisdiction for courts-martial, Congress did 
not deprive these commissions, another type of legal tribunal, 
of concurrent jurisdiction with respect to offenses which, by 
statute or by the law of war, may be tried by these 
commissions.
    As to statutory offenses, Congress clearly has the 
authority under Article I, section 8, clause 10, to define and 
punish offenses against the law of nations, of which the law of 
war is a subset. But it has done so only in a very restricted 
manner, notably, in the War Crimes Act of 1996, none of whose 
provisions are applicable to what we are dealing with in this 
instance. So we must, therefore, look to the law of war for the 
predicate authority for military commissions.
    Customary international law recognizes the right of a 
military commander to use military commissions to prosecute 
offenses against the law of war, offenses which, by definition, 
must take place within the context of a recognized state of 
armed conflict. I maintain that shortly before 9 o'clock in the 
morning on Tuesday, September 11th, we were not in a state of 
armed conflict and we did not enter into a state of armed 
conflict until some time thereafter, certainly on or after the 
7th of October.
    Some argue that the events of that horrendous Tuesday 
demand a reappraisal of customary international law concepts 
regarding the distinction between state and non-state actors 
and that, irrespective of whether the attacks were carried out 
by one, 19, or a greater number of terrorist non-state actors, 
that they should nonetheless be considered acts of war. I 
cannot agree in that. The answer lies in legislation rather 
than an instantaneous sweeping aside of traditional customary 
law concepts.
    Articles 18 and 21 of the Uniform Code of Military Justice 
could be amended to allow for the use of military commissions 
or even courts-martial to try offenses, not just against the 
law of war but against the law of nations, and could include 
the broader category of offenses such as we are dealing with on 
September 11th.
    A word about the much cited case of Quirin involving the 
eight German saboteurs. Although the Supreme Court did sanction 
the use of a military commission in that instance, it did so in 
the clear context of a formally declared war, saboteurs 
entering this country surreptitiously and illegally at a time 
frame only 7 months after the attack on Pearl Harbor, where the 
vulnerability of this country was shockingly realized. That 
realization of vulnerability also gave birth to the infamous 
internment camps for Japanese Americans sanctioned by the 
Supreme Court in the Korematsu case. The Korematsu case is a 
precedent, Mr. Chairman, that I suggest few would want to bring 
forward. I suggest that Quirin, like Korematsu, can be extended 
too far beyond its context.
    I, therefore, see a weakness in the legal predicate for 
using military commissions to prosecute offenses occurring on 
September 11th, and I believe that that weakness could result 
in a finding that such commissions would not have jurisdiction 
over those offenses, the September 11th offenses.
    I also have policy concerns, Mr. Chairman. I acknowledge 
the convenience and perhaps the prudence of commissions sitting 
overseas for terrorists captured incident to combat in 
Afghanistan and the Supreme Court opinions can be read as 
precluding judicial review in those cases. That is the 
Eisentrager case. But as to military commissions sitting in 
this country prosecuting resident aliens, I see not only an 
adverse impact upon our international credibility, but also a 
potential tarnishing of a proud heritage of 50 years of 
military justice under the Uniform Code of Military Justice.
    Senators Kennedy and Kohl have both mentioned the Berenson 
case, 1996, in Peru. I would suggest that there appears to be 
little difference between the lack of protections afforded her 
in Peru and the minimal due process standards set out in the 
President's order.
    We should expect a reproach from the international 
community for hypocrisy since we continually tout ourselves as 
a nation under the rule of law. I believe such a criticism 
could result in a fracturing of the disparate coalition that 
has been forged to wage a long-term campaign against terrorism 
worldwide, a campaign which must necessarily go farther than 
just the use of military force.
    Secondly, many in this country do not accurately perceive 
the distinction between courts-martial under the Uniform Code 
of Military Justice and military commissions to be empaneled 
under the President's order. On Sunday's televised news program 
``Face the Nation,'' former Deputy Attorney General George 
Terwilliger stated that ``there is a fundamental misconception 
that somehow a military court cannot be just. Our own soldiers 
and airmen are subject to military justice on a regular basis. 
The military can provide fair trials.''
    That implies, Mr. Chairman, that military commissions will 
generally follow the same rules of procedure and modes of proof 
of courts-martial. As this Committee knows, that is not the 
case. Regrettably, this confusion is widespread, and I have a 
great concern that in pursuing the use of military commissions, 
especially in this country, this blurred distinction could 
sully the image of military justice under the code, a very fair 
and impartial system of which we have always been proud.
    I look forward to answering any questions you might have, 
Mr. Chairman.
    [The prepared statement of Mr. Silliman follows:]

   Scott L. Silliman, Executive Director, Center on Law, Ethics, and 
            National Security, Duke University School of Law

    Mr. Chairman, Senator Hatch and members of the Committee. My name 
is Scott L. Silliman and I am the Executive Director of the Center on 
Law, Ethics and National Security at the Duke University School of Law. 
I am also a senior lecturing fellow at Duke and hold appointments as an 
adjunct professor of law at Wake Forest University, the University of 
North Carolina, and North Carolina Central University. My research and 
teaching focuses primarily in the field of national security law. Prior 
to joining the law faculty at Duke University in 1993, I spent 25 years 
as a uniformed attorney in the United States Air Force Judge Advocate 
General's Department. During Operations Desert Shield and Desert Storm, 
I served as the senior Air Force attorney for Tactical Air Command, the 
major command providing the majority of the Air Force's war-fighting 
assets to General Schwarzkopf's Central Command.
    I thank you for the invitation to discuss with the Committee some 
of my concerns with respect to the inherent tension which exists in 
successfully defending against terrorism while at the same time 
preserving our freedoms. In the event that members of al-Qaeda are 
captured or surrender incident to the military campaign in Afghanistan, 
or if individuals suspected of complicity in the attacks of September 
11th are arrested in this country or elsewhere, there are 
several prosecutorial options available to the government. These are 
(1) trial in the federal district courts, as was done with regard to 
those responsible for the initial attack upon the World Trade Center in 
1993 and upon our embassies in Kenya and Tanzania in 1998; (2) trial in 
the courts of any other country, under the principle of universal 
jurisdiction; (3) trial before some type of an international tribunal, 
either one currently in being or one to be established in the future; 
or (4) trial by military commission or other military tribunal 
established by the President in his capacity as Commander-in-Chief. 
None of these approaches is optimal; all have problems and limitations 
associated with their use. The President, however, has indicated his 
intent to pursue the use of military commissions and, accordingly, my 
comments will be restricted to the military order issued on November 
13th which authorizes the detention, treatment and trial of 
certain non-citizens in the war against terrorism. In particular, I 
will discuss what I consider to be a weakness in the Administration's 
argument regarding the President's legal predicate for authorizing the 
use of military commissions with respect to the terrorist attacks on 
September 11th, a weakness which I believe needs to be remedied by the 
Congress through legislation. I will then discuss my policy concerns as 
to the overall breadth of the current order and how I believe it could 
adversely impact our international credibility as a nation under the 
rule of law.
      Authority of the President to Authorize Military Commissions
    The military order of November 13th lists three 
statutory provisions which, in addition to the President's 
constitutional powers, are cited as authority for the order. These are 
the Authorization for Use of Military Force Joint Resolution, signed by 
the President on September 18, 2001, and Articles 21 and 36 of the 
Uniform Code of Military Justice. As to the Joint Resolution, the key 
operative language is contained in Section 2(a) which authorizes the 
President ``to use all necessary and appropriate force against those 
nations, organizations, or persons he determines planned, authorized, 
committed, or aided the terrorist attacks that occurred on Sept 11, 
2001, or harbored such organizations or persons, in order to prevent 
any future acts of international terrorism against the United States by 
such nations, organizations or persons.'' Section 2(b) declares that 
Congress, through this resolution, is satisfying its own requirements 
under the War Powers Resolution of 1973 regarding the need for a 
specific statutory authorization approving the use of our armed forces 
in this regard. There can be no doubt that the Joint Resolution is 
meant to buttress and affirm the President's right as commander-in-
chief to use force in self-defense against a continuing threat, either 
from a state or a non-state actor. This inherent right of self-defense, 
clearly recognized in customary international law and codified (but not 
supplanted) by Article 51 of the United Nations Charter, was reiterated 
in United Nations Security Council resolutions 1368 of September 
12th (Security Council Res. 1368, UN Doc. SC/7143) and 1373 
of September 28th (Security Council Res. 1373, UN Doc. SC/
7158), both of which referred directly to the attacks of September 
11th. It should be noted, however, that although there are frequent 
references in the text of the Joint Resolution to ``terrorist acts'' 
and ``acts of international terrorism'', nowhere in the resolution, or 
in the presidential signing statement, is there any mention or 
characterization of the attacks of September 11th as acts of 
war. They are clearly denoted as terrorist acts.
    Under the Constitution, Congress was granted authority to make 
rules for the government of the land and naval forces (Article I, 
Section 8, Clause 14). It did so most recently through enactment of the 
Uniform Code of Military Justice (UCMJ), 10 U.S.C. Sec. Sec. 801 et 
seq., in 1950. Article 21 of the Code, cited in the President's 
military order, mentions military commissions but does so only in 
acknowledging that the Code's creation of jurisdiction in courts-
martial to try persons subject to the UCMJ, does ``not deprive military 
commissions...of concurrent jurisdiction with respect to offenders or 
offenses that by statute or by the law of war may be tried by military 
commissions, provost courts, or other military tribunals'' (10 U.S.C. 
Sec. 821). A corresponding provision in Article 18 of the UCMJ, 
although not cited in the military order, provides that ``(G)eneral 
courts-martial also have jurisdiction to try any person who by the law 
of war is subject to trial by a military tribunal and may adjudge any 
punishment permitted by the law of war'' (10 U.S.C. Sec. 818). Articles 
18 and 21 can only be read as reflective of Congress' intent, by 
enacting statutory authority for trials by courts-martial and providing 
for the concurrent jurisdiction of courts-martial with military 
commissions, not to divest the latter of the jurisdiction that they 
have by ``statute or by the Law of War''. The other provision of the 
UCMJ specifically cited in the military order is Article 36, 10 U.S.C. 
Sec. 836, which is a general delegation of authority to the President 
to prescribe trial procedures, including modes of proof, for courts-
martial, military commissions, and other military tribunals. This 
provision states that the President shall, ``so far as he considers 
practicable, apply the principles of law and the rules of evidence'' as 
generally used in criminal cases in federal district courts (10 U.S.C. 
Sec. 836). In the military order, the President makes a specific 
finding that using those rules would not be practicable in light of the 
``danger to the safety of the United States and the nature of 
international terrorism'' (Section 1(f), Military Order of November 13, 
2001). This provision, therefore, has relevance only to the rules for 
the conducting of military commissions, rather than to the authority 
for establishing them.
    Has Congress legislated as to war crimes, other than in the UCMJ? 
Although the Constitution grants Congress authority to define and 
punish offenses against the law of nations (Article I, Section 8, 
Clause 10), it has done so only in a very limited manner through the 
War Crimes Act of 1996 (18 U.S.C. Sec. 2441). That statute makes 
punishable any grave breach or violation of common Article 3 of the 
Geneva Conventions, any violation of certain articles of Hague 
Convention IV of 1907, or a violation of the Protocol on Prohibitions 
or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 
when either the perpetrator or the victim is a member of the United 
States armed forces or a national of the United States. None of these 
treaty provisions, violations of which are proscribed under the Act, 
appear to be applicable with regard to the terrorist attacks. 
Therefore, since the only relevant statutory references to military 
commissions are contained in the UCMJ, and those only recognize 
jurisdiction with respect to offenses proscribed by statute (of which 
none apply here) or the law of war, a subset of international law, it 
is the law of war to which we must now turn.
    Customary international law clearly recognizes the authority of a 
military commander to use military tribunals to prosecute offenses 
against the jus in bello occurring during an armed conflict. The jus in 
bello, regulating how war should be conducted, differs from the jus ad 
bellum, which governs when the use of force is permissible by one state 
against another. Our history is replete with instances of military 
tribunals being used to deal with violations of the jus in bello in 
times of armed conflict, with the trials of General Yamashita and the 
German saboteurs during World War II being the most recent examples.
    My concern with regard to the legal predicate for the application 
of the President's military order is that violations of the law of 
war--the jus in bello--do not occur within a vacuum; they must by 
definition occur within the context of a recognized state of armed 
conflict. I maintain that at shortly before 9:00 am on the morning of 
September 11th, we were not in a state of armed conflict and we did not 
enter into such a state until sometime thereafter. Therefore, with 
regard to the attacks of September 11th, the principal event prompting 
our armed response in self-defense against Osama bin Laden and the al-
Qaeda organization in Afghanistan, these are clearly acts of terrorism 
in violation of international law, but not necessarily violations of 
the law of war. If my premise is correct, then it presents an 
impediment to using military commissions for the trial of those charged 
with or complicit in those particular attacks, as distinguished from 
charges relating to later events. Some may argue that the events of 
September 11th demand a reappraisal of existing customary 
international law concepts with regard to the distinction between state 
and non-state actors and that, irrespective of whether the attacks were 
carried out by one, nineteen, or a greater number of terrorist non-
state actors, these attacks should be considered, at the instant they 
occurred, as nothing short of an act of war. I am unwilling to concur 
in that argument and, as will be discussed later, I believe the answer 
to this problem lies in legislation rather than an instantaneous 
sweeping aside of longstanding principles of customary law.
    In many of the Administration's pronouncements in support of the 
military order of November 13th, the Supreme Court opinion in Ex Parte 
Quirin, 317 US 1 (1942), is mentioned. I submit that Ex Parte Quirin, 
the case involving the eight German saboteurs who, in 1942, landed on 
our shores in Florida and Long Island with intent to do damage to our 
defense facilities, bears closer scrutiny than it has been given by 
military commission proponents. The Supreme Court sanctioned the use of 
a military commission to try the saboteurs, but did so in the context 
where there was a formal declaration of war by Congress and the 
individual saboteurs had entered this country surreptitiously. Even 
though one of them, Haupt, claimed to be an American citizen by virtue 
of the naturalization of his parents while he was still a minor, the 
Court determined that such citizenship did ``not relieve him from the 
consequences of a belligerency which is unlawful because in violation 
of the law of war'' (Ex Parte Quirin, 317 U.S. 317, 37 (1942)). 
Throughout Chief Justice Stone's opinion, there are references to the 
power of the President as Commander-in-Chief in time of war. Ten years 
later, Justice Robert Jackson, in his concurring opinion in the Steel 
Seizure Case, would develop his oft-quoted analysis of presidential 
powers in relation to those of Congress and determine that the 
President's authority is at a maximum when he acts pursuant to an 
express or implied authorization of Congress (Youngstown Sheet & Tube 
Co. v. Sawyer, 343 US 579, 592 (1952)). The Congressional declaration 
of war against Germany was just such a mandate for President Roosevelt, 
especially bearing in mind that the eight saboteurs breached our shores 
just seven months after the attack on Pearl Harbor where the 
vulnerability of this country to attack was shockingly realized. That 
realization of vulnerability also gave birth to the infamous internment 
camps for Japanese Americans which were established during this very 
same period and which were sanctioned by the Supreme Court in Korematsu 
v. United States, 323 US 214 (1944), an opinion which virtually no one 
claims has continued precedential value. Thus, I suggest that to draw 
authority from Ex Parte Quirin for the military order of November 
13th is to take the case out of the context of the very 
specific circumstances in which it was decided, a declared war and a 
Supreme Court desiring to maximize the President's authority to act to 
defend our shores against an attack from state actors. No such context 
exists now, no matter how much we proclaim the ``acts of war'' of 
September 11th and try to make terrorists into state actors.
    In conclusion of the first part of my statement, dealing with what 
I consider a weakness in the argument for the President's legal 
authority to use military commissions to prosecute terrorists for 
offenses against the war of war occurring on September 11th, 
I submit that this weakness can be remedied, certainly as to future 
acts of terrorism which do not reach to the level of being offenses 
against the law of war. If Congress were to enlarge the scope of 
Articles 18 and 21 of the Uniform Code of Military Justice by either 
changing the words ``law of war'' to ``law of nations'', thereby 
incorporating acts such as those of September 11th, or by inserting 
additional language setting forth specifically denoted acts of 
terrorism, such an amendment would empower military commissions 
(Article 21) and courts-martial (Article 18) to prosecute acts of 
terrorism outside the context of a recognized state of armed conflict. 
As to the use of courts-martial, however, this would necessitate 
pretrial, trial and post-trial procedures, including modes of proof, as 
prescribed in the Manual for Courts-Martial, Exec. Order 12960, 63 Fed. 
Reg. 30065 (June 2, 1998), unless the President, acting under the 
Congressional delegation of Article 36 of the Code, were to modify 
those procedures, as he has done in the November 13th 
military order.
       Policy Concerns Regarding the Use of Military Commissions
    Mr. Chairman, my comments to this point have reflected a specific 
legal concern regarding the Constitutional predicate for the President 
to authorize the use of military commissions. I would now like to share 
with the Committee my more general policy concerns regarding the choice 
of military commissions as against other prosecutorial forums. I should 
say at the outset that my area of greatest concern is with respect to 
military commissions sitting in the United States and prosecuting 
resident aliens who entered this country legally and whose only offense 
might be that they are, or were at some time in the past, members of 
al-Qaeda. I acknowledge the convenience and possible prudence of 
commissions sitting in overseas areas, especially in a theater of 
military operations, for the prosecution of those members of al-Qaeda 
who are captured incident to combat in Afghanistan, and I think an 
argument could certainly be made that the Supreme Court's opinion in 
Johnson v. Eisentrager, 339 U.S. 763 (1950) would preclude judicial 
review by the Article III courts over such commissions held overseas. 
The concept of military commissions sitting in this country is another 
matter.
    The administration has evidenced frustration with what it perceives 
to be restrictions and limitations that seemingly hinder prosecutors in 
attempting to bring terrorists to trial in our federal district courts. 
Mention has been made of the rules governing disclosure which would 
compel release of sensitive intelligence information. The lengthy 
trials of those convicted of the 1993 bombing of the World Trade Center 
and the 1998 attacks upon our embassies in Africa are cited as examples 
of the inability of the federal district courts to adequately cope with 
trials of terrorists. Further, it is argued that a criminal justice 
system which incorporates rehabilitation and reincorporation into 
society as part of the sentencing process is ill-suited to deal with 
those whose zealous religious beliefs idealize martyrdom. I suggest 
that these arguments are not necessarily persuasive. Congress has 
provided tools for prosecutors to deal with classified information in 
criminal trials, notably the Classified Information Procedures Act, 18 
U.S.C. App Sec. 1 et seq. (1980), and the two prior successful 
convictions of al-Qaeda terrorists are indicative that it can be done, 
no matter how problematic for prosecutors the trials may be.
    As to the option of using international tribunals, I concede that 
no existing tribunal has jurisdiction over the terrorists. Neither the 
ad hoc tribunal for the former Yugoslavia, nor the one for Rwanda, 
could prosecute terrorists without the United Nations Security Council 
having to make specific amendments to either of their respective 
charters. The International Criminal Court, a UN sponsored treaty-based 
tribunal, is not yet in existence and, even if a sufficient number of 
states were able to quickly ratify the Rome Treaty, that tribunal has 
only prospective jurisdiction. Lastly, although the United Nations 
Security Council could create yet another ad hoc tribunal for the 
specific purpose of dealing with terrorist acts, any such attempt would 
surely founder because of the inability of the international community 
to agree upon a definition of ``terrorism''--a flaw that greatly 
restricts the feasibility of using any international tribunal for this 
purpose. Thus, international tribunals do not provide us with a 
current, viable forum for prosecuting terrorists.
    The third option, trials by other countries under the 
jurisdictional principle of universality, is not well-suited to the 
United States for policy reasons. I agree with critics of this option 
that America needs to be directly or at least indirectly involved in 
the prosecution because the attack upon our people and our facilities 
occurred within our country and we clearly have the greatest interest 
in prosecuting those responsible for or complicit in the attacks. 
Further, the opportunity for capital punishment, and its arguable 
deterrence value, is greatly diminished when other sovereigns conduct 
the prosecutions within their own countries. This potential choice of 
forum is the least practical.
    Acknowledging that none of the prosecutorial forums is optimal, but 
that the two most feasible are trials in our federal district courts 
and trials by military commission, the President clearly signaled his 
intent on November 13th to use the latter. I suggest that 
this choice may entail costs which outweigh the benefits, notably with 
regard to commissions sitting in this country. I believe we should be 
cognizant of a potential adverse impact upon our international 
credibility, as well as a tarnishing of the image of 50 years of 
military Justice under the UCMJ.
    It was but five years ago that the United States roundly condemned 
the conviction by a military tribunal in Peru of New York native Lori 
Berenson on charges of terrorism. Through official channels, we 
requested that she be retried in a civilian court because of the lack 
of due process afforded her in the tribunal. Our cries of unfairness 
were echoed by United Nations officials who openly criticized Peru's 
anti-terrorism military courts. There seems little difference in the 
measure of due process afforded Berenson in Peru and what is called for 
under the President's military order, and I believe this opens us to a 
charge of hypocrisy from the international community. The force of this 
criticism could be lessened if those who advise the Secretary of 
Defense counsel him to ensure a high level of due process in the 
regulations establishing the commissions, but the charge laid against 
us can never be totally ameliorated. Consequently, I believe our use of 
military commissions may result in a fracturing of the large and 
disparate coalition which has been put together to wage the long-term 
campaign against terrorism worldwide, a campaign which must necessarily 
involve far more than the use of military force. As to my second point, 
my sense is that the American people do not accurately perceive the 
distinction between courts-martial under the military justice system 
and military commissions which could be empaneled under the President's 
order. I have heard it said on radio talk shows that if military 
commissions are good enough for our servicemen and servicewomen, then 
they are certainly good enough for terrorists. Even former Deputy 
Attorney General George Terwilliger, on this past Sunday's news program 
Face the Nation, said that ``there is a fundamental misconception that 
somehow a military court cannot be just. Our own soldiers and airmen 
are subject to military justice on a regular basis. The military can 
provide fair trials.'' This suggests to me that a segment of the 
American people, having perhaps become acquainted with military justice 
through the portrayal of courts-martial on television or in the movies, 
believe that military commissions will generally follow the same rules 
of procedure and modes of proof. This Committee knows that is not so. 
There is a marked contrast in the protections afforded our service 
personnel under the military justice system, and the lack of due 
process in military commissions. To illustrate, there is a guarantee of 
judicial review under the former; that is specifically denied under the 
latter. Although courts-martial may, under certain circumstances be 
closed to the public, the evidentiary rules and burden of proof 
required for conviction are virtually identical to those in our federal 
district courts; that is not the case in military commissions. In other 
words, the two systems have little in common, and this must be made 
clear as the debate on the propriety of using military commissions 
continues.
    In the final analysis, the decision is one for the President to 
make, and he has already indicated the probable path he intends to 
pursue. I believe, however, that hearings such as are being conducted 
by this Committee will allow for a broad and balanced airing of views 
on this issue, not only to hopefully better inform the Members in both 
chambers, but also to give the Administration the benefit of additional 
voices in the debate. This should, and must, be done before the first 
terrorist is brought to trial.
    Mr. Chairman, Senator Hatch and members of the Committee, thank you 
again for inviting me to share my concerns with you. I look forward to 
answering any questions you might have.

    Chairman Leahy. Thank you very much, Professor. I 
appreciate that, and I also appreciate very much you making 
that very needed distinction between these tribunals and our 
well-established--you were a colonel in the military, and you 
know the well-established rules of military tribunals.
    Ms. Martin, thank you very much, and, again, I appreciate 
you spending so much time here with us today. Please go ahead 
and testify.

    STATEMENT OF KATE MARTIN, DIRECTOR, CENTER FOR NATIONAL 
               SECURITY STUDIES, WASHINGTON, D.C.

    Ms. Martin. Thank you, Mr. Chairman, and I thank the 
Committee for the opportunity to appear today, and I 
particularly want to thank the chairman for convening this 
extraordinarily important series of oversight hearings.
    The Government's efforts to identify the perpetrators of 
the terrible attacks on September 11th and to prevent future 
attacks before they occur could not be more crucial. But we 
have become increasingly concerned that, instead of conducting 
a focused and effective law enforcement investigation, the 
Government has turned instead to a number of radical and overly 
broad measures that threaten basic rights without in turn 
providing any increased security.
    While some have cast the terrible situation we find 
ourselves in today as one in which we must decide what 
liberties we are willing to sacrifice for an increased measure 
of safety, I do not believe that is an accurate or helpful 
analysis. Before asking what trade-offs are constitutional, we 
must ask what we gain in security by restricting our civil 
liberties.
    The common thread in the Justice Department's recent 
actions in detaining individuals, providing for eavesdropping, 
and the President's order on military commissions is the 
secrecy and lack of public and congressional participation in 
adopting those measures. It is only by forcing the Government 
to articulate why and how particular restrictions on our 
liberties will contribute to security that we can have any 
guarantee that the steps being taken will, in fact, be 
effective against terrorism.
    The hearing today I believe is the crucial first step in 
that open and public dialogue which to date has been prevented 
by the administration's unilateral actions.
    I want to talk briefly, I think, about the detentions and 
only for a moment about military commissions. As this Committee 
is well aware, in the past couple of months more than 1,000 
people have been detained according to the Justice Department. 
Some 600 people are still in detention. At the same time, law 
enforcement officials have on several occasions been careful to 
state that only a handful of those individuals, maybe 10 or 20, 
have in any way been tied to the hijackers from September 19th 
or other members of Al Qaeda or bin Laden. Hundreds of others 
are currently in jail. While the Department asserts that their 
rights are being respected and that it has complied with all 
applicable constitutional and legal limits, it has until 
yesterday refused to release that information which the public 
and this Committee needs to assure ourselves that that is, in 
fact, the case.
    While we welcome the disclosures of the Attorney General 
yesterday, giving some partial information about the 
individuals who have been detained, we join in Senator 
Feingold's request and demand for a full accounting of everyone 
who has been detained.
    There are certainly numerous press accounts which, if 
accurate, raise serious questions about whether or not 
individuals' rights have been violated in serious and 
unconstitutional ways. Most specifically, it appears that 
perhaps ten, perhaps hundreds of individuals, including United 
States citizens, have been held for weeks, if not months, in 
jail when the FBI and the Government has no information 
connecting them in any way to the September 11th attacks.
    There are examples, some of them I am sure the Committee is 
aware of. Perhaps the most egregious one is the two American 
citizens who were held in jail, a father and a son, one for 
several weeks and one for several months, on charges that they 
possessed suspicious passports. A Federal judge finally had an 
opportunity to look at it, and it turned out that the plastic 
on the passport had split, presumably because of age. The key 
factor, it would appear, in those people spending time in jail 
while the FBI is conducting an investigation appears to be 
their Arabic-sounding name, despite their U.S. citizenship.
    The Justice Department has defended the detentions by 
saying that all the individuals now in custody have been 
charged, either under the criminal law or as immigration 
violations. I think the question that this Committee needs to 
ask and the public needs to be assured about is: On what 
justification are such individuals held in jail before there 
has been a trial convicting them either on a criminal charge or 
having violated the immigration laws?
    What we are especially concerned about that appears to be 
happening is that people who have been arrested are being--
excuse me. The Justice Department has made an effort that when 
people are arrested on either immigration or criminal charges, 
has urged all of the authorities that bail should be denied and 
as a blanket matter has urged that they be kept in jail pending 
trial. That obviously raises serious concerns about 
imprisonment without there being adequate probable cause of a 
crime and without meeting the constitutional standards.
    I just want to mention one thing, if I might. On the 
material witness warrants, Mr. Chertoff said that he was 
prohibited from identifying those individuals who were being 
held. I don't believe Rule 6(e), governing grand jury secrecy, 
says anything about not disclosing the number of individuals 
held on a material witness warrant. I might also mention that 
there has been information disclosed to the press about not 
only the identities of the core suspects, but the evidence 
against them.
    Perhaps in the question period I might have an opportunity 
briefly to discuss military commissions.
    [The prepared statement of Ms. Martin follows:]

   Statement of Kate Martin, Director, Center for National Security 
                                Studies

    Thank you Mr. Chairman and Vice-Chairman for the opportunity to 
testify today on behalf of the Center for National Security Studies. 
The Center is a civil liberties organization, which for 30 years has 
worked to ensure that civil liberties and human rights are not eroded 
in the name of national security. The Center is guided by the 
conviction that our national security must and can be protected without 
undermining the fundamental rights of individuals guaranteed by the 
Bill of Rights. In our work on matters ranging from national security 
surveillance to intelligence oversight, we begin with the premise that 
both national security interests and civil liberties protections must 
be taken seriously and that by doing so, solutions to apparent 
conflicts can often be found without compromising either.
    We commend the Committee for holding this series of oversight 
hearings to examine how the Justice Department can persevere our 
freedoms while defending against terrorism. After the scheduled 
examination of the Department's current initiatives and activities in 
investigatng the September 11 attack, we urge the government to next 
examine how the Department of Justice intends to implement the new 
authorities granted in the USA PATRIOT Act.
    Certainly, there is no greater government responsibility today than 
to work to prevent future terrorist attacks like those on September 11. 
The Attorney General and the FBI Director share the enormous 
responsibility of carrying out an effective investigation to prevent 
more attacks. Of equal importance is Congress' responsibility to 
conduct oversight of that investigation to protect our security and to 
protect the Constitution.
    While some have cast the terrible situation we find ourselves in 
today as one in which we must decide what liberties we are willing to 
sacrifice for an increased measure of safety, I do not believe that is 
an accurate or helpful analysis. Before asking what trade-offs are 
constitutional, we must ask what gain in security is accomplished by 
restrictions on civil liberties. It is only by forcing the Justice 
Department to articulate why and how particular restrictions will 
contribute to security and that we can have assurance that the steps 
being taken will be effective against terrorism. This hearing today is 
the beginning of that essential inquiry.
    Immediately following the September 11 attacks, we, along with more 
than 140 organizations from across the political spectrum called for 
the apprehension and punishment of the perpetrators of those horrors. 
At the same time, we all recognized that we can, as we have in the 
past, in times of war and of peace, reconcile the requirements of 
security with the demands of liberty.
    The government's efforts to identify any perpetrators and to 
prevent future attacks before they occur could not be more crucial. But 
we have become increasingly concerned that instead of a focused and 
effective law enforcement investigation, the government has turned to a 
number of radical and overly broad measures that threaten basic rights 
without providing any increased security. We understand that this 
Committee intends to examine all of them and we welcome your efforts. 
We will address each briefly in turn.
          Lack of Congressional Authorization or Consultation
    A common thread in the recent Justice Department actions is the 
secrecy and lack of congressional consultation with which they have 
been carried out. In detaining more than 1,000 individuals, in adopting 
a policy of eavesdropping on attorney-client communications, and in 
setting up a system of secret military trials and detentions, the 
administration has acted unilaterally without congressional 
participation or even consultation. By considering these actions in 
secret before adopting them, the administration prevented any public 
debate about their effectiveness. The lack of congressional 
notification is especially troubling in light of the administration's 
simultaneous request to the Congress to enact what was described as a 
comprehensive package of new authorities needed to combat terrorism 
passed as the USA PATRIOT Act. The administration's conduct calls into 
question its commitment to respecting the constitutional separation of 
powers and role of the Congress. Indeed, all of these actions would 
enhance the power of the Executive at the expense of the constitutional 
roles of both the Congress and the judiciary.
    In the case of the new wiretapping policy and the military 
commission order, the lack of congressional authorization is fatal to 
the legality of those actions. Only the Congress, not the President, 
may legislate wiretapping standards or authorize military tribunals. 
The administration's edicts are invalid on that ground alone.
    The lack of public discussion has now left us with restrictions on 
our liberties without any increase in our security. Only through an 
open and public dialogue involving the Congress, the Executive, and the 
American people can we find a solution that advances both national 
security and civil liberties. The unwillingness of the government to 
engage in a public or constitutional dialogue, not about the details of 
the investigations, but about the constitutional rules governing that 
investigation has prevented that process. This Committee must now 
remedy that problem.
                    The Dangers of Excessive Secrecy
    In times of crisis, even more than in times of peace, a commitment 
to robust public debate is especially important. This is true for two 
reasons. First, the executive branch is more likely to take actions 
that violate basic civil liberties and thus an alert and informed 
public is necessary to counter-act that dangerous tendency. Second, the 
government is more likely to make effective decisions if there is an 
informed and influential public.
    The government has the right, and indeed the obligation, to keep 
secret information whose disclosure would genuinely harm national 
security, interfere in an investigation, or invade the privacy of 
individuals. However, because public debate requires access to 
government information, the executive branch also has an obligation to 
release as much information as possible and to avoid taking actions 
that would chill essential public debate on national policy issues. 
Regrettably, the government has been seriously deficient on both 
accounts.
    Almost as worrisome as the detentions of aliens since September 11 
is the secrecy and veil of obfuscation that the government has thrown 
around its actions in blatant disregard of its affirmative obligations 
to provide information especially about actions in the criminal justice 
system, its obligation to inform Congress of its actions, and the 
requirements of the Freedom of Information Act (FOIA).
    The Justice Department and the Attorney General have engaged in 
selective leaks of information about the detentions as part of their 
effort to calm the public and suggest that it is making progress in the 
investigation. At the same time, they have refused to provide the 
Congress and the public with the information to which they are 
entitled. Its response to FOIA requests about the detentions shows its 
cavalier disregard of the law. The FBI has responded that no 
information can be disclosed in response to the request despite the 
fact that much information has been in the press, clearly coming from 
the government. The Justice Department, after agreeing that the request 
deserved an expedited response because it involved a ``matter of 
widespread and exceptional media interest in which there exists 
possible questions about the government's integrity which affects pubic 
confidence,'' has failed to provide a substantive response.
    More broadly, the Attorney General has sent the entire bureaucracy 
a clear signal by reversing the directive regarding discretionary 
release of information under FOIA as established by his predecessor. 
Instead of requiring that information be released except when its 
disclosure would result in some harm, Ashcroft has directed that 
information be withheld whenever possible under the statute, regardless 
of whether disclosure would be harmful or violate the public's right to 
know.
    Although the directive cites the September 11 attacks as 
justification, it covers all government information, much of which has 
no national security or law enforcement connection whatsoever. It is 
clearly intended to send the message to the bureaucracy that instead of 
working with the public to share information that is rightfully theirs, 
the government should take advantage of the ambiguities in the law to 
deny information. The result will surely be a less open and less 
accountable government.
    Congress and the courts are our only recourse. We expect to file 
suit for the material we requested under FOIA as soon as possible. We 
will be making other FOIA requests and will file other lawsuits. We are 
also exploring other statutory as well as constitutional bases for 
legal action to compel the release of documents. However, we need the 
Congress. We urge this committee to hold the Justice Department to 
account by demanding information and holding hearings. We urge you to 
make public as much of the information that you believe is in the 
national interest, even if it means acting over the objections of the 
Justice Department.
                           Secret Detentions
    In the first few days after the attacks, some 75 individuals were 
picked up and detained. While the administration sought increased 
authority from the Congress to detain foreign individuals on the 
grounds of national security with no judicial oversight, it picked up 
hundreds more individuals. The Attorney General announced that 480 
individuals had been detained as of September 28; 10 days later another 
135 had been picked up; and in one single week during October, some 150 
individuals were arrested. As of November 5, the Justice Department 
announced that 1,147 people had been detained.
    While trumpeting the numbers of arrests in an apparent effort to 
reassure the public, the Department has refused to provide the most 
basic information about who has been arrested and on what basis. We 
know that the detainees include citizens, legal residents, and, 
according to INS director James Zigler, 185 individuals were being held 
on immigration violations. According to the Attorney General and FBI 
Director, the remaining group includes a small number of individuals 
held on material witness warrants and others held on violations of 
local, state, or federal laws. Apparently none have been charged as 
terrorists, indeed only 10 or 15 are even suspected of being 
terrorists. At this time, we do not have any idea how many have been 
released.
    As the number of secret detentions increased, press reports began 
to appear, which if accurate, raise serious questions as to whether the 
rights of the detainees are being violated. As each successive week has 
brought hundreds more arrests, demands for release of basic information 
have intensified. The unprecedented level of secrecy surrounding the 
extraordinary detention of hundreds of individuals, prompted us, along 
with nearly 40 other civil liberties, human rights, legal, and public 
access organizations to demand release of the detainees' names and the 
charges against them under the FOIA request. The Chair and other 
members of this Committee and of the Congress have also demanded a 
public accounting of the arrests.
    In response, the Department has only stonewalled. Justice 
Department officials have refused to release further information on the 
detentions, and have stopped keeping a record of those detained, 
presumably in order to avoid having to answer questions about who is 
being counted in the tallies.
    Public disclosure of the names of those arrested and the charges 
against them is essential to assure that individual rights are 
respected and to provide public oversight of the conduct and 
effectiveness of this crucial investigation. Public scrutiny of the 
criminal justice system is key to ensuring its lawful and effective 
operation. Democracies governed by the rule of law are distinguished 
from authoritarian societies because in a democracy the public is aware 
of those who have been arrested. Individuals may not be swept off the 
street and their whereabouts kept secret.
    The government has made varying claims to justify this secrecy. 
Ironically, it now claims that it is withholding the names of detained 
individuals in order to protect their privacy. What is needed to ensure 
the protection of the rights of these individuals, who have been jailed 
by the government now worrying about their privacy is what we have 
always relied upon in protecting against government abuses, namely 
public sunshine.
    Likewise, the Department's claim that releasing the names and 
charges could harm the investigation is contradicted by its own 
disclosures. Not only have officials already identified several 
suspected terrorists, but they have also outlined evidence against 
them. The Attorney General himself described the evidence against the 
three individuals whom he believes had prior knowledge of the September 
11 attacks. Finally, the Department has made the astonishing claim that 
because it asked courts to seal some of the proceedings, it is now 
helpless to disclose even the identities of the courts or the 
authorities under which those gag orders were sought.
    While we are not seeking the details of the investigation or an 
outline of the evidence being collected by the FBI, we do urge this 
Committee to secure the release of information crucial to public 
accountability: the names and charges against those who have been 
detained.
    There is every reason to fear that the cloak of secrecy is 
shielding extensive violations of the rights of completely innocent 
individuals. These violations include imprisonment without probable 
cause, denial of the constitutional right to bail, interference with 
the right to counsel, and abusive conditions in detention. We will only 
outline a few examples, but there are many more.
                a. imprisonment without probable cause.
    While the government has admitted that it has evidence of terrorism 
against only a small fraction of the detainees, it has imprisoned 
hundreds of individuals against whom there is no evidence of criminal 
activity. For example, a father and son, both US citizens, were 
arrested as they returned from a business trip in Mexico because their 
passports looked suspicious. The father was released after ten days and 
sent home wearing a leg monitor, but the son spent two more months in 
jail until a federal judge determined that the plastic covering had 
split. The key factor in their arrest appears to be their Arabic 
sounding names. While the Attorney General has announced that 
terrorists will be arrested for spitting on the sidewalk, he has yet to 
explain why innocent Americans will be jailed for doing so.
    In a handful of cases, the Department is using the authority of the 
material witness statute to detain people. We urge this Committee to 
examine carefully the circumstances of those detentions, which are now 
all shrouded in secrecy, and to consider the dangerous ramifications of 
using the material witness statute not to secure testimony but to 
authorize preventive detention.
    There is growing evidence that the FBI has abandoned any effort to 
comply with the constitutional requirement that an individual may only 
be arrested when there is probable cause to believe he is engaged in 
criminal activity. The FBI is now seeking to jail suspicious 
individuals until the agency decides to clear them. The FBI is 
providing a form affidavit, which relies primarily on a recitation of 
the terrible facts of September 11, instead of containing any facts 
about the particular individual evidencing some connection to 
terrorism, much less constituting probable cause. The affidavit simply 
recites that the FBI wishes to make further inquiries.\1\ In the 
meantime, the individual is held in jail.
---------------------------------------------------------------------------
    \1\ While the FBI affidavits are difficult to find, one filed in a 
bail proceeding in immigration court appears to contain the general 
formula. It says:
    ``In the context of this terrorism investigation, the FBI 
identified individuals whose activities warranted further inquiry. When 
such individuals were identified as aliens who were believed to have 
violated their immigration status, the FBI notified in INS. The INS 
detained such aliens under the authority of the Immigration and 
Nationality Act. At this point, the FBI must consider the possibility 
that these aliens are somehow linked to, or may posses knowledge useful 
to the investigation of the terrorist attacks on the World Trade Center 
and the Pentagon. The respondent, Osama Mohammed Bassiouny Elfar, is 
one such individual. . . .
    At the present stage of this vast investigation, the FBI is 
gathering and culling information that may corroborate or diminish our 
current suspicions of the individuals that have been detained. . .In 
the meantime, the FBI had been unable to rule out the possibility that 
respondent is somehow linked to, or possesses the knowledge of the 
terrorist attacks on the World Trade Center and the Pentagon. To 
protect the public, the FBI must exhaust all avenues of investigation 
while ensuring that critical information does not evaporate pending 
further investigation.''
---------------------------------------------------------------------------
             b. denial of the constitutional right to bail.
    The right to be free on bail until trial is a vital part of the 
constitutional presumption of innocent until proven guilty. While 
individuals can be denied bail when there is a substantial risk that 
they would flee or commit acts of violence if released, this 
constitutional standard currently seems to have been abandoned. Instead 
of considering whether a particular individual is likely to flee, the 
Department is attempting to detain all individuals picked up as part of 
the September 11 investigation. If the past few weeks are an example of 
what the future holds, it is likely that individuals charged with 
``spitting on the sidewalk'' may serve more time in jail pre-trial than 
they would if they were found guilty.
    All these circumstances raise serious questions about the 
effectiveness of the current effort. Is the FBI carrying out a focused 
investigation executing the work necessary to identify and detain 
actual terrorists, or is this simply a dragnet, which will only be 
successful by chance. The fact that 1,000, or even 5,000, individuals 
are arrested is no assurance that the truly dangerous ones are among 
them.
          c. violation of the right to consular notification.
    Mohammed Rafiq Butt, a Pakistani citizen who was detained for 
entering the country illegally, died in custody of an apparent heart 
attack on October 23. Pakistani diplomats only learned of Mr. Butt's 
arrest when journalists called the Embassy to ask for a comment on his 
death. Clyde Howard, director of the State Department's Consular 
Notification and Outreach Unit, said, ``We are concerned about these 
failures of notification when they happen to us overseas, so it becomes 
more difficult for us to assert our rights under the Vienna Convention 
if we are not doing a good job in giving the same notification here.'' 
\2\
---------------------------------------------------------------------------
    \2\ John Dually and Wayne Washington, ``Diplomats Fault Lack of US 
Notice on Many Detainees'', The Boston Globe, November 1, 2001.
---------------------------------------------------------------------------
    We urge this Committee to examine whether since September 11, law 
enforcement officials have consistently failed to notify foreign 
governments when their nationals are arrested. US treaty obligations 
require foreign consulates to be so notified.
     d. violation of the right to counsel and the fourth amendment.
    Even before the Justice Department announced its new policy of 
eavesdropping on conversations between detainees and their attorneys, 
there were numerous reports of interference with the right to counsel. 
Many immigration detainees were prevented from finding counsel. The 
administration's ``one call a week'' policy made it difficult for 
detainees to communicate with their families, find lawyers, or even 
know if they had successfully secured representation. There is reason 
to fear that detainees' lawyers have been muzzled by gag orders, or 
simply intimidated into silence with threats of actions organized 
against their clients.
    Under the Justice Department's recently announced policy, solely on 
the Attorney General's say-so, the Department can eavesdrop on the 
privileged attorney-client conversations of persons who have not even 
been charged. Such individuals can be held incommunicado, with their 
activities severely restricted. While others have outlined the clear 
unconstitutionality of this policy, I want to emphasize the equally 
unlawful way in which it was adopted.
    Only weeks before the unilateral announcement of this new policy, 
the Attorney General had come to the Congress seeking a comprehensive 
package of new powers the administration believed were necessary to 
fight terrorism. At no time did the government suggest that any 
amendment was needed to the wiretap statutes authorizing surveillance 
of such privileged conversations. Had it done so, there could have been 
a public debate about whether current law was inadequate in some way. 
Instead, the Attorney General has simply declared that the government 
will suspend the Fourth Amendment requirements of probable cause and 
judicial warrant for wiretapping and substitute his say-so. Such an 
approach shows a lack of respect for both the Bill of Rights and our 
system of divided government.
    I also want to comment on the administration's claim that the 
eavesdropping is acceptable under the Constitution because the FBI 
agents who eavesdrop on privileged conversations will not be involved 
in criminal prosecution of the individual. It appears highly doubtful 
that this will be the reality, given the FBI's description of its 
investigation as a mosaic in which each small piece of information can 
only be understood when contextualized. Even more significantly, it is 
clear that such information could be used against the individual in any 
detention or military commission proceeding authorized by President 
Bush's most recent order.
                       Intimidation of Immigrants
    Many of the recent actions appear to be aimed not so much at 
gathering information about Al Qaeda and its members, but at simply 
intimidating those who have come to visit, do business, or work and 
become Americans. There are myriad reports of individuals who have been 
jailed for weeks because they have overstayed their visas. Usually they 
would have been granted some kind of adjustment allowing them to leave 
the country voluntarily or stay and become law-abiding and productive 
members of our society, but not since the recent terrorist attacks. The 
plan to question 5,000 individuals without knowing anything about any 
specific individual indicating that he or she might have useful 
information will certainly intimidate many into leaving the country. 
This plan will take enormous law enforcement resources and will 
generate many reams of memos; but whether it will produce any useful 
information is open to question. It is urgent that this Committee 
immediately examine whether these actions are no more than attempts to 
intimidate individuals from the Middle East into leaving the country. 
If so, such a policy needs to publicly defended and debated. It is not 
clear what law enforcement or national security purpose is served by 
such a tactic, which presumably will not work on those who have 
actually entered the country ready to die in the order to kill 
Americans. It does, however, erode the trust and confidence of minority 
and immigrant communities and make law enforcement resources otherwise 
unavailable.
  The Order Authorizing Military Commissions and Preventive Detention 
          Violates Separation of Powers and The Bill of Rights
    The constitutional defects of the recent order authorizing secret 
military trials and military detentions are outlined elsewhere. Here, I 
only offer a few observations.

         Individuals currently in detention may be threatened 
        with secret transfers to military custody.

    The broad scope of the order would authorize the President to 
direct that individuals currently held, even if not criminally charged, 
be immediately transferred to secret military custody, even overseas. 
It seems clear that the intent of the order is to authorize such 
transfers in secret and to impose both legal and practical obstacles to 
individuals obtaining any judicial review of such transfers.

         The authorization of military detention of aliens 
        inside the United States on the say-so of the President is an 
        unconstitutional end-run around the provisions of the USA 
        Patriot Act.

    In addition to military commissions for individuals captured 
overseas, the order authorizes detention of aliens inside the United 
States believed by the President to be involved in terrorism. This part 
of the order is a deliberate end-run around the provisions of the USA 
Patriot Act concerning such detentions, which limits the conditions and 
time under which individuals may be detained. The President's Order 
attempts to authorize what the Congress rejected in the first 
administration draft of the anti-terrorism bill. It is a deliberate 
end-run around the limits and restrictions agreed to by the 
administration in negotiating the detention provisions of the Patriot 
Act.

         The military commission order violates separation of 
        powers.

    The administration's unilateral issuance of this order without even 
discussing it with the Congress is the most blatant example of its 
disregard for the explicit text of the Constitution. The Constitution 
gives to the Congress explicit authority over military tribunals.
    Article I specifically vests in the Congress: the power to create 
judicial tribunals ``inferior to the Supreme Court;'' ``To define and 
punish'' Offenses against the Law of Nations; To make Rules concerning 
Captures on Land and Water; and ``To make Rules for the Government and 
Regulation of the land and naval Forces.'' Article I, sec. 8. When the 
Supreme Court approved the use of military commissions in World War II, 
Congress had specifically authorized their use in the Articles of War 
adopted to prosecute the war against Germany and Japan.
    Accordingly, this order violates separation of powers as the 
creation of military commissions has not been authorized by the 
Congress and is outside the President's constitutional powers.

    Individuals accused of war crimes are entitled to fundamental due 
process protections even if tried by military courts.

    Since the Supreme Court approved the use of military commissions to 
try offenses against the laws of war in World War II, the law of war 
and armed conflict has come to include the requirements that even those 
characterized as unlawful combatants accused of war crimes must be 
accorded fundamental due process. Thus, any constitutionally authorized 
military commissions would be bound by the current legal obligations 
assumed by the United States. These would include the United Nations 
charter and the International Covenant of Civil and Political Rights, 
none of which were in existence at the time the Supreme Court approved 
the use of military commissions during World War II.
    We urge the Congress to make clear that such order is not 
authorized and thus unconstitutional. If military trials are deemed 
necessary for individuals captured in Afghanistan or fleeing therefrom, 
the Congress should authorize their use consistent with the 
requirements of due process enshrined in the Constitution and the 
international covenants agreed to by the United States.
    In the meantime, we appeal to the Committee to require the Attorney 
General to immediately notify the Committee of any plans to apply the 
order to any individuals now detained in the United States and to 
inform you of the identities of such individuals and the basis for 
applying the order before doing so.
    We urge the Congress to insure that those accused of even the most 
terrible crimes against humanity be accorded fundamental due process 
because our commitment to accord everyone the protection of the rule of 
law is what in the end distinguishes us from the terrorist who simply 
kill in the name of some greater good.
                               Conclusion
    In the darkest days of the Cold War we found ways to reconcile both 
the requirements for security and those of accountability and due 
process, by taking seriously both interests. No less is required if in 
the long run, we expect to be successful in the fight against 
terrorists, who care nothing for either human liberty or individual 
rights.
    We need to look seriously at how security interests can be served 
while respecting civil liberties and human rights. It is time to give 
serious consideration to whether promoting democracy, justice, and 
human rights will, in the long run, prove to be a powerful weapon 
against terrorism along with law enforcement and military strength. 
Current administration policies assign no weight to respecting civil 
liberties as useful in the fight against terrorism. Only when that is 
done, will we truly be effective in what has been acknowledged to be a 
long and difficult struggle.

    Chairman Leahy. Thank you.
    I would also note for each of the witnesses, obviously we 
are, because of the time, being a little bit tighter on the 
control of the time than normal. But, certainly, you will be 
getting back transcripts of this and anything you want to add 
to the transcript, any one of you, of your own testimony, of 
course, feel free to do that and to make it part of the 
permanent record. This is going to be a series of hearings that 
are going to go on for some time and if individual witnesses 
wish to add to their testimony, they will be able to.
    Professor, thank you very much for being here, and please 
go ahead.

STATEMENT OF NEAL KATYAL, VISITING PROFESSOR, YALE LAW SCHOOL, 
   PROFESSOR OF LAW, GEORGETOWN UNIVERSITY, WASHINGTON, D.C.

    Mr. Katyal. Mr. Chairman, Senator Hatch and members of the 
Committee, in my judgment the President's order for military 
tribunals and the Attorney General's attorney-client regulation 
both contain serious constitutional flaws. Much attention has 
been focused on whether these decisions violate notions of fair 
play, but there is a troubling and different issue. These 
decisions aggressively usurp the role of Congress.
    Of course, all Presidents are tempted to go it alone. 
President Truman seized the steel mills and President Roosevelt 
tried to pack the courts. Yet, our Constitution's structure, as 
Senator Specter reminds us in his eloquent editorial in today's 
New York Times, mandates that fundamental choices such as these 
be made not by one person but by the branches of Government 
working together. Ignoring this tradition charts a dangerous 
course for the future and may jeopardize the criminal 
convictions of the terrorists today.
    Throughout history, there have been times when this country 
has had to dispense with civil trials and other protections. 
Yet, those circumstances have been rare, carefully 
circumscribed, and never unilaterally defined by a single 
person.
    A tremendous danger exists if the power is left in one 
individual to put aside our constitutional traditions when our 
nation is at crisis. The safeguard against the potential for 
this abuse has always been Congress' involvement in a deep 
constitutional sense. The default should be faith in our 
traditions and faith in our procedures.
    The attorney-client regulation was announced with no 
legislative consideration whatsoever. It comes close to 
infringing both Fourth Amendment rights of privacy and the 
Sixth Amendment rights to counsel. Those subject to the rule 
aren't even charged with a crime, for the regulation explicitly 
contemplates use against ``material witnesses.''
    The Government is currently detaining over 1,100 
individuals. On what basis we don't even know. Yet, now it 
asserts the unilateral power to abrogate the freedom between 
attorney and client, a freedom described by our Supreme Court 
as the oldest privilege at common law.
    A client might want to talk to his lawyer about the most 
private matters imaginable--a divorce created, in part, by the 
Government's attention, for example--and can't do privately. 
This is a dramatic and unprecedented aggrandizement of power.
    The decree's constitutionality is particularly in doubt 
when a series of less restrictive alternatives exist, and this 
is particularly true if, as the Justice Department says today, 
the regulation only applies to 16 individuals, a fact that will 
actually backfire on the administration's legal case in the 
future. Such an intrusion into private affairs can only be 
justified by compelling circumstances, and these circumstances 
should be announced by this body, by the Congress, in the form 
of law, not executive decree.
    The Fourth Amendment focuses on reasonableness, and one way 
in which courts assess reasonableness is by looking to 
Congress. When the courts were in conflict over whether the 
courts could conduct certain intelligence surveillance, this 
body and the President compromised in the FISA, the Foreign 
Intelligence Surveillance Act. This Committee stated at that 
time the goal of the legislation was to end the President and 
the Attorney General's practice of disregarding the Bill of 
Rights ``on their own unilateral determination that national 
security justifies it.''
    Moving to the issue of military tribunals, the sweep of the 
order goes far beyond anything that Congress has authorized, 
for it explicitly extends the tribunal's reach to conduct 
unrelated to the September 11 attacks.
    For example, if a Basque separatist tomorrow kills an 
American citizen in Madrid, or a member of the Irish Liberation 
Army threatens the American embassy in London, the military 
tribunal has jurisdiction over both claims. So, too, the 
tribunal may have jurisdiction over a permanent green card-
holder in Montana who tries to hack into the Commerce 
Department.
    There is no conceivable legislative authorization for these 
types of trials, trials that may take place under conditions of 
absolute secrecy. The administration thus sets an extremely 
dangerous precedent. A future President might unilaterally 
declare that America is in a war on drugs and decide to place 
certain narcotics traffickers in secret military trials.
    Imagine another President who hates guns. That President 
might say the threat posed by guns is so significant that 
monitoring of private conversations between attorneys and gun 
dealers, and monitoring of conversations between attorneys and 
gun purchasers, is required, pointing to the precedent set by 
this administration.
    Now, these examples might seem unbelievable to you, but 
they are much smaller steps than the one the administration is 
now taking when one compares what previous administrations have 
done to what the present administration claims it can do today.
    It is therefore my hope that this Committee will use its 
authority to impress upon the administration that its decrees 
have serious constitutional problems and secure a promise from 
the President not to use military courts, particularly in 
America, and not to use attorney-client monitoring until this 
body so authorizes them. This Committee could then immediately 
commence hearings to determine whether those policies are 
appropriate and, if so, how they should be circumscribed, just 
as it did with the USA PATRIOT bill.
    In conclusion, like all Americans, I believe the 
administration is trying, in good faith, to do the best it can, 
but that is part of the point. Our constitutional design can't 
leave these choices to one man, however well-intentioned and 
wise he may be. We don't live in a monarchy.
    [The prepared statement of Mr. Katyal follows:]

   Statement of Neal Katyal, Professor of Law, Georgetown University

                              Introduction
    Thank you, Chairman Leahy and members of the Committee, for 
inviting me here today to discuss the topic of preserving our freedoms 
while defending against terrorism. In particular, I will focus my 
remarks on the constitutionality of the President's recent Order 
regarding military tribunals and Attorney General Order No. 2529-2001, 
which permits the Justice Department to monitor communications between 
attorneys and their clients under certain circumstances. In my 
judgment, both of these policies usurp the power of Congress. Our 
Constitution's framework, from top to bottom, evinces a strong 
structural preference that decisions of this magnitude not be made by 
one person. Our Founders understood the temptation that a single person 
would have when given unbridled power, an understanding substantiated 
this century when President Franklin Roosevelt tried to pack the courts 
and President Truman attempted to seize the steel mills. The current 
course of conduct is an unprecedented aggrandizement of power, one that 
not only threatens the constitutional prerogatives of this body but 
also risks jeopardizing the criminal convictions of those responsible 
for the September 11 attacks.
    At the outset, let me be clear about what I am not saying: I cannot 
say that either of these policies, if crafted correctly and 
appropriately circumscribed, would be unconstitutional. The policies 
come close to the constitutional line, but national security in some 
instances may compel the country to create military tribunals or to 
monitor conversations between attorneys and clients. The problem today 
is that the Executive Branch has not made this case, either to this 
body or to the country. As bystanders, it is impossible to know whether 
military necessity requires the measures taken by the Administration. 
Many terrible things have been done in the name of national security--
but many terrible disasters have also been averted through concerted 
efforts by our law enforcement agents and intelligence community. The 
tough issue is how to strike a balance.
    Our Constitution commits this tough issue not to a single person, 
but to our branches of government working together. Throughout history, 
there have been times when this country has had to dispense with civil 
trials, with other protections in the Bill of Rights, and with the 
rules of evidence. Those circumstances have been rare, carefully 
circumscribed, and never unilaterally defined by a single person. A 
tremendous danger exists if the power is left in one individual to put 
aside our constitutional traditions and protections when he decides the 
nation is in a time of crisis. The safeguard against the potential for 
the abuse of military trials has always been Congress' involvement, in 
a deep constitutional sense.
    As I will explain, the sweep of the Military Order goes far beyond 
anything Congress has authorized, for it explicitly extends the 
tribunals' reach to conduct unrelated to the September 11 attacks. For 
example, if a Basque Separatist tomorrow kills an American citizen in 
Madrid, or a member of the Irish Liberation Army threatens the American 
embassy in London, the military tribunal has jurisdiction over both 
persons. So too, the tribunal has jurisdiction over a permanent green 
card holder in Montana who tries to hack into the Commerce Department, 
thus disregarding years of legislative consideration over the computer 
crimes statutes. There is no conceivable statutory warrant for such 
trials, trials that may take place under conditions of absolute 
secrecy. At most, the reach of a military tribunal can reach a theater 
of war, not Spain, Great Britain, Montana, or the range of other 
locations not currently in armed conflict.
    The Military Order thus sets an extremely dangerous precedent. A 
future President might unilaterally declare that America is in a ``War 
on Drugs,'' and decide to place certain narcotics traffickers in 
military trials. A President might say that some prospective threat is 
``the moral equivalent of war'' and set up military tribunals to 
counter that threat as well. Some of these decisions might be entirely 
justified given the particular facts at issue. But they are the sorts 
of decisions that cannot be made by one man alone. These hypotheticals 
are much smaller steps than the one the Administration is now taking. 
The Administration's Military Order is such a dramatic extension of the 
concept of military tribunals, when compared to the predecessors in 
American history, that these other steps appear not only plausible, but 
even likely, down the road.
    Because the Military Order strays well beyond what is 
constitutionally permissible, this Committee should inform the White 
House of the serious constitutional concerns involved in the 
President's unilateral Military Order. It should ask the President not 
to use the tribunals until necessary authorizing legislation is passed, 
and should immediately commence hearings to determine whether military 
tribunals are appropriate and, if so, how they should be constituted. 
Without legislation, however, the use of a military tribunals raises 
serious constitutional concerns, difficulties that may even lead to 
reversal of criminal convictions.
                           The Military Order
    The jurisdiction of the military tribunal reaches any suspected 
terrorist or person helping such an individual, whether or not the 
suspect is connected to Al Qaeda and the September 11 attacks. That 
individual can be a permanent resident alien, thus potentially applying 
to millions of American residents. The order explicitly permits 
tribunals to be set up not simply in Afghanistan, but rather they will 
``sit at any time and any place''--including the continental United 
States. Sec. 4(c)(1); see also Sec. 3(a), Sec. 7(d). The order 
authorizes punishment up to ``life imprisonment or death.'' Sec. 4(a). 
Both conviction and sentencing (including for death) is determined when 
two-thirds of a military tribunal agree. At the trial, federal rules of 
evidence will not apply, instead evidence can be admitted if it has 
``probative value to a reasonable person.'' Sec. 4(c)(3). Grand jury 
indictment and presentment will be eliminated, so too will a jury 
trial. The members of the military tribunal will lack the insulation of 
Article III judges, being dependent on their superiors for promotions. 
The Order also strongly suggests that classified information will not 
be made available to defendants, even though such material may be used 
to convict them or may be significantly exculpatory. See Sec. 4(c)(4); 
Sec. 7(a)(1). The Order further claims that defendants ``shall not be 
privileged to seek any remedy or maintain any proceeding. . .in any 
court of the United States, or any State thereof.'' Sec. 7(b). And most 
damaging: the tribunals may operate in secret, without any publicity to 
check their abuses.
    In short, these military tribunals will lack most of the safeguards 
Americans take for granted, safeguards that the American government 
routinely insists upon for its citizens, either here or when they are 
accused of a crime overseas. The Constitution generally requires: 1) a 
trial by Jury, U.S. Const., Art III, Sec. 2 (``The Trial of all Crimes, 
except in Cases of Impeachment, shall be by Jury''); 2) that the jury 
trial be a public one, U.S. Const., Am. VI (``In all criminal 
prosecutions, the accused shall enjoy the right to a speedy and public 
trial, by an impartial jury. . .''); 3) those accused the right to 
confront witnesses and subpoena defense witnesses, Id. (``to be 
confronted with the witnesses against him; to have compulsory process 
for obtaining witnesses in his favor''); 4) proof beyond a ``reasonable 
doubt'' for criminal convictions in general, and detailed procedural 
protections to insure accuracy before the death penalty is imposed; and 
5) indictment by a grand jury, U.S. Const., Am. V (``No person shall be 
held to answer for a capital, or otherwise infamous crime, unless on a 
presentment or indictment of a Grand Jury, except in cases arising in 
the land or naval forces, or in the Militia, when in actual service in 
time of War or public danger''). These constitutional guarantees may be 
found inapplicable at times,\1\ but much caution is warranted before 
making such a finding. Such findings should be made carefully, and not 
by a single person in a secretive way.
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    \1\ E.g., Johnson v. Eisentrager, 339 U.S. 763 (1950).
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 The Structure of the Constitution Evinces a Strong Preference Against 
                     This Unilateral Military Order
    The American colonists, who wrote our Declaration of Independence 
penned among their charges against the King, first, ``He has affected 
to render the Military independent of and superior to the Civil 
Power'',\2\ second, ``For depriving us, in many Cases, of the Benefits 
of Trial by Jury,'' \3\ and third, that George III had ``made Judges 
dependent on his Will alone, for the Tenure of their Offices, and the 
Amount and Payment of their Salaries.'' It was no accident that the 
Framers established three branches of government in the wake of George 
III's reign. A Congress to write the laws, an Executive Branch to 
enforce them, and a Judicial Branch to interpret them. Consider how 
markedly the Order establishing the military tribunal departs from this 
constitutional scheme. This Congress has not been asked to create a 
military tribunal. The Order attempts to strip the Judicial Branch of 
much or all of its authority to review the decisions taken by the 
Executive Branch. And the judges are not ``judges'' as civilians know 
them, but rather officials who are part of the Executive Branch. The 
Executive Branch is acting as lawmaker, law enforcer, and judge. The 
premise of the Military Order is to bar involvement by any other 
branch, at every point. This is exactly what James Madison warned 
against when he wrote ``The accumulation of all powers legislative, 
executive and judiciary in the same hands, whether of one, a few or 
many, and whether hereditary, self appointed, or elective, may justly 
be pronounced the very definition of tyranny.'' Federalist No. 47 
(Cooke ed., 1961), at 324.
---------------------------------------------------------------------------
    \2\ E.g., Laird v. Tatum, 408 U.S. 1, 19(1972) (Douglas, J., 
dissenting) (finding that this clause restricts the power of the 
military); Reid v. Covert, 354 U.S. 1, 29 (1957); Bissonette v. Haig 
776 F.2d 1384, 1387 (8th Cir. 1985).
    \3\ See, e.g., Neder v. United States, 527 U.S. 1, 31 (1999) 
(Scalia, J., concurring in part and dissenting in part) (stating that 
this clause restricts the ability of the government to limit jury 
trials); Parkland Hosiery Co. v. Shore, 439 U.S. 322, 341 n.3 (1979) 
(Rehnquist, J., dissenting); Duncan v. Louisiana, 391 U.S. 145, 152 
(1968); United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 n.9 
(1955).
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    The issues raised by the Military Order concern not only today, but 
tomorrow. You can already hear how our treatment of the Nazi saboteurs 
in 1942 has become the guidepost for our treatment of individuals 
today. What will the present course of conduct mean for situations down 
the road? Once the President's power to set up military tribunals is 
untethered to the locality of war or explicit Congressional 
authorization, and given to the President by dint of the office he 
holds, there is nothing to stop future Presidents from using these 
tribunals in all sorts of ways. In this respect, it is important to 
underscore that the precedent the Bush administration seeks to 
revitalize, the Nazi saboteur case of Ex Parte Quirin, 317 U.S. 1, 20, 
37-38 (1942), explicitly goes so far as to permit military tribunals to 
be used against American citizens. We must be extraordinarily careful 
when revitalizing an old and troubling court decision, for doing so 
will set new precedent for future Presidents that can come back to 
haunt citizens and aliens alike. Our Constitution limits the power of 
one person to set this sort of destructive precedent. If the exigencies 
of the situation demand it, the Congress can of course authorize 
military tribunals or attorney/client monitoring, just as it expanded 
law-enforcement powers in the USA PATRIOT Act, Pub. L. No 107-56, 115 
Stat. 272 (2001).
    In past circumstances, military tribunals have been set up only 
when Congress had declared war or had authorized such tribunals. It is 
often asked what purpose the Declaration of War Clause in the 
Constitution serves. We know it is not about initiation of troops on 
foreign soil, Presidents have done that for time immemorial without 
such a declaration by Congress. But one thing, among others, a 
declaration of war offers is to establish the parameters for 
Presidential action. By declaring war, the Congress is stating that the 
President should receive additional powers in times of military 
necessity. A declaration of war serves to confine the circumstances in 
which a military tribunal can be used, and it also serves to limit the 
tribunal's jurisdiction to a finite period of time. As Justice Jackson 
put it,

        Nothing in our Constitution is plainer than that a declaration 
        of a war is entrusted only to Congress. Of course, a state of 
        war may in fact exist without a formal declaration. But no 
        doctrine that the Court could promulgate would seem to me more 
        sinister and alarming than that a President whose conduct of 
        foreign affairs is so largely uncontrolled, and often even is 
        unknown, can vastly enlarge his mastery over the internal 
        affairs of the country by his own commitment of the Nation's 
        armed forces to some foreign venture. . . .

    Youngstown v. Sawyer, 343 U.S. 579, 642 (Jackson, J., 
concurring).\4\ Just as this body feared that the wide-ranging law 
enforcement powers authorized in the USA PATRIOT Act might be in 
existence for too long a time and therefore imposed a sunset clause, 
see Sec. 224, so too a declaration of war restricts the duration and 
scope of military jurisdiction. No such confinement exists in the 
Military Order.
---------------------------------------------------------------------------
    \4\ See also Youngstown, 343 U.S. 579, 612 (1952) (Frankfurter, J., 
concurring) (``In this case, reliance on the powers that flow from 
declared war has been commendably disclaimed by the Solicitor 
General'').
---------------------------------------------------------------------------
    A declaration of war, however, is not the only way for this body to 
provide its assent to military tribunals. Congress can, through 
ordinary legislation, authorize them, and, if appropriate, limit them. 
If it were to do so, the constitutional footing of the tribunals would 
be far stronger. The current unilateral action taken by the Bush 
Administration threatens to result in the release of those subject to 
the Military Order. Without sufficient approval by Congress, the 
Executive Branch has set up an easy constitutional challenge to the 
existence of the tribunals. There is no good reason why criminal 
convictions should be jeopardized in this way. The Executive should 
make his case to Congress, and let Congress decide how it wants to 
proceed. The failure to do so may be read by courts to imply that 
reasons other than national security undergird his decision. Should 
this body authorize such trials, by contrast, it would be read by 
courts as extremely important indicia about the seriousness of the 
threat.\5\
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    \5\ Naturally, if the subject of the tribunal is a major figure 
like Osama Bin Laden, courts may be unlikely to void a conviction on 
any ground. But these tribunals aren't being consider for Bin Laden 
alone, but also for the more minor players. In those cases, the risk is 
significant that a court will overturn a conviction because these 
tribunals are not constitutionally authorized. Should the courts 
instead uphold such unconstitutionally created tribunals, Americans 
will then be left with a dangerous precedent that can be used to 
undermine constitutional guarantees in other situations. Consider 
Justice Jackson's thoughts in his Korematsu dissent:
    [A] judicial construction of the due process clause that will 
sustain this order is a far more subtle blow to liberty than the 
promulgation of the order itself. A military order, however 
unconstitutional, is not apt to last longer than the military 
emergency. . . .But one a judicial opinion rationalizes such an order 
to show that it conforms to the Constitution. . .the Court for all time 
has validated the principle of racial discrimination in criminal 
procedure and of transplanting American citizens. The principle then 
lies about like a loaded weapon. . . .A military commander may overstep 
the bounds of constitutionality, and it is an incident. But if we 
review and approve, that passing incident becomes the doctrine of the 
Constitution. There it has a generative power of its own, and all that 
it creates will be in its own image. Korematsu v. United States, 323 
U.S. 214, 245-46 (1944) (Jackson, J., dissenting). Precisely because 
courts are not equipped to assess the national security implications of 
various measures, this body has a vital role to play in balancing the 
national security against our constitutional tradition of individual 
liberties.
---------------------------------------------------------------------------
 The Nazi Saboteur Case, Ex Parte Quirin, Is Not Appropriate Precedent
    The Administration has repeatedly pointed to the fact that 
President Roosevelt issued an order permitting the military trial of 
eight Nazi saboteurs. The Supreme Court upheld the constitutionality of 
the military tribunals in the Quirin case, but did so in a way that 
militates against, not for, the constitutionality of the present 
Military Order.
    In Quirin, formal war had been declared by the Congress. The 
Supreme Court opinion is rife with references to this legislative 
authorization for the tribunals. E.g., 317 U.S., at 26 (``The 
Constitution thus invests the President, as Commander in Chief, with 
the power to wage war which Congress has declared'') (emphasis added); 
Id., at 25 (``But the detention and trial of petitioners--ordered by 
the President in the declared exercise of his powers as Commander in 
Chief of the Army in time of war and of grave public danger--are not to 
be set aside by the courts without the clear conviction that they are 
in conflict with the Constitution or laws of Congress constitutionally 
enacted'') (emphasis added); Id., at 35 (stating that ``those who 
during time of war pass surreptiously from enemy territory into are 
own. . .have the status of unlawful combatants punishable as such by 
military commission'') (emphasis added); Id., at 42 (``it has never 
been suggested in the very extensive literature of the subject that an 
alien spy, in time of war, could not be tried by a military tribunal 
without a jury'') (emphasis added). What's more, the Court, found that 
two portions of legislation, the Articles of War, 10 U.S.C. Sec. 1471-
1593, and the Espionage Act of 1917, 50 U.S.C. Sec. 38, had recognized 
the validity of military tribunals in times ``of war.'' Quirin, 317 
U.S. at 26-27. But applicable legislation here is lacking.\6\ Indeed, 
the Quirin Court explicitly reserved the question of the President's 
unilateral power: ``It is unnecessary for present purposes to determine 
to what extent the President as Commander in Chief has constitutional 
power to create military commissions without the support of 
Congressional legislation. For here Congress has authorized trial of 
offenses against the law of war before such commissions.'' Id., at 
29.\7\
---------------------------------------------------------------------------
    \6\ The Articles of War appeared at 10 U.S.C. Sec. Sec. 1471-1593 
(1940) but was later replaced by the Uniform Code of Military Justice, 
10 U.S.C. Sec. Sec. 801 et seq., which preserves the recognition of the 
military commissions as having concurrent jurisdiction with the courts-
martial when authorized by statute or when trying those who violate the 
law of war. 10 U.S.C. Sec. 821. Congress's authority here arises out of 
Article I, Sec. 8, cl. 10 of the United States Constitution which 
confers power upon the Congress to ``define and punish. . .Offenses 
against the Law of Nations. . .'' The common law of war is a subset of 
the law of nations. See In re Yamashita, 327 U.S. 1, 7 (1946).
    \7\ It is notable that the some of the main proponents of military 
tribunals for terrorists have noted that affirmative Congressional 
authorization is necessary. See Spencer J. Crona & Neal A. Richardson, 
Justice for War Criminals of Invisible Armies: A New Legal and Military 
Approach to Terrorism, 21 Ok. City. L. Rev. 349, 398-99 (1996) (stating 
that the tension between Quirin and Milligan ``can be resolved simply 
by Congress declaring terrorism to be a form of unlawful belligerency, 
from which ordinary law no longer secures either public safety or 
private rights, and further declaring terrorists to be enemy armed 
forces''); id., at 377 (discussing what ``Congressional authorization 
for the use of military means against terrorism'' should provide in 
order to authorize the President ``to establish a military 
commission'').
---------------------------------------------------------------------------
    As I will discuss in detail in a moment, it cannot be maintained 
that this body has acted comparably with respect to the September 11 
attacks. Congress has not declared war. Congress has not stated that 
the laws of war are applicable to terrorists or that military tribunals 
are appropriate. It is of course within Congress' prerogative to make 
these statements, and to have them acted upon by the Executive Branch 
in its discretion, and later interpreted by the courts. But without a 
clear statement by Congress, it is a very dangerous precedent to permit 
the Executive Branch to unilaterally make such a decision. The Quirin 
case does not go nearly as far as supporters of the tribunals wish, 
indeed, it confirms the simple constitutional fact that Congress, not 
the President, is responsible for setting up these tribunals.
    Furthermore, the Quirin case took place at a time when Americans 
were in a full-scale world war, where the exigencies of the situation 
demanded a quick result. See Quirin, 317 U.S., at 39 (stating that 
military tribunals ``in the natural course of events are usually called 
upon to function under conditions precluding resort to such procedures 
[as trial by jury]''). Quirin, just as the Revolutionary War, the War 
of 1812, and the Civil War, were all circumstances in which there was 
total war in the homeland, with large numbers of enemy troops as 
occupants. There was a real danger in each that America might lose. The 
Administration today, by contrast, has not made the case, or even 
attempted to do so, that the circumstances are comparable. This body 
might of course so find, and that would go a long way towards removing 
the constitutional objections. Proportionality is an endemic feature of 
our government, and deprivations of individual rights that are 
proportional to the threat presented will often survive constitutional 
scrutiny. In this case, however, military tribunals cannot be said to 
be an automatically proportionate response to a threat. If the 
Administration believes that they are, it should, as other Presidents 
have done, ask the Congress for greater authority due to the nature of 
the threat, not decide as much on its own.
    President Roosevelt's order also strictly circumscribed the 
military tribunal's jurisdiction to cases involving ``sabotage, 
espionage, hostile or warlike acts, or violations of the law of war.'' 
Roosevelt Proclamation, 56 Stat. 1964, 1964 (July 2, 1942); Quirin, 317 
U.S. at 30 (finding that prosecution did not violate prohibition on 
federal common law of crime because Congress explicitly incorporated 
the law of war into the jurisdiction for military tribunals). The 
recent Military Order, by contrast, brings millions of green-card 
holders and others into its jurisdiction. The Military Order extends 
jurisdiction to ``the laws of war and other applicable laws.'' 
Sec. 1(e) (emphasis added); see also Sec. 4(a) (individuals will be 
``tried by military commission for any and all offenses triable by 
military commissions'') (emphasis added).
    These distinctions are all made against the backdrop of a case that 
said that its holding was an extremely limited one. The Court 
explicitly said that it had ``no occasion now to define with meticulous 
care the ultimate boundaries of the jurisdiction of military 
tribunals,'' and that ``[w]e hold only that those particular acts 
constitute an offense against the law of war which the Constitution 
authorizes to be tried by military commission.'' Quirin, 317 U.S., at 
45-46. Indeed, Quirin recognized that the use of tribunals may be 
conditioned by the Sixth Amendment.\8\
---------------------------------------------------------------------------
    \8\ We may assume that there are acts regarded in other countries, 
or by some writers on international law, as offenses against the law of 
war which would not be triable by military tribunal here, either 
because they are not recognized by our courts as violations of the law 
of war or because they are of that class of offenses constitutionally 
triable only by a jury. It was upon such grounds that the Court denied 
the right to proceed by military tribunal in Ex parte Milligan, 
supra.'' Id., at 29
---------------------------------------------------------------------------
    The Nazi saboteur case, as Justice Frankfurter later called it, is 
not ``a happy precedent.'' Danielsky, The Saboteurs' Case, 1 J. S. Ct. 
Hist. 61, 80 (1996) (quoting memorandum from Justice Frankfurter).\9\ 
The real reason President Roosevelt authorized these military tribunals 
was to keep evidence of the FBI's bungling of the case secret. One of 
the saboteurs, George Dasch, had informed the FBI of the plot upon his 
arrival in the United States, and the FBI dismissed his story as a 
``crank call.'' Later, the saboteur went to Washington, checked into 
the Mayflower Hotel, and told his story in person to the FBI. The FBI 
still did not believe him. It was only after he pulled $80,000 in cash 
out of his briefcase that the government took him seriously. With 
Dasch's help, the government arrested the other saboteurs. Yet the 
government put out press releases suggesting that it was the FBI's 
diligence that resulted in the arrests.\10\ ``This was the beginning of 
government control on information about the Saboteurs' Case and the 
government's successful use of the case for propaganda purposes.'' 
Danielsky, supra, at 65.
---------------------------------------------------------------------------
    \9\ The private papers of the Justices reveal that Chief Justice 
Stone struggled to find a way to claim that Congress had authorized the 
tribunals, and his answer appears dubious. ``Stone answered it uneasily 
by interpreting a provision in Article of War 15. . . .Thus Congress, 
he said, in enacting Article 15, had adopted the law of war as a system 
of common law for military commissions. To arrive at this 
interpretation, Stone ignored the legislative history of Article 15. . 
.He also ignored the petitioners' argument that it was settled doctrine 
that there is no federal common law of crime. Finally, he ignored the 
constitutional problems raised by his interpretation.'' Danielsky, 
supra, at 73. See also id., at 76 (quoting Justice Black's memorandum 
on the case, which stated that I ``seriously question whether Congress 
could constitutionally confer jurisdiction to try all such violations 
before military tribunals. In this case I want to go not further than 
to declare that these particular defendants are subject to the 
jurisdiction of a military tribunal because of the circumstances. . 
.'').
    \10\ Attorney General Biddle stated that as a result of the 
secrecy, ``it was generally concluded that a particularly brilliant FBI 
agent, probably attending the school in sabotage where the eight had 
been trained, had been able to get on the inside. . .''Danielsky, 
supra, at 65. Biddle insisted on absolute secrecy, Secretary of War 
Stimson later wrote in his diary, because of particular evidence that 
was likely to come out at a public trial. This evidence included 
Dasch's cooperation, the FBI's ignoring of Dasch's phone call, and the 
delay in reporting discovery of the saboteur's landing. Id., at 66.
---------------------------------------------------------------------------
    Finally, even if one is left believing the Quirin case provides 
some judicial precedent in favor of the present military order, this 
Body is by no means compelled to believe that this judicial decision is 
the last word on what is constitutional. After all, two years after 
Quirin, the same Supreme Court upheld the internment of Japanese 
Americans during World War II in the infamous Korematsu case, 323 U.S. 
214 (1944). Korematsu demonstrates that judges will sometimes bend over 
backwards to defer to a claim of military necessity. Judges are 
generalists and not particularly suited to evaluating claims of 
military necessity. For that reason, judicial precedents are not always 
a helpful guide in determining the meaning of the Constitution, for 
their determinations are made under traditions that sometimes under 
enforce certain constitutional rights. See Sager, Fair Measure: The 
Legal Status of Under enforced Constitutional Norms, 91 Harv. L. Rev. 
1212 (1978). This body, by contrast, has the security clearances and 
the expertise to scrutinize and evaluate claims of military necessity 
in light of its commitment to the Constitution, see U.S. Const., Art. 
VI [2]. This is particularly the case here, for the Constitution's 
meaning has evolved in several ways since 1942, not only with respect 
to equality, but particularly with respect to the treatment of criminal 
defendants and conceptions of due process. See Katyal, Legislative 
Constitutional Interpretation, 50 Duke L.J. 1335, 1346-59.
    In sum, while the natural tendency is to look to the Quirin case, 
Quirin is only a narrow (and inapplicable) exception to the general 
presumption against military trials in this nation. What's more, Quirin 
was decided before the due process revolution in the federal courts, 
which took place only in the 1960s. It is not even clear that the 
limited holding in Quirin exists today.
                       Other Applicable Precedent
    In circumstances that echo some of today's more far reaching 
provisions, a military commission tried a group of men for conspiracy 
against the United States in 1864. Ex Parte Milligan, 71 U.S. 2, 120 
(1866). Milligan sought a writ of habeas corpus, arguing that a 
military court could not impose sentence on civilians who were not in a 
theater of war. Several features of the opinion are relevant. The Court 
disagreed with the government's claim that Constitutional rights did 
not operate in wartime, explaining the reach of the Fourth, Fifth, and 
Sixth Amendments, and stating that the founders of the Constitution

        foresaw that troublous times would arise, when rules and people 
        would become restive under restraint. . .and that the 
        principles of constitutional liberty would be in peril. . . 
        .The Constitution of the United States is the law for rulers 
        and people, equally in war and peace, and covers with the 
        shield of its protection all classes of men, at all times, and 
        under all circumstances.''

    Milligan, 71 U.S., at 120. see also William H. Rehnquist, All the 
Laws But One: Civil Liberties in Wartime 137 (1998) (``The Milligan 
decision is justly celebrated for its rejection of the government's 
position that the Bill of Rights has no application in wartime. It 
would have been a sounder decision, and much more widely approved at 
the time, had it not gone out of its way to declare that Congress had 
no authority to do that which it never tried to do.'')
    Milligan went on to hold that when courts are closed due to war, 
then martial law may be justified in limited circumstances:

    If, in foreign invasion or civil war, the courts are actually 
closed, and it is impossible to administer criminal justice according 
to law, then, on the theater of active military operations, where war 
really prevails, there is a necessity. . .as no power is left but the 
military.. . .As necessity creates the rule, so it limits its duration; 
for, if this government is continued after the courts are reinstated, 
it is a gross distortion of power. Martial rule can never exist where 
courts are open, and in the proper and unobstructed exercise of their 
jurisdiction. It is also confined to the locality of actual war. 
Because, during the [Civil War] it could have been enforced in 
Virginia, where the national authority was overturned and the courts 
driven out, it does not follow that it should obtain in Indiana, where 
that authority was never disputed, and justice was always administered.

    Milligan, 71 U.S., at 127. This part of Milligan was distinguished 
in Quirin, but only on the unique facts of the case, for the Quirin 
defendants were charged with violating the Law of War after a declared 
war and were charged in the locality of the actual war. Under the 
still-standing Milligan rule, martial law might have been appropriate 
in New York City in the days immediately following the World Trade 
Center attacks, when Foley Square was closed and the Southern District 
of New York was not operating as usual. Military tribunals could not 
exist in other states, however, and would cease in New York after the 
federal courts became operational. While Milligan states the general 
rule, Quirin at most provides an extremely limited exception to it.
    The five Justices in Milligan's majority went so far as to prevent 
military tribunals from being used even when explicitly authorized by 
Congress. Their decision provoked controversy, leading Chief Justice 
Chase to author a partial dissent (joined by three other Justices). 
Chief Justice Chase believed that the laws of Congress did not 
authorize the use of military tribunals, and therefore joined the 
majority opinion in part. Milligan, 71 U.S., at 136. This opinion is 
notable because it underscores the power of Congress to authorize these 
tribunals:

        We think that Congress had power, though not exercised, to 
        authorize the military commission which was held in Indiana. . 
        . .
        Congress has the power not only to raise and support and govern 
        armies but to declare war. It has, therefore, the power to 
        provide by law for carrying on war. This power necessarily 
        extends to all legislation essential to the prosecution of war 
        with vigor and success. . .. Congress cannot direct the conduct 
        of campaigns, nor can the President or any commander under him, 
        without the sanction of Congress, institute tribunals for the 
        trial and punishment of offenses, either of soldiers or 
        civilians, unless in cases of a controlling necessity, which 
        justifies what it compels, or at least insures acts of 
        indemnity from the justice of the legislature.
        We by no means assert that Congress can establish and apply the 
        laws of war where no war had been declared or exists.
        . . . .it is within the power of Congress to determine in what 
        states or districts such great and imminent public danger 
        exists as justifies the authorization of military tribunals.

    Id., at 137-40; see also Id., at 122 (majority op.) (``One of the 
plainest constitutional provisions was, therefore, infringed when 
Milligan was tried by a court not ordained and established by Congress, 
and not composed of judges appointed during good behavior'').\11\ Under 
either rule in Milligan, the majority rule or Chief Justice Chase's 
dissent, the present Military Order fails. It lacks basic 
constitutional protections, and has not been authorized by Congress.
---------------------------------------------------------------------------
    \11\ More recent military precedent also suggests that the civil 
war was similar to a declared war, and that charges could be brought in 
the locality of war. See Opinion of Patrick T. Henry, Assistant 
Secretary, Department of the Army, March 6, 2000, available at http://
www.surratt.org/documents/muddarmy.pdf (``One might content that the 
facts Ex Parte Quirinare distinguishable from those in the Mudd Case 
[regarding the Lincoln assassination] because the assassination of 
President Lincoln did not occur during a time of formally declared war. 
However, the state of hostilities we now call the Civil Was was not 
legally declared at an end until 1866. At the time of President 
Lincoln's assassination, Washington D.C. served as the nation's 
military headquarters and was a fortified city. It remained under 
martial law for the duration of the Civil War. . .Soldiers, for the 
most part, conducted civil policing in and around the city. Under these 
circumstances, conditions tantamount to a state of war existed at the 
time of President Lincoln's assassination'').
---------------------------------------------------------------------------
    In another World War II case, the Court faced the issue of the 
Executive's authority to order military tribunals to try violators of 
the law of war. In In re Yamashita, 327 U.S. 1 (1946), General 
Yamashita of the Imperial Japanese Army was tried and convicted by a 
military commission ordered under the President's authority.\12\ The 
Court held that the trial and punishment of enemies who violate the law 
of war is ``an exercise of the authority sanctioned by Congress, to 
administer the system of military justice recognized by the law of war. 
That sanction is without qualification as to the exercise of this 
authority so long as a state of war exists--from its declaration until 
peace is proclaimed.'' Id., at 11-12 (emphasis added).\13\
---------------------------------------------------------------------------
    \12\ In this case, the President had proclaimed that ``enemy 
belligerents who, during time of war, enter the United States, or any 
territory or possession thereof, and who violate the law of war, should 
be subject to the law of war and to the jurisdiction of military 
tribunals.'' 327 U.S., at 10. This Presidential order was specifically 
predicated on a state of war existing between two belligerent powers.
    \13\ Yamashita also recognized that the very existence of these 
commissions grew out of Congress's War Power and not any Executive 
authority. Id. at 12-13 (noting ``[t]he war power, from which the 
[military] commission derives its existence'' and that the military 
tribunals had ``been authorized by the political branch of the 
Government'').
---------------------------------------------------------------------------
    The Supreme Court dealt with the use of military commissions again 
in Madsen v. Kinsella, 343 U.S. 341 (1952), where the dependant wife of 
an American serviceman was convicted by military commission for the 
murder of her husband. The Court found it within the President's power 
to establish a military tribunal but under certain constraints. Madsen 
stated that these commissions ``have been constitutionally recognized 
agencies for meeting many urgent governmental responsibilities related 
to war.'' Id. at 346. As such, the Court recognized that these 
tribunals derive their authority from the Congress' power to ``declare 
war.'' Id. at 346 n.9, and from the occupation of Germany and the 
recent ``cessation of hostilities.'' Id., at 348.\14\
---------------------------------------------------------------------------
    \14\ The Court quotes from Winthrop, Military Law and Precedents, 
831 (2d ed. 1920), stating ``it is those provisions of the Constitution 
which empower Congress to `declare war' and `raise armies,' and which, 
in authorizing the initiation of war, authorize the employment of all 
necessary and proper agencies for its due prosecution, from which the 
tribunal derives it original sanction. Its authority is thus the same 
as the authority for the making and waging of war and for the exercise 
of military government and martial law.'' The court thus subscribes to 
the view that military commissions derive any authority they have from 
Congressional sanction under the war powers. They act only pursuant to 
Congressional delegation of authority.
---------------------------------------------------------------------------
    Of course, there may be times when Congress cannot declare war, for 
one reason or another.\15\ But in many of those cases, the Congress can 
of course specifically authorize a military tribunal as part of a 
resolution authorizing force or as stand-alone legislation. If a 
particular Administration feels that such Congressional activity is not 
feasible (due to, for example, an invasion), it bears a burden in 
justifying a unilateral course of action. But in a case like the one 
today, where Congress is able to meet (indeed, has been meeting to 
respond to several Administration requests), this justification for 
unilateralism does not appear tenable.
---------------------------------------------------------------------------
    \15\ A declaration of war in today's circumstances may be possible. 
See Prize Cases, 67 U.S. 635, 666 (1863) (``But it is not necessary to 
constitute war, that both parties should be acknowledged as independent 
nations of sovereign States.'').
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           Congress has not Authorized the Military Tribunals
    The present Military Order relies on the Resolution passed by 
Congress for legal support. The Resolution states: ``That the President 
is authorized to use all necessary and appropriate force against those 
nations, organizations, or persons he determines planned, authorized, 
committed, or aided the terrorist attacks that occurred on September 
11, 2001, or harbored such organizations or persons, in order to 
prevent any future acts of international terrorism against the United 
States by such nations, organizations or persons.'' Pub. L. No. 107-40, 
115 Stat. 224 Sec. 2(a). This Resolution is patently quite far from a 
declaration of war, and is limited in many respects. Significantly, the 
Resolution passed by Congress,

        1) restricts its reach only to ``force,''
        2) applies only to persons involved in some way in the 
        September 11 attacks, and
        3) permits such activity ``in order to'' avert prospective 
        damage to the United States.

    Now compare the Resolution with the Military Order, which,

        1) goes well beyond any conceivable definition of ``force,''
        2) does not confine its reach to persons involved in the 
        September 11 attacks, but goes so far as to permit any 
        terrorist unconnected to the attacks to be tried before a 
        military tribunal,
        3) is entirely retrospective, meting out sentences for past 
        acts, and
        4) extends its jurisdiction to places that are not localities 
        of armed conflict.

    A tougher question is presented by persons in Afghanistan, for the 
Use of Force Resolution when read in conjunction with the Uniform Code 
of Military Justice could suggest military jurisdiction for those that 
are the direct targets of Congress' Resolution. As I will explain in a 
moment, this reading is questionable, but the case is a closer one. But 
the Military Order goes much, much farther than this, and illustrates 
the precise dangers with unilateral determinations by the Executive. 
The Order does not confine its reach to those involved in the September 
11 attacks. It states that individuals subject to the order include 
anyone whom,

        ``there is reason to believe. . .
         (i) is or was a member of the organization known as al Qaida;
         (ii) has engaged in, aided or abetted, or conspired to commit, 
        acts of international terrorism, or acts in preparation 
        therefor, that have caused, threaten to cause, or have as their 
        aim to cause, injury to or adverse effects on the United 
        States, its citizens, national security, foreign policy, or 
        economy; or
         (iii) has knowingly harbored one or more individuals described 
        [in the first two categories above].

    Military Order, Sec. 2(a) (emphasis added). There is absolutely no 
constitutional warrant for such a dramatic expansion of the military 
tribunal's authority to cover individuals completely unconnected to the 
September 11 attacks, no matter how broadly the statutes and precedent 
can be stretched. This is particularly important in light of the fact 
that the Congress explicitly rejected proposed White House language 
that would have authorized a broader use of force. See Lancaster, 
Congress Clears Use of Force, Wash. Post, Sept. 15, 2001, at A4. 
Subsections ii) and iii) of the Military Order therefore underscore 
just how important it is for this body to carefully circumscribe the 
jurisdiction and reach of a military tribunal. Without such guidance, 
military tribunals can creep far beyond the circumstances of an 
emergency, sweeping up many unrelated investigations. ``Mission creep'' 
can infect not only military operations that employ force, but also 
those that involve prosecutors and judges.
    In the wake of the martial law of the Civil War, Congress passed 
the Posse Comitatus Act to prevent the military from becoming part of 
civilian affairs. The Act states, ``Whoever, except in cases and under 
circumstances expressly authorized by the Constitution or Act of 
Congress, willfully uses any part of the Army or the Air Force as a 
posse comitatus or otherwise to execute the laws shall be fined under 
this title or imprisoned not more than two years, or both.'' 18 
U.S.C.S. Sec. 1385 (2001). This Act reflects the underlying presumption 
against blurring military and civilian life, unless Congress authorizes 
otherwise or the Constitution so demands. It is instructive that this 
fundamental law has itself been modified recently with respect to the 
War on Drugs and immigration. See 10 U.S.C. Sec. Sec. 371-380 
(authorizing Secretary of Defense to furnish equipment and personnel to 
assist civilian agencies in enforcing drug and immigration laws, but 
preventing the military, with the exception of the Coast Guard, from 
conducting ``a search and seizure, an arrest, or other similar 
activity''). The Posse Comitatus Act underscores the general 
presumption against civilian life becoming subject to military law, 
unless Congress or the Constitution explicitly say otherwise. The 
recent Military Order undercuts this post Civil War tradition, and does 
so unilaterally.
    As previously stated, the Uniform Code of Military Justice (UCMJ) 
is still on the books. It might be thought that the language in the 
Uniform Code, which recognizes the concurrent jurisdiction of military 
tribunals, 10 U.S.C. Sec. 821,\16\ constitutes sufficient congressional 
authorization of them under the rule laid down in Quirin. I have 
already explained why Quirin, and its interpretation of the predecessor 
statute to the UCMJ, does not come close to justifying the present 
Military Order. Not only the facts and opinion in Quirin, but cases 
decided under the UCMJ itself suggest that this body has not authorized 
the military tribunals envisioned in the recent Military Order.
---------------------------------------------------------------------------
    \16\ The provisions of this chapter conferring jurisdiction upon 
courts-martial do not deprive military commissions, provost courts, or 
other military tribunals of concurrent jurisdiction with respect to 
offenders or offenses that by statute or by the law of war may be tried 
by military commissions, provost courts, or other military tribunals.'' 
10 U.S.C. Sec. 821.
---------------------------------------------------------------------------
    In United States v. Averette, 19 U.S.C.M.A. 363 (1970), a civilian 
employee of the Army was charged with criminal violations in Vietnam 
and tried by court-martial under the UCMJ. The United States Court of 
Military Appeals there decided that, in determining the applicability 
of the UCMJ, ``the words `in time of war' mean. . .a war formally 
declared by Congress.'' Id., at 365 (emphasis added). Further, the 
court believed that ``a strict and literal construction of the phrase 
`in time of war' should be applied,'' Id., in the case of the 
jurisdiction of military courts. The conclusion in this case was that 
the hostilities in Vietnam, although a major military action, was not a 
formal declaration of war for purposes of the military's 
jurisdiction.\17\ The Court of Military Appeals followed this line of 
reasoning is Zamora v. Woodson, 19 U.S.C.M.A. 403 (1970), where it held 
again that the term `in time of war' means ``a war formally declared by 
Congress,'' Id. at 404, and that the military effort in Vietnam could 
not qualify as such. The question of whether a terrorist can even 
qualify as a belligerent or engage the machinery of the ``laws of war'' 
is itself not clear. See Scharf, Defining Terrorism as the Peace Time 
Equivalent of War Crimes, 7 ILSA J. Int'l & Comp. L. 391, 392 (2001) 
(``The key is the `armed conflict' threshold. By their terms, these 
conventions do not apply to `situations of internal disturbances and 
tensions such as riots and isolated and sporadic acts of violence.' In 
those situations, terrorism is not covered by the laws of war, but 
rather by a dozen anti-terrorism conventions'').\18\
---------------------------------------------------------------------------
    \17\ In a rather different setting, the military courts have found 
that a substantive offense, sleeping at one's post during time of war, 
was possible during the Korean War. United States v. Bancroft, 3 
U.S.C.M.A. 3 (1953). The Court pointed to many indicia of a wartime 
situation, including special ``national emergency legislation.'' Id., 
at 5. See also United States v. Ayres, 4 U.S.C.M.A. 220 (1954) 
(following Bancroft). Averette is not modified by Bancroft or Ayres, as 
Averette is the more recent case and was explicitly decided in light of 
these other case. While members of our military might be subject to 
additional punishment based on statutes that aggravate penalties during 
wartime, to apply the jurisdiction of the UCMJ to those not ordinarily 
subject to it requires an affirmative act of Congress. Averette, at 365 
(``We emphasize our awareness that the fighting in Vietnam qualifies as 
a war that word is generally used and understood. By almost any 
standard of comparison--the number of persons involved, the level of 
casualties, the ferocity of the combat, the extent of the suffering, 
and the impact on our nation--the Vietnamese armed conflict is a major 
military action. But such a recognition should not serve as a shortcut 
for a formal declaration of war, at least in the sensitive area of 
subjecting civilians to military jurisdiction.'')
    The Averette ruleing means that when the constitutional rights hang 
in the balance, courts should read statutes as narrowly to avoid 
violating these rights unless congressional intent is clear. The term 
``time of war'' is ambiguous, and as such, should be read narrowly as 
requiring a congressional declaration of war before constitutional 
rights are abrogated in the name of national security. Congress must 
speak clearly if it wishes to constrain, or allow the Executive to 
constrain, civil rights through its war powers.
    \18\ Making the laws of war applicable to terrorists may also raise 
problems, including possibly providing them with the ``combatant's 
privilege,''under which combatants are immune from prosecution for 
common crimes, and prisoner of war status upon detention. Scharf, 
supra, at 396-98.
---------------------------------------------------------------------------
    Finally, the United States Court of Claims faced this issue in Robb 
v. United States, 456 F.2d. 768 (Ct. Cl. 1972). The Court of Claims 
held that the decedent's prior court-martial had not held jurisdiction 
over him as a civilian employee of the Armed Forces because ``short of 
a declared war,'' Id., at 771, the court-martial did not possess 
jurisdiction under the UCMJ.
    Thus both civil and military courts have held that the UCMJ's use 
of the term ``in a time of war'' requires an actual, congressionally 
declared war to provide jurisdiction over civilians for the military 
courts-martial or tribunals. This strict reading should also apply to 
the Court's previous rulings holding the President's power to convene 
military tribunals to vest only ``in time of war.'' This strict reading 
is justified not only because of the precedent established by the Court 
of Military appeals, but also in light of the tremendous damage to 
individual rights the Executive and the military could create if 
military courts could be convened without explicit Congressional 
authorization.
    After all, many would be surprised to learn that the Administration 
is arguing that this Body has already ratified military tribunals for 
terrorists. The dusting off of an old statute passed for an entirely 
different purpose and in another era raises significant constitutional 
concerns when that statute is used to justify the deprivation of 
individual rights. The Supreme Court often speaks in terms of ``clear 
statement'' rules: if the legislature wants to deprive someone of a 
constitutional right, it should say so clearly, otherwise the 
legislation will be construed to avoid the constitutional difficulty. 
E.g., Kent v. Dulles, 357 U.S. 116, 129-30 (1958) (holding that the 
Secretary of State could not deny passports on the basis of Communist 
Party membership without a clear delegation from Congress, and that 
this permission could not be ``silently granted'') (emphasis 
added).\19\ Without a clear statement by this Congress about the need 
for military tribunals, it will be difficult for a civilian court to 
assess the exigencies of the situation and to determine whether the 
circumstances justify dispensing with jury trials, grand juries, and 
the rules of evidence on habeas review.
---------------------------------------------------------------------------
    \19\ Dames & Moore v. Regan, 453 U.S. 654 (1981) loosened the 
definition of ``implied Congressional authorization'' somewhat but did 
not find that lack of Congressional voice would constitute implicit 
authorization. The decision expressly disclaimed any attempt to use its 
precedent in other cases: ``we attempt to lay down no general 
`guidelines' covering other situations not involved here, and attempt 
to confine the opinion only to the very questions necessary to decision 
of the case.'' Id., at 661. In Dames, a case in which a constitutional 
right was probably not at stake, the Court approved an Executive Order 
which terminated all litigation between United States nationals and 
Iran in return for the establishment of a claims tribunal to arbitrate 
the disputes. The Court did not find explicit authorization by Congress 
but grounded a finding of implied authorization in the fact the 
Congress had passed the International Claims Settlement Act of 1949 
which approved another executive claims settlement action and provided 
a procedure to implement future settlement agreements. Also, the 
legislative history of the International Emergency Economic Powers Act 
(IEEPA) showed that Congress accepted the authority of the President to 
enter into such settlement agreements. Id. In the current case, 
Congress has passed no such legislation which recognizes or ratifies 
the President's authority to convene military tribunals without a 
declaration of war, and the constitutional rights at stake are 
significant. As such, implicit approval of Congress cannot be found 
here as it was in Dames & Moore.
---------------------------------------------------------------------------
    Even if there is some ambiguity in the UCMJ about the meaning of 
``time of war,'' standard principles of legislative interpretation 
would counsel reading the statute to avoid constitutional difficulties, 
and mean that the President lacks authority.\20\ As Justice Jackson put 
it in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 
U.S. 579, 673 (1952), in the zone of twilight between the powers of 
Congress and the President, ``any actual test of power is likely to 
depend on the imperatives of events and contemporary imponderables. . . 
.'' One of these imperatives is the preservation of individual rights. 
In Valentine v. United States ex rel Neidecker, 299 U.S. 5 (1936), the 
Court considered the Executive's power to extradite under a treaty 
where the treaty did not provide for such extradition. Although this 
case took place before Youngstown, it is clear that this Executive 
action would fall into Jackson's zone of twilight. The Court did not 
allow the extradition because of the trampling of individual rights: 
``the Constitution creates no executive prerogative to dispose of the 
liberty of the individual. Proceeding against [an individual] must be 
authorized by law. . . .It necessarily follows that as the legal 
authority does not exist save as it is given by an act of Congress. . 
.[i]t must be found that [a] statute. . .confers the power.'' Id. at 9; 
see generally Silverstein, Imbalance of Powers 115-16 (1997) (stating 
the proposition that when it comes to individual liberties, the Court 
is hesitant to defer to the Executive in the absence of specific 
Congressional mandate).\21\
---------------------------------------------------------------------------
    \20\ A comparison between the Military Order and President Truman's 
seizure of the steel mills via Executive Order is instructive. The 
Supreme Court declared Truman's Executive Order un constitutional 
because it ``was a job for the Nation's lawmakers, not for its military 
authorities. . . .In the frame work of our Constitution, the 
President's power to see that the laws are faithfully executed refutes 
the idea that he is to be a lawmaker.'' Youngstown, supra, at 587 
(majority cop. per Black, J.). Even though legislative action might 
``often be cumbersome, time-consuming, and apparently inefficient,'' 
Justice Douglas stated, that was the process our Constitution set up. 
See id., at 629; see also id. (``The doctrine of the separation of 
powers was adopted by the Convention of 1787, not to promote efficiency 
but to preclude the exercise of arbitrary power. . .to save the people 
from autocracy'') (quoting Brandeis, J., Dissenting in Myers v. United 
States). See also Youngston, id., at 650 (Jackson, J., concurring) 
(`Aside from suspension of the privilege of the writ of habeas corpus. 
. .[the founders made no express provision for exercise of 
extraordinary authority because of a crisis. I do not think we 
rightfully may so amend their work, and, if we could, I am not 
convinced it would be wise to do so. . . .[T]he President of the 
[German] Republic, without concurrence of the Reichstag, was empowered 
temporarily to suspend any or all individual rights if public safety 
and order were seriously disturbed or endangered. This proved a 
temptation to every government, whatever its shade of opinion, and in 
13 years suspension of rights was invoked on more the 250 occasions. 
Finally, Hitler persuaded President Von Hindenberg to suspend all such 
rights, and they were never restored.'').
    \21\ The Pentagon Papers Case, N.U. Times Co. v. United States, 403 
U.S. 713 (1971), also underscores the constitutional problems with 
unilateral executive action. In that case, the Court, in a per curiam 
opinion, denied the President an injunction to block the New York Times 
and the Washington Post from publishing certain documents which the 
Administration claimed would be damaging to the military effort in 
Vietnam. Justice Brennan observed that the Executive acted without 
authorization from Congress. Previously, Congress had considered 
legislation which would have made such disclosure criminal. Brennan 
stated that ``[i]f the proposal. . .had been enacted, the publication 
of the documents involved here would certainly have been a crime. 
Congress refused, however, to make it a crime.'' Id. at 746. Justice 
Douglas indicated that the case might have been different with specific 
Congressional authorization, stating ``[t]here is. . .no statute 
barring the publication by the press of the material which the Times 
and the Post seek to use.'' Id. at 720. Douglas also conceded that a 
state of declared war might authorize such action on the part of the 
Executive when he state ``[t]he war power stems from a declaration war. 
. . .Nowhere (in the Constitution] are presidential wars authorized. We 
need not decide therefore what leveling effect the war power of 
Congress might have.'' Id. 722. Similarly here, a declared state of war 
vests the President with the power to abrogate some Fifth Amendment 
rights but in the absence of such declaration of war or specific 
Congressional authorization, the Executive's attempt to remove Fifth 
Amendment protections through the use of military tribunals is 
constitutionally problematic.
---------------------------------------------------------------------------
    In the current case, the Executive Order is made applicable even to 
resident aliens who are constitutionally vested with due process 
rights. As such, the Court should be wary of allowing the Executive to 
unilaterally abrogate these individual protections.\22\
---------------------------------------------------------------------------
    \22\ Additionally, if one subscribes to Justice Murphy's view that 
the Fifth Amendment protects all people accused by the Federal 
Government and ``[n]o exception is made as to those who are accused of 
war crimes or as to those who possess the status of any enemy 
belligerent,'' then it would be logical that the Executive not be 
allowed to unilaterally abrogate individual rights of even non-resident 
aliens. In re Yamashita, 327 U.S. at 26 (Murphy, J., dissenting) 
(stating that ``[t]he immutable rights of the individuals, including 
those secured by the due process clause of the Fifth Amendment, belong 
not alone to the members of those nations that excel on the battlefield 
or that subscribe to the democratic ideology. They belong to every 
person in the world, victor or vanquished, whatever may be his race, 
color or beliefs. They rise above the status of belligerency or 
outlawry. They survive any popular passion of frenzy of the moment. . . 
.Such is the universal and indestructible nature of the rights which 
the due process clause of the Fifth Amendment recognizes and protects 
when life or liberty is threatened by virtue of the authority of the 
United States.'').
---------------------------------------------------------------------------
    Finally, if the UCMJ were stretched to give the President power to 
create a tribunal in this instance, it would leave the statute so broad 
as to risk being an unconstitutional delegation of power. Such a 
statute would leave the President free to define a ``time of war,'' 
grant him the discretion to set up military tribunals at will, bestow 
upon the Executive the power to prosecute whomever he so selects in a 
military tribunal, and give him the power to try those cases before 
military judges that serve as part of the Executive Branch and perhaps 
even the ability to dispense with habeas corpus and review by an 
Article III court. It would be a great and unbounded transfer of 
legislative power to the Executive Branch, a claim that every defendant 
before the tribunal would raise repeatedly. See Clinton v. City of New 
York, 118 S. Ct. 2091, 2108-10 (Kennedy, J., concurring); Industrial 
Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 687 
(1980) (Rehnquist, J. Concurring); American Textile Mfrs. Inst., Inc. 
v. Donovan, 452 U.S. 490, 545 (1981) (Rehnquist, J., dissenting); 
California Bankers Ass'n v. Schultz, 416 U.S. 21, 91-93 (1974) 
(Brennan, J., dissenting).
    There is one other aspect of the Military Order that is 
constitutionally troubling: its secrecy.\23\ Government secrecy is a 
tremendously dangerous, though important, power. The Constitution was 
designed to avoid secrecy when the criminal process has been engaged. 
Our Founders feared secret trials, knowing that the impulse would be 
too great for the prosecutor to abuse his powers. See U.S. Const., Am. 
VI; cf., Morrison v. Olson, 487 U.S. 654, 728-29 (1988) (Scalia, J., 
dissenting).
---------------------------------------------------------------------------
    \23\ There is also a second strain of unilateralism in the Military 
Order, that of unilateralism in our foreign policy. Spain has already 
refused to extradite suspects in the September 11 investigation until 
America promises not to subject them to a military trial. The upshot of 
the military order may be to weaken not strengthen, our ability to 
conduct thorough investigations, to interview material witnesses, and 
prosecute those responsible. Again, these costs of the tribunals may be 
worth it, but these are the types of determinations that are 
appropriate for Congressional oversight.
---------------------------------------------------------------------------
    When criminal trials take place in open court in front of a jury of 
one's peers, a tremendous checking function exists. Yet the Military 
Order scraps all of this, and permits trials to be conducted in secret, 
without the attention of press or peers. Nothing will check the power 
of the prosecutor in these trials. Our enemies will call them ``show 
trials'' to cover up for our government's failures, our friends will 
wonder why American justice cannot handle those who are obviously 
culpable. And a dubious precedent will be set that gives the President 
the power to establish these tribunals in circumstances untethered to 
formal declarations of war. If the circumstances demand secret trials, 
this body can so authorize them. Our Constitution and laws necessarily 
require many procedures before the cloak of government secrecy can be 
worn.
  Attorney General Order No. 2529-2001 Raises Serious Constitutional 
Concerns and Jeopardizes the Criminal Convictions of those Responsible 
                             for Terrorism
    A similar analysis of executive unilateralism applies to Attorney 
General Order No. 2529-2001. This regulation was announced with no 
legislative consideration whatsoever. It comes close to infringing both 
Fourth Amendment right to privacy and the Sixth Amendment right to 
counsel. Those who are the subject of the rule have not been charged 
with a crime, for the order permits monitoring of ``inmates,'' defined 
under this rule to include not merely criminal convicts, but anyone 
``held as witnesses, detainees or otherwise.'' The government is 
currently detaining well over 1000 individuals, some on immigration 
violations, some as possible suspects, and still others who are 
material witnesses, all of whom are subject to such monitoring. The 
monitoring may occur, not on a probable cause standard, but whenever 
the Justice Department determines that ``reasonable suspicion exists to 
believe that an inmate may use the communications with attorneys. . .to 
facilitate acts of terrorism.'' Id. Moreover, the determination that 
someone is too threatening to speak privately with counsel is made not 
by a judge, but by the executive branch acting unilaterally, in 
contradistinction to other legislative procedures such as the Foreign 
Intelligence Surveillance Act (FISA).
    Again, this dramatic order, if carefully circumscribed, might be 
justified on national security grounds, but it is the type of action 
that requires legislation, not a unilateral decision by the Executive 
Branch. After all, ``the attorney-client privilege under federal law 
[is] the oldest of the privileges for confidential communications known 
to the common law.'' United States v. Zolin, 491 U.S. 554, 562 (1989).
    My analysis here will not dwell on judicial cases, for a good 
reason, there are none. The Government has not issued such a sweeping 
ruling in its entire history. All previous precedents pale in 
comparison to the major change of law issued by the Attorney General. 
To be sure, there are indications that both the Fourth Amendment and 
Sixth Amendment are violated when the government monitors conversations 
between attorneys and their clients. But my argument is really one 
based on common sense: such an intrusion into private affairs can only 
be justified by compelling circumstances. Standard separation of powers 
principles suggest that such a justification be announced by Congress, 
in the form of law, and enforced at the discretion of the President.
    While defenders of the regulation have pointed out that separate 
teams for ``prevention'' and ``prosecution'' will be set up, the result 
of this form of monitoring is to chill the relationship between 
attorney and client. Confidentiality is the essence of representation 
in this privileged relationship. As a result of the new regulation, 
people will not be able to consult their lawyers without the risk of a 
government agent listening to their conversation. The conversation 
might be about the most private matters imaginable--a divorce created 
in part by the government's detention, for example. A long tradition 
has prevented the government from intruding into conversations between 
lawyer and client, for such matters may be deeply private ones, subject 
to traditional fourth amendment protection. Amar & Amar, The New 
Regulation Allowing Federal Agents to Monitor Attorney-client 
Conversations: Why it Threatens Fourth Amendment Values, Find law, Nov. 
16, 2001, at http://writ.news.findlaw.com/amar/20011116.html.
    Without the order, clients might talk to their lawyers about 
arranging plea bargains and other deals in exchange for information 
about future plots of terrorism. In the wake of the Regulation, these 
conversations may conceivably to dry up, resulting in the government 
receiving less, not more, information. Again, the Justice Department 
might have special reason to discount this risk, and special reason to 
believe that clients are passing messages through their attorneys. But 
if so, it is up to them to make that case to this Body.
    As anyone who has worked with intelligence data knows, there are 
often mistakes. This is natural given the shadowy world of informants 
and purchased information, and circumstances in the wake of September 
11 may justify holding people in detention on the basis of such data, 
despite these mistakes. But to go farther than this, and to abrogate 
the historic relationship between attorney and client in the name of 
national security, threatens constitutional freedoms, and, indeed, may 
threaten the criminal convictions of these individuals. This is 
particularly the case when a series of less restrictive alternatives 
exist to the regulation. See Amar & Amar, supra (discussing ``cleared 
counsel'' approach in Classified Information Procedures Act and 
videotaping of attorney/client conversations that could become 
reviewable ex parte by a judge).
    Congressional legislation authorizing such searches will 
undoubtedly put such a regulation on stronger constitutional footing. 
The Fourth Amendment focuses on reasonableness, and one way in which 
courts assess reasonableness is by looking to Congress. Because there 
is a ``strong presumption of constitutionality due to an Act of 
Congress, especially when it turns on what is `reasonable,''' United 
States v. Di Re, 332 U.S. 581, 585 (1948), the Court has in certain 
circumstances chosen to ``defer to [the] legislative determination'' 
about the safeguards necessary for searches and seizures under a 
particular regulatory scheme. Donovan v. Dewey, 452 U.S. 594, 603 
(1981). see also Amar, Fourth Amendment, First Principles, 107 Harv. L. 
Rev. 757, 816 (1994) (``Legislatures are, and should be, obliged to 
fashion rules delineating the search and seizure authority of 
government officials. . . .In cases of borderline reasonableness, the 
less specifically the legislature has considered and authorized the 
practice in question, the less willing judges and juries should be to 
uphold the practice.''). Without legislative approval, by contrast, 
courts may well frown on such an unprecedented intrusion into privacy. 
See Coplon v. United States, 191 F.2d 749 (D.C. Cir. 1951) (Sixth 
Amendment violated by government interception of private telephone 
consultations between the accused and lawyer); Hoffa v. United States, 
385 U.S. 293, 306 (1966) (assuming without deciding that Coplon is 
correct).
    While some have claimed that United States v. Noriega, 764 F. Supp. 
1480 (S.D. Fla. 1991) justifies the immense monitoring order involved 
here, a close reading of Noriega reveals otherwise. It is telling that 
the main precedent cited by defenders of the regulation is a district 
court opinion from a single district in Florida. In the case, former 
Panamanian dictator Manuel Noriega claimed that the interception of his 
phone calls while in prison (but not those with his attorneys) violated 
his Fourth Amendment right, and that his Sixth Amendment right was 
violated when conversations with his attorneys were intercepted. The 
district court decision dismissed the latter claim because the 
government did not intentionally intercept the attorney/client phone 
calls, see 764 F. Supp., at 1489, a claim that the government can in no 
way make today. The AG Regulation contemplates intentional monitoring 
of these conversations. The Fourth Amendment claim Noriega put forth 
was not at all about monitoring of attorney/client conversations, Id., 
at 1490, and therefore did not decide the difficult issue raised by the 
Attorney General's Regulation. Moreover, the Noriega monitoring was 
done under very limited circumstances where probable cause was almost 
certainly met and the search was as reasonable as the facts were 
unusual. Noriega did not concern a sweeping order such as the one 
involved today, which, again, targets even those held as material 
witnesses.
    In this respect, a comparison with FISA is helpful. When the 
Circuit Courts were in conflict on the question of whether the 
President has inherent authority to conduct surveillance without a 
prior judicial screen, compare Zweibon v. Mitchell, 516 F.2d 594 (D.C. 
Cir. 1975) (disclaiming executive power) with United States v. Butenko, 
494 F.2d 593 (3d Cir. 1974) (upholding it), Congress and the President 
compromised in the Foreign Intelligence Surveillance Act of 1978. The 
Act rejected the notion that the executive may conduct surveillance 
within the U.S. unbridled by legislation.\24\ FISA was re-affirmed and 
amended just last month with the passage of the USA PATRIOT Act.
---------------------------------------------------------------------------
    \24\ See Pub. L. No. 95-511, 92 Stat. 1783 (codified as 50 U.S.C. 
Sec. Sec. 1801-11 (2001)); Americo R. Cinquegrana, The Walls (and 
Wires) Have Ears: The Background and First Ten Years of the Foreign 
Intelligence Act of 1978, 137 U.Pa. L. Rev. 793 (1989).
---------------------------------------------------------------------------
    The approach taken with the passage of FISA disclaimed any pretense 
of unilateralism. At that time, the Senate Judiciary Committee declared 
that the FISA was a ``recognition by both the executive branch and the 
congress that the statutory rule of law must prevail in the area of 
foreign intelligence surveillance.''.'' S. Rep. No. 95-604, at 7 (1977) 
(emphasis added). The Senate Intelligence Committee announced that the 
FISA represented a ``legislative judgment that court orders and other 
procedural safeguards are necessary to insure that electronic 
surveillance by the U.S. government within this country conforms to the 
fundamental principles of the Fourth Amendment.'' S. Rep. No. 95-701, 
at 13 (1978).
    Speaking for the executive branch before this Committee, Attorney 
General Bell himself agreed to this judgment, praising the Act because 
`` `for the first time in our society the clandestine intelligence 
activities of our government shall be subject to the regulation and 
receive the positive authority of a public law for all to inspect.' '' 
Id. at 7 (citation omitted). He praised it because, as he said, `` `it 
strikes the balance, sacrifices neither our security nor our civil 
liberties, and assures that the abuses of the past will remain in the 
past and that the dedicated and patriotic men and women who serve this 
country in intelligence positions, often under substantial hardships 
and even danger will have the affirmation of Congress that their 
activities are proper and necessary.' '' Id. (emphasis added). Again 
today, we find ourselves in a world where we need recognition both by 
the President and by Congress that the statutory rule of law must 
prevail in the area of foreign intelligence surveillance. The world is 
not so different today that we do not need the ``positive authority of 
a public law for all to inspect,'' or that we do not need procedural 
safeguards to protect against the abuses of the executive branch.
    Twenty-four years ago this Committee spoke that it wanted to ``curb 
the practice'' by which the President and the Attorney General may 
disregard the Bill of Rights on their ``own unilateral determination 
that national security justifies it.'' S. Rep. 95-604, at 8-9 (emphasis 
added). The executive branch at that time agreed, and since that time 
the judiciary has protected that deference to legislative judgment. A 
similar course of action is appropriate today.
 The Possibility of Legislative Reversal of Either Executive Decision 
                   Does Not Make Them Constitutional
    The Congress today retains some formal power over both the Military 
Order and the Attorney General Regulation and can use legislation to 
reverse them. But this possibility does not transform either Executive 
decision into a constitutional one. The Executive Branch has acted 
ultra vires in issuing both of these decisions, and both lack the 
appropriate constitutional stature to survive separation of powers 
scrutiny. The speculative possibility of a Congressional reversal 
cannot make an act of the Executive constitutional. (If President 
Clinton during a budget deadlock got frustrated and decided to proclaim 
his budget proposal the law of the land, and directed his Secretary of 
Treasury to begin disbursements, Congress would of course have the 
power to trump his ``budget'' with one of their own, but the existence 
of its trumping power wouldn't make the President's initial action 
constitutional.) Indeed, President Truman's Order to seize the steel 
mills could have been reversed by Congress (a possibility explicitly 
invited by President Truman--in contradistinction to the recent 
Administration actions--who sent messages to Congress stating that he 
would abide by a legislative determination to overrule his Executive 
Order). The dissent in Youngstown made much of Truman's overture to 
Congress, but that did not stop the Supreme Court from declaring 
President Truman's action unconstitutional for overstepping his 
authority.
    Furthermore, there may be all sorts of barriers to Congressional 
reversal: trials might be underway, in which case a Congressional 
reversal might create double jeopardy problems, or the Congress might 
not want to set up a dangerous confrontation between the branches in a 
time of national crisis. A Congressional reversal would require not a 
simple majority, but a two-thirds one (because a President would have 
the power to veto the legislation proposing the reversal), therefore 
such a reading of the Constitution would work a subtle but dangerous 
transformation in power away from the Congress and toward the 
President. A future President could then set up military tribunals in a 
national crisis, declaring, for example, the ``War on Drugs'' to 
require military tribunals for narcotics traffickers, and the Congress 
would have to attain a two-thirds majority affirmatively reverse such a 
determination. The Separation of Powers is designed precisely to guard 
against such transfers of constitutional authority. Particularly 
because our constitutional traditions are evolving ones, it is 
dangerous for one person to be given the authority to freeze the 
Constitution at a single moment in time. This body is uniquely equipped 
to assess the meaning of constitutional guarantees, such as the Fourth, 
Fifth and Sixth Amendments, in light of contemporary circumstances.
                               Conclusion
    Given the national importance and fundamental commitment to 
Constitutional values, the better course of action is for the President 
to only act in this area when his powers are at their highest ebb, 
namely, when he acts with the approval of the co-equal legislative 
branch. Youngstown, 343 U.S. at 635 (Jackson, J., concurring) (when the 
President acts with explicit authorization of Congress, ``his authority 
is at its maximum, for in includes all that he possesses in his own 
right plus all that Congress can delegate.''). Even though I am a 
supporter of the unitary executive theory, which generally endorses a 
broad view of constitutional powers of the President, the Military 
Order and AG Regulation go too far.
    The Executive Branch should therefore, at a minimum, decline to 
enforce either the Military Order or the Attorney General regulation 
until this body has expressly authorized these methods. The Congress 
should then immediately take up the question of whether these methods 
are necessary and proper, and give due weight to the views of the 
Administration on this point. A united Executive-Legislative 
determination, just as with FISA, the USA PATRIOT Act, and other major 
national-security decisions, will best safeguard individual liberty for 
the future and prevent convictions from being overturned in the ongoing 
terrorism investigations. At the very minimum, Congress should consider 
enacting legislation similar to the War Powers Act and laws governing 
covert activity, so that the President is required 1) to notify some or 
all members of Congress quickly when military tribunals are initiated, 
and 2) to provide details of the cases to this body so that it may 
perform its oversight function.
    In conclusion, like most all Americans, I believe the 
Administration is trying to make the best calls that it can. But that's 
part of the point: Our Constitutional design can't leave these choices 
to one man, however well intentioned and wise he may be. We do not live 
in a monarchy. The structure of government commits wide-ranging 
decisions such as this to the legislative process. To say this is not 
to be ``soft on terrorism,'' but actually to be harder on it. We cannot 
afford to jeopardize our beliefs, or to risk accusations of subverting 
our constitutional tradition, simply because one branch thinks it 
expedient.

    Chairman Leahy. Thank you very much, Professor.
    Let me ask you, General Barr--I know you have long 
supported the idea of military tribunals--when did you first 
consult with the administration on the option of military 
tribunals, this administration?
    Mr. Barr. Well, I didn't consult with anybody. I reminded 
people of work that had been done previously in the Department 
on this topic.
    Chairman Leahy. Reminded people just on the street or 
people in the administration?
    Mr. Barr. Staff people in the administration.
    Chairman Leahy. And when did you do that?
    Mr. Barr. After September 11.
    Chairman Leahy. Shortly thereafter?
    Mr. Barr. Yes.
    Chairman Leahy. General, I am thinking back to the time 
when you were Attorney General under former President Bush. We 
went through Desert Storm and Desert Shield, facing thousands 
of people that we were in open conflict with.
    Let me ask you, did former President Bush ever issue a 
similar order for military tribunals during Desert Storm or 
Desert Shield?
    Mr. Barr. No.
    Chairman Leahy. What about after the bombing of Pan Am 
Flight 103 over Lockerbie, Scotland?
    Mr. Barr. No. It was in that context which we explored the 
possibility because we looked at the Nuremberg model and 
considered setting up a joint military tribunal.
    Chairman Leahy. And did you recommend that to the 
President?
    Mr. Barr. No, because my informal contacts with the Scots 
indicated they were not interested in doing that, primarily 
because of the death penalty.
    But the Iraqi war is a good example. That was not a 
declared war, but I think it would be ridiculous to say that if 
the Republican Guards had started executing American prisoners 
or pilots that had been shot down that we would have been 
powerless to convene military courts to try them for those 
violations of the laws of war. Our only option would not have 
been, as some seem to suggest, bringing back Republican Guard 
members and trying them in our civilian courts.
    There has never been a circumstance I am aware of of an 
armed foreign combatant waging war against the United States 
having been tried for war crimes in a civilian court.
    Chairman Leahy. But I think you have heard the testimony 
that, the way it is drafted, this could go well beyond an armed 
combatant directing actions against the armed forces of the 
U.S.
    Mr. Barr. Not at all. I think Mike Chertoff was referring 
to one of FDR's orders. FDR issued two orders. One of them was 
extremely broad. The second one was the one that was directed 
at these specific Nazis. His first one was sweeping and applied 
to anybody who was a resident of a country at war against the 
United States who attempted to enter the United States for the 
purpose of carrying out hostile or warlike actions.
    So I think that the President's order applies to people who 
commit war crimes; that is, they have to be in a state of 
unlawful belligerency against the United States and commit war 
crimes that are triable in military tribunals. The order says 
that in Section 4.
    Chairman Leahy. Do you agree with that, Mr. Heymann?
    Mr. Heymann. Well, no, I don't think they have to be war 
crimes. I think the order plainly applies to any terrorist act, 
but the big problem is that you don't know whether the guy is a 
terrorist or not.
    Israel killed a Norwegian waiter on the mistaken ground 
that he was one of the people responsible for the Munich 
Olympics massacre of the Israeli athletic team.
    This order applies to any of 20 million people, 
unreviewable, whom the President believes are terrorists or 
have helped terrorists or were terrorists or used to harbor 
terrorists. And it is the power; it is not how it is being 
exercised.
    I think your first question is whether you are going to 
address the claim of power of the President or whether you are 
going to address its likely use, limited to a relatively few 
people. And I agree with former Attorney General Barr that I 
don't think there is an obligation to bring them back from 
Afghanistan. But the claim of power reaches 20 million people 
living in the United States and anyone in Spain, France, or 
Germany, and it applies to indefinite detention without trial, 
without the immigration grounds we are now using, as well as to 
military trials. It is an extraordinary claim of power.
    Chairman Leahy. Well, since I am going to follow the lights 
very strictly for everybody, I will stop at that point and not 
do a follow-up.
    Senator Hatch?
    Senator Hatch. Mr. Silliman, if I understand your testimony 
correctly, you are willing to accept that the President can, 
consistent with our laws and our Constitution, establish 
military tribunals to try those accused of violating the ``law 
of war.''
    Mr. Silliman. That is correct, Senator.
    Senator Hatch. But, apparently, your objection to the 
President's order is that we were not technically at war with 
Al Qaeda until after they orchestrated the September 11 
attacks. Your analysis appears to me, at least, to lead to the 
perplexing result that the President could lawfully order trial 
by military tribunal for terrorists who commit war crimes after 
the September 11 attacks, but cannot try them by military 
tribunal for the September 11 attacks themselves.
    Here is where I find it difficult to believe that our laws 
would command such a perverse result: Even if I were inclined 
to accept your analysis, I wonder how you deal with the 
following fact. The President did not premise his order 
exclusively on the September 11 attacks. Rather, his order 
explicitly states, ``International terrorists, including 
members of Al Qaeda, have carried out attacks on United States 
diplomatic and military personnel and facilities abroad and on 
citizens within the United States.''
    Now, the question is, is it your position that it is the 
province of this Congress to second-guess the President's 
factual determination as to when a state of war came into 
being?
    Mr. Silliman. No, Senator. Let me try to explain. My 
analysis is based on a distinction between what we would call 
and have called terrorist acts, such as the initial bombing of 
1993. The bombing of our embassies in Tanzania and Kenya in 
1998 and the bombing on the USS Cole are but examples of this.
    Senator Hatch. Right.
    Mr. Silliman. Now, I suggest that the problem is that every 
time we have looked at violations of the law of war, it has 
been within the context of dealing with state actors. We are 
dealing with non-state actors here, and what I am suggesting is 
that on the 11th of September we dealt with 19 terrorists who 
committed a horrendous act against the World Trade Center and 
the Pentagon. I concede that, but we were not yet at a state of 
armed conflict.
    I agree with the comments that we need not be in a declared 
war. I think all would agree with that, but we were not at that 
moment in a state of armed conflict with any kind of recognized 
entity. And it interests me that in the joint resolution of the 
Congress and in the President's signing order in the 
declaration of emergency issued, there is not one mention of 
violations of the law of war. Continually, the reference is to 
terrorist acts, terrorist acts, terrorist acts.
    The rhetoric of war against terrorism has now been extended 
to create a legal predicate for violations of the law of war, 
and I am unwilling to go that far. I believe, as I suggest in 
my statement, Senator, that the Congress could, in fact, define 
violations of the Law of Nations which go far beyond the law of 
war to include terrorist acts, and could do so either in 
Article 21 of the Code for Military Commissions or in Article 
18 to provide for courts-martial, if the Committee feels that a 
higher level of due process should be in order.
    That is the province of Congress, but I do admit that the 
President of the United States, as Commander-in-Chief, has the 
power under the law of war to bring into being military 
commissions, but only to prosecute violations of the law of 
war.
    Senator Hatch. But you don't think the law of war applies 
in this instance?
    Mr. Silliman. I do not believe that the law of war applies 
at 8:47 on Tuesday morning, September 11. It did at some time. 
My concern, Senator, is as to a prosecution by military 
commission of offenses directly related to that specific 
attack. That is my concern, and I fear that if we were to lose 
a case in a military commission that it would damage the entire 
credibility of the President's authority.
    Senator Hatch. I don't think we would have much chance of 
losing the case if we could find the right people. I mean, 
let's be honest about it.
    In your written testimony, you acknowledge that the 
Secretary of Defense has not yet established the procedures by 
which the military tribunals will operate. You go on to say 
that the guidelines and the modes of proof that will be 
employed by such tribunals will be different than and inferior 
to those employed by the military in connection with the court 
martial process. I don't know how you are able to reach that 
conclusion without knowing the Secretary of Defense's 
forthcoming procedures.
    Mr. Silliman. Senator, I concede, as has been mentioned 
several times this morning, that the Secretary of Defense is 
seeking guidance and counsel right now to promulgate those 
regulations. No one knows to what level of due process he will 
raise that bar.
    Senator Hatch. But you can't presume that he will not 
have--
    Mr. Silliman. No, Senator. My script is the President's 
order itself. As has been suggested earlier in this hearing, it 
could possibly have been prudent for the administration to 
consult with the Department of Defense in a further and more 
extensive mode to bring those due process requirements into the 
initial iteration of the order rather than leaving us as we are 
now to guess.
    Senator Hatch. But you could become more supportive if 
those due process requirements are met?
    Mr. Silliman. I could be more supportive, Senator, 
certainly of trials outside this country, and I could be more 
supportive of trials within this country with a high degree of 
due process. However, the President always has the option of 
using courts-martial, with the assistance of legislation from 
this Committee and other Committees.
    Senator Hatch. Ms. Martin, just one question for you. Many, 
including you, have asserted that the names of each individual 
being held on immigration charges should be released. In 
support of that argument, you cite the Freedom of Information 
Act as support for that argument.
    In 1991, the Supreme Court found that the disclosure of 
unredacted reports of interviews of Haitian nationals who were 
interdicted and returned to Haiti, as to whether they were 
harassed or prosecuted after their return, would have 
constituted a clearly unwarranted invasion of privacy. That is 
in U.S. Department of State v. Ray.
    In so doing, the Court held, among other things, that 
disclosure of the names would publicly identify the returnees, 
possibly subjecting them or their families to embarrassment in 
their social and community relationships, or even to 
retaliatory action.
    Now, my question for you is, is it not reasonable to assume 
that the release of the names of those being held on 
immigration violations could subject those persons to 
embarrassment or harm, if and when they are released?
    Ms. Martin. Senator, I think that the problem here is that 
the administration and the Justice Department have made 
repeated public statements saying that the hundreds of people 
who have been arrested have been arrested in connection with a 
terrorism investigation and the harm to their reputation will 
follow from the fact that they have been identified as being 
arrested in an investigation of terrorism, when there isn't, in 
fact, any evidence linking them to the investigation of 
terrorism.
    Mr. Chertoff, I believe, correctly stated that there is no 
legal prohibition against disclosing the names of those who 
have been detained on immigration violations. The INS, in fact, 
in implementing the Supreme Court decision in Ray which you 
refer to has adopted a regulation which provides that, although 
in many situations the names of immigration detainees will be 
withheld, that will not be the case when questions are raised 
about agency practice. I believe that that is exactly the 
situation before us, and that therefore the names are required 
to be released under the Freedom of Information Act.
    Chairman Leahy. Thank you.
    Senator Feingold?
    Senator Feingold. Thank you very much, Mr. Chairman. I 
would like to ask a question of Professor Katyal and Professor 
Heymann.
    I am concerned about statements I have read or heard in the 
press recently indicating that one reason that the 
administration has moved unilaterally, without authorization or 
consultation with Congress, on a number of issues that we have 
been discussing today, from issuing an executive order on 
military tribunals to regulations on the monitoring of 
attorney-client communications, apparently is that the 
administration believes Congress moves too slowly in 
considering and making decisions.
    Professor Katyal, in your testimony you specifically 
discuss the constitutional necessity of the involvement of 
Congress and the dangers of unilateral actions by the executive 
branch in authorizing military tribunals and monitoring of 
privileged attorney-client communications.
    I am wondering if both Professor Katyal and Professor 
Heymann could comment on the role of Congress in times of 
crisis or national emergency and the importance of 
congressional authorization or consultation with the executive 
branch. Obviously, I am interested in hearing you comment on 
whether there isn't a valuable deliberative process that 
Congress brings to our Nation that is always needed, but is 
especially vital as the Nation responds to a crisis.
    Let's start with Professor Katyal.
    Mr. Katyal. Senator, of course, this body has, after 
September 11, recalibrated and acted efficiently in things like 
the USA PATRIOT Act, working with the administration on a very 
quick basis. But even if this body were to be a slow one in the 
future, efficiency can't be a reason to disregard the 
Constitution.
    President Truman, for example, said that he needed to seize 
the steel mills right away because Congress wasn't going to 
act, and the Supreme Court struck down that executive order and 
said that efficiency can't be a reason for unilateral action. 
So I think that this course of conduct is a tremendously 
dangerous one not just because it disregards separation of 
powers, but also because one day courts are going to review 
what this military tribunal does and it may be the case that in 
some circumstances a court might find that this military order 
is unconstitutional as applied to some of these people.
    Senator Feingold. Thank you.
    Professor Heymann?
    Mr. Heymann. Senator Feingold, there are obviously some 
cases where the executive has to move more quickly than any 
deliberative body of 100, let alone of 535, can act. But the 
matter of military tribunals, particularly as applicable to, as 
I keep repeating, 20 million non-citizens in the United States 
is not one of those matters.
    Other countries have emergency powers--they were not 
written into our Constitution--that allow the president to 
bypass the congress and to bypass anything like a bill of 
rights when the president determines there is an emergency. We 
do not have that in our Constitution. It was not part of our 
tradition and I am very proud that it is not part of our 
tradition.
    Senator Feingold. Thank you, Professor.
    Let me now ask a question of General Barr and General Bell. 
As I understand the President's military order, anyone that the 
President designates as a terrorist, for the purposes of the 
order, would be subject to the exclusive jurisdiction of a 
military commission. This has already been discussed some here 
on this panel.
    As such, this order could conceivably be applied to 
designated terrorists or their supporters who have no 
connection to Al Qaeda or to the tragic events of September 11.
    Now, I would like each of you to address whether you think 
that interpretation is correct and, if so, do you think that 
the President could or should consider establishing military 
commissions to deal with other terrorist-related acts against 
United States interests perhaps in the Middle East or in 
Central America.
    General Barr?
    Mr. Barr. Senator, I think the President has to find either 
that they are members of Al Qaeda or that they are members of 
other terrorist organizations that have either already 
committed or are in the process of committing significant acts 
of terrorism which, under Section 4 of the order, would have to 
be of a magnitude and in a context which would make them 
violations of the laws of war against the United States. So I 
don't think it is as sweeping as people suggest, that the 
potential group of people is as sweeping. But you are right 
that it is not limited to Al Qaeda.
    Senator Feingold. General Bell?
    Mr. Bell. I think modified by the word ``international'' 
terrorism, and I think it has to be some act of war. I think 
again--and I am not sure you were in the room when I said 
this--we need to wait until the Secretary of Defense 
promulgates his orders and regulations to see what a lot of 
these things mean. That would be the time for the Congress to 
really get into whether this can stand or whether there ought 
to be some congressional legislation.
    Mr. Barr. Senator, may I just--
    Senator Feingold. General Barr?
    Mr. Barr. You may have been out when I mentioned that we 
should also bear in mind that if this is used against people in 
the United States--and, of course, it could only be used 
against non-citizens, but if they are in the United States, 
then I think the order allows for the writ of habeas corpus for 
judicial review.
    So when you say exclusive jurisdiction, that is right, but 
the determination up front that this is properly within the 
jurisdiction of the court and there was a reasonable basis for 
exercising it--Article III courts would be open to hear those 
claims for people in the United States.
    Mr. Bell. I agree with that.
    Mr. Heymann. Though the order itself was intended to bar 
all judicial review.
    Mr. Barr. No, that is not right, Phil, because the language 
in the order was taken from FDR's order, and the Supreme Court 
in the Quirin case did not interpret that language as affecting 
their ability under a writ of habeas corpus to review whether 
jurisdiction was proper in the military tribunal. What that 
language does is say that the person is not entitled to a de 
novo Article III trial on the merits.
    Senator Feingold. Do you agree with that characterization, 
Professor Heymann?
    Mr. Heymann. Well, I agree with General Barr that, yes, 
indeed there would be habeas corpus review of, number one, 
whether these tribunals were constitutionally established, and, 
number two, whether the person before them came within the 
terms of a constitutional tribunal.
    Perhaps the order was first written for President 
Roosevelt. I certainly believe General Barr on that, but it was 
written with an obvious intent to eliminate all judicial 
review. In other words, anyone who reads this will think that 
the United States has gone to unreviewable military courts.
    Mr. Bell. I come at it a little different way. I think 
there is an assumption that the President would obey the law, 
and there is no law that the President can suspend the writ of 
habeas corpus. So that is the way I come at it.
    Senator Feingold. Mr. Silliman?
    Mr. Silliman. I would agree with Professor Heymann that it 
is clear that there could be review by the Supreme Court as to 
the jurisdiction of the tribunal, just as in the Quirin case, 
but that the order appears to deny that.
    There is one point, Senator, I think that has not been 
raised that needs to be. The administration has walked a very 
fine line in doing two things. It has tried to capitalize on 
the concept of a war and acts of war, while at the same time 
declaring that those in Al Qaeda are unlawful belligerants, 
unlawful combatants.
    The result of that is that they are denied prisoner of war 
status under the Geneva Convention which would require trial by 
courts-martial. So what the administration has done is forced 
these people into some forum that has minimal due process, and 
I think that needs to be clearly understood.
    Senator Feingold. Thank you for the extra time, Mr. 
Chairman.
    Chairman Leahy. Thank you.
    Senator Specter?
    Senator Specter. Thank you all for coming. I believe this 
has been enormously helpful to have this kind of an analysis. I 
think that had the analysis been held before the promulgation 
of the executive order, it would have been framed somewhat 
differently.
    The executive order does purport, I believe, on its face to 
bar any judicial review. This is the specific language: ``The 
individual shall not be privileged to seek any remedy or 
maintain any proceeding directly or indirectly, or to have any 
such remedy or proceeding sought on the individual's behalf in 
any court of the United States.''
    Now, that is very, very sweeping, but I think it is 
correct, as noted by both General Bell and General Barr, that 
it runs afoul of the Constitution which has a specific 
provision to the contrary: ``The privilege of the writ of 
habeas corpus shall not be suspended unless, when in cases of 
rebellion or invasion, the public safety may require it.''
    Mr. Bell. And then Congress does it.
    Senator Specter. Well, that is not what that phrase says, 
so that I believe there is a lot to be learned from what we 
have been talking about today.
    General Bell, I think your comment about no secret trials 
is very, very helpful. When the Assistant Attorney General 
testified, he talked about the need for secrecy on military 
secrets, and you have been very blunt about it: ``Will the 
trials be secret? No, and it is nonsense to contend 
otherwise.'' I believe that this kind of a commentary will be 
very helpful.
    I want to turn for just a minute to the regulations 
promulgated by the Attorney General on detention of aliens. 
There is no distinction as to legal aliens or illegal aliens, 
and in a Nation of immigrants there are a lot of people who are 
aliens before they become citizens. Both of my parents, for 
example, were aliens when they got to these shores.
    The regulations provide that if an immigration judge 
authorizes the release, it is stayed until there is an appeal 
by the Board of Immigration Appeals. And if the Board of 
Immigration Appeals says the person can be released, then he or 
she is still not released when the commissioner certifies the 
Board's custody to the Attorney General, and then the stay 
continues until a decision by the Attorney General. But I do 
not see any standard for making a determination as to what the 
Attorney General has in mind.
    We questioned earlier today whether the rules were complied 
with about publication in the Federal Register, which did not 
appear until after the order was put into effect, and a comment 
period. The language of ``reason to believe'' may be necessary 
as a minimal standard. I am not sure.
    What do you think about it, Mr. Heymann? Is ``reason to 
believe'' sufficient without probable cause? We do face a 
tremendous threat.
    Mr. Heymann. In the military order, Senator Specter?
    Senator Specter. Well, military tribunals. That is the 
standard, where there is reason to believe that someone is a 
member of Al Qaeda or another terrorist organization.
    Mr. Heymann. The question is whether to take the writing at 
this point seriously. It is written as if it is a subjective 
determination of the President. That Presidential determination 
is plainly not meant to be reviewable by any court. It says, 
``when I determine that I have reasonable suspicion.''
    Senator Specter. Would you require probable cause?
    Mr. Heymann. If anybody living in the United States were to 
be denied civil trails or detainned indefinitely, I would 
require at least that.
    Senator Specter. Well, there is no language of suspicion. 
It is just ``reason to believe.'' If somebody said 
``suspicion,'' it would be challengeable immediately. But we do 
face an enormous threat. We perhaps ought to give some thought 
as to some specification perhaps a little bit beyond ``reason 
to believe.''
    General Bell, what do you think?
    Mr. Bell. Well, some definitions in the regulations would 
help because ``reasonable suspicion'' is an art form and a 
well-known term in law because of use on the borders. We can 
search an automobile at the border on reasonable suspicion, for 
example, but this says ``reason to believe.'' But you are 
talking about some immigration regulations, as I understand it.
    Senator Specter. The Attorney General's detention of 
aliens.
    Mr. Bell. I view the whole immigration legal system as a 
quagmire.
    Senator Specter. That is the nicest thing that has ever 
been said about it.
    [Laughter.]
    Senator Specter. General Barr, a final question. What do 
you think about having a little activity, and perhaps others, 
too, of the Department of Justice playing some sort of a role 
here?
    The responsibility for drafting the rules has been sent to 
counsel in the Department of Defense. We are into some pretty 
tricky areas here, for those of us who have been in the 
criminal courts or with military tribunals or with 
constitutional rights, with all of the contours and 
complexities.
    If you were Attorney General, would you pick up the phone 
and say to the Secretary of Defense, I would like to offer you 
some help?
    Mr. Barr. Absolutely, and I am confident that is going to 
happen. I don't know what the process was, but I know from my 
own experience that I can't think of an executive order that 
would be issued without having some legal review in the 
Department of Justice. I would assume there was some review as 
to form and legality of the order.
    Now, I think you are really getting at what are the rules 
of the game going to be going forward, and it is inconceivable 
to me that the Department of Justice will not be heavily 
involved in consulting with the Secretary of Defense and giving 
them their experience in trying terrorist cases.
    Senator Specter. Well, the Assistant Attorney General this 
morning was not so sanguine about that. He didn't put that in 
the mix.
    Mr. Heymann, did you have your hand up?
    Mr. Heymann. Yes. I just wanted to add a word there. 
Whatever the Secretary of Defense does, the claim of 
presidential power is either going to be accepted by the 
Congress and the courts or it isn't, and it is an extraordinary 
claim of presidential power.
    The Secretary of Defense may cut it back to reasonable 
exercises, and I think these hearings are a very important step 
in that process. But the claim of power here over people all 
over the world and 20 million people in the United States made 
on the basis that the President is asserting seems to me to be 
something that should not go unchallenged.
    Senator Specter. Well, I thank you. I believe it is 
enormously helpful to have--I am sorry I didn't get a chance to 
ask Professor Silliman or Ms. Martin or Professor Katyal a 
question, but it is very helpful to have this kind of mature 
thinking and questioning, and to come to a conclusion which 
accommodates security and constitutional rights.
    Thank you.
    Chairman Leahy. Thank you, Senator Specter.
    I think as a practical matter, the question of who advises 
whom is going to be asked next week. The Attorney General is 
going to be before this Committee, and I believe the Secretary 
of Defense is going to be before the Armed Services Committee, 
and I am sure that they will have the same story. Otherwise, it 
gets interesting. But I am sure they will.
    General Barr, Professor Heymann, General Bell, Professor 
Silliman, Professor Martin and Professor Katyal, thank you very 
much. I agree with what has been said here on both sides of the 
aisle. Your presence here, all of you, has been extremely 
helpful. I know you have been here a long, long time, and I do 
want to add please feel free to add to your transcript. You may 
get additional questions. This has been very helpful, on what 
is probably the most contentious issue presently before the 
Congress. So thank you all very much.
    We stand adjourned.
    [Whereupon, at 1:32 p.m., the Committee was adjourned.]









    DEPARTMENT OF JUSTICE OVERSIGHT: PRESERVING OUR FREEDOMS WHILE 
                      DEFENDING AGAINST TERRORISM

                              ----------                              


              TUESDAY, DECEMBER 4, 2001 (MORNING SESSION)

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The committee met, pursuant to notice, at 10:08 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Charles 
Schumer, presiding.
    Present: Senators Schumer, Feinstein, Feingold, Durbin, 
Hatch, Specter, Kyl, and Sessions.

OPENING STATEMENT OF HON. CHARLES SCHUMER, A U.S. SENATOR FROM 
                     THE STATE OF NEW YORK

    Senator Schumer. The hearing will come to order. I will 
make and then Senator Sessions will make brief opening 
statements. There won't be any others since Senator Leahy and 
Senator Hatch are not coming, and we will then get right to the 
witnesses.
    Before I begin, I want to thank Senator Leahy for helping 
us schedule this hearing. Tomorrow, as you know--or Thursday, 
rather, Attorney General Ashcroft will be here. There are so 
many questions to ask him, and there have been so many 
questions asked on this issue of military tribunals that 
Senator Leahy and I both thought it was a good idea to have a 
sort of warm-up panel, almost, to flesh out some of those 
questions before we hear from Attorney General Ashcroft. And so 
I want to thank Senator Leahy for helping us schedule this 
hearing this morning.
    On September 11th, our world changed dramatically, and our 
focus and our priorities changed along with it. We went from a 
country of peace whose most pressing concern was a slipping 
economy to a Nation at war with a new kind of enemy. In this 
war, we are battling terrorists instead of nations. In this 
war, some of our enemies are already here plotting against us 
in our towns and cities and on our own American soil. The FBI 
has already captured some suspects who the Justice Department 
believes were involved in the terrorist plot of September 11th.
    There are also those prisoners of war who we have captured 
and will capture in Afghanistan and other countries who will 
receive a trial of some sort. It is clear we need to try those 
suspects in a forum that achieves two primary goals--two goals, 
I might add, that may not conflict. First, the Government must 
have the power to use even the most sensitive classified 
evidence against these suspects without compromising national 
security in any way, shape, or form. In addition, those who 
commit acts of war against the United States, particularly 
those who have no color of citizenship, don't deserve the same 
panoply of due process rights that American citizens receive. 
Should Osama bin Laden be captured alive--and I imagine most 
Americans hope he won't be captured alive. But if he is, it is 
ludicrous to suggest he should be tried in a Federal court on 
Center Street in Lower Manhattan.
    Nevertheless, the second priority is to ensure that our 
proceedings, wherever they are held, respect our Nation's great 
tradition of due process. No one wants trials that are ad hoc 
or regarded as unfair, so we need established and fair 
procedures.
    We all want and we all must have trials that both protect 
our national security interests and at the same time respect 
our Nation's great tradition of due process. I believe we can, 
and the question is how we get those two goals to co-exist.
    The administration has proposed the use of secret military 
tribunals as part of the solution. Secret military tribunals 
constitute a significant departure from our normal legal 
system. I believe strongly--and many of my colleagues on both 
sides of the aisle agree--that any departure this significant 
should be vetted by Congress. That is what we are doing here 
today.
    Congressional involvement is essential for a number of 
reasons. First, it respects our tradition of checks and 
balances. Second, it offers an opportunity to discuss how to 
meet the two goals of safeguarding national security and 
ensuring basic rights. That discussion will not only produce a 
better final product, but it will give the final product more 
legitimacy in the eyes of the American people and of our 
friends abroad.
    I think that is the lesson we learned from the anti-
terrorism bill. The Justice Department sent up a list of anti-
terrorism proposals that some criticized as going too far. 
Chairman Leahy offered a set of proposals that some thought 
didn't go far enough, and there were some points, for instance, 
many of us, myself included, agreed with the Justice Department 
and others where we agreed with Senator Leahy. We ended up with 
a bill, in my judgment, that was more balanced, more fair, and 
more effective than either of the first proposals by either 
side, and that is because this committee was involved, not in a 
dilatory way, not in a partisan way, but simply in a way to 
come to the best product. And the final product was better 
public policy. That is what I hope we can work towards with 
this issue as well.
    The President is clearly right in saying that some of the 
terrorism trials will require a forum outside our regular 
Federal courts. And the administration is also correct in 
saying that some of the terrorist suspects we capture, 
especially an American citizen who commits an act of terrorism 
in this war, could be tried in our regular Federal courts with 
certain processes to guard secrecy.
    So we agree that trying at least some terrorists will 
require a new type of forum, and for others, particularly for 
American citizens, we may be able to use our preexisting 
courts, although we might need new procedures to protect 
national security. There is that much of a consensus.
    But when we use a new type of forum or when we use new 
procedures in a traditional forum, we need to figure out how 
such a process should work. That means answering the following 
types of questions:
    Should traditional Article III judges preside, or should we 
bring in special magistrates? What standards of evidence are 
most appropriate? What burdens of proof should be used? Should 
a conviction require the decisions of a unanimous jury? How do 
we ensure that defendants receive effective assistance of 
counsel? Is there a right to appeal? If so, how should the 
appeals process work?
    These are just some of the questions we hope to begin to 
answer today.
    It is also interesting to note that the proposed answers to 
these questions don't fall along the typical liberal and 
conservative lines. There are some on the right, such as 
William Safire and the Cato Institute, who oppose military 
commissions. There are some on the left, including some of the 
witnesses here today, who support military commissions. It just 
shows how complicated these issues really are.
    To answer these questions, we have brought a distinguished 
panel of professors, experts, and practitioners who I will 
introduce after Senators Hatch and Sessions make their opening 
statements.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman. I appreciate 
it. I want to thank you for convening this hearing to discuss 
military commissions. This issue has generated a great deal of 
attention, and I hope this hearing will enlighten the Congress 
and the public again about the difference between the real 
issues and the alarmist rhetoric that has been swirling around 
Capitol Hill in the past few weeks.
    Now, I hope the participants in this hearing will keep in 
mind three basic facts about the President's Order. First, the 
Order is very narrow. The only people it allows to be tried by 
military commissions are non-citizens specifically determined 
by the President to be members of Al Qaeda, supporters of Al 
Qaeda, or people engaged in other international terrorist 
networks. Secondly, the Order is a military command. It 
instructs the Secretary of Defense, not the Attorney General, 
to develop rules and procedures for conducting fair trials for 
those whom the President designates. And, third, the Order has 
not been utilized; as of today, the President has not 
determined that anyone will be tried by military commission, 
and the Secretary of Defense is still working on the rules and 
procedures. And the only secrecy that I can see that is 
involved here with regard to military tribunals is the 
protection of national security matters. And I believe that is 
probably the way this is going to wind up.
    These four points are essential to a useful discussion here 
today because they explain the two different avenues of 
questioning that have emerged. Our primary interest here is 
examining the legal and constitutional question as to whether 
the Order, by itself, is proper and allowed. I think the answer 
to that is yes, and I will explain more about that in just a 
minute.
    President Bush has made it abundantly clear that he regards 
the option of military commissions as a tool to be used only 
with the utmost discretion. After all, the President not only 
retained exclusive authority to determine who will be subject 
to trial by military commission--as opposed to delegating this 
authority--but also constrained himself by limiting the people 
he can designate essentially to non-citizen international 
terrorists. This is unlike the use of military commissions 
after World War II. The 1945 Order establishing military 
commissions for the trial of war crimes in the Pacific theater 
came from the pen of General Douglas MacArthur--not the 
President--and it stated that military commissions had 
jurisdiction over ``all of Japan and other areas occupied by 
the armed forces commanded by the Commander-in-Chief, United 
States Army, Pacific.'' It delegated the decision of whom to 
try to ``the convening authority'' rather than the President. 
In contrast, President Bush's Order has a very narrow scope, 
and it ensures that decisions will be made at the very highest 
level of our Government. I am very much reassured by these 
features of the Order. And so are the American public, seven 
out of ten of whom believe that the Government is doing enough 
to protect the civil rights of suspected terrorists.
    I do not mean to suggest that congressional oversight is 
inappropriate when the public has thought about, and accepted, 
an administration plan. I am strongly in favor of congressional 
oversight. But we should remember that the purpose of oversight 
is to make sure the administration is doing its job. At some 
point, too many partisan hearings and too much hysteria only 
make it more difficult for the administration to do its real 
job. In the Judiciary Committee alone, we are holding four 
hearings in 8 days. And these are multiple hearings on the same 
subjects. We talked about military commissions last week, we 
are talking about them today, and we will talk about them again 
with the Attorney General on Thursday.
    Frankly, I think this committee would better serve the 
public by looking for ways to help, instead of distracting the 
administration, which has an enormous task on its hands and is 
doing a superb job under very difficult circumstances and 
conditions.
    One obvious way we could help is to confirm the nominees 
languishing in this committee for important jobs, including 
judgeships, positions at the Department of Justice, and the 
Office of National Drug Control Policy. As the Washington 
Post--again, I might mention, not known for its membership in 
the vast right-wing conspiracy--editorialized last week, 
``[f]ailing to hold [judicial nomination hearings] in a timely 
fashion damages the judiciary, disrespects the President's 
power to name judges and is grossly unfair to often well-
qualified nominees.''
    Now, in light of the nominations backlog that we have, one 
is hard-pressed to understand the wisdom of holding hearings 
every other work day on whether Osama bin Laden should be able 
to avail himself of the intricacies of the hearsay exception in 
the event that he survives the bombs headed in his direction. 
Am I the only one who finds it ironic that, while no one 
questions the President's authority to instruct the military to 
drop bombs on his hideouts, there is a little group of 
outspoken critics who want to quibble over which set of 
evidentiary rules the Secretary of Defense should apply in bin 
Laden's trial? And this is in a country where we have always 
been decent in protecting the rights of the accused, whether by 
military tribunal or not.
    To those who reflexively oppose the military tribunals, I 
ask, do we really want to litigate in a criminal trial whether 
the soldiers who apprehend bin Laden should have obtained a 
search warrant before entering his cave? Now, that is meant to 
be humorous. Or whether he understood--
    Senator Schumer. We are all laughing.
    [Laughter.]
    Senator Hatch. You should have laughed a little quicker 
than you did.
    Or whether he understood his Miranda rights? Or whether he 
is not guilty by reason of insanity? He certainly is not living 
his religion, we will put it that way.
    I know that some are less worried about bin Laden and more 
concerned about the reaction that our use of military 
commissions would engender in Europe and elsewhere around the 
world. Some have speculated that Spain and other countries 
would refuse to extradite suspects to the United States. To my 
knowledge, no country has made such a refusal yet. And any such 
refusal, if made without reviewing the actual rules and 
regulations that will govern our military commissions, would be 
based on speculation and distrust rather than facts. When the 
United States has criticized other countries for unfair 
military courts, it was because they were unfair, not because 
they were military courts.
    Now, I want to turn to the constitutionality question that 
I mentioned a minute ago. Despite the articulate explanation 
this committee received last week from Assistant Attorney 
General Chertoff, some of my colleagues still question whether 
military tribunals are, in fact, permitted by the Constitution. 
The fact is that the Supreme Court has repeatedly upheld the 
constitutionality of using military commissions to prosecute 
individuals charged with crimes under the law of war. As the 
Supreme Court has explained, ``[s]ince our Nation's earliest 
days, such commissions have been constitutionally recognized 
agencies for meeting many urgent governmental responsibilities 
related to war.''
    Furthermore, contrary to recent suggestion, military 
tribunals can be--and have been--established without further 
congressional authorization. Because the President's power to 
establish military commissions arises out of his constitutional 
authority as Commander-in-Chief, an act of Congress is 
unnecessary. Presidents have used this authority to establish 
military commissions throughout our Nation's history, from 
George Washington during the Revolutionary War to President 
Roosevelt during World War II. Congress, for its part, has 
repeatedly and explicitly affirmed and ratified this use of 
military commissions. Article 21 of our Code of Military 
Justice, codified at section 821 of Title 10 of the United 
States Code, expressly acknowledges that military commissions 
have jurisdiction over offenses under the law of war.
    Now, I would like to also add--and I think it may be 
important to do so--that I think underlying part of the reason 
why the President wants to have military commissions in the 
case of Al Qaeda terrorists in particular--and who knows 
whether he will decide to establish them or not, but he has the 
right to, in my opinion. But one reason that he wants to do 
that is to protect national security interests. Who wants to 
serve on a jury trying Osama bin Laden or Al Qaeda terrorists? 
Or who wants to be in the hotel that is housing those jurors if 
they are sequestered? Or who is going to protect those jurors' 
families? Or who is going to protect the community in which 
those trials are being held?
    We shouldn't pussyfoot around here. There are some things 
that literally are to be considered. Others have said, well, 
the World Trade Center trials were held, and they went off just 
perfectly. Yes. Well, an awful lot of the architecture of the 
World Trade Center buildings was disclosed in those trials, as 
I understand, giving the Al Qaeda people even more ability to 
destroy those towers and to devastate our whole country, and 
the world, as a matter of fact.
    And who knows what else could be done by people who don't 
abide by even the rules of war, who don't abide by morality and 
decency, who distort their own religious principles to oppress 
their own people, and who have no qualms about using weapons of 
mass destruction if they can get their hands on them?
    So I can understand why the President feels the way he 
does. I can understand why so many people in this country feel 
the way they do under these circumstances.
    In closing, Mr. Chairman, I want to thank you again for 
convening this hearing. I have criticized having so many of 
them, but I also know that you have, if anybody in this body 
has the right, to call a hearing like this, you certainly do. 
Coming from New York City and representing your State, you have 
done a magnificent job in doing it. So I just want you to know 
that this hearing is an important hearing. I think you have a 
right to call it. I just don't think we need all of them, and I 
don't think we need to take all the time that we do. But this 
is an important hearing for the truth about these issues to be 
made public, and I look forward to hearing from our witnesses. 
And I know there will be some who will disagree with some of 
the things that I have said, and I respect that and will 
respect them. But this is a very trying time for our country, 
very, very difficult time for the President and those who are 
working with him. And we need to get behind him, and we need to 
quit worrying so much about whether or not this is going to be 
fair since I can't imagine any military tribunal, the same 
similar tribunals in a sense that try our own young men and 
women when they commit crimes, I can't imagine them being 
unfair. And I have to say that since our young men and women 
are subjected to these rules, I find it a little bit difficult 
to see why we should argue why Osama bin Laden deserves more 
constitutional protection than they do.
    Thank you, Mr. Chairman.
    Senator Schumer. Thank you, Mr. Hatch.
    Just one thing. Let the record show this is the first 
hearing that is being held on this subject. There was one last 
week on all of the subjects. The one Thursday is on all. There 
has been none on this subject, and I think if you are right, 
then you would welcome such a hearing because all the questions 
will come out. The witnesses are chosen down the middle. You 
chose as many as we did. And sunlight is great in producing 
good product. And no one is trying to delay it. No one is 
trying to impede the President's role. I am of an open mind on 
this issue, as you know. And you comparing these to courts-
martials, finding out exactly what the administration has in 
mind, fleshing out the differences, that is our job. It is not 
our job to impede. It is our job to make our country work best.
    Senator Hatch. I agree.
    Senator Schumer. And that is what we are doing here. And I 
think anybody who thinks we shouldn't have one hearing devoted 
to this subject, an important subject, doesn't understand the 
process. I don't think you are saying that. You welcome this 
hearing.
    Senator Hatch. No, no. I welcome the hearing.
    Senator Schumer. But that is our job.
    I would like to call on my ranking member, a gentleman I 
have worked very closely with, and it has always been a 
pleasure to work with Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Chairman Schumer. As Senator 
Hatch noted, I know that you feel deeply about civil liberties, 
and I know you feel deeply about the terrorists who attacked 
your city, and no one feels more personally the pain of the 
families than you, and you have done an outstanding job--
    Senator Schumer. Thank you. I appreciate it.
    Senator Sessions. --in defending the interests of New York 
in so many ways, some of which are made public, some of which 
are not. So I think it is fine and good to have hearing like 
this to discuss these issues, particularly in light of some of 
the extreme, I have to say, charges that have been made about 
the procedures as being unprecedented and secret and unfair and 
unjust and unconstitutional and contrary to law. So I think 
that is what we ought to do today. Let's put it out on the 
table. To the extent to which someone can improve what goes 
forward, I would be pleased to hear it.
    I was also pleased that Secretary Rumsfeld on ``Meet the 
Press'' Sunday said he has not completed his view of how the 
procedures ought to be handled, and he welcomed debate and 
input into how to make them better. I am certain he has no 
interest in convicting someone of a war crime that is not 
guilty of a war crime, and I would say, as a former prosecutor 
and also as a former JAG officer for a few years in the Army 
Reserve, that our military justice system is a good system, and 
the officers and enlisted people who participate in courts-
martials and other tribunals and commissions in the military 
are men and women of integrity. They are men and women of 
personal discipline. They follow rules and law as given to 
them. And F. Lee Bailey, I believe, as I recall, has repeatedly 
praised military justice as being fair justice. And somehow to 
suggest because a trial is going to be tried by military 
officers or military people that this is inherently unfair is 
not so.
    I think the proof is in the pudding. The proof is whether 
or not justice is occurring and does occur. And it is important 
for this great Nation, the beacon of liberty and the symbol of 
law in the world, the rule of law, that we conduct these 
hearings fairly, and I am confident that that will occur.
    I will offer my full statement into the record. It deals 
with many of the details of the issues.
    Senator Schumer. Without objection.
    Senator Sessions. And I know Senator Hatch has made a 
number of the points that I would have made had he not been 
here, most eloquently also. But let me just mention what 
Justice Jackson, who was the leader at the Nuremberg trials, 
said. And I think he comes right down to this point. And let me 
also note, I am not aware throughout history that people who 
have been involved in violations of the rules of war or 
combatants have been tried in civil courts normally. I am just 
not aware that that has ever occurred. I am not sure that there 
has ever been an incident where an illegal combatant in a 
wartime situation has been tried in civilian courts. Perhaps it 
is true, but normally not. But this is what Justice Jackson 
said at the Nuremberg trials, which was not a normal civil 
trial, for the Nazi war criminals. He said, ``We must never 
forget that the record on which we judge these defendants is 
the record on which history will judge us tomorrow. To pass 
these defendants a poisoned chalice is to put it to our lips as 
well. We must summon such detachment and intellectual integrity 
to our task that this Trial will commend itself to posterity as 
fulfilling humanity's aspirations to do justice.''
    And just as history judged the Allied powers by how they 
conducted the Nuremberg trial, so history will judge America by 
how we conduct the trials of these terrorists. We do not want 
history to conclude that America, through these military 
commissions, rendered victor's justice, but real justice. And, 
you know, I think that MacArthur, he just did these trials with 
very little supervision. But because he did them right, we have 
a new relationship and better relationship with Japan today. 
Some of those things simply had to be done. Eisenhower did 
commissions in Europe, and it has strengthened our 
relationship, the way they were conducted. And I believe when 
this is concluded, likewise our relationships with the people 
in the Middle East, their respect for American justice will be 
enhanced. But I must say that we do not need to bring them all 
back to the United States to make our courtrooms a target for 
all those hatreds and venom that may be still out there. I 
think that would be unwise. And I would also note that you 
can't try these cases consistently even with certain rules that 
allow the protection of certain secrets without the terrorists' 
being able to learn a great deal more about how our systems of 
intelligence and surveillance and electronics work. And I think 
that would be dangerous, too.
    Thank you, Mr. Chairman. I look forward to this excellent 
panel of witnesses.
    [The prepared statement of Senator Sessions follows:]

   Statement of Hon. Jeff Sessions, a U.S. Senator from the State of 
                                Alabama

    I commend Senator Schumer for holding this hearing to examine the 
use of military commissions to try terrorists who commit war crimes 
against American citizens.
    It is a good and healthy thing to debate and discuss every aspect 
of these procedures. I welcome that. So has Secretary of Defense 
Rumsfeld. I would be surprised if we do not find some suggestions to 
improve the system. But, I must say there has been a host of changes, 
some very extreme, that are justified by the Constitution, statute, 
history or reason.
    The last example of this tactic was the USA Patriot Act--the Anti-
Terrorism Bill--that was vilified by political interest groups as 
``shredding the Constitution,'' ``stripping our privacy,'' etc. When 
the bill was reviewed by more serious minds, however, we found that the 
bill's provisions did not violate the Constitution, and, after 
adjustment by Congress, the bill passed with an overwhelming vote.
    Similarly, today, with respect to the President's order providing 
for the use of military commissions, we are hearing the ACLU state that 
the commissions ``could easily be used against any one of some 20 
million non-citizens within America.'' ACLU Urges Congress to Leash New 
Military Tribunals, Reestablish Oversight (visited Dec. 3, 2001) 
. In fact, the President's November 
13th Military Order has a requirement in addition to non-
citizenship: that the non-citizen be a member of al Quaida or engaged 
in or aiding someone engaged in international terrorism. Military Order 
of November 13,20001, Sec. 2(a)(1)(i) and (ii). We can be sure that 
only a very small fraction of the 20 million non-citizens in America is 
engaged in international terrorism.
    The People for the American Way charges that ``the attorney general 
and his allies are acting in ways that threaten to circumvent [] checks 
and balances, effectively amending our Constitution by executive 
fiat.'' Statement of Ralph G. Neas, President of People for the 
American Way, concerning the Senate Judiciary Committee's hearings on 
civil liberties, (visited Dec. 3, 2001) . In fact, the President's Military Order 
is directly consisted with the orders of prior presidents, Congress's 
statutes providing for military commissions, and the Supreme Court's 
cases approving the use of military commissions by the President and 
his military subordinates.
    We have heard claims that the President's Order will result in 
``secret trials.'' Written Testimony of Kate Martin, Hearing Before the 
Committee on the Judiciary: DOJ Oversight: Protecting Our Freedoms 
While Defending Against Terrorism p.11. (Nov. 28, 2001). In fact, White 
House Counsel Gonzales has explained that the trials will only be as 
secret as the ``urgent needs of national security'' require. Alberto 
Gonzales, Martial Justice, Full and Fair, New York Times, Nov. 30, 
2001, at A27. We do not want judges and jurors to be under death 
threats from terrorist groups like the judge in the 1998 embassy 
bombing trial.
    We have also heard people compare the President's Military Order to 
the World War II internment of over 70,000 Japanese based on their 
race--the Korematsu case. Written Testimony of Prof. Neal Katyul, 
Hearings Before the Committee on the Judiciary, DOJ: Oversight 
Protecting Our Freedoms While Defending Against Terrorism, p. 8. In 
fact, unlike the World War II internment, the President's Military 
Order expressly provides that persons detained thereunder will be 
``treated humanely, without any adverse distinction based on race.'' 
Military Order of November 13, 2001 Sec. 3(b) (emphasis added). 
Further, the military commissions will provide for what the internment 
order did not--an individualized determination of whether an accused 
committed a crime, in this case, an international war crime.
    Finally, I have a press article railing that the President's 
Military Order amounts to a seizure of ``dictatorial power,'' that it 
provides for the use of ``military kangaroo courts,'' and that it is a 
``Soviet-style abomination.'' William Safire, Seizing Dictatorial 
Power, The New York Times, November 15, 2001, at A31. Military trials 
are full and fair. Our service men and women are subject to them every 
day. Indeed, F. Lee Bailey, famed criminal defense lawyer, has 
consistently praised their fairness. It is a slap in the face to 
America's military and its history of dispensing justice to call this 
system a `kangaroo court.'
    When seriously examining an issue of national, or in this case 
international, importance, it is incumbent upon the Senate to separate 
partisan rhetoric from legitimate substance. I commend Senator Schumer 
for taking this approach.
    With respect to military commissions, my personal experience as a 
federal prosecutor and as an Army Reserve JAG officer taught me that 
violation of federal criminal statutes are tried in Article III courts, 
violation of the Uniform Code of Military Justice are tried before 
courts martial, and violations of the laws of war are tried before 
military tribunals, including military commissions. My experience has 
also taught me that any court, civilian or military, must be fair and 
adhere to the rule of law.
    Our country has been attacked by ruthless terrorists who slipped 
into this country, hijacked civilian airliners, and killed 
approximately 4,000 of our civilian citizens without warning, without 
trial, and without justice. They have declared a war against America 
and everything that we stand for--liberty, justice, and the rule of 
law. They have committed war crimes and thus voluntarily gave up the 
protections that the law provides to civilian or to military servicemen 
who follow the law of war.
    On September 18, 2001, the Congress exercised its authority under 
the War Powers Act to authorize President Bush to use all necessary 
military force to defend the United States and our people. Joint 
Resolution to Authorize the Use of United States Armed Forces Against 
Those Responsible for Recent Attack Launched Against the Untied States, 
Pub L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001). On November 13, 
2001, President Bush issued an order authorizing the trial of captured 
terrorists for war crimes in military commissions. (1942).
    It is against this background that we address the questions that 
have been raised as to the legitimacy of the President's Military 
Order. We should begin with Constitution and our history.
    Constitution, Statute, and Supreme Court Precedent Authorize the 
Use of Military Commissions--First, the President's Military Order is 
based on sound legal authority that has been recognized by all three 
branches of government. Article 2, section 2, Clause 1 of the 
Constitution provides that the ``President shall be Commander and Chief 
of the Army and Navy of the United States. . . .'' In In re Yamashita, 
327 U.S. 1, 10 (1946), the Supreme Court held that the President's 
commander in chief power includes the power to try war criminals by 
military commission.
    Article I, Sec. 8, cl. 10 of the Constitution confers upon Congress 
the power ``To define and punish. . .Offences against the Law of 
Nations,'' and the law of nations includes the law of war.
    In exercising its constitutional power, Congress passed section 821 
of Title 10 of the United States Code that states, in pertinent part:
    ``The provisions of this chapter conferring jurisdiction upon 
courts-martial do not deprive military commissions. . .of concurrent 
jurisdiction with respect to offenders or offenses that by statute or 
by the law of war may be tried by military commissions. . . .'' 
(Emphases added)
    President Roosevelt ordered the trial of eight Nazi saboteurs by 
military commission 1942. Military Order of July 2, 1942. In Ex parte 
Quirin, 317 U.S. U.S. 1 (1942), the Supreme Court approved President 
Roosevelt's order. In In re Yamashita, 327 U.S. 1 (1946), the Supreme 
Court approved the use of a military commission, ordered by General 
MacArthur, to try a Japanese war criminal.
    Thus, President Bush's order to try terrorists involved with 
killing 4,000 innocent Americans is based on precedent from all three 
branches of government: Legislative, Executive, and Judicial.
    History--Second, American history is replete with examples of the 
President, or our military commanders, using military commissions to 
try those charged with offenses against the law of war. General George 
Washington appointed a military tribunal to try Major Andre, a British 
spy who was cooperating with Benedict Arnold. Ex parte Quirin, 327 U.S. 
1, 31 n.9.
    During the Mexican War of the 1840s, General Winfield Scott ordered 
military commissions to try offenses against the law of war. Ex parte 
Quirin, 327 U.S. 1, 31 n.9 (1942).
    During the Civil War, Union Army General Order No. 100, provided 
for the use of ``military commissions'' to try offenses outside the 
rules of war. Ex parte Quirin, 317 U.S. 1, 31 n.9 (1942).
    During World War II, President Roosevelt used a military commission 
to try the eight Nazi saboteurs who surreptitiously slipped into this 
country without military uniform and conspired to blow up government 
and private property. Ex parte Quirin, 317 U.S. 1 (1942).
    After World War II, President Truman agreed to use an International 
Military Tribunal to try major Nazi war criminals at Nuremberg. TELFORD 
TAYLOR, AN ANATOMY OF THE NUREMBERG TRIALS 73 (1992). Further, Generals 
Eisenhower and MacArthur used military commissions to try hundreds of 
war criminals in Europe and Asia. See Maximillian Koessler, American 
War Crimes Trials in Europe, 39 Geo. L.J. 18 (1951).
    President Bush's order to try the terrorists involved with killing 
the 4,000 innocent Americans is consistent with these historic 
precedents.
    Constitution Does Not Require that Procedures be Set by Congress--
Third, the President may legally provide for the Department of Defense 
to draft procedures for the Military Commissions. Congress has 
expressly provided in section 836 of Title 10 of the United States Code 
that ``[p]retrial, trial, and post-trial procedures, including modes of 
proof, for cases arising under this chapter triable in. . .military 
commissions. . .may be prescribed by the President. . .'' (Emphasis 
added.)
    Acting under similar authority, President Roosevelt ordered that 
the Military Commission that would try the eight Nazi saboteurs would 
set its own procedures. MILITARY ORDER OF JULY 2, 1942 (``The 
Commission shall have power to and shall, as occasion requires, make 
such rules for the conduct of the proceeding, consistent with the 
powers of military commissions under the Articles or War, as it shall 
deem necessary for a full and fair trial of the matters before it.'').
    President Truman, through his representative Justice Jackson, 
provided that the Allied prosecutors would submit, and the military 
tribunal would approve, procedures for conducting the Nurembery trial. 
See CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL ART. 14(E).
    President Bush's order to try the terrorists who helped kill 4,000 
innocent Americans provides for the issuance of further procedures by 
the Department of Defense and is thus consistent with the traditional 
deference that Congress has shown to past Presidents who ordered 
military commissions.
    Different Procedures for Military Commissions--Fourth, military 
commissions and tribunals dealing with war crimes have traditionally 
had different means of adopting procedures, different standards of 
evidence, different voting requirements, and different appeal rights 
than Article III courts by our servicemen.
    The charter for the Nuremberg International Military Tribunal 
provides that the prosectors would draft the procedures prior to trial 
for the military tribunal's approval, that evidence would be admitted 
if it had probative value, that a majority vote was sufficient in all 
cases, and that there would be no appeals. CHARTER OF THE INTERNATIONAL 
MILITARY TRIBUNAL ART 14(e) (procedures), 19 (evidence), 4(c) (vote), 
and 26 (appeal).
    Similarly, President Roosevelt's proclamation for the trial of the 
eight Nazi saboteurs by military commission provided for the commission 
to set its own procedures, for evidence to be admitted when it had 
probative value to a reasonable man, for conviction by a two-third's 
vote, and for no direct appeal to a higher court. Military Order of 
July 2, 1942.
    Consistent with these precedents for the admission of evidence with 
probative value to a reasonable person, for conviction by a two-third's 
vote, and for no direct appeal. Military Order of November 13, 2001 
Sec. 4. Of course, terrorists tried in the United States will have 
habeas corpus review in the federal courts. Ex parte Quirin. 317 U.S. 1 
(1942). Before we criticize the Department of Defense's procedures, we 
should wait until all the procedures are drafted and we have had an 
opportunity to review them.
    Constitution Does Not Require Consultation--Finally, while Article 
II, Section 2, Clause 2 of the Constitution indicates that the 
President should obtain the Advice and Consent of the Senate in 
appointing federal judges, there is no similar consultation requirement 
for the issuance of military orders. Article II, Section 2, Clause 1 
provides that the President is the Commander in Chief. As Commander in 
Chief, several Presidents have issued orders and authorized agreements 
to try war criminals by military tribunal or commission without 
adhering to a consultation with Congress requirement.
    In Ex parte Quirin, 317 U.S. 1 (1942), the Supreme Court upheld the 
constitutionality of the military commission without any reference to a 
consultation with Congress requirement. The Court held that existing 
statutes--the pre-Uniform Code of Military Justice statutes--recognized 
military commissions as the proper forum to try persons accused of war 
crimes. Id. at 29.
    Similarly, there was no formal question raised that President 
Truman should have consulted with Congress before agreeing with the 
other Allied Powers to use an International Military Tribunal to try 
the major Nazi war criminals. TELFORD TAYLOR, THE ANATOMY OF THE 
NUREMBERG TRIALS 73 (1992). And the President's subordinates, Generals 
Eisenhower and MacArthur, issued orders allowing literally hundreds of 
military commissions to try lesser war criminals without adhering to 
any consultation with Congress requirement. Maximillian Koessler, 
American War Crimes Trials in Europe, 39 Goe. L.J. 18 (1951). In In re 
Yamashita, 327 U.S. 1 (1946), the Supreme Court upheld the use of 
Military Commissions to try war criminals, again with no mention of a 
consultation requirement for the President or the Generals with 
Congress.
    The same constitutional and statutory authorizations for the 
President's use of military commissions. remain in the law today. 
Article II, Section 2, Clause 2; 10 U.S.C. Sec. 821. No additional 
enactments or resolutions of Congress are required. Accordingly, while 
a formal consultation by President Bush with Congress would have been 
politically expedient, it was not constitutionally required. 
Nonetheless, I am pleased to see this hearing, and I hope to see 
increased consultation and cooperation with the Congress in the future.
                               Conclusion
    In sum, the President had constitutional, congressional, and 
historical authority to issue the November 13th Military 
Order calling for trial of the terrorists who helped to kill 4,000 
innocent Americans by military commissions. Instead of listening to the 
knee-jerk reaction of political interest groups attacking the 
Administration, we should await the issuance of the procedures by the 
Department of Defense. We should then review the procedures and provide 
constructive criticism.
    I was very pleased Sunday to hear Secretary of Defense Rumsfeld 
welcome comment and debate on this subject as the DOD drafts its 
procedures. I am sure the Department of Defense will keep in mind that 
the procedures by which the accused terrorists are to be judged must be 
fair in fact and in appearance. As Justice Jackson said in his opening 
statement at the Nuremberg trial: ``We must never forget that the 
record on which we judge these defendants is the record on which 
history will judge us tomorrow. To pass these defendants a poisoned 
chalice is to put it to our lips as well. We must summon such 
detachment and intellectual integrity to our task that this Trial will 
commend itself to posterity as fulfilling humanity's aspirations to do 
justice.'' TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS 168 
(1992).
    Just as history judged the Allied powers by how they conducted the 
Nuremberg trial, so history will judge America by how we conduct the 
trials of the terrorists. We do not want history to conclude that 
America, through these military commissions, rendered ``Victor's 
Justice,'' but real justice. We have done it before, and we can do it 
again.
    While I will defer to the President until the procedures for the 
commissions are published by the Department of Defense, I thank the 
Chairman for holding this hearing, and I look forward to hearing from 
our excellent witnesses.

    Senator Schumer. Thank you, Jeff. And, again, as I stated, 
I agree with you. I don't think anybody--some may, but I don't 
think any--most everybody disagrees that there is a need for 
secrecy and having a regular civil trial, criminal trial 
doesn't make sense here. We are just trying to figure out where 
the appropriate balance ought to be. What the President has 
proposed, first, hasn't been fleshed out. Second, unlike what 
Senator Hatch said, it is not a courts-martial. There are more 
procedures in a courts-martial. We may come to the conclusion 
on this committee that it ought to be the same as a courts-
martial.
    Senator Sessions. But a courts-martial doesn't give all the 
protections that a civil trial that we think protect 
defendants. But we don't think it is unjust.
    Senator Schumer. That is correct.
    Senator Sessions. And I would note Mr. Gonzalez, the White 
House counsel, had written an op ed in the New York Times in 
which he did make a strong statement that these commissions are 
not--these commission trials are not secret. The President's 
Order authorizes the Secretary to close the proceedings to 
protect classified information. It does not require any trial, 
or even portions, to be conducted in secret. And we should be 
as open as possible, he said.
    Senator Schumer. And we have dealt with that under the CIPA 
law in the past as well, so we have good precedents here. We 
have got to figure out what to do. I think a lot of the 
problems here have occurred because the initial statements were 
so vague and so broad, and we are hoping to flesh those out.
    We were just going to have the ranking members make opening 
statements, but I have been told that Mr. Feingold wants to 
make a brief statement. I know he feels very strongly about 
this, and so with the permission of the committee, I would call 
on Senator Feingold for a brief opening statement.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Mr. Chairman, I certainly don't want to 
delay things, and I will only speak for a minute. But I would 
like to welcome all the witnesses here today, and I certainly 
want to thank the chairman. This is an extremely important 
hearing to be held, in particular because I am concerned that 
the President has not adequately consulted with Congress on the 
issue of military commissions. I am concerned that he has not, 
in my reading, demonstrated that the civilian courts are 
inadequate to conduct these trials, particularly when 
terrorists have previously been tried in civilian courts, and 
I, like the chairman--and I want this clear--do not oppose the 
concept of tribunals categorically. In fact, I believe the use 
of an international court at Nuremberg was effective in 
bringing Nazi war criminals to justice in a fair manner, but 
also while conferring legitimacy to the process. But I believe 
that military tribunals are proceedings our Nation should 
pursue only after careful thought and consideration.
    For example, if people want to talk about the issue of the 
first World Trade Center trials, that is a fair example to 
discuss. When the ranking member, Senator Hatch, suggests that 
there was secret information about the structure of the 
building and information about the building, the question isn't 
simply do you take a leap then and assume that you have to use 
a military tribunal. The first question should be: Could that 
information have been adequately protected in a regular court 
through our laws, for example, under the Classified Information 
Procedures Act and other bills? That should be the first 
question.
    I want to say that I am certainly not happy about the fact 
that that information came out in that trial. That was 
obviously a mistake. But that does not allow a leap to assuming 
that you have to go wholesale to a military tribunal approach. 
It means you have to use the protections that are provided 
under current law.
    If it turns out that the evidence suggests that that is not 
adequate, so be it. Then I would join with the chairman and 
talk about the need to do something else. But I think it is far 
too easy to suggest that simply because a mistake was made 
there it can't be addressed under our current system.
    In that context, I just want to briefly express my alarm at 
the failure of the Department of Defense to appear before the 
committee today. The Department of Defense was invited to 
appear before us today, but I understand that the Department of 
Defense declined to appear. I would note that this committee 
has already heard from the Department of Justice on the issue 
of military commissions, and today we will hear from the 
Department of State. But we have yet to hear from the 
Department of Defense. And that is the Department which has the 
primary authority under the President's Order for the creation 
and administration of the commissions.
    I am very concerned by this lack of meaningful 
consultation, and I do hope that representatives of the 
Department of Defense will appear before us in the future to 
discuss these important issues.
    I thank you, Mr. Chairman.
    Senator Schumer. Thank you, Senator Feingold.
    Senator Feinstein. Could I make a brief statement?
    Senator Schumer. Certainly. Senator Feinstein, who has been 
an active and diligent member of this committee.

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Thank you very much, Mr. Chairman, and 
I, too, thank you for these hearings. I think they are 
extraordinarily important that if we do go into the military 
tribunal, we go in with an understanding of exactly what is 
going to take place.
    I for one think the goal of the tribunal is a good one: 
swift, fair, full justice, without revealing national secrets 
or making a courthouse into a target for terror.
    To read some of the critics, it would appear that these 
tribunals will not be limited to the most visible or heinous 
terrorists. Instead, even a long-time resident alien in the 
United States could suddenly be thrust before a secret tribunal 
of military officers, and with no opportunity to appeal, the 
individual could be sentenced to death by a mere preponderance 
of the evidence and by just two-thirds of the tribunal members 
present at the time. This would indeed be of deep concern and 
deeply troubling. I don't know whether this is accurate or not. 
I hope the witness will clarify it. But this is important to 
flesh out, I think, at this hearing.
    Just to be very brief, Mr. Chairman, I hope that the Bush 
administration will work with the committee and the full 
Congress as it moves forward in this analysis. I, too, have 
read Judge Gonzales' article. I, too, have read Professor 
Tribe's article. I think both present some very interesting 
views which we need to press a little further on to be sure 
that we know the confines and the context in which these 
tribunals will be held.
    Senator Schumer. Well, thank you, Senator Feinstein. I 
thank all the members here. You can see the broad range of 
views but, more importantly, the many questions. And just, 
again, when I heard Senator Hatch's statement, I thought he was 
saying to even ask any questions about this is wrong. I was 
glad at the end he backed off that because I think that would 
be totally inappropriate. And that is what we are here to do. 
There are so many questions, such as the Senator from 
California has answered, who these apply to, what the rules 
are, et cetera. And I think most of us believe that there is a 
need for some kind of tribunal. We are beginning the 
questioning process and the fleshing-out process right now, and 
I appreciate that.
    I want to introduce our first witness. The Honorable 
Pierre-Richard Prosper serves as the Ambassador-at-Large for 
War Crimes Issues at the Department of State. He received his 
B.A. from Boston College, his J.D. from Pepperdine University 
School of Law. Prior to his appointment, Ambassador Prosper 
served between 1999 and 2001 as special counsel and policy 
adviser in the Office of War Crimes Issues. He was detailed to 
the State Department from the Justice Department, where he 
served as special assistant to the Assistant Attorney General 
for the Criminal Division. From 1996 to 1998, Ambassador 
Prosper served as war crimes prosecutor for the United Nations 
International Criminal Tribunal for Rwanda. Before that he 
prosecuted cases as an Assistant U.S. Attorney in California.
    Before you begin, Ambassador Prosper, I want to let you 
know, and everyone else here, that we did invite, as Senator 
Feingold mentioned, the Department of Defense to send 
representatives to this hearing. We thought it was important to 
have them here since they have been charged with drafting the 
regulations for the commissions. Many of the details and 
questions we have can be answered by them, and, unfortunately, 
the Defense Department refused to send a witness. I think that 
doesn't serve the purposes they seek, which is in gaining--in 
coming to the right conclusion because they are debating it 
right now, and I hope that they will in the future be more 
willing to address this committee and this subcommittee.
    With that, Ambassador Prosper, that does not say we are not 
grateful and honored that you are here, in addition, and thank 
you for being here. Your entire statement will be read into the 
record, and you may proceed as you wish.

 STATEMENT OF HON. PIERRE-RICHARD PROSPER, AMBASSADOR-AT-LARGE 
  FOR WAR CRIMES ISSUES, DEPARTMENT OF STATE, WASHINGTON, D.C.

    Ambassador Prosper. Thank you. Mr. Chairman, members of the 
committee, I thank you for this opportunity to speak with you 
regarding the Military Order issued by the President on 
November 13th in response to the tragic events of September 
11th. The events remind us that we must vigorously pursue 
justice to ensure that the acts not go unpunished.
    Mr. Chairman, members of the committee, I come before you 
as Ambassador-at-Large for War Crimes Issues and also as a 
former prosecutor. Prior to my appointment to this post, I 
spent 10 years in the trenches as a line prosecutor. As a 
deputy district attorney in Los Angeles, I prosecuted hundreds 
of cases and tried dozens of murder cases and multiple murder 
cases as a member of the Hard Core Gang Division. As an 
Assistant United States Attorney, I prosecuted and investigated 
sophisticated international drug cartels trafficking tons of 
cocaine into the streets of Los Angeles. And as a lead 
prosecutor for the United Nations International Criminal 
Tribunal for Rwanda, I successfully prosecuted, in a 14-month 
trial, the first-ever case of genocide before an international 
tribunal under the 1948 Genocide Convention.
    With this experience, I recognize, understand, and truly 
believe that there are different approaches that can be used to 
achieve justice. I recognize that different procedures are 
allowed and that different procedures are appropriate. No one 
approach is exclusive, and the approaches need not be identical 
for justice to be administered fairly. But in all approaches, 
what is important is that the procedures ensure fundamental 
fairness. And that is what the President's Order calls for.
    After the tragic events of September 11th, we as a Nation 
were forced to reexamine our traditional notions of security, 
our conceptions of our attackers, and our approaches to 
bringing to justice the perpetrators. The conventional view of 
terrorism as isolated acts of egregious violence did not fit. 
The atrocities committed by the Al Qaeda organization at the 
World Trade Center in New York, at the headquarters of our 
Department of Defense, and in Pennsylvania were of the kind 
that defied the imagination and shocked the conscience.
    These atrocities are just as premeditated, just as 
systematic, just as evil as the violations of international 
humanitarian law that I have seen around the world. As the 
President's Order recognizes, we must call these attacks by 
their rightful name: war crimes.
    President Bush recognized that the threat we currently face 
is as grave as any we have confronted. While combating these 
war crimes committed against U.S. citizens, it is important 
that the President be able to act in the interest of this 
country to protect the security of our citizens and ensure that 
justice is achieved. He has repeatedly promised to use all the 
military, diplomatic, economic, and legal options available to 
ensure the safety of the American people and our democratic way 
of life. The President should have a full range of options 
available for addressing these wrongs. The Military Order adds 
additional arrows to the President's quiver.
    Should we be in a position to prosecute bin Laden, his top 
henchmen, and other members of Al Qaeda, this option should be 
available to protect our civilian justice system against this 
organization of terror. We should all ask ourselves whether we 
want to bring into the domestic system dozens of persons who 
have proved they are willing to murder thousands of Americans 
at a time and die in the process. We all must think about the 
safety of the jurors, who may have to be sequestered from their 
families for up to a year or more while a complex trial 
unfolds. We all ought to remember the employees in the civilian 
courts, such as the bailiff, the court clerk, and the court 
reporter, and ask ourselves whether this was the type of 
service they signed up for--to be potential victims of terror 
while justice is pursued. And we all must think about the 
injured city of New York and the security implications that 
would be associated with a trial of the Al Qaeda organization.
    With this security threat in mind, we should consider the 
option of military commissions from two perspectives. First, 
the President's Military Order is consistent with the precepts 
of international law. Second, the military commissions are the 
customary legal option for bringing to justice perpetrators of 
war crimes during a time of conflict.
    The Military Order's conclusion that we are in a state of 
armed conflict deserves some comment. Because military 
commissions are empowered to try violations of the law of war, 
their jurisdiction is dependent upon the existence of an armed 
conflict, which we have.
    It is clear that this series of attacks against the United 
States is more than isolated and sporadic acts of violence or 
other acts of a similar nature. Rather, a foreign, private 
terrorist network, with the essential harboring and other 
support of the Taliban-led Afghanistan, has issued a 
declaration of war against the United States. It has organized, 
campaigned, trained, and over the course of years repeatedly 
carried out cowardly and indiscriminate attacks.
    Tracing the criminal history of this organization further 
confirms that we are in a state of armed conflict. A decade's 
worth of hostile statements by bin Laden over and over and over 
again state that he is at war with the United States. He has 
instructed his followers to kill each and every American. We 
should also consider the intensity of the hostilities and the 
systematic nature of the assaults. Consider the fact that Al 
Qaeda is accused of bombing the World Trade Center in 1993 and 
attacking U.S. military service personnel serving in Somalia in 
that same year. Consider that bin Laden and Al Qaeda are 
accused of attacking and bombing the embassies in Nairobi, 
Kenya, and Dar es Salaam, Tanzania. Remember that Al Qaeda is 
accused of perpetrating last year's bombing of the U.S.S. Cole. 
And, of course, added to this history are the horrifying and 
unprovoked air assaults on the Twin Towers in New York, the 
Pentagon, and the airplane tragedy in Pennsylvania.
    It is clear that the conduct of Al Qaeda cannot be 
considered ordinary domestic crimes, and the perpetrators are 
not common criminals. One needs to look no further than the 
international reaction to September 11th to see that it was 
perceived as an armed attack against the United States. NATO's 
North Atlantic Council declared that the attack was directed 
from abroad and invoked Article V of the Washington Treaty, 
which states that an armed attack against one or more of the 
Allies in Europe or North America shall be considered an attack 
against them all. The Organization of American States, 
Australia, and New Zealand activated similar mutual defense 
treaties. The UN Security Council in a series of resolutions 
recognized our inherent right to self-defense and labeled 
terrorism as ``one of the most serious treats to international 
peace and security.'' And this Congress, in a joint resolution, 
authorized the use of all necessary and appropriate force in 
order to prevent any future acts of international terrorism.
    Mr. Chairman, members of the committee, we are at war, an 
unconventional war conducted by unconventional means by an 
unprecedented aggressor. Under long-established legal 
principles, the right to conduct armed conflict, lawful 
belligerency, is reserves only to states and recognized armed 
forces or groups under responsible command. Private persons 
lacking the basic indicia of organization and the ability or 
willingness to conduct operations in accordance with the laws 
of armed conflict have no right to wage warfare against a 
state. In waging war, the participants become unlawful 
combatants.
    Because the members of Al Qaeda do not meet the criteria to 
be lawful combatants under the law of war, they have no right 
to engage in armed conflict and are unlawful combatants. 
Because their intentional targeting and killing of civilians in 
time of international armed conflict amount to war crimes, 
military commissions are available for adjudicating their 
specific violations of the laws of war. As the U.S. Supreme 
Court unanimously stated in Ex Parte Quirin, ``by universal 
agreement and practice, the law of war draws a distinction 
between. . .those who are lawful and unlawful combatants. 
Lawful combatants are subject to capture and detention as 
prisoners of war by opposing military forces. Unlawful 
combatants are likewise subject to capture and detention, but, 
in addition, they are subject to trial and punishment by 
military tribunals for acts which render their belligerency 
unlawful.''
    In this campaign against terrorism, it is important that 
the President have the full range of available forums for 
seeking criminal accountability against persons for their 
individual and command responsibility for violations of the law 
of war. The military commission provides a traditionally 
available mechanism to address these unconventional crimes.
    Military commissions have been utilized and legally 
accepted throughout our history to prosecute persons who 
violate the laws of war. We have heard of some of the domestic 
examples that have been stated here today, but they are also 
used in the international arena with deep historical roots. The 
international community has utilized military commissions and 
tribunals to achieve justice, most notably at Nuremberg and in 
the Far East. The tribunals which tried most of the leading 
perpetrators of Nazi and Japanese war crimes were military 
tribunals. These tribunals were followed by thousands of Allied 
prosecutions of lower-level perpetrators under the Control 
CounciL Law No. 10.
    By the end of 1958, the Western Allies had used military 
tribunals to sentence 5,025 Germans for war crimes. In the Far 
East, 4,200 Japanese were convicted before military tribunals 
convened by the United States, Australian, British, Chinese, 
Dutch, and French forces for their atrocities committed during 
the war.
    Today, the commissions as envisioned by the President in 
the Military Order, while different from those found in our 
Article III courts, are in conformity with these historical 
precedents and the world's current efforts to prosecute war 
crimes through the ad hoc United Nations International Criminal 
Tribunals for the Former Yugoslavia and Rwanda. To help 
understand this, it may be helpful for me to articulate some 
commonalities. Like its predecessors, in the Nuremberg and the 
Far East International Military Tribunals, the Allied Control 
Council Law cases, and the International Criminal Tribunals for 
the Former Yugoslavia and Rwanda, the judges sit as both triers 
of fact and law. In addition, decisions such as judicial 
orders, judgments, and sentences are reached by a majority vote 
and not unanimity. In all of the above proceedings, including 
the Military Order, evidence of probative value is admitted. 
And in the United Nations International Criminal Tribunals for 
the Former Yugoslavia and Rwanda, proceedings have been and are 
authorized to be closed, just as is contemplated in the 
President's Order.
    Mr. Chairman, members of the committee, since September 
11th I have been asked about our criticisms of foreign military 
tribunals. And I want to say in these cases what the United 
States Government has done is to criticize the processes and 
not the forums themselves. Also, since September 11th I have 
been asked why not create an international tribunal. In our 
view, the international practice should be to support sovereign 
states seeking justice domestically when it is feasible and 
would be credible, as we are trying to do in Sierra Leone and 
in Cambodia. International tribunals are not and should not be 
the courts of first redress, but of last resort. When domestic 
justice is not possible for egregious war crimes due to a 
failed state or a dysfunctional judicial system, the 
international community may, through the Security Council or by 
consent, step in on an ad hoc basis as it did in Rwanda and the 
former Yugoslavia. But this is not the case in the United 
States.
    Our goal should be and this administration's policy is to 
encourage states to pursue credible justice rather than 
abdicating their responsibility. Because justice and the 
administration of justice are a cornerstone of any democracy, 
pursuing accountability for war crimes while respecting the 
rule of law by a sovereign state must be encouraged at all 
times. The President understands our sovereign responsibility 
and has taken action to fulfill his duty to the American 
people. In creating an additional option, the Nation is now 
prepared and will have an additional forum to address these 
wrongs when needed.
    Mr. Chairman, members of the committee, I thank you for 
your consideration, and I am prepared to answer any questions 
you may have.
    [The prepared statement of Amassador Prosper follos.

 Statement of Hon. Pierre-Richard Prosper, Ambassador-at-Large for War 
                Crimes Issues, U.S. Department of State

    Mr. Chairman, members of the committee, I thank you for this 
opportunity to speak with you regarding the Military Order issued by 
the President on November 13thin response to the tragic 
events of September 11th. The events remind us that we must vigorously 
pursue justice to ensure that the acts not go unpunished.
    Mr. Chairman, members of the committee, I come before you as the 
Ambassador-at-Large for War Crimes Issues and also as a former 
prosecutor. Prior to my appointment to this post, I spent ten years in 
the trenches as a line prosecutor. As a deputy district attorney in Los 
Angeles, I prosecuted hundreds of cases and tried dozens of murder 
cases and multiple murder cases as a member of the Hard Core Gang 
Division. As an Assistant United States Attorney, I prosecuted and 
investigated sophisticated international drug cartels trafficking tons 
of cocaine into the streets of Los Angeles. And as a lead prosecutor 
for the United Nations International Criminal Tribunal for Rwanda, I 
successfully prosecuted, in a 14-month trial, the first-ever case of 
genocide before an international tribunal under the 1948 Genocide 
Convention.
    With this experience, I recognize, understand, and truly believe 
that there are different approaches that can be used to achieve 
justice. I recognize that different procedures are allowed and that 
different procedures are appropriate. No one approach is exclusive and 
the approaches need not be identical for justice to be administered 
fairly. But in all approaches what is important is that the procedures 
ensure fundamental fairness. And that is what the President's order 
calls for.
    After the tragic events of September 11th, we as a nation were 
forced to re-examine our traditional notions of security, our 
conceptions of our attackers, and our approaches to bringing the 
perpetrators to justice. The conventional view of terrorism as isolated 
acts of egregious violence did not fit. The atrocities committed by the 
al Qaida organization at the World Trade Center in New York, at the 
headquarters of our Department of Defense, and in Pennsylvania were of 
the kind that defied the imagination and shocked the conscience.
    These atrocities are just as premeditated, just as systematic, just 
as evil as the violations of international humanitarian law that I have 
seen around the world. As the President's order recognizes, we must 
call these attacks by their rightful name: war crimes.
    President Bush recognized that the threat we currently face is as 
grave as any we have confronted. While combating these war crimes 
committed against U.S. citizens, it is important that the President be 
able to act in the interest of this country to protect the security of 
our citizens and ensure that justice is achieved. He has repeatedly 
promised to use all the military, diplomatic, economic and legal 
options available to ensure the safety of the American people and our 
democratic way of life. The President should have the full range of 
options available for addressing these wrongs. The Military Order adds 
additional arrows to the President's quiver.
    Should we be in a position to prosecute Bin Laden, his top 
henchmen, and other members of al Qaida, this option should be 
available to protect our civilian justice system against this 
organization of terror. We should all ask ourselves whether we want to 
bring into the domestic system dozens of persons who have proved they 
are willing to murder thousands of Americans at a time and die in the 
process. We all must think about the safety of the jurors, who may have 
to be sequestered from their families for up to a year or more while a 
complex trial unfolds. We all ought to remember the employees in the 
civilian courts, such as the bailiff, court clerk, and court reporter 
and ask ourselves whether this was the type of service they signed up 
for--to be potential victims of terror while justice was pursued. And 
we all must think also about the injured city of New York and the 
security implications that would be associated with a trial of the al 
Qaida organization.
    With this security threat in mind, we should consider the option of 
military commissions from two perspectives. First, the President's 
Military Order is consistent with the precepts of international law. 
And second, military commissions are the customary legal option for 
bringing to justice the perpetrators of war crimes during times of war.
    The Military Order's conclusion that we are in a state of armed 
conflict deserves comment. Because military commissions are empowered 
to try violations of the law of war, their jurisdiction is dependent 
upon the existence of an armed conflict, which we have.
    It is clear that this series of attacks against the United States 
is more than isolated and sporadic acts of violence, or other acts of a 
similar nature. Rather, a foreign, private terrorist network, with the 
essential harboring and other support of the Taliban-led Afghanistan, 
has issued a declaration of war against the United States. It has 
organized, campaigned, trained, and over the course of years repeatedly 
carried out cowardly, indiscriminate attacks, including the largest 
attack in history against the territory of the United States in terms 
of number of persons killed and property damage.
    Tracing the criminal history of the organization further confirms 
the state of armed conflict. A decade's worth of hostile statements by 
Bin Laden over and over and over again state that he is at war against 
the United States. He has instructed his followers to kill each and 
every American civilian. We should also consider the intensity of the 
hostilities and the systematic nature of the assaults. Consider the 
fact that al Qaida is accused of bombing the World Trade Center in 1993 
and attacking U.S. military service personnel serving in Somalia in the 
same year. Consider that Bin Laden and al Qaida are accused of 
attacking and bombing our embassies in Nairobi, Kenya and Dar es 
Salaam, Tanzania. Remember that al Qaida is accused of perpetrating 
last year's bombing of the U.S.S. Cole. And of course, added to this 
history are the horrifying and unprovoked air assaults on the twin 
towers in New York, the Pentagon, and the airplane tragedy in 
Pennsylvania.
    It is clear that the conduct of al Qaida cannot be considered 
ordinary domestic crimes, and the perpetrators are not common 
criminals. Indeed, one needs to look no further than the international 
reaction to understand that September 11 was perceived as an armed 
attack on the United States. NATO's North Atlantic Council declared 
that the attack was directed from abroad and ``regarded as an action 
covered by Article V of the Washington Treaty, which states that an 
armed attack against one or more of the Allies in Europe or North 
America shall be considered an attack against them all.'' The 
Organization of American States, Australia and New Zealand activated 
parallel provisions in their mutual defense treaties. UN Security 
Council Resolutions 1368 and 1373 recognized our inherent right to 
exercise self-defense. And UN Security Council Resolution 1377 added: 
``acts of international terrorism constitute one of the most serious 
threats to international peace and security in the twenty-first 
century.''
    We can also look at our domestic response, including the joint 
resolution passed by this Congress authorizing ``the use of all 
necessary and appropriate force'' in order to prevent any future acts 
of international terrorism.
    Mr. Chairman, members of the committee, we are at war, an 
unconventional war conducted by unconventional means by an 
unprecedented aggressor. Under long established legal principles, the 
right to conduct armed conflict, lawful belligerency, is reserved only 
to states and recognized armed forces or groups under responsible 
command. Private persons lacking the basic indicia of organization and 
the ability or willingness to conduct operations in accordance with the 
laws of armed conflict have no legal right to wage warfare against a 
state. In waging war the participants become unlawful combatants.
    Because the members of al Qaida do not meet the criteria to be 
lawful combatants under the law of war, they have no right to engage in 
armed conflict and are unlawful combatants. And because their 
intentional targeting and killing of civilians in time of international 
armed conflict amount to war crimes, military commissions are available 
for adjudicating their specific violations of the laws of war. As the 
U.S. Supreme Court unanimously stated in Ex Parte Quirin: ``by 
universal agreement and practice, the law of war draws a distinction 
between the armed forces and the peaceful populations of belligerent 
nations, and also between those who are lawful and unlawful combatants. 
Lawful combatants are subject to capture and detention as prisoners of 
war by opposing military forces. Unlawful combatants are likewise 
subject to capture and detention, but, in addition, they are subject to 
trial and punishment by military tribunals for acts which render their 
belligerency unlawful.''
    In this campaign against terrorism, it is important that the 
President have the full range of available forums for seeking criminal 
accountability against persons for their individual and command 
responsibility for violations of the law of war. The military 
commission provides a traditionally available mechanism to address 
these unconventional crimes.
    Military commissions have been utilized and legally accepted 
throughout our history to prosecute persons who violate the laws of 
war. They were used by General Winfield Scott during his operations in 
Mexico, in the Civil War by President Lincoln, and in 1942 by President 
Roosevelt. They are an internationally accepted practice with deep 
historical roots. The international community has utilized military 
commissions and tribunals to achieve justice, most notably at Nuremberg 
and in the Far East. The tribunals which tried most of the leading 
perpetrators of Nazi and Japanese war crimes were military tribunals. 
These tribunals were followed by thousands of Allied prosecutions of 
the lower-level perpetrators under the Control Council Law No. 10.
    By the end of 1958, the Western Allies had used military tribunals 
to sentence 5,025 Germans for war crimes. In the Far East, 4,200 
Japanese were convicted before military tribunals convened by U.S., 
Australian, British, Chinese, Dutch, and French forces for their 
atrocities committed during the war.
    Today, the commissions as envisioned by the President in the 
Military Order, while different from those found in our Article III 
courts, are in conformity with these historical precedents and the 
world's current efforts to prosecute war crimes through the United 
Nations in the International Criminal Tribunals for the Former 
Yugoslavia and Rwanda. To understand this it may be helpful for me to 
articulate the commonalities. Like it's predecessors, in the Nuremberg 
and Far East International Military Tribunals, the Allied Control 
Council Law No. 10 proceedings, and the International Criminal 
Tribunals for the former Yugoslavia and Rwanda, the judges sit as both 
triers of law and of fact. In addition, decisions such as judicial 
orders, judgments, and sentences are reached by a majority vote and not 
unanimity. Evidence of a probative value is admitted. And in the United 
Nations International Criminal Tribunals for the former Yugoslavia and 
Rwanda, portions of the proceedings have been and are authorized to be 
closed, just as is contemplated by the President's military order.
    Mr. Chairman, members of the committee, since September 
11th I have been asked about our criticisms of foreign 
military tribunals. In these cases, we criticized the process and not 
the forum.
    Since September 11thI have also been asked why we do not 
create an international tribunal? In our view, the international 
practice should be to support sovereign states seeking justice 
domestically when it is feasible and would be credible, as we are 
trying to do in Sierra Leone and Cambodia. International tribunals are 
not and should not be the courts of first redress, but of last resort. 
When domestic justice is not possible for egregious war crimes due to a 
failed state or a dysfunctional judicial system, the international 
community may through the Security Council or by consent, step in on an 
ad hoc basis as in Rwanda and Yugoslavia. That is not the case in the 
United States.
    Our goal should be and this administration's policy is to encourage 
states to pursue credible justice rather than abdicating the 
responsibility. Because justice and the administration of justice are a 
cornerstone of any democracy, pursuing accountability for war crimes 
while respecting the rule of law by a sovereign state must be 
encouraged at all times. The President understands our sovereign 
responsibility and has taken action to fulfill his duty to the American 
people. In creating an additional option, the nation is now prepared 
and will have an additional forum to address these wrongs when needed.
    I thank you for your consideration in this matter and I am prepared 
to answer any questions you may have.

    Senator Schumer. Thank you very much, Mr. Ambassador. We 
appreciate your remarks, and you noted as you closed your 
testimony that the criticism that the United States has had of 
others of these is not that it is a military tribunal but, 
rather, the process. That is one of the things we want to 
learn, is what process is envisioned for these. And there are 
lots of questions that have not been answered by the 
administration.
    Let me start out by asking you this: You mentioned the 
military tribunals that tried Nazis and Japanese, and I think 
by most people's view, they were successful, and there are 
direct analogies. How would these tribunals that the President 
is proposing differ in their rules from those that were used 
after World War II for Nazis and for Japanese war criminals?
    Ambassador Prosper. Well, Mr. Chairman, at this time I 
would be speculating to answer that question because we are in 
the process or the Department of Defense is in the process of 
drafting the rules. We will have to wait and see what the rules 
look like at the end to do a line-by-line comparison with the 
Nuremberg/Far East proceedings or even a comparison with the 
existing ad hoc tribunals.
    But I think if you look at the general framework that has 
been put forth by the President, it is consistent with all 
these approaches in that, firstly, the President calls for full 
and fair trials; the judges will be both the trier of fact and 
the trier of law, as I stated. The decisions and verdicts will 
be reached by two-thirds or a majority vote, and probative 
evidence will be admitted, just to name a few examples.
    Senator Schumer. Let me ask you this: How would these, at 
least in terms of the President's statements thus far--and I 
know that they haven't formulated the rules. How would they 
differ from, say--I think Senator Hatch mentioned courts-
martials. How would they differ from courts-martials? Why is 
the forum of a military tribunal as outlined by the President 
superior to using the general process and procedures of courts-
martials for some of these enemies--I guess is the right word--
that we pick up?
    Ambassador Prosper. I believe one of the subsequent 
witnesses will testify on this issue, but what I can say here 
is there are a few differences. With a courts-martial process, 
it will be a case that would be tried before jurors. There is 
the issue of trying the case before a jury or judges. And also 
with the courts-martial process, generally that is reserved to 
prosecute prisoners of war. And here in this instance, we are 
prosecuting unlawful combatants, and we need to remember that 
the Al Qaeda organization are unlawful combatants and do not 
carry prisoner of war status.
    Senator Schumer. But why wouldn't the courts-martial 
process--and I am not advocating it at this point. I am just 
trying to ask some questions. Why wouldn't the courts-martial 
process work for unlawful combatants as well as prisoners of 
war? Many of the same problems that you have mentioned we would 
face in an ordinary trial--and no one is advocating that--would 
be solved by the courts-martial process. It is one that is 
accepted, as I think Mr. Sessions mentioned. It has generally 
been regarded as a process that has consensus. And it has 
worked for prisoners of war.
    So I understand that these people are unlawful combatants. 
The rules of war do not apply in a war on terrorism. It is one 
of the reasons we are having this hearing because we have to 
break new ground. Nonetheless, that doesn't mean that old 
models don't work.
    Ambassador Prosper. Well, I think what we need to do is 
take a look at the nature of offenses themselves and recognize 
that there is the need for a specialized process to address and 
adjudicate these offenses.
    What I have seen from my personal experience working in the 
tribunals is that it is wise at times to have a specialized 
tribunal to focus on these abuses. And just by way of example, 
I think, again, we need to refer back and look back at the fact 
that these are not just ordinary crimes where you may have an 
eyewitness, for example, that will be able to prove the entire 
case or it is a crime that occurred in a room of this size. 
Generally, when you are prosecuting or investigating war 
crimes, the realization becomes that these are the type of 
offenses in which the entire country, for example, is the crime 
scene. If you look at the events of the conduct of Al Qaeda, 
the entire world is a crime scene. And when you take it from 
that perspective, you need to create a court that has the 
ability or the special expertise to inquire, to allow the truth 
to unfold, and that will also have flexible rules to permit the 
introduction of evidence that may be probative.
    I think when we look at the issue of the flexible rule on 
probative evidence, we shouldn't look at it in the light that 
it is the denial of rights to an accused, because the rules 
apply both ways. You see, the purpose of the process and the 
purpose of having a forum that is flexible is to allow the 
truth to come out so that the trier of fact can adequately 
judge and assess the violations that have occurred.
    Senator Schumer. A final question because my time is 
expiring. Would you recommend that these tribunals ever be used 
for somebody who is picked up within the United States, 
assuming they are not a citizen?
    Ambassador Prosper. I think what we need to do, we need to 
look at the Executive Order itself and look at the category of 
people that are subject to the Order, and then look at the 
offenses that have been committed. I have heard people talk 
about the fact that these courts may be used against resident 
aliens and so on. But I think what we need to look at as 
another jurisdictional element is that they must commit war 
crimes. They can't be picked up and prosecuted for a Department 
of Motor Vehicle violation.
    Senator Schumer. Obviously. But assuming they are engaged 
in an act of terrorism, what would be your recommendation, 
given your extensive experience?
    Ambassador Prosper. These issues will need to be judged on 
a case-by-case basis, and the President will make the final 
decision once these cases have been presented to him with all 
the facts, and only at that time can--
    Senator Schumer. But there are going to have to be some 
general rules. You can't just say--I mean, it wouldn't make any 
sense to say that some people who are picked up for crimes of 
terrorism in the United States would get one type of justice 
and others would get another. Or are you saying that that could 
possibly happen?
    Ambassador Prosper. What I am saying is that there are a 
lot of factors that will go into the decision made by the 
President, including procedural rules that are developed and 
the factual circumstances of the case.
    Senator Schumer. Okay. Thank you, Mr. Ambassador.
    Mr. Sessions? Senator Sessions? We are going to try to 
stick to the 5-minute rule because we have a whole other panel 
coming.
    Senator Sessions. It does remain with the President? If he 
thought a trial could be tried in civil district court, he 
could allow it to go there? Or he could sent it to a military 
tribunal? Is that your understanding of the Order?
    Ambassador Prosper. That is absolutely correct, and I 
think, again, one thing that I would like to highlight here is 
what the President has done is created an option. He has not 
ruled out the Federal courts or the Article III courts. He is 
creating an option. So at the time that a particular case comes 
to his desk, he will balance the interests of the country and 
make the appropriate decision at that time.
    Senator Sessions. Now, with regard to the MacArthur 
military commissions and tribunals in the East, he initiated 
that without any Presidential authority, didn't he, and 
actually tried people on his own authority as the commander in 
the region?
    Ambassador Prosper. That is correct, and that is 
permissible. What we have here is the President has decided 
that this issue is serious enough that it warrants his personal 
attention.
    Senator Sessions. And MacArthur wasn't given the kind of 
protections and an order from the President that personally 
guaranteed Presidential protection for the right to counsel, 
the right to a full and fair trial, and that sort of thing. 
Isn't that true? So this is much stronger protection than what 
took place after World War II.
    Ambassador Prosper. And I think a factor that we can add to 
this is that there is an order from the Commander-in-Chief 
calling for full and fair trials, and that should also be 
remembered when we examine and comment on this process.
    Senator Sessions. Well, I think it is important we have 
that full and fair trial, but ultimately what I think is a good 
safeguard for us here and those who are nervous about these 
procedures is the President has kept this as his personal 
responsibility. He has personally put his credibility on the 
line to give a full and fair trial in those circumstances in 
military tribunals that he decides is appropriate to American 
security. That is different from some of the historical 
examples we have discussed, is it not?
    Ambassador Prosper. It is.
    Senator Sessions. You know, I was thinking about how you 
would try somebody--let's say you catch a person--I was a 
prosecutor, and I am glad to see you have been in the courtroom 
and tried a lot of cases. There are some basic things that you 
run up against. You catch an Al Qaeda member in Kabul with an 
anthrax factory, and you don't have direct proof that he 
intended to send it to New York. Maybe you have proof he 
intended to send it to France. Would there be any way under 
traditional rules of law that you would have venue in New York 
or any other place in the United States to try that? Or would 
that be a difficult legal question to overcome?
    Ambassador Prosper. Well, those are difficult legal 
questions that I know my colleagues in the Department of 
Justice will be able to answer. But the advantage of the 
military commission is that it can prosecute people who have 
committed war crimes against the United States, essentially 
regardless of venue. Obviously, we look at the events in New 
York; the President will make a decision at that time as to who 
should be prosecuted. But this approach is a flexible approach, 
and the court will be able to sit in any location, whether 
within or outside the country.
    Senator Sessions. And it strikes me that no city in its 
right mind would want to have a nest of Al Qaeda terrorists to 
be tried in a normal Federal trial that would take years to 
conclude, that would subject the city to all kinds of threats 
that it might not otherwise be facing, and that would be a 
reason that we might want to try some of these people in 
foreign countries, wouldn't it be, for the basic security of 
the United States?
    Ambassador Prosper. Security is a factor that will have to 
be considered, and the President will be in the unique 
position, not only as Commander-in-Chief but also the President 
of this country, to assess what is in the best interest of the 
country, whether or not the trial should be held in some more 
remote location or in Manhattan, for example.
    Senator Sessions. And you touched on something very 
fundamental that former Attorney General Bill Barr testified to 
here recently, just last week. This was what he said about the 
difference between a war-type trial and a normal civil trial. 
He said, ``When the United States is engaged in armed conflict 
and exercising its power of national defense against a foreign 
enemy, it is acting in an entirely different realm than that of 
domestic law enforcement.''
    Would you agree with that?
    Ambassador Prosper. Yes, I would.
    Senator Sessions. We don't give people who are attacking us 
Miranda rights before we fire on them. Is that correct?
    Ambassador Prosper. I think what we can say is the first 
priority for our service members overseas is not investigation 
and collection of evidence. It is security. It is neutralizing 
the threat. After the fact, when a particular location has been 
stabilized, the particular armed forces or members of the armed 
forces will be able to go in and conduct investigations. And 
oftentimes at that point in time you will have serious 
questions as to chain of custody, if you will, because the 
scene may not have been secured. Obviously there is a conflict 
going on. And this is why in the ad hoc tribunals that exist 
today there are flexible standards for the introduction of 
evidence, and the trier of fact, experienced judges will be the 
ones that will judge and give the appropriate weight to the 
evidence.
    Senator Sessions. Thank you. I would just say that, as Mr. 
Barr stated also, ``When we wage war, the Constitution does not 
give foreign enemies rights to invoke against us; rather, the 
Constitution provides us with the means to defeat and destroy 
our enemies.'' Otherwise, our liberties would be subject to 
potential victory by a terrorist group who doesn't value any of 
the values that we cherish in this country.
    So I think we need to understand this distinction, Mr. 
Chairman, when we are in a war situation as opposed to a 
domestic law enforcement situation, and historically all 
nations, to my knowledge, have always understood the great 
difference.
    Senator Schumer. And I think that is generally accepted by 
just about everybody here.
    Senator Feinstein?
    Senator Feinstein. Thanks very much, Mr. Chairman.
    In order to clarify the context and confines of this, I 
want to ask my questions working off of the chief counsel's op 
ed in the New York Times, if I might. In that op ed, he states, 
``The Order covers only foreign enemy war criminals. It does 
not cover United States citizens or even enemy soldiers abiding 
by the laws of war. Under the Order, the President will refer 
to military commissions only non-citizens who are members or 
active supporters of Al Qaeda or other international terrorist 
organizations.''
    So I would assume that that would mean that this would be 
reserved for only the principals and that legal residents who 
may have had some peripheral involvement would not--would be 
subject to civil law, not a military tribunal. Is that correct?
    Ambassador Prosper. The idea behind this Order is to go 
after exactly just that, people who bear the responsibility for 
these egregious abuses. Another jurisdictional element is the 
fact that they need to have committed war crimes. These are 
grave violations that require organization, leadership, and 
obviously promotion of the purpose.
    Senator Feinstein. Well, that is not a specific answer. I 
will ask these same questions of the Attorney General on 
Thursday, but let me go to the second one. ``The military 
commission trials are not secret. The President's Order 
authorizes the Secretary of Defense to close proceedings to 
protect classified information. It does not require that any 
trial or even portions of a trial be conducted in secret. 
Trials before military commissions will be as open as possible, 
consistent with the urgent needs of national security.''
    I trust that what that means is that those parts of a trial 
that require the use of classified information will be in 
camera, and those that do not, which is the bulk of the trial, 
would be in the open. Is that correct?
    Ambassador Prosper. That is correct. But what I would like 
to add to this is some of my personal experiences with the ad 
hoc tribunal.
    In prosecuting the first genocide case, there were portions 
of my proceedings that were closed, and there were portions in 
the Hague tribunal proceedings that were closed. In those 
instances, it wasn't necessarily because of classified 
information. There were other issues such as witness 
protection. In my case, we had several witnesses who testified 
to sexual violence, being raped by--
    Senator Feinstein. Respectfully, that is not my question. 
My question is: What will it be in this case?
    Ambassador Prosper. And my point is that while the 
proceedings may be closed for issues of national security, we 
cannot rule out the possibility that there may be other 
legitimate reasons to close the proceedings in relation to the 
witnesses.
    Senator Feinstein. I understand. Let me ask my next 
question, and I quote again. ``Everyone tried before a military 
commission will know the charges against him and be represented 
by qualified counsel and be allowed to present a defense.''
    Would that be a counsel of the defendant's choice, or would 
that be a counsel provided by the Government?
    Ambassador Prosper. We will have to see exactly what the 
rules promulgated by the Secretary of Defense call for. The 
Order has instructed the Secretary of Defense to promulgate 
rules that will go to the conduct of defense attorneys, hiring 
defense attorneys, appointing defense attorneys and so on. So 
we will have to see what the specific rules--
    Senator Feinstein. All right. I will ask that question 
Thursday.
    The last one: ``The Order preserves judicial review in 
civilian courts. Under the Order, anyone arrested, detained, or 
tried in the United States by a military commission will be 
able to challenge the lawfulness of the Commission's 
jurisdiction through a habeas corpus in a Federal court.''
    Could you expand on that, please?
    Ambassador Prosper. I think that particular issue I would 
suggest that you direct that question to the Department of 
Justice because those are the type of issues that the 
Department of Justice raises, the habeas corpus-type 
proceedings, and they would be the ones defending it. But--I 
will leave it at that. Thank you.
    Senator Feinstein. Thank you. That completes my questions.
    Senator Schumer. Thank you, Senator Feinstein.
    Senator Hatch?
    Senator Hatch. I am going to pass, but we welcome you here. 
We are grateful for your testimony, and thank you for coming.
    Ambassador Prosper. Thank you.
    Senator Schumer. Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman.
    Sir, I admire your work on the prosecutions in Rwanda. We 
have talked about that in the past. And I am pleased to see you 
here. Let me just say, though, that in the present case many 
have said that the President's proposed military commission 
could be counterproductive to our efforts to ease anti-American 
hatred and tension in the Arab and Muslim world. Clearly, a 
civilian court would be more likely than a military tribunal to 
confer a legitimacy on any ultimate verdict, and this would be 
true not only in the minds of the people here in the United 
States but also around the world.
    Unlike the military tribunal, our Federal courts are 
independent of the executive branch. Jurors bring their own 
skepticism of the Government to court, which would further 
demonstrate the fairness of the process. Indeed, as I have 
watched the arguments unfold in editorial pages and on 
television talk shows, I see that many legal commentators on 
both sides of the political spectrum argue that the United 
States should turn to existing safeguards, perhaps, as I said 
earlier, even enhancing those existing safeguards to protect 
highly sensitive evidence while still making an open case 
against Al Qaeda in a civilian court.
    In so doing, the United States could set the historical 
record by exposing the true nature of the crimes that were 
committed. And really, in a related way, some have also raised 
the concern that the President's proposed military tribunal 
could actually undermine our ability to protect Americans 
abroad who are subject to special or military courts in other 
countries. As William Safire said in his column on Monday of 
this week, ``On what leg does the United States now stand when 
China sentences an American to death after a military trial 
devoid of counsel chosen by the defendant?''
    Aren't you somewhat concerned that Americans will be 
subject to an increased risk of trials by military or special 
courts in foreign nations with little or no due process 
protections as a consequence of the use of President Bush's 
proposed military tribunal?
    Ambassador Prosper. Thank you, Senator. I think one point 
that needs to be added to the debate, if you will, is that in a 
military system there is adoption of what I will call command 
influence, and that is that the jurists are required to remain 
impartial and not be influenced by the President, by the 
Commander-in-Chief, in making their decisions.
    In the end, I think that when the finished product is put 
forth, the international community will see what is 
promulgated, what is envisioned by the President, and what is 
actually articulated by the Secretary of Defense in the rules, 
is that it is or will be a process that will not only meet the 
President's Order and provide for a full and fair trial, but it 
will meet requirements of fundamental fairness, international 
standards, so that when we go out there and we talk to our 
allies and people see the finished product, it will be viewed 
as a fair process. And I think that is important, and that will 
be the principle that we will put forth and that we will ask 
others to stand by in whatever proceedings they may invoke.
    Senator Feingold. So you are not at all concerned that the 
use of military tribunals would be used, whether they are 
actually fair or not, as an excuse for other countries to more 
extensively use military tribunals against Americans?
    Ambassador Prosper. I would be concerned if proceedings 
were used against Americans that are not fair and do not offer 
fundamental fairness. If a judicial body, be it civil, 
military, or ad hoc, is properly convened, then it is properly 
convened. But the key is the process, and we must look and 
examine the process.
    Senator Feingold. Let me ask you another question. You have 
indicated that what the President has done here is created 
another option. But by prosecuting terrorists for war crimes 
only, as specified under the Presidential Order, aren't we, in 
fact, in a way limiting our prosecutorial options? In civilian 
courts, we could rely on extensive anti-terrorism legislation 
to try those responsible for the September 11th atrocities. In 
military commissions, as you have discussed rather well, we are 
limited to trials for violations of the laws of war. Does it 
make sense to limit our prosecutorial options in this way? And 
if the administration proceeds with a trial of terrorists 
before military commissions, doesn't it at least make sense to 
ask for congressional action to expand the range of crimes that 
could be tried to include terrorism-related crimes?
    Ambassador Prosper. I think you do raise a good point that 
we want to have options and we want to be able to have a broad 
reach to cover the offenses that occurred. And I believe that 
this is why the President, when he will make his final 
decision, will be able to examine these issues. In appropriate 
cases, he may determine that it is appropriate to have the 
accused person go before the civilian system, our Article III 
courts. In other cases--you know, of course, we need to look at 
the facts--a decision may be made it is more appropriate to try 
it before a military commission. So I think we do have the 
options and we are not limited. The President will make the 
decision at the appropriate time.
    Senator Feingold. Let me try one other question. As you may 
know, at least one of our coalition allies, Spain, has already 
expressed its concern with the President's proposed military 
commission and said that it will not extradite eight suspected 
terrorists to the United States. It appears that one 
significant downside to pursuing the President's proposed 
military commission approach could be that our coalition allies 
will not be willing to cooperate fully with bringing suspected 
terrorists to the United States to stand trial, which to me is 
an extremely serious concern.
    Aren't you concerned by the very real prospect that going 
forward with the President's proposed military commission could 
actually diminish our Nation's ability to try suspected 
terrorists and bring them to justice?
    Ambassador Prosper. Regarding the case of Spain, an 
extradition request has not been put forth, to the best of my 
knowledge, and the Spanish Government has not denied such a 
request. In fact, I believe when the President of Spain was 
here, he said that he would entertain a request when received 
and consider all the surrounding circumstances.
    I think we will have the responsibility, once the 
commission is actually created and the rules are put forth, to 
talk to our allies, to show them that this is a fair process. 
It does provide fundamental fairness. The military judges or 
lawyers that are attached to the proceedings are competent and 
credible people, and we must recognize that a lot of the 
lawyers and judges in our military system are some of the 
finest we have in the countries. They went to the finest law 
schools. Many have been out in the civilian system.
    So we will have to make the case, and I do not believe that 
it will be a hard case to make.
    Senator Feingold. Well, I admire your optimism, but the 
matter of making sure we have absolute maximum access to trying 
these terrorists should be a very serious consideration. I 
question whether it is going to be so simple to persuade all of 
our allies to overlook their concerns about fairness in this 
process, and I think it is something that should be taken 
extremely seriously in the name of bringing terrorists to 
justice.
    Thank you, Mr. Chairman.
    Senator Schumer. Thank you, Senator Feingold.
    Senator Specter?
    Senator Specter. Thank you, Mr. Chairman. I regret that I 
have not been able to be present for a good bit of the 
proceedings, but we are in another hearing room simultaneously 
on cloning, and I had to be present for that session.
    With respect to the jurisdiction of the Federal courts, 
there is a provision in the Executive Order which essentially 
says that no one can have any redress to the Federal courts or 
any other court. And that runs directly in conflict with the 
constitutional provision which says that the writ of habeas 
corpus may not be suspended except in time of invasion or 
rebellion.
    Is it possible to implement military tribunals which runs 
afoul of that constitutional provision?
    Ambassador Prosper. Well, I will leave the constitutional 
questions to the Department of Justice, but the President has 
acted within his authority. And in order for the military 
commission to be convened, we must have an armed conflict. We 
must be in a state of armed conflict, and that is part of the 
determination. The Order, the President's Order, begins by 
saying we are in a state of armed conflict, and, again, if we 
look at the conduct and the events that have unfolded over the 
years in relation to Al Qaeda, we can see that they have waged 
a war against the United States. So military commissions are 
allowable in that context and are allowed to stand independent.
    Senator Specter. Well, when you talk about leaving that to 
the Department of Justice, I would certainly agree with you 
that the Department of Justice ought to be involved. The 
testimony we heard last week was that the Department of Justice 
had, in fact, not been consulted. That is what the Assistant 
Attorney General in charge of the Criminal Division testified 
to. And the President on the face of the Executive Order has 
left this to the Department of Defense, so that a very 
important threshold question is how the Executive Order meshes 
with the constitutional requirement that the writ of habeas 
corpus be available except in case of rebellion or invasion.
    Now, there are very serious issues involved beyond any 
question, and we know that again this morning from the comments 
made yesterday by Homeland Administrator Ridge that we now have 
another threat warning.
    When you comment that the President is acting within his 
authority, the Constitution gives the authority to the Congress 
to establish military tribunals, and the implementing 
legislation, which is cited in the President's Executive Order, 
refers to a statute which says that, unless impracticable, the 
President shall utilize or implement regulations of military 
tribunals which conform to the rules of law and evidence in the 
United States district courts.
    Now, the Congress has been very cooperative with the 
President, obviously, giving the authorization for the use of 
force on the 14th of September, 3 days after the terrorist 
attack, providing the appropriation of $40 billion, and 
providing terrorist legislation on a relatively fast track, and 
congressional inputs are obviously very important, as are the 
inputs of the courts and the constitutional system which we 
have for separation of power.
    Now, perhaps there does not have to be an amplification of 
impracticability in light of the terrorist attack and the 
continuing threats, but I would be interested in your 
observations as to what predicates the President has to 
establish to show impracticability to carry out the 
congressional requirement for use of the regular rules of 
evidence or rules of law which prevail in District Courts.
    Ambassador Prosper. What I can say on this issue is--and I 
will draw from my experiences as a war crimes prosecutor--the 
rules at times need to be different to prosecute cases of this 
magnitude. At this point in time I do not think we can say that 
the UCMJ will be completely thrown out. What is going to happen 
here, it is my understanding that the Department of Defense 
will create a body of rules that will be used in this process. 
Perhaps it will draw from the UCMJ, perhaps it will draw from 
our Federal statute. I do now know. But what is happening here, 
this will be a commission that is actually created and will 
have the necessary tools to adequately address this problem and 
provide for a full and fair trial.
    Senator Specter. Let me ask you one further question, which 
is tangential, but one I would like to have your views on. As 
we set forth rules for military tribunals, this may have an 
impact on war crimes tribunals generally as to where we may be 
heading for an international criminal court, although the 
United States has not signed on. We have not had ratification 
by the Senate on the War Crimes Tribunal for Yugoslavia. The 
War Crimes Tribunal, with the key prosecutor, Carla Del Ponte, 
investigated General Wesley Clark on the complaint of Russia 
and Yugoslavia for possible war crimes, and the issues under 
investigation involved whether NATO had targeted civilians or 
whether NATO and its commanding officer, General Clark, had 
been at fault in carelessly targeting, which endangered 
civilians. If that kind of a standard is to be employed, making 
it a fact question for the prosecutor, it seems to me that U.S. 
military personnel all the way up to four-star General Clark, 
would be at risk on a war crimes tribunal, giving very very 
broad discretion and making it highly unlikely that the United 
States would or perhaps should ever join in an international 
criminal court. Do you have an opinion or a judgment on that 
range of discretion for a prosecutor in an international 
tribunal?
    Ambassador Prosper. Senator, that is one of the issues of 
concern for the administration regarding the ICC, the 
International Criminal Court, and that is the fact that you 
have or may have a prosecutor that is answerable to no one, and 
will launch off in investigations that could be political 
investigations and not based in fact or based in law. There is 
no check to the process.
    Another objection that we have to the ICC is the fact that 
it will exercise jurisdiction over nonparty states. As you 
mentioned, we have not ratified the treaty, the President has 
not sent it up for ratification, but the proponents of the ICC 
believe that regardless, it can exercise jurisdiction over us 
just because, just because a document exists and just because 
other states, 60 states when it come into force, have decided 
that is the way to go. That is our objection. The safeguards 
are not in place. The prosecutor is not answerable.
    Senator Specter. Thank you.
    Senator Schumer. Thank you, Senator Specter.
    Senator Durbin.
    Senator Durbin. Thank you very much, Ambassador Prosper, 
for being with us today. I will make a prefatory comment and 
then I will try to ask two questions.
    The prefatory comment is this: some of the members of this 
panel have suggested that it is important to them that the 
President is willing to accept personal responsibility for this 
decision. I think that is important, but under our 
Constitution, it is not enough. Under the Constitution Congress 
must also accept responsibility, and under Article I, Section 8 
of the Constitution, it is my belief that Congress has the sole 
authority to declare war. I have noticed that Presidents since 
Franklin Roosevelt have avoided bringing that question to 
Congress with the exception of former President Bush, who with 
the urging of many of us on Capitol Hill, brought this question 
for a vote, which I thought was important constitutionally and 
nationally, that the American people expressed their feelings 
through their elected representatives.
    And I would also note that this President Bush currently 
serving, on September 14th asked for an authorization for us of 
military force, which I considered consistent with Article I, 
Section 8, and with no dissenting votes in the Senate and only 
one in the House, received that authority. I thought that was 
the right thing to do, and as painful as it was for many of us 
to consider the prospect of war, we accepted our congressional 
responsibility and did it.
    Now, in your very cogent remarks, Mr. Ambassador, you have 
really laid the case for military tribunals based on the 
concept of an armed conflict, and I quote from your statement, 
``Because military commissions are in part to try violations of 
law of war, their jurisdiction is dependent on the existence of 
an armed conflict, which we have.'' And then you go on to say, 
when you were justifying the fact that we are in armed 
conflict, ``We can also look at our domestic response, 
including the joint resolution passed by this Congress, 
authorizing the use of all necessary and appropriate force'' in 
order to prevent any future acts of international terrorism.
    Ambassador Prosper, I think that that reasoning is sound, 
but I think it limits the President beyond any limitation that 
he has accepted with his Military Order. Specifically let me 
point this out. In the resolution passed by Congress, and I 
will read from it, ``The President is authorized to use all 
necessary and appropriate force against nations, organizations, 
or persons he determines planned, authorized, committed, or 
aided the terrorist attacks that occurred on September 11th, 
2001, or harbored such organizations or persons in order to 
prevent any future acts of international terrorism against the 
United States.''
    That authorization for armed conflict from Congress 
referred to in your testimony as the basis for a military 
commission and the President's Military Order, limits it to the 
occurrence of September 11th, 2001. And if you read the 
President's Order, in terms of his engaging military tribunals, 
the terms ``individual subject to this order'' included a 
person who has engaged in, aided or abetted or conspired to 
commit acts of international terrorism or acts in preparation 
therefore that have caused, threatened to cause, or have as 
their aim to cause injury to or adverse effect on the United 
States, its citizens, national security, foreign policy or 
economy.
    If you follow what I am leading to, if you are going to use 
congressional action and the definition of armed conflict in 
this joint resolution, that definition is specific to the 
events of September 11th. The President's request or Military 
Order for military commissions goes far beyond that. How would 
you reconcile it?
    Ambassador Prosper. Thank you, Senator. The reference to 
the joint resolution essentially is a--it was a factor to be 
considered when making a case against al Qaeda. We not only 
look to the joint resolution itself to see how the Congress 
viewed the events of September 11th and the actions of this 
international terrorist organization, but we also need to look 
at the international response and the actions and conduct of al 
Qaeda itself to show that there is an armed conflict. So it 
does go beyond or even backward, if you will, from September 
11th.
    Senator Durbin. Let us be more specific. So if we should 
happen to find a terrorist associated with Hamas, could the 
President bring that terrorist before a military tribunal under 
this Military Order?
    Ambassador Prosper. The Military Order--what will be needed 
in order for someone to be brought to or before the military 
commission is that there is a state of armed conflict and that 
that particular person is part of that armed conflict and has 
committed war crimes.
    Senator Durbin. So, are you agreeing with me then that 
unless we can create a nexus between the person brought before 
the tribunal and the events of September 11th, then this 
Miliary Order does not apply?
    Ambassador Prosper. Unless we can prove a nexus between the 
particular individual and armed conflict and violations of laws 
of war, then the person is not subject to the--
    Senator Durbin. Well, I think you have given a good legal 
answer, but I think you have avoided my question, and I will 
not press it, other than to say I think that is a serious issue 
that has to be raised and responded to, and I think that there 
is need for military tribunals in this case, but I think we 
should take care that we create them so that we not only 
reflect the personal responsibility of the President but the 
congressional responsibility we have under the Constitution.
    The last point I will make to you was made by Senator 
Feingold. In the Country Report for the year 2000 from your 
State Department, they listed about a dozen countries out of 
195 that the Secretary concluded violated the right to a fair 
public trial, and specifically referred to military tribunals 
in Peru and Nigeria. I know the case in Peru because I had one 
of my constituents who has languished in prison for years 
waiting for a trial before a tribunal in Peru. I will go back 
to the point that Senator Feingold raised. Was the State 
Department consulted in the promulgation of this Military Order 
so that we would have a consistent foreign policy in what we 
expect of other nations and what we are prepared to expect of 
ourselves in the establishing of the standards of justice and 
military tribunals?
    Ambassador Prosper. Thank you, Senator. To begin with I 
would like to comment on the Peru and Nigerian cases in 
general. And what we did there was we did not criticize 
military tribunals, per se. We criticized the process, as you 
know, because the processes were not fair, the judges wore 
masks, they were not known, the accused were not informed of 
the charges against them, and there is a whole list that we can 
go down if we start comparing the different criticisms. But in 
looking at this Order and when this, actually the idea of 
military commissions came up, the State Department was part of 
the development process, if you will, and the President was 
advised by his appropriate advisers on all aspects.
    Senator Durbin. One last brief question. If John Walker 
Lindh is charged with a crime, the man who was apprehended in 
the fortress in Mazar-e-Sharif, an American who was associated 
in some way with the Taliban, if he is charged with a crime, he 
could not be tried under a military tribunal by the President's 
definition; is that true?
    Ambassador Prosper. The definition is limited to non-
Americans, yes.
    Senator Durbin. Thank you.
    Senator Schumer. Thank you, Senator Durbin, and thank you, 
Mr. Ambassador, for your testimony before us.
    Ambassador Prosper. Thank you very much.
    Senator Schumer. We will now call the second panel to come 
forward. While we do, I would ask unanimous consent the record 
be held open for a week for questions, written questions from 
the members and other matters, without objection.
    [The prepared statements of Senator Leahy and Senator 
Thurmond follow:]

 Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of 
                                Vermont

    Today this Committee holds two more hearings in an important and 
timely series begun last week on the Department of Justice's response 
to the September 11 attacks. Today's sessions focus on the 
Administration's plan to form military commissions that bypass our 
established court system and on the hundreds of people detained and 
arrested in the aftermath of September 11. I commend Senator Schumer, 
the chair of the Administrative Oversight and the Courts Subcommittee, 
and Senator Feingold, the chair of our Constitution Subcommittee, for 
holding today's hearings. They are acting in the finest tradition of 
the Senate and this country.
    Last week, Senator Specter wrote an article expressing his concern 
that the Administration had not demonstrated the need for the 
President's extraordinarily broad order on military commissions. 
Others, Democrats and Republicans, have expressed concern with the 
broad powers asserted by the Administration and with the manner in 
which it has asserted them--bypassing both Congress and the courts. 
Last Wednesday's hearing allowed this Committee to hear firsthand from 
legal experts across the spectrum on these questions and to assist in 
clarifying the Administration's intentions and actions.
    It is never easy to raise questions regarding the conduct of the 
executive branch when we have military forces in combat, even when 
those questions do not focus on the military operations. The matters we 
are examining concern homeland security, constitutional rights, and 
preservation of the checks and balances on governmental authority that 
lay at the foundation of our constitutional democracy. This Committee 
hopes to cast the light of reasoned public inquiry on the 
Administration's actions, especially sweeping unilateral actions as 
might affect fundamental rights. Ultimately, taking a close look at 
assertions of government power is among the best ways we have to 
preserve our freedoms and keep our country safe.

                                

  Statement of Hon. Strom Thurmond, a U.S. Senator from the State of 
                             South Carolina

    Mr. Chairman:
    I am pleased that you are holding this hearing on President Bush's 
proposed use of military commissions. I believe that a full discussion 
of this issue will display to the American people that military 
commissions are appropriate forums for the trials of war criminals 
associated with the al Qaida terrorist network. Military commission 
have been convened throughout the history of our Nation, and the courts 
have repeatedly recognized their legitimacy. Additionally, these 
commissions will protect our national security interests and ensure the 
safety of trial participants. I believe that these commissions can be 
utilized in a way that will provide fair trials to all accused 
terrorists.
    President Bush's military order providing for the trial of foreign 
terrorists by military commissions has been criticized as an affront to 
our Nation's tradition of impartial justice. I disagree with this 
criticism. Not only is the President's order historically based, but it 
is in accordance with current law. Military commissions are rooted in 
American history, from the trial of deserters in the Mexican-American 
War to the trial of President Lincoln's assassins. The Supreme Court 
has repeatedly upheld the us of military commissions. In Ex Parte 
Quirin, 317 U.S. 1 (1942), the Supreme Court unanimously upheld 
President Roosevelt's use of a military commission to try Nazi 
saboteurs during World War II. The Court also approved the use of a 
military commission to try the Japanese commander in the Philippines 
for violations of the laws of war. In re Yamashita, 327 U.S. 1 (1946).
    In addition to historical and legal precedent, Congress has 
approved, as part of the Code of Military Justice, the use of military 
commissions under the law of war (10 U.S.C. Sec. 821,836). Some critics 
have suggested that the President does not have authority under the 
Code of Military Justice because we are not officially in a state of 
war. However, the murderers who flew commercial airliners into the 
World Trade Center towers and the Pentagon perpetrated nothing less 
than acts of war. The unimaginable destruction in New York and the 
damage done to the symbol of American military power are sobering 
reminders of the acts of war that were committed on our soil.
    At this moment, American forces are engaged in a real war against 
terrorism. It is a unique war because al Qaida is a loosely organized 
group spread throughout many different countries. because the enemy is 
a shadowy network of international terrorists, it is unreasonable to 
insist that an official declaration of war be made.
    Congress also recently acknowledged, in authorizing the President's 
use of force against those responsible for the terrorist attacks, that 
the ``President has authorizing the President has authority under the 
Constitution to take action to deter and prevent acts of international 
terrorism against the United States.'' Pub. L. No. 107-40 115 Stat. 
224, (2001). Because the President has clearly determined that the use 
of military commissions would serve to prevent future terrorist 
attacks, he is acting according to Congressionally recognized powers 
under the Constitution.
    It is important to stress that the President's military order 
invokes his powers as Commander in Chief, which is derived from the 
Constitution and is not dependent upon statutory authority. The 
President's powers and responsibilities in defending our Country are 
separate and distinct from his authority to enforce domestic laws. The 
ability to try enemy war criminals in an efficient manner is an 
important component of our war on terrorism. It is just one part of the 
President's war arsenal. To fight the war effectively, we must 
demonstrate that the barbaric actions of al Qaida will not go 
unpunished, and we must disrupt their ability to operate by bringing 
their members to trial.
    Military commissions are preferable to trial in civilian courts 
because of the unique conditions of war. For example, these commissions 
would allow for the more flexible use of classified information. If 
such information were disclosed in a civilian court, intelligence 
operations could be seriously endangered. Critics have pointed to the 
fact that Federal courts are currently able to handle classified 
information under the Classified Information Procedures Act. 18 U.S.C. 
app. 3. However, the Act provides for the disclosure of classified 
information under certain circumstances, and defense lawyers can use 
this as a bargaining chip to frustrate the prosecution. While this 
system may be acceptable in domestic law enforcement, it presents 
serious roadblocks to the effective use of trials as a national 
security tool.
    Military tribunals would also better protect witnesses and other 
trial participants. Additionally, more flexible rules would allow for 
the use of evidence collected during war. Rules governing the gathering 
of evidence for use in trial courts in the United States do not 
necessarily apply to evidence gathered on the battlefield.
    Lastly, Mr. Chairman, I would like to point out that defendants 
brought to trial before a military commission would still have access 
to review by way of habeas corpus. President Bush, in issuing this 
order, does not intend to convene commissions that render unfair 
judgments. On the contrary, the order specified that a ``full and 
fair'' trial must be given. If used fairly, military commissions will 
be constitutional, lawful, and effective tools in the war against 
terror. It is in fact a testament to our sense of fairness that we are 
providing trials for an enemy that has a sworn duty to destroy the 
American way of life.

    I want to thank our second panel. I saw that all of you 
were here earlier and appreciate your patients. We are going to 
call the witnesses. I will introduce each one, but just to 
inform you folks, it is going to be Terwilliger, Tribe, 
Nardotti, Sunstein and Lynch, in that order.
    So first let me call on George Terwilliger, III. He is a 
partner
    with the Washington law firm of White and Case, did his 
undergraduate work at Seton Hall University and graduated from 
the Antioch School of Law. Prior to his tenure at White and 
Case, he was the Deputy Attorney General at the Justice 
Department from 1991 to 1992. In the first Bush Administration 
he also served as a Federal prosecutor for over 10 years. As a 
private practitioner, he has represented the interests of major 
clients in civil and criminal proceedings.
    Gentlemen, we are going to try to keep your testimony to 
the 5 minutes because many of us, there are going to be a lot 
of questions and we have to break by 1 o'clock. So if you could 
indulge us with that, we would appreciate it.
    Mr. Terwilliger.

  STATEMENT OF GEORGE J. TERWILLIGER III, PARTNER, WHITE AND 
   CASE, WASHINGTON, D.C., AND FORMER DEPUTY ATTORNEY GENERAL

    Mr. Terwilliger. Thank you, Mr. Chairman, Senator Hatch, 
members of the Committee. I thank you for asking me to join 
your discussion of the issues of law and policy concerning the 
extraordinary crisis that is before the nation today.
    I too am a strong believer in the value of responsible 
congressional oversight, and that necessarily involves being 
properly informed, and I am honored that you have asked me to 
try to assist the Committee today.
    I appreciate the introduction, Mr. Chairman. I will skip my 
background, except to say that during my government service I 
was involved in investigating or prosecuting several terrorism 
cases and I supervised the conduct of others, working very 
closely with the FBI and other law enforcement and intelligence 
agencies both here and in foreign countries. During the Persian 
Gulf crisis I had the lead responsibility for the Justice 
Department's counter-terrorism program and represented the 
Department at the National Security Council.
    Since leaving government service in 1993 I have 
participated in a number of symposia and national security 
exercises related to terrorism. Most recently I participated in 
the mock role of the Attorney General in the Dark Winter 
Bioterrorism exercise at Andrews Air Force Base. In that 
exercise, our mock National Security Council, under the 
leadership of former Senator Sam Nunn, had a sobering 
experience dealing with what is now a not-so-futuristic 
outbreak of smallpox due to a bioterrorism incident.
    As a result of my work in both criminal justice and 
intelligence matters over the years, I offer one simple 
conclusion for your consideration. The most sound viable 
defense against terrorism is the collection and analysis of 
intelligence sufficient to ensure the preemption of terrorist 
activities. We simply cannot lock down the country so as to 
secure it from terrorism without inflicting unacceptable levels 
of harm to individual liberties and to the stream of commerce. 
To be sure, there are many other aspects of a comprehensive 
counter-terrorism program, including immigration enforcement as 
well as criminal investigations and prosecution. Prosecutors 
and investigators in Washington, New York and elsewhere have 
done an outstanding job of investigating and prosecuting 
terrorism cases. However, we are now in a state of war. This is 
not just another criminal case to be investigated. In this war, 
a rigorous intelligence program will permit us to triumph by 
identifying whom and what groups represent danger. All of the 
intelligence needed to assess their vulnerabilities and 
undertake preemptive acts cannot, and very well should not, be 
obtained solely through the criminal justice system,. In fact 
it would be a mistake in my judgment to provide law enforcement 
generally with the broad powers that may be necessary to the 
more specific and limited counter-terrorism intelligence 
mission. Requiring that all terrorists be tried in the criminal 
justice system with its expansive rights providing defendants 
information from the government's investigative files, is 
counterintuitive because it may compromise the long-term 
intelligence goals necessary to preempt terrorist violence.
    Because of the importance and value of intelligence to 
victory, we must utilize all lawful means to promote its 
collection, preservation, analysis and appropriate sharing. For 
example, the use of military tribunals to adjudicate the 
responsibility of unlawful belligerants for so-called war 
crimes is an exercise of constitutional authority clearly 
supported by Supreme Court precedent, and deeply rooted in the 
law of civilized nations. How and when such tribunals are best 
used is a decision for the Executive as Commander-in-Chief and 
as part of directing the military campaign of national defense.
    Using military tribunals to adjudicate individual 
responsibility for acts of war against our civilian population 
is an important option. These lawful procedures may be critical 
to the government in both providing a fair adjudication and 
protecting the sensitive sources and methods by which relevant 
evidence to be presented in the tribunal proceedings is 
obtained. That, in turn, can preserve our ability to collect 
and use the intelligence necessary to win the war. For this 
reason, as well as several others, the President's carefully 
drawn Order providing the option to use such tribunals, is a 
wise choice.
    The use of tribunals characterized by fair and reasonable 
procedures is consistent with our national commitment to the 
rule of law. Concerns that military tribunals somehow take away 
civil liberties or bypass the civil justice system are 
unfounded. One can understand that some, perhaps not having 
fully considered the lawful authority for the use of these 
tribunals, might initially harbor such concerns. This is 
understandable, given that a state of war is itself an unusual 
circumstance, and that we have not before faced a foreign 
threat of the magnitude and nature on our home soil that we do 
now. On reflection, I hope that responsible analysis will lead 
to an understanding that responsibility for war crimes is not a 
matter of civil justice, that military tribunals have been 
lawfully and successfully used throughout history, that 
tribunals can indeed be fair, and that preservation of sources 
and methods by which information, including evidence of 
responsibility for war crimes is obtained, is vital to victory.
    The key consideration here is the use of existing lawful 
authority to good effect. Lawful procedures are meant to be 
used, and used aggressively in times of peril. Today we face 
the presence of infiltrators in our midst who are prepared to 
kill and destroy indiscriminately, even at the cost of their 
own lives. That is a harsh and ugly reality. Dealing with that 
reality is not an option. It is the responsibility of 
government to provide for the national defense by determining 
who embodies this threat and capability and rooting them out. 
The survival of the freedoms we cherish, for which many prior 
generations have paid dearly in blood, depends on our success. 
Truly, the greatest threat to our civil liberties is failure in 
the mission to secure America from terrorist violence.
    Mr. Chairman, I would ask to submit the balance of my 
statement that I have given to the Committee in writing for the 
record. Thank you.
    Senator Schumer. Without objection it will be so submitted.
    [The prepared statement of Mr. Terwilliger follows:]

   Statement of George J. Terwilliger III, Partner, White and Case, 
          Washington, D.C., and Former Deputy Attorney General

    Mr. Chairman, Senator Hatch and members of the Committee. Thank you 
for asking me to join your discussion of issues of law and policy 
concerning the extraordinary crisis before the Nation today. I am a 
strong believer in the value of responsible congressional oversight of 
the Executive Branch. Oversight necessarily involves being properly 
informed, and I am honored to try to assist the Committee today.
    I am currently a partner in the Washington, D.C. office of White & 
Case, an international law firm. Because I represent corporations and 
other institutions that face government inquiries, I see the exercise 
of significant government powers daily. Previously, I was privileged to 
serve in the Justice Department for fifteen years, including as the 
Deputy Attorney General of the United States in the Administration of 
President George Herbert Walker Bush and as United States Attorney in 
Vermont appointed by President Reagan. For eight years prior to that I 
was an Assistant United States Attorney both here in Washington and in 
Vermont. During my government service I investigated or prosecuted 
several terrorism cases and supervised the conduct of others. I worked 
very closely with the FBI and other law enforcement and intelligence 
agencies, both here and in foreign countries. During the Persian Gulf 
crisis, I had
    lead responsibility for the Justice Department's counter-terrorism 
program and represented the Department at the National Security Council 
counter-terrorism inter-agency working group.
    Since leaving government service in 1993, I have participated in a 
number of symposia and national security exercises related to 
terrorism. Most recently, I participated in the mock role of the 
Attorney General in ``The Dark Winter'' bio-terrorism exercise at 
Andrews Air Force base. In that exercise, our mock National Security 
Council, under the leadership of former Senator Sam Nunn, had a 
sobering experience dealing with a now not so futuristic outbreak of 
smallpox.
    As a result of work in both criminal justice and intelligence 
matters over the years, I offer one, simple conclusion for your 
consideration:
    The most sound, viable defense against terrorism is the collection 
and analysis of intelligence sufficient to ensure the preemption of 
terrorist activities.
    We cannot ``lock down'' the country so as to secure it from 
terrorism without inflicting unacceptable harm to individual liberties 
and the stream of commerce. To be sure, there are many other aspects of 
a comprehensive counter-terrorism program. These include immigration 
enforcement, as well as criminal investigations and prosecution. 
Prosecutors and investigators in Washington, New York and elsewhere 
have done an outstanding job investigating and prosecuting terrorism 
cases. However, we are now in a state of war. This is not just another 
criminal case to be investigated. In this war, a rigorous intelligence 
program will permit us to triumph by identifying whom and what groups 
represent danger. All the intelligence needed to assess their 
vulnerabilities and undertake preemptive acts cannot, and very well 
should not, be obtained solely through the criminal justice system. In 
fact, it would be a mistake, in my judgment, to provide law enforcement 
generally with the broad powers that may be necessary to the more 
specific and limited counter-terrorism intelligence mission. Requiring 
that all terrorists be tried in the criminal justice system, with its 
expansive rights providing defendants information from the government's 
investigative files, is counter-intuitive because it may compromise the 
long-term intelligence goals necessary to preempt terrorist violence.
    Because of the importance and value of intelligence to victory, we 
must utilize all lawful means to promote its collection, preservation, 
analysis and appropriate sharing. For example, the use of military 
tribunals to adjudicate the responsibility of ``unlawful belligerents'' 
for so-called ``war crimes'' is an exercise of constitutional 
authority, clearly supported by Supreme Court precedent and deeply 
rooted in the law of civilized nations. How and when such tribunals are 
best used is a decision for the Executive as Commander in Chief and 
part of directing the military campaign of national defense.
    Using military tribunals to adjudicate individual responsibility 
for acts of war against our civilian population is an important option. 
These lawful procedures may be critical to the government in both 
providing a fair adjudication and protecting the sensitive sources and 
methods by which relevant evidence to be presented in the tribunal 
proceedings is obtained. That, in turn, can preserve our ability to 
collect and use the intelligence necessary to win the war. For this 
reason, as well as several others, the President's carefully drawn 
Order providing the option to use such tribunals is a wise choice.
    The use of tribunals characterized by fair and reasonable 
procedures is consistent with our national commitment to the rule of 
law. Concerns that military tribunals somehow take away civil liberties 
or bypass the civil justice system are unfounded. One can understand 
that some, perhaps not having fully considered the lawful authority for 
the use of tribunals, might initially harbor such concerns. This is 
understandable, given that the state of war is itself an unusual 
circumstance, and that we have not before faced a foreign threat of 
this magnitude and nature on . our home soil. On reflection, though, I 
hope that responsible analysis will lead to an understanding that:

        Responsibility for war crimes is not a matter of civil justice;
        Military tribunals have been lawfully and successfully used 
        throughout our history;
        Tribunals can be fair; and
        Preservation of sources and methods by which information, 
        including evidence of responsibility for war crimes, is 
        obtained is vital to victory;

    Until we can establish the intelligence necessary to preempt 
terrorism reliably, we need to use all lawful means to prevent further 
acts of terrorist violence. This violence has the real and apparent 
present ability to kill thousands of innocent men, woman and children 
here in the United States. It is apparent that, in the judgment of 
those with awesome responsibility to prevent such attacks now, 
aggressive enforcement of immigration and other laws is necessary. In 
deference to their judgment, I support that vigorous enforcement. 
Simply because there is the danger of abuse, we should not assume that 
abuse is occurring. Rather, common sense suggests that we should 
presume good faith unless and until circumstances indicate otherwise. 
If the prevention mission and renewed vigor in intelligence gathering 
renders it appropriate, in the judgment of responsible officials, to 
seek interviews with 5,000 people, then I support that too. These are 
not easy judgments and I respect the burden, responsibility and 
accountability that attends to making them.
    The key consideration here is the use of existing lawful authority 
to good effect. Lawful procedures are meant to be used-and used 
aggressively in times of peril. Today we face the presence of 
infiltrators in our midst who are prepared to kill and destroy 
indiscriminately, even at the cost of their own lives. That is a harsh 
and ugly reality. Dealing with this is not an option. It is the 
responsibility of government to provide for the national defense by 
determining who embodies this threat and capability, and rooting them 
out. The survival of the freedoms we cherish, for which many prior 
generations have paid dearly in blood, depends on our success. Truly, 
the greatest threat to our civil liberties is failure in the mission to 
secure America from terrorist violence. Thank you.

    Senator Schumer. Our next witness is Professor Laurence 
Tribe. He is the Ralph S. Tyler, Jr. Professor of 
Constitutional Law at Harvard Law School. He graduated from 
Harvard College, Harvard Law School, holds many honorary 
degrees. Before joining the Harvard faculty in 1968 he clerked 
for Justice Matthew Tobriner at the California Supreme Court 
and for Supreme Court Justice Potter Stewart. Professor Tribe 
has published several books and numerous articles, and he has 
been the lead counsel in over 30 Supreme Court cases.
    Thank you for being here, Professor Tribe. Your entire 
statement will be read into the record.

      STATEMENT OF LAURENCE H. TRIBE, TYLER PROFESSOR OF 
      CONSTITUTIONAL LAW, HARVARD LAW SCHOOL, CAMBRIDGE, 
                         MASSACHUSETTS

    Mr. Tribe. Thank you. And it is certainly an honor to be 
here on a very important occasion.
    I want to say just at the outset that there are a great 
many things that have been said by Mr. Terwilliger and by 
Ambassador Prosper that I think no one could disagree with. I 
certainly agree that al Qaeda is waging an unlawful war and a 
monstrous one at that, that we do not need to bring Mr. bin 
Laden or other al Qaeda leaders to the United States for trial. 
I agree that we need not rely on international tribunals. They 
are time consuming. It is extraordinarily difficult to put them 
together. I agree that military commissions are well founded in 
our history, and that they do not, per se, violate the 
Constitution. I agree indeed that whatever you call them, 
whether military commissions or tribunals, it is not even 
necessary under the Constitution that they necessarily follow 
all of the rules of evidence that are followed including the 
jot and tittle of the hearsay rule in the courts martial. I 
think Ambassador Prosper was eloquent at explaining why in a 
wartime situation, when the entire world is a theater of war 
and a crime scene, it would be ludicrous to demand exactly the 
same kind of evidence. I also agree that circumstances involved 
in these trials may require extraordinary measures to protect 
the anonymity of the jurors if there are to be jurors, that is 
extraordinarily hard to do. Sequestering them, I think as 
Senator Hatch points out, is not a solution. There they are, in 
some hotel, which then might get blown up. Following them home, 
which is what some of these terrorists would do, would take 
care of the problem from their point of view, but not 
unfortunately from that of the jurors. So I think you would 
have to be kind of pigheaded not to recognize that insisting on 
the ordinary rules, doing business as usual always in the civil 
courts or those like it, indeed always just like courts 
martial, would be too much. I agree with all of that.
    I agree indeed that military commissions need not be held 
in secret, and I do not think that the President's Order need 
be read to require secrecy, although I think a little bit of 
creative reading is required to tailor it down the way it has 
been tailored down to say that closure will occur only for very 
limited and important purposes. I would love to see it whittled 
down that way by Congress if not by the Executive Branch.
    I am not sure I agree with the statement of Ambassador 
Prosper that military commissions need not be under command 
influence. I would like to believe that, but I do not know that 
the whole world will. And I know one thing for sure, the appeal 
process provided in Section 4(c)(8) of this order is totally 
under command influence. It is an appeal to the Secretary of 
Defense if the President wants to let Donald Rumsfeld in on it, 
but otherwise the President and the President alone decides 
what conviction will be upheld and what sentence will be 
upheld. So one thing I think that ought to be done is a 
provision by Congress to insist on at least a limited appeal to 
the Court of Military Justice or to some other independent body 
that would mirror certiorari review in the U.S. Supreme Court.
    I also think that Senator Specter's concern about the 
preclusive effect of the section that says ``no judicial 
review'' would be a practical concern if the White House 
counsel had not stated that he does not read it that way 
because in the Quirin case the U.S. Supreme Court, dealing with 
identical language from FDR, in effect ignored it and allowed 
habeas review. I wish the Orwellian technique, however, of 
saying one thing and meaning another were not so common in 
Washington, and I do not think it is monopolized by any party 
or by any branch of the government.
    I begin to seriously disagree on just two points. The first 
proposition is that these military commissions are now amply 
authorized and that you do not need anything more from 
Congress. I think Senator Durbin was right in pointing out that 
the joint force authorization resolution authorized the use of 
force for terrorist groups and terrorist activities directly 
linked to September 11. The President's Order manifestly goes 
beyond that. I think the Congress should authorize going beyond 
that.
    Secondly, I think one cannot find in the language of 10 
U.S. Code Sections 821 and 836, in the Uniform Code of Military 
Justice, direct authorization for military commissions. What 
that really does say is that the rules for courts martial do 
not preempt the possible use of military commissions and that 
they give the President the power, when military commissions 
are authorized, to promulgate rules. But the question is: are 
they really authorized?
    Now, one point of view, Senator Hatch expressed it as ably 
as anyone could, is that the President in his Commander-in-
Chief power can do it, even without congressional 
authorization. That is a question the Supreme Court 
deliberately left open in Ex Parte Quirin in 1942. It remains 
open. I would rather not see a cloud hang over convictions and 
sentences entered by these military commissions because of a 
question left open by the Supreme Court. I would rather see 
direct authorization of a limited use of military commissions 
with protections by habeas.
    The other point that I do not really agree with is that the 
President's Order is not really an order. It is again not what 
it says it is. It is merely an announcement that we are going 
to cook up something in the Department of Defense. It reminds 
me of something that--when I was a kid--my mother used to say, 
``Worry now, letter to follow.'' Although we are now told in 
this Order that something may be cooking, we'll see what it is 
later. But the fact is, that this is an Order. It makes 
findings. Section 3 says, ``Any individual subject to this 
Order shall be detained'', shall be tried in certain ways. So I 
do not think it is an answer to say that we do not know all the 
details. We do know now that there is an Order broader than the 
joint authorization by Congress, an Order that has a cloud over 
it because I think such military commissions need congressional 
authorization, or at least that is an open question. And I 
think the open questions are questions that should be resolved 
not unilaterally by the Executive Branch but by a collaborative 
process in which this branch owns up to its important 
responsibility. The President, as Commander-in-Chief--and thank 
goodness this is so--has a single-minded desire to pursue 
certain goals here. We all share those goals in a broad way. 
But Congress alone can look over the landscape at all of the 
separate pieces of what the Attorney General is putting in 
place, and can put some reasonable curbs on it and a solid 
platform beneath it. Thank you.
    [The prepared statement of Mr. Tribe follows:]

       Statement of Professor Laurence Tribe, Tyler Professor of 
                 Constitutional Law, Harvard Law School

    Mr. Chairman, Members of the Committee:
    I am honored by the Committee's request that I testify at this very 
important hearing on the role Congress can and should play in our 
shared national effort to defeat global terrorism without inadvertently 
succumbing to our own reign of terror.
    Although many of our constitutional freedoms would be rendered 
meaningless without freedom from terrorist attack, they may be equally 
threatened by undue governmental limitations and intrusions imposed in 
the elusive pursuit of national security. The choice we face is not 
that of liberty versus security. Our challenge is to secure the 
liberties of all against the threats emanating from all sources--the 
tyranny and terror of oppressive government no less than the tyranny of 
terrorism.
    In the days following September 11, our journalists, academics, and 
citizens wondered whether our government and our courts would have the 
wisdom and courage to avoid the terrible mistake they made in ordering 
and ratifying the detention of over 70,000 Japanese Americans in 
internment camps during the Second World War.\1\ Liberty from 
overreaching governmental power was central to the freedoms identified 
by President Bush in his address to Congress on September 20 as the 
very target of the terrorist attack.\2\ I share with the President the 
belief that civil liberty includes liberty from terrorism. I hope we 
share the belief that the war against terrorism does not require us to 
sacrifice constitutional principles on the altar of public safety, We 
know what is the result of that sacrifice--in Korematsu v. United 
States, 323 U.S. 214 (1944), the Supreme Court permitted the government 
to intern American citizens purely on the basis of their ancestry in 
the name of national security. But liberty, properly understood, 
requires both protection from government and protection by 
government.\3\ We must not permit ourselves to repeat the same mistake 
and, by pitting liberty against security, erase our freedom and 
equality in security's name. We are at the ``Korematsu'' crossroads. 
Congress can determine which path we take. And Congress has a special 
responsibility to act. No other branch of government can be relied on 
to perform that task as well. Congress alone can see the problem whole; 
courts necessarily see but one case at a time and in wartime tend to 
defer to the executive's greater knowledge and expertise,\4\ and the 
executive tends to be blinded by the single-minded requirements of the 
military mission.
---------------------------------------------------------------------------
    \1\ See, e.g., David J. Garrow, Aftermath: The Rule of Fear; 
Another Lesson From World War II Internments, N.Y. Times, Sept. 23, 
2001 Sec. 4 at 6.
    \2\ ``They hate our freedoms: Our freedom of religion, our freedom 
of speech, our freedom to vote and assemble and disagree with each 
other. . . .These terrorists kill not merely to end lives but to 
disrupt and end a way of life. With every atrocity, they hope that 
America grows fearful.'' Text of President Bush's Sept. 20 Speech As 
Prepared For Delivery to Congress, U.S. Newswire, September 20, 2001.
    \3\ The current Supreme Court has been more reluctant than some 
believe is appropriate to hold government responsible for private 
violence--even violence that it easily have prevent. See e.g., DeShaney 
v. Winnebago Cty, 489 US 189 (1989). Ironically, it may be only an 
affirmative vision of government, capable of helping people attain 
decent levels of education, health, nutrition, shelter, and physical 
security in far-flung areas of the globe, that can do much in the long 
run to change the conditions in which fanaticism finds fertile breeding 
grounds.
    \4\ I develop these points in an article published in the current 
issue of The New Republic (Dec. 10, 2001), ``Trial by Fury,'' at pp. 
18-19.
---------------------------------------------------------------------------
    The real problem is not how much liberty to sacrifice to buy 
security; it is how properly to achieve freedom from the terrorism of 
all fanatics, foreign or domestic, who would challenge the living 
fabric of our society, including the constitutional compact that unites 
and gives it purpose. Fanatics have attacked the Pentagon and the 
Federal Building in Oklahoma and have toppled the towers of the World 
Trade Center, massacring thousands of innocent people. We must not 
allow them to tear down as well the structure of government, 
constituted by the separation of powers, that makes our legal and 
political system--and the liberties it embodies and protects--
altogether unique. Our response to each threat must remain the same: a 
steadfast refusal to succumb to any attempt to force upon us a will, 
and a way of life, that offend the freedoms at our country's core. 
These freedoms, embodied in our Constitution, are our security against 
the fanatics' new tyranny of terror. To assert them here is to win at 
home the war we are waging so effectively abroad.
    In the wake of the terrorist attack on the United States, the 
President has acted to ensure that the perpetrators of this crime 
against humanity are brought to justice--or, as he promised in his 
address to Congress, to bring justice to the terrorists. The terms of 
the November 13 Military Order represent the most dramatic Presidential 
step thus far in our effort to elaborate just what the content of this 
American justice is to be. The ostensible goal of the military 
tribunals to be instituted pursuant to that Order is to permit a ``full 
and fair trial,'' Sec. 4(c)(2), while at the same time ensuring that 
the process is as expeditious and secure as possible. The need to 
provide sooner rather than later for the detention and trial of those 
responsible for the terrorist attacks of September 11 is apparent from 
the rapid pace of our, and our allies', military victories in 
Afghanistan. To Congress falls the task of charting our next steps by 
giving content to a vision of justice that responds fairly yet firmly 
to the fanatics' threat to our nation.
    Congress alone can avoid the constitutional infirmities that plague 
the Military Tribunal Order of November 13 and must do so not only to 
protect the constitutional rights of those threatened by that Order but 
also to shield any resulting convictions from judicial reversal on 
appeal--convictions which could properly be obtained by military 
tribunals constituted under a more narrowly drawn congressional 
statute.
    As of two days ago, Secretary of Defense Rumsfeld had wisely sought 
to describe the Military Order issued by President Bush on November 13 
as a blueprint made public, ``so that. . .work could begin'' designing 
the military tribunals and settling their jurisdiction and procedures. 
He insisted that the Order was announced simply because, in his words, 
``It may be that we will need that option'' (NBC, ``Meet the Press,'' 
Dec. 2, 2001). This is not, however, a blueprint that the United States 
Government is free to follow. The structure of executive power 
instituted by the November 13 Order is so constitutionally flawed at 
its base that it cannot be saved by nimble TV spin or by altering a 
detail here and a detail there.
    As promulgated, the Military Order, by its express terms, is a 
direct threat to some 20 million lawful resident aliens in the United 
States. Almost any act by a resident alien, anywhere, could in some 
circumstances lead the President to believe the alien has or had some 
form of involvement with a terrorist organization.\5\ The resident 
alien need not even know that he was involved with terrorists. All that 
is required is ``aid[ing] or abet[ing]'' terrorists ``or acts in 
preparation [ ]for'' terrorism. Hiring a car for a friend could be a 
terrorist act subject to trial by military tribunal, if it turned out 
that your friend is--or was--a terrorist. How many contributors to the 
African National Congress who supported sanctions against South Africa 
under apartheid in the face of government opposition ``ha[d] as their 
aim to cause[ ] injury or adverse effects on. . .United States. . 
.foreign policy. . .''? Sec. 2(a)(1)(ii). How many supporters of Irish 
nationalism contributed, for reasons of political conscience, funds 
that ``aided or abetted'' the Irish Republican Army before it began 
disarming on September 11?\6\ The Military Order decrees that any such 
supporter might at any moment be turned over to the Defense Department 
for trial by a military tribunal on the mere stroke of the President's 
pen certifying that the President had ``reason to believe'' that the 
named individual was, or at one time had been, helping or harboring 
some organization that the President saw fit to regard as an example of 
``international terrorism.''
---------------------------------------------------------------------------
    \5\ It is, for example, difficult to know exactly what sort of act 
``threatens'' an ``injury to or adverse effects on the United States, 
its citizens, national security, foreign policy, or economy.'' 
Sec. 2(a)(1)(ii). Almost any offense involving money, from 
counterfeiting currency to holding up a bank at gunpoint, to 
threatening to blow the bank up, could come under this description.
    \6\ Would the Senate itself be culpable for having ``knowingly 
harbored'' Gerry Adams? Sec. 2(a)(1)(ii).
---------------------------------------------------------------------------
    Of course, as Secretary Rumsfeld must have recognized, any such 
threat, made in a manner that necessarily hangs like a Sword of 
Damocles over millions of lawful residents of this nation, cannot 
possibly be defended under our Constitution.\7\ As Justice Marshall 
once wisely observed, such a sword does its work by the mere fact that 
it ``hangs--not that it drops.'' Arnett v. Kennedy, 416 U.S. 134, 231 
(1974) (Marshall, J., dissenting). The Secretary's attempt to wish the 
sword away--to persuade us all that, until we feel the edge of its 
blade upon our necks, we need not worry--is no substitute for replacing 
that sword with a solid framework for the judicious use of executive 
force in bringing justice to the terrorists.
---------------------------------------------------------------------------
    \7\ The order as promulgated on November 13 stands utterly 
unprecedented in American history and is quite impossible to justify in 
constitutional terms. Unlike, for example, President Lincoln's use of 
military tribunals to supplant the civil courts, pursuant to 
congressional legislation enacted right after the South tried to secede 
from the Union, see Duncan v. Kahanamoku, 327 U.S. 304, 323 (1946), and 
President Roosevelt's use of military tribunals to try and execute the 
Nazi saboteurs who donned civilian garb to blend with the American 
populace they sought to injure, Ex parte Quirin, 317 U.S. 1, 25-27, 29, 
35, 42 (1942) (underscoring the formal declaration of war that had 
triggered prior statutory authorization of precisely such military 
tribunals in wartime and leaving open the question of presidential 
power to create such commissions without leave of Congress, the 
Military Order lacks (thus far at least) any congressional 
authorization. Certainly, it cannot be justified by Congress's 
September 18 Use of Force Resolution., Pub. L. No. 107-40, 115 Stat. 
224. That resolution authorized ``the President. . . .to use all 
necessary and appropriate force against those . . .he determines 
planned, authorized, committed, or aided'' entities that perpetrated 
the atrocities of ``September 11, 2001'' ``or harbored'' those who had 
done so. Nothing in the Resolution authorized creating any system 
whatsoever of anti-terrorist tribunals, a quintessentially legislative 
act. Moreover, it authorized nothing beyond ``use of force'' in 
pursuing and subduing those responsible for the September 11 attacks to 
prevent future acts of international terrorism by them against the U.S. 
Yet the Military Order extends to all groups that have ``engaged in, 
aided or abetted, or conspired to commit, acts of international 
terrorism,'' Sec. (a)(1)(ii), including many groups doubtless 
uninvolved in the September 11 attack even by the most capacious 
definition of involvement.
---------------------------------------------------------------------------
    The next steps are for Congress to take--not in the direction of so 
flawed a blueprint, but towards a constitutionally sound regime that 
will withstand judicial review--if it hopes to obtain swiftly and to 
defend from embarrassing judicial invalidation, convictions by military 
tribunal of the leaders of Al Qaeda, or indeed of anyone else. For it 
is not within our government's power simply to threaten to detain and 
commit to a military tribunal or commission anyone who associates with 
agents of terror. After all, even today's hardly ``liberal'' Supreme 
Court not long ago held that the City of Chicago's response to terror 
gangs \8\--enacting legislation that threatened to arrest and prosecute 
anyone who, loitering near a known gang member, did not disperse upon 
police command--was flatly unconstitutional in essentially delegating 
to those who enforce the law the vaguely bounded power to make it on 
the spot. City of Chicago v. Morales, 527 U.S. 41, 62-63 (1999).
---------------------------------------------------------------------------
    \8\ Justice Thomas explicitly characterized the gangs as quasi-
terrorists, describing them as ``fill[ing] the daily lives of many of 
our poorest and most vulnerable citizens with. . .terror. . ., often 
relegating them to the status of prisoners in their own homes.'' City 
of Chicago v. Morales, 527 U.S. 41, 99 (1999) (dissenting opinion).
---------------------------------------------------------------------------
    The November 13 Military Tribunal Order is the same sort of 
response and has the same kind of infirmity. Like terrorism itself even 
though far less violently, a threat of arrest and possible conviction, 
even in our fully protective civil courts, for offenses not clearly 
defined in advance but to be defined by the executive as events unfold, 
instills fear far beyond the ground zero of its actual implementation. 
The Supreme Court in Morales recognized as much by striking down on its 
face the ordinance that announced that threat and refusing to wait 
until particular individuals were convicted or even charged. Id. at 55. 
The judicial response to the November 13 Order, despite Bush 
administration efforts to describe it as more like a mere press 
release, than a real order, could be even harsher. For at least the 
Chicago threat carried with it the assurance that nobody would be 
arrested pursuant to its terms without first receiving a clear and 
individualized warning--and that anyone could assuredly avoid arrest 
and prosecution simply by heeding that warning and dispersing when 
ordered to do so. The November 13 Order is a threat that carries no 
such corresponding assurance: all those subject to it are exposed to 
prosecution, conviction, and possible execution for conduct they may 
have engaged in years ago--and the Order suffers from the compounding 
vice that it violates the separation of powers required by our 
Constitution of the federal government (although not of states and 
municipalities) by proceeding without the congressional authorization 
clearly required for any creation of a system of trials, military or 
otherwise.\9\ It installs the executive branch as lawgiver as well as 
law enforcer and law interpreter and applier,\10\ leaving to the 
executive branch the specification, by rules promulgated as it goes 
along, of what might constitute ``terrorism'' or a ``terrorist'' group, 
what would amount to ``aiding and abetting'' or ``harboring'' such 
terrorism or such a group, and a host of other specifics left to the 
imagination of the fearful observer. This ``blending of executive, 
legislative, and judicial powers in one person or even in one branch of 
the Government is ordinarily regarded as the very acme of absolutism.'' 
Reid v. Covert, 354 U.S. 2, 11 (1957); Federalist No. 47 (James 
Madison).
---------------------------------------------------------------------------
    \9\ The November 13 Military Order goes far beyond the use of force 
authorized by Congress, which declared that the September 11 attacks 
``pose[d] an unusual and extraordinary threat to the national security 
and foreign policy of the United States'' and granted the President 
discretion to use ``all necessary and appropriate force against'' all 
entities--whether foreign or domestic--only so long as ``he determines 
[that they] planned, authorized, committed, or aided the terrorist 
attacks that occurred on ``September 11, 2001'' (Emphasis added) and so 
long as he does no ``in order to prevent future acts of international 
terrorism against the United States by such [entities].'' Joint 
Resolution to Authorize the Use of United States Armed Forces Against 
Those Resolution''), Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 
2001). The President's Military Tribunal Order applies to a potentially 
unlimited class of individuals, completely at the discretion of the 
President. The White House Counsel inadvertently conceded almost as 
much when he wrote several day ago that, ``[u]nder the order, the 
president will refer to military commissions only noncitizens who are 
members or active supporters of Al Qaeda or other international 
terrorist organizations targeting the United States.'' Alberto R. 
Gonzales, ``Martial Justice, Full and Fair,'' The New York TImes, Nov. 
30, 2001, Sec. A at 27 (emphasis added); see also Military Order 
Sec. 2(a)(1)(ii) (referring anyone who has ``engaged in. . .acts of 
international terrorism'' to the military commissions).
    Although the President acting in concert with Congress, has the 
power to create certain military tribunals, Ex parte Milligan 71, U.S. 
2, 136 (1866), he does not posses an independent power to create a 
system of such tribunals on his own but may only ``carry into effect 
all laws passed by Congress. . .defining and punishing offences against 
the law of nations, including those which pertain to the conduct of 
war.'' Ex parte Quirin 317 U.S. 1, 10 (1942). In Ex parte Quirin, 
mistakenly invoked by the White House as precedent, the military 
tribunal's jurisdiction was ``explicitly provided'' by Congress and was 
limited to ``offenders or offenses against the law of war.'' Id. at 11; 
see also In re Yamashita, 327 U.S. 1, 16 (1946) (``Congress, in the 
exercise of its constitutional power to define and punish offenses 
against the law of nations, of which the law of war is a part, has 
recognized the `military commission' appointed by military command, as 
it had previously existed in United States army practice, as an 
appropriate tribunal for the trial and punishment of offenses against 
the law of war.'').
    \10\ The Order confuses the role of legislator, see Sec. Sec. 4(b) 
and 6(a) (power to promulgate ``orders and regulations'' necessary for 
commission); policeman, see Sec. 3 (power to ``detain[] at an 
appropriate location''); prosecutor, see Sec. Sec. 2 (``I determine 
from time to time in writing'' who is a terrorist subject to the 
commissions) and 4(c)(5) (Secretary of Defense ``designate[s]'' person 
to ``conduct. . .prosecution''); judge see Sec. 4(c)(2); and court of 
appeal, see Sec. 4(c)(8) (``review and final decision by me or by the 
Secretary of Defense if so designated by me for that purpose''), 
concentrating all these powers in the executive branch. In fact, the 
President himself is empowered to take on both the role of prosecutor, 
in determining who is to be subject to the tribunal under Sec. 2(a), 
and of ultimate court of appeal under Sec. 4(c)(8).
---------------------------------------------------------------------------
    Several days before Secretary Rumsfeld's attempted recasting of the 
November 13 Order, White House Counsel Alberto Gonzales opined in the 
pages of The New York Times that the order would not reach any but 
``foreign enemy war criminals,'' Alberto R. Gonzales, ``Martial 
Justice, Full and Fair,'' The New York Times, Nov. 30, 2001, Sec. A at 
27,\11\ and that each military tribunal's proceedings, which the Order 
had said could be conducted in secret at the President's option, 
Sec. 4(c)(4), would of course be conducted in the open with exceptions 
only for ``the urgent needs of national security.'' It is, to be sure, 
nice to have White House Counsel's promise that this is so, but ``trust 
me'' has never been enough for the American people. Our whole 
constitutional tradition is predicated on the proposition that not even 
the best intentions of the most benevolent leaders can substitute for 
the positive legal protection and preservation of freedom. Ours is ``a 
government of laws, not men.''\12\ It is offensive to our founding 
values to have the powers of drafting the laws, and then prosecuting 
and adjudicating violations of those laws, embodied in one agency--
here, one man. ``Such blending of functions in one branch of the 
Government is the objectionable thing which the draftsmen of the 
Constitution endeavored to prevent by providing for the separation of 
governmental powers.'' Reid v. Covert, 354 U.S. 2, 38-39 (1957).\13\
---------------------------------------------------------------------------
    \11\ ``[I]t does not cover United States citizens or enemy soldiers 
abiding by the laws of war. Under the order, the president will refer 
to military commissions only noncitizens who are members or active 
supporters of Al Qaeda or other international terrorist organizations 
targeting the United States.'' Id. It is true that the Order as written 
applies ``only'' (some ``only''!) to ``any individual who is not a 
United States citizen,''Sec. 2(a), but the Quirin decision upon which 
the administration rests so heavily precisely refused to distinguish 
between the rights of citizens and those of non-citizens in the context 
of unlawful belligerency. Ex parte Quirin v, 317 U.S. 1, 15 (1942). 
Thus, on its own announced theory, the government potentially possesses 
the power to refer citizens who engage in terrorist acts to the 
military commissions for ``trial'' and possible execution.
    \12\ Usually attributed to John Adams.
    \13\ In fact, the Supreme Court considered that ``[n]o graver 
question was ever considered by this court, nor one which more nearly 
concerns the rights of the whole people'' than whether a military 
``tribunal [had] the legal power and authority to try and punish [a] 
man'' ``arrested by the military power of the United States, 
Imprisoned, and, on certain criminal charges preferred against him, 
tried, convicted, and sentenced. . .by a military commission, organized 
under the direction of the military commander.'' Ex parte Milligan 71 
U.S. 2, 118-19 (1966). This is precisely the issue presented by the 
President's Military Order, which contemplates ``det[ention] at an 
appropriate location designated by the Secretary of Defense,'' 
Sec. 3(a), and ``tri[al] by military commission. . .and. . .punishment 
in accordance with the penalties provided under applicable law, 
including life imprisonment or death.'' Sec. 4(a).
---------------------------------------------------------------------------
    It is just not good enough for the executive branch to put a benign 
spin on this Order and to assure the nation that it will not mean in 
practice what it says on its face. Yet this is precisely what Mr. 
Gonzales sought to do when he ``explained'' in The New York Times that 
the Military Order's explicit bar of any judicial relief whatsoever for 
any person detained and tried pursuant to it \14\ would, of course, not 
mean what it said, inasmuch as the Supreme Court half a century ago had 
refused to take identical language at face value in its Ex parte Quirin 
decision condemning the Nazi submarine saboteurs to death--but only 
after according them a judicial hearing of sorts.\15\ What seems 
essential is less spin and more action--here, concrete legislative 
action to build a sound but narrow legal platform on which to construct 
the military tribunals and conduct the military trials that the 
President believes may prove essential in extraordinary cases where our 
civil justice system may be insufficient to the task of coping with the 
terrorist threat that became manifest with the monstrous events of 
September 11. That legal platform must make clear that its scope cannot 
be extended (a) to American citizens; (b) to individuals linked, 
however closely, to acts of terror wholly unrelated to September 11 
(unless Congress affirmatively and expressly chooses to add such acts, 
or the specific organizations responsible for them, to the list of 
targets it empowers the President to pursue and try militarily); to 
individuals not closely linked to a specific terrorist event whose 
responsible agents Congress has authorized the President to pursue by 
force and try by military tribunal; or to mere foot soldiers captured 
on the field of battle and entitled, under the Geneva Convention, to 
treatment as prisoners of war rather than as war criminals.
---------------------------------------------------------------------------
    \14\ ``(1) Military tribunals shall have exclusive jurisdiction 
with respect to offenses by the individual; and (2) the individual 
shall not be privileged to seek any remedy or maintain any proceeding, 
directly or indirectly, or to have any such remedy or proceeding sought 
on the individual's behalf, in (i) any court of the United States, or 
any State thereof, (ii) any court of any foreign nation, or (iii) any 
international tribunal.'' Sec. 7(b).
    \15\ see Alberto R. Gonzales, supra note 8. Cf. George Orwell, 
19894 (1949).
---------------------------------------------------------------------------
    Substantive limits must be established by law to constrain on the 
President's power to determine which aliens are to be subjected to the 
jurisdiction of a military tribunal or commission, and procedural 
guidelines must be established to ensure that defendants' due process 
rights are protected by such commissions. Congress must set those 
limits and draft those guidelines, presumably in consultation with the 
President.
    At the forefront of our new agenda abroad, at least so far, has 
been an effort to help establish transparent, accountable, and 
hopefully democratic institutions with which to govern Afghanistan. The 
policy appears to rest upon the belief that democracy is the best check 
on terrorist activity, which requires a culture of repressive 
intolerance in order to thrive. Yet that same accountability must 
prevail at home as well. We are in the end more, not less, secure when 
we practice the democracy at home that we preach abroad.
    The Military Order confronts Congress with two distinct problems to 
resolve. The first is the set of substantive limitations to be placed 
on the jurisdiction afforded military tribunals: who is to be subject 
to the tribunals, and for what wrongs? The second is the set of 
procedures that is to govern these tribunals. We must ensure the open 
and fair hearings witnessed in ``A Few Good Men,'' not the kangaroo 
court seen in ``Paths of Glory.'' It is especially troubling that even 
our extant system of courts martial has been besmirched by careless 
comparison with the far less protective military tribunals that the 
order plainly contemplated. See William Glaberson, ``A Nation 
Challenged: the Law; Tribunal v. Court-Martial: Matter of Perception,'' 
The New York Times, Dec. 2, 2001, Sec. 1B at 6 (``the proposed 
tribunals are significantly different from courts-martial, [military] 
lawyers say, adding that confusion between the two has distorted the 
debate over the tribunals and unfairly denigrated military justice '').
                              Jurisdiction
    1. As a preliminary matter, Congress should note that we already 
have a system of justice under which to try terrorists: we successfully 
tried in criminal court the last members of Al Qaeda who attempted to 
bomb the World Trade Center. In the rush to convict and punish the 
perpetrators of the attacks on the World Trade Center and the Pentagon, 
it would be a mistake, although not necessarily a violation of the 
Constitution, to rely on military courts as a substitute for the 
intelligence agencies' ability to track terrorists and accumulate 
convincing evidence of their activities. Using a court designed to 
convict even when a weak case has been presented by the government--
using it, in fact, to cover the failures of the executive--is hardly 
the way to fight terrorism in the long run.
    Indeed, the entire plea for secrecy and anonymity--from concealing 
from the accused and/or the public the identity and nature of the 
witnesses and other sources behind the government's case, to keeping 
confidential the methods of investigation employed by the government to 
track down and identify the accused, to hiding the identity of jurors 
and judges who might reasonably fear reprisal from an accused 
terrorist's associates in terror who are still at large--can so easily 
become a cover, whether deliberate or not, for ineptly unreliable or 
otherwise unconscionable behavior by the executive, that it would seem 
wise for Congress to institute some sort of independent check on the 
President's assertion that the presumptively open and public civil 
trial system, which has had to cope often with needs for witness 
protection and informer anonymity and the like, is intrinsically ill-
adapted to the task at hand.
    Congress's goal should therefore be to channel as many suspected 
terrorists as feasible away from, rather than towards, military 
tribunals. Among the reasons justifying a military tribunal will of 
course be considerations of national security that may require closed 
proceedings to protect classified information from dissemination; 
concerns of overwhelming danger to the court, to jurors, or to 
witnesses that might require secure proceedings of a sort precluded 
even by the usual methods of witness or court protection; or 
circumstances surrounding the accused's capture while prosecuting a 
military action on behalf of an enemy nation or group in a manner that 
allegedly violates the laws of war.
    2. Although much of the current debate proceeds on the premise that 
these two should be treated differently, where these reasons are 
present there seems little principled basis to distinguish between an 
unlawful belligerent who is a resident alien, blending in with and 
hiding among the United States population, and one who is a non-
resident alien, openly engaging in warfare on United States civilians 
from beyond our borders. Indeed, the reasons for favoring military 
tribunals do not appear to distinguish between citizens and non-
citizens. As the Court held in Ex parte Quirin, 317 U.S. 1 (1942), when 
a citizen disavows his homeland and sides with the enemy, he may become 
an enemy belligerent. See Id., 317 U.S. at 16 (``Citizenship in the 
United States of an enemy belligerent does not relieve him from the 
consequences of a belligerency which is unlawful because in violation 
of the law of war''). Indeed, being a traitor as well as an unlawful 
belligerent, the citizen who wages such warfare on his homeland may 
well be regarded as more culpable than the alien, not less.\16\
---------------------------------------------------------------------------
    \16\ Congress is, however, free to exempt United States citizens 
from trial by tribunal altogether: ``[O]ur law does not abolish 
inherent distinctions recognized throughout the civilized world between 
citizens and aliens, nor between aliens of friendly and of enemy 
allegiance, nor between resident enemy allegiance, nor between resident 
enemy aliens who have submitted themselves to our laws and nonresident 
enemy aliens who at all times have remained with, and adhered to, enemy 
governments''. Johnson v. Eisentrager, 339 U.S. 763, 769-770 (1950).
---------------------------------------------------------------------------
    In sum, it seems wisest in practice to limit military tribunals--as 
the Bush Administration has all but promised it would likely do in 
practice--to a relatively small group of enemy alien leaders, captured 
abroad, of terrorist groups clearly identified by Congress, and an even 
smaller group of their colleagues who are reasonably believed to have 
played similar roles while concealed among our people. In theory, 
however, the two criteria essential to establishing military, as 
opposed to civilian, jurisdiction should not rest upon any such 
difference in status.
    The first is that the person to be tried by a military tribunal or 
commission must be an enemy, see Johnson v. Eisentrager, 339 U.S. 763, 
776 (1950)--that is, someone acting at the behest of a nation or other 
entity warring against the United States; the second is that the enemy 
must be charged with unlawful belligerency, or any other established 
offense against the laws of war, sufficiently serious to warrant such 
disfavored treatment. See Ex parte Quirin, 317 U.S. at 11.
    Strikingly, the November 13 Military Tribunal Order extends the 
range of offenses that it subjects to military tribunals so as to 
include ``any and all offenses triable by military commission,'' 
Sec. 4(a), not just those that offend the laws of war, based, 
evidently, upon an unexplained finding that ``prevention of terrorists 
attacks'' requires the detention for, and trial by, military 
commissions not only ``for violations of the laws of war'' but also for 
``violations of. . .other applicable laws,'' of all ``individuals 
subject to this order,'' Sec. 1(e) (emphasis added). The law is 
settled, however, that an alien may be subjected to trial by a military 
tribunal only if he meets both of the criteria set forth above. See 
Yamashita, 327 U.S. at 26. Even though military rule is ``properly 
applied. . .on the theater of active military operations, where war 
really prevails,'' Milligan, 71 U.S. at 127, trying a captured soldier 
as a criminal for merely fighting in accord with the laws of war on 
behalf of the nation or other entity he represents appears to be 
universally condemned. Under the Geneva Convention and other 
international instruments, such soldiers must be held as prisoners of 
war, to be repatriated at the war's conclusion. This could pose a 
problem in a case such as that of Taliban foot-soldiers, captured while 
engaged in combat against the Northern Alliance, whom our military 
leaders suspect of harboring, or working in close concert with, Al 
Qaeda. Unless such combatants happen to be among Al Qaeda's leadership, 
they are most unlikely to have been sufficiently responsible for that 
group's terrorist acts to count as war criminals, but viewing them as 
entitled to treatment as prisoners of war would seem to require their 
repatriation in the eventually reconstituted Afghanistan, to Saudi 
Arabia, to Pakistan, or to their mother country whatever it might be--
none of which nations might be willing to welcome them. Even though the 
indefinite and potentially permanent detention of deportable aliens 
residing in the United States may well be unconstitutional even if no 
other nation will accept them, see Zadvydas v. Davis, 121 S. Ct. 2491, 
2500-02 (2001), that protection does not seem to extend to ``aliens 
outside our geographic borders,'' Id. at 2500 (and cases cited 
therein), much less to enemy aliens outside those borders, so it may 
well be that, since international law could hardly require the 
admission of such captured enemies into the United States, there is no 
alternative to their indefinite detention by the United States, at a 
suitable place outside our borders, unless and until their repatriation 
becomes possible.\17\
---------------------------------------------------------------------------
    \17\ Nor is the prospect of trying terrorists in international 
tribunals a particularly promising one. As former Assistant Secretary 
of State Harold H. Koh recently observed, ``As recent efforts to try 
international crimes in Cambodia and Sierra Leone show, building new 
tribunals from scratch is slow and expensive and requires arduous 
negotiations. Geopolitical concerns in this case would predominate, and 
the impartiality of the tribunal would inevitably be questions by some 
in the Muslim world. These tribunals are preferable only when there is 
no functioning court that could fairly and efficiently try the case, as 
was the situation in the former Yugoslavia and in Rwanda,'' The New 
York Times, November 23, 2001, Sec. A at 39 (``We Have the Right Courts 
for Bin Laden'').
---------------------------------------------------------------------------
    3. To enforce this basic jurisdictional boundary, Congress should 
provide for some form of tribunal--it need not be an Article III court 
in the first instance\18\--to review the President's threshold 
assertion of military jurisdiction, and should provide as well for some 
suitably expedited form of habeas corpus review in an Article III court 
if the initial review was by some lesser power. See, e.g., H.R. 3162 
(Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 
2001) (signed into law October 26, 2001) Sec. 412(b) (providing 
expedited habeas corpus review).\19\
---------------------------------------------------------------------------
    \18\ This type of administrative solution parallels the manner in 
which the immigration statutes provide for determination of whether an 
alien fits a particular classification, while preserving habeas review 
of non-discretionary decisions for Article III courts.
    \19\ The provisions of the USA-PATRIOT Act also define, for 
purposes of that Act, what constitutes ``engag[ing] in terrorist 
activity'' and what organizations are terrorist. See Sec. Sec. 411 
(a)(1)(F) & (G). Congress should consider tightening those definitions, 
enacted there with great haste and vague enough to show the effects of 
the rush, as part of its determination of the categories of individuals 
who should be subject to trial by military tribunals.
---------------------------------------------------------------------------
    4. In addition, of course, Congress would do well, acting under its 
Article I, Sec. 8, ch. 10 power to ``define and punish. . .offences 
against the law of nations,'' to define more precisely those violations 
of the laws or customs of war which the military tribunals may 
hear,\20\ and to specify or otherwise monitor the penalties to be 
imposed. Punishments could perhaps be made proportionate to those meted 
out under the Federal Sentencing Guidelines.
---------------------------------------------------------------------------
    \20\ Under Article 3 of the International Tribunal for Yugoslavia, 
for example, the following acts would subject a terrorist to military 
jurisdiction:
     (a) employment of poisonous weapons or other weapons calculated to 
cause unnecessary suffering; (b) wanton destruction of cities, towns or 
villages, or devastation not justified by military necessity; (c) 
attack, or bombardment, by whatever means, of undefended towns, 
villages, dwellings, or buildings; (d) seizure of, destruction or 
willful damage done to institutions dedicated to religion, charity and 
education, the arts and sciences, historic monuments and works of art 
and science; (e) plunder of public or private property.
---------------------------------------------------------------------------
                               Procedure
    5. Domestic law of course imposes due process safeguards on 
military tribunals of every possible form. Thus, in Middendorf v. 
Henry, 425 U.S. 25 (1976), the Court took note of the traditional 
categorization of courts martial (general, special, and summary--i.e., 
non-adversarial.), and required Fifth Amendment due process protections 
to be extended to a defendant even at the lowest (summary) of the three 
levels of court martial.\21\ Id. at 43 (``plaintiffs, who have either 
been convicted or are due to appear before a summary court-martial, may 
be subjected to loss of liberty or property, and consequently are 
entitled to the due process of law guaranteed by the Fifth 
Amendment''). The two higher levels (general and special) are 
adversarial, and accordingly require heightened due process safeguards.
---------------------------------------------------------------------------
    \21\ General courts martial require ``a military judge and not less 
than five members'' of the panel, and may impose capital sentences. 10 
U.S.C. Sec. Sec. 816, 818. Special courts martial require three panel 
members, and may not impose capital sentences. Id. at 816, 819. Summary 
courts martial require only one panel member, may impose only minimal 
sentences, and may be objected to by the accused, who may then received 
trial by either special or general court martial Id. at 816, 820.
---------------------------------------------------------------------------
    6. The court martial provisions of the Uniform Code of Military 
Justice (UCMJ) provide the minimum procedural safeguards required by 
military law, and may usefully be considered by Congress as setting a 
template against which to measure possible legislative proposals for 
creating new types of military tribunal.\22\ ``General courts-martial. 
. .have jurisdiction to try any person who by the law of war is subject 
to trial by a military tribunal and may adjudge any punishment 
permitted by the law of war.'' 10 U.S.C. Sec. 818. General courts-
martial are, as noted, comprised of five judges. One of these must be a 
military judge--unless the defendant waives this requirement. 10 U.S.C. 
Sec. 816. At least one trained lawyer sits on the court, 10 U.S.C. 
Sec. 826, and, absent exigencies of war, the accused is entitled to 
counsel to defend him, Sec. 827; to know the charges proffered against 
him, Sec. 830; to be free from compulsory self-incrimination, Sec. 831; 
and to conduct a limited investigation of the facts surrounding the 
charge, Sec. 832.
---------------------------------------------------------------------------
    \22\ To suggest that such new tribunals should be less protective 
of the accused than are special and summary courts martial is to push 
the floor of protection quite low indeed. The dearth of procedural 
protections available at that floor is especially stark when compared 
with what is available in other jurisdictions. For instance, the 
Northern Ireland (Emergency Provisions) Act, 1996, permits trial of 
terrorists by a three-judge appellate tribunal, and specifies the full 
panoply of rights and procedures available. Of more immediate import 
are the procedures, including civilian appeal, available to United 
States military personnel in a court martial. See 10 U.S.C. 801 et. 
seq.
---------------------------------------------------------------------------
    7. A court martial also provides heightened protection for more 
serious charges. Section 852 of the UCMJ ensures that a defendant may 
be convicted of a crime punishable by death only where the commission's 
vote is unanimous. Any death sentence must be unanimous as well. While 
this would no doubt limit the number of death sentences that could be 
imposed--and the number of convictions that could be obtained in cases 
where that penalty was sought--if the military tribunals now being 
established were to follow the court martial model, the prosecution 
could keep the overall conviction rate from falling much by seeking a 
life sentence, and from falling at all by seeking a term of years less 
than life, which requires the same two-thirds vote that the November 13 
Order would require. See Sec. 4(c)(6).
    8. Suggestions that military tribunals must, either as a matter of 
constitutional necessity or as a matter of sound international 
diplomacy, follow evidentiary rules and burden-of-proof rules fully as 
onerous to the prosecution, and protective of the accused, as apply in 
ordinary criminal trials and in courts martial, have much to commend 
them, but Congress may properly keep in mind that at least some of 
those rules are designed mostly to protect lay jurors from being unduly 
impressed by categories of evidence whose reliability those 
inexperienced in such matters may overestimate, or unduly swayed by 
emotional appeals for vengeance, and that the need for such rules may 
be correspondingly reduced when trained professionals are the finders 
of fact and law.
    In addition, the classic requirement of proof beyond a reasonable 
doubt is chosen to reflect the old adage that it is better to free 100 
guilty men than to imprison, much less execute, one innocent--a 
calculus that neither the Constitution, nor conventional morality, 
necessarily imposes on government when the 100 guilty who are freed 
belong to terrorist cells that slaughter innocent civilians, and may 
well have access to chemical, biological, or even nuclear weapons. Due 
process has been held, for example, to permit incarceration of 
potentially indefinite duration of those found, upon proof by less than 
the ``beyond reasonable doubt'' standard, to pose a grave danger to the 
safety of others. See Addington v. Texas, 441 U.S. 418, 424-29 (1979) 
(``clear and convincing'' evidence standard held constitutional). To be 
sure, there is a very significant difference between involuntary civil 
commitment or quarantine of someone deemed dangerous to the public for 
reasons that entail no moral opprobrium and imprisonment or, most 
extreme of all, execution, of someone convicted as a war criminal. But 
in a legal universe where the option of permanent incarceration as a 
``probable once and future terrorist'' is non-existent, to put decisive 
weight on the moral valence of the ``war criminal'' label may mean 
violating the maxim that our Constitution is not a suicide pact. For 
proof beyond a reasonable doubt--using those words in their criminal 
law sense and not with a wink--may be too much ever to expect in at 
least some categories of terrorism cases where intrinsic difficulties 
of gathering and presenting the needed evidence, particularly if the 
hearsay rule and other somewhat artificial obstacles are interposed, 
would predictably lead to the release of individuals likely to cause 
the avoidable loss of far more innocent life than would result from a 
somewhat softer standard of proof.
    9. Congress should also ensure that an accuser not be given the 
final word as the court of last resort in the appeal of a conviction or 
sentence that the accuser obtained in his role as prosecutor or as the 
prosecutor's ultimate superior--a power currently granted the President 
by his Military Order. See Sec. 4(c)(8) (trial record submitted for 
President's ``review and final decision''). It has been an axiom of 
Anglo-American law for nearly four centuries that a ``person cannot be 
judge in his own cause,'' Dr. Bonham's Case, 8 Co. 114a, 118a (1610), a 
principle applicable to appellate no less than trial judges. Aetna Life 
Ins. Co. v. Lavoie, 475 U.S. 813, 821-25 (1986). The fact that no 
appeal at all is constitutionally mandated from a criminal conviction 
rendered by a civil court, McKane v. Durston, 153 U.S. 684 (1894), has 
never been taken to imply that an ``appeal'' to the chief prosecutor 
himself can satisfy due process where the judgment appealed from was 
rendered by a body ``whose personnel are in. . .the executive chain of 
command,'' Reid v. Covert, 354 U.S. 2, 36 (1957), as is true of courts 
martial, Id., and of any other military tribunal drawn exclusively from 
the President's military subordinates.
    Unless Congress opts for the novel alternative of having one or 
more members of each military tribunal drawn from the Article III 
judiciary--as Congress did in setting up the U.S. Sentencing 
Commission, see Mistretta v. United Sates, 488 U.S. 361 (1989), and in 
creating the panel charged with the task of appointing the independent 
counsels, see Morrison v. Olsen, 487 U.S. 654 (1988)--it follows that 
Congress must probably guarantee an expedited appeal to some entity 
independent of the executive branch, such as the Court of Appeals for 
the Armed Forces. Ultimate discretionary review by the Supreme Court on 
writ of certioraris would be an optional feature in such an 
arrangement. Whatever system of appeals is provided, it seems plain 
that, if considerations of national security or witness protection so 
require, Congress could provide that any appeal to a body independent 
of the President be conducted as a closed proceeding, with the record 
of the appeal to be kept confidential.
    10. Although the UCMJ provides a useful model, the power to set out 
procedures in the first instance might instead be delegated to the 
Department of Defense, provided that, within a specified time before 
such procedural regulations go into effect, they are reported to 
Congress. Such a mandatory waiting period would give Congress an 
opportunity to reject or amend the regulations by joint resolution 
(not, of course, by a mere concurrent resolution, or by a one-house 
resolution, both prohibited under INS v. Chadha, 462 U.S. 919, 952 
(1983)). Indeed, if military commissions or tribunals outside the UCMJ 
framework are to be as rare an occurrence as the administration insists 
they are meant to be, Congress might simply decide to require such 
tribunals to be individually authorized by the President after a 
statutorily mandated consultation with congressional leadership to 
explain why existing institutions, including the Article III courts, 
are inherently insufficient in the circumstances. Such congressional 
oversight of the President's conduct of this war would draw in part, of 
course, on the War Powers Resolution of 1973, Pub. L. No. 93-148, 87 
Stat. 555 (codified at 50 U.S.C. Sec. Sec. 1541-1548 (2000)), as 
precedent--something to which the Bush administration, which invoked 
the War Powers Resolution as part of the foundation for the Use of 
Force Resolution that it proposed to, and obtained from, Congress on 
September 18, 2001, should have no objection. In any event, Congress 
would presumably want to require the President or his Secretary of 
Defense to submit regular periodical reports concerning the proceedings 
of the military tribunal, and the continued need for their existence.
                               Oversight
    11. However, Congress could also ensure continued oversight of 
military tribunals in a variety of ways--for example, by controlling 
the manner in which the presiding officers are selected. It may require 
that presiding officers have certain minimum qualifications, and may 
permit civilians to serve. Alternatively, Congress may require the 
Secretary of Defense to submit a list of eligible candidates, from 
which Congress would select presiding officers to serve for a term of 
years. Congress could also establish procedures for the removal of such 
officers.
    12. In addition, Congress should certainly provide for the ``sun 
setting,'' or automatic expiration after a relatively few years (three 
or four would seem prudent), of whatever authorization it enacts for 
special military tribunals to deal with suspected terrorists, just as 
was done in the USA-PATRIOT Act, see, Sec. 224, inasmuch as the war 
being waged against international terrorism, unlike a declared war 
against a sovereign nation, could go on indefinitely, with no plausible 
way of declaring it over at any given point.
                               Conclusion
    13. Finally, it is worth noting that Congress occupies a privileged 
position not available to any court that may be asked to decide the 
constitutional issues arising from these tribunals. For Congress has 
before it questions concerning the prolonged and secret detention of 
aliens and the use of what appears to be a form of ethnic, or at least 
national-origin, profiling in the interrogation of immigrants; 
challenges to the conceded use of United States citizenship as a reward 
for providing information that might lead to the breakup of terrorist 
cells or the apprehension of terrorists; concerns going to possible 
abuses of prosecutorial discretion; issues regarding the alleged breach 
of the attorney-client privilege; worries triggered by Department of 
Justice indications that the FBI, now in a powerful new information-
sharing arrangement with foreign intelligence agencies, may be on the 
verge of resuming practices, happily abandoned decades ago, involving 
keeping close tabs on, and even planting secret government informants 
in, political, religious, and civil rights-civil liberties groups; and, 
of course, all the fears and criticisms triggered by the November 13 
Military Tribunal Order.
    I believe Congress should seize this historic opportunity to 
investigate with care but with dispatch, and then to craft an 
integrated legislative package that protects individual freedoms while 
permitting, if truly necessary, a form of secure tribunal in which to 
try suspected war criminals who pose a particularly virulent threat. 
While I believe such tribunals may well be justifiable in extremely 
limited circumstances in which, among other things, the laws of war 
have been violated, we must be clear that facile distinctions between 
terrorists who kill our people with nefarious schemes incubated in 
caves located far across the seas, and those who do so by carefully 
hatching plots in the comfort of our cities, concealing themselves as 
civilians while they plan monstrous acts of mass murder, are worth very 
little in the larger scheme of things. Bin Laden, and the leader of the 
terrorist cell of aliens living in our midst after gaining lawful entry 
to this country who proceeded to turn our world upside down on 
September 11, are cut from the same cloth.
    We must keep in mind, too, that the vast majority of individuals 
who may be subjected to scrutiny because of their previous affiliation 
with or support for terrorist organizations are guilty of at most run 
of the mill crimes, crimes properly punished in civilian court. We must 
not make martyrs out of petty criminals. Far better to show our foes 
that American justice will survive their assault than to sacrifice our 
core values through hasty overreaction.
    This, then, is our Korematsu: the choices we face now--as then--are 
difficult ones. But I believe that Congress can rise to the occasion, 
resist the undue consolidation of power within the executive branch, 
and secure our freedom and our safety alike, requiring no more 
compromise of our liberty than is genuinely essential--and then only in 
ways that respect equality. These are the better angels of our nature 
to whom I bid Congress listen today.

    Senator Schumer. Thank you, Professor Tribe, for excellent 
testimony.
    Senator Hatch has to leave and wanted to make a final 
comment, so I am going to give him the prerogative of the 
ranking member and former chairman role.
    Senator Hatch. Well, thank you, Mr. Chairman. I do have to 
leave, and I want to apologize to your other witnesses, because 
you are all important to me.
    And I want to personally congratulate you, Professor Tribe. 
We have been together on a lot of occasions, on a lot of 
issues, and we have conflicted and we have been together as 
well. Much of what you have said I think is very profound and 
worthwhile for Congress to listen to.
    Mr. Tribe. Thank you.
    Senator Hatch. And I just wanted to personally compliment 
you on your article in ``The New Republic'' as well as what you 
have said here today. I am not sure I agree with every point, 
but I--
    Mr. Tribe. I would worry if you did, Senator.
    Senator Hatch. You should never say anything like that.
    [Laughter.]
    Mr. Tribe. Well, I think we all have slightly different 
views.
    Senator Hatch. That is right. I am just kidding. But much 
of what you have said has been very informative, as has Mr. 
Terwilliger's, and I am sure the rest as well. But it has also 
been helpful to the Committee, as you always have been. So I 
just wanted to tell you that.
    And apologize to the rest of you, because I respect each 
and every one of you, and I apologize for having to leave. 
Thank you.
    Senator Schumer. Thank you, Senator Hatch.
    Our next witness is retired Major General Michael Nardotti. 
He graduated from West Point and from Fordham University School 
of Law, a native New Yorker as well. He is a decorated combat 
veteran. He served for over 28 years as a soldier and as a 
lawyer in the army. Most recently he served as the Judge 
Advocate General from 1993 to 1997, and as the Assistant Judge 
Advocate General for Civil Law and Litigation from 1991 to 
1993. Since 1997 he has been a partner with the D.C. law firm 
of Patton Boggs.
    Thank you for being here, General Nardotti. Your entire 
statement will be read in the record.

STATEMENT OF MICHAEL J. NARDOTTI, JR., MAJOR GENERAL (RETIRED), 
 FORMER ARMY JUDGE ADVOCATE GENERAL, AND PARTNER, PATTON BOGGS 
                     LLP, WASHINGTON, D.C.

    General Nardotti. Thank you very much, Mr. Chairman, 
members of the Committee. Thank you for the opportunity to 
contribute to the dialogue on this extremely important issue. I 
will be brief in my comments because it would be more useful to 
use as much time as possible to respond to the Committee's 
questions.
    I must make clear at the outset that my personal view on 
the issue of the President's authority to use military 
commissions in this instance, I side with those who support the 
President and believe that he does have the authority to so 
act. I believe the more debatable and more cautionary question 
is how he should implement any decision to go forward with 
military commissions.
    I have been asked to provide the Committee with some 
highlights of differences and similarities between the Article 
III courts and courts martial, and to the extent that they 
might apply to military commissions in an effort to enlighten 
the debate and extend the knowledge base of those who are 
participating in it with respect to the particular practices 
and procedures in each of those fora. In doing so, perhaps I 
can assist in providing a better understanding of the 
President's decision to consider this alternative and the 
possible results of the practices and procedures about which 
DOD will provide further elaboration later.
    It goes without saying, of course, as mentioned previously 
by members of the Committee, that there are differences between 
Article III courts and courts-martial. There are differences as 
well between courts-martial and military tribunals, as they 
have been and may be conducted. The fact that there are 
similarities and differences is not as critical as the reasons 
for those similarities and differences. I believe it is 
important, however, to focus on one aspect of that with respect 
to the differences between Article III courts and courts-
martial.
    When you think of the people who are subject to the 
jurisdiction of courts-martial, the men and women who are 
putting their lives on the line on a regular basis in the 
service of the nation, I do not think anybody would be able to 
state that there is a group that is more deserving of whatever 
benefits, whatever privileges, whatever protections that we can 
provide for them, particularly in the judicial process where so 
much would be at stake. Yet we do have differences, and there 
are aspects of the military justice system and the manner is 
which courts-martial operate that would appear to accord them 
lesser rights.
    Why is this so? Well, this is so because Congress 
recognized that because of the peculiar needs of the military, 
there is a threefold purpose in administering military justice. 
Not only did the system have to promote justice and be fair to 
soldiers, but it also had to do so in a way which would assist 
in maintaining good order and discipline and promote the 
efficiency and effectiveness of the armed forces. Congress 
recognized that when a military force operates throughout the 
world and in environments and challenges that have no parallel 
in the civilian environment, resort to the courts established 
under Article III is not a practical or workable option. So 
they did the next best thing in terms of developing a system in 
of law, a military justice system in which the public and 
Congress would have confidence and which would provide justice 
for members of the military.
    I do not believe that anyone would contest that justice as 
administered under the Uniform Code of Military Justice and in 
the Manual for Courts-martial meets due process standards. It 
is different, however, from the due process one would find in 
the Article III Federal Courts for important reasons. My 
statement goes into more detail about some of the important 
differences and similarities, but I would highlight just a few 
points that I believe would be of particular relevance to this 
Committee.
    I had not heard this view expressed today, but in some of 
the debate that has swirled around the issue of military 
commissions, there has been the suggestion that those who would 
be brought before the commissions for justice would in no way 
be able to receive fairness. The assumption is that the 
military officers who might take part in such an endeavor would 
be predisposed to go in a certain direction, and that 
conviction would be almost a certainty. I would suggest that 
the historical record does not support that conclusion.
    While much focus and attention has been paid to the Quirin 
case, conducted during World War II, the commissions that were 
conducted after World War II, were conducted in Germany and in 
the Pacific, demonstrate quite a different picture. 
Approximately 1,600 military commissions were conducted in 
Germany, and approximately 1,000 were conducted in Japan. The 
conviction rates of those commissions was about 85 percent. 
Now, that compares with a felony conviction rate in the Federal 
Courts of about 93 percent. Courts-martial conviction rates are 
about 93 percent. Now, in the Southern District of New York, 
Senator Schumer, the conviction rate is a little bit higher. 
There are tougher prosecutors up there. But I think that that 
statistic speaks volumes in terms of what can be done in terms 
of fairness. And certainly the commentary on those commissions 
following the war also demonstrated and supported the 
conclusion that they were conducted with fairness.
    I would suggest, as one of the members of the Committee 
asked before, I believe it was Senator Hatch, mentioned, who 
would want to sit on a jury in judgment of the perpetrators of 
the events of September 11th? Another question is: could you 
really find a jury that would not be biased in some way? Then, 
look to the military example. Look at what happened in World 
War II where you had officers, United States Army officers, 
sitting in judgment of those whom they had fought against, 
those who had killed their colleagues or were responsible for 
the deaths of their colleagues in Europe and Japan. Yet, they 
were able to administer justice in a way that, with respect to 
the conviction rates shown, certainly was very reasonable and 
fair.
    When you take that example, then, and you take the next 
step and say, ``All right, we understand why there are 
differences between courts-martial and Article III Courts. What 
about the military commissions versus courts-martial? Why 
shouldn't they be one and the same?'' It certainly is worth 
underscoring several times that courts-martial and military 
commissions are not one and the same.
    There is flexibility in the conduct of military commissions 
because they serve a different purpose. As has been 
compellingly argued and explained here previously, the basis 
for subjecting a person to the justice of a military commission 
is well-founded in international law and very specific in terms 
of the liability of someone to be placed before a commission 
because they have, by their actions, determined their status as 
unlawful combatants and made themselves subject to the 
jurisdiction of a commission that can administer justice more 
summarily than in other circumstances.
    That is certainly not to suggest that because these people 
engaged in horrendous acts they do not deserve justice. That is 
not the point. One could point to many examples of criminal 
behavior where that might be said. Yet, we certainly do not 
suggest that with someone who commits a serious criminal act, 
the decision of how to deal with them is based on what they 
deserve.
    The forum here is determined by what is authorized, 
established, and justified under international law. 
International law allows the President to make the decision to 
use this forum, a military commission, in this particular 
instance. And when you examine--I realize my time is up, but 
just to make this point further and I will certainly amplify on 
this in the opportunity for questions and answers--when you 
examine the reasons for differences with respect to the public 
safety, the very legitimate and sound public safety concerns, 
the intelligent compromise concerns, and the issues that, the 
problems that are inherent in gathering evidence, there 
certainly is a reasonable factual basis to administer justice 
in military commissions in a different way than other fora.
    Thank you.
    [The prepared statement of General Nardotti follows:]

Statement of Michael J. Nardotti, Jr., Major General (retired), United 
                              States Army

                              Introduction
    Mr. Chairman and Members of the Committee, thank you for the 
opportunity to contribute to this important dialogue. The possible use 
of military commissions, as ordered by the President in his role as 
Commander-in-Chief of our Armed Forces, to conduct trials of non-United 
States citizens for violations of the law of war as described in the 
Military Order of November 13, 2001, concerning the ``Detention, 
Treatment, and Trial of Certain Non-Citizens in the War Against 
Terrorism,'' is a extraordinary measure in response to extraordinary 
events. Careful explanation of the justification and basis for this 
proposed action and related actions which will follow, certainly will 
inform the vigorous public debate. To assist in this effort, I have 
been asked to highlight and discuss some of similarities and 
differences between the prosecution of criminal matters in our Armed 
Forces in courts-martial under the Uniform Code of Military Justice and 
those matters prosecuted in Article III Federal courts. Further, I have 
been asked to relate these similarities and differences to military 
commissions as some of those tribunals have been conducted in the past 
and may be conducted in the future under the President's Order.
                               Background
    As a matter of background, I am a veteran of over twenty-eight 
active duty in the United States Army. Early in my career, I served as 
an infantry platoon leader in combat in Vietnam, and, later, in a 
variety of positions in the United States and overseas as a soldier and 
lawyer. I served as The Judge Advocate General of the Army from 1993 
until my retirement in 1997. Since that time, I have been in the 
private practice of law in Washington, DC.
          The President's Proposed Use of Military Commissions
    Before describing the issues which will be the primary focus of my 
statement, I should make clear my view of the President's proposed use 
of military commissions to non-citizens who planned, perpetrated, or 
aided and abetted the attacks of September 11. Without restating the 
arguments previously made to this Committee in support of the 
President. I agree with those who believe the President, as Commander-
in-Chief, has the authority under the Constitution to take these 
actions. The terrorist acts of the organization known as al Qaida, up 
to and including the horrendous attacks of September 11, 2001, leave no 
doubt that the United States is in a state of armed conflict with an 
outside enemy and that the President is most certainly correct in his 
conclusion that ``an extraordinary emergency exists for national 
defense purposes.'' The Joint Resolution of the Senate and House of 
Representatives underscores this conclusion and supports the need for 
extraordinary action in authorizing the President, ``to use all 
necessary means and appropriate force'' against those who planned and 
perpetrated these acts to prevent them from committing future terrorist 
acts.
    The use of military commissions under these circumstances is a 
lawful means available to the President, as Commander-in-Chief, to 
achieve this end. The justification for the use of military commissions 
is well-established in international law and the use of tribunals of 
this type has a lengthy history in times of extraordinary emergency in 
our country. Congress has recognized and affirmed their use, previously 
in the Articles of War, and currently in Articles 21 and 36 of the 
Uniform Code of Military Justice. The United States Supreme Court 
upheld the constitutionality of trial by military commissions of enemy 
saboteurs caught within the United States during World War II in Ex 
Parte Quirin, 317 U.S. 1 (1942). The Court's reasoning in that case 
with respect to the lawfulness of trying unlawful combatants--those who 
do not wear uniforms or distinctive insignia, who do not carry arms 
openly, and who do not conduct operations in accordance with the law of 
war--would appear to be particularly applicable to those who planned, 
perpetrated, or aided and abetted the attacks of September 11--acts of 
monumental and extreme violence against thousands of our civilian 
citizens.
    The more debatable and critical issue may well be how the President 
chooses to exercise this option. The Quirin model is relevant to an 
extent, but it does not necessarily provide all the answers for a 
similar undertaking today. The Military Order of November 13, 2001, 
raises important issues which will need further clarification, and 
Administration officials have already begun to clarify some of those 
points. They have stressed repeatedly that the specifics of the rules 
to be applicable to military commissions in this instance are still 
under development and review by the Department of Defense. The 
President, nevertheless, has made certain basic requirements clear, 
including that there be a full and fair trial. The determination of 
what constitutes a full and fair trial under these circumstances should 
include particularly careful consideration to the extraordinary 
circumstances which justify the use of and compel the need for military 
commissions in this instance. Further, the significant evolution in the 
administration military justice since the Quirin decision and the 
extent to which that evolution should impact on the conduct of military 
commissions today also should be carefully considered.
    The Unique Need for the Military Justice System
    Before focusing on military commissions, I will explain, as a 
starting point, why there are differences between criminal prosecutions 
in Article III Federal courts and criminal prosecutions in the Armed 
Forces. Congress and the courts have long-recognized that the need for 
a disciplined and combat ready armed force mandates a separate system 
of justice for the military. Our Armed Forces operate world-wide in a 
variety of difficult and demanding circumstances which have no parallel 
in the civilian community. Military commanders of all services are 
responsible for mission accomplishment and the welfare of their troops. 
In the most difficult operational and training situations, they make 
decisions that can and do put the lives of their troops at risk. These 
commanders also are responsible for administering a full range of 
discipline to ensure a safe and efficient environment in which their 
troops must serve. They are able to accomplish this goal through the 
use of military law, the purpose of which, as stated in the Preamble to 
the Manual for Courts-Martial United States (2000 Edition), is ``to 
promote justice, to assist in maintaining good order and discipline in 
the armed forces, to promote efficiency and effectiveness in the 
military establishment, and thereby to strengthen the national security 
of the United States.'' The range of disciplinary options and 
circumstances under which commanders be able to employ them simply make 
resort to alternatives in the civilian community, whether through the 
Federal courts or other means, an unworkable and unrealistic option.
    In recognition of this fact, Congress, acting under its 
Constitutional authority ``To make Rules for the Government and 
regulation of the land and naval Forces,'' enacted the Uniform Code of 
Military Justice (UCMJ) in 1950 to set forth the substantive and 
procedural laws governing the Military Justice System. Congress enacted 
the UCMJ to make ``uniform'' what previously was not--the criminal law 
applicable to all the Military Services. Substantive law is contained 
in the various punitive articles which define crimes under the UCMJ. 
While Congress defines crimes, the President establishes the procedural 
rules and punishment for violation of crimes. The President's rules are 
set forth in the Manual for Courts-Martial. The Manual is reviewed 
annually to ensure it fulfills its fundamental purpose as a 
comprehensive body of law.\1\
---------------------------------------------------------------------------
    \1\ The UCMJ establishes three levels of military courts: (1) 
Courts-martial are the trial level courts. General courts-martial are 
the forums in which felony offenses are prosecuted. Lower level special 
and summary courts-martial have jurisdiction to try most offenses but 
are limited in the punishments which they may impose; (2) Four Courts 
of Criminal Appeals (Army, Navy/Marine Corp, Air Force, and Coast 
Guard) provide the first appellate review which is automatice in cases 
in which the sentence adjudged includes confinement of one-year or more 
or a punitive (Bad Conduct or Dishonorable) discharge; and (3) The 
United States Court of Appeals for the Armed Forces is the highest 
military appellate court. The five judges of this court are appointed 
by the President, with the advice and consent of the Senate, and serve 
for a term of 15 years. Decisions by this court are subject to review 
by the Supreme Court by a writ of certioraris.
---------------------------------------------------------------------------
       Article III Federal Courts Prosecutions and Courts-Martial
       a comparison of certain rights, practices, and procedures
    The administration of military justice under these authorities, by 
Congressional and Presidential design, is, by necessity, different in 
some respects from the civilian counterpart, but in other respects is 
similar. Several examples of differences and similarities in the 
pretrial, trial, and post-trial phases are the following: (1) Rights 
warnings against self-incrimination in the military are broader than 
those required in the civilian community and actually predated the 
requirement of the Miranda decision by many years. Rights advisement in 
the military is and has been mandated whether or not the interrogation 
occurs in a custodial session; (2) Right to counsel in the pretrial and 
trial phases in the military is broader than in the civilian community 
where counsel is appointed if the accused is indigent. Military counsel 
is provided regardless of ability to pay. Individually requested 
military counsel also may be provided if available. Civilian counsel 
may be appointed as well at the service members own expense; (3) In the 
pretrial investigation phase for felony prosecutions in the military, 
there is not the equivalent of a secret grand jury in which the 
defendant has no right to be present. An investigative hearing, which 
is routinely open, is conducted under Article 32 of the UCMJ to 
determine whether there are reasonable grounds to believe the accused 
servicemember committed the offense alleged. The accused servicemember 
has the right to be advised in writing of the charges, to attend the 
hearing with counsel, to examine the government's evidence, to cross 
examine witnesses, to produce witnesses, and to present evidence; (4) 
Pretrial discovery in the military is similar to that followed in 
federal criminal proceedings, but more broad. The government is 
required to disclose any evidence it will use in the sentencing phase 
of the proceeding if there is a conviction., or evidence that tends to 
negate the degree of guilt or reduce the punishment; (5) Unlawful 
command influence--an attempt by superior military authority to 
influence the outcome of a proceeding--is prohibited and is subject to 
criminal sanctions. There is no equivalent issue in federal 
proceedings; (6) In federal prosecutions a jury of peers is selected at 
random. General courts-martial must have at least five members 
selected, as required by Article 25 of the UCMJ, based on ``age, 
education, training, experience, length of service, and judicial 
temperament.'' Civilian jury and military court-martial panel members 
may be challenged for cause or peremptorily; (7) With respect to trial 
evidence, the rules in both forums--the Federal Rules of Evidence in 
federal courts and the Military Rules of Evidence in courts-martial are 
almost identical. New Federal Rules of Evidence automatically become 
new Military Rules of evidence unless the President takes contrary 
action within 18 months; (8) The burden of proof for conviction in both 
forums is beyond a reasonable doubt; (9) For conviction or acquittal in 
federal prosecutions jurors must be unanimous. Otherwise, a hung jury 
results and the defendant may be retried. In courts-martial, except in 
capital cases, two-thirds of the panel must agree to convict. The first 
vote is binding. If more than one-third of the panel vote to acquit, 
then there is an acquittal. A hung jury and retrial on that basis is 
not possible in the military. In capital cases in courts-martial, a 
unanimous verdict is required for conviction; (10) Sentencing in 
federal courts is done by the judge alone, and sentencing guidelines 
for minimum and maximum sentences apply. In courts-martial, sentencing 
is decided by the court-martial panel members or by the military judge 
(if the accused servicemember chose to be tried by a military judge 
alone). There are maximum sentence limitations but no minimums. The 
accused servicemember is entitled to present evidence in extenuation 
and mitigation, including the testimony of witnesses on his or her 
behalf, and may make a sworn or unsworn statement for the court-
martial's consideration. Two-thirds of the panel must agree for 
sentences of less than 10 years. Three-quarters of the panel must agree 
for sentences of 10 years or more. To impose capital punishment, the 
panel must unanimously agree to the findings of guilt, must unanimously 
agree to the existence of an ``aggravating factor'' required for a 
capital sentence, and must unanimously agree on the sentence of death. 
Capital punishment may not be imposed by a military judge alone; (11) 
In federal prosecutions, appeal is permissible, but mandatory in cases 
of capital punishment. There are two levels of appeal--the Circuit 
Courts of Appeal and the United States Supreme Court. In the military, 
appeal is automatic for sentences which include confinement of one year 
or more or a punitive (Bad Conduct or Dishonorable) discharge. There 
are three levels of appeal--the Courts of Criminal Appeals of the 
military services, the Court of Appeals of the Armed Forces, and the 
United States Supreme Court. Sentences which do not require automatic 
appeal may be appealed to the Judge Advocate General of the convicted 
member's service; (12) Appellate representation in federal prosecutions 
is provided if the convicted person is indigent. In the military, 
appellate representation is provided in all cases regardless of 
financial status.
    This comparison of the relative handling of pretrial, trial, and 
post-trial matters, respectively, in Article III Federal courts and 
courts-martial is not exhaustive. It demonstrates, however, that even 
in accommodating the needs unique to the administration of military 
justice, courts-martial, in many important respects, compare very 
favorably, even though not identically, to process and procedures 
accorded in the Article III federal courts.
                Courts-Marital and Military Commissions
    Just as there are sound reasons for differences in rights, 
practices, and procedures between Article III Federal courts and 
courts-martial, there also are sound reasons for differences between 
courts-martial and military commissions. Courts-martial and military 
commissions, of course, are not one in the same. Courts-martial are the 
criminal judicial forums in which members of our Armed Forces are 
prosecuted for criminal offenses, the vast majority of which are 
defined in the Uniform Code of Military Justice. Congress and the 
President have given continuing attention to the development and growth 
of the Military Justice System to ensure that in seeking to achieve 
``good order and discipline in the armed forces [and] to promote 
efficiency and effectiveness in the military establishment,'' justice 
is also served in the fair treatment of soldiers, sailors, airmen, and 
marines.
    Military Commissions serve a distinctly different purpose and have 
been used selectively in extraordinary circumstances to try enemy 
soldiers and unlawful combatants, among others, for violations of the 
laws of war. In the case of unlawful combatants --those who do not wear 
uniforms or distinctive insignia, who do not carry arms openly, and who 
do not conduct operations in accordance with the law of war--their 
actions and conduct determine their status and the type of action which 
may be taken against them as a result. Those who entered our country 
surreptitiously and who planned, perpetrated, or aided and abetted the 
attacks of September 11, causing death and destruction on an 
unprecedented scale, engaged in an armed attack on the United States in 
violation of customary international law. Their actions and offenses 
under the law of war allow them to be treated differently from lawful 
combatants and others who violate the criminal law.
    Military commissions are the appropriate forum for dealing with 
these unlawful combatants. To reiterate the earlier-stated 
justifications, the use of military commissions is supported by 
international law, there is lengthy historical precedent for their use, 
the United States Supreme Court has upheld their use in similar 
circumstances, Congress has recognized and affirmed their use in the 
Uniform Code of Military Justice and in the predecessor Articles of 
War, and the extraordinary emergency which the President has declared 
and Congress' support to the President in its Joint Resolution 
authorizing him ``to use all necessary means and appropriate force'' 
where there have been egregious violations of the law of war all 
compellingly support this conclusion.
    The question of the rules and procedures to apply remains, 
nevertheless. While the President has determined that, ``it is not 
practicable to apply in military commissions under this order the 
principles of law and the rules of evidence generally recognized in the 
trial of criminal cases in the United States district courts,'' the 
appropriate principles and rules of procedures prescribed for courts-
martial may still serve as a useful guide. The propriety of these 
principles and rules should be measured against the legitimate concerns 
for public and individual safety, the compromise of sensitive 
intelligence, and due regard for the practical necessity to use as 
evidence information obtained in the course of a military operation 
rather than through traditional law enforcement means. Further, the 
principles and rules adopted also should take into account the 
evolution, growth, and improvement in the administration of criminal 
justice, in general, and of military justice, in particular, in 
determining the standards to apply with respect to the most compelling 
issues, such as those relating to the imposition of capital punishment.
    I am confident that the President and the Department of Defense are 
mindful of the exceptional significance of these issues, and that they 
will take them into careful account as further decisions are made.
    Mr. Chairman and Members of the Subcommittee, I am prepared to 
answer your questions.

    Senator Schumer. Thank you very much, General Nardotti. 
Again, the testimony has just been excellent here.
    And now let me move to our fourth witness. It is Professor 
Cass Sunstein. He is the Karl Llewellyn Professor of 
Jurisprudence at the University of Chicago Law School. He is a 
member of the University Political Science Department as well. 
Graduated from Harvard College, Harvard Law School, clerked 
first for Justice Benjamin Kaplan of the Massachusetts Supreme 
Judicial Court and then Justice Thurgood Marshal of the U.S. 
Supreme Court.
    Before joining the University of Chicago Law faculty, he 
worked as an attorney adviser in the Office of Legal Counsel at 
the U.S. Department of Justice. He too is the author or 
numerous books and articles on topics such as constitutional 
law and democracy.
    Professor Sunstein, welcome once again before this panel, 
and your entire statement will be read into the record.

STATEMENT OF CASS R. SUNSTEIN, KARL N. LLEWELLYN DISTINGUISHED 
 SERVICE PROFESSOR OF JURISPRUDENCE, LAW SCHOOL AND DEPARTMENT 
 OF POLITICAL SCIENCE, UNIVERSITY OF CHICAGO, CHICAGO, ILLINOIS

    Mr. Sunstein. Thank you, Mr. Chairman. It is a pleasure to 
be here.
    These comments will be really a response to Senator 
Sessions' invitation, which is to try to give some details 
about how to make the process work better. The starting point 
for these remarks is that many of the abstract debates within 
the nation over the last weeks can be reduced and possibly even 
dissolved I think if we proceed to the level of detail. The 
suggestion is that the legitimate interest behind the 
President's Military Order can be accommodated, while also 
producing what the President wants, which is full and fair 
trials.
    I am going to make three very simple suggestions. The first 
is that the scope of the Military Order is intended to be 
narrow, notwithstanding some of its loose language and steps 
should be taken to narrow the scope to respond to some worries 
that American citizens have.
    The second suggestion, beyond the issue of scope, is that 
the Order ought to be implemented with attention to the 
essentials of procedural justice, essentials that can be 
obtained by looking carefully at the best of our practice after 
World War II. The third suggestion is that steps ought to be 
taken to ensure neutrality with respect to the adjudication by 
attending closely to the composition of the adjudicators on the 
military commissions and perhaps by building in mechanisms for 
appeal.
    Now to these three issues of scope, essentials of 
procedural justice and neutrality. The Military Order was 
obviously written under tremendous time pressure, and it is 
clear that the Executive Branch and the President do not intend 
to apply its terms to all those to whom it could be applied by 
its terms. The President has clarified, through his agents, 
that the laws of war are what concerns him, and the President 
indeed suggests that the constitutional authority that the 
President has under this Order applies to the use of military 
commissions when the laws of war have been violated. The laws 
of war are not violated by lawful combatants such as by the 
Taliban soldiers who were not involved in terrorist activities. 
The laws of war are violated when someone is engaged in attacks 
on civilian populations or in secret infiltration within the 
boundaries of the United States. If it is clarified that we are 
talking only about the laws of war, then in one bold stroke, 
the scope of the Order will be significantly narrowed.
    The second suggestion I have with respect to scope is it is 
clear that the President intends to apply this Order, rarely if 
at all, to people who are arrested or charged inside the 
territorial boundaries of the United States. Even with respect 
to noncitizens, it is not the President's general intention to 
apply military commissions to people who have done evil deeds 
here. There is a narrow exception, which is if people have 
infiltrated the United States in order to foment or assist 
terrorist activities within the United States, if they are 
effectively spies, then the Military Order might apply to them. 
But at least as a strong presumption, this Military Order is 
not intended to cover people arrested within our boundaries.
    A simple suggestion, that is, that the scope of the Order 
would be narrowed greatly if we understand that the laws of war 
are what are at stake and if foreign combatants outside our 
territorial boundaries are the people for whom we are mostly 
interested in using military commissions. This sort of 
clarification, now beginning informally, should be made 
formally, either by the Executive or by the Congress. If that 
is the case, then we will be going very close to the sort of 
action that President Roosevelt authorized after World War II.
    The second suggestion is that the essentials of procedural 
justice should be specified, preferably by the Executive Branch 
quickly, even better by Congress acting with the Executive 
Branch. We could clarify the essentials of procedural justice 
by building on the best of our practices after World War II. 
This catalog has not been given in any document of which I am 
aware, but if we look through what we actually did, we can get 
some pretty good and specific guidelines. As a bare minima, the 
ideas are, first, a defendant should know the nature of the 
charge against them. They should know as well the basis of the 
charge against them, and they should have a right to reasonable 
rules of evidence. Now, there might be some restriction on 
their knowledge of the basis of the charge against them in 
those narrow circumstances in which providing it would 
compromise legitimate security interests, but for the most 
part, just providing the nature and basis of the charge would 
give defendants in these tribunals, as in Federal Courts, a 
significant amount of what due process requires.
    The second essential procedural fairness is a right to be 
defended by counsel and a chance to defend and respond to the 
evidence made, invoked against the defendant. So long as there 
is a right to be defended by a vigorous advocate and a chance 
to defend one's self by responding to charges, there will be a 
significant safeguard against what everyone wants to avoid, 
that is, false convictions, a very specific and narrow idea.
    The third idea is a strong presumption in favor of public 
trials, at least public trials in the form of publicly-
available transcripts, made available, perhaps, on the day that 
the trial occurred. Something of this general sort occurred 
after World War II, where the trials were compiled by 
transcript and are available right now. You can get them 
tomorrow if you like to see exactly what happened. Of course, 
when security interests are at stake, some parts of the trials 
might not be made public, but the vast majority of it has been 
in the past and should be in the future, as the White House 
Counsel has indicated.
    The fourth simple suggestion is that there should be here, 
as everywhere else, a presumption of innocence, a particular 
part of the written and unwritten law of all civilized 
societies, and a standard of conviction beyond the 
preponderance of the evidence standard. All this means is that 
in civil trials, preponderance of the evidence is the 
appropriate standard; in criminal trials you need something a 
little tougher.
    With respect to the neutrality of judges, we need not rely 
only on military judges, though no one should accuse them of 
bias or partiality. We might use state or Federal judges, as 
indeed were used in the aftermath of World War II. There is no 
reason to restrict the President's pool to military personnel 
if he wants to have a diversity of judges. We could also build 
in mechanisms of appeal. In fact, by using state and Federal 
personnel, either in an informal or a formal capacity to ensure 
that the rudiments of procedural fairness have been met.
    By way of conclusion, when terrorism threatens national 
security, the nation's priority is to eliminate the threat, not 
to grant the most ample procedural safeguards to those who have 
created it. But it should be possible to respond to the 
President's legitimate concerns, while also complying with the 
basic requirements of procedural justice. There is no conflict 
between the war against terrorism and ensuring fair trials.
    [The prepared statement of Mr. Sunstein follows:]

Statement of Cass R. Sunstein, Karl N. Llewellyn Distinguished Service 
  Professor of Jurisprudence, Law School and Department of Political 
                     Science, University of Chicago

    Mr. Chairman and Members of the Committee:
    I am grateful to have the opportunity to appear before you today to 
discuss some of the issues arising from President Bush's decision to 
provide for military commissions as one option for trying suspected 
terrorists. President Bush has strongly emphasized the need to ensure 
that defendants receive ``full and fair trials.'' Military Order of 
November 13, 2001, section 5(c)2. In these remarks, I explore ways to 
do what everyone agrees is most essential--to protect national security 
and to defeat terrorism--while also ensuring basic fairness in the 
relevant trials. There is no reason to doubt that sensibly designed 
procedures can be fair and at the same time promote the President's 
basic goals: to ensure expeditious trials, to avoid a ``circus'' 
atmosphere, and to keep sensitive information confidential.
    I offer three basic suggestions, designed not as definitive 
solutions but as potential steps in the right directions. First, the 
President's order is intended to have a narrow scope, and steps should 
be taken to clarify and specify its anticipated range. Second, 
principles of procedural justice, adapted for the specific occasion, 
should be established for military commissions, so as to ensure against 
inequity and false convictions. Third, measures should be taken to 
ensure against the reality or appearance of unfairness in the relevant 
trials, perhaps through use of federal or state judges on military 
commissions, and perhaps through the creation of certain mechanisms for 
appellate review, either formal or advisory, by relatively independent 
officials.
                       Shared Goals and Concerns
    There has been detailed discussion of the constitutionality of 
President Bush's military order of November 13, 2001. For present 
purposes I will assume, without discussing the point, that the order 
does not violate the Constitution. See Ex Parte Quirin, 317 U.S. 1 
(1942). I will not engage the policy questions raised by the 
President's decision. I will also assume what is generally agreed: From 
the standpoint of both constitutional law and democratic legitimacy, it 
is far better if the President and Congress act in concert.\1\ As a 
general rule, the executive branch stands on the firmest ground if it 
acts pursuant to clear congressional authorization. With this point in 
mind, my major topic is how best to respond to a question raised both 
here and abroad: how to ensure (a) that people will be convicted in 
military tribunals only if they are guilty, and (b) that everyone will 
receive the basic justice to which the President, the Attorney General, 
and their various critics are simultaneously committed.
---------------------------------------------------------------------------
    \1\ To be sure, the President has a range of powers under the 
Commander-in-Chief clause, and these powers enable him to do a great 
deal on his own. But the boundaries of that authority remain untested. 
See, e.g., Ex Parte Quirin, 317 U.S. 1, 29 (``It is unnecessary for 
present purposes to determine to what extent the President as Commander 
in Chief has constitutional power to create military commissions 
without the support of Congressional legislation.'').
---------------------------------------------------------------------------
    Some people appear to fear that military commissions, simply by 
virtue of their status as such, will not be capable of providing fair 
trials. But this fear, and the contrast between civil and military 
tribunals, should not be overstated in this setting. In the past, there 
have been numerous acquittals in military tribunals. Perhaps 
remarkably, both German and Japanese defendants were acquitted in the 
aftermath of World War II. In any case civil courts would pose risks of 
their own: entirely neutral justice would not be altogether easy to 
assure for suspected terrorists, tried before an American jury.\2\ On 
the other hand, it would be wrong to dismiss the concern of those who 
are troubled by the idea of military trials in this context. History 
suggests that war crimes tribunals do not always provide fair 
procedures and indeed that there is inevitably some danger of a 
miscarriage of justice. See Evan Wallach, The Procedural and 
Evidentiary Rules of the Post-World War II War Crimes Trials, 37 Colum. 
J. Transnat'l L. 851 (1999); In Re Yamashita, 327 U.S. 1 (1946). We do 
not have to say, in advance, that this is a serious risk in order to 
conclude that measures should be taken to reduce it. The key question, 
then, is how to design a system that will not compromise American 
security interests, but that will nonetheless ensure basic fairness. I 
outline several possibilities here.
---------------------------------------------------------------------------
    \2\ Imagine, for example, a trial before a jury in New York, or 
Chicago, or Washington, D.C., or Los Angeles. Of course the defendant 
could waive the right to a jury trial.
---------------------------------------------------------------------------
   Limiting the Scope of Military Commissions, Formally or Informally
    An obvious possibility would be to limit the scope of military 
tribunals, either formally or informally, by making it clear that the 
discretion arguably authorized by the President's order will allow the 
use of military tribunals only on certain essential occasions, and not 
in every case in which the order's requirements might be met as a 
technical matter.
    This idea appears to be fully consistent with the President's basic 
goals (as indeed recent informal statements suggest). The fundamental 
purpose of military commissions is to ensure an expeditious trial, one 
that does not compromise national security interests, for terrorists 
(a) captured abroad or (b) intimately involved with the planning and 
execution of attacks on the United States. It is not likely that the 
executive branch would seek many military trials of people lawfully 
within the United States, even if there is some reason for suspicion 
about their conduct. In short, the terms of the Military Order might be 
taken to apply in many cases in which the executive will not, in all 
probability, seek to use military tribunals. It would be useful to 
obtain clarification on this point--certainly through continued 
informal assurances, and perhaps through Defense Department guidelines, 
narrowing the scope of the order as, for example, through guidelines 
embodying presumptions \3\ against military trials for people arrested 
within the territorial boundaries of the United States.
---------------------------------------------------------------------------
    \3\ These presumptions could be rebutted under extraordinary 
circumstances, as, for example, if evidence suggests that those 
captured here were involved in the planning and execution of terrorist 
attacks.
---------------------------------------------------------------------------
     Rules of Evidence, Fair Procedure, and (Appropriate) Openness
    An additional possibility is to design rules of evidence and 
procedure that will ensure basic fairness. Of course the Department of 
Defense is actively investigating these issues, and it would not be 
sensible to attempt to provide a full catalogue here. The central goal 
should be to ensure compliance with minimal standards of procedural 
justice, adapted for the occasion. (I emphasize the need for 
adaptation: The ordinary principles of procedural justice, used in 
civilian proceedings, need not be carried over to this context, which 
obviously raises special considerations.) To achieve this goal, it 
would be desirable to build on the best of past practices by 
commissions of the kind proposed--and to ensure safeguards against the 
worst of those practices.
    Drawing on the past, I suggest the possible candidates for 
inclusion. See United Nations War Crimes Commission, Law Reports of 
Trials of War Criminals 190-200 (1949), for a detailed account, on 
which I build here. These possibilities include:

        the presumption of innocence (emphasized, for example, by 
        British law in the context of war crimes, see British Law 
        Concerning Trials of War Criminals by Military Courts, Annex 1, 
        United Nations War Crimes Commission, Law Reports of Trials of 
        War Criminals (1997));
        a standard of proof beyond the ``preponderance of the 
        evidence'' standard, ranging from ``clear and convincing 
        evidence'' to the conventional ``beyond a reasonable doubt'' 
        standard;
        assurance of a neutral tribunal;
        an opportunity to know the substance of the charge;
        an opportunity to have the proceedings made intelligible by 
        translation or interpretation;
        an opportunity to know the evidence supporting conviction;
        an opportunity to be represented by counsel;
        the right to respond to the evidence supporting conviction, 
        with the narrowest possible exceptions for reasons of national 
        security (a relevant model here is the Classified Information 
        Procedures Act);
        the right to cross-examination of adverse witnesses;
        the right to an expeditious proceeding and disposition;
        the right to present exculpatory evidence;
        specification of reasonable rules of evidence, designed to 
        ensure admission only of material with probative value (see 
        President Bush's Military Order, section 4(c)(3));
        as much openness and as little secrecy as possible, including 
        public availability of the transcripts of the trial, with the 
        narrowest possible exceptions for reasons of national security.

    Some of the most difficult issues here involve the conflict between 
the national security interest in maintaining secrecy and the 
traditional American antagonism to ``secret trials.'' President Bush's 
Military Order has been criticized for requiring secrecy, but it does 
nothing of the kind. It remains to be decided how to handle the 
conflict between the relevant interests. Everyone agrees that as a 
strong presumption, trials should be kept public, to prevent injustice, 
to inform the public, and to provide some assurance that justice was in 
fact done. But in some cases, evidence that supports conviction is 
properly kept secret, certainly from the public and in truly 
exceptional cases from the defendant and defense counsel as well. It 
would be a terrible mistake, in this context, to force the executive 
branch to choose between (a) letting a terrorist go free and (b) 
disclosing material that is likely to threaten the safety of the 
nation's people. The Classified Information Procedures Act attempts to 
deal with this problem, but in a way that is perhaps inadequate for 
this domain. Perhaps it would be possible to redesign the Act in a way 
that would respond to the government's legitimate concerns.
           Ensuring a Mix of Military and Nonmilitary Judges
    There is no requirement that the judges on military commissions 
must be military personnel. In fact there is precedent, in the 
aftermath of World War II, for including ordinary state and federal 
judges on the relevant tribunals. Of course we have no reason to 
question, in advance, the independence and neutrality of military 
personnel; recall that military judges produced acquittals of both 
Japanese and German defendants. But there is reason to say that a 
mixture of judges, from diverse backgrounds, is likely to increase the 
reality and appearance of fairness. Nor would such a mix intrude on the 
executive's prerogatives or on the President's legitimate goals: 
preventing a ``circus'' atmosphere, ensuring expedition, and ensuring 
against disclosure of classified information.
    I do not discuss here the extent to which Congress should take an 
active role on this issue. My only suggestion is that to the extent 
that civilian judges are thought to offer certain safeguards, nothing 
in the President's order, or in past practice, is inconsistent with 
appointing civilian judges to serve on military commissions. Such 
appointments should be seriously considered as a way of counteracting 
the perceived risk of unfairness. Perhaps the civilian judges might be 
required to have had military experience, or experience in the military 
justice system, as in fact many have done.
                          Strengthening Review
    Under American law, appellate review of criminal convictions is the 
rule, and exceptions are exceedingly rare. Of course the present 
context is one in which an exception, of one or another sort, might be 
well-justified. But it is also possible to imagine measures that would 
create at least some check on gross unfairness. I discuss two 
alternatives here.
    Article III review. The first and perhaps most natural possibility 
would be to provide for some form of prompt appellate review from a 
specially designated panel of Article III judges. The purpose of such 
review would not be to retry the facts, but to ensure compliance with 
the minimal principles of procedural justice, as adapted for this 
occasion. There are many models for a procedure of this kind. This is 
the standard approach to Article III review of administrative action, 
with federal court review to ensure against arbitrariness and 
illegality. See Crowell v. Benson, 285 U.S. 22 (1932). It is also the 
standard approach to Article III review of the decisions of Article I 
courts, created by Congress for specialized purposes. See Northern 
Pipeline Construction Co. v. Marathon, 485 U.S. 50 (1982).
    These precedents could be adapted to the context of an Article II 
tribunal of the sort contemplated here. Note that Article III review 
could be adapted to take account of the most serious concerns of the 
executive branch. A court could be asked to rule on any appeal within a 
specified time, thus ensuring expedition. Appellate review, unlike an 
ordinary trial, could reduce the risk of a ``circus'' atmosphere. If 
necessary, such review could be conducted solely in writing, without 
oral argument. Most important, judicial review could be limited so as 
to ensure compliance with the minimum requirements of fairness: a 
chance to know the basis for the action, a chance to contest the 
evidence, an evidentiary standard sufficient to ensure against error. 
See Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975). To 
be sure, an issue might be raised, under the Commander-in-Chief Clause, 
of the power of Article III courts to review Article II courts without 
presidential authorization; but so long as the President accepted such 
limited review, I do not believe that this arrangement would be 
unconstitutional.
    2. Informal advisory review. Appellate review by an Article III 
tribunal appears not to be contemplated by the President's Military 
Order.\4\ A more modest possibility would be to create a less formal 
system of review, not from an Article III Court, but from Article III 
judges specially constituted as a panel of advisers to the President. 
On this approach, the system of review contemplated by the existing 
order would be given an additional layer, consisting of people with a 
degree of independence and charged with exercising the reviewing 
functions I have just described. An approach of this kind would 
maintain greater continuity with the process that the President has 
outlined, because it would not take the adjudicative process outside of 
the executive branch. But it would create an additional safeguard 
against the risk of arbitrary or unjustified action.
---------------------------------------------------------------------------
    \4\ Ex Parte Quirin, supra, allowed review of a broadly similar 
order, at least to test the question whether the relevant tribunal had 
the constitutional authority to conduct the trial. The President's 
Order does not purpost, in unambiguous terms, to extinguish the writ of 
habeas corpus, though it does restrict the remedies that defendants may 
have. Under section 7(b)(2), ``the individual shall not be privileged 
to seek any remedy or maintain any proceeding, directly or indirectly, 
or to have any such remedy or proceeding sought on the individual's 
behalf, in (i) any court of the United States, or any State thereof, 
(ii) any court of any foreign nation, or (iii) any international 
tribunal.'' The ambiguity lies in the precise meaning of ``any remedy 
or maintain any proceeding,'' though admittedly these terms seem broad. 
Cf Johnson v. Robison, 415 U.S. 361 (1976), narrowly construning terms 
that seem broadly to foreclose judicial review. I cannot discuss these 
complexities here, but it would be easy to imagine a judicial decision 
not to assume habeas corpus to have been suspended without express 
words to that effect, especially in light of continuing debates over 
the President's authority to suspend the writ without express words to 
that effect, especially in light of continuing debates over the 
President's authority to suspend the writ without specific 
congressional authorization.
---------------------------------------------------------------------------
    This approach might be thought to raise a constitutional question 
under Hayburn's Case, 2 Dall. 409, 1 L. Ed. 436 (1792), a case that 
forbids Article III judges from serving in an official capacity as 
executive branch officials, subject to review within the executive 
branch. But under Hayburn's Case, it appears to be acceptable to 
appoint judges in their personal rather than official capacity, and 
that is the arrangement I am describing here. The basic goal is to 
create a layer of review that would provide an expeditious but 
additional safeguard. If Article III judges are not to be used, for 
reasons of principle or policy, perhaps a panel of distinguished state 
court judges, enlisted for the purpose, could be used instead.
                               Conclusion
    When national security is threatened, the nation's highest priority 
is to eliminate the threat, not to grant the most ample procedural 
safeguards to those who have created the threat. But whenever the 
United States is conducting a criminal proceeding, its highest 
traditions call for a full and fair trial, as President Bush has 
explicitly required. Those same traditions do not bar the use of 
military commissions under extraordinary circumstances; but they do 
require that steps be taken to ensure against gross unfairness and 
conviction of innocent people. I have attempted to outline several 
imaginable steps here. My basic suggestion is that it should ultimately 
be possible to design a system that responds to the legitimate concerns 
of the President and the nation, and protects the country's security, 
while also complying with the basic requirements of procedural justice.

    Senator Schumer. Thank you, Professor Sunstein, again, for 
really excellent testimony.
    Our final witness, and we appreciate your patience, is 
Timothy Lynch. He is the Director of the Cato Institute's 
Project on Criminal Justice, where he examines governmental 
policy for their constitutionality and efficacy. Mr. Lynch 
graduated from Marquette University School of Law, and since 
joining Cato in 1991, he has published and spoken widely on a 
variety of issues, criminal, constitutional law, and authored 
several amicus briefs in the United States Supreme Court.
    Mr. Lynch, like the others, your entire statement will be 
read into the record.

   STATEMENT OF TIMOTHY LYNCH, DIRECTOR, PROJECT ON CRIMINAL 
           JUSTICE, CATO INSTITUTE, WASHINGTON, D.C.

    Mr. Lynch. Thank you, Mr. Chairman.
    At the outset, let me say that I agree with those who have 
said that the attacks of September 11th were not just crimes, 
they were an act of war. Our country has been attacked by a 
technologically sophisticated band of barbarians who hold a 
philosophy that exhibits nothing but contempt for human life. 
This country stands for the exact opposite of what they believe 
in. And I think that these people attacked America because they 
see our country as a symbol for respect for individual rights.
    In my view, America is the greatest country in all of human 
history because it is founded upon a Declaration and a 
Constitution that acknowledge and enhance the dignity of 
individual human life. We must respond to this new threat 
without losing sight of what we are fighting for. Our troops in 
Afghanistan are not just fighting to protect the property and 
occupants of some geographical location here in North America. 
They are defending the fundamental American idea that 
individuals have the right to life, liberty and the pursuit of 
happiness. Our government must fight any enemy, foreign or 
domestic, who would destroy the rights of our people.
    Having said that, I am disturbed by some of the actions 
that our government has taken here at home in response to the 
September 11th attacks. And I want to thank the Committee for 
inviting me here today so that I can share some of these 
concerns with you.
    The Executive Order that President Bush signed on November 
13th is very, very troubling. If there is one legal principle 
that I think everybody in this room can agree upon, it is that 
nobody in America is above the law. Not a Senator, not a 
Supreme Court Justice, not even the President of the United 
States. Not even, I might add, a President who enjoys very, 
very high approval ratings in the polls. But with this 
Executive Order, President Bush is announcing that he will not 
only be the policeman, not only be the prosecutor, but the 
legislator and the judge as well. Not just over Osama bin Laden 
and his lieutenants in Afghanistan. Not only over other people 
that our military might capture over there, but also over some 
18 million people here on American soil. For anyone who is a 
noncitizen, the President has announced that you have no right 
to a jury trial, no right to a speedy trial, no right to a 
public trial, no right to due process of law, no right to 
habeas corpus, and no protection against unreasonable and 
warrantless arrest.
    In my judgment, there is no question that this order sweeps 
far beyond the constitutional powers that are vested in the 
Office of the President. My written testimony sets forth in 
detail the constitutional flaws that I see in the executive 
order, and I would request that it be made part of the record.
    Thank you again, Mr. Chairman, for inviting me so that I 
can share these concerns with the Committee.
    [The prepared statement of Mr. Lynch follows:]

Statement of Timothy Lynch, Director, Project on Criminal Justice, Cato 
                               Institute

                            I. Introduction
    The horrific attacks of September 11th have made it 
painfully clear that a technologically sophisticated band of medieval 
barbarians have declared war on America. In my view, these barbarians 
hold a nihilist philosophy and have nothing but contempt for human 
life. They attacked America because our nation is seen as a symbol for 
respect for individual rights. America is a unique nation in all of 
world history because it is founded upon a Constitution that is 
designed to acknowledge and enhance the importance and dignity of human 
beings.
    We must respond to this new threat without losing sight of what we 
are fighting for. Our troops are not simply defending the property and 
occupants of some geographical location. They are defending the 
fundamental American idea that individuals have the right to life, 
liberty, and the pursuit of happiness. Our government must fight any 
foreign or domestic enemy who would destroy the rights of our people.
    That said, I am disturbed by some of the actions taken by our 
government in response to the September 11th attacks. And I 
sincerely thank you for your invitation to come here and share my 
concerns with you.
              II. Bush Order Violates Separation of Powers
    On November 13, 2001 President George Bush signed an executive 
order with respect to the detention, treatment, and trial of persons 
accused of terrorist activities. The president declared a national 
emergency and claimed that Article II of the Constitution and the 
recent Joint Resolution by Congress Authorizing the Use of Military 
Force (Public Law 107-40) empowered him to issue the order.
    In my view, the president cannot rely upon the Joint Resolution as 
a legal justification for his executive order. That resolution simply 
did not give the president carte blanche to write his own legislation 
on whatever subject he deemed necessary. And because Article I of the 
Constitution vests the legislative power in the Congress, not the 
Office of the President, the unilateral nature of this executive order 
clearly runs afoul of the separation of powers principle.
    As I understand it, the primary purpose of this hearing is to 
explore the question of whether Congress can ``codify'' or ``ratify'' 
the substance of President Bush's executive order. Thus, the remainder 
of my statement and legal analysis will focus on other constitutional 
issues raised by the substantive content of that executive order.
        III. Executive Arrest Warrants Violate Fourth Amendment
    The Fourth Amendment of the Constitution provides, ``The right of 
the people to be secure in their persons, houses, papers, and effects, 
against unreasonable searches and seizures, shall not be violated, and 
no Warrants shall issue, but upon probable cause, supported by Oath or 
affirmation, and particularly describing the place to be searched, and 
the persons or things to be seized.''
    The arrest of a person is the quintessential ``seizure'' under the 
Fourth Amendment. See Payton v. New York, 445 U.S. 573 (1980). In many 
countries around the world, police agents can arrest people whenever 
they choose, but in America the Fourth Amendment shields the people 
from overzealous government agents by placing some limitations on the 
powers of the police. The primary ``check'' is the warrant application 
process. By requiring the police to apply for arrest warrants, an 
impartial judge can exercise some independent judgment with respect to 
whether sufficient evidence has been gathered to meet the ``probable 
cause'' standard set forth in the Fourth Amendment. See McDonald v. 
United States, 335 U.S. 451 (1948). When officers take a person into 
custody without an arrest warrant, the prisoner must be brought before 
a magistrate within 48 hours so that an impartial judicial officer can 
scrutinize the conduct of the police agent and release anyone who was 
illegally deprived of his or her liberty. See County of Riverside v. 
McLaughlin, 500 U.S. 654 (1988).
    It is important to note that while some provisions of the 
Constitution employ the term ``citizens'' other provisions employ the 
term ``persons.'' Thus, it is safe to say that when the Framers of the 
Constitution wanted to use the narrow or broad classification, they did 
so. Supreme Court rulings affirm this plain reading of the 
constitutional text. See Zadvydas v. Davis, 121 S.Ct. 2491, 2500-2501 
(2001); Yick Wo v. Hopkins, 118 U.S. 356 (1886); Wong Wing v. United 
States, 163 U.S. 228 (1896). Noncitizens have always benefitted from 
the safeguards of the Fourth Amendment. See Au Yi Lau v. INS, 445 F.2d 
217 (1971); Illinois Migrant Council v. Pilliod, 540 F.2d 1062 (1976).
    President Bush would like to be able to issue his own executive 
arrest warrants. Under his executive order, once the president makes a 
determination that a noncitizen may be involved in certain illegal 
activities, federal police agents ``shall'' detain that person ``at an 
appropriate location designated by the secretary of defense outside or 
within the United States.'' See Executive Order, Section 3, Detention 
Authority of the Secretary of Defense. Under the order, the person 
arrested cannot get into a court of law to challenge the legality of 
the arrest. The prisoner can only appeal to the official who ordered 
his arrest in the first instance, namely, the president. The whole 
purpose of the Fourth Amendment is to make such procedures impossible 
in America. Thus, Congress cannot authorize the use of executive 
warrants with mere legislation. See Lynch, ``In Defense of the 
Exclusionary Rule,'' 23 Harvard Journal of Law and Public Policy 711 
(2000).
      IV. No Person Can be Deprived of Liberty Without Due Process
    The Fifth Amendment to the Constitution provides that no person can 
be ``deprived of life, liberty, or property, without due process of 
law.'' While no alien has a right to enter the United States, once an 
alien makes an entry into our country, his constitutional status 
changes. Any person threatened with deportation has a constitutional 
right to a fair hearing. See Landon v. Plasencia, 459 U.S. 21 (1982). 
See also Ludecke Watkins, 335 U.S. 160 (1948) (Black, J., dissenting).
    President Bush would like to be able to seize and deport people 
without any hearing whatsoever. As noted above, under the executive 
order, the president can have people arrested outside of the judicial 
process and held incommunicado at military bases. Another section of 
the order provides: ``I reserve the authority to direct the secretary 
of defense, at anytime hereafter, to transfer to a governmental 
authority control of any individual subject to this order.'' This means 
that any person arrested could be flown to another country at any time. 
The President can choose the time and country. The prisoner is barred 
from filing a writ of habeas corpus. The problem, as Justice Robert 
Jackson once noted, is that ``No society is free where government makes 
one person's liberty depend upon the arbitrary will of another.'' 
Shaughnessy v. Mezei, 345 U.S. 206, 217 (1953) (Jackson, J., 
dissenting). Thus, Congress cannot enact a law that would let the 
President override the due process guarantee.
    One should not forget that the power to deport has been abused. 
American citizens have been (intentionally or unintentionally) 
deported. See, for example, ``Born in U.S.A.--But Deported,'' San 
Francisco Chronicle, October 22, 1993. Some people have become pawns in 
political machinations. Six Iraqi men who fought against Saddam Hussein 
are fighting bogus deportation charges that are tantamount to a death 
sentence should they be forced back to Iraqi territory. See Woolsey, 
``Iraqi Dissidents Railroaded--by U.S.,'' Wall Street Journal, June 10, 
1998.
    The federal government has great leeway in establishing the various 
grounds for deportation, but the only check on possible arbitrary and 
capricious action is the due process guarantee. That guarantee should 
not be nullified.
    V. Congress Cannot Suspend the Trial by Jury Guarantee
    Article III, section 2 of the Constitution provides, ``The Trial of 
all Crimes, except in Cases of Impeachment; shall by Jury.'' The Sixth 
Amendment to the Constitution provides, ``In all criminal prosecutions, 
the accused shall enjoy the right to a speedy and public trial, by an 
impartial jury.'' To limit the awesome powers of government, the 
Framers designed a system where juries would stand between the 
apparatus of the state and the accused. If the government can convince 
a citizen jury that the accused has committed a crime and belongs in 
prison, the accused will lose his liberty and perhaps his life. If the 
government cannot convince the jury with its evidence, the prisoner 
will go free. In America, an acquital by a jury is final and 
unreviewable by state functionaries.
    During the Civil War, the federal government set up military 
tribunals and denied many people of their right to trial by jury. To 
facilitate that process, the government also suspended the writ of 
habeas corpus--so that the prisoners could not challenge the legality 
of their arrest or conviction. The one case that did reach the Supreme 
Court deserves careful attention.
    In Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866), the Attorney 
General of the United States maintained that the legal guarantees set 
forth in the Bill of Rights were ``peace provisions.'' During wartime, 
he argued, the federal government can suspend the Bill of Rights and 
impose martial law. If the government chooses to exercise that option, 
the commanding military officer becomes ``the supreme legislator, 
supreme judge, and supreme executive.'' It is very important to recall 
that that legal stance had real world consequences during that period 
of our history. Some men and women were imprisoned and some were 
actually executed without the benefit of the legal mode of procedure 
set forth in the Constitution--trial by jury.
    The Supreme Court ultimately rejected the legal position advanced 
by the Attorney General. Here is one passage from that ruling:

        ``The great minds of the country have differed on the correct 
        interpretation to be given to various provisions of the Federal 
        Constitution; and judicial decision has been often invoked to 
        settle their true meaning; but until recently no one ever 
        doubted that the right to trial by jury was fortified in the 
        organic law against the power of attack. It is now assailed; 
        but if ideas can be expressed in words, and language has any 
        meaning, this right--one of the most valuable in a free 
        country--is preserved to every one accused of crime who is not 
        attached to the army, or navy, or militia in actual service. 
        The sixth amendment affirms that 'in all criminal prosecutions 
        the accused shall enjoy the right to a speedy and public trial 
        by an impartial jury,' language broad enough to embrace all 
        persons and cases. . .'' Milligan, pp. 122-123 (emphasis in 
        original).

    The Milligan ruling is sound. The Constitution does permit the 
suspension of habeas corpus in certain circumstances and Congress does 
have the power ``To make Rules for the Government and Regulation of the 
land and naval Forces;'' and ``To provide for organizing, arming, and 
disciplining, the Militia.'' To reconcile those provisions with the 
provisions pertaining to trial by jury, the Supreme Court ruled that 
the jurisdiction of the military could not extend beyond those people 
who were actually serving in the army, navy, and militia. That is an 
eminently sensible reading of the constitutional text.
    President Bush would like to be able to deny noncitizens on U.S. 
soil of the benefit of trial by jury. Under his executive order, he 
will decide who can be tried by jury and who will be tried by a 
military commission. The only case in which the Supreme Court has 
explicitly upheld the constitutionality of using military tribunals in 
America to try individuals who were not in the military is Ex Parte 
Quirin, 317 U.S. 1 (1942). Because the Quirin ruling carved out an 
exception to the Milligan holding, it must be scrutinized carefully.
    The facts in Quirin are fairly straightforward. In June, 1942 
German submarines surfaced off the American coast and two teams of 
saboteurs landed on our shores--one team in New York, the other team in 
Florida. Those teams initially wore German uniforms, but the uniforms 
were discarded after they landed on the beach. Wearing civilian 
clothes, they proceeded inland to accomplish their mission. They were 
all subsequently apprehended by the FBI.
    President Franklin Roosevelt wanted these men to be tried before a 
military commission so he ordered that the men be turned over to the 
military authorities. FDR set up a military commission and decreed that 
these prisoners would not have access to the civilian court system. The 
prisoners were tried before the military commission and found guilty. 
Although the Attorney General of the United States strenuously argued 
that the Supreme Court had no jurisdiction over the case, the Court did 
grant a writ of habeas corpus that had been filed with the court by the 
attorneys for the prisoners.
    The attorneys that had been assigned to defend the prisoners 
contended that the military proceedings were inconsistent with the 
Milligan precedent and that the Supreme Court ought to order a new 
trial. The Supreme Court rejected that argument and sought to 
distinguish the Milligan ruling from the circumstances found in Quirin. 
The Court ruled that the jurisdiction of military commissions could 
extend to people who are accused of ``unlawful belligerency.'' Under 
the rationale of Quirin, anyone accused of being an unlawful 
belligerent can be deprived of trial by jury. Even an American citizen 
who is found out on U.S. soil can be tried and presumably executed by 
U.S. military authorities as long as he or she is charged and convicted 
of ``unlawful belligerency.''
    In my view, the Quirin ruling cannot be reconciled with the 
constitutional guarantee of trial by jury. The flaw that I see in 
Quirin (and in the writings of those who defend Quirin) is circularity. 
We are told that a prisoner is not entitled to trial by jury because he 
is an unlawful combatant. The prisoner denies the charge and demands 
his constitutional rights so that he can establish his innocence. The 
government responds by diverting the case to a military tribunal. And, 
we are told, the subsequent conviction confirms the fact that the 
prisoner is ineligible to appeal his sentence to the civilian court 
system. That is like saying that a convicted rapist should not be given 
a DNA test because he is a convicted criminal.
    Because of the hastiness of Quirin proceedings, the record in the 
case is (intentionally or unintentionally) incomplete. The case does 
not disclose the circumstances under which the prisoners were detected 
and captured by the FBI. That omission obscures the legal issues that 
are being debated presently.
    For what it is worth, here is my own legal analysis of the 
circumstances presented by Quirin. When the German u-boat surfaced off 
of the American coast, our country was in a declared state of war 
against Germany. Thus, our military forces would have been perfectly 
entitled to destroy the u-boat and its occupants. Similarly, when the 
saboteurs arrived on the beach, they could have been immediately shot 
by military personnel or by any American. However, once the saboteurs 
successfully made their way inland and infiltrated our society, their 
legal status changed.
    Those who resist that conclusion need to recognize the dilemma 
posed by imperfect knowledge. A primary function of the trial process 
is to determine the truth. Anyone who assumes that a person who has 
merely been accused of being an unlawful combatant is, in fact, an 
unlawful combatant, can understandably maintain that such a person is 
not entitled to our constitutional safeguards. The problem, once again, 
is that that argument begs the question under consideration. And the 
stakes here are not trivial. The lives of human beings are potentially 
on the line.
    The basic rule ought to be that if the government wants to execute 
or imprison anyone on U.S. soil, the government must proceed according 
the procedures set forth in the Constitution.
    There are, to be sure, some very limited exceptions. For example, 
if our Navy planes had discovered and attacked the German u-boat off 
the coast of Florida, and some German sailors abandoned their vessel 
and swam for shore. Reaching the beach would not, in my view, trigger 
constitutional protections for the sailors. Enemy personnel can be 
taken into custody as POWs. The legal distinction that I have drawn--
whether a person has made an ``entry''--is not new; it is a sensible 
distinction that also happens to run throughout U.S. immigration law. 
See Zadvydas v. Davis, 121 S.Ct. 2491, 2500 (2001).
    To conclude, Congress should not attempt to exploit the misguided 
Quirin ruling and suspend the guarantee of trial by jury for people 
here in the United States. Note, however, that policymakers may have 
choices beyond criminal indictment and sheer helplessness. The federal 
government, for example, already has the power to deport people who may 
pose a threat to our national security. And the burden of proof in a 
deportation proceeding is properly much lower than the standard of 
proof in criminal trials.
    VI. Forums for War Criminals Captured Overseas
    There appear to be four possible legal forums to try suspected war 
criminals that are captured overseas: (1) trial in a civilian court 
here in America, according to our normal federal rules of criminal 
procedure; (2) trial by a non-Article III court; (3) trial in a 
international forum; (4) trial before a an ad hoc court based upon 
Nuremberg principles. Let me briefly address these possibilities in 
turn.
    A criminal trial in a civilian court here in America does not 
require extended discussion. This procedure was used to try the 
Panamanian leader Manuel Noriega, the terrorists who bombed the World 
Trade Center in 1993, and the bombers of the Oklahoma City federal 
building in 1995.
    A criminal trial in a non-Article III court here in America or 
overseas has precedent. After World War II, some German and Japanese 
POWs were accused of war crimes and were tried before military 
tribunals. See Application of Yamashita, 327 U.S. 1 (1946).
    In recent years there has been much discussion surrounding the 
creation of an ``International Criminal Court'' (ICC). The idea here is 
to establish a permanent court that can try individuals for war crimes, 
genocide, and other crimes against humanity. To become effective, the 
ICC Treaty requires 60 nations to ratify its provisions. Thus far, only 
43 nations have signed off on the treaty. However, even if the ICC 
treaty were ratified tomorrow, it provisions are not retroactive and 
could not be applied against terrorists for the vicious attacks on the 
World Trade Center. Thus, on closer examination, this is not a feasible 
possibility. There are, in any event, many good reasons to withhold 
U.S. support for such a tribunal. See Dempsey, ``Reasonable Doubt: The 
Case Against the Proposed International Criminal Court,'' Cato 
Institute Policy Analysis no. 311 (July 16, 1998).
    A temporary, ad hoc, tribunal based upon Nuremberg principles is 
another possibility. After World War II, the Allied Nations tried Nazi 
war criminals in Nuremberg. At present, the former dictator, Slobodon 
Milosevic, is being tried before the International Criminal Tribunal 
for the Former Yugoslavia, which is also based on Nuremberg principles.
    Because a regular criminal trial in the United States is 
straightforward and the ICC seems unrealistic, let me briefly explain 
why I think a trial by an ad hoc tribunal based upon Nuremberg 
principles may be the best forum.
    First, government prosecutors can avoid habeas corpus appeals in 
the U.S. court system, which absent congressional action, will almost 
certainly develop post-trial.
    Second, a reasonable argument can be made that bona fide 
intelligence information should not have to be disclosed in a public 
forum. A non-Article III court proceeding must still comport with due 
process and intelligence sources likely would have to be disclosed in 
order to counter meritorious objections from defense counsel, and, 
thus, the possibility of a lengthy retrial.
                            VII. Conclusion
    In sum, my view is that war criminals captured on U.S. soil must be 
tried in our civilian court system. War criminals captured overseas can 
be tried in a civilian court here in the United States or by a 
Nuremberg-type tribunal.

    Senator Schumer. Thank you, Mr. Lynch.
    First I want to thank, I imagine my panel members would, 
this was excellent testimony. You did not just read what you 
had come to give us, but tried to respond to the dialog and 
debate that had preceded you, and I want to thank all of you 
for it.
    The only other general comment I would make, and it relates 
a little bit to what Professor Sunstein said, and that is that 
there seems to be, not that everyone agrees on everything, but 
there seems to be a little more consensus when you start asking 
the specific questions. The divisions are less broad than just 
the words ``secret military tribunal'', whether you agree with 
him or disagree. And I guess I would just say that the 
administration would have been better served, instead of just 
announcing in broad brush that they were going to do this, but 
by issuing specific rules, and then perhaps a lot of the parade 
of horribles that people are worried about would not have been 
the focus of the debate. And I just hope that they will issue 
those rules quickly, so that we can actually debate some real 
issues, not potential worries of what people have, and I would 
urge them to do that.
    Let me ask a couple of points that both Professor Tribe and 
Sunstein made, but I would like to ask General Nardotti and Mr. 
Terwilliger if they would agree. Would you both agree that 
these tribunals should be limited to violations of the laws of 
war as opposed to other broader--I think Professor Sunstein 
mentioned this. Mr. Terwilliger?
    Mr. Terwilliger. In general, yes, although what defines a 
violation of the law of war and the extent of responsibility 
for that, probably is something that could be subject to a lot 
of discussion and debate, but as a general proposition, of 
course.
    Senator Schumer. How about you, Major Nardotti?
    General Nardotti. I agree, Mr. Chairman.
    Senator Schumer. You agree. What about the idea of people 
arrested within the boundaries of the United States; should 
these tribunals apply to them ever, once in a while, or 
whatever you think? Again to Mr. Terwilliger and Major 
Nardotti.
    Mr. Terwilliger. I agree with most of what Professor 
Sunstein said, with that exception, Mr. Chairman, and for this 
reason. While I think the circumstances are different for 
someone who commits acts here that may make them subject to the 
order, than for someone who commits acts abroad, nonetheless, 
it is the nature of the acts that render someone subject to the 
order--the what, rather than the where. The difference is that 
under the where, the President may have the additional option 
of using, in appropriate cases, the criminal justice system. 
That use, however, may be inappropriate for reasons we, I 
think, have a consensus to recognize.
    Senator Sessions. But you would entertain the possibility 
of, say, an illegal immigrant who is engaged in a major act of 
terrorism, but apprehended within the boundaries of the United 
States, still being subject to a military tribunal?
    Mr. Terwilliger. Yes, yes, Mr. Chairman, and for one 
additional important reason. Many of the people who appear to 
be responsible for this, in essence lied their way into the 
United States. I do not know why we should give them the 
benefit of their fraudulent bargain in conning their way into 
the country and cloak them with constitutional rights, 
including the right to a trial in a civilian court.
    Senator Schumer. And I apologize, Major General Nardotti. 
You have such presence, I assumed you were a general and will 
go into your second rank, but do you agree with Professor 
Terwilliger?
    General Nardotti. I agree that under circumstances where it 
is clear or you can establish that they fall into the category 
of unlawful combatants, they entered the country and were not 
wearing uniforms or insignia of their armed force, they do not 
carry arms openly or they do not comport of conform with the 
laws of war in their operational conduct, by their conduct they 
have placed themselves in that category, and I believe--and in 
fact, an even more compelling case could be made that they 
should be subject to the military tribunals than others caught 
out on the battlefield in open--
    Senator Schumer. Would our other three witnesses disagree 
with what Mr. Terwilliger and General Nardotti said?
    Mr. Tribe. I agree.
    Mr. Sunstein. I agree.
    Mr. Lynch. I disagree, Mr. Schumer. In my view, almost any 
person captured on U.S. soil would be entitled to the 
constitutional procedure of jury trial. There might be some 
limited exceptions to that. I do not think bare entry into the 
country would be enough to trigger constitutional protections, 
but almost anybody captured here on U.S. soil, I think the Bill 
of Rights is triggered for those people.
    Senator Schumer. Now, one just other one that was proposed 
by Professor Tribe. His view was that appeal to the Secretary 
of Defense and the President is insufficient. There needs to be 
some form of judicial appeal beyond just habeas. Mr. 
Terwilliger, what do you think of that?
    Mr. Terwilliger. Well, I have a great deal of respect for 
Professor Tribe, but he is wrong once in a while. And I think 
on this one the reason he is wrong is because that is mixing 
two separate bodies of law. The authority to conduct military 
tribunals, without going into a long explanation, arises 
completely separate from the jurisdiction of Article III courts 
with the exception of the writ of habeas corpus. And for that 
reason, I do not think we can sort of design a customized 
constitutional procedure to accomplish that.
    Senator Schumer. General Nardotti?
    General Nardotti. Since we do not have the details of the 
procedures as they would apply to the review process, 
obviously, that will shed important light on this particular 
aspect. I believe, given the practicalities of the situation, 
if there are any number of cases reviewed by the Secretary of 
Defense and the President who have many other things that they 
need to be devoting their time to, they are going to need a 
great amount of assistance, and if there were established some 
type of review panels as part of that process, I think that 
would alleviate some of the concerns, but I would basically 
agree in terms of the legal issues that Mr. Terwilliger has 
cited, I would agree.
    Senator Schumer. Let me ask now Professor Sunstein, 
Professor Tribe and Mr. Lynch. I guess it was Professor Koh 
wrote an article where he basically said we ought to use 
civilian courts, there ought to be a strong, strong lean--I do 
not know if he said absolutely in every case; he did say you 
could use CIPA and other secrecy procedures, but there ought to 
be a strong lean to using civilian courts in just about every 
situation that this war confronts us. And what is your view of 
that basic view? Why don't we go right to left?
    Mr. Sunstein. I think that's excessive so long as the 
procedures in the military commissions are full and fair, and 
if you can ensure the essentials of procedural justice and an 
unbiased tribunal, as we did, witness the 85 percent conviction 
rate, not 100 percent, not close to it, after World War II. 
There is no reason to insist on civilian courts given the 
legitimate interest in avoiding a circus atmosphere, in 
promoting secrecy and ensuring expedition.
    Senator Schumer. Professor Tribe.
    Mr. Tribe. Well, I agree with what Professor Sunstein has 
said. I think you may be over reading what Professor Koh, 
former Assistant Secretary of State said. As I understand his 
view, it is that we ought not simply to assume that the 
civilian trials will always be unsuitable. I think there is a 
difference in degree in the presumption, but I do not think he 
believes that the Constitution requires it and I certainly do 
not think the Constitution requires it.
    Senator Schumer. But would you agree with him in his 
general view that civilian--
    Mr. Tribe. Well, certainly not for people actively involved 
in major acts of war against the United States, but I am not 
sure he would think his view applies there either.
    Senator Schumer. He is not here, so we will--
    Mr. Tribe. I think it is the breadth of this Order that 
invites people to have broader differences. I very much agree 
with Cass Sunstein, that when you get down to the details, not 
only as to the procedure, but as to what it was really intended 
to have this sort of Damocles hang-over. Not all 18 million 
resident aliens, but a very tiny number that could be much more 
precisely defined.
    Senator Schumer. So if you were advising the 
administration, you would say, get some specifics out here 
pretty quickly?
    Mr. Tribe. Although in its defense--it does not need me to 
defend it--but when you said you thought they should have come 
out with the details, I think they should have come out with 
something that is more like what an agency does, an NOPR, 
notice of proposed rule-making. That is, if they had done 
originally what White House Counsel and Secretary Rumsfeld have 
done in suggesting that, they're just floating a trial balloon 
here; they had made clear it was not an order--but it acturally 
is an order. Given what they did, I think they are stuck with 
it, and the Congress ought to fix it if they will not.
    Senator Schumer. Mr. Lynch, you get the last word on the 
question that I had asked of the two, and you can respond to 
Professor Tribe as well if you would like.
    Mr. Lynch. I haven't seen Professor Koh's article, but I 
too would lean very heavily towards a civilian trial. But that 
is not to say that it is the only option. I think, in the 
alternative, what policy makers should be looking at is a 
tribunal, along the lines of the Nuremberg trials. I would lean 
heavily towards a civilian trial, but I think that that is the 
next best alternative which Congress should be looking at.
    Senator Schumer. Thank you. I want to thank all the 
witnesses. My time is up.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    You know, about the issuing a final and complete Order, Mr. 
Chertoff suggested, and I think Rumsfeld, the Secretary of 
Defense, suggested Sunday in a TV interview, that this does 
allow us the time to have some debate and help the Department 
of Defense decide precisely what ought to be in the Order. If 
we had issued it incomplete, I suspect the critics would have 
complained that it was not perfect and they would not have any 
chance to have any input in it. So I think it is better to put 
it out publicly, let the whole country have a debate on it. Let 
us go back to the history and the Constitution and discuss 
these matters, and I believe that is a healthy approach.
    With regard to the question, Mr. Lynch, of trying everyone 
that has any residency in this United States in a civil trial 
and never be subjected to a military commission, which you 
propose, the Quirin case specifically offered the opinion, did 
it not, that citizens could be even tried. So do you agree that 
the Quirin case did say that?
    Mr. Lynch. Yes, I agree that that is an implication from 
the Quirin case. That means that we could have a new Executive 
Order, perhaps next month, that would extend the class of the 
people subject to the order from noncitizens here on U.S. soil, 
to citizens, and to justify that extension by saying Quirin 
covers citizens.
    Senator Sessions. And the President, by the Order he 
issued, limited that to noncitizens, and those who are 
connected to al Qaeda and/or international terrorism, is a 
fairly, I think, limited pool of people, and that would not 
cover 18 million people, would it, Mr. Lynch?
    Mr. Lynch. Well, the point is, that the Executive Order 
covers any noncitizen here on U.S. soil. Any time the 
government accuses somebody of being an ``unlawful 
belligerent,'' then that person has essentially been stripped 
of many of the constitutional protections that I have listed 
here.
    Senator Sessions. Well, the status of the case would have 
to be that he would have to be connected, or she, would be 
connected to international terrorism, I think, and I think it 
is unfair and inflammatory to suggest that we have got 18 
million people that are here in this country that are subject 
to being tried in a military commission when we give resident 
aliens of all kinds all the panoply of constitutional rights 
that citizens get, and I just would take exception to that.
    Mr. Tribe, on the history of the commission, in your 
testimony in your footnote, you state, ``Ex Parte Quirin 
mistakenly invoked by the White House as precedent, the 
military tribunal's jurisdiction, was explicitly provided by 
Congress.'' In other words, they were saying that it was 
explicitly provided by Congress within the Order.
    Mr. Tribe. In Quirin they found explicit authorization. I 
am only saying that Quirin is therefore not very strong 
authority in this circumstance where the argument is much 
weaker that Congress has really authorized exactly this.
    Senator Sessions. Well, Article 15 of the Articles of War 
that was relied on in the Quirin case, which gave use under the 
Military Orders, that stated that the provisions of these 
articles conferring jurisdiction on courts-martial shall not be 
construed as depriving military commissions of concurrent 
jurisdiction in respect of offenders or offenses that by the 
law of war may be lawfully triable by military commissions. So 
it affirms the right of military commissions to try offenses 
that by the law of war would be lawfully triable by such 
commissions.
    Mr. Tribe. Well, Senator Sessions, Article 15 of the Laws 
of War is very similar. Basically it was codified in Section 
821 of the UCMJ, and that is not quite enough, because all that 
says is that the jurisdiction of courts-martial does not 
preclude these other things. That is why the court in Ex Parte 
Quirin did not rely solely on Article 15, but relied also on 
other legislation by Congress which essentially it interpreted 
as saying that once there is a declaration of war, the 
President has all of this authority. I think the court was 
right in that part of Ex Parte Quirin, but that just points out 
that it does matter whether we have a full-fledged declaration 
of war or not.
    Senator Sessions. Well, I really appreciate your 
comprehensive view of this, and you mentioned this as one of 
your two concerns, this very point I believe. It strikes me 
that the Quirin case did rely on the Articles of War, did it 
not?
    Mr. Tribe. In part.
    Senator Sessions. In part. And then when the Articles of 
War were passed by--or the UCMJ recodified the Articles of War 
in virtually identical language, the Congress would have been 
aware of the historical precedent of Lincoln and Roosevelt, and 
that therefore we would normally expect that they knew what 
they were doing in actually approving military commissions, 
would we not?
    Mr. Tribe. But, Senator Sessions, that very history shows--
and I think the debate about the joint resolution of September 
18th shows, that this Congress knows the difference between 
declaring war, which triggers a whole panoply of things, and 
authorizing the President to use force for a particular 
objective. That is what this joint resolution did. It did not 
quite declare war. I think we are ``at war'' in a sense 
sufficient to make the laws of war applicable once there is an 
authorization for the commissions, and that authorization can 
come either by a declaration of war or by a more specific 
authorization.
    Senator Sessions. Well, I think the Prize cases says that 
essentially war is determined by the people who make it, and 
that it can be a unilateral declaration of war by the act of 
the attacking party.
    Mr. Tribe. Certainly. But, Senator Sessions, the issue in 
the Prize cases was whether Abraham Lincoln was in violation of 
the Constitution for waging war to prevent the dissolution of 
the Union. It was not whether, without congressional 
authorization, he could set up military commissions. When that 
issue arose in Ex Parte Milligan, the Court indicated was that 
there was no authorization by Congress for suspending the writ 
of habeas corpus, or for setting up military commissions, to 
try people like Milligan, and I say if it was good enough for 
Lincoln, it should be good enough for Bush.
    Senator Sessions. Well I think it is. I think the 
authorization is there, and I would just plainly disagree with 
you. I think the UCMJ, as recodified, is clear authority, in 
addition to the probable inherent authority as Commander-in-
Chief to protect the country from attack.
    Thank you.
    Senator Schumer. Thank you, Senator Sessions.
    I am going to recognize Senator Feinstein, and just going 
to step out for a minute.
    Senator Feinstein. Thanks very much, Mr. Chairman.
    It is good to see you again, Professor Tribe, Professor 
Sunstein, and gentlemen. Professors Tribe and Sunstein and I 
have worked on other things together, and I wanted to ask the 
two of you, just to further elaborate on this. When we passed 
the authorization legislation, it carried with it the full 
powers of a declaration of war. We were attacked by foreign 
elements on our soil. The Congress responded by giving the 
President the full authorization to use force against these 
elements, these elements related to the September 11th attacks. 
We were not declaring war against a country because there was 
not a country against which we could declare war, but against 
those elements, namely terrorists. Therefore, I do not 
understand why, this is not absolutely equal in standing to a 
full declaration of warn.
    Mr. Sunstein. I do tend to think that insofar as we are 
talking about military commissions, your question points in the 
right direction. Certainly about the Supreme Court's likely 
resolution of the question that Professor Tribe and Senator 
Sessions were disagreeing about. That is, my reading of 
Quirin--and here I have a mild disagreement with Professor 
Tribe--is that the authorization of force alongside 10 U.S.C. 
821, invoked by Senator Sessions, as understood in Quirin, very 
broadly understood in Quirin as an authorization, would be 
taken by a majority, strong majority of the current Court to 
authorize the use of military commissions.
    Having said that, I do not believe that Senator Sessions 
and Professor Tribe would disagree on the following question, 
which is, would it be better from this constitutional 
standpoint and from the standpoint of separation of powers, for 
there to be expressed rather than somewhat vague congressional 
authorization of the sort that you, Senator Feinstein, have 
just referred to, and of the sort that Senator Sessions earlier 
referred to. So basically I think you are correct, that as a 
legal matter, the authorization of force in September would 
carry the full effect of a declaration of war, though there's 
there was authorization, right after the South attempted to 
secede, Congress reason from my constitutional standpoint about 
being mildly uncomfortable about that. The only thing that 
could be said, I think, in defense of the authorization of war, 
as opposed to a declaration, is exactly what you have said, and 
it is a very important point, who are we going to declare war 
against? We have been attacked not by a nation, but by 
individuals and groups who have violated the laws of war.
    Senator Feinstein. Professor Tribe?
    Mr. Tribe. Certainly as a matter of predicting what the 
current Court would do, I think the odds are very good that it 
would defer to the Chief Executive. One of the points that I 
have made both in my written testimony and in my recent article 
is that the Congress should itself recognize the gravity of the 
constitutional responsibility that it has before it, especially 
given the tendency of the Court to defer overwhelmingly to the 
Executive in wartime. Any suggestion that the Court will answer 
the question for us without such deference would be a mistake.
    I do think that because we are not grappling with a 
sovereign nation, a classic declaration of war is not what 
would have been called for. That is why I think Congress did a 
sensible thing in crafting something narrower, but it crafted 
it narrowly enough so that I think a cloud hangs over the 
legitimacy of these commissions. That is, Congress could have 
made it clear, and still could, that trial by military 
commissions in certain limited circumstances is authorized. 
That would eliminate any risk that any of the al Qaeda 
lieutenants, if convicted by one of these commissions, would 
succeed in being released on habeas. Think of the international 
embarrassment for this country if in the pleasant discussion 
that we are having in this room, between Senator Sessions, 
Professor Sunstein, and me, if that converts into the issuance 
of a writ of habeas corpus by some rather more liberal judge 
than the current Supreme Court, out in the Ninth Circuit. He 
might get slapped down, but in the meantime it is not a healthy 
thing for this country to have that cloud hanging over this 
issue. There also was discussion on the floor, I think more in 
the House than on the Senate side, about the reluctance to 
wheel out the heavy artillery of a declaration of war, because 
war has been declared on non-nations before, on the Barbary 
pirates for example, but to wheel out that artillery and 
automatically trigger a whole range of consequences in the 
statute books of the United States was something Congress 
wasn't ready to do.
    Given that, it seems to me that there's ambiguity about 
whether what Congress did do carried the day in terms of these 
commissions.
    Senator Feinstein. So, quickly before the red light, what 
is your remedy?
    Mr. Tribe. The remedy is for this Congress, although it may 
be unrealistic, given the differences of view, but for this 
Congress to authorize the use of military commissions in very 
narrowly defined circumstances involving violations of the laws 
of war, which can be more precisely codified--
    Senator Feinstein. As opposed to an Executive Order?
    Mr. Tribe. As opposed to merely an Executive Order.
    Senator Feinstein. So you are saying that if the Congress 
essentially authorizes it, states the scope and the--
    Mr. Tribe. That is right, and leaves to the Executive 
Branch a great deal of room. Certainly it has some room that 
cannot be restricted by this Congress. And by the way, I have 
not confused the Commander-in-Chief issue with the Article III 
issue. I did not say it is because of Article III that people 
should have a right to appeal to someone other than their 
accuser; it was because of fundamental fairness.
    Senator Schumer. We have zero minutes left on a vote, so I 
appreciate--
    Senator Feinstein. If I could just say one thing.
    Senator Schumer. Please.
    Senator Feinstein. Perhaps they would extend. They do for 
everybody else. Perhaps for us they would extend it a few more 
minutes.
    If I could just ask one quick question. In Professor 
Sunstein's paper, and he mentioned this in his oral remarks, 
that a standard of proof beyond the preponderance of evidence, 
but ranging from clear and convincing to beyond a reasonable 
doubt, I the do not understand how you can say we did an 
authorization--and this is one of the points we wanted to 
address in it--how we could just simply make up a standard of 
proof.
    Senator Schumer. And do it succinctly if you could, 
Professor.
    Mr. Sunstein. As part of the legislative power, it would be 
just fine so long as it met with the constitutional standards 
and certainly the beyond a reasonable doubt standard would, and 
almost certainly the clear and convincing evidence standard 
would, so it would be part of the legislation setting up the 
tribunals.
    Senator Feinstein. Do you gentlemen have a suggestion?
    Mr. Tribe. ``Clear and convincing'' I think is more 
realistic in the wartime situation than ``beyond a reasonable 
doubt.'' And I also think that when you say I would rather have 
100 innocent ones go free, that's not true if they have access 
to bioterrorism. It seems to me the ratio is a little different 
here.
    Senator Feinstein. That is correct. Do you agree?
    Senator Schumer. A statement from the ACLU and letters from 
the Parkway Christian Fellowship and St. Mary's University will 
be included in the record.
    And on that note, we will conclude.
    We are going to miss our vote. Thank you. You were a great 
panel, and I think really helped. The hearing is adjourned.
    [Whereupon, at 12:45 p.m., the committee was adjourned.]









    DEPARTMENT OF JUSTICE OVERSIGHT: PRESERVING OUR FREEDOMS WHILE 
                      DEFENDING AGAINST TERRORISM

                              ----------                              


             TUESDAY, DECEMBER 4, 2001 (AFTERNOON SESSION)

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 2:00 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Russell 
Feingold, presiding.
    Present: Senators Feingold, Durbin, Hatch, and Sessions.

 OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 
                  FROM THE STATE OF WISCONSIN

    Senator Feingold. The hearing will come to order. We, I 
believe, have a vote at about 2:20 or 2:25, so I will make an 
opening statement and if the ranking member is here, we will do 
that as well and perhaps be able to get through the first 
panel, at which time I will recess and we will come back and 
begin with the second panel as soon as we possibly can.
    Welcome to the third of four hearings on ``DOJ Oversight: 
Preserving our freedoms While Defending Against Terrorism.'' 
This hearing will focus on the issue of individuals detained in 
connection with the September 11 attack investigation. This 
hearing will explore the importance of the Attorney General's 
providing a full accounting of who is being detained and why, 
as well as other basic information about the status of 
individuals detained since September 11. We will also consider 
the Department of Justice's plan to question 5,000 individuals 
of Arab and Muslim backgrounds in connection with the 
investigation.
    The terrorists struck the heart of our nation's financial 
capital when they struck New York City and took the lives of 
thousands of Americans. In the shadow of where the World Trade 
Center once stood is the Statue of Liberty, standing tall and 
proud with a torch raised to the skies. She shines her light on 
a city and a nation struggling to cope with this tragedy and 
working to prevent any such horrific act from ever happening 
again.
    Most important, though, Lady Liberty is a reminder of why 
Americans and immigrants, who, like my forefathers and those of 
probably everyone in this room, arrived on our shores, desiring 
to be Americans one day. They love our nation and are proud to 
be a part of it. Her beacon at the golden door to America is a 
beacon to freedom, a beacon of hope, and a beacon of justice.
    I fear that America's beacon of freedom and justice is 
threatened as we face almost daily revelations of extraordinary 
steps by the Justice Department that snub the rule of law and 
threaten to erode fundamental constitutional rights.
    As my colleague, Senator Kennedy, eloquently stated last 
week, no Senator and no American has a monopoly on wanting to 
bring the perpetrators of the September 11 attacks to justice 
and doing all we can to prevent future acts of terrorism and 
the loss of American lives. I fully support our law enforcement 
officials in their tireless efforts to leave no stone unturned 
as they strive to protect our nation from future attacks.
    But as we move forward in our fight against terrorism, 
Congress, and especially this Committee, has a responsibility 
to ensure that the constitutional foundations of our nation are 
not eroded. The beacon of freedom must continue to shine on our 
nation.
    During the course of the investigation of the September 11 
attacks, the Justice Department has detained over 1,100 
individuals. The Justice Department recently began releasing 
some information about the people who have been detained on 
Federal criminal charges or immigration violations, but we 
still do not have a full picture of who is being detained and 
why, and there are reports that detainees have been denied 
their fundamental rights to due process of law, including 
access to counsel, and have suffered serious bodily injury. We 
simply cannot tell if those cases are aberrations or an 
indication of systemic problems if the Justice Department will 
not release further information about those being held in 
custody.
    The Attorney General has repeatedly and strongly asserted 
that he is acting with constitutional restraint, but the 
Department of Justice has a responsibility to release 
sufficient information about the investigation and the 
detainees to allow Congress and the American people to decide 
whether the Department has acted appropriately and consistently 
with the Constitution.
    We will hear today from Ali Al-Maqtari, who was detained by 
Federal officials in Tennessee for almost two months for a 
minor immigration violation that would not usually merit 
detention. We will also hear from his lawyer, Michael Boyle, 
who will discuss his experience in representing Mr. Al-Maqtari 
and the experience of his colleagues who are representing 
detainees.
    Following Mr. Boyle, we will hear from Mr. Goldstein, who 
will talk about the challenges he faced in his representation 
of Dr. Al-Badr Al Hazmi, a radiology resident in San Antonio, 
Texas, who was detained following the September 11 attacks for 
nearly two weeks.
    Finally, Nadine Strossen of the American Civil Liberties 
Union will talk about why disclosing basic information about 
the status of detainees is imperative and comment on the 
implications of questioning over 5,000 young men from Arab and 
Muslim countries.
    This Friday, December 7, our nation will mark the 60th 
anniversary of the bombing of Pearl Harbor, a day that 
President Roosevelt then said ``would live in infamy.'' While 
our nation made great strides for mankind as a result of our 
victory in World War II, we also lost something of ourselves 
when we interned over 120,000 Japanese Americans and thousands 
of German and Italian Americans. We later came to regret those 
acts.
    I do not suggest that what is now going on rivals that 
deplorable action taken in the name of national security, but I 
do think we need to learn a lesson from this history to 
question our government when it appears to be overreaching. 
Such questions are not unpatriotic and they should not be 
viewed as an inconvenience by the executive branch. They are a 
crucial tool for Congress to play its constitutional role in 
protecting the great heritage of this country and the rule of 
law.
    [The prepared statement of Senator Feingold follows:]

Statement of Hon. Russell D. Feingold, a U.S. Senator from the State of 
                               Wisconsin

    Welcome to the third of four hearings on DOJ Oversight: Preserving 
Our Freedoms While Defending Against Terrorism. This hearing will focus 
on the issue of individuals detained in connection with the September 
11th attacks investigation. This hearing will explore the 
importance of the Attorney General providing a full accounting of who 
is being detained and why, as well as other basic information about the 
status of individuals detained since September 11th. We will 
also consider the Department of Justice's plan to question 5,000 
individuals of Arab and Muslim backgrounds in connection with the 
investigation.
    The terrorists struck the heart of our nation's financial capitol 
when they struck New York City and took the lives of thousands of 
Americans. In the shadow of where the World Trade Center once stood is 
the Statue of Liberty, standing tall and proud, with a torch raised to 
the skies. She shines her light on a city and a nation struggling to 
cope with this tragedy and working to prevent any such horrific act 
from ever happening again.
    Most important, Lady Liberty is a reminder of why Americans, and 
immigrants, who like my forefathers and those of probably everyone in 
this room, arrived on our shores desiring to be Americans one day, love 
our nation, and are proud to be a part of it. Her beacon at the golden 
door to America is a beacon of freedom, a beacon of hope, and a beacon 
of justice.
    I fear that America's beacon of freedom and justice is threatened, 
as we face almost daily revelations of extraordinary steps by the 
Justice Department that snub the rule of law and threaten to erode 
fundamental constitutional rights.
    As my colleague Senator Kennedy eloquently stated last week, no 
Senator and no American has a monopoly on wanting to bring the 
perpetrators of the September 11th attacks to justice and 
doing all we can to prevent future acts of terrorism and the loss of 
American lives. I fully support our law enforcement officials in their 
tireless efforts to leave no stone unturned as they strive to protect 
our nation from future attacks.
    But as we move forward in our fight against terrorism, Congress, 
especially this Committee, has a responsibility to ensure that the 
constitutional foundations of our nation are not eroded. The beacon of 
freedom must continue to shine on our nation.
    During the course of the investigation of the September 11 attacks, 
the Justice Department has detained over 1,100 individuals. The Justice 
Department recently began releasing some information about the people 
who have been detained on federal criminal charges or immigration 
violations. But we still do not have a full picture of who is being 
detained and why. And there are reports that detainees have been denied 
their fundamental right to due process of law, including access to 
counsel, and have suffered serious bodily injury. We simply cannot tell 
if those cases are aberrations or an indication of systemic problems, 
if the Justice Department will not release further information about 
those being held in custody.
    The Attorney General has repeatedly and strongly asserted that he 
is acting with constitutional restraint. But the Department of Justice 
has a responsibility to release sufficient information about the 
investigation and the detainees to allow Congress and the American 
people to decide whether the Department has acted appropriately and 
consistent with the Constitution.
    Within a week of September 11th, the Department began 
releasing information on the numbers of people who have been detained 
as part of the investigation. On October 31st of this year, 
I, along with Chairman Leahy, Senator Kennedy and Representatives 
Conyers, Nadler, Scott, and Jackson-Lee, sent a letter to the Attorney 
General requesting information about the detainees. We wanted to know 
who is being detained and why; the basis for continuing to hold 
individuals who have been cleared of any connection to terrorism; and 
the identity and contact information for lawyers representing 
detainees. We also wanted information regarding the government's 
efforts to seal proceedings and its legal justification for doing so.
    In early November, the Department announced it would no longer 
release comprehensive tallies of the number of individuals detained in 
connection with the September 11 investigation and that it would limit 
its counts to those held on federal criminal or immigration violations. 
Thus, it would no longer keep track of those held on state or local 
charges, nor would it indicate how many people have been released after 
being detained.
    Just before Thanksgiving, the Department provided copies of the 
complaints or indictments for about 46 people held on federal criminal 
charges. It also provided similar information on about 49 people held 
on immigration violations, but redacted their identities. Last week, 
the Attorney General announced the number and identities of all persons 
held on federal criminal charges and the number, but not the 
identities, of persons held on immigration charges. The total number of 
detainees is roughly 600 individuals. But the Department continues to 
refuse to identify the 548 persons held for immigration violations, or 
provide even the number of material witnesses, or the number and 
identities of persons held on state or local charges.
    I am not satisfied with this response but we now know a lot more 
about the detainees than we knew at the end of October. This 
illustrates the crucial role of congressional oversight as a check on 
the executive branch.
    The Department has cited a number of reasons for its refusal to 
provide additional information. Very troubling is the Department's 
assertion that those being held for immigration violations have 
violated the law and therefore ``do not belong in the country.'' But 
without full information about who is being detained and why, we cannot 
accept blindly an assertion that each detainee does not deserve to be 
in the country. Do all of these immigration violations merit detention, 
without bond, and deportation? I doubt it, as some are very minor 
violations that under normal circumstances could be cleared up with a 
phone call. I hope that today's hearing will shed some light on this 
issue.
    The Department also says it is protecting the privacy of the 
detainees by refusing to release their identities, and they are free to 
``self-identify'' if they want. But as we will hear this afternoon, 
some of these individuals have been denied access to lawyers or family, 
for days or weeks at a time. So, it rings hollow to suggest that 
detainees are in a position to self-identify. My strong sense is that 
people in detention cannot just call the New York Times or this 
Committee if they want the public to know the circumstances of their 
cases. Our witnesses today should help us to assess whether the option 
of self-identification is a real option.
    As this hearing will bring into focus, there are concerns that the 
Department's investigation has employed a clumsy, dragnet approach, 
which is increasingly proving to be offensive to the Arab and Muslim 
American communities and has come under criticism by a number of highly 
respected former FBI officials. I sincerely hope that the extraordinary 
effort to question immigrants from certain Arab and Muslim countries 
does not become counter-productive. In a rush to find terrorists, the 
Department appears to have disrupted the lives of hundreds of people, 
most of whom will prove to be wholly innocent of any connection to 
terrorism. Just as important, the trust of communities whose help is so 
crucial to preventing future attacks is being severely undermined.
    We will hear today from Ali Al-Maqtari who was detained by federal 
officials in Tennessee for almost two months for a minor immigration 
violation that would not usually merit detention. We will also hear 
from his lawyer, Michael Boyle, who will discuss his experience in 
representing Mr. Al-Maqtari and the experience of his colleagues who 
are representing detainees. Following Mr. Boyle, we will hear from Mr. 
Goldstein, who will talk about the challenges he faced in his 
representation of Dr. Al Badr Al Hazmi, a radiology resident in San 
Antonio, Texas, who was detained following the September 11 attacks for 
nearly two weeks. Finally, Nadine Strossen, of the American Civil 
Liberties Union, will talk about why disclosing basic information about 
the status of the detainees is imperative and comment on the 
implications of questioning over 5,000 young men from Arab and Muslim 
countries.
    This Friday, December 7th, our nation will mark the 60th 
anniversary of the bombing of Pearl Harbor, a day that President 
Roosevelt then said ``would live in infamy.'' While our nation made 
great strides for mankind as a result of our victory in World War II, 
we also lost something of ourselves when we interned over 120,000 
Japanese Americans and thousands of German and Italian Americans. We 
later came to regret those acts. I do not suggest that what is now 
going on rivals that deplorable action taken in the name of national 
security. But I do think we need to learn a lesson from this history to 
question our government when it appears to be overreaching. Such 
questions are not unpatriotic and should not be viewed as an 
inconvenience by the Executive Branch. They are a crucial tool for 
Congress to play its constitutional role in protecting the great 
heritage of this country and the rule of law.
    I will now turn to the ranking member, Senator Hatch, for his 
opening statement. Before I do, I want to thank the Chairman and 
Senator Kennedy for their leadership on this issue. I also want to 
thank Senator Hatch for his cooperation with Senator Leahy and myself 
in putting this hearing together.

    Senator Feingold. Whenever Senator Hatch arrives, perhaps 
after the break, we certainly will turn to him for his opening 
statement. I also want to thank the chairman and Senator 
Kennedy for their leadership on this issue and I, of course, 
want to thank Senator Hatch for his cooperation with Senator 
Leahy and myself in putting this hearing together.
    I think this gives us an opportunity, then, to begin the 
first panel. I would ask Mr. Viet Dinh to join us.
    Our first witness this afternoon is Mr. Viet Dinh, the 
Assistant Attorney General for Office of Legal Policy. The 
Justice Department asked that Mr. Dinh be permitted to testify 
at this hearing to give the Department's views. He has served 
as Assistant Attorney General since May 31 of this year. Prior 
to his government service, he was a professor of law at 
Georgetown University Law Center. He also served as special 
counsel to the Senate Whitewater Committee and to Senator 
Domenici during the impeachment trial of President Clinton.
    I welcome you, sir, but I would ask that you limit your 
oral remarks, if you could, to five minutes so that we can make 
sure we have time to get to the next panel, in light of the 
problem with the vote interrupting us for some time. I 
appreciate your being here, and certainly, without objection, 
your full written statement will be placed in the record.
    Mr. Dinh?

 STATEMENT OF VIET D. DINH, ASSISTANT ATTORNEY GENERAL, OFFICE 
     OF LEGAL POLICY, UNITED STATES DEPARTMENT OF JUSTICE, 
                        WASHINGTON, D.C.

    Mr. Dinh. Thank you very much, Senator, members of the 
Committee, and I thank you for putting the full statement in 
the record. Let me say first that it is not an inconvenience 
for me to be here. Rather, it is an honor, and thank you for 
having me here to answer the questions that the Committee has 
and continues to have and it is a great opportunity to answer 
some of these questions.
    Your opening statement was quite moving, and so if I may, I 
will enter my written statement into the record and just very 
briefly touch upon the theme that you started with your opening 
statement about the nature of liberty in America. It is a 
question that has revolved in my mind since September 11, and 
more honestly, September 12, because September 11 was a day of 
numbness for me.
    But on September 12, I began to ask the question that I 
think most Americans have started asking themselves in this 
period also. That is, why? Why is it that these zealots are 
willing to give up their own lives in order to take the lives 
of thousands of innocent Americans and freedom-loving people 
around the world in that horrendous attack of September 11? Is 
it because we are somehow better than the people of the world? 
I do not think so.
    Americans--look around this room--Americans are the people 
of the world, as you say. The inscription at the base of the 
Statue of Liberty, it says, ``Give me your tired, your poor, 
your huddled masses.'' It does not say, give me your highest 
SAT. It does not say, give me your best and brightest. It says, 
give me your lowest. Give me the ordinary people of the world 
and I will promise you something special. I will promise you 
liberty. I will promise you freedom. and with that liberty, 
with that freedom, America lets the ordinary people of the 
world do their ordinary things but achieve extraordinary things 
as Americans.
    So as we go forward in responding to the threat of 
terrorism in the future and responding to the attacks of 
September 11, we are very mindful that we would not sacrifice 
these values of freedom and liberty and institutions that 
safeguard this freedom. At the same time, however, America is 
asking us to deliver to her people a different kind of freedom, 
freedom from fear, for without the safety of their persons and 
the security of their nation, Americans would not be able to go 
about doing those ordinary things that make America an 
extraordinary nation.
    And as we go forward in this process since September 11 and 
continue to prosecute this war on terror, we have tried and we 
have committed to preserving this balance in order to defend 
freedom through law, which is the work, after all, of the 
Department of Justice.
    I will speak very briefly to three areas that are of 
interest to this Committee. First, with respect to the 
detentions, as of last evening, there are 608 persons in 
Federal custody on criminal or immigration charges growing out 
of our investigation into the September 11 attacks. Of that 
total, 55 are being held on Federal criminal charges. The 
remaining 553 are being detained on immigration-related 
charges. The Department has charged a total of 105 persons for 
violation of criminal law. Some of those indictments or 
complaints have been filed under seal by order of court. The 
names and charges against all others have been publicly 
released.
    Every one of these detentions, let me assure you, is fully 
consistent with established constitutional and statutory 
authority. Each of the 608 persons detained has been charged 
with a violation of either immigration law or criminal law or 
is the subject of a material witness warrant issued by a court.
    Every one of these individuals has a right of access to 
counsel. In criminal cases and in cases of material witnesses, 
of course, the person has a right to a lawyer at government 
expense if he or she cannot afford one. Persons detained on 
immigration violations have a right to access to counsel, and 
the INS provides each person with information about available 
pro bono representation.
    Every person detained has a right to make phone calls to 
family members and attorneys. Under INS procedures, once they 
get into custody, aliens are given a copy of the Detainee 
Handbook, which details their rights and responsibilities, 
including their living conditions, clothing, visitation, and 
access to legal materials. In addition, every alien is given a 
comprehensive medical assessment. Detainees are informed of 
their right to communicate with their nation's consular or 
diplomatic officers, and for some countries, the INS will 
notify those officials that one of their nationals has been 
arrested or detained. Aliens are permitted access to 
telephones.
    Finally, immigration judges preside over legal proceedings 
involving aliens and aliens have a right to appeal any adverse 
decisions, first to the Board of Immigration Appeals, and then 
to the Federal Court.
    Second, let me address the Justice Department's plan to 
conduct voluntary interviews of individuals who may have 
information relating to terrorist activity. On November 9, the 
Attorney General directed all United States Attorneys and 
members of the Joint Federal and State Anti-Terrorism Task 
Forces, the ATTFs, to meet with certain non-citizens in their 
jurisdiction. The Deputy Attorney General, Larry Thompson, 
issued a memorandum outlining the procedures and questions to 
be asked during those interviews.
    We seek to interview those who we believe may have 
information that is helpful to the investigation or to 
disrupting ongoing terrorist activity. The names were compiled 
using common sense criteria that take into account the manner 
in which al Qaeda has traditionally operated, according to our 
intelligence sources.
    Thus, for example, the list includes individuals who 
entered the United States with a passport from a foreign 
country in which al Qaeda has operated or recruited, who 
entered the United States after January 1, 2000, and who are 
males between the ages of 18 and 33.
    The President and the Attorney General continually has 
emphasized that our war on terrorism will be fought not just by 
our soldiers abroad, but also by civilians here at home. Last 
week, the Attorney General announced a new plan to enable our 
nation's guests to play a crucial part in this ongoing 
campaign. Non-citizens are being asked on a purely voluntary 
basis--
    Senator Feingold. Mr. Dinh, I am going to have to ask you 
to conclude.
    Mr. Dinh. I will. Let me just describe this one particular 
program and I will conclude--on a purely voluntary basis to 
come forward with useful and reliable information about persons 
who have committed or are about to commit terrorist attacks. 
Under this Cooperators' Program, aliens may then be eligible to 
receive S visa and other immigration status adjustments in 
order to facilitate their stay in this country and/or help us 
with our continuing fight, and with that, I would love to 
answer any questions.
    Senator Feingold. Thank you, Mr. Dinh, and, of course, your 
full statement will be placed in the record.
    [The prepared statement of Mr. Dinh follows:]

Statement of Viet D. Dinh, Assistant Attorney General, Office of Legal 
                   Policy, U.S. Department of Justice

    Good afternoon, Mr. Chairman and Members of the Committee. Thank 
you for the opportunity to testify today on the Department of Justice's 
response to the terrorist attacks of September 11 and our continuing 
efforts to prevent and disrupt future terrorist activity.
    September 11 was a wake-up call to America and, indeed, to freedom-
loving people around the world. To ensure the safety of our citizens 
and the security of our nation against the threat of terrorism, the 
Department has undertaken a fundamental redefinition of our mission. 
The enemy we confront is a multinational network of evil that is 
fanatically committed to the slaughter of innocents. Unlike enemies 
that we have faced in past wars, this enemy operates cravenly, in 
disguise. It may operate through so-called ``sleeper'' cells, sending 
terrorist agents into potential target areas, where they may assume 
outwardly normal identities, waiting months, sometimes years, before 
springing into action to carry out or assist terrorist attacks. And 
unlike ordinary criminals the Department has investigated and 
prosecuted in the past, terrorists are willing to give up their own 
lives to take the lives of thousands of innocent citizens. We cannot 
wait for them to execute their plans; the death toll is too high; the 
consequences are too great.
    To respond to this threat of terrorism, the Department has pursued 
an aggressive and systematic campaign that utilizes all information 
available, all authorized investigative techniques, and all the legal 
authorities at our disposal. The overriding goal of this campaign is to 
prevent and disrupt terrorist activity by questioning, investigating, 
and arresting those who threaten our national security. In doing so, we 
take care to discharge fully our responsibility to uphold the laws and 
Constitution of the United States. All investigative techniques we 
employ are legally permissible under applicable constitutional, 
statutory and regulatory standards. As the President and the Attorney 
General have repeatedly stated, we will not permit, and we have not 
permitted, our values to fall victim to the terrorist attacks of 
September 11.
    Before responding to your questions, I will speak briefly to three 
areas that are of interest to this committee. First, the Department's 
detention of individuals since September 11; second, the directive that 
our Anti-Terrorism Task Forces conduct voluntary interviews of 
individuals who may have information relating to our investigation; and 
finally, the Bureau of Prison's regulation to permit the monitoring of 
communications between a limited class of detainees and their lawyers, 
after providing notice to the detainees.
    With respect to detentions, as of Monday, December 3, there are 608 
persons in federal custody on criminal or immigration charges growing 
out of our investigation into the September 11 attacks. Of that total, 
55 currently are being held on federal criminal charges; the remaining 
553 are being detained on immigration-related charges. The Department 
has charged a total of 105 persons for violations of federal criminal 
law. Some of those indictments or complaints have been filed under seal 
by order of court. The names and charges against all others have been 
publicly released. Every one of these detentions is fully consistent 
with established constitutional and statutory authority. Each of the 
608 persons detained has been charged with a violation of either 
immigration law or criminal law, or is the subject of a material 
witness warrant issued by a court.
    Every one of these individuals has a right to access to counsel. In 
the criminal cases and in the case of material witnesses, the person 
has the right to a lawyer at government expense if the he or she cannot 
afford one. Persons detained on immigration violations have a right to 
access to counsel, and the Immigration and Naturalization Service 
provides each person with information about available pro bono 
representation. Every person detained, whether on criminal or 
immigration charges or as a material witness, has the right to make 
phone calls to family members and attorneys. No one is being denied 
their right to talk to their attorneys.
    Under the Immigration and Naturalization Service's generally 
applicable procedures, detainees enjoy a variety of rights, both 
procedural and substantive. Once taken into custody, aliens are given a 
copy of the ``Detainee Handbook,'' which details their rights and 
responsibilities, including their living conditions, clothing, 
visitation, and access to legal materials. In addition, every alien is 
given a comprehensive medical assessment, including dental and mental-
health screenings. Aliens are informed of their right to communicate 
with their nation's consular or diplomatic officers, and the INS will 
notify those officials that one of their nationals has been arrested or 
detained. Aliens are permitted access to telephones--which they may use 
to contact their family members or attorneys--during normal waking 
hours. Finally, Immigration Judges preside over legal proceedings 
involving aliens, and aliens have the right to appeal any adverse 
decision, first to the Board of Immigration Appeals, and then to the 
federal courts.
    Second, let me address the Justice Department's plan to conduct 
voluntary interviews of individuals who may have information relating 
to terrorist activity. On November 9, the Attorney General directed all 
United States Attorneys and members of the joint federal and state 
Anti-Terrorism Task Forces, or ``ATTFs'', to meet with certain 
noncitizens in their jurisdictions, and the Deputy Attorney General 
issued a memorandum outlining the procedures and questions to be asked 
during those interviews.
    The names of approximately 5000 individuals that were sent to the 
ATTFs as part of this effort are those who we believe may have 
information that is helpful to the investigation or to disrupting 
ongoing terrorist activity. The names were compiled using common-sense 
criteria that take into account the manner, according to our 
intelligence sources, in which Al Qaida has traditionally operated. 
Thus, for example, the list includes individuals who entered the United 
States with a passport from a foreign country in which Al Qaida has 
operated or recruited; who entered the United States after January 1, 
2000; and who are males between the ages of 18 and 33.
    The President and Attorney General continually have emphasized that 
our war on terrorism will be fought not just by our soldiers abroad, 
but also by civilians here at home. Last week, the Attorney General 
announced a new plan to enable our nation's guests to play a part in 
this campaign. Noncitizens are being asked, on a purely voluntary 
basis, to come forward with useful and reliable information about 
persons who have committed, or who are about to commit, terrorist 
attacks. Those who do so will qualify for the Responsible Cooperators 
Program. They may receive S visas (or deferred action status) that will 
allow them to remain in the United States for a period of time. Aliens 
who are granted S visas may later apply to become permanent residents 
and, ultimately, American citizens. The Responsible Cooperators Program 
enables us to extend America's promise of freedom to those who help us 
protect that promise.
    Third, the Bureau of Prisons on October 31 promulgated a regulation 
permitting the monitoring of attorney-client communications in very 
limited circumstances. Since 1996, BOP regulations have subjected a 
very small group of the most dangerous federal detainees to ``special 
administrative measures,'' if the Attorney General determines that 
unrestricted communication with these detainees could result in death 
or serious bodily harm to others. Those measures include placing a 
detainee in administrative detention, limiting or monitoring his 
correspondence and telephone calls, restricting his opportunity to 
receive visitors, and limiting his access to members of the news media. 
The pre-existing regulations cut off all channels of communication 
through which detainees could plan or foment acts of terrorism, except 
one: communications through their attorneys. The new regulation closes 
this loophole.
    This regulation permits the monitoring of attorney-client 
communications for these detainees only if the Attorney General, after 
having invoked the existing special administrative measures authority, 
makes the additional finding that reasonable suspicion exists that a 
particular detainee may use communications with attorneys to further or 
facilitate acts of terrorism. Only 12 of the approximately 158,000 
inmates in federal custody would be eligible for monitoring.
    In taking this action, the Department has included important 
procedural safeguards to protect the attorney-client privilege. First 
and foremost, the attorney and client will be notified in writing that 
their communication will be monitored pursuant to the regulation. 
Second, the regulation erects a ``firewall'' between the team 
monitoring the communications and the outside world, including persons 
involved with any ongoing prosecution of the client. Third, absent 
imminent violence or terrorism, the government will have to obtain 
court approval before any information from monitored communications is 
used for any purpose, including for investigative purposes. And fourth, 
no privileged information will be retained by the monitoring team; only 
information that is not privileged may be retained.
    The Justice Department has two objectives in the war on terrorism: 
to protect innocent American lives, and to safeguard the liberties for 
which America stands. We have enhanced our national security by 
immobilizing suspected terrorists before they are able to strike. And 
we have respected civil liberties by detaining, on an individualized 
basis, only those persons for whom we have legal authority to do so. 
Those whom we suspect of terrorist activities and who are in violation 
of the law will be prosecuted to the fullest extent with every resource 
at the Justice Department's disposal.
    Since the atrocities of September 11, the Department of Justice has 
worked hand-in-hand with members of this Committee in our common effort 
to protect innocent Americans from additional terrorist attacks. I 
thank you for this unprecedented cooperation, and we look forward to 
continuing our partnership. I would be happy to answer any questions 
that you may have.

    Senator Feingold. Without objection, I will submit for the 
record statements from Amnesty International, the Arab American 
Institute, and letters from Randall Hamud and Terry Feiertag, 
lawyers who represent individuals who have been detained in 
connection with the September 11 investigation who have also 
taken issue with the Attorney General's assertion that 
detainees have not been denied fundamental constitutional 
rights.
    At this point, I am going to turn to our ranking member of 
the full Committee, Senator Hatch, for his opening statement. I 
am going to withhold questions for Mr. Dinh. I plan to question 
the Attorney General on Thursday about these issues. Then we 
will recognize the Senators present here for a five-minute 
round, and then hopefully after the vote, proceed to the other 
panel. Senator Hatch?

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Thank you, Mr. Chairman. I want to thank you 
for holding another Department of Justice oversight hearing, 
this one on the detention of aliens in connection with the 
September 11 attacks. I also want to thank you for acceding to 
the Department's request that one of their officials be 
permitted to testify. While there is much about which we may 
disagree, there should be no question that a balanced and fair 
examination of the Department's actions requires the presence 
of a Departmental witness.
    This is the third oversight hearing this Committee has held 
in the past week and we have another scheduled with the 
Attorney General this Thursday. The topics I expect we will 
cover today were covered extensively last week and doubtless 
will be revisited yet again on Thursday. We are, of course, 
entitled to continue asking questions, but the legal analysis 
remains unassailable.
    As Assistant Attorney General Michael Chertoff explained 
last week, every person detained has been charged with a 
violation of either immigration law or criminal law or is being 
lawfully detained on a material witness warrant issued by a 
judge in connection with a grand jury investigation. Every one 
of these individuals has a right to counsel. Every person 
detained is able to make phone calls to family and attorneys. 
Nobody is being held incommunicado.
    To the extent that detainees are not being released on 
bond, it is because a judge has determined that they are likely 
to flee, will likely pose a danger to the community, or in the 
case of immigration detainees, are alleged to be deportable 
from the United States on the basis of criminal, including 
terrorist, activity.
    To the Department of Justice's credit, it understands its 
obligation to treat these detainees fairly and lawfully. Mr. 
Chertoff acknowledged last week that, ``It is not acceptable to 
have a situation where their attorney cannot get in touch with 
a detainee and that it is not the policy of the government to 
try to interfere with attorney-client communication. We want 
everybody to have access to their lawyers and we want to play 
by the rules.'' I take the Department at its word and expect 
that any problems will be promptly remedied.
    Mr. Chairman, not surprisingly, there is a growing concern 
among the public that these rapid-fire oversight hearings are 
aimed less at providing information and more at demonizing the 
administration and/or Attorney General for partisan purposes. I 
would like to believe that all of the criticisms the 
administration is receiving on these issues stem from a bona 
fide concern for civil liberties.
    But sometimes, I am afraid to say, it appears that this 
administration cannot take any action, however innocuous, 
without being second-guessed by pundits who fancy themselves 
armchair directors of the FBI. For example, I am surprised and 
saddened that some critics of the administration have seen fit 
to criticize the FBI's decision to seek voluntary interviews 
with individuals who have recently entered our country from 
countries that are known havens for terrorists. I cannot 
imagine a less-intrusive means of investigating these crimes 
than to ask people if they are willing to talk voluntarily with 
investigators. Yet, even this measured initiative has drawn, in 
my opinion, unwarranted criticism.
    The recent terrorist attacks on Israeli teenagers will, one 
hopes, serve as an urgent reminder of the terrorist threat we 
face. If more is needed, I urge everybody here to spend some 
time with last Sunday's Washington Post. This article describes 
in horrible detail, excruciating detail, the terrible injuries 
suffered by so many in the attack on the Pentagon. I cannot 
shake from my mind the picture of Louise Kurtz, who has 
undergone more than 30 operations since being horribly burned 
in that attack, but the Post did a very good job in showing the 
suffering of these people.
    Mr. Chairman, the fundamental obligation of government is 
to protect its citizens from such harm. It is the solemn duty 
of this Congress and the administration to do everything 
consistent with our constitutional freedoms to stop terrorists 
from ever again striking in this country. And as some of our 
witnesses will make clear, we face a real and present danger 
from terrorist cells in this country.
    With that in mind, I urge my colleagues to rethink the 
focus of our upcoming hearing with the Attorney General. Let us 
put aside any partisanship and focus on the people's business. 
Let us ask General Ashcroft what the American people really 
want to know. I think what they want to know is, are we doing 
everything we can to protect ourselves from terrorists? To me, 
that is the big question. Are we doing everything we can to 
protect ourselves from terrorists?
    Mr. Chairman, I have great fondness and regard for you and 
I know that you will conduct these hearings fairly and I also 
know that it is important that we get these matters on the 
record, and so you are doing the country a favor.
    But I am really concerned that we get about doing what we 
need to do to protect this country and worry a little bit more 
about that. I know you are as worried as I am, but let us just 
keep doing everything we can to support those who have this 
tremendous burden on their shoulders, not the least of whom is 
our Attorney General, whom we all know very, very well and who 
I think is giving a tremendous effort to make sure that our 
American public is protected.
    Thank you, Mr. Chairman.
    Senator Feingold. I thank the Senator from Utah. The 
Senator and I get along exceptionally well, considering the 
lack of correlation in our voting records.
    [Laughter.]
    Senator Feingold. I know that the Senator knows very--
    Senator Hatch. I am hoping. I am hoping.
    Senator Feingold. Keep hoping.
    [Laughter.]
    Senator Feingold. But I can tell you that I know that the 
Senator knows that the purpose of this hearing is not to 
demonize the Attorney General--
    Senator Hatch. I agree with that.
    Senator Feingold. --for partisan purposes, nor do I believe 
that that is the case with our chairman or the other members of 
the Committee who are genuinely concerned about what, at a 
minimum, people would have to admit are unprecedented 
proposals. Perhaps they are justified, but they certainly are 
in most cases unprecedented. So I just wanted to clarify that 
on the record.
    And second, with regard to the interviews of the 5,000 men 
proposed, even the police chiefs in places like Portland, 
Oregon, and Ann Arbor, Michigan, are very uncomfortable with 
the requests there because of their concern that it would 
amount to the kind of racial profiling that their departments 
have tried so hard to avoid.
    So I would simply add those items to the record and I would 
ask the ranking member if he would like a five-minute round 
with Mr. Dinh.
    Senator Hatch. Yes, if I could just ask one or two 
questions. The Attorney General has released the number, but 
not the names, of those detained on immigration violations from 
the investigation of the September 11 attacks. Now, would you 
elaborate on the reasons that these names have not been 
released?
    Mr. Dinh. Yes, Senator, and thank you for the opportunity 
to comment on that. The Executive Office of Immigration Review 
has discretion under 8 U.S.C. Section 3.27(c), I believe, under 
that regulatory provision, to close its proceedings for certain 
conditions, under certain criteria. In these 105 cases, the 
Executive Office has determined to, at the request of the 
Deputy Attorney General, to close those proceedings because of 
concerns about the security of the information and the privacy 
of the individuals involved.
    These are civil immigration charges and we are very, very 
cognizant that where a person is of interest to the 
investigation arising out of the September 11 attack, we will 
do everything in our power in order to detain these persons and 
deport them if they do not have a right in this country. But at 
the same time, we are cognizant not to create a black list of 
some sort that would unfairly taint them in this process in 
order for us to carry out our investigation. Independent of 
that, we have obviously strong law enforcement interests and 
security interests in maintaining the security of these 
proceedings.
    And so for all those reasons, we have made the 
determination that it would be inappropriate for us to release 
the names and charges with respect to these individuals.
    Senator Hatch. Thank you. In the written statement of one 
of the upcoming witnesses, he states that the recent regulation 
providing that an alien must be charged with an immigration 
violation within 48 hours after commencement of detention, 
except in the event of an emergency or other extraordinary 
circumstance, allows the Attorney General to hold an alien 
``for virtually any period of time that the jailer chooses with 
no recourse of explanation.''
    First of all, do you agree or disagree with that statement, 
and secondly, to your knowledge, has the government relied on 
this exception and what are the circumstances involved if it 
did?
    Mr. Dinh. No, sir, I do not agree either with the premise 
or the conclusion of the statement. As you know, the rule 
permits the INS to make a determination within 48 hours with 
exceptions for exceptional circumstances. I believe those 
exceptional circumstances include a massive influx within a 
particular district so that the determination cannot be made 
within that time or the transfer between the offices.
    I believe that some exceptions have been made. I do not 
know the exact number and magnitude of those exceptions, but I 
do believe that they are the exception and not the rule, that 
people are charged outside of the 48 hours. But in any event, 
it is not an unlimited exception. It has to be within a 
reasonable period of time and we interpret that to be as a 
matter of days. And in any event, any person under detention, 
for whatever reason, under United States detention, always has 
the right of habeas corpus to challenge that detention.
    Senator Hatch. Now, the Attorney General recently 
promulgated a regulation providing for the automatic stay of an 
immigration judge's order releasing an alien on bond in any 
case in which the INS initially either opposed bond altogether 
or set a bond of $10,000 or more. Now, what concerns with the 
adjudicative process prompted this regulation?
    Mr. Dinh. Yes, sir. There is a very specific operational 
problem that the INS faced and the Department faced immediately 
after the September 11 attacks. That is, where a person is 
determined to have bond above $10,000, under the normal 
criteria of danger to the community or a flight risk while out 
of detention, and that decision, that bond determination is 
reversed by an immigration judge, there is no provision, there 
is no ability for the INS to keep that person in detention 
pending appeal of that decision except for if they are 
fortunate enough to do an emergency stay that is granted prior 
to the release, the posting of bond release of the person.
    This operational loophole, really, creates a significant 
problem for the Department because the person, if posting bond 
and released, will create, in our opinion, a danger and a 
threat to our society and a flight risk. We will have to go 
then out and reapprehend the person if the Board of Immigration 
Appeal determines that the bond was erroneously set by an 
immigration law judge.
    The rule was revised in order to accommodate this 
operational need. Let me assure you that it has been used in 
very limited circumstances. The automatic stay provision has 
only been invoked nine times since the rule was promulgated. 
Four of those times were for persons previously subject to the 
previous version of the rule, that is, those persons detained 
under Section 236(c) of the INA. For the other five cases, two 
of the automatic stays became moot because the order of 
deportation became final before their appeal of the bond was 
effected, and for the other three, for one reason or another, 
the INS dropped the automatic stay invocation and did not 
pursue the appeal of the bond.
    Senator Hatch. Thank you very much.
    Mr. Dinh. And each of the five, by the way, were terrorism 
related and were of interest to the 9/11 investigation.
    Senator Feingold. Thank you, Senator Hatch, and thank you, 
Mr. Dinh.
    The vote has started and so the most orderly thing I can 
think of is we will go over and vote and come right back and 
begin with the next panel.
    [Recess.]
    Senator Feingold. I will call the Committee back to order. 
Thanks for your patience.
    Before we begin with panel two, I would just like to take a 
moment to say a few things in response to Mr. Dinh. First, it 
is my understanding that the Chief Immigration Judge has closed 
immigration proceedings at the direction of the Attorney 
General, not on his own accord, and without objection, I would 
like to place in the record an e-mail from the Chief 
Immigration Judge to all immigration judges to make this clear.
    Let me also comment briefly on the new rules mentioned by 
Mr. Dinh, the new ability of the INS to obtain what amounts to 
an automatic stay of a decision to release a detainee set for 
bond for that release. Once again, the Department has made 
itself judge and jury. Prior to this ruling, all the Department 
had to do was file a motion for a stay and then convince the 
Board of Immigration Appeals that the detainee presents a 
flight risk or a danger to the community. Those requests for 
stay are routinely granted.
    But now, as I understand it, the stay is automatic, meaning 
that the INS itself makes the decision without any judicial 
review at all, and I think this is also troubling and I think 
perhaps the next panel may actually want to comment on it, as 
well.
    Our first witness on this panel is Ali Al-Maqtari. Mr. Al-
Maqtari was born in Yemen, studied in France, and came to the 
United States on a tourist visa last year with hopes of 
becoming a French teacher. On September 15, his life and dreams 
of freedom would change forever.
    Mr. Al-Maqtari arrived at Fort Campbell, Kentucky, to drop 
off his wife, American Tiffany Hughes, who was reporting to 
active duty with the U.S. Army. He was ordered out of his car, 
questioned, and then detained by the INS for two months at a 
detention center in Mason, Tennessee. He is now free on bond, 
but only after a harrowing experience with the American justice 
system.
    Mr. Al-Maqtari, I know this has been a very difficult last 
couple of months for you and your wife. I do appreciate your 
willingness to appear before us and to share your experience 
with the Senate and the American people. I thank you and I 
would like you to proceed.

      STATEMENT OF ALI AL-MAQTARI, NEW HAVEN, CONNECTICUT

    Mr. Al-Maqtari. Thank you very much. Senators, Mr. 
Chairman, I want to thank you very much for letting me testify 
before your Committee today. My name is Ali Al-Maqtari and I 
want to tell you in brief the story of how I was jailed by the 
INS for almost eight weeks. Thanks to the fairness of your 
immigration court and appeal system and the hard work of my 
wife, Tiffany, and my attorney, my story has a good ending. 
However, even though I did nothing wrong and cooperated with 
the INS, FBI, and Army in every way possible, I spent many 
weeks in difficult jail conditions, cut off from my wife, and 
my wife had to give up her Army career. I tell you my story in 
the hope that it will help other innocent people avoid the 
problems that I had.
    I came to the United States in June 2000 to visit my uncle, 
a U.S. citizen, in Brooklyn, New York. Before that, I was a 
student in France for a year. I graduated from the University 
of Sana'a in Yemen in 1997 with a degree in education. I was a 
French teacher in Yemen for two years and I was interested in 
getting more education from France and the U.S.
    I spent about a month in New York and I came to Connecticut 
to stay with a family friend, where I studied English at a 
local education center and helped in my uncle's store. I began 
to make inquiries into jobs as a French teacher, and since my 
English needed some improvement and I also wanted to get my 
master's degree in education, I enrolled at Southern 
Connecticut State University and I was accepted.
    In March 2001, I met my wife, Tiffany, in a French chat 
room on the Internet, and because we had so much in common, 
such as our shared religion, our studies in France, and our 
interests, we exchanged e-mail addresses and began a brief 
courtship over the telephone, in which we discovered we both 
wanted the same thing, a serious marriage with no dating, 
something necessary in our religion.
    We met each other's family, then we were married in June 
with a double ceremony, once by the Justice of the Peace and 
once in the mosque. In July, because of frustration with delay 
in her transfer from the National Guard in North Carolina to 
Connecticut, my wife suggested going into the regular Army. I 
agreed because I respect my wife's decision.
    We moved from Connecticut on September 15 and arrived at 
Fort Campbell, Kentucky, on September 15 with a big surprise. 
We were ordered out of my wife's car immediately for search, 
and until my release, we were never alone again. We were 
interrogated by the INS, FBI, and Army personnel from 4:00 p.m. 
until 4:00 a.m. The questioning was harsh. The INS investigator 
screamed at me that I would be deported and said I was lying 
about my application, that there was nothing about me in the 
computer, and that I would be deported. An FBI investigator, 
Bill Frank, also told me that the Springfield, Massachusetts, 
recruiting center where Tiffany had received her orders had 
been blown up by terrorists 20 minutes after we left it.
    The investigators said many, many times that our marriage 
was fake and that Tiffany must be married to me because I was 
abusing her. This accusation was totally false and very painful 
for me. They also made many negative remarks about Islam, 
things like Islam being the religion of beating and mistreating 
women. They asked us about the box cutters that we had among 
our things and we explained how I had used mine in the store 
and Tiffany had used hers when she worked in the shipping 
department of a nursery.
    The interrogators were so angry and were so wild in their 
accusations that they made me very frightened for what might 
happen to me. The interrogators also had letters that I had 
brought with me from my family and from a friend in Yemen, a 
woman who is a doctor. Those letters were in Arabic. The FBI 
agent insisted that these letters should show that I was 
somehow involved with a terrorist from Russia. This was crazy 
and false.
    The following Monday, my wife and I were given polygraph 
tests. I was arrested and put in jail in Nashville and my wife 
continued to be followed 24 hours a day by three military 
police. My wife and I were harassed by prison guards and Army 
personnel. My wife finally agreed to a discharge when her 
captain suggested it.
    I spent eight weeks in jail, far from my wife and family. 
She was not able to come to my hearing more than once because 
of the distance, and my lawyer had to fly from Connecticut to 
Tennessee, a State which is not even my home. I was kept in a 
segregated unit in jail with convicted criminals. I was treated 
as a guilty man by prison guards and immigration officers. Yet, 
the INS and FBI had no evidence against me. I was given one 15-
minute call per week.
    Finally, my bond was reduced from $50,000 to $10,000 and I 
was released, but I am concerned for other detainees like 
myself who have no means to pay this high bond.
    I hope you will do whatever you can to try and fix this 
problem. I have been back together with my wife for almost a 
month and our lives are healing, but I hope that you will 
protect other innocent people from the INS, and thank you very 
much.
    Senator Feingold. Mr. Al-Maqtari, thank you for your 
testimony. You have been through an awful lot in the last 
couple of months, and what is just so striking is that this is 
not some story from America's distant past. This just happened. 
The treatment you received is a shame, and even more shameful 
because we have reason to believe that your story is not 
unique. So it cannot be easy to appear here before the U.S. 
Congress to tell your story, but I want you to know that I 
think you have done your country a tremendous service by 
courageously coming forward to educate us and all Americans, so 
I just want to thank you again.
    Mr. Al-Maqtari. Thank you.
    [The prepared statement of Mr. Al-Maqtari follows:]

          Statement of Ali Al-Maqtari, New Haven, Connecticut

    Senators, Mr. Chairman, I want to thank you very much for letting 
me testify before your committee today. My name is Ali Al-Maqtari, and 
I want to tell you the story of how I was jailed by the INS for almost 
eight weeks. Thanks to the fairness of your immigration court and 
appeal system, and the hard work of my wife, Tiffinay, and my 
attorneys, my story has a good ending. However, even though I did 
nothing wrong, and cooperated with the INS, FBI, and Army in every way 
possible, I spent many weeks in harsh jail conditions, cut off from my 
wife, and my wife had to give up her army career. I tell you my story 
in the hope that it will help other innocent people avoid the problems 
that I had.
    I came to the United States in June 2000 for a long visit. I had 
just spent a year in France where I had completed a diploma as a 
teacher of French. Before going to France, I had worked as a French 
teacher at the Kuwait High School in Sana'a, Yemen for several years. I 
graduated from Sana'a University with a degree in French in June 1997.
    I have an uncle, who is a U.S. citizen, who lives in Brooklyn, New 
York, with his family. Visiting my uncle and his family was my first 
goal on my trip, but I also wanted to see what the United States was 
like and improve my English. I also hoped that perhaps I would have an 
opportunity to student teach or teach French. Gaining this experience 
in the United States would be something that would really help my 
career as a teacher in Yemen, because American education is highly-
respected in my country.
    I spent about a month in New York, visiting my Uncle's family and 
sightseeing. I liked it very much. My uncle has a close friend - so 
close to our family that I call him ``uncle'' too, even though he is 
not actually a member of our family, who lives in New Haven 
Connecticut. My uncle urged me strongly to visit him. I did, and the 
visit worked out very well. My ``uncle'' owned a small market and had a 
second apartment where several young men lived. It was easy for me to 
stay there without inconveniencing him or his family. I was able to 
attend English classes at a local adult education center, and I helped 
out at the market. Although I was not paid a salary, my ``uncle'' gave 
me money for my expenses, and I bought a computer that a customer of 
the store was selling. I discovered the internet, and this helped 
improve both my English and French. I was really enjoying my visit, and 
I wanted to extend it. A friendly woman, who was a mentor to many of 
the students at the adult education center, helped me by filling out 
the INS application to ask for a longer visit, and I sent it in to the 
INS in Vermont.
    In my first few months in New Haven, I also made contacts about 
student teaching or teaching French. I visited Kay Hill, the language 
coordinator of the New Haven Public Schools several times. She invited 
me to visit several schools in New Haven and gave me advice about 
taking the TOEFL test and studying here. Later on, in May or June 20011 
had my degrees evaluated and applied for admission to a language 
teaching program at Southern Connecticut State University in New Haven, 
which accepted me.
    However, the most important thing which happened to me in the 
United States, is that I met my wife, Tiffinay. We first met in a 
French language internet chat room in March or April 2000. Tiffinay 
also speaks French well. Like me, she has studied in France. We met 
only once in the chat room. We traded email addresses and began to 
exchange emails. Then we spoke by telephone.
    Because we speak French, we were able to communicate well. My wife 
had previously become a Muslim, and this was something else that we 
shared and was important to us. It continues to be now, as we share the 
holy month of Ramadan. In May 2001, Tiffinay invited me to visit her in 
North Carolina. I stayed with her and her parents, and invited her to 
visit me in Connecticut. She did this very quickly, and this showed me 
that her intentions were serious. We decided to get married and were 
married in Hamden, CT on June 1, 2001. Neither of us is in favor of 
extended social dating or living together before marriage. We wanted to 
marry and begin our life together. This is common for Muslims. My own 
parents met only a day before their wedding and have been happy for 
many years.
    After our marriage, Tiffinay moved to New Haven, and we rented our 
own apartment. At first, we thought that both of us would get jobs in 
New Haven, and Tiffinay would transfer from the North Carolina National 
Guard to the one in Connecticut. (I didn't really know exactly what the 
National Guard was. Tiffinay explained to me that it was like the part-
time army.) We went to an attorney to begin work on a marriage 
application to allow me to stay here. She told us to write to the INS 
to withdraw my request to extend my tourist visit, because I now 
planned to live here, not just to visit. We did this in early July.
    Because of delays with transferring Tiffinay's National Guard 
membership from North Carolina to Connecticut, she thought that it 
would be best if she enrolled in the full-time army. I agreed. This 
would mean living in another part of the country further away from my 
uncle and his family, but we are young, and I wanted to respect 
Tiffinay's decision. In August, we learned that Tiffinay would be in 
the army at Fort Campbell, Kentucky for a long time, for up to three 
years, starting in the middle of September, and we made plans to move 
there. We also filed our marriage application with the INS.
    On September 12, the local Army recruiting office called Tiffinay 
to let her know that the recruiting center in Springfield, 
Massachusetts where she was to pick up her final orders was closed, but 
that she should go there on September 13 to pick up her orders. When we 
went there, a sergeant at the recruiting center spoke to each of us 
separately about Tiffinay not wearing a hejab--the head scarf that many 
Muslim women wear. He was not unfriendly to either of us. We explained 
to him that Tiffinay would be wearing her uniform when she got to base, 
and soon after, we left. We did not think that anything was wrong, and 
we began the three day drive to Fort Campbell. We had ended our lease 
in New Haven, and we had all of our things packed in Tiffinay's car.
    When we arrived at Fort Campbell on September 15, Tiffany's car was 
stopped as soon as we got to the gate. We were separated and taken by 
officers to separate cars, and Tiffinay's car was emptied and searched 
three or four times by bomb-sniffing dogs.
    We were then taken to a building like a police station and 
separately interrogated by INS, Army, and FBI investigators--nine of 
them, I think--for more than twelve hours. Although we were separated, 
we had the same thought: to cooperate and answer all the questions they 
put to us. We did this although the questioning was very harsh. An INS 
agent screamed at me that I was illegal and could be deported 
immediately and he refused to listen to me when I told him about my 
applications. He said I was lying, that there was nothing about me in 
the computer, and that I would be deported. An FBI investigator, Bill 
Frank, also told me that the Springfield, Massachusetts recruiting 
center where Tiffinay had received her orders had been blown up by 
terrorists twenty minutes after we left it. (He told Tiffinay that 
there had been a bomb alert and that they found suspicious materials 
after we left.) They told her that we were suspicious because she was 
wearing a hejab and we had been speaking in a foreign language. French 
was the only language other than English that we had spoken together, 
but it must have made them nervous. The investigators said many, many 
times that our marriage was fake, and that Tiffinay must be married to 
me because I was abusing her. These accusations were totally false and 
very painful for me. They also made many negative remarks about Islam, 
things like Islam being the religion of beating and mistreating women. 
One acted out a fist hitting his hand, another said my wife had written 
a letter saying that I beat her, which I knew was false, and another 
insisted he would beat me all the way to my country because I 
mistreated my wife.
    They asked us about the box cutters that we had among our things, 
and we explained how I had used mine in the store, and Tiffinay had 
used hers when she worked in the shipping department of a nursery. The 
interrogators were so angry and wild in their accusations that they 
made me very frightened for what might happen to me. I learned later 
that Tiffinay was asked very similar questions. They also asked her if 
I spent large amounts of time on the internet and/or sent emails to 
terrorists. The interrogators also had the letters that I had brought 
with me from my a family, and from a friend in Yemen who is a doctor. 
These letters were in Arabic. They had a translator review them. He 
would read passages from the letters, and Bill Frank from the FBI 
insisted that the letters from my friend, the doctor, showed that she 
was my terrorist controller and that I was somehow involved with 
terrorists from Russia. This was silly and completely false, and I 
think they knew it, but at the same time it made me frightened because 
it seemed like they intended to accuse me of being involved with all 
the enemies of the United States.
    After this long interrogation, at about 4:00 am, they let us speak 
to each other in a room for a few minutes while they waited outside. We 
would not be alone again until November 8.
    Tiffinay was taken to a barracks where she was kept on a separate 
floor apart from the other women soldiers. From that time through 
Wednesday of the following week, she had three guards with her at all 
times, day and night, no matter what she did: even bathing and 
sleeping. All of these soldiers but one were men. After that she was 
not so mistreated. She was able to live with the other women, and she 
started to make friends with people. Still, she learned many negative 
things: that her photo had been distributed to the gates of the base 
before we arrived, that handmade posters with her photo were circulated 
around the base, and that many people had heard local television news 
broadcasts that said that I was a spy at Fort Campbell.
    I was taken to a hotel near the base, where I spent the weekend. 
People watched me from the parking lot.
    On Monday, September 18, both of us were taken were taken to the 
FBI office in Nashville, Tennessee, where they gave us polygraph tests. 
Although many of the questions were very strange (Have you ever 
embarrassed your family? Have you ever lied?. . .) we both answered 
them the best that we could. I was given deportation papers charging me 
with overstaying my visa. In what seemed like a positive thing, both 
the INS agent and Mr. Frank from the FBI said that they knew that I had 
told the truth and that I would probably be released the next day. I 
learned later that Tiffany had been told the same thing by army people, 
and the INS had given similar news to Attorney Maria Labaredas, who 
works with Attorney Boyle and who faxed copies of all my immigration 
papers to the INS. It was strange that these men, who had been wild and 
full of anger on Saturday, were now very calm.
    However, I was not released. Army people told Tiffinay that someone 
in the FBI had ordered that I not be released. I really do not know 
what happened. I was never spoken to again by the FBI, Army or INS, but 
I spent more than seven weeks in jail.
    At the jail near Nashville where I spent my first week in 
detention, one guard was very difficult. He kept saying that I was a 
terrorist and asking if I knew bin Laden. Then I was transferred to a 
jail in Mason, Tennessee, near Memphis. For my first two weeks there I 
was put with normal inmates, and the staff and other inmates treated me 
normally. However, it was upsetting to be in jail. I had never been 
arrested or had any kind of problem with the police anywhere. I did not 
want to be in jail, and was concerned that I had not been released 
quickly, once the INS and FBI had confirmed that I had told them the 
truth. I was also unable to speak to my wife, and was worried about 
her.
    I learned later that my wife was also very upset and concerned 
about what was happening to me. She was afraid that I would still be in 
jail when she was sent overseas. Also, she was concerned that some 
people seemed to distrust her because she was my wife and that many 
people at Fort Campbell seemed to believe the local television reports 
about me being a spy. When her officers suggested to her that she 
should request a discharge because of these problems, she agreed. She 
was granted an honorable discharge on Friday morning, September 28, and 
drove to the prison to visit me that afternoon.
    Things were harder for me after that. The prison moved me to a 
segregated unit with very serious criminals. They said that it was for 
my protection, but it made me feel very unsafe. The other prisoners had 
committed very serious crimes, and a guard there accused me of being a 
terrorist. He would whisper to these bad criminals, and they would 
threaten me and taunt me. One, who said that he had murdered someone 
and spent twenty-five years in jail threatened me in the shower. Others 
told me that I should confess, that I would never leave the jail, and 
things like that. Because I was in the segregated unit, I could only 
make one phone call a week. One of my attorneys, Michael Boyle, visited 
me twice and could call me before I had hearings. However, things were 
very frightening and very difficult. What was happening to me was 
totally different than how I thought America worked. As things seemed 
to get worse and worse, I became fearful of what would happen to me.
    My first bond hearing, early in October, was difficult. Tiffinay 
and I answered questions for a long time, and the INS presented no 
evidence. Still, the Judge set a very high bond, $50,000. The INS said 
that they would immediately try to stop even this high bond from taking 
effect, and they did. It was very hard to wait while the appeals board 
considered the case. My next bond hearings were also disappointing, as 
the Judge said that he was giving the INS a ``last chance'' to bring in 
more evidence. I was glad that he said he was thinking of a lower bond, 
but I was concerned that the INS seemed to get so many chances even 
when they had told me that Monday in Nashville that they knew that I 
had told the truth.
    My lawyers assured me that things would get better for me, that the 
Judge and the appeals board judges had to be very careful because of 
what happened on September 11, and would be very generous to the INS at 
first, but that they would not let the INS hold me for months without 
having any evidence.
    I am very grateful that in the end this is what happened. I am 
grateful that the appeals court judges were willing to make a decision 
based on the facts, not on fear. And I am grateful that the INS was 
worried that the Immigration Judge in Memphis would give me a low bond 
and decided to settle my case. Still, I spent almost eight weeks in 
jail, and my wife lost her army career because people were angry and 
nervous and I am from Yemen. My experience with the INS was very bad. 
They lied to me and locked me in jail for eight weeks with no evidence 
against me. I told them all there is to know about my life, my lawyer 
gave them many documents from Yemen and France to prove the truth of 
what I said, and my wife testified all about our marriage. I should not 
have been held for weeks. In the end, we had to agree to the $10,000 
bond that the INS offered because there is a new rule that could have 
let the INS keep me for many more weeks if the Judge had given me a 
lower bond than the INS wanted. Because Tiffinay had saved enough money 
to pay the bond, this was not a problem for me, but I am worried that 
there will be many other people whose wives do not have $10,000.
    I hope you will do whatever you can to try and fix these problems. 
I have been back together with my wife for almost a month, and our 
lives are healing, but I hope that you will protect other innocent 
people from the INS.

    Senator Feingold. I turn now to Michael Boyle. Mr. Boyle 
represents Mr. Al-Maqtari. Mr. Boyle has had a distinguished 
career as an immigration attorney and is an active member of 
the American Immigration Lawyers Association. I thank you for 
joining us and you may proceed.

STATEMENT OF MICHAEL J. BOYLE, LAW OFFICES OF MICHAEL J. BOYLE, 
NORTH HAVEN, CONNECTICUT, ON BEHALF OF THE AMERICAN IMMIGRATION 
                      LAWYERS ASSOCIATION

    Mr. Boyle. Thank you, Mr. Chairman and members of the 
Committee. I am really honored to have come here from 
Connecticut to be with you. I am here as Mr. Al-Maqtari's 
attorney and as a member of the American Immigration Lawyers 
Association.
    The Department of Justice is engaged in a critically 
important law enforcement effort and we support that effort. 
However, we are deeply concerned about the new policies and 
regulations that have been issued unilaterally in the next two 
months. These policies go way beyond the existing law and the 
parameters that Congress and the administration set in the USA 
PATRIOT Act last month. They have been instituted without 
debate, without notice, and without comment.
    Our Constitution was written to protect everyone in our 
country and these practices limit our freedoms in dangerous 
ways. Widespread arrests based on ethnic profiling, secret 
court hearings, long detention based on suspicion rather than 
on concrete evidence, and wiretapping conversations between 
attorneys and clients are not the American way. Yet, the 
Justice Department's new practices and regulations allow the 
local INS officers and Justice Department officials around the 
country to employ these tactics without accountability.
    Our democracy was founded on openness. Despite that history 
of openness, we have gotten very, very little information about 
who is detained, why they are detained, what are the charges 
against them, how many of them are being held without counsel, 
and the trend, unfortunately, is in the wrong direction.
    In October, the Attorney General issued a memo essentially 
encouraging Justice Department officials to deny Freedom of 
Information requests. Then this month, the Justice Department 
stopped revealing the full counts of who has been detained in 
connection with the post-September 11 investigation.
    We have had a similar problem in our immigration courts. We 
have never had before this consistent pattern of secret 
hearings. Hearings were closed only in asylum cases or battered 
spouse type cases. Suddenly, all kinds of cases are being held 
secretly and you cannot even learn the date and time of your 
own hearing. It makes it incredibly difficult for people to get 
lawyers and for their family members to understand how their 
case is going on and it is completely unprecedented. The 
regulation was never invoked in this way before. This 
information was always something you could dial up and get or 
look on the wall of the immigration court to get.
    Except for the ten or 15 people out of the 1,200 who the 
Justice Department has identified as having some connection to 
al Qaeda, it is wrong to hold secret hearings and it is wrong 
to withhold this type of information.
    Based on what we learned in our case and from talking to 
other immigration attorneys around the country, we are finding 
a pattern of excessive detention and disrespect for the rights 
of non-citizens. As in Mr. Al-Maqtari's case, he was arrested 
with an invalid warrant. He was not given any rights to 
counsel, none of these booklets and extensive protections you 
have heard about. And in virtually every other case we have 
heard, it has been the same--no warnings, no right to counsel, 
people are discouraged from getting attorneys, they are told 
they will get out quicker or their case will be resolved 
quicker if they do not.
    Countless cases, as you hear, over 500 are being designated 
as so-called special interest cases. Yet at the same time, the 
Department admits that only ten to 15 people have any 
connection to al Qaeda whatsoever, and most of those are 
sympathizers. There is a huge disconnect there.
    Our system is based on open court hearings. Our system is 
based on the press and the public being able to see what is 
going on, being able to understand. The black list excuse is 
simply that. It is not a black list to have an open hearing and 
perhaps be cleared in open court. The real problem is when, as 
in our case, family members cannot come to court. The only way 
we were able to have any witness to be with us in court was to 
have another local immigration attorney kindly sign on to come 
with us so that we would not have a complete star chamber 
proceeding.
    All over, there are these kinds of violations. Women are 
being given pat-down searches. Men are being told, how much 
torture can you take before you answer? There are all kinds of 
problems.
    Detention without charges--again, even the Assistant 
Attorney General who just testified does not know how many 
people have been held and for how long. It is one thing to say, 
we are reasonable people and we are going to be reasonable, but 
even the Assistant Attorney General cannot tell us who is being 
held and for how long, and this regulation facially has no 
limit either on how long you can be held or on what kinds of 
offenses.
    Even the most straightforward immigration offenses, and for 
example, in Mr. Al-Maqtari's case, simple overstay case while 
he was waiting for his marriage application to be processed. 
There are tens of thousands of people in that situation. I hope 
to God they are not all picked up, but it is certainly not a 
justification for the kind of experience that he has gone 
through. It goes way beyond the PATRIOT Act, it goes way beyond 
Zadvydas.
    I want to go on quickly to talk about, as I close, this new 
automatic stay regulation. In the end, the FBI said that they 
had cleared Mr. Al-Maqtari. The INS, however, would only agree 
to a $10,000 bond and the immigration judge, according to my 
co-counsel, was willing to grant us something like half that. 
We could not contest. We could not let the immigration go 
forward and enter that $5,000 order, because if we had, the INS 
would have invoked this automatic stay and he would still be in 
jail today and he would probably be in jail for three or four 
months more.
    It is wrong to let the INS win when it wins and win when it 
loses. It is wrong to use a phony operational problem. The idea 
that they would let people out is absurd. It takes hours to 
enter a bond, and the Board of Immigration Appeals has granted 
these stays almost immediately. There was no problem. This is a 
classic case, just like the thing about wiretapping attorneys. 
It is a problem that does not exist. It is fixing something 
that is not broken. The Board of Immigration Appeals granted 
the stays. They were easily available. Where there are rogue 
attorneys, the courts entered orders against them.
    So in conclusion, I want to thank you for the opportunity 
for coming here. I want to ask you to support the legitimate 
efforts of the Justice Department but to rein in these measures 
which are corrosive of our civil rights and freedoms.
    Senator Feingold. Thank you, Mr. Boyle, for your strong and 
informative testimony.
    [The prepared statement of Mr. Boyle follows:]

  Statement of Michael Boyle, American Immigration Lawyers Association

    Mr. Chairman and distinguished Members of the Subcommittee, I am 
honored to be here. My name is Michael Boyle. I appear here today as 
one of the attorneys for Ali Ai-Maqtari, whose compelling story you 
just heard. I also appear here today as a member of the American 
Immigration Lawyers Association, the national bar association of nearly 
8,000 attorneys and law professors who represent the entire spectrum of 
applicants for immigration benefits. I appreciate this opportunity to 
present our views on current U.S. immigration policy and practices 
related to the detention of noncitizens.
    The Department of Justice is engaged in a critically important law 
enforcement effort. AILA supports every effort to identify, prosecute 
and bring to justice the perpetrators of the heinous crimes of 
September 11. However, we are deeply concerned about a series of new 
policies and regulations issued unilaterally by the Department of 
Justice in the last few months. These policies go far beyond existing 
law and the parameters set by Congress and the Administration in the 
USA PATRIOT Act. These procedures have been instituted without notice 
and comment or public debate.
    Our Constitution was written to protect everyone in our country. 
The sweeping, new practices limit our freedoms in dangerous ways. 
Widespread arrest of noncitizens based on ethnic profiling, secret 
court hearings, long detention based on suspicion rather than concrete 
evidence, and wiretapping conversations between attorneys and clients 
are not the American way. Yet the Justice Department's new practices 
and regulations allow local INS and other Justice Department employees 
to employ them on a widespread basis, with little accountability to the 
American people. While every step must be taken to protect the American 
people from further terrorist acts, we need to preserve the basic 
rights and protections that make American democracy so unique and 
precious. Reining in excessive practices that corrode those basic 
rights is critical to the defense of our democracy.
    The five new practices that I will discuss damage our democracy and 
Constitution. First is the unprecedented level of secrecy under which 
detentions now occur. Second is the question of whether these detainees 
are being provided meaningful access to counsel. Third is a new 
regulation issued by the Justice Department that allows people to be 
detained for an unspecified period of time without even being charged 
with an immigration violation. Fourth, a new regulation has been issued 
that allows the government to eavesdrop on the conversations between 
lawyers and clients who are in federal custody, including people who 
have been detained but not charged with any crime... Finally, I will 
discuss a new regulation issued by the Justice Department that 
authorzes the continued detention of noncitizens who have been ordered 
released on bond by an immigration judge.
    The Veil Of Secrecy Over The Detention Of Noncitizens Violates 
             Fundamental Principles in Our Judicial System
    Our judicial system is founded on the principle of openness. Since 
the birth of this country we have recognized that only through an open 
process and an informed society can justice be achieved. As James 
Madison said, ``Knowledge will forever govern ignorance, and a people 
who mean to be their own governors must arm themselves with the power 
knowledge gives. A popular government without popular information or 
the means of acquiring it is but a prologue to a farce or a tragedy or 
perhaps both.''
    Despite our history of openness, one of the most disturbing 
developments in the government's current course of action has been the 
refusal to provide information about the more than 1,200 people who 
have been arrested since September 11. To illustrate, the Attorney 
General issued an internal memo, on October 12, which appears to 
encourage agency efforts to withhold information sought under the 
Freedom of Information Act (FOIA). The memo stated, ``When you 
carefully consider FOIA requests and decide to withhold records, in 
whole or in part, you can be assured that the Department of Justice 
will defend your decisions unless they lack a sound legal basis or 
present an unwarranted risk of adverse impact on the ability of other 
agencies to protect other important records.'' On November 8, after 
conflicting statements from the White House and the DOJ about the 
status of the detainees, the DOJ announced they would no longer release 
the number of detentions. Although the Justice Department recently 
released a list of the number of people who been charged with specific 
immigration violations and their countries of origin, questions remain 
unanswered. Who is being detained? Where are they being held? How many 
remain in INS custody without being charged? How many detainees remain 
unrepresented by counsel? These and other questions remain unanswered 
more than two months after the initial arrests and despite repeated 
inquiries and the filing of formal FOIA requests. This silence is 
unacceptable.
    A similarpattern of secrecy has arisen in immigration courts. Chief 
Immigration Judge Michael Creppy, on September 21, issued a memo 
instructing immigration judges to hold certain hearings separately, to 
close these hearings to the public, and to avoid discussing the case or 
otherwise disclosing any information about the case to anyone outside 
of the immigration court. These restrictions also apply to confirming 
or denying whether such a case is on the docket or scheduled for a 
hearing. These new policies have obviously made it very difficult for 
the lawyers representing these clients, and for the families that have 
been torn apart by this sweeping investigation. This new policy is also 
disturbing in that the Department of Justice is not required to provide 
any basis or explanation for why proceedings will be closed. Any case 
involving any immigration matter may be closed simply because the 
Department of Justice wants it to be closed.
    In testimony before this committee last week, the Justice 
Department defended its actions by asserting that ``nothing prevents 
any of these individuals from identifying themselves publicly or 
communicating with the public.'' This view abrogates the responsibility 
that the government has to disclose who it is holding.
    The government has given the following reasons for not disclosing 
information about detainees. First, that immigration law prohibits such 
disclosure. Second, that such disclosure would violate the privacy of 
the detainees. And three, that releasing the information would provide 
valuable information to Osama bin Laden. Let me address these concerns. 
There is nothing in immigration law to prohibit the disclosure of 
information about detainees. In fact, this information has been 
routinely made available in the past. In addition, detainees who have 
gone missing from their families and communities will surely not 
benefit from continued secrecy regarding where and why they are being 
held, and the conditions of their detention. Finally, senior law 
enforcement official have said that of the more than 1,200 reported 
detentions, only 10 to 15 are suspected as A1 Qaeda sympathizers, and 
that the government has yet to find evidence indicating that any of 
them had knowledge of the Sept. 11 attacks or acted as accomplices. 
However, the government continues to justify the refusal to provide 
information on grounds that the release of information would hann the 
investigation of the September 11 attacks. With the exception of the 
10-15 suspected terrorists, it makes little sense to continue refusing 
to release information about the detainees.
    The government's statement that the detainees themselves can 
publicize their detention also ignores the realities that these 
detainees face while imprisoned in the immigration system. In many 
cases, detainees have been limited to only one collect call per week 
and are denied visits from even close family members. This severely 
limits their ability to find an attorney to represent them. In all of 
the confusion and fear surrounding their detention, and in the face of 
isolation from friends and family, the idea that detainees are free to 
make their cases and conditions known to the outside world is simply 
not believable. Holding secret hearings compounds these problems. 
Secret hearings should not be the norm, and should not be granted 
without input from both parties. Open hearings, subject to the scrutiny 
of the public and press, are a fundamental American right.
 The Experience of Detainees Around the Country Raise Questions About 
      The Treatment of Other Detainees and Their Access to Counsel
    Based on reports from immigration attorneys and newspapers around 
the country, we are concerned that the cases you have heard today are 
not isolated, exceptional incidents, but are part of a pattern of 
excessive detention and disrespect for the rights of noncitizens. Here 
are some examples:


    In Ohio, 11 Israelis were arrested in the early morning hours of 
October 31 by federal law enforcement agents with guns drawn. They were 
charged with violating the terms of their tourist visas by selling toys 
and trinkets in shopping malls. Upon arrest, they reported that law 
enforcement officials told them that they did not need to contact 
counsel and that things would be more ``complicated'' and the detention 
would be ``longer'' if counsel was retained in their defense. None of 
the detainees were advised that they had the right to retain counsel or 
that any statements they made could be used in a ``subsequent 
proceeding'', as is required by regulation. At least one detainee was 
asked ``how much torture'' he could endure before ``telling the 
truth.'' Two of the female detainees were subjected to a degrading and 
humiliating ``pat down'' search by a male INS officer as a prerequisite 
to using the restroom.
    After nearly a week in detention, they were able to retain counsel 
who filed a motion for bond before an immigration judge. At the 
hearing, the government designated the case a ``special interest case'' 
claiming that the 11 were suspected of terrorist activity. Yet, in two 
separate bond hearings the government failed to produce any evidence in 
support of its assertions. Indeed, the only evidence produced to the 
Immigration Judge were documents reflecting possible unauthorized 
employment.
    After giving the INS every opportunity to present evidence of 
terrorist activity or a national security threat, including the option 
of an in-camera inspection, the immigration judge ordered bond in each 
case. She issued a written memorandum concluding that the government 
had produced no evidence of terrorist activity or danger to the 
community. However, despite the complete lack of evidence, the INS, 
under the direction of the FBI, immediately stayed the release of the 
11 through a newly amended INS regulation that effectively gives the 
Justice Department the power to stay custody, possibly for months. Two 
days later, after the press began to inquire into the situation, the 
FBI authorized INS to allow the release of nine of the eleven 
detainees. Two weeks later, after an Immigration Judge granted all 
eleven voluntary departure, the other two Israelis were released but 
ordered by the FBI to remain in the United States under a ``Safeguard 
Order.''
    To this day, the Department of Justice has not presented a 
scintilla of evidence justifying these detentions. All eleven had valid 
documents that were easily verifiable by the Israeli Consul. All had 
entered the US legally. All were within the respective periods of stay 
authorized by the Attorney General. And none had a criminal record of 
any kind anywhere in the world. The FBI continues to refuse two of the 
Israelis permission to depart for Israel.
    On September 13, Tarek Mohamed Fayad was arrested after stopping at 
a gas station near his home in Colton, California. The 34-year-old 
Fayad, an Egyptian dentist who came to the United States in 1998 to 
study, says four agents ordered him to lie on the ground, telling him 
INS ``thinks you're illegal.'' He was driven back to his home where he 
surrendered his passport and immigration papers. The officers searched 
his home and then arrested him on charges that he had violated the 
terms of his student visa.
    Mr. Fayad was originally held on $2,500 bond in a Los Angeles, 
California jail. Four days after his arrest, Mr. Fayad's American 
girlfriend and another friend, Mahmoud Bahr, came to post the bond. 
When they arrived, they were told that the bond had been rescinded. At 
the same time, Mr. Bahr was detained and questioned for eight hours.
    After September 17, he was transferred to unknown locations that 
were later determined to be a Lancaster facility and the Metropolitan 
Detention Center in Los Angeles were he was questioned by FBI agents. 
Around September 20, he was taken to New York and held in Brooklyn's 
Metropolitan Detention Center, where the FBI again questioned him. 
Guards there would frequently taunt him by calling him a terrorist. At 
night, they woke him every half an hour. Despite this treatment Mr. 
Fayad cooperated fully and even agreed to take a lie detector test.
    Back in California, the friends who tried to post bond became very 
concerned when they could no longer locate Mr. Fayad. They contacted 
the Egyptian embassy, but they were also unable to locate him (in fact, 
the Embassy did not learn of his whereabouts until November). Mr. 
Fayad's friends hired attorney Valerie CurtisDiop to find and represent 
Mr. Fayad. Ms. Curtis-Diop called INS, and the U.S. Marshall's office, 
but was unable to determine where he was being held. At some point, Ms. 
Curtis-Diop was given a federal register number for Mr. Fayad, and was 
told that he was being held in ``witness security.'' Even with that 
number, Ms. CurtisDiop could not confirm where he was being held. 
Despite information that Mr. Fayad was in the custody of the Bureau of 
Prisons, the Bureau refused to acknowledge to Ms. Curtis-Diop that they 
had Mr. Fayad. It would be more than a month before Ms. Curtis-Diop was 
able to locate her client. To this day, calls to the Bureau of Prisons 
result in a denial that Mr. Fayad is in their custody.
    When Mr. Fayad had originally asked about an attorney in late 
September, he was given a list of 16 agencies. It wasn't until early 
October that Mr. Fayad was allowed to make phone calls to try and 
secure counsel. Phone calls to attorneys are restricted and ``social'' 
calls are allowed only once a month. Only two of the agencies on the 
list provided to Mr. Fayad provide legal counseling to detainees, and 
one of those numbers was not working. It was not until October 18, on 
his first ``social call'', that Mr. Fayad learned that Ms. Curtis-Diop 
had been retained to represent him. It wasn't until sometime later that 
he was allowed to speak directly with his attorney.
    Mr. Fayad continues to be held in the Special Housing Unit, where 
he remains in a cell 24 hours a day - even meals are served in his cell 
and he has no access to newspapers, television or radio. It wasn't 
until the end of October that he was allowed to outside - at 7 am, for 
an hour. Despite representations to Ms. Curtis-Diop by the U.S. 
Attorney's office that the FBI in New York are no longer interested in 
Mr. Fayad, he continues to be held in custody. Immigration proceedings 
have been continued, but even if an immigration judge makes a final 
determination in his case he will remain in custody until FBI issues an 
official clearance.
    Having a right to counsel is meaningless unless those imprisoned in 
our immigration system are made aware of that right, and given the 
opportunity to actually exercise the right in a timely fashion. 
Furthermore, lawyers need to be able to contact their clients. 
Transporting detainees, sometimes across the country, without any 
opportunity for lawyers or family to determine where they are raises 
serious questions about whether detainees have access to counsel.
    In light of the refusal to provide information about who has been 
detained and where they are held, we remain concerned that many 
detainees are unrepresented by counsel. Anecdotal evidence from 
detainees who are represented by counsel, and lawyers who have been in 
immigration court and jails where detainees are held suggests that this 
is the case.
       Department of Justice Authorizes Detention Without Charges
    In testimony before this committee last week, the Justice 
Department stated that every person detained has been charged with a 
violation of either immigration law or criminal law. Yet we know from 
first hand accounts that this is not the case. An AILA member in New 
York currently represents three men who have been detained for as long 
as a month without being charged with any violations. Unfortunately, 
these are not isolated cases.
    In fact, these practices are part of a pattern reflected in a new 
regulation issued by the Attorney General on September 20. This new 
regulation purports to grant the INS authority to detain a noncitizen 
for an unspecified period of time ``in the event of an emergency or 
other extraordinary circumstances'' without so much as a determination 
as to whether to pursue proceedings. This exceptionally vague and open-
ended provision allows detention without reason for virtually any 
period of time that the jailer chooses, with no recourse or 
explanation. It, in effect, allows an individual to be held for long 
periods for no better reason than that someone in government thinks 
they look suspicious. What could be more offensive to our Constitution 
and to the democratic way of life that we seek to defend?
    It was only a few months ago that in the case of Zadvydas v. Davis 
(533 U.S. , 121 S.Ct. 2491 (2001)) that the U.S. Supreme Court found 
unconstitutional the practice of indefinitely detaining individuals who 
had been found to have violated the immigration laws and ordered 
removed. Yet here is a regulation that would indefinitely detain those 
who have not even been charged, much less been found removable. That 
the Zadvydas court imposes a reasonable time standard on detention of 
those found removable does not mean that the INS can adopt the same 
standard for those who have not even been charged. We owe the 
Constitution and our democracy better than that: we owe those under 
scrutiny the right not to be deprived of liberty without due process of 
law. Holding someone for an unspecified period without even deciding 
whether to charge him deprives him of liberty with no process of law.
    Congress also has spoken to the issue of how long an individual can 
be detained, and has done so even more recently than the Zadvydas 
decision. In the USA PATRIOT Act, Congress limited to seven days the 
time that an individual suspected of terrorism can be held without 
being charged with a crime or brought under removal proceedings. 
Allowing persons not necessarily even suspected of terrorism to be held 
for an undefined period is a clearly an end-run around the limitations 
that this Congress felt were necessary to secure the rights of the 
accused.
    Monitoring Communications Between Detainees and their Lawyers
    October 30, 2001, the Department of Justice authorized the 
monitoring of mail and other communications between lawyers and clients 
who are in federal custody, including people who have been detained but 
not charged with any crime. Despite government assertions that this 
broad authority will be applied in only a limited number of cases, 
nothing in the regulations prohibits it from being applied broadly. 
According to a summary published in the Federal Register, the 
monitoring will be conducted without a court order in any case the 
Attorney General certifies ``that reasonable suspicion exists to 
believe that an inmate may use communications with attorneys or their 
agents to facilitate acts of terrorism.'' Such certification will last 
for up to one year, and is not subject to judicial review. The new 
regulations also expand the definition of ``innate'' to cover anyone 
``held as witnesses, detainees or otherwise'' by INS agents, U.S. 
marshals or other federal authorities.
    Other than vague and general assertions that these new measures are 
necessary to protect the public, the Department of Justice has failed 
to demonstrate the need for these rules to protect against attorneys 
who may help to facilitate future or ongoing criminal activity. Under 
existing law, federal authorities can seek appropriate remedies under 
the wellestablished ``crime-fraud'' exception to attorney-client 
privilege. In a closed-door hearing before a federal judge, and in the 
absence of the offending attorney, the court can take immediate and 
effective actions, including ordering the monitoring of communications 
if necessary. Other options include removing the attorney from the case 
and prosecutors are always free to initiate criminal proceedings 
against attorneys where appropriate. These procedures ensure judicial 
review in the narrow band of cases where an attorney is abusing the 
attorney-client privilege, protect legitimate attorney-client 
communications, and ensure that authorities have the power to 
investigate and prevent criminal activity without obstruction.
 Detainees Will Remain in Custody Despite Being Ordered Released By An 
                           Immigration Judge
    On October 29, the Department of Justice implemented without 
comment new regulations that allow INS to obtain an automatic stay of 
an immigration judge's order releasing many immigration detainees from 
custody, whether on bond or without bond. In order to stop the decision 
of the impartial immigration judge from taking effect, the INS must 
simply complete a form (EOIR-43), indicating that the INS is 
considering appealing the judge's order. The INS then has 10 days to 
decide whether to appeal; meanwhile the judge's release order is stayed 
and the person cannot be released. If the INS appeals the immigration 
judge's order, the stay of the judge's order continues indefinitely, 
until the Board of Immigration Appeals decides the merits of the 
appeal. It is not unusual for Board of Immigration Appeals to take 
months to decide a bond appeal.
    The regulation fixes a system that is not broken. The Immigration 
Courts and the Board of Immigration Appeals administered the 
preexisting bond redetennination system in a cautious, careful manner. 
There were no incidents in the aftermath of September 11 where 
noncitizens were released on bond because the BIA did not respond 
timely to an INS request for a stay: The Board promptly granted stays 
on an interim basis as requested by the INS via brief, summary motions. 
It also granted the INS time to thoroughly brief its position, and even 
add evidence to the record as part of its appeal.
    Two examples of noncitizens who were held on very slim suspicions 
related to September 1 I suggest that if anything operation of the 
preexisting system was cautious in the extreme. Mr. Al-Maqtari's case 
is one. As you have just heard, there was no rush to judgement in his 
case. Despite the fact that the evidence against him was minimal, and 
the INS committed serious procedural violations in his case, arresting 
him with an invalid warrant, serving him an invalid charging document, 
and changing his bond status without notice, the Immigration Judge and 
the Board of Immigration Appeals gave the INS every opportunity to make 
its case. The Judge granted repeated continuances for the INS to come 
forward with evidence against Mr. Al-Maqtari. The Board of Immigration 
Appeals allowed the INS ample time to brief its case and let the INS 
submit its only documentary evidence, an FBI agent's affidavit, on 
appeal, after the evidentiary hearing had closed.
    In a similar case, Hady Hassan Omar, an Egyptian antiques dealer, 
was held from September 12 until November 23, 2001. The principal 
evidence against him was that he had made travel reservations on 
travelocity.com for a flight from Florida to Texas using a computer at 
a Kinko's branch in Boca Raton, Florida that two terrorists had 
previously used. On October 19, 2002, an Immigration Judge in Oakdale, 
Louisiana held a bond hearing and set a $5,000 bond in Mr. Omar's case. 
Despite the weakness of its case, the INS sought a stay of the 
Immigration Judge's order. The BIA granted a temporary stay that day. 
More than a month later, Mr. Omar was released on bond.
    In these cases, the government was given every courtesy, while 
innocent people spent weeks in detention even though the cases against 
them were very weak. This is not a system that needs to be tilted 
further in favor of the government. The preexisting system gave the INS 
a fair opportunity to present its case, and eventually, the system 
brought a fair result for the detained noncitizens. It should be 
restored.
    In the end, the INS dropped its insistence on detaining Mr. Al-
Maqtari because it had no evidence. Unfortunately, because of the new 
automatic stay regulation, even when it has no evidence, the government 
retains the upper hand. By invoking the automatic stay, the government 
can insure weeks - and usually months - of continued detention for a 
noncitzen regardless of how weak its case is.
    On November 6, 2001, the INS reported to the Immigration Court in 
Memphis that the FBI had ended its investigation of Mr. AI-Maqtari and 
offered to stipulate to a bond of $10,000. Mr. Al-Maqtari had little 
choice but to agree to the INS' offer. If the immigration judge had 
granted a lower bond, and the INS had filed the automatic stay form, he 
would have remained in jail for weeks and probably months more. 
Fortunately, Tiffany Al-Maqtari had $10,000 to pay her husband's bond. 
They accepted the INS' deal and he was freed. How many other 
noncitizens will be granted a fair bond by an Immigration Judge, but 
suffer months of unwarranted detention, in the kinds of degrading 
conditions that Mr. Al-Maqtari described, because of the automatic stay 
regulation?
                               Conclusion
    The rules that were in place prior to promulgation of these new 
regulations by the Justice Department provided procedures for the 
government to deal quickly and effectively with any exceptional 
problems that arose. An aberrant bond order could be stayed by filing a 
motion with the BIA, a wiretap order could be obtained against a rogue 
attorney, etc. These preexisting regulations were the rules that 
Congress understood and relied on when it passed the USA PATRIOT Act. 
The new rules erode the rights of noncitizens in the United States. As 
the examples I have discussed show, the problem is not theoretical, but 
real, with innocent people suffering unjust treatment daily. Most 
likely, many more people--those without attorneys or family members to 
press their case--are also suffering injustice.
    We must fact the difficult challenges ahead with this important 
understanding: we are a nation of immigrants, with a Constitution and 
due process rights that distinguish us from the rest of the world. Our 
diversity and our Constitution have given us our identity. They are 
central to who we are as a country, and help explain our success as a 
people and a nation. We need to protect those rights and reject the 
excessive measures instituted by the Department of Justice.
    Thank you again for this opportunity to testify, and I will be 
happy to answer any questions that you may have.

    Senator Feingold. Our next witness is Victoria Toensing. 
Ms. Toensing was a Deputy Assistant Attorney General in the 
Criminal Division during the Reagan administration, where she 
helped establish the Justice Department's Anti-Terrorism Unit 
and was responsible for investigating and indicting several 
high-profile terrorists. She is currently a partner at the 
Washington, D.C. law firm of diGenova and Toensing and she has 
had a very recognizable face from having appeared on many 
television news programs to discuss legal issues. I thank you 
for joining us and the floor is yours.

STATEMENT OF VICTORIA TOENSING, DIGENOVA AND TOENSING, LLP, AND 
 FORMER DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, 
            DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Ms. Toensing. Thank you, Mr. Chairman, and thank you very 
much for inviting me to testify. I assume the invitation was 
not only because, as a former Justice Department official, I 
supervise many international terrorism investigations, but also 
I am a student of the Senate. I was former Chief Counsel for 
Barry Goldwater for the Senate Intelligence Committee and I 
understand that relationship between law enforcement and 
intelligence issues, a relationship that really is at play in 
the aftermath of September 11.
    You have my complete statement, so I will spare you the 
reading of it, but I do want to make a few points, and one of 
them is an overall--two overall observations about what we are 
going through right now, and I say this as a veteran law 
enforcement lawyer.
    We need to appreciate the context in which we are 
discussing these initiatives. September 11, I hope we can all 
agree, was an illegal act of war. It was not a crime. And so 
when we are trying to decide responses off the battlefield, 
non-military responses to September 11, we do have to start 
thinking outside the box of the criminal justice system.
    Also, never before in my 15 years as a government lawyer or 
in my 13 years as a defense attorney have I seen prevention of 
the next act the primary goal as opposed to the investigation 
of the malfeasance that has occurred, and that is very 
different for me and I have a sensitivity to that, but I can 
see it from the Justice Department and I can see it from the 
conduct and for the need for different tools because we have 
never really fought that way in an investigation, if I may call 
it that, because it is an investigation to prevent as well as 
an investigation to find people responsible for September 11.
    I want to just touch on the military tribunal. I know you 
had a thorough hearing this morning. I enjoyed every minute of 
it. But I have been there. I have been when I know the foreign 
government has the tape and on the tape is the terrorist's 
words showing he was responsible for a terrorist act where a 
U.S. citizen was a victim, and yet we could not get the tapes. 
We should have prosecuted. We could not get the tape because 
the foreign government said, I am not giving it to you if it is 
going to become public in a U.S. trial, and I say in this 
situation of the terrorism war, I do not think we can let the 
guilty go free.
    Let me talk briefly about the detention of aliens, and 
there are a number of issues here which is probably better 
saved for the questions and answers, but I just want to touch 
on one, and that is I know that the ACLU will later argue that 
the names of the detainees should be released to the public, 
and I say that there are valid, not only just law enforcement 
reasons why they should not, but also privacy interests of the 
detainees.
    Every one of those detainees, as is Mr. Al-Maqtari, is free 
to come and announce that he or she has been detained, but I 
find it also of quite valid law enforcement interest. What if 
one of those detainees agrees to cooperate and then we want to 
release that detainee to go out and work back into a cell that 
he says is existent in the United States? The fact that it 
would be known that he would be detained and has been working 
or talking to the U.S. Government is a very valid law 
enforcement rationale for not releasing the names.
    One last point I would like to touch on is the monitoring 
of attorney-client conversations. When I was Deputy Assistant 
Attorney General, we monitored conversations of clients with 
their attorneys, but these were unconvicted targets in 
organized crime and their counsel. So as a matter of government 
policy, this is not new. That privilege has been pierced long 
ago when there is evidence that the lawyer may be furthering 
the crime. And so with the proper safeguards that I agree are 
necessary not to chill the attorney-client privilege when there 
is valid legal information being communicated, we need that 
tool, also, in our arsenal.
    Senator Feingold. Thank you very much, Ms. Toensing.
    [The prepared statement of Ms. Toensing follows:]

Victoria Toensing, Attorney, diGenova & Toensingformer Deputy Assistant 
                            Attorney General

    The carnage of September 11, 2001 was neither a crime nor an act of 
war. The attack on civilians was an illegal act of war intended to 
destroy our American society. As such, it is beyond the scope of our 
criminal laws. Just as important, our goal in responding to September 
11 cannot be limited to punishing the perpetrators. Foremost, the goal 
is prevention. The U.S. government must fulfill the nation's primary 
responsibility: protection of its citizens.
    Because of these considerations, the Department of Justice and 
White House have initiated three proposals: 1) the option to try non-
U.S. citizen belligerents before military tribunals, 2) detention of 
aliens for immigration violations and, for a reasonable time, to 
investigate suspicious facts of terrorism involvement, and 3) 
monitoring inmates' conversations with counsel when there is a basis to 
believe the inmate may use such communications to facilitate acts of 
terrorism. With proper safeguards, all are necessary tools in our 
response to the terrorism attacks and threats of future violence.
                           Military Tribunal
    The Supreme Court has upheld military tribunals for unlawful 
belligerents charged with acts of war. The constitutionality of 
tribunals is not at issue. The relevant discussion is whether the 
policy is wise. As a former Justice Department official who supervised 
international terrorism cases, I know the President must have that 
option.
    A federal trial in the United States would pose a security threat 
to the judge, prosecutors and witnesses, not to mention the jurors and 
the city in which the trial would be held. We do not have sufficient 
law enforcement personnel to provide these trial participants round-
the-clock armed protection, the type of security still in place for the 
federal judge who tried Sheik Rahman in 1993. A federal trial in the 
United States may preclude reliable evidence of guilt. When the 
evidence against a defendant is collected outside the United States 
(the usual situation for international terrorism investigations) 
serious problems arise for using it in a domestic trial. The American 
criminal justice system excludes evidence of guilt if law enforcement 
does not comply with certain procedures, a complicated system of rules 
not taught to the Rangers and Marines who could be locked in hand-to-
hand combat with the putative defendants. For sure, the intricate 
procedures of the American criminal justice system are not taught to 
the anti-Taliban fighters who may capture prisoners. Nor to the foreign 
intelligence agencies and police forces who will also collect evidence.
    At just what point is a soldier required to reach into his flak 
jacket and pull out a Miranda rights card? There are numerous 
evidentiary and procedural requirements of federal trials that 
demonstrate the folly of anyone thinking such trials should be used in 
wartime for belligerents. Below is a sampling of the legal questions 
facing the prosecutor:

        Does the Speedy Trial Act start running when the combatant is 
        captured?
        Should the Miranda rights be given in Arabic? Which dialect?
        If the belligerent wants a lawyer and cannot afford one should 
        she be sent at taxpayer expense to Kabul to confer with her 
        client?
        Does the requirement that an arrested person must appear before 
        a federal magistrate within several days to enter a plea apply?
        What happens when all the evidence showing guilt is not 
        admitted because it was collected by a foreign police force 
        using procedures not in compliance with United States 
        Constitutional standards?
        What happens when all the evidence showing guilt is not turned 
        over to the United States because a foreign intelligence agency 
        does not want to reveal sources and methods?
        For evidence to be used against the defendant, how does the 
        prosecution establish chain of custody, an impossible procedure 
        on the battlefield?
    In the aftermath of September 11, it is not necessarily true that 
an American jury would be the fairest deciders of guilt. If the 
judicial system thought Timothy McVeigh could not get a ``fair'' trial 
in Oklahoma, where in the United States is there an impartial jury for 
September 11?
                          Detention of Aliens
    Our federal investigators have been assigned a mission that 
requires Divine prescience: they are being asked to know when the 
Middle-Eastern Muslim with the box cutter and immigration violation is 
a potential murderer or a peaceful, loving husband.
    Law enforcement is charged with preventing future attacks, a task 
burdened with quick decisions and instant analysis. Law enforcement is 
also charged with investigating the crime, a task calling for thorough, 
thoughtful investigation. Sometimes the two tasks occur simultaneously 
with the same person as the subject. Unfortunately, there are times law 
enforcement gets it wrong as they did with Ali Al-Maqtari. But, 
ultimately the system worked and he was released.
    The responsibility of the U.S. government is to establish and 
follow procedures to ensure the detainees have access to counsel so 
that cases lacking evidence proceed swiftly through the process. The 
cure is not to release detainees back out on the streets of America 
when suspicious conduct remains unchecked. The solution is to make the 
process responsive so any irregularities can be brought to the 
attention of the Department of Justice or Congress, if the Department 
does not resolve the problem. All detainees charged with crimes should 
have counsel, paid for by U.S. taxpayers if appropriate. All detainees 
charged with immigration violations should have access to counsel and 
be provided lists of pro bono attorneys if they cannot afford one.
              Monitoring Inmate Conversation With Counsel
    Perhaps we could find points of agreement on this issue. I suggest 
the following:

        The attorney-client privilege was created as integral to the 
        Sixth Amendment right to counsel.
        The attorney-client privilege is not absolute.
        The attorney-client privilege protects only discussions about 
        legal matters.
        If an inmate uses his or her counsel to further a crime, 
        specifically an act of terrorism, there is no privilege for the 
        conversation.
        If the government has credible evidence an inmate is using his 
        or her lawyer to abet a terrorist plot it has the 
        responsibility to learn of the crime and must act to prevent 
        it.

    Government conduct should not chill an inmate's right to counsel 
for all matters legal.
    The problem is how to balance the government's responsibility to 
protect Americans from terrorism without chilling legitimate counsel 
conversations. The Attorney General established safeguards to protect 
privileged communication where, based on credible information, there is 
evidence the attorney-client relationship is being misused to further 
terrorism. Those safeguards are as follows:

        The inmate must be subject to SAM (special administrative 
        measures), which is a prior finding the inmate's 
        ``communications or contacts with persons could result in death 
        or serious bodily injury. . .or substantial damage to property 
        that'' includes ``risk of death or serious bodily injury. . . 
        .''
        The inmate must also be detained in a terrorism related case.
        The Attorney General must receive information from the head of 
        a federal law enforcement or intelligence agency that 
        reasonable suspicion exists to believe a particular detainee 
        may use communications to further or facilitate acts of 
        terrorism.
        The Attorney General must make a separate finding of reasonable 
        suspicion to believe the communications may be used in 
        furtherance or to facilitate terrorism.
        Before monitoring begins, the inmate and counsel must be given 
        notice of the monitoring.
        The monitoring personnel cannot be involved in the underlying 
        investigation.
        The monitoring personnel shall use procedures to minimize 
        hearing privileged conversations.
        Unless disclosure has been approved by a federal judge, the 
        monitoring personnel shall not disclose any information except 
        where violence is imminent.

    In addition to these guidelines, I suggest the following be 
considered:

        Upon notice of potential monitoring, the detainee could be 
        given the option to change counsel to one having a government 
        security clearance.
        Congress could pass legislation enabling a FISA like court (or, 
        without legislation, use the FISA court) to review the finding 
        of reasonable suspicion to believe the inmate may use 
        communications to further acts of terrorism. No matter what 
        judicial-type body is used, the standard should not be the more 
        onerous probable cause of a Title III wiretap.

    Senator Feingold. Now we turn to Gerry Goldstein. He is a 
highly respected criminal defense lawyer, past President of the 
National Association of Criminal Defense Lawyers and was named 
outstanding criminal defense attorney by the State Bar of Texas 
in 1991. Mr. Goldstein represents Dr. Al-Badr Al Hazmi, a 
radiologist in Texas who was detained in connection with the 
September 11 attack investigation. I thank you also for joining 
us and you may proceed.

 STATEMENT OF GERALD H. GOLDSTEIN, ESQ., GOLDSTEIN, GOLDSTEIN 
   AND HILLEY, SAN ANTONIO, TEXAS, ON BEHALF OF THE NATIONAL 
            ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

    Mr. Goldstein. Thank you, Mr. Chairman, distinguished 
members of the Committee.
    Let me begin by responding briefly to the able and eloquent 
colleague who spoke on the previous panel and described the 
inscription at the base of the Statue of Liberty. Perhaps in 
retrospect we should amend that inscription to, bring me your 
poor, your huddled masses, and we will jail them as illegal 
aliens, subject them to secret proceedings, and eavesdrop on 
their conversations with their lawyers.
    My concern in this process is the description that I keep 
hearing from the Department of Justice, lawyers who I have 
known and respect, that no one's right to counsel has been 
interfered with. On September 12, the day after these tragic 
events both in our country's capital and the City of New York, 
I was retained to represent Dr. Al Hazmi, who at some 5:00 a.m. 
in the morning--he is a radiologist in residency at the 
University of Texas Health Science Center. He was studying 
those early morning hours for his medical boards. They were two 
days hence. Federal agents entered his home, searched for some 
six hours, and took him into custody.
    Later that afternoon on September 12, he was allowed a 
brief telephone call to my office. He told me that he was in 
immigration custody and requested that I ascertain why he was 
being held. The phone was immediately taken by an INS special 
agent, who advised me that he could give me no other further 
information, including the whereabouts of where my client was 
being held, and referred me to a supervising agent.
    I then immediately began telephoning that supervising agent 
that afternoon and the next day. There is a letter which the 
Committee has as part of my testimony, which I appreciate and 
acknowledge has been made a part of the record, and expressed 
my concern about the whereabouts of my client and requested an 
opportunity to speak with my client, and at that time, that 
supervising agent advised me that he would be unable to give me 
any information about my client, the reasons for his detention 
or his whereabouts, and, in fact, referred me again to an 
attorney with the Immigration Service Trial Litigation Section.
    My client advises that he repeatedly requested an 
opportunity to speak with his counsel, to talk to his wife and 
call his wife, that those requests were denied. Rather than 
facilitating those requests, the request to speak with his 
counsel, in fact, the government agents, in this case, FBI 
agents, continued to interrogate my client, and I think all 
lawyers would agree, in clear violation of Edwards v. Arizona 
and Minnick v. Mississippi.
    I then hired an immigration lawyer, an able lawyer by the 
name of Bob Shivers, who is a member of Mr. Boyle's 
association, and both of us, Mr. Shivers and I, filed Form G-28 
notices of representation on behalf of Dr. Al Hazmi. So the 
government now had a letter and our formal notices of 
appearance.
    In the meantime, the immigration lawyer notified on 
September 14 the Director of Immigration Service for our 
district. He sent a letter to him detailing our efforts to find 
our client, locate his whereabouts, and consult with him, as he 
had requested.
    When I reached the supervising agent finally the next day, 
he advised me that he would be unable, again, to give me any 
information and I received a return call from the attorney with 
the Litigation Section. He advised, as well, that he could not 
speak to me about my client, could not give me any information 
with respect to his whereabouts or why he was being retained.
    Thereafter, the District Director of Immigration did call 
us back. He advised us that he, as well, could not give us any 
information about why our client was being detained, but 
informed us that by this time, our client had been, as he put 
it, removed from the jurisdiction.
    I then sent a letter to the appropriate Department of 
Justice officials, including the Assistant United States 
Attorney who I had been advised was assigned the case, again, 
detailing our efforts to speak with our client, our desire to 
locate his whereabouts, which we still did not know other than 
he had been taken out of our jurisdiction, and our need to 
consult with him.
    Some three days later, I was informed that my client had 
been taken by FBI agents by airplane from San Antonio, Texas, 
to the detention facility in Lower Manhattan in New York City. 
I then immediately retained a local attorney, another former 
President of the National Association of Criminal Defense 
Lawyers, in an attempt to contact my client. However, he was 
informed the following day when he went to the detention 
facility in Manhattan that, in fact, he would not be allowed to 
see my client because the court had appointed another attorney 
to represent my client, I might add, without my client's 
knowledge.
    What concerns me, in closing, is that the Department of 
Justice has denied that--by the way, four days later, on 
September 24, my client was cleared by the FBI and released. 
What concerns me is the statement that no detainees have been 
held incommunicado, suggesting that any interference with the 
right to counsel has been due to time constraints and 
administrative shortcomings.
    Dr. Al Hazmi was not someone who simply slipped through the 
bureaucratic cracks. He was someone whose lawyers had entered a 
formal notice of appearance and representation, whose lawyers 
had communicated in writing with the appropriate investigative 
agencies and the Department of Justice of their concerns, of 
their desire to locate and know the whereabouts of their 
client, of their interest in consulting and speaking with their 
client. But rather than facilitating these requests, the FBI 
sends us on a wild goose chase, as did the Immigration Service 
and the Department of Justice officials, while they continued 
their interrogation.
    I might add that by denying Dr. Al Hazmi access to his 
retained counsel, Federal law enforcement officials not only 
violated his rights and perhaps would have jeopardized a 
prosecution had he been guilty of something, but perhaps more 
important to them, they deprived themselves of valuable 
information and documents that we had that would have explained 
many of the concerns that they later expressed.
    Senator Feingold. Mr. Goldstein, I have to ask you to 
conclude.
    Mr. Goldstein. In essence, they prolonged the investigation 
and wasted valuable time at a time they had very little time to 
spare.
    Senator Feingold. I thank you very much for your testimony.
    [The prepared statement and attachments of Mr. Goldstein 
follow:]

  Statement of Gerald H. Goldstein, Attorney, National Association of 
              Criminal Defense Lawyers, San Antonio, Texas

    Gerald H. Goldstein, of San Antonio, Texas, is a Past President of 
the National Association of Criminal Defense Lawyers (NACDL) and its 
Texas affiliate. He graduated from Tulane University in 1965, and then 
attended the University of Texas School of Law. Since graduating in 
1968 from law school, he has dedicated his practice to the 
representation of those accused of criminal offenses. He is a certified 
Specialist in Criminal Law, and a Fellow in the American College and 
the International Academy of Trial Lawyers.
    His law firm, Goldstein, Goldstein & Hilley, devotes approximately 
15-20% of its time to pro bono work. He has served as counsel in 
numerous civil rights cases, many of which vindicated the rights of 
prisoners to be free from excessive (and sometimes fatal) force, 
inadequate medical care, and inhumane living conditions. He has also 
served as appellate counsel for death row inmates and has defended the 
First Amendment rights of farmers and religious organizations. In 
several important matters before the United States Supreme Court, he 
has served as counsel of record for the National Association of 
Criminal Defense Lawyers as amicus curiae.
    In addition to his practice, for the past twenty years he has 
served as adjunct professor of advanced criminal law at the University 
of Texas School of Law in Austin, Texas, and St. Mary's University 
School of Law in San Antonio, Texas. He is a member of the Board of 
Regents of the National Criminal Defense College and lectures 
frequently on criminal law and procedure at continuing legal education 
seminars throughout the United States.
    Mr. Chairman and Distinguished Members of the Committee:
    In the early morning hours of September 12, 2001, Dr. Al-Badr Al 
Hazmi, a fifth-year radiology resident at the University of Texas 
Health Science Center in San Antonio, Texas, was studying for his 
upcoming medical board exams, when federal law enforcement agents 
entered his home, searched the premises for some six hours, and took 
Dr. Al Hazmi into custody. Immigration authorities transported Dr. Al 
Hazmi to the nearby Comal County Jail.
    Later that afternoon, Dr. Al Hazmi was allowed a brief telephone 
call to my office, at which time he explained that he was being held by 
United States Immigration authorities and inquired as to the reasons 
for his detention. Almost immediately, an Immigration and 
Naturalization Agent took the telephone and told me that he could 
provide no information regarding the reason for my client's detention, 
nor his whereabouts; he then referred me to his ``supervisor.''
    After my numerous telephone calls to the supervising agent on 
September 12th and 13th went unanswered, I wrote a letter to the 
Immigration and Naturalization Service, seeking to ascertain the 
whereabouts of my client and requesting an opportunity to communicate 
with him. In no uncertain terms, my letter explained:
    I am concerned with regard to the status of [Dr.] Al Hazmi and am 
requesting that information regarding his status and provisions for my 
office to communicate with him be provided at your earliest 
convenience. . . .In light of your unavailability and my expressed 
concern regarding the need to communicate with [my client], I am 
copying this letter to the United States Attorney's Office in the hopes 
that they may help facilitate same. (See attached letter to INS Agent, 
dated September 13, 2001).
    Dr. Al Hazmi's repeated requests to consult with his attorney were 
ignored, as authorities continued to interrogate him. As he would later 
tell a reporter, ``Nobody explained to me anything, they just kept 
saying, `Later, later,'. . .I said, `I need to call my lawyer.' They 
said, `Later.' `I need to call my wife.' They said, `Later.' '' 
Macarena Hernandez, Prayers Answered, Dr. Al-Hazmi Details How Faith 
Aided Him During His Detention, San Antonio Express-News, Sept. 30, 
2001, at 1A.
    On September 13, 2001, my office retained an immigration attorney, 
and both counsel filed formal ``Notice[s] of Entry of Appearance as 
Attorney'' on INS Form G-28. (See attached Forms G-28, Notices of 
Appearance as Attorneys for attorneys Gerald H. Goldstein and Robert A. 
Shivers).
    When I was finally able to reach the ``supervising'' INS agent, on 
September 14, 2001, he advised that he too was unable to provide me 
with access to, or any information regarding my client, referring me 
instead to an attorney with the Immigration Services' Trial Litigation 
Unit.
    However, when I reached the Immigration Services' attorney, he 
advised that he could not speak to me about Dr. Al Hazmi and would not 
provide any information regarding the whereabouts of my client.
    On that same day, Mr. Shivers, the immigration attorney hired by 
our firm, sent a letter to the District Director of the Immigration 
Service, detailing counsels' repeated attempts to determine the 
whereabouts of our client, again requesting an opportunity to consult 
with Dr. Al Hazmi, and expressing his concern that ``misrepresentations 
were knowingly made to prevent our consulting with our client.'' (See 
attached letter to INS District Director, dated September 14, 2001).
    I then sent a letter to the acting United States Attorney for our 
district (copying the Assistant United States Attorney whom I had been 
advised was assigned the case), again attempting to ascertain the 
whereabouts of my client and making a ``formal demand'' for an 
opportunity to consult with him, thus:
    What is of particular concern to me is that despite prior notice to 
your office . . .of my client's desire to communicate with counsel and 
my attempts to locate and speak with him, my numerous calls to your 
offices have gone unanswered. A . . .trial counsel for INS did call me 
back only to advise that he could not talk to me or even advise me 
where my client was being detained. . . .After both Mr. Shivers and I 
filed our respective representation forms, and after Mr. Shivers spent 
the better part of the day attempting to locate and visit our client, 
[the] INS District Director . . .advised that our client had been 
placed on an airplane and removed from this `jurisdiction.' Even an 
individual being deported . . .is entitled to be represented by 
counsel, and a reasonable opportunity to consult with their counsel. 
Accordingly, I am hereby making another formal request for same. (See 
attached letter to U.S. Attorney, dated September 14, 2001).
    Earlier that day, Dr. Al Hazmi had been taken by FBI agents to New 
York, and held in a lower Manhattan detention facility, without an 
opportunity to contact his family as to his whereabouts or have any 
contact or consult with his attorney.
    The following sequence of events brought this Kafkaesque experience 
to a conclusion:
    On September 17, 2001, almost a week after my client had been taken 
into custody, I was advised that he was being detained by Federal 
authorities in New York City.
    On September 18, 2001, local New York counsel, hired by my office, 
was advised by the detention facility authorities that he would not be 
permitted to visit with Dr. Al Hazmi, because the court had appointed a 
different lawyer to represent him, without Dr. Al Hazmi's knowledge.
    On September 19, 2001, the local counsel hired by my office was 
permitted to visit with Dr. Al Hazmi at the Manhattan detention 
facility. On September 24, 2001, the FBI cleared and released Dr. Al 
Hazmi. He returned home to San Antonio the following day.
    The Department of Justice has denied that any of the detainees are 
being held incommunicado, suggesting that any interference with the 
right to counsel was due to time compression and administrative 
shortcomings. However, as the above scenario demonstrates, Dr. Al Hazmi 
was not someone who simply ``slipped through the cracks.'' Dr. Al Hazmi 
was represented by retained counsel who had filed formal notices of 
appearance on behalf of their client. Moreover, Dr. Al Hazmi's 
attorneys had notified the appropriate law enforcement agencies and the 
Department of Justice in writing, requesting the whereabouts of their 
client and expressing their desire to communicate with him. Despite 
these efforts--and despite Dr. Al Hazmi's repeated requests to consult 
with his counsel--Federal authorities stonewalled and continued to 
interrogate Dr. Al Hazmi in the absence of his counsel.
    By denying Dr. Al Hazmi access to his retained counsel, Federal law 
enforcement officials not only violated my clients rights, they 
deprived themselves of valuable information and documentation that 
would have eliminated many of their concerns. Their obstructionism 
prolonged the investigative process, wasting valuable time and precious 
resources.
    Dr. Al Hazmi's experience, when viewed in conjunction with the 
Department of Justice's and various law enforcement agencies' policies 
that interfere with attorney-client relations, suggests that this 
Committee's continued vigilance is warranted.\1\
---------------------------------------------------------------------------
    \1\ For example, eleven Israeli Citizens were presumably mistaken 
for Arabs and arrested in Ohio for working without authorization while 
visiting the United States on tourist visas. They were visiting this 
country after completing military service in Israel, where several had 
served in counter-terrorism units. In hours-long interrogation by the 
FBI, the Israelis were told that getting counsel involved would only 
complicate things and prolong their detention. Nine of the eleven were 
detained for more than two weeks and two were detained for a month. All 
have now been granted voluntary departure. John Mintz, 60 Israelis on 
Tourist Visas Detained Since Sept. 11, Washington Post, Nov. 23, 2001, 
at A22; Tamar Lewin & Alison Leigh Cowan, Dozens of Israeli Jews Are 
Being Kept in Federal Detention, New York Times, Nov. 21, 2001; NACDL 
interview with David Leopold, Esq., Cleveland, Ohio, counsel for the 
detainees.
    According to counsel for the detainees, during the course of the 
questioning at least one of the Israelis was asked ``how much torture 
can you stand before you tell the truth.'' The FBI also repeatedly 
asked the Israelis who sent them to the United States, whether they 
took any pictures of tall buildings and whether they had any Israeli 
intelligence connections or role. Each was also asked whether he or she 
was Muslim and whether they had visited a mosque in Toledo, Ohio. On 
the night of their arrests, the two women in the group were subjected 
to a humiliating ``pat down'' by a male INS officer as a prerequisite 
to their use of the restroom. The male INS officer claimed there were 
no longer any female officers present at INS Headquarters.
---------------------------------------------------------------------------
    The right to the assistance of counsel is the cornerstone of our 
adversarial system. One need only read Miranda v. Arizona, which 
recounts the widespread abuses that plagued our nation's interrogation 
rooms, to fully appreciate the risks that accompany any abrogation of 
the right to counsel. Miranda v. Arizona, 384 U.S. 436, 445-446 & n.7 
(1966) (providing examples of abuses and explaining that ``[t]he 
difficulty in depicting what transpires at such interrogations stems 
from the fact that in this country they have largely taken place 
incommunicado. '').
    These are among the concerns that mandate a right to representation 
not only when one is charged with a crime, but when one is subjected to 
custodial interrogation as well. It is well-established that once an 
individual in custody requests counsel, all further questioning must 
cease. Edwards v. Arizona, 451 U.S. 477 (1981); Minnick v. Mississippi, 
498 U.S. 146 (1990).
    The government's current dragnet-style investigation--characterized 
by ethnic profiling, selective enforcement of criminal and immigration 
laws, and pretrial detention for petty offenses--heightens the 
important role counsel plays from the very inception of custody.\2\
---------------------------------------------------------------------------
    \2\ A separate issue, and one that will be discussed more fully by 
other groups, is the extent to which these ethnically biased law 
enforcement tactics violate the Constitution and international laws, 
and tarnish our country's image. Singling out non-citizens for 
disparate treatment raises serious constitutional questions. See Yick 
Wo v. Hopkins, 118 U.S. 356 (1886). As the Supreme Court recently 
reaffirmed, the Fifth Amendment protects all non-citizens, even those 
here unlawfully, from deprivation of life, liberty or property without 
due process of law. Zadvydas v. Davis, 121 S. Ct. 2491, 2500-2501 
(2001). Policies which evade these protections not only erode minority 
and immigrant confidence in law enforcement, but undermine efforts to 
obtain adequate rights and protections for United States citizens 
traveling abroad.
---------------------------------------------------------------------------
    The interests protected by defense counsel go beyond the procedural 
protections guaranteed by the Bill of Rights. As recognized by the 
Innocence Protection Act, introduced by Chairman Leahy and supported by 
NACDL, without the effective representation of counsel, not only are 
innocent persons incarcerated or worse, but the guilty go free.
    The right to counsel also serves as an invaluable check on the 
illegitimate or indiscriminate use of government power. At no time is 
this right more important than when the government has acquired or 
claimed sweeping new powers. As Justice Brandeis said in his famous 
dissent, ``Experience should teach us to be most on our guard to 
protect liberty when the government's purposes are beneficent. . . .The 
greatest dangers to liberty lurk in insidious encroachment by men of 
zeal, well-meaning but without understanding.'' Olmstead v. United 
States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting).
    The USA PATRIOT Act gave broad new powers to federal law 
enforcement in the areas of eavesdropping and electronic surveillance, 
search and seizure, money laundering, criminal and civil asset 
forfeiture, information sharing (e.g., erosion of wiretap and grand 
jury secrecy rules), and detention of non-citizens. To determine 
whether these powers are being exercised in a responsible manner or 
whether they are being abused, and therefore need to be curtailed, 
public disclosure and oversight is essential. This accountability is 
enhanced by defense lawyers, many of whom have already brought their 
cases of abuse to public light.
    While my client has been completely absolved of any wrongdoing or 
connection to the acts of terrorism, I am still prohibited by court 
order from discussing certain aspects of the case. The extraordinary 
secrecy which has characterized the post-9/11 investigation has made it 
difficult for defense lawyers to discuss the facts surrounding their 
clients' detentions and impossible for the public to gain a complete 
picture of the government's tactics. Many of my colleagues who 
represent past or current detainees share my view that this veil of 
secrecy serves only to shield the government from criticism.
    Before concluding, I would like to discuss one more issue, which is 
closely related to the denial of access to counsel. On October 31, the 
Federal Bureau of Prisons published notice in the Federal Register of a 
new rule giving the Federal government authority to monitor 
communications between people in Federal custody and their lawyers if 
the Attorney General deems it ``reasonably necessary in order to deter 
future acts of violence of terrorism.'' Instead of obtaining a court 
order, the Attorney General need only certify that ``reasonable 
suspicion exists to believe that an inmate may use communications with 
attorneys or their agents to facilitate acts of terrorism.'' Until now, 
communications between inmates and their attorneys have been exempt 
from the usual monitoring of other calls and visits at the 100 federal 
prisons around the country.
    NACDL joins the American Bar Association and the vast majority of 
the legal profession in denouncing this new policy. The attorney-client 
privilege--``the oldest of the privileges for confidential 
communications known to the common law''--is the most sacred of all the 
legally recognized privileges. Its root purpose is ``to encourage full 
and frank communications between attorneys and their clients and 
thereby promote broader public interests in the observance of law and 
administration of justice. The privilege recognizes that sound legal 
advice or advocacy serves public ends and that such advice or advocacy 
depends upon the lawyer's being fully informed by the client.'' Upjohn 
Co. v. United States, 449 U.S. 383, 389 (1981).
    Based on my 32-years experience, defending persons from all walks 
of life, I can tell you that the crucial bond of trust between lawyer 
and client is hard-won and easily worn. This is particularly true when 
the attorney must bridge cultural, ethnic and language differences. Any 
interference from the government can permanently damage this 
relationship, threatening the defendant's representation and the 
public's interest in a just and fair outcome--not to mention the 
government's interest in obtaining cooperation in its investigations. 
In all likelihood, the mere specter of monitoring will complicate the 
already difficult endeavor of communicating effectively with 
incarcerated clients and will chill the delicate relationship between 
the accused and his advocate.
                                 * * *
    NACDL is the preeminent organization in the United States advancing 
the mission of the nation's criminal defense lawyers to ensure justice 
and due process for persons accused of crime or other misconduct. A 
professional bar association founded in 1958, NACDL's 11,000 direct 
members--and 80 state and local affiliate organizations with another 
28,000 members--include private criminal defense lawyers, public 
defenders, active-duty U.S. military defense counsel, law professors 
and judges committed to preserving fairness within America's criminal 
justice system.
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    Senator Feingold. Our next witness is Steven Emerson. Mr. 
Emerson is a researcher, journalist, and author focusing on 
terrorism and national security. He is also the Executive 
Director of The Investigative Project, which he started in 1995 
following the broadcast of his controversial documentary film, 
``Jihad in America.'' Prior to his career in journalism, Mr. 
Emerson was a professional staff member of the United States 
Senate Foreign Relations Committee. Mr. Emerson, thank you for 
joining us today and you may proceed.

     STATEMENT OF STEVEN EMERSON, EXECUTIVE DIRECTOR, THE 
            INVESTIGATIVE PROJECT, WASHINGTON, D.C.

    Mr. Emerson. Thank you very much. First of all, unlike 
everybody else on this panel, I am not a lawyer and neither do 
I play one on TV and I am not an expert in constitutional 
procedures. I am here only to provide some expertise about the 
degree of the terrorist threat that exists in the United States 
and the magnitude of the deception used by terrorists in 
planting themselves on American soil.
    Toward that end, I would like to be able to show an excerpt 
of the film, if it is okay with the chairman.
    Senator Feingold. You may use the allotted time as you 
wish, but I am not going to be able to extend it beyond the 
time I have allotted others.
    Mr. Emerson. Could I--
    Senator Feingold. You can show the video if you wish or 
testify.
    Mr. Emerson. Could I borrow the two minutes that Vicki 
Toensing did not use, so give me seven?
    Senator Feingold. You know, I am going to allow that and no 
more.
    Mr. Emerson. Can we show it, then, for three minutes, and 
then we will just cut it off.
    Senator Feingold. Sure.
    [A videotape was shown.]
    Senator Feingold. I think we are going to turn the tape 
off. I have already accorded you Ms. Toensing's two additional 
minutes, which is unusual procedure, and you have already 
received more time than all the other witnesses, as well as the 
representative of the Attorney General's office, but I am going 
to give you one more minute to explain the relevance of this to 
the detention of innocent people.
    Mr. Emerson. Thank you very much, and in any future 
testimony, I will gladly surrender my five minutes.
    The bottom line is that I want the American public and 
American policy makers to be aware of the nature of the 
unprecedented threat that exists on American soil and the 
extent to which our civil liberties have been exploited and 
used by militants who have carried out the worst attack on 
American soil in our history.
    Senator Feingold. Thank you.
    [The prepared statement and attachments of Mr. Emerson 
follow:]

  Statement of Steven Emerson, Executive Director, The Investigation 
                       Project, Washington, D.C.

                           Executive Summary
    On September 11, 2001, thousands of Americans were executed, most 
of them incinerated in the worst terrorist attack on American soil in 
the history of the United States. In the wake of this attack, the 
President of the United States has declared a war against the 
terrorists.
    In the war on terrorism, the military component poses the greatest 
strategic challenge and incurs the greatest potential for American 
casualties. But from the widest political perspective, the greatest 
challenge to the United States is the ability to recognize terrorist 
groups operating under false cover and veneer. Clearly, the success of 
Osama Bin Laden and his Al-Qaeda network has demonstrated, with 
murderous consequences, the ability of terrorist groups to hide under 
the facade of ``human rights,'' ``charitable'' and ``humanitarian'' 
cover. In addition, the ability of militant Islamic groups to hide 
under the protection of the larger non-violent and peaceful Islamic 
community has created a challenge for policymakers and officials, the 
likes of which has not been present before in American society. Sleeper 
cells that are believed to number in the tens, possibly hundreds, also 
constitute a dangerous threat to American society.
    As someone who has tracked and investigated the activities of 
militant Islamic fundamentalist networks for the past eight years, I am 
presenting in the following testimony the results of my recent 
investigations into the operations of terrorist networks in the United 
States.
    The basic findings of my investigative findings are summarized as 
follows:

        Osama Bin Laden has systematically recruited American passport 
        holders (like Wadih El Hage, now in prison for his role in the 
        1998 bombings of the United States embassies in Kenya and 
        Tanzania) in order to exploit the ease in which these 
        operatives can travel freely around the world as well as ship 
        American communications technology to the Bin Laden network.
        Bin Laden recruited a United States Special Forces sergeant who 
        then became the secret head of security for Bin Laden, while 
        serving as a triple agent, pretending to assist the FBI on 
        counterterrorism matters, even though he was serving as a top 
        aide to Bin Laden.
        Bin Laden has created front organizations serving under false 
        cover as groups with missions officially tethered to ``human 
        rights,'' ``charitable'' and ``humanitarian'' purposes. The 
        most striking and hitherto secret organization serving under 
        the false ``human rights'' facade was created by Bin Laden with 
        offices in London (England), Kansas City (Missouri) and Denver 
        (Colorado).
        Hamas has created a network of cover groups, ``humanitarian 
        organizations'' and commercial companies in the United States.
        Militant Islamic groups based and headquartered in the United 
        States have exhorted their followers, behind closed doors and 
        out of the earshot of the American public and media, to carry 
        out and raise funds for Jihad (in this sense, referring to the 
        concept of ``holy war '').
        Bin Laden has created, exploited and utilized a network of 
        established charitable conduits throughout the world, including 
        those headquartered in the United States.
        The Islamic Jihad terrorist group secretly set up its 
        headquarters in the United States to promote the Islamic Jihad 
        terrorist organization under the false cover of an academic 
        institute connected to the University of South Florida and a 
        ``humanitarian'' front group.

    The events of September 11th may well have been 
impossible without the support of individuals and organizations with 
ties to al-Qaeda, some of which are still operating in the United 
States today. Foreign terrorist organizations have utilized numerous 
modes of operation within the United States to facilitate their 
fundraising goals. Their infiltration into American society has 
occurred through the use of domestic universities, establishment of 
innocuous-sounding non-governmental organization entities, and through 
the utilization of ``front'' corporations whether they be domestic or 
foreign corporations with branches within the United States. The 
following are examples of these various modus operandi from actual 
situations within the United States.
    a. barakaat group of companies: funneling money for al-qaeda on 
                             american soil
    The intricate networks of supporters for terrorists exist on the 
organizational level, and the Bush administration has responded in 
kind. With each passing order by the President and the Treasury 
Department, the United States gets one step closer in ridding the 
terrorist element from our society. One such success is the 
governmental shutdown of the Al-Barakaat Group of Companies, a hawala-
type bank which allegedly funneled money for Osama bin Laden and his 
al-Qaeda. A large sum of funds used for terrorism was funneled directly 
from multiple branches of Barakaat in the U.S., right under our noses.
    Though based in the United Arab Emirates, al-Barakaat has an 
abundance of subsidiaries, scattered across the world, with nine of 
them in the United States,\1\ including branches in or near Seattle, 
Washington DC, Minneapolis, Columbus, and Boston. In particular, the 
Boston branch of Barakaat, Barakaat North America Inc., moved more than 
two million dollars through an American bank.\2\ The head of Barakaat, 
Ahmed Nur Ali Jumale, is said to have befriended Osama bin Laden during 
the Afghani war against the Soviets. In 1988, bin Laden donated a 
substantial amount of capital to Jumale, initiating the money flow 
between al-Qaeda and Barakaat.\3\ The London Daily Telegraph reported 
that the Barakaat bank was owned by Al-Ittihad al-Islamiya,\4\ which is 
on the list of terrorist organizations whose assets were frozen by 
Bush's first Executive Order. The Barakaat Bank of Somalia was also 
believed to be sending funds to Al-Ittihad al-Islamiya.\5\
---------------------------------------------------------------------------
    \1\ Ron Fournier. ``U.S. moves on Islamic money exchanges in 
Minnesota, elsewhere.'' The Associated Press. November 7, 2001.
    \2\ Ibid.
    \3\ David E. Sanger and Kurt Eichenwald. ``A NATION CHALLENGED: 
MONEY TRAIL; U.S. MOVES TO CUT 2 FINANCIAL LINKS FOR TERROR GROUP.'' 
The New York Times. ovember 8, 2001.
    \4\ ``Banks-to-terror conglomerate faces US wrath Somalia'' The 
Daily Telegraph (London). September 28, 2001.
    \5\ ``European Authorities Arrest 3 Allegedly Linked to Al Qaida'' 
Associated Press. October 10, 2001.
---------------------------------------------------------------------------
    Barakaat clearly flourished on American soil, incorporating in at 
least five states and working clandestinely as a benign money-transfer 
business. This organization could be one of many supposedly legitimate 
businesses that reside within the United States. It is therefore 
imperative that suspicious organizations be scrutinized to the fullest 
extent within which the law will allow. Cutting off the money flow to 
terrorist organizations and their supporters is an integral part of the 
war against terrorism. The war is now on our soil, and our enemy comes 
in many forms, including American businesses.
    While businesses must be examined thoroughly, we must not forget to 
look at the fundamental base of these organizations-people who actively 
support the terrorist agenda. Terrorists make up these organizations, 
and they have exploited the United States and its liberties in every 
way possible.
             b. u.s. passport holders: terrorist candidates
    American passport holders are recruited by terrorist groups 
enabling these operatives to move easier, risking less suspicion than 
their counterparts who hold foreign passports. There are documented 
cases of individuals traveling in and out of the United States on their 
American passports to deliver money, weapons and technical equipment 
such as satellite phones. This method of operation is used by various 
terrorist groups such as Hamas who used Muhammad Salah, an American 
naturalized citizen, to travel to Israel using his American passport to 
enter Palestinian territories carrying hundreds of thousands of 
dollars.
    The Al-Qaeda network used various U.S. passport holders such as 
Wadih El Hage, a 40-year-old naturalized American citizen from Lebanon 
who was convicted earlier this year for the 1998 embassy bombings in 
Kenya and Tanzania.
    FBI Special Agent Robert Miranda testified in 2001 at the trial of 
Wadih El Hage and others for their roles in the bombings of the United 
States embassies in Kenya and Tanzania regarding an interview he 
conducted with El-Hage on August 20, 1998:

        Q: Did he indicate to you why it was that he was asked to work 
        for Usama Bin Laden?
        Miranda: Yes. He said that because he had an American passport, 
        Usama Bin Laden wanted him to work for him because he could 
        travel more freely and buy things for Bin Laden.\6\

    \6\ United States v. Usama Bin Laden et al. trial transcript, March 
20, 2001.
---------------------------------------------------------------------------
    One of Wadih El-Hage's attorneys, Sam Schmidt, emphasized this 
point even further at the same trial by stating:

        The evidence will show that Wadih El Hage was hired by Bin 
        Laden to work in the Sudan, not only because he was well-
        educated, a hard worker, honest, responsible and a devout 
        Muslim, but, yes, he was an American free to travel throughout 
        the world on American passport.\7\

    \7\ United States v. Usama Bin Laden et al., trial transcrit, 
February 20, 2001.
---------------------------------------------------------------------------
    Wadih El-Hage served as Osama Bin Laden's personal secretary in the 
early 1990's. In 1994, Mr. El-Hage moved to Kenya to set up businesses 
for Bin Laden to be used as terrorist fronts. Mr. Hage's business card 
shows him as a director of Anhar Trading, a company with addresses in 
Hamburg, Germany, and Arlington, Texas.\8\
---------------------------------------------------------------------------
    \8\ A copy of this business card is included as Appendix ``A''.
---------------------------------------------------------------------------
    U.S. passport holders Tarik Hamdi and Ziyad Khaleel illustrate 
another example of Al-Qaeda's use of American citizens. Hamdi and 
Khaleel delivered a satellite telephone and battery pack to Osama Bin 
Laden in Afghanistan in May 1998. Using this phone, Bin Laden conferred 
with followers across the globe and, according to prosecutors, ordered 
the bombing of the two American embassies in East Africa. Hamdi, a 
resident of Herndon, Virginia, traveled to Afghanistan with an ABC News 
team in order to coordinate an interview with Bin Laden. The phone 
itself was purchased by Khaleel.\9\
---------------------------------------------------------------------------
    \9\ See Appendix ``B'' for documentation of this fact.
---------------------------------------------------------------------------
    In the same trial as mentioned above, an employee of O'Gara 
Satellite Networks testified on the sale of an INMARSAT phone to Ziyad 
Khaleel, a resident of Columbia, Missouri. This phone was allegedly for 
the exclusive use of Osama Bin Laden.\10\ Khaleel purchased additional 
phone accessories and asked that the equipment be mailed to: Tarik 
Hamdi at 933 Park Avenue in Herndon, Virginia 20170.\11\
---------------------------------------------------------------------------
    \10\ United States v. Usama Bid Laden et al., trial transcript, 
March 20, 2001.
    \11\ United States v. Usama Bid Laden et al., trial transcript, 
March 27, 2001.
---------------------------------------------------------------------------
    In the trial transcripts on March 27, Hamdi's name was mentioned 
time and again regarding the satellite phone issue and a letter from 
ABC World News Tonight requesting an interview with Bin Laden, dated 
May 13, 1998 and addressed to Bin Laden's senior military commander, 
Mohammed Atef. Apparently Hamdi was familiar with Atef, since contained 
in the letter was a line referring to previous communication through 
``Mr. Tarik Hamdi in Washington.'' Later in the trial it was revealed 
that when Hamdi traveled to Afghanistan with the ABC News team, he sent 
a fax from Pakistan to a Bin Laden aide named Khalid al-Fawwaz. The fax 
read:

        ``Brother Khalid: Peace be upon you. We arrived safely and now 
        we are in the Marriott Hotel.'' \12\ Soon after, Bin Laden 
        received the battery pack that was so instrumental in Bin 
        Laden's communication with his worldwide network.
---------------------------------------------------------------------------
    \12\ United States v. Usama Bid Laden et al., trial transcript, May 
1, 2001.

    The use of individuals with American passports was a necessity for 
Bin Laden to achieve his goals. One of the privileges that an American 
passport brings is the ability to travel from place to place with 
little or no interference. This was obviously the case with Wadih El 
Hage who, with his American passport, was able to pass in and out of 
the United States and into regions in Africa, the Middle East and Asia 
on instructions from Bin Laden himself. This trend should definitely 
raise a warning flag for future cooperation between international 
terrorists and sympathetic counterparts within the United States.
 c. ali mohammed: bin laden's special operations man within the united 
                                 states
    Perhaps one of the most frightening examples of the infiltration of 
terrorists into the infrastructure of the United States is that of Ali 
Mohammed, one of the individuals indicted for his role in the 
conspiracy plot to bomb the United States embassies in Kenya and 
Tanzania. Mohammed was an officer within the United States Army's 
Special Forces based out of Fort Bragg, North Carolina. At the same 
time, he was arranging for security for meetings between such 
individuals as Osama Bin Laden and Hizbollah military chief Imad 
Mughniyeh in Sudan and coordinating activities with other Bin Laden 
operatives within the United States.
    On November 8, 1990, FBI agents raided the New Jersey home of El 
Sayyid Nosair, the Egyptian born Islamic militant, following his arrest 
in the shooting of Rabbi Meir Kahane in New York City. Among the many 
items found in Nosair's possession were sensitive military documents 
from Fort Bragg, North Carolina. The documents, some of which were 
classified Secret, contained the locations of U.S. military Special 
Operations Forces exercises and units in the Middle East, military 
training schedules, U.S. intelligence estimates of Soviet forces in 
Afghanistan, a topographical map of Fort Bragg, U.S. Central Command 
data and intelligence estimates of Soviet force projection in 
Afghanistan. Appended throughout the documents were Arabic markings and 
notations believed to be that of Ali Mohammed. Some documents were 
marked ``Top Secret for Training otherwise unclassified''. Other 
documents were marked ``sensitive.''
    The military documents had been given to Nosair by Ali Mohammed, an 
Egyptian born Islamic fundamentalist who had come to live in the United 
States in 1985. He had been in the United States earlier that decade, 
having graduated as a captain from a Special Forces Officers School at 
Fort Bragg in 1981 in a program for visiting military officials from 
foreign countries. He joined the U.S. military in 1986 and received a 
security clearance for level ``secret.'' He was assigned as a sergeant 
with the U.S. Army Special Operations at Fort Bragg, North Carolina. He 
also served unofficially as an assistant instructor at the JFK Special 
Operations Warfare School at Fort Bragg where he participated in 
teaching a class on the Middle East and Islamic fundamentalist 
perceptions of the United States.
    Ali Mohammed became active in the war against the Soviets in 
Afghanistan and soon connected with Islamic militants in New Jersey who 
had been training and supporting the jihad. Mohammed was introduced to 
El Sayyid Nosair by Khalid Ibrahim, an Egyptian born Islamic 
fundamentalist in New Jersey. Ibrahim had become active in the Office 
of Services of the Mujihadeen, known Al Kifah, the group that recruited 
volunteers and funds for the jihad in Afghanistan. Al Kifah, 
headquartered in Peshawar, Pakistan, maintained scores of offices 
world-wide, including three dozen in the United States, with Al Kifah's 
primary American offices located in Brooklyn, Jersey City and Tucson, 
Arizona. According to the current indictment against Bin Laden and 
others for their role in the bombing of the United States embassies in 
Kenya and Tanzania in August 1998, the Office of Services was 
transformed into the terrorist organization of Osama Bin Laden, known 
as Al-Qaeda.
    According to transcripts of the World Trade Center bombing trials, 
Ali Mohammed began giving training sessions in New Jersey in guerilla 
warfare in 1989 to Islamic militants that included, among others, El 
Sayyid Nosair, Mahmud Abuhalima (later convicted in the World Trade 
Center bombing conspiracy) and Khalid Ibrahim. Other training sessions 
took place in Connecticut where Islamic militants trained on weekends. 
A FBI report, based on Connecticut State Police intelligence, 
summarized the activities of the training sessions using semi-automatic 
weapons.\13\
---------------------------------------------------------------------------
    \13\ The FBI reports were collected in connection with the 
investigation of El Sayyid Nosair for the assassination of Rabbi Meir 
Kahane in New York City on November 5, 1990.
---------------------------------------------------------------------------
    According to military records, Ali Mohammed left the military in 
November 1989 and moved to Santa Clara, California. Law enforcement 
officials say he traveled to Afghanistan and Pakistan where he 
befriended Osama Bin Laden and other top militants in the Islamic 
fundamentalist movements who had sought sanctuary in Peshawar. From his 
base in Santa Clara, Mohammed soon emerged as a top aide to Osama Bin 
Laden. Federal officials say that Mohammed traveled regularly to and 
from Pakistan and Afghanistan, having helped oversee Bin Laden's 
terrorist bases in Khost and other terrorist camps in Afghanistan. In 
1991, Mohammed was the person in charge of Bin Laden's move from 
Afghanistan to the Sudan. The move was considered perilous since Bin 
Laden had made so many enemies. Mohammed helped Bin Laden set up his 
new home and terrorist base in Khartoum, Sudan where 2000 ``Arab 
Afghans''-the name given to the Arab veterans of the Afghanistan jihad-
were headquartered in Bin Laden terrorist camps. Mohammed continued to 
travel between the terrorist camps in Afghanistan, Bin Laden's base in 
the Sudan and the United States. Mohammed continued to train new 
Islamic recruits in the expanded holy war, or jihad, against the United 
States, Israel, the Philippines, Bosnia, Egypt and Algeria.
    Law enforcement records show that Mohammed's extended stays outside 
the United States would range from weeks to half a year. But he would 
always return to the United States, which provided him a safe base from 
which to travel around the world on behalf of Bin Laden. In California, 
Mohammed became involved in smuggling illegal aliens into the United 
States, including suspected terrorists. Law enforcement sources say 
that a favorite route for Mohammed was to smuggle illegal aliens 
through Vancouver, Canada.
    In a seemingly bizarre twist, while in California, Mohammed 
volunteered to provide information to the FBI on smuggling operations 
involving Mexicans and other aliens not connected to terrorist groups. 
Within time, officials say, the relationship allowed Mohammed to divert 
the FBI's attention away from looking at his real role in terrorism 
into examining the information he gave them about other smuggling. This 
gave Mohammed a de facto shield in effectively insulating himself from 
FBI scrutiny for his ties to Bin Laden. And the relationship helped 
protect Mohammed from being scrutinized by other federal agencies. 
Mohammed had succeeded in creating an ingenious scheme all the while he 
worked for Osama Bin Laden. Mohammed had also tried to cultivate a 
relationship with the CIA, which did not succeed, although he had far 
better success in playing off the FBI against the CIA in his dealings 
with both agencies. Like a John Le Carre thriller, Mohammed played the 
role of a triple agent and nearly got away with it.
    In late 1994, Mohammed was called by the FBI who wanted to speak 
with him about the trial in the World Trade Center conspiracy case. As 
Mohammed stated in his plea of guilty before Judge Leonard B. Sand of 
the United States District Court for the Southern District of New York 
on October 20, 2000, ``I flew back to the United States, spoke to the 
FBI, but didn't disclose everything I knew.'' \14\ In other words, 
Mohammed was continuing to manipulate the American authorities even 
when he was called to testify regarding the acts of terrorists about 
whom he possessed information.
---------------------------------------------------------------------------
    \14\ Excerpts of Mohammed's October 20, 2000 plea are attached as 
Appendix ``C''.
---------------------------------------------------------------------------
    Federal law enforcement officials say that Mohammed's role and 
association with the Islamic militants surfaced in connection with the 
World Trade Center bombing trials in 1994 and 1995. He was named on a 
list of some 118 potential unindicted co-conspirators in the World 
Trade Center bombing conspiracy released by federal prosecutors. Even 
so, Mohammed's connections with Bin Laden were so solid that, when he 
obtained a copy of this list, he sent it to Wadih El Hage, Bin Laden's 
personal assistant, in Kenya ``expecting that it would be forwarded to 
bin Laden [sic] in Khartoum.'' \15\
---------------------------------------------------------------------------
    \15\ See Appendix ``C''.
---------------------------------------------------------------------------
    In 1996, according to intelligence reports, Mohammed helped move 
Bin Laden back from the Sudan, which wanted to maintain an official 
arm's length relationship (yet keeping its close connections secret), 
to Afghanistan. Mohammed continued working for Bin Laden in 1997 and 
1998, maintaining his role as one of Bin Laden's top lieutenants.
    On October 20, 2000, Mohammed rendered a guilty plea to all charges 
filed against him with regard to his role in the conspiracy to bomb the 
United States embassies in Kenya and Tanzania in 1998. In his 
admission, Mohammed admitted his involvement with both the Al-Qaeda 
organization and the Egyptian Islamic Jihad organization. He admitted 
that he had been involved in conducting military and explosives 
training for Al-Qaeda in Afghanistan; that he had conducted 
surveillance of various American, British, French and Israeli targets 
in Nairobi; that trained Bin Laden's personal bodyguards to prevent any 
assassination attempts; and that he arranged security for a meeting 
between Bin Laden and Hizbollah military leader Imad Mughniyeh.\16\ Ali 
Mohammed's role in terrorism and his ability to work within the United 
States outside the scope of investigation provides proof of the 
vulnerability of the United States to the work of terrorists within the 
United States.
---------------------------------------------------------------------------
    \16\ See Appendix ``C'' for further excerpts of Mohammed's plea.
---------------------------------------------------------------------------
                       d. ihab ali: flight school
    Another instance of an abuse of American citizenship is Ihab 
Mohammed Ali, currently incacerated for lying to a grand jury about his 
role in the Al-Qaeda network and the embassy bombings in Kenya and 
Tanzania. Ali and his family moved to the United States in the 1970s, 
immigrating from Egypt. There he obtained a job as a cab driver for 
City Cab Co in Orlando, Florida, before heading off for Pakistan in 
1989.\17\ While there, Ali worked for the Muslim World League, an 
organization reportedly backed by Osama bin Laden.\18\ After being 
taken into custody in May 1999 due to his alleged connections to the 
embassy bombings in Africa, Ali refused to aid authorities and lied to 
the grand jury.
---------------------------------------------------------------------------
    \17\ Pedro Ruz Gutierrez. ``Case Builds Against a Cabbie.'' The 
Orlando Sentinel. July 19, 1999.
    \18\ Ibid.
---------------------------------------------------------------------------
    According to his indictment, Ali took flight lessons in Oklahoma in 
1993 like some of the September 11 hijackers.\19\ Ali's learned to fly 
at the Airman Flight School in Norman, Oklahoma. Two hijackers, 
Mohammed Atta and Marwan al-Shehhi, visited the Airman Flight School 
before deciding to learn to fly at a flight school in Florida. Ihab 
Ali's exact role in the Al-Qaeda network remains unclear, but his 
indictment intimates that Ali was believed to have knowledge of both 
Wadih El Hage and Ali Mohammed and their actions.\20\
---------------------------------------------------------------------------
    \19\ United States District Court for the SOurthern District of NY, 
Indictment of Ihab Mohamed Ali., p.5.
    \20\ Ibid.
---------------------------------------------------------------------------
   e. ramadan abdullah shallah: the case of the university of south 
                                florida
    On March 11, 1992, the University of South Florida (USF) and the 
World & Islam Studies Enterprise (WISE) entered into a formal agreement 
regarding cooperation between the two entities in the fields of 
research and graduate student enrichment.\21\ WISE was a seemingly 
benign organization which was a self-described think-tank on Middle 
Eastern and Islamic issues. The individual who signed the agreement on 
behalf of WISE was Ramadan Abdullah Shallah. In October 1995, following 
the assassination of then-leader Fathi Shikaki, Shallah became the 
Secretary-General of the Palestinian Islamic Jihad (PIJ), an 
international terrorist organization based in Damascus, Syria, that was 
engaged in a jihad against the State of Israel through a campaign of 
suicide bombings and other deadly attacks carried out against Israeli 
civilians and soldiers alike.
---------------------------------------------------------------------------
    \21\ A copy of the agreement is attached as Appendix ``D''.
---------------------------------------------------------------------------
    The role of WISE in nurturing the future leadership of PIJ was that 
of providing a legitimate front for PIJ activities within the United 
States through agreements such as the one between WISE and USF which 
leant WISE the legitimacy necessary to overcome scrutiny for its 
activities. WISE, founded in 1990, was a PIJ brain-child from its 
formulation. The founders of WISE all emanated from the Middle East 
with a definite agenda dictated by PIJ.
    The Director of Administration of WISE was Ramadan Abdullah 
Shallah. As mentioned earlier, Shallah currently serves as the 
Secretary-General of PIJ in Damascus, Syria. The Director of Research 
of WISE was Bashir Musa Nafi. Nafi was deported from the United States 
in 1996 based on visa violations. On his INS Order to Show Cause, which 
constitutes the INS equivalent to an indictment against an alien within 
the United States, a pseudonym is listed for Nafi of Ahmed Sadiq. This 
alias is important to his connections to terrorism. To those in the 
Palestinian Islamic Jihad, he was better known by this name. Under this 
pseudonym, Nafi wrote scores of articles in journals referred to by 
Palestinian Islamic Jihad head Fathi Shikaki as publications of the 
movement. Included among these are Al-Mukhtar Al-Islami, which is 
published in Cairo, and Al-Taliah Al-Islamiah, which was published in 
London (Nafi being on the Editorial Boards of both publications during 
the time that he wrote for them).
    A master's thesis presented by Abdul Aziz Zamel at USF on April 17, 
1991 referred to Nafi as an ideological head of the Palestinian Islamic 
Jihad along with Fathi Shikaki. Based on interviews with an anonymous 
individual identified by Zamel as a ``founder'' of the Palestinian 
Islamic Jihad, Zamel wrote, on page 192 of his thesis, that Nafi had 
actually ``published and edited a journal, al-Taliah al-Islamiah (The 
Islamic Vanguard) [sic] specifically for the [Palestinian Islamic 
Jihad], which was sent to the occupied territories for reproduction, in 
the same shape and form, and distribution.'' Thomas Mayer, a researcher 
who wrote an article in Emmanuel Sivan and Menachem Friedman's 1990 
book entitled Religious Radicalism and Politics in the Middle East, 
stated that Fathi Shikaki regarded Bashir Nafi as ``an ideological 
friend.'' Mayer also discussed the cooperation between Nafi and Fathi 
Shikaki in distributing Al-Taliah Al-Islamiah throughout the West Bank 
and Gaza Strip.\22\ These references suggest that Nafi was not merely a 
member of the movement, but a spokesperson with close ties to Shikaki.
---------------------------------------------------------------------------
    \22\ Emmanuel Sivan and Menachem Friedman, Religious Radicalism and 
Politics in the Middle East, SUNY Press, 1990.
---------------------------------------------------------------------------
    Another of the founding members of WISE was Khalil Shikaki, the 
brother of then-Secretary-General of PIJ, Fathi Shikaki. Documents 
seized by federal agents pursuant to a search warrant at the WISE 
office in November 1995 show that Shikaki, after his departure from 
WISE in 1992, contacted his brother by means of Ramadan Shallah who was 
working at WISE and teaching at USF at the time. Evidence released in 
the federal investigation against WISE and ICP included a letter and a 
fax between Abdullah and Khalil Shikaki showing that Abdullah served as 
a go-between for the brothers.\23\
---------------------------------------------------------------------------
    \23\ This evidence was released to subsequent to the first 
immigration bond determination hearings for Mazen Al-Najjar in Orlando, 
Florida in 1996 and 1997.
---------------------------------------------------------------------------
    By utilizing the agreement between WISE and USF \24\ as a means of 
facilitating legitimacy for their activities, the individuals 
associated with WISE were able to coordinate PIJ activities within the 
United States free from government scrutiny. The government became 
actively involved only after one member of the inner circle of this 
organization, Ramadan Shallah, emerged as the Secretary-General of PIJ 
in Damascus, Syria.\25\
---------------------------------------------------------------------------
    \24\ See Appendix ``D''.
    \25\ Additional information on the Palestinian Islamic Jihad 
Network in the United States is attached as Appendix ``E''.
---------------------------------------------------------------------------
                     f. musa abu marzook and uasr:
    The United Association for Studies and Research (UASR), an Islamic 
think tank now based in Springfield, Virginia, was founded in 1989 in 
Chicago, Illinois by a number of prominent Islamic radials living in 
the US, primary among whom was Musa Abu Marzook.
    Musa Abu Marzook, a.k.a. Abu Omar, was the head of the Hamas 
Political Bureau since 1988, while he was resident in the United 
States.\26\ Hamas (Harakat Al-Muqawama Al-Islamia fi Filastin--The 
Islamic Resistance Movement in Palestine) is one of the most militant 
Islamic groups in the world and is included in the United States 
Department of State's list of Foreign Terrorist Organizations that are 
outlawed pursuant to the Anti-Terrorism and Effective Death Penalty Act 
of 1996. Hamas has claimed responsibility for numerous suicide bombing 
attacks within Israel resulting in the deaths of scores of innocent 
Israelis.
---------------------------------------------------------------------------
    \26\ United States District Court for the Southern District of NY, 
In the Matter of the Extradition of Mousa Mohammed Abu Marzook, 
Affidavit of Kevin Thomas Duffy, DJ, 95 Civ. 9799 (KTD) May 8, 1996. p. 
1.
---------------------------------------------------------------------------
    On July 27, 1995, Marzook was arrested at New York's John F. 
Kennedy Airport because ``he played an important role in supervising 
the activities of the military wing to Hamas [the wing responsible for 
the terrorist attacks] and in appointing individuals to important 
leadership roles in the military wing.'' \27\ In the United States, Abu 
Marzook was ``responsible for the Muslim Brothers organization in the 
U.S. and resigned from this job in order to devote his time to 
activities dedicated to Palestine'' following the foundation of the 
Hamas. Marzook, who was born in the Gaza Strip, was a close associate 
of Sheikh Ahmad Yassin, the Islamic cleric who founded Hamas as an 
organization distinct from its parent group Muslim Brotherhood.\28\
---------------------------------------------------------------------------
    \27\ United States District Court for the Southern District of NY, 
In the Matter of the Extradition of Mousa Mohammed Abu Marzook, Sealed 
Complaint by Shirah Neiman.
    \28\ The Muslim Brotherhood is the international Sunni Islamic 
extremist movement that was founded in Egypt in 1928. It is also the 
ideological ancestor of today's most violent Islamic extremist 
movements.
---------------------------------------------------------------------------
    Marzook first came to the United States in the late 1970s, although 
immigration records show that he formally began residing in the United 
States starting in 1981.\29\ Marzook and his family lived in a number 
of locations during their 14 years in the United States, including 
Colorado, Louisiana and Virginia. He and his family moved to Falls 
Church, Virginia in 1991.Between 1993 and 1995, Marzook resided 
principally in Jordan, which deported him in June 1995 for his 
involvement and senior position in Hamas. In July 1995, after making 
trips to Iran and Syria, Abu Marzook attempted to reenter the United 
States at which time he was arrested by customs and INS officials at 
the request of the Israeli Government which sought to prosecute Abu 
Marzook for numerous crimes in connection with his leadership role in 
Hamas. In October 1995, acting at the request of the Israeli 
Government, the United States initiated extradition proceedings against 
Abu Marzook, based on pending Israeli criminal charges that included 
murder, attempted murder and conspiracy stemming from Hamas-sponsored 
terrorist acts.
---------------------------------------------------------------------------
    \29\ At the time of his arrest, Abu Marzook was a permanent 
resident alien of the United States. In 1990, he and his family 
received their Green Cards in an INS lottery that offered ``permanent 
legal residency'' to potential immigrants. In affidavits filed by 
Deputy United States Attorney Shirah Neiman, the role of Abu Marzook in 
Hamas activities was discussed as follows:
---------------------------------------------------------------------------
    In his role as head of political bureau, Abu Marzook financed 
certain activities of Hamas, including terrorist activities against 
soldiers and civilians in the Territories and Israel. In addition, he 
played an important role in supervising the activities of the military 
wing to Hamas (the wing responsible for the terrorist attacks) and in 
appointing individuals to important leadership roles in the military 
wing. Throughout most of the relevant period, he resided in the United 
States.\30\
---------------------------------------------------------------------------
    \30\ United States District Court for the Southern District of NY, 
In the Matter of the Extradition of Mousa Mohammed Abu Marzook, Sealed 
Complaint by Shirah Neiman to the US Magistrate Judge, p.2.
---------------------------------------------------------------------------
    The arrest of Muhammad Salah, Mohamad Jarad and Nasser Hidmi by the 
Israeli authorities marked an important turning point into the 
investigation of Hamas. What was revealed as a result of interrogations 
and confessions of these individuals (Salah and Jarad were both 
residents of Chicago, Illinois, and Hidmi was a student at Kansas State 
University in Manhattan, Kansas) was the importance of the United 
States as an operational base for Hamas. Under the leadership of Musa 
Abu Marzook, the Hamas headquarters in the United States was able to 
operate virtually unimpeded from the intense scrutiny of authorities.
    On January 25, 1993, Salah and Jarad, two high ranking Hamas 
operatives with United States citizenship, were arrested by the Israeli 
General Security Services (GSS) with the aid of the Israeli Defense 
Forces (IDF). The Israeli authorities obtained the most significant 
information against Musa Abu Marzook from Salah, a.k.a ``Abu Ahmad.'' 
In these statements, Salah exposed the pivotal role of Musa Abu Marzook 
in the Hamas organization. Musa Abu Marzook directed the Hamas 
organization's activities, the allocation of its resources and the 
transfer of funds: ``Abu Marzook specifically directed funds towards 
Hamas' 'military' (i.e. terror) activities, encouraged acts of terror, 
and played an important role in overseeing certain `military' aspects 
of Hamas' operations and in making `military.' '' \31\
---------------------------------------------------------------------------
    \31\ Ibid. p. 5
---------------------------------------------------------------------------
    On October 10, 1994, Abu Marzook appeared in a television interview 
broadcast from the ``Al Manar'' television station in Lebanon. This was 
only one day after the October 9, 1994 shootings in which two Hamas 
terrorists killed two and wounded eighteen persons in a suicide attack 
in a pedestrian mall in downtown Jerusalem. In the interview, Marzook 
stated as follows:
    Death is the goal to every Muslim and every fighter wants to die on 
Palestinian land. This is not the first time that the Izz Al-Din Al-
Qassem heroes carry out suicide and terrorism actions. . .The peace 
process, as described by Arafat more than once, is a failure. By these 
actions, we do not strive to foil the talks and the negotiations. We 
are doing them for a much higher aim and they are steps on the way for 
a full restitution of the rights of the Palestinian people.
      g. use of money laundering: the ``charlotte hizbollah cell''
    On July 21, 2000, agents from the Federal Bureau of Investigation 
(FBI) in Charlotte, North Carolina, arrested eleven individuals on 
charges of smuggling contraband cigarettes to Michigan from North 
Carolina and money-laundering. In a superseding indictment filed in the 
United States District Court for the Eastern District of North Carolina 
on March 28, 2001, four individuals were charged with providing 
material support or resources to the Hizbollah terrorist organization. 
The individuals were charged with providing ``currency, financial 
services, training, false documentation and identification, 
communications equipment, explosives, and other physical assets to 
Hizbollah, in order to facilitate its violent attacks.''\32\
---------------------------------------------------------------------------
    \32\ United States v. Mohamad Youssef Hammoud et al., No. 00 CR 147 
(W.D. N.C. filed July 20, 2000, amended March 28, 2001) Superseding 
Bill of Indictment, para. 3.
---------------------------------------------------------------------------
    Another similar case was filed in Michigan against Fawzi Mustapha 
Assi on August 4, 1998. The charges against Assi, stated in both the 
Indictment and the Criminal Complaint, included allegations that he did 
``(k)nowingly provide and attempt to provide material support or 
resources, to wit, night vision goggles, global positioning satellite 
modules and a thermal imaging camera to a designated foreign terrorist 
organization.'' The foreign terrorist organization to whom Assi was 
charged with providing these materials was the Hizbollah terrorist 
organization. Unfortunately, prior to the filing of the indictment, 
Assi disappeared,\33\ and allegedly reappeared in Lebanon.\34\
---------------------------------------------------------------------------
    \33\ Kay M. Siblani, ``Man charged with exporting weapons to 
Hizbollah disappears,'' Arab American. News, August 7, 1998: David 
Josar, ``Suspect in Hezbollah case skips hearings,'' Detroit News, July 
29, 1998.
    \34\ Kevin Lynch, ``Ford engineer seen in Lebanon: Newsletter 
publisher says people have seen man suspected of supporting 
terrorists,'' Detroit News, September 4, 1998.
---------------------------------------------------------------------------
    These two examples show how foreign terrorist organizations may 
develop relationships with individuals who are already resident within 
the United States in order to provide them support. In these cases, 
however, the support was not merely financial but also tactical. Both 
in Charlotte and in Detroit, the items involved were highly 
sophisticated items to be used directly in terrorist operations.
    In each of the above examples, different approaches by the United 
States government and its many agencies would have served the purpose 
of shutting down the potential for providing funds, recruitment or a 
base of operations for terrorists on American soil.
                              Conclusion:
    On September 11, Osama Bin Laden proved that terrorists were able 
to hide under our radar screen for years without being detected by the 
relevant agencies or even by what is known as the fourth branch of 
government, the media. The horror of September 11 was achieved through 
a variety of means, not all tethered to the specific operational 
details of the actual plot. Our nation's defenses and our awareness of 
the threats surrounding us were numbed through false conduits, fake 
companies, religious charities, exploitation of our free speech and 
religious freedoms and abetted by problems in the visa system and 
loopholes in the terrorist watch list. The bottom line is that if this 
is not to be repeated, we need to institute new safeguards, methods of 
detecting false cover companies, academic institutes, and religious 
charities, monitor those who are here illegally and who are connected 
to known terrorist groups and demand that our government do a much 
better of job of scrutinizing those who violate American law by 
exploiting the very freedoms that make our country great.
[GRAPHIC] [TIFF OMITTED] T1998.008

                               Appendix B
    Documents provided by Ali Mohammed to Al-Qaeda listing the 
positions of United States Special Operations Forces residing in the 
Middle East and the United States. The documents are accompanied by 
Mohammed's translation into Arabic directly on the pages.

[GRAPHIC] [TIFF OMITTED] T1998.009

[GRAPHIC] [TIFF OMITTED] T1998.010

[GRAPHIC] [TIFF OMITTED] T1998.011

[GRAPHIC] [TIFF OMITTED] T1998.012

[GRAPHIC] [TIFF OMITTED] T1998.013

[GRAPHIC] [TIFF OMITTED] T1998.014

[GRAPHIC] [TIFF OMITTED] T1998.015

[GRAPHIC] [TIFF OMITTED] T1998.016

[GRAPHIC] [TIFF OMITTED] T1998.017

    Senator Feingold. I noticed in the tape, one of the 
gentlemen was a Mr. Revell, who was one of your experts. I want 
to place in the record, without objection, an article by Jim 
McGee of the Washington Post entitled, ``Ex-FBI Officials 
Criticize Tactics on Terrorism,'' in which Mr. Revell is quoted 
as follows. With regard to the detention, or the proposal to 
interview 5,000 people by the Justice Department, he said that 
while that practice may have a short-term deterrent effect, 
that the tactic is problematic. His actual quote is, ``One, it 
is not effective, and two, it really guts the values of our 
society, which you cannot allow the terrorists to do.''
    So this is one of the individuals that was quoted on this 
tape making that statement about one of the things that the 
Justice Department is doing. Without objection, that will go in 
the record.
    At this point, I will turn to our last witness, Nadine 
Strossen. She is the President of the American Civil Liberties 
Union. She is also a professor of constitutional law at New 
York Law School. The ACLU has been at the forefront of 
protecting civil liberties for decades and their work has taken 
on even greater importance since September 11. I believe the 
ACLU has done our country a great service by reminding us that 
we must defend our cherished freedoms even as we face enormous 
national security challenges at home and abroad. I thank you 
for your leadership and for joining us today. You may proceed.

    STATEMENT OF NADINE STROSSEN, PRESIDENT, AMERICAN CIVIL 
              LIBERTIES UNION, NEW YORK, NEW YORK

    Ms. Strossen. Thank you so much, Chairman Feingold, Senator 
Sessions, other members of the Committee. The ACLU is, indeed, 
concerned with our freedom, but we are, of course, also 
concerned with safety, and the logo on our website since 
September 11 has been ``Safe and Free.''
    Along with Oliver Buck Revell, whom I too noticed--I had 
read his critical comments and I was surprised to see him on 
the film--these law enforcement officials are saying the same 
thing, or perhaps it is the obverse, that the measures that we 
are criticizing, including the massive secretive detentions and 
the round-up of 5,000 people, mostly on the basis of national 
origin, are the worst of both worlds. They are not going to be 
effective, as Mr. Revell himself said, and they certainly are 
going to make us less free.
    As you pointed out, Senator Feingold, the critiques have 
been coming from local law enforcement officials around the 
country, interestingly enough, not only from California and 
Oregon, but also from Texas, from the Middle West, and they 
have been coming from present and former FBI officials.
    Now, in my limited time, I am going to try to focus on a 
few points that really have not been covered so thoroughly and 
many others are covered in my written testimony.
    First of all, we have heard assertions from the government, 
including this morning, that these massive so-called interviews 
of 5,000 young men from certain countries are supposedly 
voluntary. How voluntary is it, though? I have the letter that 
is being sent to these individuals and here is the exact 
pertinent language. It reads, ``While this interview is 
voluntary, it is crucial that the investigation be broad-based 
and thorough and the interview is important to achieve that 
goal. We need to hear from you as soon as possible, by December 
4,'' interestingly enough, today.
    I think it is fair to say that most people who receive that 
letter would not see this as a voluntary request for an 
interview. It is particularly true when we are talking about 
these individuals who are foreigners, new to this country, and 
in particular, as we keep hearing reports and government 
acknowledgement that hundreds of people are already in jail for 
minor immigration violations, no doubt these interviews are 
going to feel much more coercive than voluntary.
    In addition, the fact is that all of these people come from 
countries--many of them come from countries--with repressive 
regimes. They are not told that they have a right to refuse to 
answer certain questions. The Justice Department's guidelines 
expressly say that they should not be told of their Miranda 
right. They are not affirmatively told of their right to be 
represented by counsel. So, in fact, for all practical 
purposes, there is going to be a very coercive atmosphere.
    Also on the point of coercion, we heard this morning again 
from the Justice Department that there is further encouragement 
to come forward voluntarily through the new Responsible 
Cooperators' Program. The problem with that program, though, is 
that it is very vague in terms of the assurances that are 
supposedly going to be made to these interviewees, and it is 
completely inconsistent with the actual written guidelines that 
the Justice Department has issued governing the immigration 
consequences of the interviews.
    The written, formal Justice Department guidelines actually 
expressly instruct those law enforcement officials who are 
conducting the interviews--I think interrogations is a more 
accurate term--to inquire into immigration status and if there 
is any reason to suspect that the person is not in compliance, 
to immediately contact local INS officials with the express 
purpose of determining whether detention would be appropriate.
    So if, in fact, the Attorney General is going to reverse 
that policy and offer some kind of waiver of detention or 
deportation, then it certainly should be done through official, 
formal guidelines that are legally enforceable. Otherwise, this 
becomes much more like a sting operation, making it even more 
coercive and less voluntary than it was in the first place.
    I would like to make one other point, and that is with 
respect to the various assertions we heard this morning from 
the Justice Department, the Assistant Attorney General, about 
the various constitutional rights that are being respected: we 
are just getting assertions to that effect. The major reason 
why we have been asking for information repeatedly, together 
with other citizens' organizations, together with members of 
Congress, is precisely so that we can verify that the 
detainees' legal rights have been complied with. Unfortunately, 
along with other people who have testified on this panel, we 
are getting information from detainees which is inconsistent 
with the assertions that the Justice Department has made.
    Specifically, on the Department's point that people are 
being charged within 48 hours, we are aware of three contrary 
cases in New Jersey, because we had been considering 
representing these individuals. They have all been detained for 
far more than 48 hours--in one case, up to 3 weeks. So we would 
welcome information from the Justice Department that would 
confirm their assertions.
    And my final point, as my time is expiring, is on the point 
of secrecy. We heard a new rationale this morning from the 
Assistant Attorney General that we had never heard before; that 
is, that the reason for not giving the names of the Immigration 
detainees is because they are under seal.
    One week ago today, Chairman Feingold, you asked, and I 
think other members of the Committee also asked Michael 
Chertoff of the Justice Department specifically whether there 
is any legal reason for not releasing those names, and he 
answered that there was no legal reason.
    [The prepared statement of Ms. Strossen follows:]

Statement of Nadine Strossen, President, American Civil Liberties Union

    Chairman Feingold and other members of the Committee, I am pleased 
to testify before you today at this oversight hearing on the conduct of 
the Department of Justice in response to the September 11 attacks on 
the World Trade Center and the Pentagon. My name is Nadine Strossen and 
I am the President of the American Civil Liberties Union, a non-
partisan, non-profit organization, consisting of nearly 300,000 
members, dedicated to protecting the principles of freedom and equality 
reflected in our Constitution and civil rights laws. I am also a 
Professor of Law at New York Law School, teaching and writing about 
Constitutional Law.
    Before I discuss the ACLU's concerns about the infringements on 
constitutional rights and civil liberties in connection with the 
Department of Justice's detention and questioning of thousands of 
individuals in the wake of the horrifying September 11 attacks, I want 
to note how close to home those attacks were, and how I continue to be 
directly affected by their ongoing impact. Both the ACLU's national 
headquarters and New York Law School are located within blocks of 
``Ground Zero.'' By some stroke of relative good fortune, everyone who 
worked at either location was spared direct physical injury or death. 
Nonetheless, the psychic and health traumas are deep and enduring, and 
both workplaces were severely damaged.
    The ACLU office was closed for a week and it took several weeks 
before we had full use of telephone service and computers. New York Law 
School, which suffered more physical damage, was closed for several 
weeks, and in fact did not have long distance telephone service 
restored until just a couple weeks ago. Many students--including many 
who had just arrived in New York from other parts of the country, for 
the beginning of their law school careers--are still suffering severely 
from the psychic aftershocks. A number dropped out and moved away 
altogether, and others are taking some time off before returning to law 
school. One who never came back after witnessing the horrifying attacks 
and ensuing chaos, choosing to move to another part of the country, was 
one of my two full-time staff members. The air quality is still so bad 
that it is often physically unpleasant, if not adverse to health; 
colleagues with asthma or other respiratory conditions can't remain at 
the school for more than short periods.
    Moreover, like most New Yorkers, I lost a friend and colleague in 
the attack. John Perry, who was both a police officer and a lawyer, had 
long been active in the ACLU's New York affiliate. He and I worked 
together on a number of projects, including a series of public 
television programs about constitutional law/civil liberties issues. So 
I come before the Committee today with personal losses and grief 
resulting from the tragedy (fully realizing how much greater and more 
direct were the losses suffered by so many others), and a strong desire 
to see that those who helped perpetrate this atrocious crime are 
brought to justice.
    The ACLU recognizes that this investigation is an enormous 
undertaking and we are grateful to the thousands of people at the 
Department of Justice who are working hard, with the best intentions, 
to solve this atrocious crime and protect us from future attacks. 
However, the Department of Justice has assumed broad new police powers 
and used investigative tactics that unnecessarily violate rights with 
no showing that these measures increase the likelihood of capturing or 
deterring terrorists. Indeed, former FBI agents have publicly 
criticized the government's detention and questioning of thousands of 
individuals based on their immigration status and their national origin 
specifically from a law enforcement perspective. They maintain that 
these dragnet tactics are ineffective at best, counterproductive at 
worst, in terms of the all-important goals of punishing and preventing 
terrorism.\1\
---------------------------------------------------------------------------
    \1\ Washington Post, October 27, 2001.
---------------------------------------------------------------------------
    My written testimony will focus on three aspects of the sweeping 
detentions and questioning, which raise particular concerns about 
infringements of constitutional rights and civil liberties: (1) the DOJ 
regulation authorizing it to record confidential, privileged attorney-
client communications between individuals who are being detained and 
their attorneys; (2) the government's refusal to disclose basic 
information about the people who have been detained, and (3) the 
questioning of 5,000 young men who lawfully entered the U.S. on non-
immigrant visas, based on their country of national origin. We believe 
that these measures unnecessarily violate civil liberties and rights 
without sufficient justification in terms of advancing national 
security. These measures will not make us more safe, but they will make 
us less free.
        Eavesdropping on Protected Attorney Client Conversations
    Without observing the normal notice and comment period required 
under the Administrative Procedures Act, Attorney General Ashcroft 
announced, under ``emergency authority,'' a regulation that permits the 
Department of Justice to eavesdrop on confidential attorney client 
conversations in any case in which the Attorney General finds that 
there is ``reasonable suspicion'' to believe that a particular federal 
prisoner ``may'' use communications with attorneys or their agents ``to 
further or facilitate acts of terrorism.'' The regulation requires that 
the Director of the Bureau of Prisons (BOP) ``shall. . .provide 
appropriate procedures for the monitoring or review of communications 
between that inmate and attorneys or attorneys' agents who are 
traditionally covered by the attorney-client privilege.\2\
---------------------------------------------------------------------------
    \2\ 66 Fed. Reg. 55062 (October 31, 2001); 28 C.F.R. sec. 501.3(d)
---------------------------------------------------------------------------
    In short, the Justice Department, unilaterally, without judicial 
oversight, and with no meaningful standards, is to decide when to 
eavesdrop on the confidential attorney-client conversations of a person 
whom the Justice Department itself may be seeking to prosecute. This 
regulation applies not only to convicted prisoners in the custody of 
the BOP, but to all persons in the custody of the Department of 
Justice, including pretrial detainees who have not yet been convicted 
of any crime and are presumed innocent, as well as material witnesses 
and individuals who are being held on suspected immigration violations 
and who are not accused of any crime.
    This regulation is particularly disturbing because it is 
unnecessary. The Department of Justice already has legal authority to 
record attorney-client conversations by going before a judge and 
obtaining a warrant based on probable cause that the attorney is 
facilitating a crime \3\. Indeed, the Supreme Court has even approved 
searches of an attorney's law office, provided a warrant has first been 
obtained from a neutral and detached magistrate.\4\ Similarly, if 
prison officials have reason to believe that a particular prisoner is 
using the mail to violate the law or threaten security, they may obtain 
a search warrant to read and open the mail.\5\
---------------------------------------------------------------------------
    \3\ United States v. Harrelson, 754 F.2d 1153, 1168-69 
(5th Cir. 1985).
    \4\ Andresen v. Maryland, 427 U.S. 463, 480 n. 4, 96 S. Ct. 2737, 
2748 n. 4, 49 L.Ed.2d 627 (1976). (approving search of law office 
pursuant to a warrant based on probable cause)
    \5\ Guajardo v. Estelle, 580 F.2d 748, 759 (5th Cir. 
1978).
---------------------------------------------------------------------------
    A second source of longstanding legal authority to record 
conversations between attorney and client, when justified by crime 
control concerns, is the ``crime-fraud exception'' to the attorney-
client privilege. Attorney-client communications lose their privileged 
status if the government can establish that the communications were 
used for the purpose of facilitating a crime or perpetrating a fraud. 
However, it is the judge, not the Justice Department, who determines 
which communications fall under the crime-fraud exemption. The Supreme 
Court has made clear that the determination whether an attorney-client 
communication falls within the crime-fraud exception is to be made by 
courts in an in camera hearing after the government provides the court 
with evidence substantiating a good faith basis to believe that the 
exception applies.\6\
---------------------------------------------------------------------------
    \6\ United States v. Zolin 491 U.S. 554, 109 S. Ct. 2619, 2631, 105 
L.Ed.2d 469 (1989).
---------------------------------------------------------------------------
    The Justice Department has not articulated a single reason why 
these two provisions in current law are insufficient to ensure that 
attorneys are not assisting their clients in committing crime. Indeed, 
during questioning before the Senate Judiciary Committee on November 
27, 2001, Assistant Attorney General Michael Chertoff could not answer 
Senator Kennedy's question as to why the new regulation was necessary. 
Yet in spite of any justification for doing so, the Department of 
Justice has made itself the arbiter of when conversations should be 
monitored, taking away the authority from a neutral judge. This 
regulation is an unprecedented frontal assault on the attorney-client 
privilege and on the right to counsel and the right of access to the 
courts guaranteed by the Constitution.
    The Supreme Court has recognized the attorney-client privilege as 
the oldest of the privileges for confidential communications known to 
the common law.\7\ Its purpose is to encourage full and frank 
communication between attorneys and their clients, recognizing that 
sound legal advice or advocacy depends upon the lawyer being fully 
informed by the client. The Court stated that the attorney client 
privilege ``is founded upon the necessity, in the interest and 
administration of justice, of the aid of persons having knowledge of 
the law and skilled in its practice, which assistance can only be 
safely and readily availed of when free from the consequences or the 
apprehension of disclosure.'' \8\ Indeed, the privilege is so well 
established and considered such a compelling societal interest, that 
the Supreme Court has held that the privilege survives even after the 
client's death.\9\
---------------------------------------------------------------------------
    \7\ Upjohn Co. v. United States, 449 U.S. 3838, 389, 101 S. Ct. 
677, 682 L.Ed.2d 584 (1981).
    \8\ Id. (quoting Hunt v. States 128 U.S. 464, 9 S. Ct. 125, 127, 
L.Ed. 488 (1888).
    \9\ Seidler & Berlin v. United States, 524 U.S. 379, 118 S. Ct. 
2081, 2088, 141 L.Ed. 2d 379 (1998).
---------------------------------------------------------------------------
    Besides violating the long established attorney-client privilege, 
the regulation violates the Sixth Amendment right to the assistance of 
counsel. In the famous case of Gideon v. Wainwright, the Supreme Court 
ruled that the Sixth Amendment guarantees a person facing criminal 
charges the right to the assistance of counsel for his defense.\10\ 
This right is not limited to the trial itself, but includes the 
assistance of counsel in the investigation and preparation of a 
defense. Indeed, the Supreme Court has recognized that denying a person 
access to counsel in the period prior to trial, the period most likely 
to be impacted by this regulation may be more damaging than denial of 
counsel during the trial itself.\11\
---------------------------------------------------------------------------
    \10\ Gideonv. Wainwright, 372 U.S. 335, 339-40, 83 S. Ct. 792, 794 
(1963).
    \11\ Maine v. Moulton, 474 U.S. 159 170, 106 S. Ct. 477, 484, 88 
L.Ed. 481 (1985).
---------------------------------------------------------------------------
    The essential bedrock of the Sixth Amendment right to the 
assistance of counsel is the ability to communicate privately with 
counsel.\12\ Even the Justice Department recognizes the need for 
private attorney-client communications. In a friend of the court brief, 
the Justice Department wrote, ``the Sixth Amendment's assistance-of-
counsel guarantee can be meaningfully implemented only if a criminal 
defendant knows that his communications with his attorney are private 
and that his lawful preparations for trial are secure against intrusion 
by the government, his adversary in the criminal proceeding.'' \13\ 
Under the regulation, the defendant and his counsel are confronted not 
just by the possibility that the government is monitoring their 
communications, but by the certain knowledge that it is doing so.
---------------------------------------------------------------------------
    \12\ United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973).
    \13\ Weatheford v. Bursey 429 U.S. 545, 554 n.4, 97 S. Ct. 837, 843 
n. 4, 51 L.Ed.2d 30 (1977) (quoting Brief for United States as Amicus 
Curiae).
---------------------------------------------------------------------------
    Separate and distinct from the Sixth Amendment rights of persons 
facing criminal charges, prisoners have a constitutional right of 
access to the courts.\14\ This right is not limited to pretrial 
detainees facing criminal charges, or those appealing criminal 
convictions, but extends even to convicted prisoners who may wish to 
seek a writ of habeas corpus or file an action challenging the 
conditions of their confinement. Indeed, because a prisoner ordinarily 
does not have the right to vote, the Supreme Court has held that the 
right to file a court action might be a prisoner's remaining most 
fundamental right.\15\ Regulations and practices that unjustifiably 
obstruct the availability of legal representation are invalid.\16\ 
Courts have expressly held that the right of access is the guarantee of 
an opportunity to communicate with counsel privately.\17\ Moreover, 
courts have specifically held that, when the individual seeking to 
confer with counsel is incarcerated, a prison must provide a facility 
for confidential attorney-client conversations.\18\ Likewise, judicial 
rulings have held that the Sixth Amendment right of access to the 
courts includes the right to privacy in attorney-client mail.\19\
---------------------------------------------------------------------------
    \14\ Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494, 52 
L.Ed.2d 72 (1977).
    \15\ McCarthy v. Madigan, 503 U.S. 140, 153, 112 S. Ct. 1081, 1091, 
117 L.Ed.2d 291 (1992).
    \16\ Procunier v. Martinez, 416 U.S. 396, 419, 94 S. Ct. 1800, 
1814, 40 L.Ed.2d 224 (1974).
    \17\ Bach v. People of the State of Illinois, 504 F.2d 1100, 1102 
(7th Cir. 1974)
    \18\ Dawson v. Kendrick, 527 f. Supp. 1252, 1314 (S.D.W.Va. 1981).
    \19\ Muhammad v. Pitcher 35 F.3d 1081, 1083 (6th 
Cir.1994).
---------------------------------------------------------------------------
    The new DOJ regulation provides that the government will not retain 
``properly privileged materials'' that it obtains through its 
monitoring. During his appearance before the Senate Judiciary 
Committee, Assistant Attorney General Chertoff suggested that the 
regulation violates no rights and causes no harm because ``innocent'' 
conversations will not be retained or used against the client and 
``guilty'' conversations are not protected anyway. However, an 
individual's right to counsel will still be violated by the 
government's announced monitoring program, even if the government does 
not retain his privileged communications with counsel or use these 
communications against him in a criminal prosecution. Indeed, an 
individual's Sixth Amendment right to counsel will still be violated in 
the wake of the announced monitoring program even if the government 
does not actually intercept any of that individual's privileged 
communications with his lawyer. As the courts have recognized, the 
violation occurs as soon as the individual and his lawyer are informed 
that their confidential attorney-client communications are henceforth 
subject to monitoring by government agents. From that point on, all 
attorney-client communications are chilled, thus thwarting the 
privilege's key purpose--to encourage the full and frank disclosure and 
discussion between attorney and client that is an essential 
prerequisite for the lawyer's effective representation of the client.
    In a recent opinion, Richard A Posner, Chief Judge of the United 
States Court of Appeals for the Seventh Circuit, powerfully explained 
why ``merely'' announcing a policy of government monitoring of 
attorney-client communications would have a devastating impact on the 
attorney-client privilege and the associated Sixth Amendment rights to 
representation by counsel and access to the courts. Chief Judge 
Posner's opinion described a colloquy during the oral argument in which 
he had asked the government lawyer if the attorney-client privilege 
would be violated in the following hypothetical situation: all 
conversations between criminal defendants and their lawyers were taped, 
but the tapes were never turned over to the prosecutors, and instead 
were stored in the National Archives. The government lawyer took the 
position that none of the defendants could complain in this situation 
because none could be harmed by it, since the prosecutors would not 
have access to the tapes. Judge Posner rejected that conclusion, 
explaining:
    The hypothetical practice that we have described would, because of 
its pervasiveness and publicity, greatly undermine the freedom of 
communication between defendants and their lawyers and with it the 
efficacy of the right to counsel, because knowledge that a permanent 
record was being made of the conversations between the defendants and 
their lawyers would make the defendants reluctant to make candid 
disclosures. (Totalitarian style continuous surveillance must surely be 
a great inhibitor of communication.) \20\
---------------------------------------------------------------------------
    \20\ United States v. DiDomenico, 78 F.3d 294, 299 (7th 
Cir. 1996).
---------------------------------------------------------------------------
   Failure of the Government to Disclose Fully Information about the 
        Persons it has held and incarcerated since September 11
    The Department of Justice has launched what appears to be an 
extensive program of preventive detention. Although certainly not on 
the same scale or scope as the internment of Japanese-Americans during 
World War II,\21\ this is the first large-scale detention of a group of 
people based on country of origin or ancestry since that shameful 
episode, for which our government formally apologized and paid 
reparations.
---------------------------------------------------------------------------
    \21\ One significant difference is that the Japanese-Americans were 
not charged with any criminal or immigration violation, but were held 
solely based on their ancestry or country or origin.
---------------------------------------------------------------------------
    The Department admits that over 1,200 people have been detained in 
connection with the September 11 attacks. Some have been incarcerated 
for long periods of time, others held for only hours. Because of the 
secrecy surrounding the detentions, we do not know whether most of 
these people are still incarcerated or have been released.
    A major safeguard against government abuses of power is being 
thwarted by the Justice Department's policies: access to information. 
The Department is defying the public's right to know, refusing to give 
important information about the detainees. This wall of silence 
undermines public confidence in the investigation and raises questions 
about the fairness of the process, as well as the rights and even the 
welfare and safety, of the incarcerated individuals.
    According to media accounts of the detentions, only a very small 
number of persons that have been arrested have any involvement or 
knowledge of the attacks. Approximately 10 people, what the Washington 
Post called the ``hot center'' \22\ are believed to have close ties to 
the al Qaeda network or some knowledge of the hijackers. An additional 
17 men and 1 woman have more distant connections to the hijackers or 
connections to the people in the ``hot center.'' The rest have been 
charged with unrelated technical immigration violations, minor criminal 
charges (usually under state law), and as material witnesses under 18 
U.S.C. sec. 3144. It appears that the vast majority of the people being 
detained in connection with this investigation are being detained on 
pretexts: they have committed a minor offense that gives law 
enforcement or immigration authorities the power to detain them even 
though they would not under normal circumstances be detained for such 
conduct. By all accounts, the overwhelmingly majority of detainees are 
Muslims or Arabs, come from Middle Eastern countries, and are non-
citizens.
---------------------------------------------------------------------------
    \22\ Post Staff writters, ``A Deliberate Strategy of Disruption'', 
The Washington Post, November 4, 2001, p. A1.
---------------------------------------------------------------------------
    We have the most urgent concern for the detainees who are being 
held on immigration charges because their access to legal counsel is 
limited. Unlike defendants in criminal cases or persons held as 
material witnesses, those who face immigration charges are not entitled 
to counsel at government expense if they cannot afford an attorney. 
Therefore, immigration detainees will have legal representation if they 
are able to retain counsel (or someone retains counsel for them) or are 
able to get free legal representation. Restrictions on telephone 
access, contact with family members and visits by pro bono lawyers and 
organizations that offer free legal representation impose practical 
impediments that deny detainees the opportunity to find or retain 
counsel.
    The public has virtually no information about the whereabouts of 
persons held on immigration violations. Are they being held in custody 
or have they been released? Where are they being held? How long have 
they been held? Do they have an attorney? The fact that immigration 
detainees can be held in so many facilities, coupled with the secrecy 
surrounding the detention, makes it extremely difficult to determine 
whether the detainees have access to counsel, are allowed contact with 
their families, and are being properly treated. We know that at least 
one detainee--55-year-old Mohammed Rafiq Butt--died in custody.\23\ On 
October 23, Mr. Butt was found dead in his cell at the Hudson County 
jail in Kearny, New Jersey, the cause of death ruled heart failure. We 
know of others who have been held for weeks without any immigration 
charges being lodged against them. This contradicts the Attorney 
General's assurances that all those who are being detained are being 
promptly charged within 48 hours. It also violates the recently enacted 
Patriot Act, which requires that, even for those individuals certified 
by the Attorney General as suspected terrorists, charges must be filed 
within 7 days or the individuals must be released.
---------------------------------------------------------------------------
    \23\ Somini Sengupta, ``Pakistani Man Dies in I.N.S. Custody,'' The 
New York Times, October 25, 2001.
---------------------------------------------------------------------------
    Until very recently, the Department of Justice had not released any 
information about the detainees other than some numbers about how many 
there were. However, perhaps responding to mounting political pressure, 
Attorney General Ashcroft recently released some information. While 
this is a positive development, the released information is woefully 
incomplete. The basic information that the ACLU and other citizens' 
groups have been requesting is not classified or privileged, nor could 
its release raise any legitimate national security concerns. To the 
contrary, the information we seek should be a matter of public record: 
the names of the detainees; their citizenship status; where they are 
being held; the dates they were arrested or released (if applicable); 
the nature of the criminal or immigration charge; the disposition of 
the material witness warrant; the identity and names of addresses of 
the attorneys representing the detainees; the courts where the charges 
were heard and whether the proceedings were sealed, including the legal 
authority to close the proceedings; and any policy directives or 
guidance issued to officials about making public statements or 
disclosures about the detainees. Members of Congress have asked for 
similar information.
    The information that has been provided by the Department of Justice 
is better than the total wall of silence that previously existed, but 
still inadequate. The government has now released the names of 93 
people who have been charged with federal crimes but has not said where 
they are being held, nor provided any information about any of the 
people arrested on state or local charges who were also included in the 
DOJ's tally of 1200 arrests. It is unacceptable that the government 
continues to refuse to provide the names of the immigration detainees, 
the locations where they are being held, or the identities of their 
lawyers. Without the names of the detainees it is impossible to verify 
if they are being properly treated. The DOJ should immediately allow 
pro bono attorneys and legal organizations to have in-person access to 
every immigration detainee wherever held.
    It is not for lack of trying that we have been unable to get 
information about the detainees. On October 17, the ACLU wrote to the 
Attorney General asking him for information about the detainees. He did 
not respond to that letter. We posed similar questions to the Director 
of the FBI, Robert Meuller, at two meetings on September 25 and October 
25. When those requests for information failed, we filed, along with 
other organizations, a request under the Freedom of Information Act on 
October 29. Subsequent to filing the FOIA request, on October 30, we 
met with Commissioner Ziglar of the Immigration and Naturalization 
Service who also di